HomeMy WebLinkAbout00146C - PETER EPSTEEN LUTHER DDA MOU PA4B11 TERMINATION AGREEMENT
This Termination Agreement is entered into to be effective
the � day of /•- , 1990 by and between The Luther
Company Limited Partnership, a Minnesota limited partnership
("Luther") and The Community Redevelopment Agency of the City of
Palm Springs, California ("Agency") .
R E C I T A L S:
WHEREAS, Luther, Agency and the City of Palm Springs,
California have entered into that certain Agreement dated
1990; a true and accurate copy of the fully executed
Agreement is attached to this Termination Agreement as Exhibit "A"
and incorporated herein by this reference for all purposes (the
2 "Agreement") ; and
WHEREAS, pursuant to the terms of the Agreement, Luther and
Agency are obligated to, among other matters, execute a
termination of the Parcel 1 DDA and the Parcel 2 DDA, as those
terms are defined in the Agreement; and
WHEREAS, Agency and Luther, by execution of this Termination
Agreement, are terminating all rights, duties and obligations of
the parties arising out of or connected with the Parcel 1 DDA and
the Parcel 2 DDA.
NOW, THEREFORE, in consideration of the recitals and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by each of the parties hereto,
Luther and Agency hereby agree as follows:
1. Termination of Parcel 1 DDA and Parcel 2 DDA. Luther
and Agency hereby agree and declare that the Parcel 1 DDA and the
Parcel 2 DDA are hereby terminated and shall be of no further
force and effect and neither party shall have any continuing
liability, right, duty or obligation for any matter arising out of
or connected with the Parcel 1 DDA and the Parcel 2 DDA prior to
this termination.
2. Retention of Parcel 2 Deposit by Agency. In
consideration of the termination of the Parcel 2 DDA, Agency is
hereby authorized by Luther to retain the sum of $59, 664
previously deposited by Luther with Agency as security for
Luther's performance under the Parcel 2 DDA.
3 . Binding on Successors and Assigns. This Termination
Agreement shall be binding upon, and inure to the benefit of
Luther and Agency and their respective successors and assigns.
4. Governing Law. This Termination Agreement is entered
into, and shall be construed and interpreted in accordance with,
the laws of the State of California.
5. Further Cooperation. The parties agree, each to the
other, to execute and deliver all such other instruments and
documents as may be necessary or appropriate in order to complete
or clarify the transactions taken herein.
IN WITNESS WHEREOF, the parties hereto have executed this
Termination Agreement on the date first above written.
LUTHER:
The Luther Company Limited
Partnership, a Minnesota
limited p!71ership
By:
Rudy Lut r, General Partner
AGENCY:
Community Redevelopment Agency of
the City of Palm Springs, California
Chairman
and .2%�--��---�-� /�----•
Secretary
RDW95m
Consent to Assignment of MOU &
DDA w/Peter Epsteen, Ltd. to
Luther Co. Ltd. ,Auto Ctr,PA4B1l
AGREEMENT #144/#146
Resolution #454, 1-7-87
CONSESNT TO ASSIGNMENT
AND
AMENDMENT TO AGREEMENT
This Agreement is between the Community Redevelopment Agency
of the City of Palm Springs ( "Agency" ) , the City of Palm Springs
( "City" ) , and The Luther Company Limited Partnership , a Minnesota
limited partnership ( "Luther") .
WHEREAS :
1 . The Agency and the City have previously entered into a
"Memorandum of Agreement" with Peter Epsteen , Ltd . ( "Epsteen" )
concerning the establishment of an auto center on Ramon Road ; and
2 . Pursuant to that agreement , Epsteen has acquired title
from the Agency to Parcel 1 of Tract 18787 and also entered into
a Disposition and Development Agreement with the Agency ,
concerning the development of Parcel 1 ; and
3 . Pursuant to that agreement , Epsteen is required to
purchase from the Agency Parcel 2 of Tract 18787 and to enter
into a Disposition and Development Agreement concerning the
development of Parcel 2 ; and
4 . Epsteen wishes to convey Parcel 1 to Luther and to
assign to Luther all of its rights and responsibilities with
regard to the Memorandum of Understanding ; and
5 . The City and the Agency are willing to consent to such
an assignment ; and
6 . All of the parties recognize that certain changes in
circumstances require that portions of the Disposition and
Development Agreement for Parcel 1 and the Memorandum of
Understanding be amended .
NOW, THEREFORE , the parties agree as follows :
1 . The City and the Agency consent to the assignment to
Luther and waive any prior defaults by Epsteen .
2 . As to Parcel 1 , Luther shall have 90 days after
acquiring title to Parcel 1 to submit Basic Concept Drawings to
the Agency for review and approval .
3 . As to Parcel 2 , Luther shall have 60 days after
acquiring title to Parcel 1 to execute and deliver a Disposition
and Development Agreement for Parcel 2 to the Agency .
4 . The City will reimburse Luther for the cost of paving
1
the 400 foot street as described in Paragraph 7 of the Memorandum
of Agreement , up to a maximum amount of $40 , 000 . The City will
also provide $112 ,500 of financial assistance in meeting the
costs of bringing utilities to the site , removing debris , and
other site preparation costs relating to both Parcel 1 and Parcel
2 .
5 . In lieu of promising to locate particular dealerships
on the property , Luther will guarantee that the 1% portion of
sales tax revenue allocated to the City shall equal at least
$1 , 474 , 267 before March 31 , 1993 . The City shall receive the
following minimum amounts :
For the Period ending March 31 , 1988 $ 59 ,000
March 31 , 1989 260 , 000
March 31 , 1990 285 ,000
March 31 , 1991 315 , 000
March 31 , 1992 380 , 000
March 31 , 1993 176 ,000
If the City does not receive the amounts described above , the
City shall notify Luther and Luther shall promptly pay the
shortfall to the City . Luther shall be entitled to a credit for
amounts received by the City in excess of the minimum amount
relating to a period either before or after the shortfall period .
If the excess occurs in a prior period , the excess amount shall
be credited to the shortfall amount . If the excess occurs in a
later period , Luther may apply for a refund of its prior payment .
Luther may be released from this requirement if the actual sales
justify such a release .
6 . The parties agree to sign such other documents that may
be required to implement- this agreement .
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
Date : January 7, 1987
Executive Director
CITY OF PALM SPRINGS
Date : January 7, 1987 l,„ r,
City Manager
THE LUTHE LIt4ITED PARTNERSHIP ,
a Minnes t limited partnership
Date : January 19, 1987
\
APPROVE-0 BY 1ii: C'G1MivlUNItY 11109V. 2
AGENCY BY RES. NO. �1-:5,�Zl.
•��! I ,�
0305B6
Disposition & Development Agr
w/Peter Epsteen Ltd. auto
sales center, PA4B14
AGREEMENT #146
Resolution 403, 3-11-86
DISPOSITION AND DEVELOPMENT AGREEMENT
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
and
PETER EPSTEEN-PONTIAC-BUICK-ROLLS ROYCE-BRITISH IMPORTS, INC. , LTD.
Ramon-Bogie Redevelopment Project
1 , J
TABLE OF CONTENTS
I . [§100] SUBJECT OF AGREEMENT
A. [§101) Purpose of this Agreement
B. [§102] The Redevelopment Plan
C. [§103] The Project Area
D. [§104] The Site
E. [§105] Parties to this Agreement
1 . [§106] The Agency
2 • [§107] The Developer
F. [§108) Deposit
II . [§200] ➢ISPOSITION OF THE SITE
A. [§201) Sale and Purchase
B., [§202] Escrow
C. [5203] Conveyance of Title and Delivery
of Possession
D. [§204] Form of Deed
E. [5205] Condition of Title
F. [§206] Time for and Place of Delivery
of Grant Deed, Down Payment
Promissory Note and Deed of
Trust
G. [§207] Payment of the Down Payment and
Recordation of Deed and Deed of Trust
H. [§208] Title Insurance
I . [§204] Taxes and Assessments
J. [§210] Conveyance Free of Possession
K. [§211] Zoning of the Site
L. [5212] Condition of the Site
i
M. [§213] Preliminary Work by the Developer
N. [§214] Submission of Evidence of Equity
Capital and Mortgage Financing
O. [§215] Promissory Note and Deed of Trust
III . [§300] DEVELOPMENT OF THE SITE
A. [§301] Development of the Site by the
Developer
1. [§302] Scope of Development
2. [§303] Basic Concept Drawings
3 . [§304] Construction Plans , Drawings
and Related Documents
4 . [§305] Agency Approval of Plans ,
Drawings and Related Documents
5 . [§306] Cost of Construction
6 . [§307] Construction Schedule
7. [§30a] Bodily Injury, Property Damage
and Workers ' Compensation Insurance
a . [5309] City and Other Governmental Agency
Permits
9 . [§310] Rights of Access
10 . [§311] Local, State and Federal Laws
11. [§312] Antidiscrimination During
Construction
B . [§313] Responsibilities of the Agency
C. [§314] Taxes, Assessments , Encumbrances
and Liens
D. [§315] Prohibition Against Transfer of Site,
the Buildings or Structures Thereon
and Assignment of Agreement
E. [§316] Security Financing; Rights of Holders
1 . [§317] No Encumbrances Except Mortgages ,
Deeds of Trust, Sales and Leases-Back
or Other Financing for Development
ii
2 . [§318] Holder Not Obligated to Construct
Improvements
3 . [§319] Notice of Default to Mortgage,
Deed of Trust or Other Security
Interest Holders; Right to Cure
4 . [5320] Failure of Holder to Complete
Improvements
5 . [5321] Right of Agency to Cure Mortgage,
Deed of Trust or Other Security
Interest Default
F. [§322] Right of the Agency to Satisfy Other
Liens on the Site After Title Passes
G . [§323] Certificate of Completion
IV, [§400] USE OF THE SITE
A. [§401] Uses
B . [§402] Obligation to Refrain From
Discrimination
C. [§403] Form of Nondiscrimination and
Norsegregation Clauses
D. [§404] Effect and Duration of Covenants
E. [§405] Rights of Access--Public Improvements
and Facilities
V. [ 5500] DEFAULTS, REMEDIES AND TERMINATION
A. [§501] Defaults--General
B . [§502] Legal Actions
1 . [§503] Institution of Legal Actions
2 . [§504 ] Applicable Law
3 . [§505] Acceptance of Service of Process
C. [§506]- Rights and Remedies are Cumulative
D. [§507] Damages
E. [§508] Specific Performance
iii
F. [§509] Remedies and Rights of Termination
Prior to Conveyance of the Site to
the Developer'
1. [§510] Termination by the Developer
2 . [§511] Termination by the Agency
G . [§512] Option to Repurchase, Reenter and
Repossess
H. [§513] Right of Reverter
VI . [§600] GENERAL PROVISIONS
A . [§601] Notices , Demands and Communications
Between the Parties
B . [ §602] Conflicts of Interest
C. [§603] Nonliability of Agency Officials and
Employees
D. [§604] Enforced Delay: Extension of Times
of Performance
E. [§605] Inspection of Books and Records
F. [§606] Plans and Data
VII . [§700] SPECIAL PROVISIONS
A. [§701] Amendment of Redevelopment Plan
B . [ §702] Submission of Documents to the
Agency for Approval
C. [§703] Amendments to this Agreement
VIII . [§800] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
IX. [§900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
Attachments
Attachment No. 1 Map of the Site
Attachment No . 2 Legal Description of the Site
Attachment No . 3 Schedule of Performance
Attachment No. 4 Scope of Development
Attachment No . 5 Form of Grant Deed
Attachment No. 6 Form of Promissory Note
Attachment No . 7 Form of Deed of Trust
iv
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into as of the 3 day
of _ &zai/ , 1986, by and between the
COMMUNI REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS
(the "Agency") and PETER EPSTEEN k "DDe1ve�rR r"
The Agency and the Developer agre�asAivrvwuL H IMPORTS,
I . [91001 SUBJECT OF AGREEMENT �2
A. 1§1011 Purpose of this Agreement
The purpose of this Agreement is to effectuate
the Redevelopment Plan (the "Redevelopment Plan") for the
Ramon-Bogie Redevelopment Project (the "Project" ) by
providing for the disposition and development of certain
real property (the "Site" ) included within the boundaries
of the Project (the "Project Area" ) .
The development of the Site pursuant to this
Agreement and the fulfillment generally of this Agreement
are in the vital and best interests of the City of Palm
Springs, California (the "City") , and the health, safety,
morals and welfare of its residents, and in accord with the
public purposes and provisions of applicable federal, state
and local laws and requirements. Implementation of this
Agreement will further the goals and objectives of the
Redevelopment Plan to stimulate and encourage commercial
development within the Project Area.
B. [51021 The Redevelopment Plan
This Agreement is subject to the provisions of
the Redevelopment Plan which was approved and adopted on
December 30, 1983 , by the City Council of the City of Palm
Springs by Ordinance No. 1202. The Redevelopment Plan, as
it now exists and as it may be subsequently amended pursuant
to Section 701, is incorporated herein by reference and
made a part hereof as though fully set forth herein.
C. [§1031 The Project Area
The Project Area is located in the City of Palm
Springs , California, and the exact boundaries thereof are
specifically described in the Redevelopment Plan.
D. [§104 ] The Site
The Site is that portion of the Project Area shown
on the Map of the Site (Attachment No. 1) , and is more par-
ticularly described in the Legal Description of the Site
(Attachment No. 2) .
E. [§105] Parties to this Agreement
1 . [51061 The Agency
The Agency is a public body, corporate and
politic, exercising governmental functions and powers and
organized and existing under the Community Redevelopment
Law of the State of California (Health and Safety Code
Section 33000 et seg . ) . The office of the Agency is located
at 3200 Tahquitz-McCallum way, Palm Springs , California
92262 . "Agency, " as used in this Agreement, includes the
Community Redevelopment Agency of the City of Palm Springs
and any assignee of or successor to its rights, powers and
responsibilities .
2 . [§107) The Developer +
Peter E steen-Pontiac-BBick-Rolls Royce-Britis
The Developer is The Imports,Inc. ,
principal office of the Developer is 6.8131 Highway 111, Ltd.
Cathedral City, California 92234 . Wherever the term ^
"Developer" is used herein, such term shall include any
permitted nominee, assignee or successor in interest asL
herein provided.
The qualifications and identity of the
Developer are of particular concern to the City -and the -- -
Agency, and it is because of such qualifications and iden-
tity that the Agency has entered into this Agreement with
the Developer . No voluntary or involuntary successor in
interest of the Developer shall acquire any rights or powers
under this Agreement except as expressly set forth herein.
This Agreement may be terminated by the Agency pursuant to
Section 511 hereof if there is any significant change
(voluntary or involuntary) in the membership, management or
control of the Developer prior to the completion of the
development of the Site as evidenced by ,the issuance of a
Certificate of Completion therefor.
The Developer shall not assign all or any
part of this Agreement without the prior written approval
of the Agency.
-2-
F. [§108) Deposit
The Developer shall , prior to or simultaneously
with the execution -of this Agreement by the Agency, deliver
to the Agency a deposit of cash or certified check satis-
factory to the Agency in the amount of Eighty-a;9h+ +hniican fi,,e hundred
(� 88,500.00 ) (the "Deposit") as security for the perform—
ance of the obligations of the Developer to be performed
prior to the return of the Deposit to the Developer or its
retention by the Agency as liquidated damages .
In lieu of cash or certified check, the Deposit.,
at the option of the Developer, may be in the form of :
1 . Negotiable certificates of deposit issued by
a federal or state bank; or
2 . An unconditional and irrevocable letter of
credit, in favor of the Agency, from a bank
authorized to do business in California, in
form and substance satisfactory to the
Agency.
The Agency shall be under no obligation to pay or
earn interest on the Deposit, but if interest is paid
thereon, such interest- shall become part of the Deposit .
Upon termination of this Agreement by the Agency
as provided in Section 511 hereof, the Deposit (including
all interest paid thereon) shall be retained by the Agency
as liquidated damages as provided therein.
Upon termination of this Agreement by the
Developer as provided in Section 510 hereof, the Deposit
(including all interest paid thereon) shall be returned to
the Developer by the Agency as provided therein.
If the Developer is in default with respect to
any provision of this Agreement, the Agency may, but shall
have no obligation to, use the Deposit or any portion of
the Deposit to cure such default or to compensate the Agency
for any expense or damage sustained by the Agency and
resulting from such default . If this Agreement has not
been terminated as a result of such default, the Developer,
on demand from the Agency, shall promptly restore such
Deposit to the full amount required by this Section 108 .
If this Agreement shall not have been theretofore
cancelled or terminated, or the Deposit shall not have been
returned to the Developer, the Agency shall return the
Deposit to the Developer upon completion of the improvements
and development of the Site for which a final Certificate
-3-
of Completion has been issued pursuant to Section 323
hereof .
II . [52001 DISPOSITION OF THE SITE
A. [§201] Sale and Purchase
In accordance with and subject to all the terms ,
covenants and conditions of this Agreement, the Agency
agrees to sell, and the Developer agrees to purchase for
development, the Site for the sum of ONE MILLION SEVEN
HUNDRED SEVENTY THOUSAND
DOLLARS ($1, 770,000 ) (the "Purchase Price") . The Purchase
Price shall be comprised of a down payment of EIGHT HUNDRED
EIGHTY FIVE THOUSAND
DOLLARS ($ 885,000 ) (the "Down Payment" ) and a remaining /
payment of EIGHT HUNDRED EIGHTY-FIVE THOUSAND
DOLLARS ($885,000 ) (the "Remaining Payment" ) .
B . [§2021 Escrow
The Agency agrees to open an escrow with
Ticor Title Insurance Co., or any other escrow company approved
by the Agency and the Developer, as escrow agent (the
"Escrow Agent") , in Palm Springs, California, within the
time established in the Schedule of Performance (Attachment
No. 3) . This Agreement constitutes the joint escrow
instructions of the Agency and the Developer, and a dupli-
cate original of this Agreement shall be delivered to the
Escrow Agent upon the opening of escrow. The Agency and
the Developer shall provide such additional escrow instruc-
tions as shall be necessary and consistent with this Agree-
ment . The Escrow-Agent hereby is empowered to act under
this Agreement, and, upon indicating its acceptance of the
provisions of this Section 202 in writing, delivered to the
Agency and to the Developer within five (5) days after the
opening of the escrow, shall carry out its duties as Escrow
Agent hereunder.
In accordance with the provisions of Section 207
of this Agreement, the Developer shall deposit with the
Escrow Agent the Down Payment for the Site and the
Developer ' s duly executed promissory note (the "Promissory
Note" ) in the amount of the Remaining Payment . The Promis-
sory Note shall be in substantially the form attached hereto
as Attachment No . 6 and is incorporated herein by reference.
The Developer shall also deposit with the Escrow Agent the
Developer ' s duly executed deed of trust (the "Deed of
Trust") encumbering the Site and securing the full repayment
of the Promissory Note. The Deed of Trust shall be in sub-
stantially the form set forth in Attachment No . 7, which is
incorporated herein by reference.
