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HomeMy WebLinkAboutA6271 - CHINO CIENEGA FOUNDATION AND THE BENSON-NICHOLS TRUST OF 2003 PURCHASE OF 2901 NPC DOC # 2012-0480618 10/09/2012 12:20 PM Fees: $0.00 Page I of 6 Recorded in Official Records County of Riverside 10 Larry W.Ward Assessor, County Clerk&Recorder RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: "This document was electronically submitted to the County of Riverside for recording" THE CITY OF PALM SPRINGS Receipted by:YSEGURA 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager Nil Space above this line for Recorder's Use Order No. 4108477 Escrow No. 24414KC GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Chino Cienega Foundation, a California public benefit corporation and Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003, (collectively, "Seller"), hereby grant to the CITY OF PALM SPRINGS, a California municipal corporation and Charter City, the real property in the City of Palm Springs, County of Riverside, State of California, described in Exhibit"I" attached hereto and incorporated herein by reference (the "Property"). The Property conveyed hereby is subject to (i) non-delinquent general and special real property taxes and assessments; and (ii)matters of record. Dated: -'PkQ5A . -:RA 2012 Chino Cienega Foundation, a California public benefit corporation JC Stephhen,C. ichols, President ASarah J. B son�Secrcr�ary � Stephen C. Nichols& Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 steipher C. c Trustee o 5 S 4 Sarah J. Benson, Trustee 858448.1 V RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: THE CITY OF PALM SPRINGS 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager 1 U Nil _ iv1„n /�,1 ^'\(�r� /+' t!7, Space above this line for Recorder's Use O''Y/ WJ�1V U_`V (J"I U Order No. 4108477 Escrow No. 24414KC GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Chino Cienega Foundation, a California public benefit corporation and Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003, (collectively, "Seller"), hereby grant to the CITY OF PALM SPRINGS, a California municipal corporation and Charter City, the real property in the City of Palm Springs, County of Riverside, State of California, described in Exhibit"1" attached hereto and incorporated herein by reference (the "Property"). The Property conveyed hereby is subject to (i) non-delinquent general and special real property taxes and assessments; and (ii) matters of record. Dated: 'A� . 3 2012 Chino Cienega Foundation, a California public benefit corporation a_ o��A/V� Stephe . ichols, President Sarah J. B son, Secretary Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 Stephen C. icho ss Trustee Sarah J. Benson, Trustee 858448.1 CERTIFICATION Pursuant to the provisions of Government Code 27361.7, I certify under the penalty of perjury that the following is a true copy of illegible wording found in the attached documents: (Print or type the page number(s) and wordingbelow): elow): RECORDING REQUESTED BY FIRST AMERICAN TITLE COMPANY DATE: SIGNATURE: s ACKNOWLEDGMENT State of California County of � On before me, 3C-brd� A Notary Public in and for said State personally appearede��q G 1�cQki S who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he4he/they executed the same in hisAier/their authorized capacity(ies), and that by trisH•rer/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. KA1STyd. COROELL Commission# 1901078 z �!_ Notary Public -California Z Riverside County M Comm.Expires Sep 19,2014 Sign -��'aOoo (Seal) � ,*PALM sA� City of Palm Springs Z cr m Office of the City Clerk 3200 E. Tahquitz Canyon Way • Palm Springs,CA 92262 iwv ' Tel: (760)323-8204 • Fax: (760)322-8332 • TDD: (760)864-9527 • Web:www.palmspringsca.gov °qt iFORN`P A6274 CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by GRANT DEED APN 504-040-001-8 dated: August 31, 2012 from, Chino Cienega Foundation, a California Public Benefit Corporation and Stephen C. Nicholas & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 Grantor, to the City of Palm Springs, a municipal corporation and charter city, Grantee, is hereby accepted by the City Clerk of said City of Palm Springs, on this 4th day of October, 2012, pursuant to authority granted by the City Council of said City, by Resolution No. 20255 made on the 16th day of January, 2002, and the Grantee consents to recordation thereof by the City Clerk, its duly authorized officer. Dated at Palm Springs, California, this 4th day of October, 2012. ames Thompson City Clerk Post Office Box 2743 0 Palm Springs, California 92263-2743 EXHIBIT "A" PARCEL "A": ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 23130 AS FILED IN PARCEL MAP BOOK 181 AT PAGES 50 THROUGH 53, INCLUSIVE, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS; COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 1,THENCE SOUTH 380-33'-19" EAST ALONG THE NORTHEASTERLY LINE OF SAID PARCEL 1, A DISTANCE OF 21.11 FEET TO THE TRUE POINT OF BEGINNING; THE FOLLOWING SIX COURSES BEING ALONG THE NORTHEASTERLY AND SOUTHEASTERLY LINES OF SAID PARCEL 1; THENCE SOUTH 38 33'-19" EAST, A DISTANCE OF 151.76 FEET; THENCE NORTH 51°-26'-41" EAST,A DISTANCE OF 10.00 FEET; THENCE SOUTH 380-33'-19" EAST, A DISTANCE OF 176.95 FEET; THENCE SOUTH 510-26'-41"WEST,A DISTANCE OF 211.00 FEET; THENCE SOUTH 38°-33'-19" EAST,A DISTANCE OF 220.00 FEET THENCE SOUTH 510-26'-41"WEST, A DISTANCE OF 190.00 FEET; THENCE LEAVING SAID SOUTHEASTERLY LINE, NORTH 380-33'-19"WEST, A DISTANCE OF 220.0 FEET; THENCE NORTH 04°-5l'-32" EAST,A DISTANCE OF 452.52 FEET; THENCE NORTH 510-26'-41" EAST,A DISTANCE OF 80.00 FEET TO THE TRUE POINT OF BEGINNING. SUBJECT TO EASEMENTS OF RECORD IF ANY. CONTAINING 120,981 SQ. FT./2.78 AC. PREPARED BY H 1. 6ANp SANBORN A/E, INC. 9 JOHN L. SANBORN; PLS 4146 L.S. 4146 EXP. 6/30/14 s� WO 11-135 07/17/12 9 fc ��0 CAL�F� i I PARCELNE COP 1 OFEXHIBI T "B" P.O.C. PCL "A•• N LIME OF PARCH 1 1 s �1� Jam• DATA TABLE J # I BEARING DIST. o•p S, F (D I S38'33'19"E 21.11' g >LOT- ® S51.26'41"W 10.00' 1p : `�J• �iT 3 PARCEL F 120,981 S.F. o C4 2.78 AC. � k1 e� s s Pp� `DEAL LANo 4 s0 100 50 0 100 200 Ff °F cnLiFO SCALE I:100' GRAPHIC SCALE o CITY OF PALM SPRINGSAPPROVED:PUBLIC WORKS & ENGINEERING 28931 DEPARTMENT DIRECTOR OF PUBLIC WORKS/ RCE CITY ENGINEER PLA T DESIGN BY.• SCALE: FSE NO.: LEGAL DESCRIPHON: D.B. 1" = 100' - SEE EXHIBIT A' CHECKED BY. W.O. I SHEET NO.: J.L.S. 11-135 1 OF 1 I PROMISSORY NOTE Visitor's Center Parking Lot and Palm Springs Entry Sign DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to Borrower for cancellation. $ 245,000.00 Palm Springs, California September 10, 2012 FOR VALUE RECEIVED, the undersigned, the CITY OF PALM SPRINGS, a municipal corporation and California Charter City("Maker"), promises to pay Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 ("Holder") located at 901 North Palm Canyon Drive, Suite 200, Palm Springs, CA 92262, the sum of Two Hundred Forty Five Thousand Dollars ($245,000.00, the "Note Amount"), together with interest thereon at the rate set forth herein. All sums payable hereunder shall be payable in lawful money of the United States of America. This Promissory Note ("Note") is made in connection with the provision by the Holder of funds equal to the Note pursuant to that certain the Agreement for Purchase and Sale by and among Maker and Holder, dated as of September 10, 2012 (the "Agreement"). This note is made with reference to the sale of a one-half undivided interest in a parcel commonly described as the Visitor's Center Parking Lot and Palm Springs Entry Sign, of approximately 2.78 acres (APN 504-040-001-8), located near the northwest corner of Tramway Road and North Palm Canyon Drive in the City of Palm Springs, County of Riverside, State of California, more particularly described on Exhibit"A" attached hereto ("Land"). 1. Interest Rate. Simple interest shall accrue on the Note Amount from the date of disbursement at the rate of Six and One Half Percent (6.5%) per annum, but in no event greater than the maximum interest rate permitted by law. 2. Repayment. Maker shall repay the principal amount of the Note Amount, plus all interest then accrued at the interest rate set forth in Paragraph 1 above in arrears, in annual installments in equal amounts as shown in the attached Amortization Table shown in Exhibit "B" attached hereto ("Amortization Table"). The principal amount of the Note Amount, plus all interest then accrued upon the Note Amount, shall be immediately due and payable upon (i) any default of the Agreement, which is not cured within the time set forth in Section 13 of the Deed of Trust, and, if not sooner paid in full, (ii) on April 1, 2019. 3. Prepayment of Note Amount. Maker may prepay to Holder the full Note Amount, together with all accrued and unpaid interest thereon at the rate set forth in Section 1 hereof, at any time prior to the due date of the Note Amount without penalty. Nichols Promissory Note 4. Application of Payments. Each payment hereunder shall be credited first to interest then accrued and the remainder, if any, to principal. Interest shall cease to accrue upon principal so credited. 5. Security. This Note is secured by a deed of trust by and between Maker, as trustor, and Holder, as beneficiary (the "Deed of Trust", Exhibit "D" to the Agreement). 6. Holder MU Assign. Holder may, at its option, assign its right to receive payment under this Note without necessity of obtaining the consent of the Maker. 7. Maker Assignment Prohibited. In no event shall Maker assign or transfer any portion of this Note without the prior express written consent of the Holder, which consent may be given or withheld in the Holder's sole discretion. 8. Attorneys' Fees and Costs. In the event that any action is instituted with respect to this Note, the non-prevailing party promises to pay such sums as a court may fix for court costs and reasonable attorneys' fees. Maker's right to such fees shall not be limited to or by its representation by City Attorney, and such representation shall be valued at customary and reasonable rates for private sector legal services. 9. Non-Waiver. Failure or delay in giving any notice required hereunder shall not constitute a waiver of any default or late payment, nor shall it change the time for any default or payment. 10. Successors Bound. This Note shall be binding upon the parties hereto and their respective heirs, successors and assigns. Any person or entity who takes over the any duties and obligations under this Note, is also liable for the satisfaction of all such duties and obligations. 11. Terms. Any terms not separately defined herein shall have the same meanings as set forth in the Agreement. 12. Collection of Penalties. No provision of this Agency Note or any instrument securing payment hereof or otherwise relating to the debt evidenced hereby shall require the payment or permit the collection of interest in excess of the maximum permitted by applicable law. If any excess of interest in such respect is herein or in such other instrument provided for, or shall be adjudicated to be so provided for herein or in any such instrument, the provisions of this paragraph shall govern, in neither Maker or any endorsers of this Note, nor their respective heirs, personal representatives, successors or assigns shall be obligated to pay the amount of such interest to the extent it is in excess of the amount permitted by applicable law. 13. Non-Recourse. Notwithstanding anything to the contrary herein contained, (i) the liability of Maker shall be limited to its interest in the Site and any rents, issues, and profits arising from the Site and, in addition, with respect to any obligation to hold and apply insurance proceeds, proceeds of condemnation or other 2 554804.2 monies hereunder, any such monies received by it to the extent not so applied in accordance with the terms of this Note; (ii) no other assets of Maker shall be affected by or subject to being applied to the satisfaction of any liability which Maker may have to Holder or to another person by reason of this Note; and (iii) any judgment, order, decree or other award in favor of Holder shall be collectible only out of, or enforceable in accordance with, the terms of this Note by termination or other extinguishment of Maker's interest in the Site. IN WITNESS WHEREOF, Borrower has caused this Note to be executed by Maker or Maker's authorized agent(s) as of the date and year first above written. Maker: By. ��� APPROVED BY CITY COUNCIL City of Palm Spring ifornia �,�., David H. Ready, Esq., Ph.D. City Manager AS TO fONM ATTEST. . �r{►ttOmeY �ityClerk t o`a y1�0/Z— flare 3 554804.2 EXHIBIT "A" TO PROMISSORY NOTE LEGAL DESCRIPTION OF LAND The Land is that certain real property located in the City of Palm Springs, County of Riverside, State of California, described as follows: P EL"A"a ALL THAT PORTIM OF PARCEL 1 OF PARCEL MAP NO 23130 AS FILET}IN PARCEL MAP BOOK 181AT PAGES 511 THROUGH53,INCLUSIVE,RECORDS OF CALIFORNIA,RIVERSIDE COUNTY DESCRIBED AS FOLLOWS,- OOMh4ENCING AT THE NORTHEAST CORNER OF SAID PARCEL 1.THENCE S _33'-IT EAST ALONG THE RLY LINE OF SAID PARCEL 1, ADISrANCEOF21.11 FEET TO THE TRUEPOW0FBEGff80fQ THE BEING ALONG THE Y SOUTHEASTERLY LINES OF SAID PARCEL 1; THENCE SOUTH 33'-lT EAST,A DISTANCE OF 15176 FEET; TH34CE NORM 519- -41"EAST„A DISTANCE OF 14l.00 FEET; THENCE SOUTH 3T-1T EAST,A DISTANCE OF 175.95 FEET-, THENCE SOUTH S1m- -41-WEST,A DISTANCE OF 211_00 FEET; THENICE SOUTH 38u-3Y-19w EAST,A DISTANCE OF 00 FEET THENCE SOUTH S1"- `-41-VVEST,A DISTANCE OF 190 OD FEET; THENCE LEAvING SAID SOUTHEASTERLY LINE,NORTH38--33 IT WEST,A DISTANCE OF 22I1.0 FEET; - NORTHTHENCE 04- 1-- "EASTT,A OF 452�FEET, T -51" 41- A DISTANCE OF 80-01 FEET TO THE TRUE PONT Of BEGINN94G SUaJECT TO EASEMENTS OF RECORD IF CONTAINING 420.901 SQ_FT_12-78 _ PREPARED BY �. JOHN L SANBORN,PLS 4146 1 S. 4146 E , s r� Wo 14435 M.M 4' 0 C A3��� OF EAMT 190 L'A; It L�E CF?AKE I Z14 M MALE z141 06ARM 101$7- 101 101 WW41-W 1R. PAWEL TV, : CITY Or PALM SPAWOS & LWOMERWO PA T T t as _ MW - PROMISSORY NOTE Visitor's Center Parking Lot and Palm Springs Entry Sign DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to Borrower for cancellation. $ 245,000.00 Palm Springs, California September 10, 2012 FOR VALUE RECEIVED, the undersigned, the CITY OF PALM SPRINGS, a municipal corporation and California Charter City ("Maker"), promises to pay the Chino Cienega Foundation, a California public benefit corporation ("Holder") located at 901 North Palm Canyon Drive, Suite 200, Palm Springs, CA 92262, the sum of Two Hundred Forty Five Thousand Dollars ($245,000.00, the "Note Amount"), together with interest thereon at the rate set forth herein. All sums payable hereunder shall be payable in lawful money of the United States of America. This Promissory Note ("Note") is made in connection with the provision by the Holder of funds equal to the Note pursuant to that certain the Agreement for Purchase and Sale by and among Maker and Holder, dated as of September 10, 2012(the "Agreement"). This note is made with reference to the sale of a one-half undivided interest in a parcel commonly described as the Visitor's Center Parking Lot and Palm Springs Entry Sign, of approximately 2.78 acres (APN 504-040-001-8), located near the northwest comer of Tramway Road and North Palm Canyon Drive in the City of Palm Springs, County of Riverside, State of California, more particularly described on Exhibit"A" attached hereto ("Land"). 1. Interest Rate. Simple interest shall accrue on the Note Amount from the date of disbursement at the rate of Six and One-Half Percent (6.5%) per annum,but in no event greater than the maximum interest rate permitted by law. 2. Renayment. Maker shall repay the principal amount of the Note Amount, plus all interest then accrued at the interest rate set forth in Paragraph 1 above in arrears, in annual installments in equal amounts as shown in the attached Amortization Table shown in Exhibit "B" attached hereto ("Amortization Table"). The principal amount of the Note Amount, plus all interest then accrued upon the Note Amount, shall be immediately due and payable upon (i) any default of the Agreement, which is not cured within the time set forth in Section 13 of the Deed of Trust, and, if not sooner paid in full, (ii) on April 1, 2019. 3. Prepayment of Note Amount. Maker may prepay to Holder the full Note Amount, together with all accrued and unpaid interest thereon at the rate set forth in Section 1 hereof, at any time prior to the due date of the Note Amount without penalty. Nichols Promissory Note 4. Application of Payments. Each payment hereunder shall be credited first to interest then accrued and the remainder, if any, to principal. Interest shall cease to accrue upon principal so credited. 5. Security. This Note is secured by a deed of trust by and between Maker, as trustor, and Holder, as beneficiary (the "Deed of Trust", Exhibit "D" to the Agreement). 6. Holder May Assign. Holder may, at its option, assign its right to receive payment under this Note without necessity of obtaining the consent of the Maker. 7. Maker Assignment Prohibited. In no event shall Maker assign or transfer any portion of this Note without the prior express written consent of the Holder, which consent may be given or withheld in the Holder's sole discretion. 8. Attorneys' Fees and Costs. In the event that any action is instituted with respect to this Note, the non-prevailing party promises to pay such sums as a court may fix for court costs and reasonable attorneys' fees. Maker's right to such fees shall not be limited to or by its representation by City Attorney, and such representation shall be valued at customary and reasonable rates for private sector legal services. 