-4-
The Developer shall also deposit with the Escrow
Agent the in-lieu tax payment to the Agency required by the
second paragraph of Section 209 of this Agreement .
The Developer shall also pay in escrow to the
Escrow Agent the following fees, charges and costs promptly
after the Escrow Agent has notified the Developer of the
amount of such fees, charges and costs, but not earlier
than ten (10) days prior to the scheduled date for the close
of escrow:
1 . One-half of the escrow fee; and
2 . The portion of the premium for the title
insurance policy or special endorsements to
be paid by the Developer as set forth in
Section 208 of this Agreement .
The Agency shall timely and properly execute,
acknowledge and deliver a grant deed conveying to the
Developer, title to the Site in accordance with the require-
ments of Section 204 of this Agreement, together with an
estoppel certificate certifying that thb Developer has com-
pleted all acts (except deposit of the Down Payment,
Promissory Note and Deed of Trust) necessary to entitle the
Developer to such conveyance, if such be the fact .
The Agency shall pay in escrow to the Escrow Agent
the following fees, charges and costs promptly after the
Escrow Agent has notified the Agency of the amount of such
fees, charges and costs, but not earlier than ten (10) days
prior to the scheduled date for the close of escrow:
1 . Costs necessary to place the title to the
Site in the condition for conveyance
required by the provisions of this Agreement;
2 . One-half of the escrow fee;
3 . Cost of drawing the deed;
4 . Recording fees;
5 . Notary fees ;
6 . The premium for a C.L.T.A. standard title
insurance policy to be paid by the Agency as
set forth in Section 208 of this Agreement;
7 . Ad valorem taxes , if any, upon the Site for
any time prior to conveyance of title; and
-5-
8 . Any State, County or City documentary
transfer tax.
Upon delivery of a grant deed to the Escrow Agent
by the Agency pursuant to Section 206 of this Agreement and
upon delivery of the Down Payment, executed Promissory Note
and executed Deed of Trust, the Escrow Agent by the
Developer pursuant to this Section 202, the Escrow Agent
shall record such deed when title can be vested in the
Developer in accordance with the terms and provisions of
this Agreement . The Escrow Agent shall buy, affix and
cancel any transfer stamps required by law and pay any
transfer tax required by law. Any insurance policies
governing the Site are not to be transferred.
The Escrow Agent is authorized to :
1 . Pay and charge the Agency and the Developer,
respectively, for any fees, charges and
costs payable under this Section 202 of this
Agreement . Before such payments are made,
the Escrow Agent shall notify the Agency and
the Developer of the fee§, charges and costs
necessary to clear title and close the
escrow;
2 . Disburse funds and deliver the grant deed,
Deed of Trust, Promissory Note and other
documents to the parties entitled thereto
when the conditions of this escrow have been
fulfilled by the Agency and the Developer;
and
3 . Record any instruments delivered through
this escrow, if necessary or proper, to vest
title in the Developer in accordance with
the terms and provisions of this Agreement .
All funds received in this escrow shall be
deposited by the Escrow Agent with other escrow funds of
the Escrow Agent in a general escrow account or accounts
with any state or national bank doing business in the State
of California . Such funds may be transferred to any other
such general escrow account or accounts . All disbursements
shall be made by check of the Escrow Agent . All adjustments
shall be made on the basis of a 30-day month.
If this escrow is not in condition to close before
the time for conveyance established in Section 203 of this
Agreement, either party who then shall have fully performed
the acts to be performed before the conveyance of title
may, in writing, terminate this Agreement in the manner set
-6-
forth in Section 510 or 511 hereof, as the case may be, and
demand the return of its money, papers or documents . There-
upon all obligations and liabilities of the parties under
this Agreement shall cease and terminate in the manner set
forth in Section 510 or 511 hereof, as the case may be. If
neither the Agency nor the Developer shall have fully per-
formed the acts to be performed before the time for convey-
ance established in Section 203, no termination or demand
for return shall be recognized until ten (10) days after
the Escrow Agent shall have mailed copies of such demand to
the other party or parties at the address of its or their
principal place or places of business . If any objections
are raised within the 10-day period, the Escrow Agent is
authorized to hold all money, papers and documents with
respect to the Site until instructed in writing by both the
Agency and the Developer or upon failure thereof by a court
of competent jurisdiction. If no such demands are made,
the escrow shall be closed as soon as possible . Nothing in
this Section 202 shall be construed to impair or affect the
rights or obligations of the Agency or the Developer to
specific performance.
Any amendment of these escrow'instructions shall
be in writing and signed by both the Agency and the
Developer. At the time of any amendment, the Escrow Agent
shall agree to carry out its duties as Escrow Agent under
such amendment.
All communications from the Escrow Agent to the
Agency or the Developer shall be directed to the addresses
and in the manner established in Section 601 of this Agree-
ment for notices, demands and communications between the
Agency and 'the Developer.
The liability of the Escrow Agent under this
Agreement is limited to performance of the obligations
imposed upon it under Sections 202 to 208, both inclusive,
of this Agreement .
Neither the Agency nor the Developer shall be
liable for any real estate commissions or brokerage fees
which may arise herefrom. The Agency and the Developer
each represent that neither has engaged any broker, agent
or finder in connection with this transaction.
C. [§203] Conveyance of Title and Delivery of
Possession
Provided that the Developer is not in default
under this Agreement and all conditions precedent to such
conveyance have occurred, and subject to any mutually agreed
upon extensions of time, conveyance to the Developer of
-7-
title to the Site shall be completed on or prior to the
date specified in the Schedule of Performance (Attachment
No . 3) . The Agency and the Developer agree to perform all
acts necessary to conveyance of title in sufficient time
for title to be conveyed in accordance with the foregoing
provisions .
Possession shall be delivered to the Developer
concurrently with the conveyance of title, except that
limited access may be permitted before conveyance of title
as permitted in Section 213 of this Agreement. The
Developer shall accept title and possession on or before
the said date.
D. [§204] Form of Deed
The Agency shall convey to the Developer title to
the Site in the condition provided in Section 205 of this
Agreement by grant deed in substantially the form set forth
in Attachment No. 5 .
E. [§205] Condition of Title
The Agency shall convey to the Developer fee
simple title to the Site free and clear of all recorded
liens, encumbrances, assessments, leases and taxes except
as are consistent with this Agreement, provided, however,
that the, Site shall be subject to easements of record.
F. [§206] Time for and Place of Delivery of
Grant Deed Down Payment Promissory
Note and Deed of Trust
Subject to any mutually agreed upon extensions of
time, the Agency shall deposit the grant deed and the
Developer shall deposit the Down Payment, executed Promis-
sory Note and executed Deed of Trust for the Site with the
Escrow Agent on or before the date established for the con-
veyance of the Site in the Schedule of Performance
(Attachment No. 3) .
G. [§207] Payment of the Down Payment and
Recordation of Deed and Deed of Trust
The Developer shall deposit the Down Payment, the
executed Deed of Trust and executed Promissory Note for the
Site and other sums required hereunder with the Escrow Agent
prior to the date for conveyance thereof , provided that the
Escrow Agent shall have notified the Developer in writing
that the grant deed, properly executed and acknowledged by
the Agency, has been delivered to the Escrow Agent and that
title is in condition to be conveyed in conformity with the
-8-
provisions of Section 205 of this Agreement . Upon the close
of escrow, the Escrow Agent shall file the grant deed and
the Deed of Trust for recordation among the land records in
the Office of the County Recorder of Riverside County, shall
deliver the Down Payment and other required sums to the
Agency and shall deliver to the Developer a title insurance
policy insuring title in conformity with Section 208 of
this Agreement .
H. [§2081 Title Insurance
Concurrently with recordation of the grant deed
and the Deed of Trust, Ticor Title Insurance Co. , or some
other title insurance company satisfactory to the Agency
and the Developer having equal or greater financial respon-
sibility ( "Title Company" ) , shall provide and deliver to
the Developer a title insurance policy issued by the Title
Company insuring that the title is vested in the Developer
in the condition required by Section 205 of this Agreement .
The Title Company shall provide the Agency with a copy of
the title insurance policy and the title insurance policy
shall be in the amount of the Purchase Price of the Site.
The Agency shall pay only for that portion of the
title insurance premium attributable to a C.L.T.A, standard
form policy of title insurance in the amount of the Purchase
Price of the Site. The Developer shall pay for all other
premiums for title insurance coverage or special
endorsements .
Concurrently with the recording of the grant deed
conveying title to the Site, the Title Company shall, if
requested by the .Developer, _ pr-ovide .the--Deve.l_oper,.saith_.3n__ , -- -_-
endorsement to insure the amount of the Developer ' s esti-
mated development costs of the improvements to be
constructed upon the Site. The Developer shall pay the
entire premium for any such increase in coverage requested
by it .
I . [§2091 Taxes and Assessments
Ad valorem taxes and assessments , if any, on the
Site, and taxes upon this Agreement or any rights hereunder,
levied, assessed or imposed for any period commencing prior
to,. conveyance of title shall be borne by the Agency. All
ad valorem taxes and assessments levied or imposed for any
period commencing after closing of the escrow shall be paid
by the Developer .
If the Site is now or will be exempt from taxation
by reason of its ownership by a public body (including the
Agency) , then in addition to and at the time of depositing
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the Purchase Price of the Site in escrow, the Developer
shall deposit therewith, for payment to the Agency, a sum
equal to the Purchase Price multiplied by the last known
tax rate of the City, County and other districts or public
corporations that would have levied a tax upon such Site
had it not been exempt . Such sum shall be prorated and
paid for that portion of the fiscal year remaining after
the close of escrow and for that portion of the next
succeeding fiscal year that the Site will be exempt from
taxation.
J. [§210] Convevance Free of Possession
Except as otherwise provided in the Scope of
Development (Attachment No . 4) , the Site shall be conveyed
free of any possession or right of possession by any person
except that of the Developer and the easements of record.
K. [§211] Zoning of the Site
The Agency, at its sole cost and expense, shall
use its best efforts to cause zoning of the Site prior to
the time of conveyance to be such as to• permit the develop-
ment and construction of improvements in accordance with
the provisions of this Agreement and the use, operation and
maintenance of such improvements.
L. [§212] Condition of the Site
Except as may be otherwise specifically provided
in the Scope of Development (Attachment No. 4) , the Site
shall be conveyed from the Agency to the Developer in an
"as is" condition. --The -Agency shall- -not-,be responsible -for .- -
any items of site work except those which are listed in the
Scope of Development as the Agency' s responsibilities .
It shall be the sole responsibility of the
Developer, at the Developer ' s sole expense, to investigate
and determine the soil conditions of the Site and the suit-
ability of such soil conditions for the improvements to be
constructed by the Developer . If the soil conditions are
not in all respects entirely suitable for the use or uses
to which the Site will be put, then it is the sole respon-
sibility and obligation of the Developer to take such action
as may be necessary to place the soil conditions of the
Site in a condition suitable for the development of the
Site .
M. [§213] Preliminary Work by the Developer
Prior to the conveyance of title from the Agency,
representatives of the Developer shall have the right of
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access to the Site at all reasonable times for the purpose
of obtaining data and making surveys and tests necessary to
carry out this Agreement . The Developer shall hold the
Agency harmless for any injury or damages arising out of
any activity pursuant to this Section. The Developer shall
have access to all data and information on the Site avail-
able to the Agency, but without warranty or representation
by the Agency as to the completeness, correctness or
validity of such data and information.
Any preliminary work undertaken on the Site by
the Developer prior to conveyance of title thereto shall be
done only after written consent of the Agency and at the
sole expense of the Developer . The Developer shall save
and protect the Agency against any claims resulting from
such preliminary work, access or use of the Site . Copies
of data, surveys and tests obtained or made by the Developer
on the Site shall be filed with the Agency. Any preliminary
work by the Developer shall be undertaken only after
securing any necessary permits from the appropriate govern-
mental agencies .
N. [§214] Submission of Evid n a of Eo itv
Capital and Mortgage Financing
If the Developer finances the acquisition and
development. of the Site and related activities, such
financing shall be subject to the approval of the Agency,
which approval will not be unreasonably withheld.
No later than the time specified in the Schedule
of Performance (Attachment No. 3) , the Developer shall
submit to the Agency evidence satisfactory to the Agency
that the Developer has the equity capital, commitments for
mortgage financing and automobile franchise agreements
necessary for acquisition and development of the Site.
Such evidence shall include, but shall not be
limited to, the following:
1 . Copies of all prior construction and perma-
nent financing commitments for construction of the improve-
ments on the Site;
2 . Evidence of acceptance of each loan commit-
ment by Developer and of payment of all required commitment
fees ;
3 . Evidence of equity capital contributions ;
4 . Copies of the performance bond or bonds and
labor and material bond or bonds provided by the general
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contractor in connection with the construction contract for
the improvements on the Site, which bonds shall be equal to
one hundred percent (100%) of the cost of construction as
reflected in the construction contract , shall name the
Agency as a co-obligee, and shall be certified by the
Developer to be a true and correct copy thereof; and
5 . Copies of executed agreements for the auto-
mobile dealership franchises in accordance with Section I .B.
of the Scope of Development (Attachment No . 4) .
O. [§215] Promissory Note and Deed of Trust
The Developer shall execute in the manner set
forth in Section 202 a promissory note (the "Promissory
Note" ) in substantially the form attached hereto as Attach-
ment No . 6 and incorporated herein by reference. The
Promissory Note shall provide that the principal shall be
reduced by an amount equal to the sales tax generated by
the operation of the improvements on the Site and paid to
the City each year . In the event the Developer has not
commenced operations of the improvements on the Site by the
time set forth in the Schedule of Performance (Attachment
No . 3) , the Promissory Note shall Pecome due and payable
with interest at eigkt percent (II%��r ✓✓ r annum calculated
from the date of close of esrow forrhe conveyance of the
Site to the Developer. In the event that the Promissory
Note has not been extinguished in such manner and the
improvements on the Site have been continuously operated by
Developer for the uses set forth in the Grant Deed (Attach-
ment No . 5) for seventy-two (72) months from the date of
the issuance of the Certificate of Completion as set forth
in Section 323 hereof, then .the__ Promissory Note shall be
extinguished and the Develo per shall have no further obli-
gation to repay Agency for any portion of the Advance .
The Promissory Note shall be secured by a deed of
trust (the "Deed of Trust" ) in the form attached hereto as
Attachment No . 7 and incorporated herein by reference, which
.shall secure the obligation of the Developer to make such
payments to the Agency. The Agency shall file such Deed of
Trust for recordation among the land records in the office
of the County Recorder of Riverside County.
III . [§300] DEVELOPMENT OF THE SITE
A. [§301] Development of the Site by the
Developer
1 . [§302] Scope of Development
The Site shall be developed as provided in
the Scope of Development (Attachment No . 4) .
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2 . [53031 Basic Concept Drawings
Within the time set forth in the Schedule of
Performance (Attachment No. 3) , the Developer shall prepare
and submit to the Agency for review and written approval
Basic Concept Drawings and related documents containing the
overall plan for development of the Site. The Basic Concept
Drawings shall conform to this Agreement, including the
Scope of Development (Attachment No. 4) , and any presenta-
tion materials or site plans approved by the Agency at the
time of execution of this Agreement. The Agency shall
approve or disapprove the Basic Concept Drawings within the
time established in the Schedule of Performance. Failure
by the Agency to either approve or disapprove within such
time shall be deemed an approval . Any disapproval shall
state in writing the reasons for disapproval .
The Site shall be developed as generally
established in the Basic Concept Drawings and related docu-
ments except as changes may be mutually agreed upon between
the Developer and the Agency. Any such changes shall be
within the limitations of the Scope of Development
(Attachment No. 4) .
3 . [§304] Construction Plans Drawings and
_Related Documents
The Developer shall prepare and submit con-
structioA plans, drawings and related documents to the
Agency for architectural and site planning review and
written approval as and at the times established in the
Schedule of Performance (Attachment No. 3) . The construc-
tion plans, .clrawings...3nd_-related_.documents_.s.hall...be__._ ._._.
submitted in two stages : preliminary and final working
drawings . Final drawings and plans are hereby defined as
those in sufficient detail to obtain a building permit .
The Developer shall also prepare and submit
to the Agency for its approval preliminary and final land-
scaping and finish grading plans for the Site. Such pre-
liminary and final plans shall be prepared and submitted
within the times established in the Schedule of Performance
(Attachment No. 3) , subject to extensions as are authorized
herein or as mutually agreed to by the parties hereto .
During the preparation of all drawings and
plans , Agency staff and the Developer shall hold regular
progress meetings to coordinate the preparation of, submis-
sion to, and review of construction plans and related docu-
ments by the Agency. The Agency and the Developer shall
communicate and consult informally as frequently as is
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necessary to insure that the formal submittal of any docu-
ments to the Agency can receive prompt and speedy
consideration.
If any revisions or corrections of plans
approved by the Agency shall be required by any government
official, agency, department or bureau having jurisdiction,
or any lending institution involved in financing, the
Developer and the Agency shall cooperate in efforts to
obtain a waiver of such requirements or to develop a
mutually acceptable alternative.
4 . [§305) Agency Approval of Plans Drawings
and Related Documents
Subject to the terms of this Agreement , the
Agency shall have the right of architectural and site
planning review of all plans and drawings , including any
changes therein. The Agency agrees that the Developer need
submit plans and submissions for architectural and site
planning review only to the Agency, and the Agency shall
obtain any architectural and site planning review required
by any agency, department, board or commission of the City
within the times required hereunder for review of such plans
and submissions and changes therein by the Agency, provided,
however, that nothing herein shall relieve the Developer of
any obligation to submit plans and submissions for special
development permits or building permits to City departments
or other public agencies .
The Agency shall approve or disapprove the
plans, drawings and related documents referred to in
Section 304 of this Agreement within-- the -times established . , .. . .
in the Schedule of Performance (Attachment No. 3) . Failure
by the Agency to either approve or disapprove within the
times established in the Schedule of Performance shall be
deemed an approval . Any disapproval shall state in writing
the reasons for disapproval and the changes which the Agency
requests be made. Such reasons and such changes must be
consistent with the Scope of Development (Attachment No . 4)
and any items previously approved or deemed approved here-
under by the Agency. The Developer, upon receipt of a
disapproval based upon powers reserved by the Agency here-
under, shall revise such plans, drawings and related docu-
ments and resubmit them to the Agency as soon as possible
after receipt of the notice of disapproval, provided that
in no case shall the Agency be entitled to require changes
inconsistent with the Scope of Development and any
previously approved items .
If the Developer desires to make any sub-
stantial change in the construction plans after their
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approval by the Agency, the Developer shall submit the
proposed change to the Agency for its approval . If the
construction plans, as modified by the proposed change,
conform to the requirements of Section 304 of this Agree-
ment, the approvals previously granted by the Agency under
this Section 305 and the Scope of Development (Attachment
No. 4) , the Agency shall approve the proposed change and
notify the Developer in writing within thirty (30) days
after submission to the Agency. Such change in the
construction plans shall, in any event, be deemed approved
by the Agency unless rejected, in whole or in part, by
written notice thereof by the Agency to the Developer
setting forth in detail the reasons therefor, and such
rejection shall be made within the said 30-day period.
5 . [§306] Cost of Construction
The cost of developing the Site and
constructing all improvements thereon shall be borne by the
Developer, except for work expressly set forth in this
Agreement to be performed or paid for by the Agency or
others . The Agency and the Developer shall each pay the
costs necessary to administer and carry out their respective
responsibilities and obligations under this Agreement.
6 . [§307] Construction Schedule
After the conveyance of title to the Site,
the Developer shall promptly begin and thereafter diligently
prosecute to completion the construction of the improvements
and the development of the Site. The Developer shall begin
and complete all construction and develorment _within. the
times specified in the Schedule of Performance (Attachment
No . 3) or such reasonable extension of said dates as may be
granted by the Agency or as provided in Section 604 of this
Agreement . The Schedule of Performance is subject to
revision from time-to-time as mutually agreed upon in
writing between the Developer and the Agency.
During the period of construction, but not
more frequently than once a month, the Developer shall
submit to the Agency a written progress report of the
construction when and as requested by the Agency. The
report shall be in such form and detail as may reasonably
be required by the Agency and shall include a reasonable
number of construction photographs taken since the last
report submitted by the Developer.
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7 . 1§3081 wily Injury, Property Damage and
Workers ' Compensation insurance
Prior to the commencement of construction on
the Site or any portion thereof, the Developer shall furnish
or cause to be furnished to the Agency duplicate originals
or appropriate certificates of bodily injury and property
damage insurance policies in the amount of at least
$1, 000, 000 for any person, $5, 000, 000 for any occurrence
and $500, 000 property damage, naming the Agency and the
City as additional or coinsureds . The Developer shall also
furnish or cause to be furnished to the Agency evidence
satisfactory to the Agency that any contractor with whom 'it
has contracted for the performance of work on the Site
carries workers ' compensation insurance as required by law.
The obligations set forth in this Section 308 shall remain
in effect only until a final Certificate of Completion has
been issued covering the entire Site as hereinafter provided
in Section 323 hereof .
8 . [§309] City and Other Governmental Agency
Permits
r
Before commencement of construction or
development of any buildings, structures or other work of
improvement upon the Site (unless such construction,
development or work is to be commenced before the convey-
ance of .title) , the Developer shall, at its own expense,
secure or cause to be secured any and all permits which may
be required by the City or any other governmental agency
affected by. such construction, development or work. The
Agency shall provide a:ll assistance deemed appropriate by
the Agency to the Developer in securing these permits .
9 . [§310] Rights of Access
For the purposes of assuring compliance with
this Agreement, representatives of the Agency and the City
shall have the reasonable right of access to the Site with-
out charges or fees and at normal construction hours during
the period of construction for the purposes of this Agree-
ment, including, but not limited to, the inspection of the
work being performed in constructing the improvements .
Such representatives of the Agency or the City shall be
those who are so identified in writing by the Executive
Director of the Agency. The Agency and City shall indemnify
the Developer and hold it harmless from any damage caused
or liability arising out of this right to access .
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10 . [93111 Local , State and Federal Laws
The Developer shall carry out the construc-
tion of the improvements in conformity with all applicable
laws, including all- applicable federal and state labor
standards .
11. [§312) Antidiscrimination During
Construction
The Developer, for itself and its successors
and assigns, agrees that in the construction of the improve-
ments provided for in this Agreement, the Developer will
not discriminate against any employee or applicant for
employment because of race, color, creed, religion, sex,
marital status , ancestry or national origin .
B . [§313] Responsibilities of the Aaencv
The Agency, without expense to the Developer or
assessment or claim against the Site, shall perform all
work specified herein and in the Scope of Development
(Attachment No. 4) for the Agency to perform within the
times specified in the Schedule of Performance (Attachment
No. 3) .
C. [§314] Taxes Assessments Encumbrances and
Liens
The Developer shall pay when due all real estate
taxes and assessments assessed and levied on the Site for
any period subsequent to conveyance of title to or delivery
of oossessi.on .of- the_.Site_._ Pr.iar_-t.c, the S_szuanc_e_ .of_.a_ -__..___ _. . _
Certificate of Completion, the Developer shall not place or
allow to be placed on the Site any mortgage, trust deed,
encumbrance or lien unauthorized by this Agreement . The
Developer shall remove or have removed any levy or attach-
ment made on the Site (or any portion thereof) , or shall
assure the satisfaction thereof, within a reasonable time,
but in any event prior to a sale thereunder. Nothing herein
contained shall be deemed to prohibit the Developer from
contesting the validity or amounts of any tax, assessment ,
encumbrance or lien, nor to limit the remedies available to
the Developer in respect thereto .
The Developer understands that under certain
conditions, its control of the Site or portion thereof under
this Agreement may give rise to the imposition of a posses-
sory interest tax on said property, and in such event , the
Developer agrees to pay when due any such possessory
interest tax.
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D. L§3151 Prohibition Against Transfer of Site the
Buildings or Structures Thereon and
Assignment of Agreement
After conveyance of title and prior to the
issuance by the Agency of a Certificate of Completion
pursuant to Section 323, the Developer shall not, except as
expressly permitted by this Agreement, sell, transfer,
convey, assign or lease the whole or any part of the Site
or the buildings or improvements thereon without the prior
written approval of the Agency. This prohibition shall not
apply subsequent to the issuance of the Certificate of
Completion for the Site. This prohibition shall not be
deemed to prevent the granting of easements or permits to
facilitate the development of the Site or to prohibit or
restrict the leasing of any part or parts of a building or
structure when said improvements are completed.
In the absence of specific written agreement by
the Agency, no such transfer, assignment or approval by the
Agency shall be deemed to relieve the Developer or any other
party from any obligations under this Agreement until
completion of development as evidenced by the issuance of a
Certificate of Completion therefor .
E. [93161 Security Financing • Rights of Holders
1. [§317] No Encumbrances Except Mortgages ,
Deeds of Trust , Sales and
Uses-Back or Other Financing for
Development
Notwithstanding Sections 314 and 315 of this
Agreement, mortgages, deeds of trust , sales and leases-back
or any other form of conveyance required for any reasonable
method of financing are permitted before issuance of a
Certificate of Completion but only for the purpose of
securing loans of funds to be used for financing the
acquisition of the Site, the construction of improvements
on the Site and any other expenditures necessary and appro-
priate to develop the Site under this Agreement . The
Developer shall notify the Agency in advance of any
mortgage, deed of trust, sale and lease-back or other form
of conveyance for financing if the Developer proposes to
enter into the same before issuance of a Certificate of
Completion. The Developer shall not enter into any such
conveyance for financing without the prior written approval
of the Agency (unless such lender shall be one of the
ten (10) largest banking institutions doing business in the
State of California, or one of the ten (10) largest insur-
ance lending institutions in the United States qualified to-
do business in the State of California) , which approval the
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0
Agency agrees to give if any such conveyance is given to a
responsible financial or lending institution or other
acceptable person or entity. Such lender shall be deemed
approved unless rejected in writing by the Agency within
ten (10) days after notice thereof to the Agency by the
Developer. In any event, the Developer shall promptly
notify the Agency of any mortgage, deed of trust, sale and
lease-back or other financing conveyance, encumbrance or
lien that has been created or attached thereto prior to
completion of the construction of the improvements on the
Site whether by voluntary act of the Developer or other-
wise. The words "mortgage" and "deed of trust, " as used
herein, include all other appropriate modes of financing
real estate acquisition, construction and land development .
2 . [§31B] Holder Not Obligated to Construct
Improvements
The holder of any mortgage, deed of trust or
other security interest authorized by this Agreement shall
in no way be obligated by the provisions of this Agreement
to construct or complete the improvements or to guarantee
such construction or completion, nor shall any covenant or
any other provision in the grant deed for the Site be con-
strued so to obligate such holder. Nothing in this Agree-
ment shall be deemed to construe, permit or authorize any
such holder to devote the Site to any uses or to construct
any improvements thereon other than those uses or improve-
ments provided for or authorized by this Agreement.
3 : [§319] Notice of Default to Mortgage. Deed
of Trust or-Other- Security Interest -
Holders : Right to Cure
Whenever the Agency shall deliver any notice
or demand to the Developer with respect to any breach or
default by the Developer in completion of construction of
the improvements, the Agency shall at the same time deliver
a copy of such notice or demand to each holder of record of
any mortgage, deed of trust or other security interest
authorized by this Agreement who has previously made a
written request to the Agency therefor. Each such holder
shall (insofar as the rights of the Agency are concerned)
have the right, at its option, within ninety (90) days after
the receipt of the notice, to cure or remedy or commence to
cure or remedy any such default and to add the cost thereof
to the security interest debt and the lien on its security
interest . In the event there is more than one such holder,
the right to cure or remedy a breach or default of the
Developer under this Section 319 shall be exercised by the
holder first in priority or as the holders may otherwise
agree among themselves , but there shall be only one exercise
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of such right to cure and remedy a breach or default of the
Developer under this Section 319 . Nothing contained in
this Agreement shall be deemed to permit or authorize such
holder to undertake or continue the construction or comple-
tion of the improvements (beyond the extent necessary to
conserve or protect the improvements or construction already
made) without first having expressly assumed the Developer ' s
obligations to the Agency by written agreement satisfactory
to the Agency. The holder in that event must agree to com-
plete, in the manner provided in this Agreement, the
improvements to which the lien or title of such holder
relates and submit evidence satisfactory to the Agency that
it has the qualifications and financial responsibility
necessary to perform such obligations . Any such holder
properly completing such improvements shall be entitled,
upon written request made to the Agency, to a Certificate
of Completion from the Agency.
4 . [53201 Failure of Holder to Complete
Improvements
In any case where, six (6) months after
default by the Developer in completion of construction of
improvements under this Agreement, the holder of any mort-
gage, deed of trust or other security interest creating a
lien or encumbrance upon the Site has not exercised the
option to construct, or if it has exercised the option and
has not proceeded diligently with construction, the Agency
may purchase the mortgage, deed of trust or other security
interest by payment to the holder of the amount of the
unpaid debt, plus any accrued and unpaid interest . If the
ownership of the Site has vested in the holder, the Agency,
if it so desires, sh.all. be -entitled to a conveyance of_the_._..__ .._ , ._ .
Site from the holder to the Agency upon payment to the
holder of an amount equal to the sum of the following :
a . The unpaid mortgage, deed of trust or
other security interest debt at the
time title became vested in the holder
(less all appropriate credits, includ-
ing those resulting from collection and
application of rentals and other income
received during foreclosure
proceedings) ;
b. All expenses with respect to
foreclosure;
C . The net expenses , if any (exclusive of
general overhead) , incurred by the
holder as a direct result of the sub-
sequent management of the Site;
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d . The costs of any authorized improve-
ments made by such holder; and
e. An amount equivalent to the interest
that would have accrued on the aggre-
gate of such amounts had all such
amounts become part of the mortgage or
deed of trust debt and such debt had
continued in existence to the date of
payment by the Agency.
5 . [§321) Right of Agen v to Cure Mortgage,
Deed of Trust or Other Security
Interest Default
In the event of a default or breach by the
Developer of a mortgage, deed of trust or other security
interest with respect to the Site prior to the completion
of development, and the holder has not exercised its option
to complete the development, the Agency may cure the default
prior to completion of any foreclosure. In such event, the
Agency shall be entitled to reimbursement from the Developer
of all costs and expenses incurred by the Agency in curing
the default . The Agency shall also be entitled to a lien
upon the Site to the extent of such costs and disbursements .
Any such lien shall be subject to mortgages, deeds of trust
or other security interests executed for the sole purpose
of obtaining funds- to purchase and develop the Site as
authorized herein.
F. [§322] Right of the Agency to Satisfy Other
Liens on the Site After Title Passes
After the conveyance of title and prior to the
issuance of a Certificate of Completion for construction
and development, and after the Developer has had a reason-
able time to challenge, cure or satisfy any liens or encum-
brances on the Site, the Agency shall have the right to
satisfy any such liens or encumbrances, provided, however,
that nothing in this Agreement shall require the Developer
to pay or make provision for the payment of any tax,
assessment, lien or charge so long as the Developer in good
faith shall contest the validity or amount thereof, and so
long as such delay in payment shall not subject the Site to
forfeiture or sale.
G. [§323] Certificate of Completion
Promptly after completion of all construction and
development to be completed by the Developer upon the Site,
the Agency shall furnish the Developer with a Certificate
of Completion upon written request therefor by the
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Developer . Such Certificate of Completion shall be in such
form as to permit it to be recorded in the Office of the
County Recorder of Riverside County.
A Certificate of Completion shall be, and shall
so state, conclusive determination of satisfactory comple-
tion of the construction required by this Agreement upon
the Site and of full compliance with the terms hereof .
After issuance of such Certificate of Completion, any party
then owning or thereafter purchasing, leasing or otherwise
acquiring any interest in the Site covered by said Certifi-
cate of Completion shall not (because of such ownership,
purchase, lease or acquisition) incur any obligation or
liability under this Agreement, except that such party shall
be bound by any covenants contained in the deed, lease,
mortgage, deed of trust, contract or other instrument of
transfer in accordance with the provisions of
Sections 401-404 of this Agreement. Except as otherwise
provided herein, after the issuance of a Certificate of
Completion for the Site, neither the Agency, the City nor
any other person shall have any rights, remedies or controls
with respect to the Site that it would otherwise have or be
entitled to exercise under this Agreement as a result of a
default in or breach of any provision of this Agreement,
and the respective rights and obligations of the parties
with reference to the Site shall be as set forth in the
grant deed of the Site from the Agency to the Developer,
which shall be in accordance with the provisions of
Sections 401-404 of this Agreement .
The Agency shall not unreasonably withhold any
Certificate of Completion. If . the Agency refuses or fails
to furnish a Certificate of Completion for the Site after
written request from the Developer, the Agency shall, within
ten ( 10) days of the next regularly scheduled Agency meeting
after such written request, provide the Developer with a
written statement of the reasons the Agency refused or
failed to furnish a Certificate of Completion. The state-
ment shall also contain the Agency' s opinion of the action
the Developer must take to obtain a Certificate of Comple-
tion. If the reason for such refusal is confined to the
immediate unavailability of specific items or materials for
landscaping, the Agency will issue its Certificate of
Completion ,upon the posting of a bond by the Developer with
the Agency 'in an amount representing a fair value of the
work not yet completed. If the Agency shall have failed to
provide such written statement within said 10-day period
after such Agency meeting, the Developer shall be deemed
entitled to the Certificate of Completion.
Such Certificate of Completion shall not consti-
tute evidence of compliance with or satisfaction of any
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obligation of the Developer to any holder of a mortgage or
any insurer of a mortgage securing money loaned to finance
the improvements or any part thereof . Such Certificate of
Completion is not notice of completion as referred to in
California Civil Code Section 3093 .
IV. [§400] USE OF THE SITE
A. [§401] Uses
The Developer covenants and agrees for itself,
its successors , its assigns and every successor in interest
that during construction and thereafter, the Developer, its
successors and assignees shall devote the Site to the uses
specified in the Redevelopment Plan, the Grant Deed and
this Agreement for the periods of time specified therein.
The foregoing covenant shall run with the land .
B. [§402] Obligation to Refrain From Discrimination
The Developer covenants by and for himself and
any successors in interest that there shall be no discrimi-
nation against or segregation of any person or group of
persons on account of race, color, creed, religion, sex,
marital status, ancestry or national origin in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoy-
ment of the Site, nor shall the Developer himself or any
person claiming under or through him establish or permit
any such'practice or practices of discrimination or segre-
gation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees
or vendees of the Site. The foregoing covenants shall run
with the land.. .
C. [§403] Form of Nondiscrimination and
Nonseuregation Clauses -
The Developer shall refrain from restricting the
rental , sale or lease of the Site on the basis of race,
color, creed, religion, sex, marital status, ancestry or
national origin of any person. All such deeds, leases or
contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses :
1. In deeds : "The grantee herein covenants by
and for himself or herself, his or her
heirs , executors, administrators and
assigns , and all persons claiming under or
through them, that there shall be no dis-
crimination against or segregation of any
person or group of persons on account of
race, color, creed, religion, sex, marital
-23-
status, national origin or ancestry in the
sale, lease, sublease, transfer, use, occu-
pancy, tenure or enjoyment of the premises
herein conveyed, nor shall the grantee him-
self or herself, or any person claiming
under or through him or her, establish or
permit any such practice or practices of
discrimination or segregation with reference
to the selection, location, number, use or
occupancy of tenants, lessees, subtenants,
sublessees or vendees in the premises herein
conveyed. The foregoing covenants shall run
with the land. "
2 . In leases : "The lessee herein covenants by
and for himself or herself , his or her
heirs , executors , administrators and
assigns , and all persons claiming under or
through him or her, and this lease is made
and accepted upon and subject to the follow-
ing conditions :
"That there shall be no discrimination
against or segregation of any person or
group of persons .on account of race, color,
creed, religion, sex, marital status,
national origin or ancestry, in the leasing,
subleasing, transferring, use, occupancy,
tenure or enjoyment of the premises herein
leased, nor shall the lessee himself or her-
self, or any person claiming under or
through him or her, establish or permit any
such practice or practices of discrimination
or segregation with reference to the selec-
tion, location, number, use or occupancy of
tenants , lessees, subtenants, sublessees or
vendees in the premises herein leased. "
3 . In contracts : "There shall be no discrimi-
nation against or segregation of any person
or group of persons on account of race,
color, creed, religion, sex, marital status ,
national origin or ancestry in the sale,
lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the premises, nor
shall the transferee himself or herself, or
any person claiming under or through him or
her, establish or permit any such practice
or practices of discrimination or segrega-
tion with reference to the selection, loca-
tion, number, use or occupancy of tenants ,
-24-
lessees , subtenants , sublessees or vendees
of the land. "
D. [§404] Effect and Dura ion of Covenants
Except as otherwise provided, the covenants con-
tained in this Agreement and the grant deed shall remain in
effect until December 30, 2013 (the termination date of the
Redevelopment Plan) . The covenants against discrimination
shall remain in effect in perpetuity. The covenants estab-
lished in this Agreement and the grant deed shall, without
regard to technical classification and designation, be
binding for the benefit and in favor of the Agency, its
successors and assigns, the City and any successor in
interest to the Site or any part thereof .