9. Non-Waiver. Failure or delay in giving any notice required hereunder shall not constitute a waiver of any default or late payment, nor shall it change the time for any default or payment. 10. Successors Bound. This Note shall be binding upon the parties hereto and their respective heirs, successors and assigns. Any person or entity who takes over the any duties and obligations under this Note, is also liable for the satisfaction of all such duties and obligations. 11. Terms. Any terms not separately defined herein shall have the same meanings as set forth in the Agreement. 12. Collection of Penalties. No provision of this Agency Note or any instrument securing payment hereof or otherwise relating to the debt evidenced hereby shall require the payment or permit the collection of interest in excess of the maximum permitted by applicable law. If any excess of interest in such respect is herein or in such other instrument provided for, or shall be adjudicated to be so provided for herein or in any such instrument, the provisions of this paragraph shall govern, in neither Maker or any endorsers of this Note, nor their respective heirs, personal representatives, successors or assigns shall be obligated to pay the amount of such interest to the extent it is in excess of the amount permitted by applicable law. 13. Non-Recourse. Notwithstanding anything to the contrary herein contained, (i) the liability of Maker shall be limited to its interest in the Site and any rents, issues, and profits arising from the Site and, in addition, with respect to any obligation to hold and apply insurance proceeds, proceeds of condemnation or other 2 monies hereunder, any such monies received by it to the extent not so applied in accordance with the terms of this Note; (ii) no other assets of Maker shall be affected by or subject to being applied to the satisfaction of any liability which Maker may have to Holder or to another person by reason of this Note; and (iii) any judgment, order, decree or other award in favor of Holder shall be collectible only out of, or enforceable in accordance with, the terms of this Note by termination or other extinguishment of Maker's interest in the Site. IN WITNESS WHEREOF, Borrower has caused this Note to be executed by Maker or Maker's authorized agent(s) as of the date and year first above written. Maker: By:- APPROVED 3Y CITYCOUNICiL City of Palm Sprin i ornia O David H. Ready, Esq., Ph.D. City Manager A$jp FOAM ATTEST: ZAnp111ey Date ,, ��� city Clerk 3 EXHIBIT "A" TO PROMISSORY NOTE LEGAL DESCRIPTION OF LAND The Land is that certain real property located in the City of Palm Springs, County of Riverside, State of California, described as follows: PARCEL"Affix ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO.23130 AS FILED IN PARCEL MAP BOOK 181 AT PAGES 50 THROUGH i 53,INCLUSIVE,RECORDS OF R DE COUNTY,CALIFORNIA,DESCRIBED AS FOLLOWS; COKIAENCING AT THE NORTHEAST CORNER OF SAID PARCEL 1,THENCE SOUTH 380-3 VAT EAST ALONG THE NORTHEASTERLY LONE OF SAID PARCEL 1, A DISTANCE CE 21.11 FEET TO THE TRUE POINT OF BEC,WMWG: THE FOLLOINING SIX COURSES BED;ALONG THE Y AND SOUTHEASTERLY LINES OF SAID PARCEL 1; THENCE SOUTH -33'-19'EAST,A DISTANCE OF 151.76 FEET; THENCE NORTH 51"- -41-EAST,A DISTANCE OF 10.00 FEET; THENCE SOUTH 38--33'-lT EAST,A DISTANCE OF 176.95 FEET; THENCE SOUTH 51--29-41-WEST,A DISTANCE OF 211.00 FEET, THENCE SOUTI-I 380-3T-lT EAST,A DISTANCE OF 220.00 FEET THENCE SOUTH 51e-26 41 WEST,A[STANCE OF 190-00 FEET; THENCE LEAVING SAID SOUTHEASTERLY LINE,NORTH 33'IT WEST,A DISTANCE OF220.0 FEET, THENCE NORTH 04'-51' 37 EAST,A DISTANCE OF 452.52 FEET; THENCE NORTH 51-- -41-EAST,A DISTANCE OF 80.00 FEET TO THE TDB POINT OF BEGINNING. SUBJECT TO EASEfAENTS OF RECORD?IF ANY. CONTAR41NG 120,981 SO- FT_t 2.78 AC. PREPARED BY � _ Lk#,* SANBORN A1E,INC. If JOHN L SANBORM,..PLS4146 LS. 4140 UP 6/W/14 wo 11-135 OM7113 4 i±� � OT09* % : . T . w FAKEL �. \ \. . VAAfA�StF 41 WARM \¥f \ MT- j(DI SMVIVE 21,1V . . @W « %% M« w \ \ » , \ P. .. . � . \\ laam^ ©` \ us. « % »» \ ? < \ OS C\« & \Or PALM S � \ > \ . L< ! « \ « R. f - \ FWMWT 0 . m or m ■ ma7. » « m § « LARRY W. WARD Recorder P.O.Box 751 COUNTY OF RIVERSIDE Riverside,CA 92502-0751 ASSESSOR-COUNTY CLERK-RECORDER (951)486-7000 Website: w .riversideacr.com DOCUMENTARY TRANSFER TAX AFFIDAVIT WARNING ANY PERSON WHO MAKES ANY MATERIAL MISREPRESENTATION OF FACT FOR THE PURPOSE OF AVOIDING ALL OR ANY PART OF THE DOCUMENTARY TRANSFER TAX IS GUILTY OF A MISDEMEANOR UNDER SECTION 5 OF ORDINANCE 516 OF THE COUNTY OF RIVERSIDE AND IS SUBJECT TO PROSECUTION FOR SUCH OFFENCE. ASSESSOR'S PARCEL NO. 504-040-045-8 I declare that the documentary transfer tax for this Property Address: approximately 2.4 gross acres at the NW corner of transaction is: -0- Tramway Rd.and North North Palm Canyon Drive Palm Springs,CA 92262 If this transaction is exempt from Documentary Transfer Tax,the reason must be identified below. I CLAIM THAT THIS TRANSACTION IS EXEMPT FROM DOCUMENTARY TRANSFER TAX BECAUSE: (The Sections listed below are taken from the Revenue and Taxation Code. Please check one or explain in "Other".) 1. _Section 11911. The document is a lease for a term of less than thirty-five(35)years(including options). 2. Section 11911. The easement is not perpetual, permanent,or for life. 3. Section 11921. The instrument was given to secure a debt. 4. XX Section 11922. The conveyance is to a governmental entity or political subdivision. 5. Section 11925. The transfer is between individuals and a legal entity,or between legal entities, and does not change the proportional interests held. 6. _Section 11926. The instrument is from a trustor to a beneficiary,in lieu of foreclosure,and no additional consideration was paid. 7. _Section 11926. The grantee is the foreclosing beneficiary and the consideration paid by the foreclosing beneficiary does not exceed the unpaid debt. 8. _Section 11927. The conveyance relates to a dissolution of marriage or legal separation. 9. Section 11930. The conveyance is an inter vivos gift`or a transfer by death. Please be aware that information stated on this document may be given to and used by governmental agencies, including the Internal Revenue Service. Also,certain gifts in excess of the annual Federal gift tax exemption may trigger a Federal Gift Tax. In such cases,the Transferor(donor/grantor)may be required to file Form 709(Federal Gift Tax Return)with the Internal Revenue Service. 10. Section 11930. The conveyance is to the grantor's revocable living trust. 11. _Other(Include explanation and authority) U I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. n Executed this 7 day of 006 k? at �A�IYt i z Y`Y'4 iA Ci �r � State �/ .Ikt✓!.� 2ta Signature of Affiant Printed I of Affiant ATTEST; Name of Yrrn(if applicable) Address of Affiant t ^>;� �aa - ���� Telephone Number of Ant(including area code) 1 Clark This form is subject to the California Public Records Act(Government Code 6250 at.seq.) For Recorder's Use: Affix POOR Label Here APPROVED B�YCITYOLI�N'�C/1�L� ACR 521P-AS4EX0(Rev. 11/20/10) Available in Alternative Formats k E a eyf t y r" `vV I r BOE-502-A(P1)REV. 11 (07-10) PRELIMINARY CHANGE OF OWNERSHIP REPORT To be completed by the transferee(buyer)prior to a transfer of subject property, in accordance with section 480.3 of the Revenue and Taxation Code. A Preliminary Change of Ownership Report must be filed with each conveyance in the County Recorder's office for the county where the property is located. Please answer all questions in each section, and sign and complete the certification before filing.This form may be used in all 58 California counties. If a document evidencing a change in ownership is presented to the Recorder for recordation without the concurrent filing of a Preliminary Change of Ownership Report,the Recorder may charge an additional recording fee of twenty dollars ($20). NOTICE: The property which you acquired may be subject to supplemental assessment in an amount to be determined by the County Assessor. Supplemental assessments are not paid by the title or escrow company at dose of escrow, and are not included in lender impound accounts. You may be responsible for the current or upcoming property taxes even if you do not receive the tax bill. SELLER/TRANSFEROR ASSESSOR'S PARCEL NUMBER Stephen C.Nichols and Sarah J.Benson 504-040-045-8 BUYERITRANSFEREE BUYER'S DAYTIME TELEPHONE NUMBER The City of Palm Springs,a California municipal corporation and Charter City (760)902-1903 STREET ADDRESS OR PHYSICAL LOCATION OF REAL PROPERTY approximately 2.4 gross acres at the NW corner of Tramway Rd.and North North Palm Canyon Drive, Palm Springs, CA 92262 MAIL PROPERTY TAX INFORMATION TO(NAME) City of Palm Springs ADDRESS CITY STATE I ZIPCODE P.0.Box 2743 Palm Springs CA 92263 ( ) YES ( ) NO This property is intended as my principal residence.If YES,please indicate 777a7of occupancy MO DAY .YEAR or intended occupancy. PART 1. TRANSFER INFORMATION Please complete all statements. YES NO ( ) ( ) A. This transfer is solely between spouses(addition or removal of a spouse,death of a spouse,divorce settlement,etc.). ( ) ( ) B. This transfer is solely between domestic partners currently registered with the California Secretary of State(addition or removal of a partner,death of a partner,termination settlement,etc.). C. This is a transfer between:( )parent(s)and child(ren) ( )grandparent(s)and gmndchild(ren). D. This transaction is to replace a principal residence by a person 55 years of age or older. Within the same county? ( )YES ( )NO E. This transaction is to replace a principal residence by a person who is severely disabled as defined by Revenue and Taxation Code section 69.5.Within the same county? ( )YES ( )NO ( ) ( ) F. This transaction is only a correction of the name(s)of the person(s)holding title to the property(e.g.,a name change upon marriage). If YES,please explain: ( ) ( ) G. The recorded document creates,terminates,or reconveys a lenders interest in the property. ( ) ( ) H. This transaction is recorded only as a requirement for financing purposes or to create,terminate,or reconvey a security interest(e.g., cosigner). If YES,please explain: ( ) ( ) I. The recorded document substitutes a trustee of a trust,mortgage,or other similar document. J. This is a transfer of property: ( ) 1. to/from a revocable trust that may be revoked by the transferor and is for the benefit of [ ]the transferor,and/or [ ]the transferors spouse [ ]registered domestic partner. ( ) ( ) 2. to/from a trust that may be revoked by the creator/grantor/trustor who is also a joint tenant,and which names the other joint tenant(s) as beneficiaries when the creator/grantor/tmstor dies. ( ) ( ) 3. tolfrom an irrevocable trust for the benefit of the [ ]creatodgrantor/trustor and/or[ ]grantor's/trustor's spouse[ ]grantors/trustor's registered domestic partner. ( ) ( ) 4. to/from an irrevocable trust from which the property reverts to the creator/grantor/trustor within 12 years. ( ) ( ) K. This property is subject to a lease with a remaining lease term of 35 years or more including written options. ( ) ( ) L. This is a transfer between parties in which proportional interests of the transferor(s)and transferee(s)in each and every parcel being transferred remain exactly the same after the transfer. ( ) ( ) M. This is a transfer subject to subsidized low-income housing requirements with governmentally imposed restrictions. N. This transfer is to the first purchaser of a new building containing an active solar energy system. "If you checked YES to statements C,D,or E,you may qualify for a property tax reassessment exclusion,which may allow you to maintain your previous tax base.If you checked YES to statement N,you may qualify for a property tax new construction exclusion.A daim form must be filed and all requirements met in order to obtain any of these exclusions.Contact the Assessor for claim forms. Please provide any other information that will help the Assessor understand the nature of the transfer. THIS DOCUMENT IS NOT SUBJECT TO PUBLIC INSPECTION BOE-502-A(P2)REV.11 (07-10) PART 2. OTHER TRANSFER INFORMATION Check and complete as applicable. A. Date of transfer,if other than recording date: B. Typ¢of transfer: (�/) Purchase ( )Foreclosure ( )Gift ( )Trade or Exchange ( )Merger,stock or partnership acquisition(Form BOE-100-B) ( ) Contract of sale. Date of contract ( )Inheritance. Date of death: ( ) Sale/leaseback ( )Creation of a lease ( )Assignment of a lease ( )Termination of a lease.Date lease began: Original term in years(including written options): Remaining term in years(including written options):_ ( ) Other:Please explain: C. Only a partial interest in the property was transferred? ( )YES ( )NO If YES,indicate the percentage transferred % PART 3. PURCHASE PRICE AND TERMS OF SALE Check and complete as applicable. - A. Total purchase or acquisition price.Do not include closing costs or mortgage insurance Is /`�" 9(9 " v"/��r/J ' pa Down payment: $ �dA��" Interest rate: �.� % Seller-paid points or closing costs: $ Balloon payment: $ ( ✓) Loan carried by seller ( )Assumption of Contractual Assessment'with a remaining balance of: $ An assessment used to finance property-specific improvements that constitutes a lien against the real property. B. The property was purchased: ( ) Through real estate broker.Broker name: Phone number:( ) (tJ Direct from seller ( )From a family member ( )Other: Please explain: C.Please explain any special terms,seller concessions,financing,and any other information(e.g.buyer assumed the existing loan balance)that would assist the Assessor in the valuation of your property: PART 4. PROPERTY INFORMATION Check and complete as applicable. A. Type of property transferred ( )Single-family residence ( )Co-op/Own-your-own ( ),Manufactured home ( )Multiple-family residence.Number of units: ( )Condominium ( unimproved lot ( )Other.Description:(i.e.,timber,mineral,water rights,etc.) ( )Timeshare ( ✓j Commercial/Industrial B. ( )YES (*/)'NO Personal/business property,or incentives,are included in the purchase price.Examples are furniture,farm equipment,machinery, club memberships,etc.Attach list if available. If YES,enter the value of the personal/business property: $ uj C. ( )YES (✓)NO A manufactured home is included in the purchase price. <` V If YES,enter thgwalue attributed to the manufactured home: $ ( )YES (/)NO The manufactured home is subject to local property tax.If NO,enter decal number: D. ( )YES ( ✓))NO The property produces rental or other income. If YES,the income is from: ( )Leasetrent ( )Contract ( )Mineral rights ( )Other: E. The condition of the property at the time of sale was: (Y)ct Good ( )Average ( )Fair ( )Poor CERTIFICATION I certify(or declare)under penalty of perjury under the laws of the State of California that the foregoing and all information hereon,including any accompanying statements or documents is true and correct to the best of mv knowled a and belief. This declaration is bindina on each and every bu er/transferee. S1gGU&1UULQL5J4YERrLWSFEREE O TE OFFICER DATE NAME 0, rNfE RR/L`GL 1, NTATIVE/CORPORATE OFFICER(PLEA� TI T / G . E-MAIL ADDRESS ,l The Assessor's office may contact you for additional information regarding this transaction. ATTEST: APPROVED BY CITY COUNCIL ,iry Clerk LIBERTY ESCROW INC. 200 North Sunrise Way, Suite A Palm Springs, CA 92262 (760)322.2050 FAX: (760)322-2157 City of Palm Springs Date: July 31,2012 Attn:John Raymond Escrow No. 24414-KC P. O. Box 2743 Re:approximately 2.4 gross acres at the Palm Springs, CA 92263 NW corner of Tramway Rd.and North North Palm Canyon Drive, Palm Springs, CA 92262 Enclosed herewith for your approval you will find the Preliminary Report issued by First American Title Company, Order No.4108477, said report is dated July 11, 2012. Thank you. Sincerely, Kristy J. Cordell Certified Senior Escrow Officer APPROVAL OF PRELIMINARY TITLE REPORT Receipt is hereby acknowledged of Preliminary Title Report No.4108477 from: First American Title Company. The undersigned hereby approves the report with the exception of items: Executed this •' day of 0(,\TU¢Y The City of Palm Springs, a California municipal corporation and Charter City By: APPROVED BY CITY COUNCIL David H. Read , anager fi / 1a �.L Non hn "L�J ATTEST: ity Clerk CLTA Preliminary Report Form Order Number: 0625-4108477 (Rev. 11/06) Page Number: 1 Amended 41 1#Bq, ry }T�Y�{ �/y�py���yp� �/y�.jp ` 9 1 Rl s <ALR4 e kan Rlt ife First American Title Company 323 Court Street San Bernardino, CA 92401 Kristy Cordell Liberty Escrow Inc. 200 North Sunrise Way Suite A Palm Springs,CA 92262-6502 Phone: (760)322-2050 Fax: (760)322-2157 Customer Reference: 24414-KC Order Number: 0625-4108477(gp) Title Officer: Josh Guzman/ Porscha Peterson Phone: (951)787-1762 Fax No.: (866)292-6890 E-Mail: RVTitle@firstam.com Buyer: City Of Palm Springs Property: No Situs Found Palm Springs, CA PRELIMINARY REPORT In response to the above referenced application for a policy of title insurance,this company hereby reports that it is prepared to Issue,or cause to be issued,as of the date hereof,a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth,insuring against loss which may be sustained by reason of any defect,lien or encumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules,Conditions and Stipulations of said Policy forms. The printed Exceptions and Exclusions from the coverage and Limitations on Covered Risks of said policy or policies are set forth in Exhibit A attached. fie policy to be issued may contain an arbitration clause. When the Amount of Insurance is less than tliatsetforth in the arbitration clause,all arbitrable matters shall be arbitrated at the option ofeitrer the Company or the Insured as the exclusive remedy of the parties.Limitations on Covered Risks applicable to the CLTA and ALTA Homeowner's Policies of Title Insurance which establish a Deductible Amount and a Maximum Dollar Limit of Liability for certain coverages are also set forth in Exhibit A.Copies of the policy forms should be read.They are available from the office which issued this report. Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this report carefully.The exceptions and exclusions are meant to provide you with notice of matters which are not covered under the terms of the title insurance policy and should be carefully considered. It is important to note that this preliminary report is not a written representation as to the condition of title and may not list all liens,defects,and encumbrances affecting title to the land. _ FirstAmel7can Title Order Number: 0625-4108477 Page Number: 2 This report(and any supplements or amendments hereto)is issued solely for the purpose of facilitating the issuance of a policy of title insurance and no liability is assumed hereby.If it is desired that liability be assumed prior to the issuance of a policy of title insurance,a Binder or Commitment should be requested. First American Title Order Number: 0625-4108477 Page Number: 3 Dated as of July 11, 2012 at 7:30 A.M. The form of Policy of title insurance contemplated by this report is: To Be Determined A specific request should be made if another form or additional coverage is desired. Title to said estate or interest at the date hereof is vested in: Stephen C. Nichols and Sarah J. Benson,Trustees of the Benson & Nichols Trust of 2003, dated February 13, 2003,as to an undivided 50% interest and Chino Cienga Foundation, a a California Public Benefit Corporation, as to an undivided 50% interest, as tenants in common The estate or interest in the land hereinafter described or referred to covered by this Report is: A fee. The Land referred to herein is described as follows: (See attached Legal Description) At the date hereof exceptions to coverage in addition to the printed Exceptions and Exclusions in said policy form would be as follows: 1. General and special taxes and assessments for the fiscal year 2012-2013, a lien not yet due or payable. 2. The lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5 commencing with Section 75 of the California Revenue and Taxation Code. 3. An easement for either or both pole lines, conduits or underground facilities and incidental purposes, recorded April 13, 1962 as Instrument No. 34385 of Official Records. In Favor of: California Electric Power Company, a corporation and California Water and Telephone, a corporation Affects: As described therein 4. An easement for either or both pole lines, conduits or underground facilities and incidental purposes, recorded January 7, 1966 as Instrument No. 2508 of Official Records. In Favor of: Southern California Edison Company Affects: As described therein FirstAlmerican Tithe Order Number: 0625-4108477 Page Number: 4 5. An easement for park purposes and incidental purposes, recorded May 6, 1971 as Instrument No. 47727 of Official Records. In Favor of: The City of Palm Springs Affects: As described therein 6. An easement shown or dedicated on the Map as referred to in the legal description For: Storm drain purposes and incidental purposes. 7. The effect of a recital on said map stipulating that the areas designated as drainage easements must be kept free of all dwelling units, obstructions and encroachments by land fill. 8. The effect of a recital on said map stating that this property is located in the North area drainage plan and that said property is subject to fees for said drainage area. 9. The effect of a recital on said map giving notice of election by land divider to defer payment of drainage fees, and that said fees are required to be paid at the time of issuance of either a grading or a building permit,and that said fees must be paid at the rate in effect at the time of issuance of the actual permit. 10. The effect of a recital on said map notice to all current and future parcel owners. Notice is hereby given that prior to issuance of a Grading Permit for any parcel of land created by this Parcel Map, certain off-site and on-site improvements must be installed,or agreed to be installed. Therefore, prior to closing any land purchase transaction it is recommended that the prospective new land owner check the conditions of approval imposed by the City when this land division was approved, also all conditions as set out on said Map. 10A. A lease dated August 13, 2003, executed by Stephen C. Nichols,Trustee of the Frank Culver Nichols Revocable Trust as lessor and City of Palm Springs, a municipal corporation as lessee, recorded October 15, 2003 as Instrument No. 2003-809089 of Official Records. Defects, liens, encumbrances or other matters affecting the leasehold estate,whether or not shown by the public records. 10B. An option in favor of City of Palm Springs, a municipal corporation as contained in or disclosed by a document recorded October 15, 2003 as Instrument No. 2003-809089 of Official Records. il. Intentionally Deleted 12. Intentionally Deleted 13. Intentionally Deleted 14. Intentionally Deleted 15. Rights of parties in possession. FirstAmerican Title Order Number: 0625-4108477 Page Number: 5 Prior to the issuance of any policy of title insurance,the Company will require: 16. With respect to Chino Cienega Foundation, a corporation: a. A certificate of good standing of recent date issued by the Secretary of State of the corporation's state of domicile. b. A certified copy of a resolution of the Board of Directors authorizing the contemplated transaction and designating which corporate officers shall have the power to execute on behalf of the corporation. c. Other requirements which the Company may impose following its review of the material required herein and other information which the Company may require. FfistAmencan Title Order Number: 0625-4108477 Page Number: 6 INFORMATIONAL NOTES Note: The policy to be issued may contain an arbitration clause. When the Amount of Insurance is less than the certain dollar amount set forth in any applicable arbitration clause, all arbitrable matters shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of the parties. If you desire to review the terms of the policy, including any arbitration clause that may be induded, contact the office that issued this Commitment or Report to obtain a sample of the policy jacket for the policy that is to be issued in connection with your transaction. 1. General and special taxes and assessments for the fiscal year 2011-2012. First Installment: $9,489.79, PAID Penalty: $0.00 Second Installment: $9,489.79, PAID Penalty: $0.00 Tax Rate Area: 011-003 A. P. No.: 504-040-045-8 2. According to the latest available equalized assessment roll in the office of the county tax assessor, there is located on the land a(n)Agricultural Land known as No Situs Found, Palm Springs, California. 3. According to the public records, there has been no conveyance of the land within a period of twenty-four months prior to the date of this report, except as follows: None 4. We find no open deeds of trust. Escrow please confirm before closing. The map attached, if any, may or may not be a survey of the land depicted hereon. First American expressly disclaims any liability for loss or damage which may result from reliance on this map except to the extent coverage for such loss or damage is expressly provided by the terms and provisions of the title insurance policy, if any, to which this map is attached. First American Title Order Number: 0625-4108477 Page Number: 7 First American Title Company tsT r.rFt+F 323 Court Street t`. '* j g•�qpy��fJ+4� San Bernardino,CA 92401 [.6 Jt i.R[Vl.RM1fFFs+ .R71� (951)787-1700 Fax- WIRE INSTRUCTIONS for First American Title Company, Demand/Draft Sub-Escrow Deposits Riverside County,California First American Trust, FSB 5 First American Way Santa Ana, CA 92707 Banking Services: (877) 600-9473 ABA 122241255 Credit to First American Title Company Account No. 3004460000 Reference Title Order Number 4108477 and Title Officer Josh Guzman/ Porscha Peterson Please wire the day before recording. First American Title Order Number: 0625-4108477 Page Number: 8 LEGAL DESCRIPTION Real property in the City of Palm Springs, County of Riverside, State of California, described as follows: PARCEL 1,AS SHOWN BY PARCEL MAP 23130, ON FILE IN BOOK 181 PAGES 50 THROUGH 53, OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. APN: 504-040-045-8 First American Title MIIi 2 8201 � CITY OF PALM 9PRIN99 TRA011'-0fi5 ]i \ . j WEET Of 9 { na�- __ _--- 9r 18 r \/ � ex eav a eev \ an. .eaassorcsaw e.aw .w I c PoOT Q c c I \ \ • aon c b O N N N M O 0 A V V Order Number: 0625-4108477 Page Number: 10 Section 12413.1 of the California Insurance Code, effective January 1, 1990, requires that any title insurance company, underwritten title company, or controlled escrow company handling funds in an escrow or sub-escrow capacity, wait a specified number of days after depositing funds, before recording any documents in connection with the transaction or disbursing funds. This statute allows for funds deposited by wire transfer to be disbursed the same day as deposit. In the case of cashier's checks or certified checks, funds may be disbursed the next day after deposit. In order to avoid unnecessary delays of three to seven days, or more, please use wire transfer, cashier's checks, or certified checks whenever possible. If you have any questions about the effect of this new law, please contact your local First American Office for more details. FirstAmerican Title Order Number: 0625-4108477 Page Number: 11 EXHIBIT A LIST OF PRINTED EXCEPTIONS AND EXCLUSIONS(BY POLICY TYPE) CLTA/ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE(02-03-10) EXCLUSIONS In addition to the Exceptions in Schedule B,You are not insured against loss,costs,attorneys'fees,and expenses resulting from: 1. Governmental police power,and the existence or violation of those portions of any law or government regulation concerning: (a)building; (d)Improvements on the Land; (b)zoning; (e)land division;and (c)land use; (f)environmental protection. This Exclusion does not limit the coverage described in Covered Risk B.a.,14,15,16,18,19,20,23 or 27. 2. The failure of Your existing structures,or any part of them,to be constructed in accordance with applicable building codes. This Exclusion does not limit the coverage described in Covered Risk 14 or 15. 3. The right to take the Land by condemning it. This Exclusion does not limit the coverage described in Covered Risk 17. 4. Risks: (a)that are created,allowed,or agreed to by You,whether or not they are recorded in the Public Records; (b)that are Known to You at the Policy Date,but not to Us,unless they are recorded in the Public Records at the Policy Date; (c)that result in no loss to You;or (d)that first occur after the Policy Date-this does not limit the coverage described In Covered Risk 7,8.e.,25,26,27 or 28. S. Failure to pay value for Your Title. 6. Lack of a right: (a)to any land outside the area specifically described and referred to in paragraph 3 of Schedule A;and (b)in streets,alleys,or waterways that touch the Land. This Exclusion does not limit the coverage described in Covered Risk 11 or 21. 7. The transfer of the Title to You is invalid as a preferential transfer or as a fraudulent transfer or conveyance under federal bankruptcy,state insolvency,or similar creditors'rights laws. LIMITATIONS ON COVERED RISKS Your insurance for the following Covered Risks is limited on the Owner's Coverage Statement as follows: For Covered Risk 16,18,19,and 21 Your Deductible Amount and Our Maximum Dollar Limit of Liability shown in Schedule A. Your Deductible Amount Our Maximum Dollar Limit of Liability Covered Risk 16: 1%of Policy Amount or$2,500.00(whichever is less) $10,000.00 Covered Risk 18: 1%of Policy Amount or$5,000.00(whichever is less) $25,000.00 Covered Risk 19: 1%of Policy Amount or$5,000.00(whichever is less) $25,000.00 Covered Risk 21: 1%of Policy Amount or$2,500.00(whichever is less) $5,000.00 ALTA RESIDENTIAL TITLE INSURANCE POLICY(6-1-87) EXCLUSIONS In addition to the Exceptions in Schedule B,you are not insured against loss,costs,attorneys'fees,and expenses resulting from: 1. Governmental police power, and the existence or violation of any law or government regulation. This includes building and zoning ordinances and also laws and regulations concerning: (a)and use (b)improvements on the land (c)and division (d)environmental protection This exclusion does not apply to violations or the enforcement of these matters which appear in the public records at Policy Date. This exclusion does not limit the zoning coverage described in Items 12 and 13 of Covered Title Risks. 2. The right to take the land by condemning it,unless: (a)a notice of exercising the right appears in the public records on the Policy Date First American Title Order Number: 0625-4108477 Page Number: 12 (b)the taking happened prior to the Policy Date and is binding on you if you bought the land without knowing of the taking 3. Title Risks: (a)that are created,allowed,or agreed to by you (b)that are known to you,but not to us,on the Policy Date—unless they appeared in the public records (c)that result in no loss to you (d)that first affect your title after the Policy Date--this does not limit the labor and material lien coverage in Item 8 of Covered Title Risks 4. Failure to pay value for your bite. 5. Lack of a right: (a)to any land outside the area specifically described and referred to in Item 3 of Schedule A OR (b)in streets,alleys,or waterways that touch your land This exclusion does not limit the access coverage in Item 5 of Covered Title Risks. 2006 ALTA LOAN POLICY(06-17-06) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy,and the Company will not pay loss or damage,costs,attorneys' fees,or expenses that arise by reason of: 1. (a)Any law,ordinance,permit,or governmental regulation(including those relating to building and zoning)restricting,regulating, prohibiting,or relating to (i)the occupancy,use,or enjoyment of the Land; (ii)the character,dimensions,or location of any improvement erected on the Land; (III)the subdivision of land;or (iv)environmental protection; or the effect of any violation of these laws,ordinances,or governmental regulations.This Exclusion Ila)does not modify or limit the coverage provided under Covered Risk S. (b)Any governmental police power.This Exclusion 1(b)does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain.This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects,liens,encumbrances,adverse claims,or other matters (a)created,suffered,assumed,or agreed to by the Insured Claimant; (b)not Known to the Company,not recorded in the Public Records at Date of Policy,but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c)resulting in no loss or damage to the Insured Claimant; (d)attaching or created subsequent to Date of Policy(however,this does not modify or limit the coverage provided under Covered Risk 11, 13,or 14);or (e)resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage. 4. Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing- business laws of the state where the Land is situated. 5. Invalidity or Unenforceability in whole or in part of the lien of the Insured Mortgage that apses out of the transaction evidenced by the Insured Mortgage and is based upon usury or any consumer credit protection or truth-In-lending law. 6. Any claim,by reason of the operation of federal bankruptcy,state insolvency,or similar creditors'rights laws,that the transaction creating the lien of the Insured Mortgage,is (a)a fraudulent conveyance or fraudulent transfer,or (b)a preferential transfer for any reason not stated in Covered Risk 13(b)of this policy. 7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the Insured Mortgage in the Public Records.This Exclusion does not modify or limit the coverage provided under Covered Risk 11(b). The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage,the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage: EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage(and the Company will not pay costs,attorneys'fees or expenses)that arise by reason of: 1. (a)Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records;(b)proceedings by a public agency that may result in taxes or assessments,or notices of such proceedings,whether or not shown by the records of such agency or by the Public Records. 2. Any facts,rights,interests,or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 3. Easements,liens or encumbrances,or claims thereof,not shown by the Public Records. 4. Any encroachment,encumbrance,violation,variation,or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. First American Title Order Number: 0625-4108477 Page Number: 13 S. (a)Unpatented mining claims;(b)reservations or exceptions in patents or in Acts authorizing the issuance thereof;(c)water rights,claims or title to water,whether or not the matters excepted under(a),(b),or(c)are shown by the Public Records. 