The Agency is deemed the beneficiary of the terms
and Provisions of this Agreement and of the covenants
running with the land for and in its own rights and for the
purposes of protecting the interests of the community and
other parties, public or private, in whose favor and for
whose benefit this Agreement and the covenants running with
the land have been provided. This Agreement and the cove-
nants shall run in favor of the Agency without regard to
whether the Agency has been, remains or is an owner of any
land or interest therein in the Site, any parcel or sub-
parcel , or in the Project Area . The Agency shall have the
right, if this Agreement or the covenants are breached, to
exercise all rights and remedies and to maintain any actions
or suits at law or in equity or other proper proceedings to
enforce the curing of such breaches to which it or any other
beneficiaries of this Agreement and the covenants may be
entitled.
E. [§405] Rights of AcQe5a--Public Improvements
and Facilities
The Agency, for itself and for the City and other
Public agencies, at their sole risk and expense, reserves
the right to enter the Site or any part thereof at all rea-
sonable times and with as little interference as possible
for the purposes of construction, reconstruction, mainte-
nance, repair or service of any public improvements or pub-
lic facilities located on the Site. Any such entry shall
be made only after reasonable notice to the Developer, and
the Agency shall indemnify and hold the Developer harmless
from any claims or liabilities pertaining to any entry.
Any damage or injury to the Site resulting from such entry
shall be promptly repaired at the sole expense of the
public agency responsible for the entry.
-25-
V. [§500] DEFAULTS, REMEDIES AND TERMINATION
A. [§501] Defaults--General
Subject to the extensions of time set forth in
Section 604, failure or delay by either party to perform
any term or provision of this Agreement constitutes a
default under this Agreement. The party who so fails or
delays must immediately commence to cure, correct or remedy
such failure or delay and shall complete such cure, correc-
tion or remedy with reasonable diligence and during any
period of curing shall not be in default .
The injured party shall give written notice of
default to the party in default specifying the default com-
plained of by the injured party. Except as required to
protect against further damages and except as otherwise
expressly provided in Sections 507 and 508 of this Agree-
ment, the injured party may not institute proceedings
against the party in default until thirty (30) days after
giving such notice. Failure or delay in giving such notice
shall not constitute a waiver of any default nor shall it
change the time of default.
Except as otherwise expressly provided in this
Agreement, any failure or delay by either party in asserting
any of its rights or remedies as to any default shall not
operate as a waiver of any default or of any such rights or
remedies or deprive such party of its right to institute
and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or
remedies , _
B . [§502] Legal Actions
1• [§503) Institution of Legal Actions
In addition to any other rights or remedies ,
either party may institute legal action to cure, correct or
remedy any default, or recover damages for any default, or
to obtain any other remedy consistent with the purpose of
this Agreement . Such legal actions must be instituted in
the Superior Court of the County of Riverside, State of
California, in an appropriate municipal court in that County
or in the appropriate Federal District Court in the State
of California .
2 . [§504] Applicable Law
The laws of the State of California shall
govern the interpretation and enforcement of this Agreement .
-26-
3 . [§505] Acceptance of $Qrvice of Process
In the event that any legal action is com-
menced by the Developer against the Agency, service of pro-
cess on the Agency shall be made by personal service upon
the Chairman of the Agency or in such other manner as may
be provided by law.
In the event that any legal action is com-
menced by the Agency against the Developer, service of pro-
cess on the Developer shall be made by personal service
upon the Developer or in such other manner as may be
provided by law and shall be valid whether made within or
without the State of California .
C. [§506] Rights and Remedies are Cumulative
Except as otherwise expressly stated in this
Agreement , the rights and remedies of the parties are cumu-
lative, and the exercise by any party of one or more of
such rights or remedies shall not preclude the exercise by
it, at the same time or different times, of any other rights
or remedies for the same default or any 'other default by
the other party.
D. [§507] Damages
If the Developer or the Agency defaults with
regard to any of the provisions of this Agreement, the non-
defaulting party shall serve written notice of such default
upon the defaulting party. If the default is not cured or
commenced to be cured by the defaulting party within
ninety (90) days after service of the notice of default,
the defaulting party shall be liable to the other party for
any damages caused by such default .
E. [§508] Specific Performance
If the Developer or the Agency defaults under any
of the provisions of this Agreement, the nondefaulting party
shall serve written notice of such default upon the
defaulting party. If the default is not commenced to be
cured by the defaulting party within forty-five (45) days
of service of the notice of default, the nondefaulting
party, at its option, may institute an action for specific
performance of the terms of this Agreement .
-27-
F. [§509] Remedies and Rights of Termination
Prior to Conveyance of the Site to
the Developer
1. [§510] Terming ion by the Developer
In the event that prior to conveyance of
title to the Site to the Developer:
a. The Agency does not tender conveyance
of the Site or possession thereof in
the manner and condition and by the
date provided in this Agreement, and
any such failure is not cured within
thirty (30) days after written demand
by the Developer;
then this Agreement may, at the option of the Developer, be
terminated by written notice thereof to the Agency. Upon
such termination, neither the Agency nor the Developer shall
have any further rights against or liability to the other
under this Agreement, and the Agency shall return the
Deposit to the Developer as provided in •Section 108 .
2 . [55111 Termination by the Agency
In the event that prior to conveyance of
title to, the Site to the Developer:
a. The Developer fails to maintain the
amount of the Deposit as required by
Section 108 of this Agreement; or
b. The Developer transfers or assigns or
attempts to transfer or assign this
Agreement or any rights herein or in
the Site or the buildings or improve-
ments thereon in violation of this
Agreement; or
C . There is any significant change in the
ownership or identity of the Developer
or the parties in control of the
Developer or the degree thereof con-
trary to the provisions of Section 107
hereof; or
d . The Developer does not submit evidence
that it has the necessary equity capi-
tal, mortgage financing and retail
automobile franchise agreements for
acquisition and development of the Site
-28-
in satisfactory form and in the manner
and by the date provided in this
Agreement; or
e. -The Developer fails to submit to the
Agency Basic Concept Drawings or con-
struction plans, drawings and related
documents as required by this
Agreement; or
f . The Developer does not pay the Down
Payment or perform any of the acts
required of it for the close of escrow
and does not take title to the Site
under tender of conveyance by the
Agency pursuant to this Agreement ; or
g . The Developer does not deposit with the
Escrow Agent an executed Deed of Trust
or an executed Promissory Note pursuant
to Section 202 of this Agreement; or
h. The Developer is in ,breach or default
with respect to any other obligation of
the Developer under this Agreement; and
i . If any default or failure referred to
in subdivision a. , d. , e. , f . , g. or h.
of this Section shall not be cured
within thirty (30) days after the date
of written demand by the Agency;
then this Agreement, and-any..rights of- the_.Developer..-oz_-any.. --.-- ---
assignee or transferee in this Agreement pertaining thereto
or arising therefrom with respect to the Agency, may, at
the option of the Agency, be terminated by the Agency by
written notice thereof to the Developer.
In the event of termination under this
Section 511, the Deposit may be retained by the Agency as
liquidated damages and as its property without any deduc-
tion, offset or recoupment whatsoever . If the Developer
should default upon its obligations making it necessary for
the Agency to terminate this Agreement and to procure
another party or parties to redevelop the Site in substan-
tially the manner and within the period that such Site would
be redeveloped under the terms of this Agreement, then the
damages suffered by the Agency by reason thereof would be
uncertain. Such damages would involve such variable factors
as the consideration which such party would pay for the
Site; the expenses of continuing the ownership and control
of the Site; of interesting parties and negotiating with
-29-
such parties ; postponement of tax revenues therefrom to the
community; and the failure of the Agency to effect its pur-
poses and objectives within a reasonable time, resulting in
additional immeasurable damage and loss to the Agency and
the community. It is impracticable and extremely difficult
to fix the amount of such damages to the Agency, but the
parties are of the opinion, upon the basis of all informa-
tion available to them, that such damages would approxi-
mately equal the amount of the Deposit held by the Agency
at the time of the default of the Developer, and the amount
of such Deposit shall be paid to the Agency upon any such
occurrence as the total of all liquidated damages for any
and all such defaults and not as a penalty. In the event
that this paragraph should be held to be void for any
reason, the Agency shall be entitled to the full extent of
damages otherwise provided by law.
The Developer and the Agency specifically
acknowledge this liquidated damages provision by their
signatures here:
By: o
G. [§512] QPtion to Repurchase Reenter and
Repossess
The Agency shall have the additional right at its
option to repurchase, reenter and take possession of- the- —
Site with all improvements thereon, if after conveyance of
title to the Site and prior to the issuance of the
Certificate of Completion therefor, the Developer shall :
1 . Fail to proceed with the construction of the
improvements as required by this Agreement
for a period of three (3) months after
written notice thereof from the Agency; or
2 . Abandon or substantially suspend construc-
tion of the improvements for a period of
three (3) months after written notice of
such abandonment or suspension from the
Agency; or
3 . Transfer or suffer any involuntary transfer
of the Site or any part thereofin violation
of this Agreement .
-30-
Such right to repurchase, reenter and repossess ,
to the extent provided in this Agreement, shall be subor-
dinate and subject to and be limited by and shall not
defeat , render invalid or limit:
1. Any mortgage, deed of trust or other
security instrument permitted by this
Agreement; or
2 . Any rights or interests provided in this
Agreement for the protection of the holder
of such mortgages, deeds of trust or other
security instruments .
To exercise its right to repurchase, reenter and
take possession with respect to the Site, the Agency shall
pay to the Developer in cash an amount equal to :
1. The Down Payment and any amounts paid to the
Agency by the Developer for the Site under
the Promissory Note; plus
2 . The costs incurred by the Developer for
on-site labor and materials for the con-
struction of the improvements existing on
the Site at the time of the repurchase,
reentry and repossession; less
3 . Any gains or income withdrawn or made by the
Developer from the Site or the improvements
thereon.
H. (§513] Right of Reverter
The Agency shall have the additional right, at
its option, to reenter and take possession of the Site with
all improvements thereon and revest in the Agency the estate
theretofore conveyed to the Developer, if after conveyance
of title to the Site and prior to issuance of the
Certificate of Completion, the Developer shall :
1 . Fail to proceed with the construction of the
improvements as required by this Agreement
for a period of three (3) months after
written notice thereof from the Agency;
2 . Abandon or substantially suspend construc-
tion of the improvements for a period of-
three (3) months after written notice of
such abandonment or suspension from the
Agency; or
-31-
3 . Transfer or suffer any involuntary transfer
of the Site or any part thereof in violation
of this Agreement .
Such right to reenter, repossess and revest to
the extent provided in this Agreement shall be subordinate
and subject to and be limited by and shall not defeat,
render invalid or limit :
1. Any mortgage, deed of trust or other
security instrument permitted by this
Agreement; or
2 . Any rights or interest provided in this
Agreement for the protection of the holder
of such mortgages , deeds of trust or other
security instruments .
The grant deed shall contain appropriate reference
and provision to give effect to the Agency' s right, as set
forth in this Section 513 under specified circumstances
prior to the issuance of the Certificate of Completion, to
reenter and take possession of the Site with all improve-
ments thereon and to terminate and revest in the Agency the
estate conveyed to the Developer .
Upon the revesting in the Agency of title to the
Site or any part thereof as provided in this Section 513 ,
the Agency shall, pursuant to its responsibilities under
state law, use its best efforts to resell the Site or part
thereof as soon and in such manner as the Agency shall find
feasible and consistent with the objectives of such law and
of the Redevelopment Plan to a qualified and responsible
party or parties (as determined by the Agency) who will
assume the obligation of making or completing the improve-
ments, or such other improvements in their stead, as shall
be satisfactory to the Agency and in accordance with the
uses specified for the Site or part thereof in the Redevel-
opment Plan. Upon such resale of the Site, the proceeds
thereof shall be applied:
1 . First , to reimburse the Agency on its own
behalf •or on behalf of the City for all
costs and expenses incurred by the Agency,
including, but not limited to, salaries to
personnel in connection with the recapture,
management and resale of the Site or part
thereof (but less any income derived by the
Agency from the Site or part thereof in con-
nection with such management) ; all taxes ,
assessments and water and sewer charges with
respect to the Site or part thereof (or, in
-32-
the event the Site is exempt from taxation
or assessment or such charges during the
period of ownership, then such taxes ,
assessments or charges [as determined by the
County assessing official] as would have
been payable if the Site were not so
exempt) ; any payments made or necessary to
be made to discharge or prevent from attach-
ing or being made any subsequent encum-
brances or liens due to obligations,
defaults or acts of the Developer; any
expenditures made or obligations incurred
with respect to the making or completion of
the improvements or any part thereof on the
Site or part thereof; and any amounts other-
wise owing the Agency by the Developer; and
2 . Second, to reimburse the Developer up to the
amount equal to : (a) the sum of the Down
Payment plus any amounts paid to the Agency
by the Developer under the Promissory Note
for the Site (or allocable to the part
thereof) ; plus (b) the costs incurred by the
Developer for the development of the Site
and for the improvements existing on the
Site at the time of the reentry and repos-
session; less (c) any gains or income with-
drawn or made by the Developer from the Site
or the improvements thereon.
Any balance remaining after such reimbursements
shall be retained by the Agency as its property.
To the extent that the rights established in this
Section involve a forfeiture, it must be strictly inter-
preted against the Agency, the party for whose benefit it
is created. The rights established in this Section are to
be interpreted in light of the fact that the Agency will
convey the Site to the Developer for development and not
for speculation in undeveloped land.
VI . [§600] GENERAL PROVISIONS
A. [§601] Notices Demands and Communications
Between the Parties
Formal notices , demands and communications between
the Agency and the Developer shall be sufficiently given if
dispatched by registered or certified mail , postage prepaid,
return receipt requested, to the principal offices of the
Agency and the Developer as set forth in Section 105 hereof .
Such written notices, demands and communications may be
-33-
sent in the same manner to such other addresses as either
party may from time-to-time designate by mail .
B . [§602] Conflicts of Interest
No member, official or employee of the Agency
shall have any personal interest, direct or indirect, in
this Agreement, nor shall any such member, official or
employee participate in any decision relating to this
Agreement which affects his personal interests or the
interests of any corporation, partnership or association in
which he is directly or indirectly interested.
The Developer warrants that it has not paid or
given, and will not pay or give, any third person any money
or other consideration for obtaining this Agreement .
C. [§603} Nonliability of Agency Officials and
Employees
No member, official or employee of the Agency
shall be personally liable to the Developer in the event of
any default or breach by the Agency or for any amount which
may become due to the Developer or on any obligations under
the terms of this Agreement. .
D. [§604] Enforced Delay: Extension of Times of
Performance
In addition to the specific provisions of this
Agreement, performance by any party hereunder shall not be
deemed to be in default where delays or defaults are due to
war; insurrection; strikes; lock-outs; riots; floods ;
earthquakes ; fires ; casualties; acts of God; acts of the
public enemy; epidemics; quarantine restrictions; freight
embargoes; lack of transportation; governmental restrictions
or priority; litigation; unusually severe weather; inability
to secure necessary labor, materials or tools; delays of
any contractor, subcontractor or supplier; acts of another
party; acts or the failure to act of any public or govern-
mental agency or entity (except that acts or the failure to
act of the Agency shall not excuse performance by the
Agency) or any other causes beyond the control or without
the fault of the party claiming an extension of time to
perform. An extension of time for any such cause shall
only be for the period of the enforced delay, which period
shall commence to run from the time of the commencement of
the cause. If , however, notice by the party claiming such
extension is sent to the other parties more than thirty (30)
days after the commencement of the cause, the period shall
commence to run only thirty (30) days prior to the giving
of such notice . Times of performance under this Agreement
-34-
may also be extended in writing by the Agency and the
Developer .
E. [§605] Inspection of Books and Records
The Agency has the right, upon not less than
seventy-two (72) hours notice, at all reasonable times, to
inspect the books and records of the Developer pertaining
to the Site as pertinent to the purposes of this Agreement .
The Developer also has the right, upon not less
than seventy-two (72) hours notice, at all reasonable times,
to inspect the books and records of the Agency pertaining
to the Site as pertinent to the purposes of this Agreement.
F. [§606] Plans and Data
Where the Developer does not proceed with the
purchase and development of the Site, and when this Agree-
ment is terminated pursuant to Section 511 hereof for any
reason, the Developer shall deliver to the Agency any and
all plans and data concerning the Site, and the Agency or
any other person or entity designated by the Agency shall
be free to use such plans and data, including plans and
data previously delivered to the Agency, for any reason
whatsoever without cost or liability therefor to the
Developer or any other person.
VII . [§700] SPECIAL PROVISIONS
A. [5701] Amendment of Redevelopment Plan
Pursuant to-provisions of the Redevelopment---Pl-a-n- - --- -- - - .,
for modification or amendment thereof, the Agency agrees
that no amendment which changes the uses or development
permitted on the Site or changes the restrictions or con-
trols that apply to the Site or otherwise affect the Site
shall be made or become effective without the prior written
consent of the Developer. Amendments to the Redevelopment
Plan applying to other property in the Project Area shall
not require the consent of the Developer .
B. [§702] Submission of Documents to the Agency for
Approval
Whenever this Agreement requires the Developer to
submit plans , drawings or other documents to the Agency for
approval , which shall be deemed approved if not acted on by
the Agency within a specified time, said plans, drawings or
other documents shall be accompanied by a letter stating
that they are being submitted and will be deemed approved
unless rejected by the Agency within the stated time. If
-35-
there is no time specified herein for such Agency action,
the Developer may submit a letter requiring Agency approval
or rejection of documents within thirty (30) days after
submission to the Agency or such documents shall be deemed
approved.
C. [§703] Amendments to this Aoreement
The Developer and the Agency agree to mutually
consider reasonable requests for amendments to this Agree-
ment which may be made by any of the parties hereto, lending
institutions, or bond counsel or financial consultants to
the Agency, provided such requests are consistent with this
Agreement and would not substantially alter the basic
business terms included herein.
VIII . [§800] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
This Agreement is executed in four (4) duplicate ori-
ginals, each of which is deemed to be an original . This
Agreement comprises pages 1 through 31, inclusive, and
Attachment Nos . 1 through 5 , attached hereto and incorpor-
ated herein by reference, all of which constitute the entire
understanding and agreement of the parties .
. This Agreement integrates all of the terms and condi-
tions mentioned herein or incidental hereto, and supersedes
all negotiations or previous agreements between the parties
with respect to all or any part of the subject matter
hereof .
All waivers of the provisions of this Agreement must
be in writing and signed by-the appropriate -authorit.ies -af .. .
the Agency and the Developer, and all amendments hereto
must be in writing and signed by the appropriate author-
ities of the Agency and the Developer.
IX. [59001 TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
This Agreement, when executed by the Developer and
delivered to the Agency, must be authorized, executed and
delivered by the Agency within forty-five (45) days after
the date of signature by the Developer or this Agreement
shall be void, except to the extent that the Developer shall
consent in writing to further extensions of time for the
authorization, execution and delivery of this Agreement .
-36-
The effective date of this Agreement shall be the date when
this Agreement has been signed by the Agency.
6216�7 1986 COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PA SPRINGS
By
Cha' an
ham __ e
B� _
f-' Secretary p yy
PETER EPSTEEN-PONTIAC-BUICK-ROLLSGE ROYCE-BRITIS
IMPORTS, INC. , LTD.
1986
By
ter Ep teen, President
APPROVED AS TO FORM:
"DEVELOPER"
Assn :0TY AT'R�^+1:,NEy
PALM o "PO i GS, Cl,k YP
BY
-37-
Attachment No. 1
Map of the site
y 1 -7A
ISSION ROAD
"NO A /CART'• PALM SPRINGS COUNTRY
CLUB ESTATES
CirY LI)VIrS
'W
REMAINDER PARCEL
J
Q 1�
W
r—i LC
Cn
CCl
1
1 � J
1 1 Z
W PAR . 1 jcnj PAR . 2 Q
Z 1cn1 Cl7
U-1
19 jvj �
c� �Q 1
= RAMON ROAD _ --4-5 'STR/P
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M-I-P ot
STE n...
--sn
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RAMON
"
VICINITY APJDI ZCfIV1N-- ,. AIL h
CITY OF PALM SPRINGS
CASE NO. FPM i8787 APPROVED BY PLAN. COMM. DATE--
APPLICANT 1,,�;;,jpro . Smith/Golden West Equity APPROVED BY ,COUNCIL DATE
REMARKS Section 17 ORD. NO. RE40L. RD.
RESOLUTION NO. 403
OF THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA,
APPROVING THE FORM OF A DISPOSITION
AND DEVELOPMENT AGREEMENT WITH PETER
EPSTEEN , LTD. FOR DEVELOPMENT OF AN
AUTO SALES CENTER.
WHEREAS the City Council and the Redevelopment Agency have found that an
auto sales center would be of significant benefit to the City; and
WHEREAS the Agency proposes to enter into a Disposition and Development
Agreement to facilitate that development through the use of certain tax
increments ; and
WHEREAS no other source of funds is available to provide the assistance
needed to bring the project to fruition ; and
WHEREAS the Agency and Council have satisfied Public Hearing requirements
relative to use of Tax Increment and proposed Acquisition and sale of land;
and
WHEREAS a Disposition and Development Agreement has been drafted between
the Agency and Peter Epsteen, Ltd. in accordance with the terms discussed
during the Public Hearing held on February 5, 1986;
NOW THEREFORE BE IT RESOLVED by the Community Redevelopment Agency of the
City of Palm Springs approving the form of the Disposition & Development
Agreement between the Community Redevelopment Agency and Peter Epsteen ,
Ltd, and authorizing the Executive Director to sign all documents related
thereto.
ADOPTED this llth day of March 1986,
AYES: Members Birer, Smith and Chairman Bogert
NOES: None
ABSENT: None
ABSTAIN: Members Foster and Maryanov
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
CITY OF PALM SPRINGS, CALIFORNIA
By _
Assistant Secretary Chairman
REVIEWED AND APPROVED: ,J _
i
0
ATTACHMENT NO. 2
LEGAL DESCRIPTION OF THE SITE
Parcel 1 of Parcel Map 18787 in the City of Palm Springs, County
of Riverside, State of California, as per map recorded in
Book 13 S Page 5 '9" and sy of Parcel
Maps, in the Office of the County Recorder of said County.
Attachment No. 2
ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
Action Date
1. Execution and Delivery of Not later than J} lie 1986 .
Agreement y .Deve open. The �—
Developer shall execute and
deliver this Agreement to the
Agency.
2 . Deposit. The Developer shall Prior to or simultaneously
deliver the Deposit to the with execution of this Agree-
Agency. (Section 108) ment by the Agency.
3 . Execution of Agreement by Within 45 days after the
Agency. The Agency and City Developer executes this Agree-
Council shall hold a public ment and delivers it to the
hearing to authorize execution Agency.
of this Agreement by the +
Agency, and, if so authorized,
the Agency shall execute and
deliver this Agreement to the
Developer . (Section 900)
4 . Opening of Escrow. The Agency Within 30 days after execution
shall open an escrow for con- of this Agreement by the
veyance of the Site to the Agency.
Developer . (Section 202)
5 . Submission--Evidence of Equity Within 30 days after the
Capital and Mortgage Financing . opening of escrow, but in any
The Deve oper shall submit to event, prior to the date set
the Agency for review and forth herein for the close of
approval evidence of equity escrow.
capital , mortgage financing and
automobile franchise agreements
necessary for acquisition and
development of the Site.
(Section 214 )
Attachment No. 3
Page 1 of 4
Action Date
6 . Approval--Evidence of Equity Within 30 days after receipt
Ca ital and Mortgage Financing thereof by the Agency.
an Automo i e Franc ise
Agreements . The Agency shall
approve or disapprove the .
Developer 's evidence of equity
capital, mortgage financing and
automobile franchise agreements.
(Section 214)
7 . Zoning of the Site. The Agency Prior to the date set forth
shall use its best efforts to herein for the close of escrow.
cause the zoning of the Site to
be such as to permit the devel-
opment and construction of
improvements in accordance with
this Agreement and the use ,
operation and maintenance of
such improvements. (Sec-
tion 211)
8. D_eposit of Down Payment, Prior to the date set forth
Executed Deed of Trust, herein for the close of escrow.
Executed Promissory Note and
Other Required Sums. The
Developer shall deposit the
Down Payment, executed Deed of
Trust, executed Promissory Note
and other required sums into
escrow. (Section 207)
9 . Deposit of Grant Deed. - The '" Prior- to the date -set--f-or--th-
Agency shall deposit the grant herein for the close of escrow.
deed into escrow. (Section 206)
10. Submission--Basic Concept Draw- Within 30 days after execution
ings. The Developer shall pre- of this Agreement by the
pare and submit to the Agency Agency.
for review and approval Basic
Concept Drawings and related
documents containing the over-
all plan for development of the
Site. (Section 303)
11 . Approval--Basic Concept Draw- Within 30 days after receipt
ings . The Agency shall approve thereof by the Agency.
or disapprove the Developer ' s
Basic Concept Drawings and
related documents. (Sec-
tion 303 )
Attachment No. 3
Page 2 of 4
Action Date
12 . Submission--Preliminary Con- Within 30 days after approval
struction Drawings and Land- by the Agency of the Basic
scaping and Grading Plans . The Concept Drawings .
Developer shall prepare and
submit to the Agency for review
and approval Preliminary Con-
struction Drawings and Land-
scaping and Grading Plans for
the Site. (Section 304..)
13 . Approval--Preliminary Construc- Within 30 days after receipt
Zion Drawings and Landscaping thereof by the Agency.
and Grading Plans . The Agency
shall approve or disapprove the
Developer ' s Preliminary Con-
struction Drawings and Land-
scaping and Grading Plans .
(Section 305)
14 . Submission--Final Construction Within 30 days after approval
Drawings , Landscaping and by the Agency of the Pre-
Grading Plans. The Developer liminary Construction Drawings
shall prepare and submit to the and Landscaping and Grading
Agency for review and approval Plans.
Final Construction Drawings and
Landscaping and Grading Plans
for the Site. (Section 304)
15. Approval--Final Construction Within 30 days after receipt
Drawings and Landscaping and thereof by the Agency.
Grading Plans . The Agency
shall approve or disapprove the -- -
Developer ' s Final Construction
Drawings and Landscaping and
Grading Plans. (Section 305 )
16. Close of Escrow. The Agency Within 30 days after approval
shall convey title to the Site by the Agency of Final Con-
to the Developer, and the struction Drawings and Land-
Developer shall accept such scaping and Grading Plans.
conveyance. (Section 203 )
17 . Submission--Certificates of Prior to the date set forth
Insurance . The Developer shall herein for the commencement of
furnish to the Agency duplicate construction of the Developer ' s
originals or appropriate cer- improvements on the Site .
tificates of bodily injury and
property damage insurance poli-
cies . (Section 308)
Attachment No. 3
Page 3 of 4
Action Date
18 . Governmental Permits , The Prior to the date set forth
Developer shall obtain any and herein for the commencement of
all permits required by the construction of the Developer ' s
City or any other governmental improvements on the Site .
agency. (Section 309)
19. Commencement of Construction of Within 30 days after convey-
Deve oper s Improvements. The ance of the Site by the Agency
Developer shall commence con- to the Developer .
struction of the improvements
to be constructed on the Site.
(Section 307)
20 . Agency' s Work on the Site . The On a schedule which will coor-
Agency shall commence and com- dinate with the Developer ' s
plete the work specified in construction schedule.
this Agreement and the Scope of
Development (Attachment No. 4 )
to be performed by the Agency.
(Section 313)
21. Completion of Construction of Within 1.8 months after com-
Developer s Improvements. The mencement thereof by the
Developer shall complete con- Developer .
struction of the improvements
to be constructed on the Site.
(Section 307)
22 . Issuance--Certificate of Com- Promptly after completion of
p etion. The Agency s al all construction required to
furnish the Developer with a be completed by the Developer
Certificate of- Completion. on the Site -and up.onwritten..
(Section 323 ) request therefor by the
Developer.
23 . Commencement of O erations. Within 30 days after issuance
The Developer sha commence of a Certificate of Completion
operation of the improvements by the Agency.
on the Site.
Attachment No. 3
Page 4 of 4
ATTACHMENT NO. 4
_SCOPE OF DEVELOPMENT
I . PRIVATE DEVELOPMENT
A. General
The Site shall be developed as an integral part
of the Palm Springs Auto Center. The Developer agrees that
the Site shall be developed and improved in accordance with
the provisions of this Agreement and the plans, drawings
and related documents approved by the Agency pursuant
hereto . The Developer, its supervising architect, engineer
and contractor, shall work with Agency staff to coordinate
the overall design, architecture and color of the
improvements on the Site.
B . Developer ' s Improvements
The Developer shall construct; or cause to be
constructed, on the Site facilities for at least five (5)
retail automobile sales dealerships, including new car
showrooms, used car departments, service facilities and
other ancillary improvements . The dealerships shall be for
the following makes : Honda, Rolls-Royce, Jaguar, Buick and
Pontiac. The Developer shall not substitute any of the
above dealership franchises with a franchise for a
different make of automobile unless he has received the
prior written approval of the Agency. The Developer may
use the Site for additional retail automobile sales
dealerships without Agency approval; provided, however,
that the approved dealerships shall remain in operation and
such additional dealerships shall be operated in compliance
with all applicable laws, rules and regulations of any
governmental authority.
In addition, the Developer agrees to develop and
construct improvements to the Site, such as paving,
grading, walks, curbs , gutters, lighting, landscaping and
sprinklers and all other development items required by the
Agency.
C. Architecture and Design
The Developer ' s improvements shall be of high
architectural quality, shall be well-landscaped, and shall
be effectively and aesthetically designed . The shape,
scale of volume, exterior design and exterior finish of the
Attachment No. 4
Page 1 of 3
building must be consonant with, visually related to ,
physically related to, and an enhancement of adjacent
buildings within the Project Area. The Developer ' s plans
submitted to the Agency shall describe in detail the
architectural character intended for the Developer ' s
improvements.
D. Landscapes
Landscaping shall embellish all open spaces upon
the Site to integrate the Developer ' s improvements with
adjacent sites within the Project Area. Landscaping
includes such materials as paving, trees, shrubs and other
plant materials , landscape containers, plaza furniture, top
soil preparation, automatic irrigation, landscape and
pedestrian lighting. Landscaping shall carry out the
objectives and principles of the Agency ' s desire to
accomplish a high-quality aesthetic environment.
E. signs
All signs on the exterior of the buildings are of
special concern to the Agency and must be approved by the
Agency (which approval shall not be unreasonably withheld) .
F. Screening
Trash areas shall be screened on at least
three (34 sides and have movable doors or other devices to
obscure such areas from view. All fire standpipes and such
other fire related mechanical devices shall be screened
with plant materials. Rooftop equipment shall be
reasonably hidden so as to mitigate views from principal
elevations surrounding the development.-
G. Applicable Codes
The Developer ' s improvements shall be constructed
in accordance with the Uniform Building Code (with City
modifications) and the Palm Springs Municipal Code.
II . SITE CLEARANCE AND PREPARATION
The Developer shall perform, or cause to be performed,
at its sole cost and expense, the following work:
A. On-Site Demolition and Clearance
1 . On the Site, demolish or salvage, clear ,
grub and remove (as may be needed and called for in the
approved plans) all on-site buildings, pavements , walks ,
curbs , gutters and other improvements; and
Attachment No. 4
Page 2 of 3
2 . Remove , plug and/or crush in place
utilities , such as storm sewers , sanitary sewers, water
systems, electrical overhead and underground systems and
telephone and gas systems located on the Site, as may be
required following any necessary relocation of the
utilities.
B. Compaction, Finish Grading and site Work
The Developer shall compact, finish grade and do
such site preparation as is necessary for the construction
of the Developer 's improvements on the Site.
III . PUBLIC IMPROVEMENTS
The Agency shall perform, or cause to be performed ,
the following work in connection with the development of
the Site by the Developer :
[To Be Inserted. ]
Attachment No. 4
Page 3 of 3
ATTACHMENT NO. 5
FORM OF GRANT DEED
Recording Requested by:
Community Redevelopment Agency of the
City of Palm Springs
After Recordation, Mail to :
Peter Epsteen, Ltd.
18131 Highway Ill
Cathedral City, California 92234
GRANT DEED
For valuable consideration, the re6eipt of which is
hereby acknowledged,
THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS, a public body, corporate and politic, of the State
of California (herein called "Grantor") , acting to carry
out the Redevelopment Plan (herein called "Redevelopment
Plan") for the Ramm 90ee Redevelopment Project, under the
Community Redevelopment Law of the State 19&e t t RER &ftiac-Buick-Rolls
hereby grants to ,
(herein called "Grantee ) , the real pro y e c. ,Ltd. , a
i e
legally described in the document attached hereto, labeled Californiaor o,�ation
Exhibit A, and incorporated herein by this reference. Y�`�%-
1. The Site is conveyed subject to the Redevelopment V\'/
Plan and pursuant to a Disposition and Development
Agreement (the "DDA") entered into by and between Grantor
and Grantee and dated A py- % � 3 , 1986 . The Site is
also conveyed subject to easements of record.
2 . The Grantee hereby covenants and agrees, for
itself and its successors and assigns, that during
construction and thereafter, the Grantee shall not use the
Site for other than the uses specified in the Redevelopment
Plan and (unless expressly waived by the Grantor in
writing) the specified uses of retail automobile, sales
dealerships as approved by the Agency in ccor7aCertificatL
/nce with
the DDA for a period of at least years from
the date of of "- Site .
issuance ,of of Occupancy.
Attachment No. 5
Page 1 of 6
The Grantor and Grantee agree that such use
covenants are necessary to carry out the purposes of the
Redevelopment Plan and the DDA with respect to the Site .
3 . Prior to the issuance of a Certificate of
Completion by the Grantor as provided in the DDA, the
Grantee shall not, except as permitted by the DDA, sell,
transfer , convey, assign or lease the whole or any part of
the Site without the prior approval of the Grantor. This
prohibition shall not apply subsequent to the issuance of
the Certificate of Completion with respect to the
improvements upon the Site. This prohibition shall not be
deemed to prevent the granting of easements or permits to
facilitate the development of the Site or to prohibit or
restrict the leasing of any part or parts of a building or
structure when said improvements are completed.
4 . Subject to the provisions of Section 512 of the
DDA, the Grantor shall have the additional right, at its
option, to repurchase, reenter and take possession of the
Site hereby conveyed, or such portion thereof, with all
improvements thereon, if after conveyance of title and
prior to issuance of a Certificate of Completion of
construction upon the Site, the Grantee .or successor in
interest shall:
a. Fail to proceed with the construction of the
improvements as required by the DDA for a
period of three (3) months after written
notice thereof from the Grantor; or
b. Abandon or substantially suspend
construction of the improvements for a
period of three (3) -months- after - written -.
notice of such abandonment or suspension
from the Grantor; or
C. Transfer or suffer any involuntary transfer
of the Site, or any part thereof, in
violation of the DDA.
Such right to repurchase, reenter and repossess,
to the extent provided in this paragraph 4 , shall be
subordinate and subject to and be limited by and shall not
defeat, render invalid or limit:
a. Any mortgage, deed of trust or other
security instrument permitted by the DDA; or
b. Any rights or interests provided in the DDA
for the protection of the holder of such
mortgages, deeds of trust or other security
instruments .
Attachment No. 5
Page 2 of 6
5 . Subject to the provisions of Section 513 of the
DDA, the Grantor shall have the right, at its option, to
reenter and take possession of the Site hereby conveyed , or
such portion thereof, with all improvements thereon, and
revest in the Grantor the estate conveyed to the Grantee ,
if after conveyance- of title and prior to issuance of a
Certificate of Completion of construction upon the Site,
the Grantee or successor in interest shall:
a. Fail to proceed with the construction of the
improvements as required by the DDA for a
period of three (3) months after written
notice thereof from the Grantor; or
b. Abandon or substantially suspend
construction of the improvements for a
period of three (3 ) months after written
notice of such abandonment or suspension
from the Grantor ; or
C. Transfer , or suffer any involuntary transfer
of the Site, or any part thereof, in
violation of the DDA.
Such right to reenter , repossess and revest, to
the extent provided in this paragraph 5, shall be
subordinate and subject to and be limited by and shall not
defeat, render invalid or limit:
a. Any mortgage, deed of trust or other
security instrument permitted by the DDA;
b. Any rights or interests provided in the DDA
for the protection of the holder of such ---
mortgages, deeds of trust or other security
instruments .
6 . The Grantee covenants by and for itself and any
successors in interest that there shall be no
discrimination against or segregation of any person or
group of persons on account of race, color, creed ,
religion, sex, marital status , national origin or ancestry
in the sale , lease, sublease , transfer, use, occupancy,
tenure or enjoyment of the Site, nor shall the Grantee
itself or any person claiming under or through it establish
or permit any such practice or practices of discrimination
or segregation with reference to the selection, location,
number , use or occupancy of tenants , lessees, subtenants ,
sublessees or vendees in the Site.