6. Any lien or right to a lien for services,labor or material not shown by the public records. 2006 ALTA OWNER'S POLICY(06-17-06) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy,and the Company will not pay kiss or damage,costs,attorneys' fees,or expenses that arise by reason of: 1. (a)Any law,ordinance,permit,or governmental regulation(including those relating to building and zoning)restricting,regulating, prohibiting,or relating to (i)the occupancy,use,or enjoyment of the Land; (ii)the character,dimensions,or location of any improvement erected on the Land; (iii)the subdivision of land;or (iv)environmental protection; or the effect of any violation of these laws,ordinances,or governmental regulations.This Exclusion 1(a)does not modify or limit the coverage provided under Covered Risk 5. (b)Any governmental police power.This Exclusion 1(b)does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain.This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects,liens,encumbrances,adverse claims,or other matters (a)created,suffered,assumed,or agreed to by the Insured Claimant; (b)not Known to the Company,not recorded in the Public Records at Date of Policy,but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c)resulting in no loss or damage to the Insured Claimant; (d)attaching or created subsequent to Date of Policy(however,this does not modify or limit the coverage provided under Covered Risk 9 or 10);or (e)resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Title. 4. Any claim,by reason of the operation of federal bankruptcy,state insolvency,or similar creditors'rights laws,that the transaction vesting the Title as shown in Schedule A,is (a)a fraudulent conveyance or fraudulent transfer,or (b)a preferential transfer for any reason not stated in Covered Risk 9 of this policy. S. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A. The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage,the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage: EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage(and the Company will not pay costs,attorneys fees or expenses)that arise by reason of: 1. (a)Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records;(b)proceedings by a public agency that may result in taxes or assessments,or notices of such proceedings,whether or not shown by the records of such agency or by the Public Records. 2. Any facts,rights,interests,or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 3. Easements,liens or encumbrances,or claims thereof,not shown by the Public Records. 4. Any encroachment,encumbrance,violation,variation,or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. 5. (a)Unpatented mining claims;(b)reservations or exceptions in patents or in Acts authorizing the issuance thereof;(c)water rights,claims or title to water,whether or not the matters excepted under(a),(b),or(c)are shown by the Public Records. 6. Any lien or right to a lien for services,labor or material not shown by the public records. ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY(07-26-10) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy,and the Company will not pay loss or damage,costs,attorneys' fees,or expenses that arise by reason of: 1. (a)Any law,ordinance,permit,or governmental regulation(including those relating to building and zoning)restricting,regulating, prohibiting,or relating to First American Title Order Number: 0625-4108477 Page Number: 14 (i)the occupancy,use,or enjoyment of the Land; (ii)the character,dimensions,or location of any improvement erected on the Land; (III)the subdivision of land;or (iv)environmental protection; or the effect of any violation of these laws,ordinances,or governmental regulations. This Exclusion 1(a)does not modify or limit the coverage provided under Covered Risk 5,6,13(c),13(d), 14 or 16. (b)Any governmental police power.This Exclusion 1(b)does not modify or limit the coverage provided under Covered Risk 5,6,13(c), 13(d), 14 or 16. 2. Rights of eminent domain.This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects,liens,encumbrances,adverse claims,or other matters (a)created,suffered,assumed,or agreed to by the Insured Claimant; (b)not Known to the Company,not recorded in the Public Records at Date of Policy,but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c)resulting in no loss or damage to the Insured Claimant; (d)attaching or created subsequent to Date of Policy(however,this does not modify or limit the coverage provided under Covered Risk 11, 16,17,18,19,20,21,22,23,24,27 or 28);or (e)resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage. 4. Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing- business laws of the state where the Land is situated. 5. Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured Mortgage and is based upon usury or any consumer credit protection or truth-in-lending law.This Exclusion does not modify or limit the coverage provided in Covered Risk 26. 6. Any claim of Invalidity,unenforceability or lack of priority of the lien of the Insured Mortgage as to Advances or modifications made after the Insured has Knowledge that the vestee shown in Schedule A is no longer the owner of the estate or interest covered by this policy.This Exclusion does not modify or limit the coverage provided in Covered Risk 11. 7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching subsequent to Date of Policy.This Exclusion does not modify or limit the coverage provided in Covered Risk 11(b)or 25. 8. The failure of the residential structure,or any portion of it,to have been constructed before,on or after Date of Policy in accordance with applicable building codes. This Exclusion does not modify or limit the coverage provided in Covered Risk 5 or 6. 9. Any claim,by reason of the operation of federal bankruptcy,state insolvency,or similar creditors'rights laws,that the transaction creating the lien of the Insured Mortgage,is (a)a fraudulent conveyance or fraudulent transfer,or (b)a preferential transfer for any reason not stated in Covered Risk 27(b)of this policy. RrstAmerican Tide Order Number: 0625-4108477 Page Number: 15 Privacy Information We Are committed to Safeguarding Crrsbomer Information In order to better serve your needs now and in Me future,we may ask you to provide us with certain information.We understand that you may be concerned about what we will do with such information-particularly any personal or financial information.We agree Mat you have a right M know how we will utilize Me personal information you provide M us.Therefore,together with our subsidiaries we have adopted Nis Privacy Policy to govern the use and handling of your personal information. Applicability This Privacy Policy govems our use of the information that you provide M us.It does not govern the manner in which we may use Information we have obtained from any other source,such as Information obtained from a public reci or from another person or entity.First American has also adopted broader guidelines that govern our use of personal information regardless of its source. First American cells these guidelines Rs Fair Information Values. Types of Information Depending upon which of our services you are ublinrg,the types of nonpublic personal Information that we may collect Include: • Information we receive from you on applications,forms and in other communications to us,whether in writing,in person,by telephone or any other means; • Information about your bansactims with us,our affiliated companies,or others;and • Informatics m we receive fro ma consumer reporting agency. Use of Information We request information from you for our own legNmate business purposes and not for the berrem of any nonaffiliated party.Therefore,we will not release your information M nonaffiliated parties except(1)as necessary for us M provide the product or service you have requested of us;or(2)as permitted by law.We may,however,store such information indefinitely,including the period after which any customer relationship has ceased.Such information may be used for any internal purpose,such as quality control efforts or customer analysts.We may also Provide all of the types a nonpublic personal information listed above to one or more of our affiliated companies.Such afiliated companies include financial service providers,such as title insurers,property and casualty insurers,and trust and investment advisory companies,or companies involved in real estate services,soon as appraisal companies,home warranty companies and escrow canpames.Furthermore, we may also provide all the information we collect,as described above,to companies Mat perform marketing services on our behalf,on behalf of our affiliated a rripmes or to odor financal institutions with whom we or our affiliated companies have Joint marketing agreements. Founder Lammed, Even 9 you are no longer our customer,our Privacy Policy will continue to apply M you. Confidentiality and Security We will use our bet efforts to ensure that rip unsuthomsl parties have access M any of your information.We restrict access to nonpublic personal information about you to those individuals and implies who need to know that information to provide products or services to you.We will use our best efforts to train and oversee our employees add agents M ensure that your information will be handled responsibly and in accordance with this Pnvacy Policy and First American's Fair Information Values.We currently maintain physical,electronic,and procedural safeguards that comply with federal regulations to guard your nonpublic personal information. Information Obtained Through Our Web Site First American Financial CIXporation is Sensitive to mwac,issues on the Internet.We belie✓e h is important you know how we Veit the mfortnabJn about you we receive on the Internet. In general,you can visit Flat Amedan On its affiliates'Web sites on the World Wide Web without telling us who you are or revealing any information about yourself.Our Web servers collect the domain names,not the e-mail addresses,of visitors.This information is aggregated M measure the number of vists,average time spent on the site,pages viewed and smllar information.First Amman uses this information M measure tat use of our ste and to develop ideas M improve the content of our site There are times,however,when we may need information from you,such as your name and email address.When Information is deeded,we will use our best efforts M let you know at Me time of collection how we will use the personal information. Usually,Me personal information we collect is used only by us to respond M your inquiry,process an order or allow you to access specific account/profile information If you Mouse to share any personal information with us,we will only use It in accordance with the policies outlined above. Business Relationships First American Financial Corpoation's site,and its affiliates'sites may contain links to other Web sites.While we try to link only to stes that share our high standards and respect for privacy,we are not responsible for the content or the privacy padres employed by other sites. Cookies Some of First American's Web sties may make use of"cookie"technology M measure site activity and m cusomim Information M your personal tastes.A cookie is an element of data that a Web site can send M your browser,which may Men sore One cake on your ham drive. 9151anin corn uses stored otoldnS.The gal of this technology is M better serve you when vision our site,save you time when productive Web site e g Y You are here and to provide you with a more meaningful and per erce. Fair Information Values Fairness We consider consumer expdcmirons about their privacy in all our busirosses.We only offer products and services;that assure a favorable balance between consumer benefits and consumer privacy. public Record We believe that an open public record creates significant value for society,enhances consumer choice and ormus consumer opportunity.We actively support an open public record and emphasm its importance and contribution to our economy. Use We believe we should behave responsibly when we use Information about a consumer in our business.We will obey the laws governing the collection,use and dissemination of data. Accuracy We will take reasonable steps M help assure the accuracy of the data we collect,use and disseminate.Where possible,we will take reasonable steps to correct inaccurate information. When,as with Me public Flood,we cannot correct inaccurate Informaton,we will take all reasonable steps to assist consumers in Identifying the source of the erroneous data so that the consumer can secure the required corrections. Education We endeavor to educate the users of our products and services,our employees and others in our industry about the importance of consumer privacy.We will instruct our employees on Our fair information values and on the responsible collection and use of data.We will eMW age others in Our industry M collect and use information In a responsible manner. Security We will maintain appropriate facilities and systems to protect against unauthorized access to and corruption of me data we maintain. Form 50-PRIVACY(8/l/09) Page 1 of 1 Privacy Information(2001-2010 First American Financial Corporation) LIBERTY ESCROW INC. 200 North Sunrise Way,Suite A Palm Springs,CA 92262 (760)322.2050 FAX: (760)322.2157 AMENDED SALE ESCROW INSTRUCTIONS Escrow No.: 24414-KC Kristy J.Cordell Date: August 28,2012 Certified Senior Escrow Officer THIS ESCROW HOLDER IS LIBERTY ESCROW INC.WHICH IS LICENSED BY THE CALIFORNIA DEPARTMENT OF CORPORATIONS LICENSE#9631777 Buyer will hand LIBERTY ESCROW INC.,funds in the amount of 200,000.00 Buyer herein to execute 2 purchase money first and 2nd trust deed loan(s)each in the amount of 245,000.00 _. . (for a total of$490,000.00) Total Consideration $690,000.00 INVe will deliver to you any instruments which this escrow requires shall be executed by me,all of which you are instructed to use provided that on or before September 14,2012,and when you are in a position to obtain a policy of title insurance through First American Title Company,with the usual title company's exceptions,with a liability of$690,000.00(less value of personal property,if any)covering property: LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT"A"AND MADE A PART HEREOF PROPERTY ADDRESS: approximately 2.4 gross acres at the NW comer of Tramway Rd.and North North Palm Canyon Drive,Palm Springs,CA 92262 SHOW TITLE VESTED IN: The City of Palm Springs,a California municipal corporation and Charter City FREE FROM ENCUMBRANCES EXCEPT: (1) All General and special Taxes for the fiscal year 2012 and 2013,including bonds,special assessments and personal property taxes,if any,assessed against former owner,and/or supplemental taxes assessed pursuant to the provisions of Chapter 498,Statutes of 1983 of the State of California. (Change of Ownership will affect the taxes to be paid. A Supplemental Tax Bill will be issued and BUYER accepts all responsibility for all additional taxes due because of said reassessment. TAX BILLS ISSUED AFTER THE CLOSE OF ESCROW SHALL BE HANDLED DIRECTLY BETWEEN BUYERS AND SELLERS.) (2) Bonds and/or assessments of record,if any. (3) Covenants,conditions,restrictions,reservations,rights,rights of way,and easements,and any oil,gas,or mineral reservations now of record,if any. (4) First Deed of Trust to record on Trust Deed prepared by Buyer and Seller outside Counsel and handed to escrow holder for recording of same in the amount of$245,000.00. (5) Second Deed of Trust to record on Trust Deed prepared by Buyer and Seller outside Counsel and handed to escrow holder for recording of same in the amount of$245,000.00. INSTRUCTIONS: A. Buyer and Seller have entered into that certain"Agreement for Purchase and Sale of Real Property and Escrow Instructions dated—,the Agreement,which is attached hereto and made a part hereof. Liberty Escrow,Inc.has agreed to act as escrow agent in connection with same subject only to items 2.1,2.2,3.1,3.2,4,4.1,sub- paragraph(a),(b),4.2,sub-paragraph(a),(b),(c),(d),4.3,5.1,sub-paragraph(a),5.2,sub-paragraph(a),6,6.1, sub-paragraph(a),(b),(c),(d),(a),to,6.2,sub-paragraph(a),(b),6.4,9,9.1,9.2,9.3,9.4,9.5,13.12,13.13, 13.14 of the"Agreement",which are supplemented by these instructions. B. FINANCE:First and Second Deed of Trust to file as part of the purchase price,on forms prepared by Buyer and Seller outside counsel and deposited with escrow holder herein.Terms and conditions of which Buyer and Seller are familiar with,approve and further accept same in it's entirety. Escrow holder shall not be concerned with nor held liable or responsible for the accuracy or contents of said documents. Your only duty as escrow holder is to record each of the(2)Trust Deeds)deposited to this escrow concurrently with the close of escrow. (CONTINUED) 0' Seller's Initials: I Buyer's Initials: ! ✓ Date: August 28,2012 Escrow No.: 24414-KC Page 2 of 7: Additional instructions made a part of previous pages as fully incorporated therein. C. PRELIMINARY TITLE REPORT: Buyer to approve a copy of the Preliminary Title Report,Covenants,Conditions &Restrictions,Easements and all items of record color plotted within 7 days of receipt. Said approval shall not be unreasonably withheld. D. BONDS:. Bands and/or assessments of record if any,are to be paid current by the Seller;amounts not yet due are to be assumed by the Buyer at close of escrow. You are instructed Not to make any interest adjustments for same. E. Buyer and Seller authorize and instruct Escrow Holder to accept and act on signature(s)throughout this escrow in the form of photo copies,e-mail or faxes,as defined in this Escrow as though they were original signature(s),to open escrow and for other purposes. F. ASSEMBLY BILL 512: "GOOD FUNDS LAWS". AS 512 enacts a new Section 12413.1 to the State of California Insurance Code that regulates real estate escrow disbursements by title insurance companies,controlled escrows and underwritten title companies. The Bill requires that checks be deposited by the title company prior to escrow disbursement. THE NEW LAW ESTABLISHED A THREE-TIER SYSTEM TO DETERMINE WHEN DISBURSEMENT MAY OCCUR. 1)Cash and"Wired Funds"may be disbursed on the same day as deposited. 2)Teller's checks,cashier's checks and certified checks may be disbursed on the first business day following the day of deposit. (A teller's check is defined as a check drawn by an insured financial institution against another insured financial institution.) 3)Personal checks,corporate checks and drafts received from title companies(including escrow trust checks) may be disbursed on the day when the item must be made available for withdrawal by depositors under Regulation CC adopted by the Federal Reserve Board of Governors. Until September 1,1990,the hold period on these items is three(3)business days following the date of deposit of local checks and seven(7)business days following the date of deposit of non-local checks;after September 1,1990,these hold periods will be reduced to two(2) business days following the date of deposit for local checks and five(5)business days following date of deposit for non-local checks. Please prepare for delayed disbursement of funds to all recipients at the close of escrow. All parties are aware that NO interest will be paid to recipients of funds from Liberty Escrow Inc.as a result of this delay as outlined under Senate Bill 1550. NO ESCROW WILL RECORD UNTIL THE ABOVE REQUIREMENTS HAVE BEEN MET. NO EXCEPTIONSH G. CLOSING FUNDS: Each party acknowledges that the close of escrow is conditioned on check clearances. Funds to close must be in the form of a Cashier's Check drawn on a bank with clearing house in the State of California OR be wire transfer to Liberty Escrow Inc.Trust Account two(2)days prior to recording of documents. ALL FINAL FUNDS IN EXCESS OF$100,000.00 MUST BE WIRE TRANSFERRED. If you wish to wire transfer US funds to Liberty Escrow Inc.,please use the following format: WIRE TRANSFER INSTRUCTIONS LIBERTY ESCROW INC. Receiving Bank: CITY NATIONAL BANK Specialty Deposits ONE CENTERPOINTE DRIVE,SUITE 160 LA PALMA,CA 90623 Bank Routing Number: 1220-1606-6 Account Name: Liberty Escrow Inc. Account Number: 013-401799 Reference: Escrow No.24414-KC Attn:Kristy J.Cordell THE WIRE TEXT MUST BE EXACTLY AS INDICATED ABOVE. ANY EXTRANEOUS INFORMATION MAY CAUSE UNNECESSARY DELAYS IN CONFIRMING THE RECEIPT OF FUNDS. H. CAL-FIRPTA WITHHOLDING NOTIFICATION REQUIREMENT: Buyer is hereby notified that on certain sales of real property under the withholding provisions of the California Revenue and Taxation Code AS 2065,a Buyer of real property may be required to withhold an amount equal to 3- 1/3%of the sales price from Seller's proceeds unless: 1) The property sales price is less than$100,000;OR 2) The property is the PRINCIPAL RESIDENCE of an individual transferor based on a written certification signed under penalty of perjury;OR 3) The property is transferred to a corporate beneficiary by a foreclosure of a deed in lieu,OR 4) The property transferred by an individual and will be replaced in a like kind exchange,based on a written certification by the transferor or signed under penalty of perjury;OR (CONTINUED) Seller's Initials: / Buyer's Initials: / Date: August 28,2012 Escrow No.: 24414-KC Page 3 of 7: Additional instructions made a part of previous pages as fully incorporated therein. 5) The property is transferred by an individual as an involuntarily conversion and the transferor certifies an intent to acquire replacement property eligible for deferral under Section 1033-of the Internal Revenue Code. 6) The transferor is an individual who certifies under penalty of pe0'ury that the transaction will result in a loss for California income tax purposes. 7) The transferor is a corporation unless immediately after the transfer,the corporation has no permanent place of business in California. A corporation has no permanent place of business if all of the following apply: a) It is not organized an existing under the laws of California. b) It does not qualify with the office of the Secretary of State to transact business in California. c) It does not maintain and staff a permanent office in California. For failure to withhold,the Buyer may become subject to a penalty in the amount equal to the greater of 10%of the amount required to be withheld or five hundred dollars($500.00). For additional information,contact: FRANCHISE TAX BOARD,WITHHOLDING SERVICES AND COMPLIANCE SECTION,P.O.BOX 651,SACRAMENTO,CA 95812-0651,Phone(916)845-4900 or Toll Free at(888)792- 4900. I. FIRPTA: According to Section 1445 of the Internal Revenue Code of 1954,as amended(FIRPTA)the Buyer of said Property has been provided and will acknowledge receipt of an'Affidavit of Disclosure',signed by the Seller, stating under penalty of perjury that Sellers)is,or is not a foreign national. If the Sellers)is(are)a foreign national,the Buyer may have an obligation to withhold 10%of the purchase price from Seller's proceeds,on behalf of the IRS. Buyer's execution of escrow instructions shall be deemed receipt of an'Affidavit of Disclosure'. J. PRORATIONS: Prorate as of Close of Escrow Real Property taxes based on latest tax bill or on amount furnished by title company. (CONTINUED) Seller's Initials: /_ Buyer's Initials: / Date: August 28,2012 Escrow No.: 24414-KC Page 4 of 7: Additional instructions made a part of previous pages as fully incorporated therein. ADDITIONAL ESCROW INSTRUCTIONS AND CONDITIONS 11 You are instructed to deposit all funds received by you with any state or national bank,state or federal savings bank,or state of federal savings and loan association,in trust account in the name of escrow holder,without any liability for Payment of interest. The funds may be withdrawn by you and disbursed according to the instructions of the parties. All deposits made by personal check, cashier's check,certified check or deposit other than cash or wire transfer are subject to clearance and payment by financial institution on which drawn. All disbursements are to be made by check or escrow holder forth the trust account. Neither you nor any of your employees will identify any payee or guarantee signatures of any person or entity at any financial institution. Funds deposited into escrow in the form of a check,draft,or similar instrument will be identified as collected funds when the escrow holders financial institution confines that the funds are available for disbursement. 2. Your duty is to act as escrow holder only and does not commence and escrow shall not be deemed opened until mutual escrow instructions signed by all parties are received by you. Until mutually executed escrow instructions are received,either party may unilaterally revoke these instructions by written request delivered to you and may withdrew any funds,instruments,documents or items previously handed to you. 3. All prorations and adjustments are to be made on the basis of a thirty(30)day month unless otherwise instructed in writing by all parties. For proration purposes,the Buyer will have ownership of the real property which is the subject of this escrow for the entire day,regardless of the hour of recording. The"close of escrow"with reference to prorations,adjustments and all purposes in this escrow shall be the day the instruments of conveyance are recorded or filed with the county recorder. 4. Any funds disbursed during or on the dose of escrow will be issued jointly to the parties designated as payees unless you are instructed otherwise in writing by all designated payees. The funds representing loan and/or sale proceeds will be disbursed jointly to all persons who were the record owners of the real property which is the subject of the escrow. All disbursements of funds and/or delivery of other documents or instruments concerning this escrow will be mailed to the entitled parties by regular first-class mail, postage prepaid,at their respective addresses shown on file. However,at your discretion,you may send funds and/or other instruments or documents by certified or registered mail,federal express,messenger or facsimile machine,in which case the party for whom the delivery was made agrees to pay the costs. The provisions of this paragraph include,but are not limited to,request for demand statements,requests for beneficiary statements,request for homeowners'association statements or any other requests as you may deem necessary for the timely closing of this escrow. You are to instruct the county recorder to mail recorded documents to the entitled parties at their respective addresses. You are to instruct the title company to mail the title policy(s)to the Lenders)or Buyers)as appropriate. S. In addition to other costs and charges set forth in escrow instructions,Seller agrees to pay on demand,whether or not this escrow closes,all expenses and charges incurred by you on Seller's behalf,including,but not limited to,charges for preliminary title reports,title commitments,policies of title insurance,beneficiary statements,beneficiary demands,offset statements,documentary transfer tax stamps,preparation of,notarizing and recording of documents necessary in Sellers behalf,one-half(1/2)of sub-escrow, fee,Seller's escrow fee and other costs as charged. In addition to the other costs and charges set forth in these escrow instructions, Buyer agrees to pay on demand,whether or not this escrow doses,all expenses and charges incurred by you on Buyers behalf, including,but not limited to,recording fees,preparation of notarizing and recording trust deed(s)and other documents on Buyers behalf,new loan charges,existing loan assumption transfer fees,one-haff(1/2)of sub-escrow fees,Lenders pol.cy of title insurance, fire insurance premiums,Buyer's escrow fee and other costs as charged. 6. NOTWITHSTANDING ANY PROVISIONS TO THE CONTRARY CONTAINED IN THESE ESCROW INSTRUCTIONS OR SUPPLEMENTS OR AMENDMENTS,ESCROW HOLDER SHALL NOT BE RESPONSIBLE FOR THE SUFFICIENCY,VALIDITY OR CORRECTNESS OF ANY SIGNATURE OF ANY PRINCIPAL TO THIS ESCROW OR ANY THIRD PARTY TO THIS ESCROW,NOR FOR THE SUFFICIENCY OR CORRECTNESS AS TO FORM,MANNER OF EXECUTION OR VALIDITY OF ANY DOCUMENTS DEPOSITED IN THIS ESCROW,NOR AS TO THE IDENTITY,AUTHORITY,OR RIGHT OF ANY PERSONS EXECUTING THE SAME,EITHER AS TO DOCUMENTS OF RECORD OR THOSE HANDLED IN THIS ESCROW. SHOULD THE PARTIES DESIRE THAT YOU VERIFY THE SIGNATURES ON INSTRUCTIONS RECEIVED BY YOU,THE PARTY(IES)WITHOUT FURTHER INSTRUCTIONS AUTHORIZED THE PAYMENT OF AN ESCROW FEE COMPUTED AT TWO TIMES YOUR REGULAR ESCROW FEE AND WILL DELIVER SEPARATE WRITTEN ESCROW INSTRUCTIONS SPECIFICALLY INSTRUCTING YOU TO DO SO. 7. You shall not be responsible for the following: (1) the sufficiency or correctness as to form,manner of execution or validity of any documents deposited in this escrow;(2)the identity,authority,or right of any person executing the same,either as to documents of record of those handled in this escrow;or(3)the failure of any party to comply with any of the provisions of any agreement,contract or other instrument fled or deposited in this escrow or referred to in these escrow instructions. Your duties shall be limited to the safekeeping of money and documents received by you as escrow holder and for the disposition in compliance with the written instructions accepted by you in this escrow. You shall not be required to lake any action regarding the collection,maturity,or apparent outlaw of any obligations deposited with you unless otherwise instructed in writing. 8. You are not to be held responsible in any way whatsoever for any personal property tax which may be assessed against any former or present owner of the subject property described in these escrow instructions,nor for the corporation or license tax of any corporation as a former or present owner. 9. If it is necessary,proper or convenient for the consummation of this escrow,you are authorized to deposit or have deposited funds or documents,or both,handed you under these escrow instructions with any duly authorized sub-escrow agent,including,but not limited to,any bank,trust company,title insurance company,title company,savings and loan association,or licensed escrow, agent,subject to your order at or before close of escrow in connection with closing this escrow. Any such deposit shall be deemed a deposit under the meaning of these escrow,instructions. 10. The parties to this escrow have satisfied themselves outside of escrow that the transaction covered by this escrow is not in violation of the Subdivision Map Act or any law regulating land division,zoning ordinances or building restrictions which may affect the land or improvements that are the subject of this escrow. You,as escrow holder,are relieved of all responsibility and liability in connection with such laws,ordinances,restrictions or regulations and are not to be concerned with any of their enforcement. 11. If any form of Purchase Agreement or amendment or supplement(collectively"Purchase Agreement")is deposited in this escrow,it is understood that such document shall be effective only as between the parties signing the Purchase Agreement. You,as escrow holder,are not to be concerned with the tens of any Purchase Agreement and are relieved of all responsibility and liability for the enforcement of its terms. Your only duty is to comply with the instructions set forth in the escrow instructions. You are not (CONTINUED) /� Seller's Initials: / Buyer's Initials: /__ez Date: August 28,2012 Escrow No.: 24414-KC Page 5 of 7: Additional instructions made a part of previous pages as fully incorporated therein. responsible for interpreting or acting on any provision of any Purchase Agreement on which these escrow instructions may be based and you shall not rely on any knowledge or understanding you may have of any such Purchase Agreement in ascertaining or performing your duties as escrow holder. In connection with any loan transaction,you are authorized to deliver a copy of any Purchase Agreement,supplement or amendment and a copy of all escrow instructions,supplements or amendments to the Lender. 12. You are not to be concerned with the giving of any disclosures required by federal or state law,including,but not limited to, Real Estate Settlement Procedures Act,Regulation Z-Truth-In-Lending,condition of the subject property or other warnings,or any other warranties,express or implied. 13. Except as set forth in Paragraph 14 below,you shall not be responsible and you are released from and shall have no liability, obligation or responsibility with respect to withholding of funds under§1445 of the Internal Revenue Code of 1954,as amended, commonly know as the Foreign Investment in Real Property Tax Act("FIRPTA")or the Calfornia FIRPTA under 1118805,at seq, of the California Revenue 8 Taxation Code("CAL-FIRPTA"). Advice about FIRPTA or CAL-FIRPTA its requirements,a determination whether the Sellerttransferor is a foreign perm,as defined,or obtaining a non-foreign affidavit or exemption from withholding or other information concerning compliance or non-compliance will not be given to the parties by the escrow holder. The parties are advised to seek independent legal,financial and lax counsel from their respective legal,financial and tax advisors. 14. The parties are aware that California law effective January 1,1991 requires you to withhold a sum equal to 31/3%of the sale price under certain conditions where Seller does not reside in the State of California or funds are transmitted outside of California. The parties agree to prepare and deposit such other and further documents or instruments as are necessary for you to comply with this instruction and California state law. The parties herewith acknowledge receipt of the Notification of the California Franchise Tax Board embodying the California state law commonly known as CAL-FIRPTA as stated in California Revenue and Taxation Code §§18805 and 26131, 15. You are authorized to deliver copies of all escrow instructions,supplements and amendments,estimated and final closing statements,preliminary title reports,and notices of cancellation,it any,to the real estate broker(s),real estate sales agenl(s), Lender(s),Lender's agents)and/or attomeys(s)for the parties,upon the parties'oral or written request. You shall not incur any liability to the parties for delivery of the copies. 16. You shall make no physical inspection of the real property or personal property described in any instrument deposited in or which is the subject of this escrow. You have made no representations or warranties concerning any such real property or personal property and are not to be concerned with nor liable for the conditions of real property or personal property. 17. The parties authorize the recordation of any instrument delivered through this escrow if necessary or proper for the issuance of the required policy of life insurance or for the closing of this escrow. Funds,instructions or instruments received in this escrow may be delivered to,or deposited with any title insurance company of title company to comply with the terms and conditions of this escrow. 