Attachment No. 5
Page 3 of 6
All deeds , leases or contracts made relative to
the Site , the improvements thereon or any part thereof,
shall contain or be subject to substantially the following
nondiscrimination clauses:
a. In deeds: "The grantee herein covenants by
and for himself or herself, his or her
heirs, executors, administrators, and
assigns, and all persons claiming under or
through them, that there shall be no
discrimination against or segregation of any
person or group of persons on account of
race, color, creed, religion, sex, marital
status , national origin or ancestry in the
sale, lease , sublease, transfer , use ,
occupancy, tenure or enjoyment of the land
herein conveyed, nor shall the grantee
himself or herself, or any person claiming
under or through him or her , establish or
permit any such practice or practices of
discrimination or segregation with reference
to the selection, location, number , use or
occupancy of tenants, lessees, subtenants,
sublessees or vendees in, the land herein
conveyed. The foregoing covenants shall run
with the land. "
b. In leases: "The lessee herein covenants by
and for himself or herself, his or her
heirs, executors , administrators and
assigns, and all persons claiming under or
through him or her, and this lease is made
and accepted upon and subject to the
following conditions: -- -
"That there shall be no discrimination
against or segregation of any person or
group of persons on account of race, color ,
creed, religion, sex, marital status,
national origin or ancestry in the leasing,
subleasing, transferring, use, occupancy,
tenure or enjoyment of the land herein
leased, nor shall the lessee himself or
herself, or any person claiming under or
through him or her , establish or permit any
such practice or practices of discrimination
or segregation with reference to the
selection, location, number , use or
occupancy of tenants, lessees, sublessees ,
subtenants or vendees in the land herein
leased. "
Attachment No. 5
Page 4 of 6
C. In contracts: "There shall be no
discrimination against or segregation of any
person or group of persons on account of
race, color , creed, religion, sex, marital
status, national origin or ancestry in the
sale, lease, sublease, transfer , use,
occupancy, tenure or enjoyment of the land ,
nor shall the transferee himself or herself,
or any person claiming under or through him
or her, establish or permit any such
practice or practices of discrimination or
segregation with reference to the selection,
location, number , use or occupancy of
tenants , lessees, sublessees, subtenants or
vendees in the land. "
7 . No violation or breach of the covenants,
conditions , restrictions , provisions or limitations
contained in this Grant Deed shall defeat or render invalid
or in any way impair the lien or charge of any mortgage ,
deed of trust or other financing or security instrument
permitted by the DDA; provided, however , that any successor
of Grantee to the Site shall be bound by such remaining
covenants, conditions, restrictions , limitations and
provisions, whether such successor ' s title was acquired by
foreclosure, deed in lieu of foreclosure, trustee 's sale or
otherwise.
8 . . Except as otherwise provided, the covenants
contained in paragraph 2 of this Grant Deed shall remain in
effect until December 30, 2013 (the termination date of the
Redevelopment Plan) . The covenants against discrimination
contained in paragraph 6 of this Grant Deed shall remain in
perpetuity. - The covenants contained in paragraphs 3 , 4
and 5 shall remain in effect until issuance of a
Certificate of Completion pursuant to Section 323 of the
DDA.
9 . The covenants contained in paragraphs 2 , 3 , 4 , 5
and 6 of this Grant Deed shall be binding for the benefit
of the Grantor , its successors and assigns , the City of
Palm Springs and any successor in interest to the Site or
any part thereof, and such covenants shall run in favor of
the Grantor and such aforementioned parties for the entire
period during which such covenants shall be in force and
effect, without regard to whether the Grantor is or remains
an owner of any land or interest therein to which such
covenants relate. The Grantor and such aforementioned
parties , in the event of any breach of any such covenants,
shall have the right to exercise all of the rights and
remedies , and to maintain any actions at law or suits in
Attachment No . 5
Page 5 of 6
equity or other proper proceedings to enforce the curing of
such breach. The covenants contained in this Grant Deed
shall be for the benefit of and shall be enforceable only
by the Grantor, its successors and such aforementioned
parties .
10 . In the event of any express conflict between this
Grant Deed or the DDA, the provisions of this Grant Deed
shall control .
11. Any amendments to the Redevelopment Plan which
change the uses or development permitted on the Site or
change the restrictions or controls that apply to the Site
or otherwise affect the Site shall require the written
consent of the Grantee. Amendments to the Redevelopment
Plan applying to other property in the Project Area shall
not require the consent of the Grantee.
IN WITNESS WHEREOF, the Grantor and Grantee have
caused this instrument to be executed on their behalf by
their respective officers thereunto duly authorized,
this 3 day of I 1986 .
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PA SPRINGS
By
Ch ' rman
APPROV�D
ABy 1 7 f By
Coup el for Grantor Secre ary
"GRANTOR" 11
The provisions of this Grant Deed are hereby approved ��
and accepted. PETER EPSTEEN-PONTIAC-BUICK-ROLLS ROYCE-BRITISH
IMPORTS, IPJ D.
PETER c�
By
"GRANTEE"
Attachment No . 5
Page 6 of 6
ATTACHMENT NO. 6
PROMISSORY NOTE
$885, 000 . 00 April /(p 1986
Palm Springs , California
FOR VALUE RECEIVED, the undersigned, PETER EPSTEEN-PONTIAC-BUICK-ROLLS
LTD. , (herein called the "Developer" ) hereby promises to OYCE-BRITISH
pay to the REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, IMPORTS,INC.
a public body, corporate and politic, duly organized and
existing under and by virtue of the laws of the State of \d /
California (herein called the "Agency") , a principal sum
as hereinafter determined, at 3200 Tahquitz-McCallum Way, i
Palm Springs, California 92262 . Principal and interest shall
be payable in lawful money of the United States of America.
The place of payment may be changed from time to time as
the Agency or any permitted assignee thereof may designate
in writing.
This Note is made and delivered pursuant to and in
implementation of a Disposition and Development Agreement
entered into as of April 3, 1986 ("the DDA")
between the Agency and the Developer. The DDA provides for
the Developer to purchase and develop an automobile sales
center and ancillary facilit'ie's within the Ramon-Bogie
Redevelopment Project Area of the City of Palm Springs,
California.
Under the DDA, the Agency shall advance or cause to
be advanced to the Developer an advance of a portion of the
Purchase in the amount of EIGHT HUNDRED EIGHTY-FIVE THOUSAND
DOLLARS ($885,000 .00) for certain real property designated
in tite DDA- as the "Site" .
A. Definitions
1. "Auto Sales Center" means the retail automobile
sales dealership facilities to be developed on the Site as
described in Section I . of the Scope of Development (Attachment
No. 4) .
2. "Certificate of Completion" means the document
to be furnished by the Agency to the Developer pursuant to
Section 323 of the DDA.
3 . "City" means the City of Palm Springs .
4 . "Deed of Trust" means the deed of trust securing
payment of this Note.
5. "Sales Tax Increment" means the sales tax
generated from the operation of the improvements constructed
by Developer on the Site pursuant to the DDA and paid to
Page 1 of 3
ATTACHMENT NO. 6
the City.
6. "Site" means the property described in Section
104 of the DDA.
B. Principal and Interest
1. The principal amount of this Note is the amount
Of EIGHT HUNDRED EIGHTY-FIVE THOUSAND DOLLARS ($885, 000.00) ,
which constitutes the advance of a portion of the Purchase
Price from the Agency to the Developer .
2. Except as set forth in paragraph C. 2 . , below,
this Note shall not bear interest.
C. Repayment
1. Repayment and Cancellation Upon Request of
Sales Tax Increment in Amount of Principal
The principal amount of this Note shall be
reduced annually by the amount of Sales Tax Increment generated
by the operations of the Auto Sales Center and paid to the
City. Upon the payment of an aggregate amount of Sales Tax
Increment equal to the principal amount of this Note, this
Note shall be canceled. This Note shall be canceled after
the expiration of six (6) continuous years of operation of
the Auto Sales Center on the Site.
2. Repayment Upon Failure to Commence
- 02erations in a Timely Manner
In the event the Developer fails to commence
operations of the Auto Sales Center by the time set forth
in the Schedule of Performance (Attachment No. 3 to the DDA) ,
this Note shall be due and payable in full, together with
interest computed at ten percent (10%) per annum, compounded
annually, accrued from the date of the close of escrow for
the conveyance of the Site to the Developer.
3 . No Offset
Payments due the Agency hereunder shall be
due without any right of offset or retention for any reason
whatsoever.
4. No Contest of Validity
Developer, its members and successors, and
Page 2 of 3 ��� �
�f
assigns thereto shall not contest, directly or indirectly,
the validity of payments to the Agency hereunder.
D. Nontransferability
Subject to the transferability provisions of Sections
6. 7 and 6. 8 of the Deed of Trust, this Note is not transferable
by the Developer. The Agency, at its option, may negotiate
transfer or assumption of this Note.
E. Prepayment
The Developer shall have the right to prepay, at
any time and from time to time, all or any portion of the
principal and accrued interest of this Note without any premium
or penalty.
F. Deed of Trust
This Note is secured by a recorded Deed of Trust
covering the Site. The Developer agrees to pay the following
costs, expenses , and attorneys ' fees paid or incurred by
the Agency or adjudged by a Court: (1) reasonable costs
of collection, costs and expenses, and attorneys' fees paid
or incurred in connection with the collection, enforcement,
or foreclosure sale of any security for this Note, or of
any covenant of this Note or such security, whether or not
suit is filed; (2) costs of suit and such sum as the Court
may adjudge as attorneys' fees in any action to enforce pay-
ment of this Note or any part of it; and (3) costs of suit
and such sum as the Court may adjudge as attorneys ' fees
in any other litigation or controversy connected with this
Note, or the security for it, including, but not limited
to, actions for declaratory relief that the Agency is required
to prosecute or defend and actions for relief based on
rescission, or actions to cancel this Note that lae Agency
is required to defend.
��
PETER
ROYCE-BRITISH Ijil�'RTry,� INC. ,LTD.,,�zyy
"DEVELOPER" d�
Page 3 of 3
ATTACHMENT NO. 7
FORM OF DEED OF TRUST
Recording requested by
and when recorded mail to:
Redevelopment Agency of the
City of Palm Springs
3200 Tahquitz-McCallum Way
Palm Springs , California 92262
DEED OF TRUST
(Riverside County)
THIS DEED OF TRUST is made as of the 16 day of A DY'i 1986, by and among PETER $PSTEENz L?H: (the pONTIAC-BUICK-
"Trustor") , whose address is 8131 Highway 111, Cathedral ROLLS ROYCE-
City, California 92234 ; Ticor Title Insurance Co. BRITI IMPORTS,
("Trustee") , whose address is 3490 Tenth Street, Riverside, CA MPORTS,
47501 ; and the REDEVELOPMENT INC. , D
AGENCY OF THE CITY OF PALM SPRINGS, whose address is
3200 Tahquitz-McCullum Way, Palm Springs, California 92262
( "Beneficiary") . o
FOR GOOD AND VALUABLE CONSIDERATION, including the /
indebtedness herein recited and the trust herein cre6red,
the receipt of which is hereby acknowledged, Trustor hereby
irrevocably grants, transfers , conveys and assigns to
Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and
security of Beneficiary, under and subject to the terms and
conditions hereinafter set forth, the property located in
the County of Riverside, State of California, that is
described in Exhibit A, attached hereto and by this refer-
ence incorporated herein (the "Site" ) .
TOGETHER WITH all rents , issues , profits, royalties ,
income and other benefits derived from the Site (collec-
tively, the "profits" ) , provided that so long 'as Trustor is
not in default hereunder and all applicable cure periods
have not expired, it shall be permitted to collect rents
and operate the Auto Sales Center, as hereinafter defined,
but only in accordance with the requirements of that
certain Disposition and Development Agreement entered into
between the and the Beneficiary as of A n ri1 3
1986 (the "DDA" ) , incorporated by referen a herein.
Attachment No . 7
Page 1 of 20
• S
TOGETHER WITH all interests , estates or other claims ,
both in law and in equity which Trustor now has or may
hereafter acquire in the Site;
TOGETHER WITH all easements, rights-of-way and rights
used in connection therewith or as a means of access
thereto, including, without limiting the generality of the
foregoing, all tenements, hereditaments and appurtenances
thereof and thereto;
TOGETHER WITH any and all buildings and improvements
now or hereafter erected thereon, and all property of the
Trustor now or hereafter affixed to or placed upon the
Site, including, without limitation, all fixtures, attach-
ments, appliances , furnishings, equipment and machinery
(whether fixed or movable) and other articles (including ,
in each instance, improvements, restorations , replacements ,
repairs , additions , accessions or substitutions thereto or
therefor) ;
TOGETHER WITH all leasehold estate, right, title and
interest of Trustor in and to all leases or subleases
covering the Site or any portion thereof now or hereafter
existing or entered into, and all right, title and interest
of Trustor thereunder, including, without limitation, all
cash or security deposits, advance rentals, and deposits or
payments of similar nature;
TOGETHER WITH all right, title and interest of Trustor
in and to all options to purchase or lease the Site or any
portion thereof or interest therein, and any greater estate
in the Site owned or hereafter acquired;
TOGETHER WITH all right, title and interest of
Trustor, now owned or hereafter acquired, in and to any
land lying within the right-of-way of any street, open or
proposed, adjoining the Site, and any and all sidewalks,
alleys and strips and gores of land adjacent to or used in
connection with the Site;
TOGETHER WITH all the estate, interest, right, title,
other claim or demand, of every nature, in and to such
property, including the Site, both in law and in equity,
including, but not limited to, all deposits made with or
other security given by Trustor to utility companies, the
proceeds from any or all of such property, including the
Site, claims or demands with respect to the proceeds of
insurance in effect with respect thereto, which Trustor now
has or may hereafter acquire, any and all awards made for
the taking by eminent domain or by any proceeding or pur-
chase in lieu thereof of the whole or any part of such
Attachment No . 7
Page 2 of 20
r
property, including without limitation, any awards result-
ing from a change of grade of streets and awards for sever-
ance damages;
All of the foregoing, together with the Site, is
herein referred to as the "Security. "
FOR THE PURPOSE OF SECURING:
(a) Repayment of the indebtedness evidenced in
the Promissory Note between Trustor and Beneficiary,
as hereinafter defined, of even date herewith; and
(b) Performance of every obligation, covenant or
agreement of Trustor contained herein, in the First
Promissory Note, or the Grant Deed .
Without affecting the liability of any person for pay-
ment of the indebtedness secured by this Deed of Trust, the
Deed of Trust shall be subject and subordinate only to the
security interest of a Mortgage (as hereinafter defined) ,
subject to and on the following terms and conditions :
(a) This Deed of Trust shall be subordinate to a
Mortgage only if Trustor is not in default of perform-
ance of any of the obligations set forth in the
Promissory Note or Deed of Trust at the time such
Mortgage is recorded;
(b) The subordination of this Deed of Trust to a
Mortgage which is provided for herein shall be auto-
matic and without further action of any nature
whatsoever;
(c) Each such Mortgage shall secure any loan or
loans made primarily for the purpose of providing
construction, interim or permanent financing for the
acquisition and/or development of the Site, and the
proceeds of any such loan therefrom may be expended
for all costs related to such acquisition and/or
development, including, but not limited to, any one or
more or all of the following: the purchase of the
Site, costs incurred by Trustor in planning, engineer-
ing and constructing the Auto Sales Center, real prop-
erty taxes, bond premiums, escrow charges, premiums
for hazard insurance, title insurance premiums , loan
costs , including discounts , points and/or loan fees
and other costs incurred in connection with the
acquisition and contemplated development, construction
and marketing of the Site.
Attachment No. 7
Page 3 of 20
(d) The loan or loans secured by such Mortgage, if
a construction loan:_ (i) shall be in an original principal
amount which shall be the lesser of (1) the sum of One Million
Five Hundred Thousand Dollars ($1, 500, 000 . 00) or (2) an amount
which, when added to the original principal amounts of all
other Mortgages then properly of record, does not cause the
original principal amounts of all such Mortgages to exceed
the fair market value of the Site; (ii) may be extended or
renewed from time to time at the election of the holder (s)
thereof; (iii) may bear interest on the principal balance
remaining from time to time unpaid at the lesser of (a)
three percent above the Bank of America prime rate or (b)
a fair rate of interest to be determined by such lender;
(iv) may provide that the holder (s) thereof may accelerate
the due date thereof and declare the entire principal and
accrued interest and charges due in the event of default;
(v) may provide that in the event of default, the maker
shall be liable for the payment of court costs and reason-
able attorney' s fees if the holder (s) thereof institute any
legal action in connection with the obligations of the
promissory note or notes secured thereby;' and (vi) may
provide that the holder (s) thereof may make additional
advances to the maker from time to time in an aggregate
amount which, together with the then balance due thereunder,
shall not exceed the original principal amount thereof, which
additional advances shall bear interest and charges in a
like rate and be subject to the same terms and conditions
thereof; (vii) shall provide that the proceeds shall be used
only for the purpose of constructing on said Site an Auto
Sales Center, (viii) the construction loan shall be payable
in not less than two (2) years; the proceeds of such con-
struction loan shall be disbursed by the lender either
through its own offices or through a bonded disbursement
control agency only after inspection of the work completed
on said property and presentation of vouchers signed by the
Trustor or his successors in interest for the cost of work,
labor, or materials actually performed or used in the con-
struction of such Auto Sales Center on said Site.
(e) The loan or loans secured by such Mortgage,
if a permanent or "take out" loan: (i) shall be in an
original principal amount which shall be the lesser of
(1) the sum of Two Million Five Hundred Thousand Dollars
($2, 500, 000. 00) or (2) an amount which, when added to the
original principal amounts of all other Mortgages then
properly of record, does not cause the original principal
amounts of all such Mortgages to exceed the fair market
value of the Site as fully constructed; (ii) may be
Attachment No. 7 J
Page 3a of 20
extended or renewed from time to time at the election of the
holder (s) thereof; (iii) may bear interest on the principal
balance remaining from time to time unpaid at the lesser of
(a) three percent above the Bank of America prime rate or
(b) a fair rate of interest to be determined by such lender;
(iv) may provide that the holder (s) thereof may accelerate
the due date thereof and declare the entire principal and
accrued interest and charges due in the event of default;
(v) may provide that in the event of default, the maker
shall be liable for the payment of court costs and reasonable
attorney' s fees if the holder (s) thereof institute any legal
action in connection with the obligations of the promissory
note or notes secured thereby; (vi) shall provide that the
proceeds of such take-out loan shall be used first to pay in
full any construction loans on said property and any mechanic 's
liens or other charges levied or leviable against said
property because of any improvements placed on said property
by Trustor or his successors in interest; (vii) such take-out
loan shall be payable in equal periodic installments over
a period of not less than five (5) years or more than thirty
(30) years.
(f) The Mortgage may contain provisions for an
assignment of rents, may provide that the beneficiary thereof
may declare that in the event of a sale, transfer, assignment,
or encumbrance of any interest in the real property which is
the subject thereof, the entire unpaid balance, together with
accrued interest and charges, shall be due and payable, and
may contain other provisions alike or similar to those con-
tained in the deeds of trust customarily used from time to
time by lenders in the State- of California; -
(g) Truster agrees that the proceeds of any
construction or interim loan secured by a Mortgage shall be
initially disbursed to pay the costs incurred in developing
the Site and constructing the Auto Sales Center, including,
without limitation, the costs referred to in subparagraph
(c) above.