18. You are authorized to deduct from Sellers net proceeds or Buyers net proceeds any amount which either Seller or Buyer may owe you in any other matter or transaction. You are authorized to charge and the parties agree to pay additional escrow fees for extraordinary services not within the range of customary escrow processing,including,but not limited to,the verification of signatories to escrow instructions. 19. You are to use your usual document forms or the usual forms of any title insurance company or title company and in our instructions insert dates and terms on the instruments if incomplete when executed. 20. If the date by which Buyers or Sellers performances are due shall be other than your regular business day,such performances shall be due on your next succeeding business day. 21. You shall conduct no lien or title search of personal property regarding the sale or transfer of any personal property through this escrow. Should the pady(ies)desire that you conduct a lien or title search of personal property,the par y(ies)requesting the same shall deliver separate and specific written escrow instructions to you along with an agreement to pay your additional escrow fees. 22. You shall not be responsible in any way whatsoever nor are you to be concerned with any question of usury in any loan or encumbrance,whether new or of record,which may arise during the processing of this escrow. 23. The parties agree to deliver to you all documents,instruments,escrow instructions and funds required to process and dose this escrow in accordance with its terms. 24. You are instructed to provide title to the subject real property in the condition identified in the escrow instructions by the parties. You are not responsible for the contents or accuracy of any beneficiary demands and/or beneficiary statements delivered to you by the existing lienholder. You are not required to submit any such benefdary statement and/or beneficiary demand to the parties for approval before the close of escrow unless expressly instructed to do so in writing. Should the party(ies)desire to pre-approve any such beneficiary statement and/or beneficiary demand,the party(ies)requesting the same shall deliver separate and speck written escrow instructions to you. 25. You are not to be responsible in any way whatsoever nor to be concerned with the terms of any new loan or the content of any loan documents obtained by any party in connection with this escrow except to order such loan documents into the escrow file, transmit the loan documents to Buyer for execution and transmit the executed loan documents to Lender. The parties understand and agree that you are not involved nor concerned with the approval and/or processing of any loan or the contents and effect of loan documents prepared by a Lender. 26. The parties agree to complete and deliver to you Statement of Information as required by the title insurance company or title company. 27. The Federal Tax Reform Act of 1986,as amended,and the California Revenue 8 Taxation Code,require certain transactions to be reported to the Internal Revenue Service and the California State Franchise Tax Board. In those transactions Seller will furnish a correct tax identification number to you so you can report this transaction as required by law. Seller understands that Seller may be subject to civil or criminal penalties for failure to do so. 28. The parties expressly indemnify and hold you harmless against third-party claims for any fees,costs or expenses where you have acted in good faith,with reasonable care and prudence and/or in compliance with these escrow instructions. (CONTINUED) Seller's Initials: /_ Buyer's Initials: / c-e Date: August 28,2012 Escrow No.: 24414-KC Page 6 of 7: Additional instructions made a part of previous pages as fully incorporated therein. 29. The parties agree that you have the responsibilities of an escrow holder only and there are no other legal relationships established in the terms and conditions of the escrow instructions. In connection with this escrow: (1)you shall have no duty or responsibility of notifying any of the parties to this escrow of any sale,resale,loan,exchange or other transaction involving any of the subject real property or personal property;(2)you shall have no responsibility or duty to disclose any benefit,including,but not limited to financial gain,realized by any person,firm or corporation involving any of the subject real property or personal property;and(3)you shall have no responsibility or duty to disclose any profit realized by any person,firm or corporation including,but not limited to,any real estate broker,real estate sales agent and/or a party to any other escrow,in connection therewith,although such other transaction maybe handled by you in this escrow or in another escrow transaction. If,however,you are instructed in writing by any party,Lender or other entitled person to disclose any sale,resale,loan,exchange or other transaction involving any of the subject real property or personal property or any profit realized by any person,firm or corporation to any party to this escrow,you shall do so without incurring any liability to any party. You shall not be liable for any of your acts or omissions done in good faith nor for any claims,demands, losses or damages made or suffered by any party to this escrow,excepting such as may arise through or be caused by you willful neglect or gross misconduct. - 30. Buyer acknowledges that pursuant to the California Revenue&Taxation Code a Change of Ownership form is required by the county recorder to be completed and affixed to any documents submitted for recording which evidence a conveyance of title. The Change of Ownership form shall be furnished to Buyer by you for Buyer's completion and execution. Buyer is aware that if Buyer does not complete the form in full,sign and return it to you before closing,a penalty will be assessed by the county recorder. If the Change of Ownership form is not fled after the close of escrow within the time limits set forth by the county recorder,severe additional penalties will be assessed against the Buyer. FOR INFORMATION AND ASSISTANCE IN COMPLETING THE CHANGE OF OWNERSHIP FORM,BUYER MAY CONTACT THE COUNTY RECORDER AND ASSESSORS OFFICES IN THE COUNTY IN WHICH THE SUBJECT PROPERTY IS LOCATED. 31. Notwithstanding any other provisions in these escrow instructions and in addition to other fees and cost to which you may be entitled,the parties,jointly and severally,agree that if this escrow is not consummated within ninety(90)days of the dale set for closing,you are instructed to,and without further instructions,withhold your escrow hold open fee of$50.00 per month from the funds on deposes with you regardless of who deposited such funds. The parties,jointly and severally,further agree that if you,for any reason,required to hold funds after close of escrow,you are instructed to,and without further instructions,withhold an escrow fee of $50.00 per month from the funds on deposit with you regardless of who deposited such funds. The parties irrevocably instruct you to automatically cancel this file without further instructions when all funds on deposit have been disbursed. 32. Your escrow holder agency shall terminate six(6)months following date last set for close of escrow and shall be subject to earlier termination by receipt by you of mutually executed cencellabon instructions. If this escrow was not dosed or cancelled within the described six(6)month period,you shall have no further obligation as escrow holder except to disburse funds and documents pursuant to written escrow instructions and to interplead or otherwise dispose of funds and documents in accordance with a validly issued and validly served order from a wort of competent jurisdiction. If the conditions of this escrow have not been complied with at the expiration date in these escrow instructions,you are instructed to complete the conditions at the earliest possible date,unless Buyer or Seller have made written demand upon you for the return of the funds and/or instruments deposited by Buyer or Seller and/or for cancellation of this escrow. Should demands be made upon you,you may withhold and stop all further proceedings in this escrow without liability for interest on funds held or for damages until mutual cancellation instructions signed by all parties shall have been deposited with you. The parties,jointly and severally,agree that if this escrow cancels or is otherwise terminated and not closed,the parties shall pay for any cost and expenses which you have incurred or have become obligated for under these escrow instructions, including,but not limited to,attorneys'fees,arbitration fees and costs and reasonable escrow fees for the services rendered by you, the parties agree that such cost and expenses shall be paid and deposited in escrow before any cancellation or other termination of this escrow is effective. The parties agree that said charges for expenses,costs,and fees may be apportioned between Buyer and Seller in a manner which,in your sole discretion,you consider equitable,and that your decision will be binding and conclusive upon the parties. Upon receipt of mutual cancellation instructions of a final order or judgement of a court of competent jurisdiction with accompanying writs of execution,levies or gamishments,you are instructed to disburse the escrow funds and instruments in accordance with such cancellation instructions,order or judgment and accompanying writ and this escrow shall,without further notice, be considered terminated and cancelled. - 33. The parties shall cooperate with you in carrying out the escrow instruction they deposit with you and completing this escrow. The parties shall deposit into escrow,upon request,any additional funds,instruments,documents,instructions,authorizations,or other items that are reasonably necessary to enable you to comply with demands made on you by third parties,to secure policies of title insurance,or to otherwise carry out the terms of their instructions and close this escrow. If conflicting demands or notices are made or served upon you or any controversy arises between the parties or with any third person arising out of or relating to this escrow,you shall have the absolute right to withhold and stop all further proceedings in,and in performance of,this escrow until you receive written notification satisfactory to you of the settlement of the controversy by written agreement of the parties,or by the final order or judgement of a court of competent jurisdiction. All of the parties to this escrow,jointly and severally,promise to pay promptly on demand,as well as to indemnify you and to hold you harmless from and against all administrative governmental investigation,audit and legal fees,litigation and interpleader costs,damages,judgments,attomeys'fees,arbitration costs and fees,expenses,obligations and liabilities of every kind(collectively"costs")which in good faith you may incur or suffer in connection with or arising out of this escrow,whether said costs arise during the performance of or subsequent to this escrow,directly or indirectly,and whether at trial,on appeal,in administrative action,or in an arbitration. You are given a lien upon all the rights,titles and interests of the parties and all escrow papers and other property and monies deposited into this escrow to protect your rights and to indemnify and reimburse you. If the parties do not pay any fees,costs or expenses due you under the escrow instructions or do not pay for costs and attomeys'fees incurred In any litigation,administrative action and/or arbitration,on demand,they each agree to pay a reasonable fee for any attorney services which may be required to collect such fees or expenses,whether attorneys'fees are incurred before trial,at trial,on appeal or in arbitration. 34. ALL NOTICES,DEMANDS AND INSTRUCTIONS MUST BE IN WRITING. No notice,demand,instruction,amendment, supplement or modification of these escrow instructions shall be of any effect in this escrow until delivered in writing to you and mutually executed by all parties. AS SET FORTH ABOVE,YOU HAVE NO DUTY TO AND SHALL NOT VERIFY THE SIGNATURES OF ANY PARTIES OF NON-PARTIES UNLESS FURTHER WRITTEN ESCROW INSTRUCTIONS TO DO SO ARE RECEIVED AND THE ADDITIONAL ESCROW FEES ARE DEPOSITED. Any purported oral instruction,amendment,supplement,modification,notice or demand deposited with you by the parties or either of them shall be ineffective and invalid. You are to be concerned only with the directives expressly set forth in the escrow instructions,supplements and amendments thereto,and are not to be concerned with nor liable for items designated as"memorandum items"in the escrow,instructions. 35. These escrow instructions may be executed in counterparts,each of which shall be deemed an original regardless of the date (CONTINUED) Seller's Initials: / Buyer's Initials: V Date: August 28,2012 Escrow No.: 24414-KC Page 7 of 7: Additional instructions made a part of previous pages as fully incorporated therein. of its exec Won and delivery. All such counterparts together shall constitute the same document. 36. If any check submitted to you is dishonored upon presentment for payment,you are authorized to notify all parties to the within escrow,their respective real estate brokers)and real estate agent(s)and any other person or entity you deem in your sole discretion necessary to notify. 37. You are authorized to accept oral instructions from the parties'real estate brokers),real estate agent(s),Lenders)or Lender's agents)concerning the preparation of escrow instructions,amendments or supplements. However,you are not to act upon any instructions so delivered until you have received the same in writing signed by all parties to this escrow. 38. In these escrow instructions,whether the context so requires,the masculine gender includes the feminine and/or neuter and the singular number includes the plural. 39. The parties acknowledge and understand that you,as escrow holder,are not authorized to practice the law nor do you give financial advice. The parties are advised to seek legal and financial counsel and advice concerning the effect of these escrow instructions. The parties acknowledge that no representations are made by you above the legal sufficiency,legal consequences, financial effects or tax consequences of the Within escrow transaction. 4o. You are authorized to destroy or otherwise dispose of any and all documents,papers,escrow instructions,correspondence and records or other material constituting or pertaining to this escrow at any time after five(5)years from the date of: (1)the close of escrow;(2)the date of cancellation;or(3)the date of the last activity without liability and wihout further notice to the parties. 41. The parties agree to release you from any and all liability of any kind or nature and to indemnify you from any loss,damages, claims,judgments or costs of any kind or nature resulting from or related to the release or discharge of hazardous or toxic wastes on the subject property Whether it occurred in the past or present or may occur in the future which release or discharge is in violation of law,in excess of any state and federal standards,permit requirements and/or disclosure requirements existing at this time or which may exist at a future time. The parties represent that they made their own assessment of the condition of the subject property and have not relied on any of your representations in making the assessment. The parties are advised to seek independent legal and technical environmental expert advice in assessing the risks associated with potential hazardous or toxic wastes. 42. You are instructed to take notice of all information received by you on your company's facsimile machine. To close this escrow we each agree to provide you with executed original documents when,in your sole discretion,you request their delivery to you. 43. The parties signatures on alt escrow instructions and instruments pertaining to the within escrow indicates their unconditional acceptance and approval of same and you are entitled to rely on the parties execution. We jointly and severally,acknowledge receipt of a complete copy of the within escrow instructions and by our signatures set forth below,acknowledge that we have read and understand and agree to the same in their entirety. ALL PARTIES TO THIS ESCROW ACKNOWLEDGE THAT LIBERTY ESCROW INC.DOES NOT PROVIDE LEGAL ADVICE NOR HAS IT MADE ANY INVESTIGATION,REPRESENTATIONS OR ASSURANCES WHATSOEVER REGARDING THE LEGAL ASPECTS OR COMPLIANCE OF THIS TRANSACTION WITH ANY TAX,SECURITIES OR ANY OTHER STATE OR FEDERAL LAWS, IT IS RECOMMENDED THAT THE PARTIES OBTAIN INDEPENDENT LEGAL COUNSEL AS TO SUCH MATTERS. SELLERS: BUYERS: Stephen C.Nichols and Sarah J.Benson,Trustees of the The City of Palm Springs,a California municipal corporation Benson-Nichols Trust of 2003 d Charter City BY: By: .Stephen C.Nichols,Trustee David H.Ready, apager BY: Sarah J.Benson,Trustee APPROVED BY Cli f COUNCIL 21. Aball Chino Cienega Foundation,a California Public Benefit ti6aa Corporation By. ATTEST: Stephen C.Nichols,President By: — z 11 Sarah J.Benson,Secretary ity Clerk —�I( CURRENT ADDRESS: CURRENT ADDRESS: 901 N.Palm Canyon Drive Suite 200 Palm Springs CA P.O.Box 2743,Palm Springs CA 92263 92262 Telephone: Telephone: LIBERTY r ESCROW INC. 200 North Sunrise Way,Suite A Palm Springs,CA 92262 (760)322-2050 FAX: (760)322.2157 BUYER'S ESTIMATED CLOSING COSTS PROPERTY: approximately 2.4 gross acres at the DATE: September 6,2012 NW corner of Tramway Rd.and North North Palm Canyon Drive Palm Springs,CA 92262 CLOSING DATE: September 11,2012 BUYER: The City of Palm Springs,a California ESCROW NO.: 24414-KC municipal corporation and Charter City FINANCIAL CONSIDERATION DEBITS CREDITS Total Consideration 690,000.00 New 1st Trust Deed-Chino Cienega Foundation,a California 245,000.00 public benefit corporation, as to an undivided 50.0000%interest and Stephen C.Nichols and Sarah J.Benson,Trustees of the Benson-Nichols Trust of 2003,as to an undivided 50.0000 interest New 2nd Trust Deed- 245,000.00 P RORATIONS/ADJUSTMENTS Taxes at$9489.79/semi-annually from 07/01/2012 to 09/11/2012 3,690.47 TITLE/TAXES/RECORDING CHARGES-First American Title Company ALTA Loan Policy 100.00 Recording Grant Deed 50.00 Recording Trust Deed 100.00 ESCROW CHARGES-Liberty Escrow Inc. Escrow Fee 1,630.00 Funds held for final audit 100.00 Funds required 198,289.53 TOTAL $ 691,980.00 $ 691,980.00 THIS IS AN ESTIMATE ONLY AND FIGURES ARE SUBJECT TO CHANGE The City of Palm Springs,a Califomia municipal corporation and Charter City APPROVED BY CITY COUNCIL ----� David H.Ready, anager ATTEST: OY Clerk DEED OF TRUST Recording requested by, and when recorded mail to: Stephen C. Nichols&Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 901 North Palm Canyon Drive,Suite 200 Palm Springs, CA 92262 Attn:Steve Nichols,Trustee INSTRUCTIONS TO COUNTY RECORDER: Index this instrument as (i)a Deed of Trust,and - (ii)a Fixture Filing Space above for Recorder's Use DEED OF TRUST AND ASSIGNMENT OF RENTS This DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is entered into between the CITY OF PALM SPRINGS, a municipal corporation and California Charter City, whose principal executive office is at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm Springs, California 92263 (the"Trustor"), in favor of First American Title Company Title Company, whose address is 323 Court Street, San Bernardino, California 92401 (the "Trustee"), for the benefit of Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003, located at 901 North Palm Canyon Drive, Suite 200, Palm Springs, CA 92262, (the"Beneficiary"). THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO THE TRUSTEE, in trust, with the power of sale, the real property in the City of Palm Springs, Riverside County, California, more particularly described in Exhibit A attached hereto and made part hereof by reference(the"Property"), together with: (i) All tenements, hereditaments and appurtenances of or to the Property, including without limitation all easements and rights used in connection therewith or as a means of access thereto, all right, title and interest of the Trustor, now owned or hereafter acquired, in any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys, strips and other areas of land adjacent to or used in connection with the Property; (ii) All oil and gas or other mineral rights in or pertaining to the Property and all royalty, leasehold and other rights of the Trustor pertaining thereto; - 1 - (iii) All water rights pertaining to the Property and shares of stock evidencing the same, and all deposits made with or other security given to utility companies by the Trustor with respect to the Property; (iv) The rents, issues and profits thereof, subject, however, to the right, power and authority of Trustor to collect and apply such rents, issues and profits and set forth in this Deed of Trust; (v) All buildings and improvements of every kind and description now or hereafter erected or placed on the Property, and all fixtures thereon, including, but not limited to, all gas and electric fixtures, engines and machinery, radiators, heaters, furnaces, heating equipment, laundry equipment, steam and hot water boilers, stoves, ranges, elevators and motors, bath tubs, sinks,water closets, basins, pipes,faucets and other plumbing and heating fixtures, mantels, cabinets, refrigeration plant and refrigerators, whether mechanical or otherwise, cooking apparatus and appurtenances, and all shades, awnings, screens, blinds and other furnishings, it being hereby agreed that all such fixtures and furnishings shall to the extent permitted by law be deemed permanently affixed to and a part of the realty; (vi) All building materials and equipment now or hereafter delivered to the Property and intended to be installed thereon. Said real property and personal property described above,together with appurtenances, are referred to collectively in this Deed of Trust as the"Collateral." FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS: (a) Payment to the Beneficiary of an indebtedness in the principal amount of Two Hundred Forty Five Thousand Dollars ($245,000.00), evidenced by a promissory note executed by the Trustor and payable to the order of the Beneficiary, bearing the same date as this Deed of Trust, and any and all modifications, extensions or renewals thereof or substitutions therefor(the "Note'), and performance and satisfaction of each and all other obligations of the Trustor under the Note; (b) Performance of every obligation or Trustor in this Deed of Trust, the Note, the Agreement for Purchase and Sale between Beneficiary and Trustor related to the Property(the"Agreement'); and (c) Payment of all sums, if any, and interest thereon that may hereafter be loaned or advanced by the Beneficiary to or for the benefit of the Trustor or to its successors, transferees and assigns, made to the Trustor while the Trustor is the owner of record of fee title to the Property, or any portion thereof, or to the successors, transferees or assigns of the Trustor while they are the owners of record of such fee title, and evidenced by one or more notes or written instruments which recite that they are secured by this Deed of Trust. -2- TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR COVENANTS AND AGREES AS FOLLOWS: 1. The Trustor shall not use or permit the use of any of the Collateral for any purpose other than the use for which it was intended at the time this Deed of Trust was executed, as provided in the Agreement. 2. Upon default under this Deed of Trust or the Note (following delivery of notice and expiration of the cure period, if any, provided therein), the Beneficiary, at its option, may declare the whole of the obligations and sums secured hereby to be immediately due and payable. 3. The person(s)or entity(ies)who have executed this Deed of Trust are fully authorized, and have obtained any and all written authorizations, approvals or consents necessary,to bind the Trustor to this Deed of Trust. 4. All rents, profits and income from the Collateral covered by this Deed of Trust are hereby assigned to the Beneficiary for the purpose of discharging the obligations hereby secured. However, the Trustor shall be permitted, so long as no default exists hereunder or under the Note, to collect such rents, profits and income for use consistent with the provisions of the Agreement. 5. Upon default hereunder or under the Note(following delivery of notice and expiration of the cure period, if any, provided herein or therein), for the purpose of protecting its interests hereunder, the Beneficiary will be entitled to the appointment by a court having jurisdiction, without further notice and without regard to adequacy of any security for the indebtedness secured hereby, of a receiver to take possession of and protect the Collateral described herein and operate same and collect the rents, profits and income therefrom. The entering upon and taking possession of the Property or other Collateral by such receiver, the collection of such rents, profits and income and the application thereof shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. 6. The Trustor, at its sole cost and expense, shall provide and maintain on the entire Property, including all buildings and improvements thereon: (ii) self insurance or a policy of commercial general liability insurance that includes contractual, products and completed operations coverages, bodily injury and property damage liability insurance with combined single limits of not less than $1,000,000 per occurrence; and (iii) such other insurance as may be reasonably required by the Beneficiary, in each case in such amounts, in such manner and with such companies as the Beneficiary and Trustor may reasonably approve. Upon request by the Beneficiary, the Trustor immediately shall deposit with the Beneficiary certificates evidencing such policies. 7. The Trustor shall pay: (i) at least ten days before delinquency, all taxes and assessments affecting the Collateral; (ii)when due, all encumbrances, charges and liens, with interest, on the Collateral or any part thereof which appear to be prior or -3 - superior hereto; and (iii) all costs, fees and expenses of the Trustee or the Beneficiary reasonably incurred in connection with the trusts created under this Deed of Trust. 8. The Trustor shall: (i) keep the Collateral in good condition and repair; (ii) complete or restore promptly and in good and workmanlike manner the buildings and improvements and any other building or improvement which may be constructed, damaged or destroyed thereon; (iii) pay when due all claims for labor performed and materials furnished therefore; (iv) comply in all material respects with all laws affecting the Collateral or requiring any alterations or improvements to be made thereon; (v) not commit or permit waste of or-on the Collateral; and (vi) not commit, suffer or permit any act upon the Property in violation of law and/or any covenants, conditions or restrictions affecting the Collateral. 9. The Trustor shall appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee, and shall pay all costs and expenses, including cost of evidence of title and reasonable attorneys'fees, in any such action or proceeding in which the Beneficiary or the Trustee may appear, or in any suit brought by the Beneficiary to foreclose this Deed of Trust. Notwithstanding the preceding sentence, in any action between the Trustor on the one hand and the Trustee and/or Beneficiary on the other, the prevailing party is entitled to attorneys'fees. 10. Should the Trustor fail to make any payment or do any act as herein provided, then the Beneficiary or the Trustee, without obligation to do so, and following notice to or demand on the Trustor, and without releasing the Trustor from any obligation hereof: (i) may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, the Beneficiary or the Trustee being authorized to enter on the Property for such purposes; (ii) may commence, appear in and/or defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee; (iii) may pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto (except for the deeds of trust, encumbrances and liens securing the Construction/Permanent Financing Loan(s) and the Agency Loan, as such terms are defined below); and (iv) in exercising any such powers, may pay necessary expenses, employ legal counsel and pay such counsel's reasonable fees. All such amounts paid by the Beneficiary or the Trustee hereunder shall be added to the obligations secured by this Deed of Trust. 11. The Beneficiary shall have the right, but not the obligation, to pay when due fire or other insurance premiums required hereunder if the Trustor fails to make such payments. All such amounts paid by the Beneficiary hereunder shall be added to the obligations secured by this Deed of Trust. 12. The Trustor shall pay immediately upon demand all sums so reasonably expended by the Beneficiary or the Trustee under this Deed of Trust, with interest from date of expenditure at the legal rate. -4- 13. If the Trustor fails to pay any amount required by the Note or this Deed of Trust when due and payable, or fails to perform all other covenants, conditions and agreements of the Note, this Deed of Trust or the Agreement (following delivery of notice and expiration of the cure period, if any, provided therein), the amount of the Note, including unpaid principal and late charges, and all other charges and amounts required by the Note and this Deed of Trust shall, at the option of the Beneficiary, become immediately due and payable. This shall be in addition to and without limitation on any other remedy or right available to the Beneficiary for such failure. 14. The Trustor shall not voluntarily create or permit to be created against the Collateral any lien or liens except as specifically permitted by this Deed of Trust or otherwise authorized by the Beneficiary. The Trustor shall keep and maintain the Collateral free from the claims of all persons supplying labor or materials who will enter into the construction, rehabilitation, renovation or repair of any and all buildings or improvements now existing or to be erected on the Property. 15. By accepting payment of any sum secured by this Deed of Trust after its due date or by accepting partial payment of any such sum, the Beneficiary does not waive its right either to require prompt payment when due of all other sums so secured or to declare default for the Trustor s failure to pay. 16. If the Trustor, without the prior written consent of the Beneficiary: (1) agrees to or actually sells, conveys, transfers or disposes of the Collateral or any interest therein or portion thereof, or (ii) assigns or delegates any right or obligation under the Agreement, the Note or this Deed of Trust, then all amounts secured by this Deed of Trust may be declared immediately due and payable, at the option of the Beneficiary. The Beneficiary shall not unreasonably withhold its consent to any such transaction. The Beneficiary's consent to one transaction of this type shall not be a waiver of the right to require consent to future or successive transactions. 17. As further security for the full and complete performance of each and every obligation, covenant, agreement and duty of the Trustor contained herein or in the Note, the Trustor hereby grants and conveys to the Beneficiary a security interest in and lien on all of the Collateral. This Deed of Trust shall serve as a security agreement and financing statement created pursuant to the California Commercial Code, and the Beneficiary will have and may exercise all rights, remedies and powers of a secured party under the California Commercial Code. Further, this Deed of Trust is filed as a fixture filing pursuant to the California Commercial Code and other applicable law, and covers goods which are or are to become fixtures. 18. Should the Property, the buildings or improvements thereon, or any part of any of them be taken or damaged by reason of any public improvement or condemnation proceeding, or damaged by fire or earthquake or in any other manner, the Beneficiary will be entitled, to all of the Trustor's interest in compensation, awards and other payments or relief therefor; and, following the occurrence of a default as -5- defined in the Note, the Beneficiary shall be entitled, jointly with the Trustor, at the Beneficiary's option, to commence, appear in and prosecute in its own name, any action or proceeding, or to make any compromise or settlement, in connection with such taking or damage. All such compensation, awards, damages, rights of action and proceeds, including the proceeds of any fire and other insurance affecting the Property or the buildings or improvements thereon, are hereby assigned to the Beneficiary. After deducting therefrom all its expenses, including reasonable attorneys' fees, and if there has not occurred a default under the Note, the Beneficiary shall apply all such proceeds to restoring the Property or the buildings or improvements thereon, or if there has been such default, or if the Trustor determines not to rebuild, the Beneficiary shall retain the proceeds to the extent of the amount due under the Note and any amounts due under this Deed of Trust. Any balance of such proceeds still remaining shall be disbursed by the Beneficiary to the Trustor. 19. If the Trustor fails to perform any material covenant or agreement in this Deed of Trust or the Agreement, or if a default occurs under the Note, the Beneficiary may declare all obligations and sums secured hereby immediately due and payable by delivery to the Trustee of written declaration of default and demand for sale and written notice of default and of election to cause the Collateral to be sold, which notice the Trustee shall cause to be duly filed for record, and the Beneficiary may foreclose this Deed of Trust; provided, however that the Trustor shall not be deemed to be in default hereunder for failure to make any payment when due or for failure to perform any other covenant or agreement contained herein until thirty(30)days after written notice of such failure is given to the Trustor and Trustor is afforded a reasonable opportunity to cure the default. The Beneficiary shall also deposit with the Trustee this Deed of Trust, the Note and all other documents evidencing the obligations or sums secured hereby. 