Page 3b of 20
•
(d) The loan or loans secured by such Mortgage:
(i) s 11 be in an original principal amount which,
when a ed to the original principal amounts of all
other M tgages then properly of record, does not
cause th original principal amounts of all such Mort-
gages to ceed the fair market value of the Site;
(ii) may b extended or renewed from time to time at
the electio of the holder(s) thereof; (iii) may bear
interest on a principal balance remaining from time
to time unpai at a rate of interest to be determined
by such lender, (iv) may provide that the holder(s)
thereof may acc erate the due date thereof and
declare the enti principal and accrued interest and
charges due in th event of default; (v) may provide
that in the event default the maker shall be liable
for the payment of urt costs and reasonable
attorney' s fees if t holder(s) thereof institute any
legal action in conne ion with the obligations of the
promissory note or not secured thereby; and (vi) may �+ J
provide that the holder ) thereof may make additional
advances to the maker fr time to time in an aggre-
gate amount which, togeth with the then balance due
thereunder, shall not exce the original principal
amount thereof, which additi nal advances shall bear
interest and charges in a li rate and be subject to
the same terms and conditions hereof;
(e) The Mortgage may cont 'n provisions for an
assignment of rents, may provide hat the beneficiary
thereof may declare that in the a nt of a sale,
transfer, assignment or encumbranc of any interest in
the real property which is the subj t thereof the
entire unpaid balance, together with ccrued interest
and charges , shall be due and payable, and may contain
other provisions alike or similar to t se contained r
in the deeds of trust customarily used om time to
time by lenders in the State of Californi
(f) Trustor agrees that the proceeds ' f any
construction or interim loan secured by a Mo tgage
shall be initially disbursed to pay the cost incurred
in developing the Site and constructing the Au o Sales
Center, including, without limitation, the cost
referred to in subparagraph (c) above.
ARTICLE I
DEFINITIONS
1 . "Auto Sales Center" means the retail sales auto-
mobile dealership facilities conforming to the requirements
Attachment No . 7
Page 4 of 20
of the DDA and situated on the Site, together with all add-
itions , improvements, restorations and replacements
thereof, and together with the items set forth in the sixth
paragraph hereof .
2 . The term "DDA" is defined in the third paragraph
hereof .
3 . The term "Expiration Date" means the date upon
which the Promissory Note has been paid in full .
4 . The term "Grant Deed" means the deed by which the
Trustor acquires title to the Site, as defined in
Section 204 of the DDA.
5 . "Mortgage" means any construction, permanent or
long-term loan, the proceeds of which are used in the con-
struction of the improvements constructed on the Site pur-
suant to Section I . of the Scope of Development (Attachment
No . 4 to the DDA) , which loan is secured by a security
financing interest in the Trustor ' s interest in the Site
and has been approved by the Beneficiary pursuant to
Section 317 of the DDA. +
6 . The term "Promissory Note" means that certain
promissory note of even date herewith executed by the
Trustor and the performance of which is secured by this
Deed of Trust (a copy of the Promissory Note is on file
with the Beneficiary and is incorporated herein by
reference) .
7 . The term "Security" is defined in the eleventh
paragraph hereof .
8 . The term "Site" is defined in the second para-
graph hereof .
9 . The term "Trustor" means Peter Epsteen, Ltd. and
each of its transferees and successors in interest . where
an obligation is created herein binding upon Trustor, the
obligation shall also apply to and bind any transferees or
successors in interest as well as Peter Epsteen, Ltd.
Where the terms of the Deed of .Trust have the effect of
creating an obligation of the Trustor and a transferee,
such obligation shall be deemed to be a joint and several
obligation of the Trustor and such transferee .
Unless the context clearly otherwise requires , any
capitalized term used herein and not defined herein shall
have the meaning given to it under the Promissory Note and
the DDA (and any amendments thereto) .
Attachment No . 7
Page 5 of 20
ARTICLE II
MAINTENANCE AND MODIFICATION OF THE OFFICE DEVELOPMENT
AND SECURITY; RELEASE UPON PAYMENT
Section 2 . 1. Maintenance and Modification of the
Proiect by Trustor. The Trustor agrees that at all times
prior to the Expiration Date, the Trustor will, at the
Trustor ' s own expense, maintain, preserve and keep the Site
and all improvements thereon to be maintained, preserved
and kept in good condition satisfactory to the Benefi-
ciary. The Trustor will from time to time make or cause to
be made all repairs, replacements and renewals deemed
proper and necessary by it . The Beneficiary shall have no
responsibility in any of these matters or for the making of
improvements or additions on the Site .
Trustor agrees to pay fully and discharge (or cause to
be paid fully and discharged) all undisputed claims for
labor done and for material and services furnished in con-
nection with the Security, diligently to file or procure
the filing of a valid notice of completion upon completion
of construction of any part of the Security, diligently
file or procure the filing of a notice of cessation upon
the event of a cessation of labor on the work or construc-
tion on the Security for a continuous period of thirty (30)
days or more, and to take all other reasonable steps to
forestall the assertion of claims of lien against the
Security or any part thereof. Trustor irrevocably
appoints, designates and authorizes Beneficiary as its
agent (said agency being coupled with an interest) with the
authority, but without any obligation, to file for record
any notices of completion or cessation of labor or any-
other notice that Beneficiary deems necessary or desirable
to protect its interests in and to the Security, the Grant
Deed, or the Agreements; provided, however, that Benefi-
ciary shall exercise its rights as agent of Trustor only in
the event that Trustor shall fail to take, or shall fail to
diligently continue to take, those actions as hereinbefore
provided.
Upon demand by Beneficiary, Trustor shall make or
cause to be made such demands or claims as Beneficiary
shall specify upon laborers, materialmen, subcontractors or
other persons who have furnished or claim to have furnished
labor, services or materials in connection with the
Security. Nothing herein contained shall require Trustor
to pay any claims for labor, materials or services which
Trustor in good faith disputes and is diligently contest-
ing; provided that Trustor shall, within ten (10) days
after the filing of any claim of lien, record in the Office
Attachment No . 7
Page 6 of 20
of the Recorder of Riverside County a surety bond suffi-
cient to release said claim of lien, or provide Benefi-
ciary, at Trustor ' s cost, with such security or assurances
(and extensions, renewals or substitutions thereof) as
Beneficiary may, in its sole discretion, approve in writing .
Section 2 Release of Land and Improvements. Upon
either its cancellation of the Promissory Note or its
receipt of the final payment on the Promissory Note, which-
ever is earlier, and all amounts secured by this Deed of
Trust, and provided that the Trustor is not in default
under the DDA, or the Promissory Notes, the Beneficiary
shall, upon the request of the Trustor, deliver to the
Trustor such instruments as are reasonably necessary to
confirm the release of the Security from the lien of this
Deed of Trust .
Section 2 . 3 . Granting of Easements . Trustor may not
grant easements, licenses , rights-of-way or other rights or
privileges in the nature of easements with respect to any
property or rights included in the Security without the
prior written approval of the Beneficiary, which approval
shall not be unreasonably withheld. In'the event such
rights are granted following Beneficiary' s approval, the
Trustor shall promptly so advise the Beneficiary in writing.
ARTICLE III
TAXES AND INSURANCE; ADVANCES
Bection 3 . 1. Taxes , Other Gov rnm n al Charges and
Utility Charg -s . Except as otherwise provided in the DDA,
Trustor shall pay, or cause to be paid, at least
fifteen (15) days prior to delinquency, all taxes, assess-
ments, charges and levies imposed by any public authority
or utility company which are or may become a lien affecting
the Security or any part thereof; provided, however, that
Trustor shall not be required to pay and discharge any such
tax, assessment, charge or levy so long as (a) the legality
thereof shall be promptly and actively contested in good
faith and by appropriate proceedings, and (b) Trustor main-
tains reserves adequate to pay any liabilities contested
pursuant to this Section 3 . 1 . in accordance with generally
accepted accounting principles . With respect to special
assessments or other similar governmental charges, Trustor
shall pay such amount in full prior to the attachment of
any lien therefor on any part of the Security unless the
Trustor has secured the prior written approval of the Bene-
ficiary to pay such amounts in installments over a period
of years .
Attachment No . 7
Page 7 of 20
In the event that Trustor shall fail to pay any of the
foregoing items required by this Section to be paid by
Trustor, Beneficiary may (but shall be under no obligation
to) pay the same, after the Beneficiary has notified the
Trustor of such failure to pay and the Trustor fails to
fully pay such item within seven (7) business days of the
earlier of the receipt or mailing of such notice. Any
amount so advanced therefor by Beneficiary, together with
interest thereon from the date of such advance at the maxi-
mum rate permitted under Section 1(2) of Article Xv of the
California Constitution, shall become an additional obliga-
tion of Trustor to the Beneficiary and shall be secured
hereby, and Trustor agrees to pay all such amounts .
Section 3 . 2 . Provisions Respecting Insurance.
(a) Trustor agrees to provide insurance pursuant
to Section 308 of the DDA during the course of con-
struction and following completion in the event of
fire, lightning, debris removal, windstorm, flood,
vandalism, malicious mischief, theft, mysterious dis-
appearance and hazards, casualties and contingencies
as are normally and usually covered by all-risk poli-
cies in effect in the locality where the Auto Sales
Center is situated, until such time as the Promissory
Note has been paid in full .
(b) Trustor agrees to carry rental value or
business interruption. insurance insuring the opera-
tions of the Trustor on the Site for loss caused by
the perils set forth in subsection (a) above, in an
amount not less than the amount required by the holder
of any senior mortgage or deed of trust, or, in the
event such insurance is not required by the holder of
any senior mortgage or deed of trust, in an amount not
less than the aggregate rentals from the Site during
the next preceding twelve (12) month period.
(c) All such insurance policies and coverages
(i) shall be maintained at Trustor ' s sole cost and
expense so long as any part of the amounts secured by
its Deed of Trust have not been paid, (ii) shall be
with insurers of recognized responsibility, and in
form and substance satisfactory to the Beneficiary,
(iii) shall name Beneficiary as additional insured,
(iv) shall contain a provision to the effect that the
insurer shall not cancel the policy or modify it
materially and adversely to the interests of Benefi-
ciary without first giving at least thirty (30) days '
prior written notice thereof, and (v) shall contain
such deductible provisions as may be mutually agreed
upon by the Beneficiary and the Trustor; provided that
Attachment No . 7
Page 8 of 20
if no such agreement is reached, there shall be no
deductible. Certificates of insurance for all of the
above insurance policies, showing the same to be in
full force and.. effect, shall be delivered to the Bene-
ficiary upon demand therefor at any time prior to the
Expiration Date.
Section 3 . 3 . Advances . In the event the Trustor
shall fail to maintain the full insurance coverage required
by this Deed of Trust or shall fail to keep the Auto Sales
Center in good repair and operating condition, the Benefi-
ciary may (but shall be under no obligation to) take out
the required policies of insurance and pay the premiums on
the same or may make such repairs or replacements as are
necessary and provide for payment thereof; and all amounts
so advanced therefor by the Beneficiary shall become an
additional obligation of the Trustor to the Beneficiary
(together with interest as set forth below) and shall be
secured hereby, which amounts the Trustor agrees to pay on
the demand of the Beneficiary, and if not so paid, shall
bear interest from the date of the advance at the maximum
rate permitted by Section 1(2) of Article XV of the
California Constitution. '
ARTICLE IV
DAMAGE, DESTRUCTION OR CONDEMNATION
Section 4 . 1. Damage and Destruction. If, prior to
the Expiration Date, the Auto Sales Center or any portion
thereof is .destroyed (in whole or in part) or is damaged by
fire or other casualty, the Trustor shall subject to the
rights of a senior lender (a) cause any insurance proceeds
arising from insurance referred to in Section 3 . 2 . hereof
and any other coverage acquired by the Trustor to be used
to promptly rebuild and replace the Auto Sales Center to
the extent possible, and (b) repair and replace such Auto
Sales Center as necessary to bring the Office Development
into conformity with Section I . of the Scope of Development
(Attachment No . 4 of the DDA) . There shall be no abatement
in, and Trustor shall be obligated to continue to pay, the
amount payable under the Promissory Note and this Deed of
Trust .
Section 4 . 2 . Condemnation. Subject only to the pro-
visions of the Mortgage, if, prior to the recordation of a
Certificate of Completion (as defined in Section 323 of the
DDA) for all of the improvements located on the Site, title
to or any interest in or the temporary use of the Site or
any part thereof shall be taken under the exercise of the
power of eminent domain by any governmental body or by any
Attachment No . 7
Page 9 of 20
person, firm or corporation acting under governmental auth-
ority, including any proceeding .or purchase in lieu
thereof, the proceeds as a result of such taking shall be
paid, subject to the rights of senior lenders, one hundred
percent (100%) to the Beneficiary until the Promissory
Notes are paid in full . Subject only to the provisions of
the Mortgage, if, after recordation of a Certificate of
Completion, as aforesaid, and prior to the Expiration Date,
title to or any interest in or the temporary use of the
Site or any part thereof shall be taken under the exercise
of the power of eminent domain by any governmental body or
by any person, firm or corporation acting under govern-
mental authority, including any proceeding or purchase in
lieu thereof, the proceeds as a result of such taking shall
be paid as follows and in the following priority: first,
the full amount owing under the Promissory Note shall be
paid to the Beneficiary; and second, the remaining proceeds
shall be paid to the Trustor . The date of liquidation
under this section shall be the date of valuation under the
eminent domain proceedings .
ARTICLE V
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF THE TRUSTOR
Section 5 . 1. Defense of the Title. The Trustor cove-
nants that it is lawfully seised and possessed of title in
fee simple to the Site, that it has good right to sell,
convey or otherwise transfer or encumber the same, and that
the Trustor, for itself and its successors and assigns,
warrants and will forever defend the right and title to the
foregoing described and conveyed property unto the Benefi-
ciary, its successors and assigns, against the claims of
all persons whomsoever, excepting only encumbrances
approved by the Beneficiary.
Section 5 . 2 . Inspection of the Site. The Trustor
covenants and agrees that at any and all reasonable times,
the Beneficiary and its duly authorized agents, attorneys,
experts, engineers, accountants and representatives , shall
have the right, without payment of charges or fees, to
inspect the Site.
ARTICLE VI
AGREEMENTS AFFECTING THE OFFICE DEVELOPMENT; FURTHER
ASSURANCES; PAYMENT OF PROMISSORY NOTES
Section 6 . 1 . 0 her Agreements Affecting Office
Development . The Trustor shall duly and punctually perform
all terms , covenants, conditions and agreements binding
Attachment No . 7
Page 10 of 20
upon it under the Mortgage, the Promissory Note, and any
lease or any other agreement of any nature whatsoever now
or hereafter involving or affecting the Site or any part
thereof .
Section 6 . 2. Further Assurances • After A an, red
Property. At any time, and from time to time, upon request
by the Beneficiary, the Trustor shall make, execute and
deliver, or cause to be made, executed and delivered, to
the 'Beneficiary and, where appropriate, cause to be
recorded and/or filed, and from time to time thereafter to
be recorded and/or filed, and from time to time thereafter
to be re-recorded and/or refiled, at such time and in such
offices and places as shall be deemed desirable by the
Beneficiary, any and all such other and further deeds of
trust, security agreements , financing statements respecting
personal property, instruments of further assurance, cer-
tificates and other documents as may, in the opinion of the
Beneficiary, be necessary or desirable in order to effec-
tuate, complete or perfect, or to continue and preserve,
(a) the obligations of the Trustor under this Deed of
Trust, and (b) the lien of this Deed of Trust as a lien
prior to all liens except the lien of the Mortgage. Upon
any failure by the Trustor to do so, the Beneficiary may
make, execute, record, file, re-record and/or refile any
and all such deeds of trust, security agreements, instru-
ments, certificates and documents for and in the name of
the Trustor, and the Trustor hereby irrevocably appoints
the Beneficiary the agent and attorney-in-fact of the
Trustor to do so. The lien hereof shall automatically
attach, without further act, to all after-acquired property
deemed to be a part of the Security as defined herein.
Section 6 . 3 . Ag_reement to Pay Attorneys ' Fees and
Expenses . In the event of an Event of Default hereunder,
and if the Beneficiary should employ attorneys or incur
other expenses for the collection of amounts due or the
enforcement of performance or observance of an obligation
or agreement on the part of the Trustor in this Deed of
Trust, the Trustor agrees that it will, on demand therefor,
pay to the Beneficiary the reasonable fees of such attor-
neys and such other reasonable expenses so incurred by the
Beneficiary; and any such amounts paid by the Beneficiary'
shall be added to the indebtedness secured by the lien of
this Deed of Trust, and shall bear interest from the date
such expenses are incurred at the maximum rate permitted by
Section 1(2) of Article Xv of the California Constitution.
Section 6 .4 . Payment of the Promissory Note. Subject
to the terms of the Promissory Note, the Trustor shall pay
to the Beneficiary the full amount owing under the Promis-
sory Note in the amounts and by the times set out therein.
Attachment No. 7
Page 11 of 20
Section 6 5 . Subrogation• Payment of Claims . The
Beneficiary shall be subrogated _to the claims and liens of
all parties whose claims or liens are discharged or paid by
the Beneficiary pursuant to the provisions hereof. If per-
mitted in the Mortgage, the Beneficiary shall have the
right to pay and discharge the obligations secured by the
Mortgage.
Section 6 . 6. Operation of the Site. The Trustor
agrees and covenants to operate the Site (and, in case of a
transfer of a portion of the Site, the transferee shall
operate such portion of the Site) in full compliance with
the Mortgage, the DDA, the Promissory Note and the Grant
Deed.
Section 6 . 7 . Transfer . Prior to the issuance of a
Certificate of Completion pursuant to the provisions of
Section 323 of the DDA, the Trustor shall not sell, trans-
fer, lease, pledge, encumber, create a security interest
in, or otherwise hypothecate all or any part of the Secur-
ity without the Beneficiary' s prior written consent. The
involuntary transfer or transfer by operation of law of the
Security (or any part thereof) without prior consent of the
Beneficiary shall additionally constitute an Event of
Default hereunder. The consent by the Beneficiary to any
sale, transfer, lease, pledge, encumbrance, creation of a
security interest in or other hypothecation of the Security
shall not be deemed to constitute a novation or a consent
to any further sale, transfer, lease, pledge, encumbrance,
creation of a security interest in or other hypothecation.
Such consent by the Beneficiary shall not constitute a
waiver of the Beneficiary' s right, at its option, to
declare the indebtedness secured hereby immediately due and
payable, without notice to the Trustor or any other person
or entity (except as provided herein) , upon any such sale,
transfer, lease, pledge, encumbrance, creation of a secur-
ity interest in or other hypothecation to which it shall
not have consented as provided hereinabove. After a Certi-
ficate of Completion has been issued, the Trustor shall
have the right to sell, transfer, lease, pledge, encumber,
create a security interest in or otherwise hypothecate all
or any part of the Security without the Beneficiary' s prior
written consent, subject to the provisions of the last sen-
tence of this Section 6 . 7. No sale, transfer, lease,
pledge, encumbrance, creation of a security interest in or
other hypothecation of the Security shall relieve or
release the Trustor from primary liability under this Deed
of Trust, the Promissory Note or the DDA, as the case may
be.
Attachment No. 7
Page 12 of 20
Section 6.8. Transfer to Dealer. The provisions of Section
6.7 notwithstanding, Trustor may sell , transfer, lease, pledge, encumber,
create a security interest in, or otherwise hypothecate the Security at
any time, with or without the Beneficiary' s prior consent; provided that
such is in connection with the sale of the stock or substantially all of
the assets of Trustor and that the purchaser continues to operate an Auto
Sales Center, provided that the purchase with substantially the same
automobile dealership franchises, as is comtemplated hereunder for Trustor
to operate thereon and accepts all the terms, conditions and responsibilities
of the Developer set forth in the Disposition and Development Agreement
between the CRA of the City of Palm Springs and Peter Epsteen, Ltd. , a�
all attachments thereto.
� Z�
v
Attachment No. 7
Page 12a of 20
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7. 1 . Events of Default Defined. The occurr-
ence of any failure of the Trustor or the Developer to per-
form under this Deed of Trust, the DDA, the Promissory
Note, the Grant Deed, or the Mortgage, and the continuation
of said failure for a period of fifteen (15) days as to
monetary obligations and thirty (30) business days as to
non-monetary obligations, (provided, however, that if such
faiure is not susceptible of being cured within thirty (30)
business days, and the Trustor and Developer have commenced
to cure and are diligently prosecuting to completion such
cure, such failure to perform shall not be considered an
event of default) after written notice specifying such
failure and requesting that it be remedied shall have been
given to Trustor and Developer from the Beneficiary, shall
be an Event of Default under this Deed of Trust .
Section 7.2. Acceleration of Maturity. If an Event
of Default shall have occurred and be continuing, then the
entire indebtedness secured hereby shall, at the option of
the Beneficiary, immediately become due and payable without
notice or demand which are hereby expressly waived, and no
omission on the part of the Beneficiary to exercise such
option when entitled to do so shall be construed as a
waiver of such right'.
Section 7_3 . The Benefi iary' s Right to Enter and
Take Possession. If an Event of Default shall have
occurred and be continuing, the Beneficiary may:
(a) Either in person or by agent, with or with-
out bringing any action or proceeding, or by a
receiver appointed by a court, and without regard to
the adequacy of its security, enter upon the Site and
take possession thereof (or any part thereof) and of
any of the Security, in its own name or in the name of
Trustee, and do any acts which it deems necessary or
desirable to preserve the value, marketability or
rentability of the Site and the improvements thereon,
or part thereof or interest therein, increase the
income therefrom or protect the security hereof and,
with or without taking possession of the Site and the
improvements thereon, sue for or otherwise collect the
rents, issues and profits thereof, including those
past due and unpaid, and apply the same, less costs
and expenses of operation and collection, including
attorneys ' fees , upon any indebtedness secured hereby,
all in such order as Beneficiary may determine . The
entering upon and taking possession of the Site and
Attachment No . 7
Page 13 of 20
the improvements thereon, the collection of such
rents , issues and profits and the application thereof,
as aforesaid, shall not cure or waive any Default or
notice of Default hereunder or invalidate any act done
in response to such Default or pursuant to such notice
of Default and, notwithstanding the continuance in
Possession of the Site and improvements thereon or the
collection, receipt and application of rents, issues
or profits, Beneficiary shall be entitled to exercise
every right provided for in this Deed of Trust, the
DDA or by law upon occurrence of any Event of Default,
including the right to exercise the power of sale;
(b) Commence an action to foreclose this Deed of
Trust as a mortgage, appoint a receiver, or specifi-
cally enforce any of the covenants hereof;
(c) Deliver to Trustee a written declaration of
default and demand for sale, and a written notice of
default and election to cause Trustor ' s interest in
the Site and improvements thereon to be sold, which
notice Trustee or Beneficiary shall cause to be duly
filed for record in the Official Records of Riverside
County; or
(d) Exercise all other rights and remedies pro-
vided herein, in the instruments by which the Trustor
acquires title to the Site, including any Security, or
in any other document or agreement now or hereafter
evidencing, creating or securing all or any portion of
the obligations secured hereby, or provided by law.
Section 7 . 4 . Foreclosure By Power of sale. Should
the Beneficiary elect to foreclose by exercise of the power
of sale herein contained, the Beneficiary shall notify
Trustee and shall deposit with Trustee this Deed of Trust
which is secured hereby, and such receipts and evidence of
any expenditures made that are additionally secured hereby
as Trustee may require.
(a) Upon receipt of such notice from the Benefi-
ciary, Trustee shall cause to be recorded, published
and delivered to Trustor such Notice of Default and
Election to Sell as then required by law and by this
Deed of Trust . Trustee shall, without demand on
Trustor, after lapse of such time as may then be
required by law and after recordation of such Notice
of Default and after Notice of Sale having been given
as required by law, sell the Site and all improvements
thereon, at the time and place of sale fixed by it in
said Notice of Sale, either as a whole or in separate
Attachment No . 7
Page 14 of 20
lots or parcels or items as Trustee shall deem expe-
dient and in such order as it may determine, at public
auction to the highest bidder, for cash in lawful
money of the United States payable at the time of
sale. Trustee shall deliver to such purchaser or pur-
chasers thereof its good and sufficient deed or deeds
conveying the property so sold, but without any cove-
nant or warranty, express or implied. The recitals in
such deed of any matters or facts shall be conclusive
proof of the truthfulness thereof . Any person,
including, without limitation, Trustor, Trustee or
Beneficiary, may purchase at such sale, and Trustor
hereby covenants to warrant and defend the title of
such purchaser or purchasers .
(b) After deducting all reasonable costs , fees
and expenses of Trustee, including costs of evidence
of title in connection with such sale, Trustee shall
apply the proceeds of sale to payment of : (i) the
amount owing under the Promissory Note; (ii) all other
sums then secured hereby; and (iii) the remainder, if
any, to the person or persons legally entitled thereto .
(c) Trustee may postpone sale of all or any por-
tion of the Site and all improvements thereon by pub-
lic announcement at such time and place of sale, and
from time to time thereafter, and without further
notice make such sale at the time fixed by the last
postponement, or may, in its discretion, give a new
notice of sale.
Section 7. 5 . Receiver. If an Event of Default shall
have occurred and be continuing, Beneficiary, as a matter
of right and without further notice to Trustor or anyone
claiming under Security, and without regard to the then
value of the Site and all improvements thereon or the
interest of Trustor therein, shall have the right to apply
to any court having jurisdiction to appoint a receiver or
receivers of the Security (or a part thereof) , and Trustor
hereby irrevocably consents to such appointment and waives
further notice of any application therefor . Any such
receiver or receivers shall have all the usual powers and
duties of receivers in like or similar cases, and all the
powers and duties of Beneficiary in case of entry as pro-
vided herein, and shall continue as such and exercise all
such powers until the date of confirmation of sale of the
Site and all improvements thereon, unless such receivership
is sooner terminated.
Section 7. 6 . Remedies Cumulative. No right, power or
remedy conferred upon or reserved to the Beneficiary by
this Deed of Trust is intended to be exclusive of any other
Attachment No . 7
Page 15 of 20
right, power or remedy, but each and every such right,
power and remedy shall be cumulative and concurrent and
shall be in addition to any other right, power and remedy
given hereunder or now or hereafter existing at law or in
equity .
Section 7. 7 . No Waiver.
(a) No delay or omission of the Beneficiary to
exercise any right , power or remedy accruing upon any
Default shall exhaust or impair any such right, power
or remedy, or shall be construed to be a waiver of any
such Default or acquiescence therein; and every right,
power and remedy given by this Deed of Trust to the
Beneficiary may be exercised from time to time and as
often as may be deemed expeditious by the Benefi-
ciary. No consent or waiver, expressed or implied, by
the Beneficiary to or of any breach by the Trustor in
the performance of the obligations hereunder shall be
deemed or construed to be a consent to or waiver of
obligations of the Trustor hereunder . Failure on the
part of the Beneficiary to complain of any act or
failure to act or to declare an Event of Default,
irrespective of how long such failure continues, shall
not constitute a waiver by the Beneficiary of its
right hereunder or impair any rights, powers or reme-
dies consequent on any breach or Default by the
Trustor.
(b) If the Beneficiary (i) grants forbearance or
an extension of time for the payment of any sums
secured hereby, (ii) takes_ other or additional secur-
ity or the payment of any sums secured hereby,
( iii) waives or does not exercise any right granted
herein, in the Grant Deed, the Promissory Note, or in
the DDA, (iv) releases any part of the Security from
the lien of this Deed of Trust, or otherwise changes
any of the terms, covenants, conditions or agreements
of this Deed of Trust, the Grant Deed, the Promissory
Note, or the DDA, (v) consents to the filing of any
map, plat or replat affecting the Security, (vi) con-
sents to the granting of any easement or other right
affecting the Security, or (vii) makes or consents to
any agreement subordinating the lien hereof, any such
act or omission shall not release, discharge, modify,
change or affect the original liability under this
Deed of Trust, or any other obligation of the Trustor
or any subsequent purchaser of the Security or any
part thereof, or any maker, co-signer, endorser,
surety or guarantor (unless expressly released) ; nor
shall any such act or omission preclude the Benefi-
ciary from exercising any right, power or privilege
Attachment No. 7
Page 16 of 20
herein granted or intended to be granted in the event
of any Default then made or of any subsequent Default ,
nor, except as otherwise expressly provided in an
instrument or instruments executed by the Beneficiary
shall the lien of this Deed of Trust be altered
thereby. In the event of the sale or transfer by
operation of law or otherwise of all or any part of
the Site and all improvements thereon, the Benefi-
ciary, without notice, is hereby authorized and
empowered to deal with any such vendee or transferee
with reference to the Security (or a part thereof) or
the indebtedness secured hereby, or with reference to
any of the terms, covenants, conditions or agreements
hereof, as fully and to the same extent as it might
deal with the Trustor and without in any way releasing
or discharging any liabilities , obligations or under-
takings of the Trustor .
Section 7 . 8 . Suits to Protect the Security. The
Beneficiary shall have power to (a) institute and maintain
such suits and proceedings as it may deem expedient to pre-
vent any impairment of the Security (and the rights of the
Beneficiary as secured by this Deed of trust) by any acts
which may be unlawful or any violation of this Deed of
Trust, (b) preserve or protect its interest (as described
in this Deed of Trust) in the Security and in the rents,
issues , profits and revenues arising therefrom, and
(c) restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid, if the
enforcement for compliance with such enactment, rule or
order would impair the security thereunder or be prejudi-
cial to the interests of the Beneficiary. -
Section 7. 9 . Trustee May File Proofs of Claim. In
the case of any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition or
other proceedings affecting the Trustor, its creditors or
its property, the Beneficiary, to the extent permitted by
law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order
to have the claims of the Beneficiary allowed in such pro-
ceedings for the entire amount due and payable by the
Trustor under this Deed of Trust at the date of the insti-
tution of such proceedings and for any additional amount
which may become due and payable by the Trustor hereunder
after such date.
Attachment No . 7
Page 17 of 20
Section 7. 10 Non-Recourse . Notwithstanding anything
to the contrary within, the parties acknowledge that this
Deed of Trust is a "non-recourse" deed of trust and that
no deficiency judgment shall lie against Trustor for any
Event of Default hereunder.
Attachment No. 7
Page 17a of 20
ARTICLE VIII
MISCELLANEOUS
Section 8 . 1. Amendments . This instrument cannot be
waived, changed, discharged or terminated orally, but only
by an instrument in writing signed by the party against
whom enforcement of any waiver, change, discharge or termi-
nation is sought.
Section 8 .2 . Trustor Waiver of Rights . Trustor
hereby acknowledges that it is aware of and has the advice
of counsel of its choice with respect to its rights under
the Constitution of the United States, including, but not
limited to, its rights arising under the Fourth, Fifth,
Sixth and Fourteenth Amendments thereto, and the Constitu-
tion of the State of California. Trustor agrees that Bene-
ficiary may exercise its rights hereunder in accordance
with the provisions hereof, including, but not limited to,
the exercise of the power of sale pursuant to Section 7 . 4
hereof, and Trustor hereby expressly waives and releases
its rights under such Constitutions wit} respect thereto,
including, but not limited to, its rights, if any, to
notice and a hearing upon the occurrence of an Event of
Default hereunder; provided, however, nothing contained
herein shall be deemed to be a waiver of Trustor' s rights
to reinstate or redeem this Deed of Trust in accordance
with applicable law. Trustor further waives to the extent
permitted by law, (a) the benefit of all laws now existing
or that may hereafter be enacted providing for any
appraisement before sale of any portion of the Security,
(b) all rights of valuation, appraisement, stay of execu-
tion, notice of election to mature or declare due the whole
of the secured indebtedness and marshaling in the event of
foreclosure of the liens hereby created, and (c) all rights
and remedies which Trustor may have or be able to assert by
reason of the laws of the State of California pertaining to
the rights and remedies of sureties .
Section 8 3 . Reconveyance by Trustee. Upon written
request of Beneficiary stating that all sums secured hereby
have been paid, and upon surrender of this Deed of Trust to
Trustee for cancellation and retention, and upon payment by
Trustor of Trustee' p reasonable fees, Trustee shall recon-
vey to Trustor, or Eo the person or persons legally
entitled thereto, without warranty, any portion of the Site
then held hereunder. The recitals in such reconveyance of
any matters or facts shall be conclusive proof of the
truthfulness thereof . The grantee in any reconveyance may
be described as "the person or person legally entitled
thereto . "
Attachment No. 7
Page 18 of 20
Section 8 .4 . Notices . Whenever Beneficiary, Trustor
or Trustee shall desire to give or serve any notice,
demand, request or other communication with respect to this
Deed of Trust, each such notice, demand, request or other
communication shall be in writing and shall be effective
only if the same is delivered by personal service or mailed
by registered or certified mail, postage prepaid, return
receipt requested, or by telegram, addressed to the address
set forth in the first paragraph of this Deed of Trust.
Any party may at any-time change its address for such
notices by delivering or mailing to the other parties
hereto, as aforesaid, a notice of such change.
Section 8 . 5 . Acceptance by Trustee. Trustee accepts
this Trust when this Deed of Trust, duly executed and
acknowledged, is made a public record as provided by law.
Section 8 . 6 . Captions . The captions or headings at
the beginning of each Section hereof are for the conveni-
ence of the parties and are not a part of this Deed of
Trust .
Section 8 . 7. Invalidity of C rtairt Provisions . Every
provision of this Deed of Trust is intended to be sever-
able. In the event any term or provision hereof is
declared to be illegal or invalid for any reason whatsoever
by a court of competent jurisdiction, such illegality or
invalidity shall not affect the balance of the terms and
provisions hereof, which terms and provisions shall remain
binding and enforceable. If the lien of this Deed of Trust
is invalid or unenforceable as to any part of the debt, or
if the lien is invalid or unenforceable as to any part of
the Security," the unsecured or partially secured portion of
the debt, and all payments made on the debt, whether volun-
tary or under foreclosure or other enforcement action or
procedure, shall be considered to have been first paid on
and applied to the full payment of that portion of the debt
which is not secured or partially secured by the lien of
this Deed of Trust.
Section 8 . 8 . No Merger of Lie If both the
lessor ' s and lessee ' s estate under any lease or any portion
thereof which constitutes a part of the Auto Sales Center
shall at any time become vested in one owner, this Deed of
Trust and the lien created hereby shall not be destroyed or
terminated by application of the doctrine of merger and, in
such event, Beneficiary shall continue to have and enjoy
all of the rights and privileges of Beneficiary as to the
estates of lessor and lessee. In addition, upon fore-
closure under this Deed of Trust pursuant to the provisions
hereof, any leases or subleases then existing and affecting
all or any portion of the Security shall not be destroyed
Attachment No . 7
Page 19 of 20
or terminated by application of the law of merger or as a
matter of law or as a result of such foreclosure unless
Beneficiary or any purchaser at any such foreclosure shall
so elect . No act by or on behalf of Beneficiary or any
such purchaser shall constitute a termination of any lease
or sublease unless Beneficiary or such purchaser shall give
written notice of termination to such tenant or subtenant.
Section 8 . 9 . Governing Law. This Deed of Trust shall
be governed by and construed in accordance with the laws of
the State of California .
Section 8 . 10 . Gender and Number. In this Deed of
Trust the singular shall include the plural and the mascu-
line shall include the feminine and neuter and vice versa,
if the context so requires .
IN WITNESS WHEREOF, Trustor has executed this Deed of
Trust as of the day and year first above written.
(SEAL) PETER Eper-EMg /Jr.....
PETER 'EPSTEEN-P BUIC) -ROLLS ROYCE-BRITISH IMPOO S
INC. , L�/T �
y:
"TRUSTOR"
Attachment No . 7
EXHIBIT A
LEGAL DESCRIPTION OF THE SITE
Parcel 1 of Parcel Map 18787 in the City of Palm Springs, County
of Riverside, State of California, as per map recorded in
Book Page and of Parcel
Maps, in the Office of the County Recorder of said County.
Attachment No . 7
Exhibit A
RESOLUTION NO. 454
OF THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA,
APPROVING AGREEMENT WITH THE LUTHER
COMPANY LIMITED PARTNERSHIP, A MINNESOTA
LIMITED PARTNERSHIP, ASSUMING ALL THE
DUTIES AND OBLIGATIONS OF PETER EPSTEEN,
LTD. INCLUDING ACQUISITION OF PARCEL
#2 FOR THE DEVELOPMENT OF AN AUTO SALES
CENTER..
WHEREAS the Agency has entered into a Disposition and Development Agreement
with Peter Epsteen, Ltd. to facilitate the development of an auto center
through the use of certain tax increments; and
WHEREAS the Disposition and Development Agreement between the Agency and
Peter Epsteen, Ltd. approved on March 11, 1986 called for Agency approval
of any assignment of the Agreement; and
WHEREAS Peter Epsteen, Ltd. had requested and the Community Redevelopment
Agency had approved the assignment of the Agreement to Luther Company Limited
Partnership by Resolution No. 453; and
WHEREAS the Luther Company Limited Partnership, a Minnesota Limited Partner-
ship has read and agrees to all of Peter Epsteen ' s duties and obligations,
a copy of the Agreement which is on file in the office of the City Clerk;
NOW THEREFORE BE IT RESOLVED by the Community Redevelopment Agency of the
City of Palm Springs approving an Agreement between the Community
Redevelopment Agency and the Luther Company Limited Partnership, a Minnesota
Limited Partnership and consenting to the sale of Parcel 2 of Tract 18787
therefore, and the assumption of all obligations of Peter Epsteen, Ltd. ,
and authorizing the Executive Director to sign all documents related thereto,
including agreement assuming duties and obligations of seller.
ADOPTED this 7th day of January 1987.
AYES: Members Apfelbaum, Birer, Smith and Mayor Bogert
NOES: None
ABSENT: None
ABSTAIN: Member Foster
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
CITY OF PALM SPRINGS, CALIFORNIA
By
Assistant Secretary Chairman
REVIEWED AND APPROVED:__k.?j