20. After the lapse of such time as may then be required by law following the recordation of the notice of default, and notice of sale having been given as then required by law, the Trustee, without demand on the Trustor, shall sell the Property at the time and place fixed by the Trustee in the notice of sale, either as a whole or in separate parcels, 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 time of sale. The Trustee may postpone sale of all or any portion of the Property by public announcement at the time and place of sale, and from time to time thereafter may further postpone the sale by public announcement at the time fixed by the preceding postponement. The Trustee shall deliver to the purchaser its deed conveying fee title to the Property or portion thereof so sold, but without any covenant or warranty, express or implied. The recitals in the Trustee's deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including the Trustor, the Trustee and the Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds of the sale to payment of: (i) the expenses of the sale, together with the reasonable expenses of the trust created by this Deed of Trust, including reasonable Trustee's fees and attorneys' fees for conducting the sale, and the actual cost of publishing, recording, mailing and posting notice of the sale; (ii) the cost of any search and/or other evidence of title procedure in connection with the sale and of revenue stamps on the Trustee's deed; (iii) all sums -6- expended under the terms hereof not then repaid,with accrued interest at the legal rate; (iv) all other sums then secured hereby; and (v) the remainder, if any, to the person or persons legally entitled thereto. 21. The Beneficiary may from time to time substitute a successor or successors to the Trustee named herein or acting hereunder to execute the trusts under this Deed of Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by the Beneficiary, containing reference to this Deed of Trust and its place of record, which instrument, when duly recorded in Riverside County, California, shall be conclusive proof of proper appointment of the successor trustee. 22. Upon written request of the Beneficiary stating that all obligations secured hereby have been satisfied and all sums secured hereby have been paid, and upon surrender of this Deed of Trust and the Note to the Trustee for cancellation and retention, and upon payment of its fees, the Trustee shall reconvey, without warranty, the Collateral then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as"the person or persons legally entitled thereto." 23. The trusts created by this Deed of Trust are irrevocable by the Trustor. 24. This Deed of Trust applies to, inures to the benefit of, and binds of the Trustor, the Beneficiary and the Trustee and their respective administrators, executors, officers, directors, transferees, successors and assigns. The term "Beneficiary" shall include not only the original Beneficiary hereunder but also any future owner and holder, including pledges, of the Note secured hereby. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular includes the plural. 25. In addition to and without limitation on any other rights or remedies of the Trustee or the Beneficiary, if the Trustee or the Beneficiary commences any legal action or proceeding to enforce or interpret any provision of this Deed of Trust or the Note, the Trustor shall pay all costs and expenses incurred by the Trustee or the Beneficiary in connection with such action or proceeding, including legal expenses and reasonable attorneys' fees and court costs. Notwithstanding the preceding sentence, in any action between the Trustor on the one hand and the Trustee and/or Beneficiary on the other, the prevailing party is entitled to attorneys'fees. 26. The Trustee accepts the trusts hereunder when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law, the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action or proceeding in which the Trustor,the Beneficiary or the Trustee is a party, unless brought by the Trustee. -7- 27. The Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to it at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm Springs, California 92262. Attention: City Manager. 28. The Trustor shall cause a copy of each deed of trust securing a Construction/ Permanent Financing Loan to be provided to the Beneficiary immediately upon its recordation, so that the Beneficiary may prepare and record a request for notice of default and notice of sale thereunder pursuant to California Civil Code Section 2924b. 29. This Deed of Trust shall be interpreted and enforced, and the rights and duties (both procedural and substantive) of the parties hereunder shall be determined, according to California law. 30. Capitalized terms not otherwise defined herein shall have the meanings given them in the Agreement or the Note. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date set forth above. TRUSTOR: ATTEST: Clerk City of Pal s, California � David H. Ready, City Manager APPROVED BY CITY COUNCIL 1� H5.17 �1_ D.b21\ ACKNOWLEDGMENTS STATE OF CALIFORNIA ) )ss. COUNTY OF RIVERSIDE ) On 2012, before me, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (SEAL) -9- EXHIBIT"A" LEGAL DESCRIPTION OF LAND The Land is that certain real property located in the City of Palm Springs, County of Riverside, State of California,described as follows: PARCEL"A": ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO.2313E AS FILED N PARCEL MAP BOOK 181 AT PACES 50 THROUGH 53,NCLUSNE,RECORDS OF RIVERSIDE COUNTY.CALIFORNIA,DESCRIBED AS FOLLOWS; AT THE NORTHEAST CORNER CE SAID PARCEL 1,THEE SOUTH 38"-33'-lT EAST ALONG THE F40RTHEASTERLY LINE Of SAID PARCEL 1, A DISTANCE OF 21.11 FEET TO TTE mW POW OF THE FOLLOWING SIX COURSES BEING ALONG THE NORTHEASTERLY AND SOUTHEASTERLY LINES OF SAID PARCEL 1; THENCE SOUTH 38'-33'-1Y EAST,A DISTANCE OF 151.76 FEE(; THENCE NORTH 51".W-41'EAST,A DISTANCE OF 10.0a FEET; TH34CE SOUTH 38"-33'-IT EAST,A DISTANCE OF 176%FEET, THENCE.SOUTH..51"-26'41-WEST,A DISTANCE OF 211T10 FEET. THENCE SOUTH -33'-IT FAST,A DISTANCE OF 220 OB FEET THENCE SOUTH 51"-26'-41-WEST,A DISTANCE OF 1%00 FIST; THENCE LEAVING SA®SOUTHEASTERLY LINE,NORM 38'--33'IT NEST,A DISTANCE OF 226.6 FEET; THENCE NORTH(W-Sl-32'EAST,A DISTANCE OF 4S 52 THE€; THENCE NORTH 51'2B41'EAST,A DISTANCE OF 8CLb0 FEET TO THE TRUE PONT OF - SUBJECT TO EAR OF RECORD E ANY. CONTAINING 1211.961 SC L FT1278 AC- PREPARED BY SANBORN AOE,&C_ 6 1 L JOHN L SANBORN;PLS 4146 L S_ 4146 em. 61�t14 N w�}us rmmr e °F' CAt.t4 A- 858448A WCM OF EMOT L"A" tL LICE tF PAF38 I .P DATA TABLE BE~ dST. tL ® 9"E I 2iJjf PARCEL A '. MACa.� S� fP a 4 Al L&.wha AFFROWD CITY Or PALAd PUBLIC WORKS & ENOWEERAVG am DEPAR7WNT PLAT +� - SFE MWT a' aEaaa er ca r M- ILS tt-tom t or t 2 859448.1 ACKNOWLEDGMENT OF INSTRUMENT (Cal. Civil Code Section 1181) State of California ) County of Riverside ) ss. City of Palm Springs ) On October 2, 2012, before me, JAMES THOMPSON, CITY CLERK, CITY OF PALM SPRINGS CALIFORNIA, personally appeared DAVID H. READY, who I personally know is the CITY MANAGER of the CITY OF PALM SPRINGS whose name is subscribed to the within instrument and acknowledged to me and that he executed the same in his/her official and authorized capacity on behalf of the City of Palm Springs, a California Charter City. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and the official seal of the City of Palm Springs, California, this 2ntl day of October, 2012: pPtMs o •� 3ya�nn••� . �� C4</P00.N�p Signature: AMES THOMPSON, CITY CLERK City of Palm Springs, California Title or Type of Document:Deed of Trust and Assignment of Rents Steven C Nichols&Sarah J Benson Trustees of the Benson-Nichols Trust of 2003 Document Date: October 2, 2012 AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS Escrow No. 24414KC Date of Opening of Escrow: 12012 THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS ("Agreement") is made this FA day of DO Q 2012, by and between Chino Cienega Foundation, a California public benefit corporation and Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 (collectively, "Seller"), and The City of Palm Springs, a California municipal corporation and Charter City ("Buyer"). RECITALS A. Seller is the owner of that certain real property consisting of approximately 2.78 gross acres, referred to as 2901 North Palm Canyon Drive; APN: 504-040-001-8, located at the northwest corner of Tramway Road and North Palm Canyon Drive in the City of Palm Springs, County of Riverside, State of California, more particularly described on Exhibit "A" attached hereto ("Land"), together with (i) all rights, privileges, easements, licenses and interests appurtenant thereto, including, without limitation, all oil, gas, water and water rights (collectively, "Appurtenances"); and (ii) all intangible property ("Intangible Property") owned or held by Seller in connection with the Land, including, without limitation, development rights, governmental approvals and land entitlements. The Land, Appurtenances and Intangible Property are collectively referred to herein as the "Property." B. Buyer has occupied the Property as Seller's tenant pursuant to a rent-free lease that expired on June 30, 2010 ("Lease"), and Seller has agreed retroactively to an extension of the Lease, through July 31, 2012, without any rent payable by Buyer. It is the intent of the parties that the Visitor Center and the ultimate development of the adjacent property owned by Seller ("Nichols Site") represent an integrated, harmonious project, and that reciprocal ingress, egress and parking covenants may be utilized to integrate the development. C. Buyer has occupied the Property as Seller's tenant since 2003 and has constructed improvements on the Property, including a parking lot and the Palm Springs Entry Sign, and therefore deems the Property suitable for Buyer's use. C. Seller wishes to sell the property to Buyer and Buyer wishes to buy the property from Seller pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, the parties hereto agree as follows: -1- 858448A TERMS AND CONDITIONS 1. PURCHASE AND SALE OF PROPERTY. Buyer hereby agrees to purchase from Seller, and Seller agrees to sell to Buyer the Property, upon the terms and conditions hereinafter set forth. 2. OPENING OF ESCROW; CLOSING DATE. 2.1 Opening of Escrow. Within five (5) business days after the execution of this Agreement by Buyer and Seller, the parties shall open an escrow ("Escrow") with Liberty Escrow ("Escrow Holder") by causing an executed copy of this Agreement to be deposited with Escrow Holder. Escrow Holder and Title Company have a physical office location in the City of Palm Springs and were selected through the Buyer's Escrow Rotation Program. Escrow shall be deemed open on the date that a fully executed copy of this Agreement is delivered to Escrow Holder ("Opening of Escrow"). Escrow Holder shall fax written notice of the Opening of Escrow date to Buyer and Seller. 2.2 Closing Date. Escrow shall close on or before September 20th, 2012 ("Closing Date"). The terms the "Close of Escrow" and/or the "Closing" are used herein to mean the time the Grant Deed and Deed of Trust (as hereinafter defined) is recorded in the Office of the County Recorder of Riverside County, California. 2.3 Time is of the Essence. Buyer and Seller agree that time is of the essence and each party specifically agrees to strictly comply and perform the obligations herein in the time and manner specified and waives any and all rights to claim such compliance by mere substantial compliance with the terms of this Agreement. 3. CONSIDERATION. 3.1 Purchase Price. The total purchase price for the Property is Six Hundred Ninety Thousand AND 00/100 DOLLARS ($690,000.00) ("Purchase Price"). The Purchase Price to be paid by Buyer to Seller is all-inclusive compensation of Seller's interest in the Property and any rights or obligations which exist or may arise out of the acquisition of the Property for public purposes, which compensation Seller acknowledges and agrees is inclusive, without limitation, of Seller's fee interest in the Land and any improvements located thereon, severance damages, relocation expenses, costs, interest, attorneys' fees, and any claim whatsoever of Seller which might arise out of or relate to the acquisition of the Property by Buyer. 3.2 Pavment of Purchase Price. On or before the day preceding Close of Escrow, Buyer shall deposit $200,000.00, as a portion of the Purchase Price ("Initial Payment") with Escrow Holder in "good funds," and a Promissory Note, shown in Exhibit "C" to this Agreement, and Deeds of Trust, shown in Exhibit "D" to this Agreement. "Good funds" shall mean a wire transfer of funds, cashier's or certified check drawn on or issued by the offices of a financial institution located in the State of California, or cash. -2- 858448.1 4. ADDITIONAL FUNDS AND DOCUMENTS REQUIRED FROM BUYER AND SELLER, 4.1 Buyer. Buyer agrees that on or before 1:00 p.m. on the business day preceding the Closing Date, Buyer will deposit with Escrow Holder the Initial Payment and all additional funds and/or documents (executed and acknowledged, if appropriate) which are necessary to comply with the terms of this Agreement, including, without limitation, the following: (a) A Preliminary Change of Ownership Statement completed in the manner required in Riverside County; and (b) Such funds and other items and instruments as may be necessary in order for Escrow Holder to comply with this Agreement. 4.2 Seller. Seller agrees that on or before 1:00 p.m. on the business day preceding the Closing Date, Seller will deposit with Escrow Holder such funds and other items and instruments (executed and acknowledged, if appropriate) as may be necessary in order for the Escrow Holder to comply with this Agreement, including, without limitation, the following: (a) A grant deed conveying the Property to Buyer in the form attached hereto as Exhibit`B" ("Grant Deed"); (b) Two duplicate originals of a Non-Foreign Affidavit in the form attached hereto as Exhibit"B" ("Non-Foreign Affidavit'); (c) Two duplicate originals of California Form 590-RE Real Estate Withholding Exemption Certificates in the form required by the California Franchise Tax Board ("California Residency Affidavit'); and (d) Such funds and other items and instruments as may be necessary in order for Escrow Holder to comply with this Agreement. 4.3 Recordation, Completion and Distribution of Documents. Escrow Holder will cause the Grant Deed to be recorded when (but in no event after the Closing Date) it can issue the Title Policy in the form described in Section 5.2 below, and holds for the account of Seller the items described above to be delivered to Seller through Escrow, less costs, expenses and disbursements chargeable to Seller pursuant to the terms hereof. 5. TITLE MATTERS. 5.1 General. Seller will convey to Buyer good and marketable title to the property by a valid Grant Deed, free of any encumbrances, easements, or any other restrictions or reservations of rights of any kind reserved to, retained by, or granted to Seller. 5.2 Approval of Title. (a) Promptly following execution of this Agreement (but in no event later than ten (10) days following Opening of Escrow), Seller shall cause to be delivered to Buyer a -3- 858448.1 Preliminary Title Report issued through First American Title Insurance Company ("Title Company"), describing the state of title of the Property, together with legible copies of all exceptions specified therein and a map plotting all locatable easements specified therein ("Preliminary Title Report"). Buyer shall notify Seller in writing ("Buyer's Title Notice") of Buyer's approval of all matters contained in the Preliminary Title Report or of any objections Buyer may have to title exceptions or other matters ("Disapproved Exceptions") contained in the Preliminary Title Report within fifteen (15) business days after Buyer's receipt of the Preliminary Title Report ("Buyer's Title Notice"). (b) In the event Buyer delivers Buyer's Title Notice within said period, Seller shall have a period of ten (10) days after receipt of Buyer's Title Notice in which to notify Buyer of Seller's election to either (i) agree to attempt to remove the Disapproved Exceptions prior to the Close of Escrow; or (ii) decline to remove any such Disapproved Exceptions ("Seller's Notice"). Seller shall only elect to decline to remove Disapproved Exceptions which Seller in good faith believes Seller's reasonable efforts would not result in removal or as to which removal would result in cost or expense to Seller other than nominal administrative expense incurred in the process of removal. Seller's failure to deliver Seller's Notice within said ten (10) day period shall be deemed Seller's election to decline to remove the Disapproved Exceptions. If Seller notifies Buyer of its election to decline to remove the Disapproved Exceptions, if Seller is deemed to have elected to decline to remove the Disapproved Exceptions or if Seller is unable to remove the Disapproved Exceptions, Buyer may elect either to terminate this Agreement and the Escrow or to accept title to the Property subject to the Disapproved Exception(s). Buyer shall exercise such election by delivery of written notice to Seller and Escrow Holder within ten (10) days following the earlier of: (i) the date of written advice from Seller that such Disapproved Exception(s) cannot be removed; or (ii) the date Seller declines or is deemed to have declined to remove such Disapproved Exception(s). (c) Upon the issuance of any amendment or supplement to the Preliminary Title Report which adds additional exceptions, the foregoing right of review and approval shall also apply to said amendment or supplement, provided, however, that Buyer's initial period of review and approval or disapproval of any such additional exceptions shall be limited to ten (10) days following receipt of notice of such additional exceptions, together with copies of the underlying documents referenced therein. (d) Nothing to the contrary herein withstanding, Buyer shall be deemed to have automatically objected to all deeds of trust, mortgages, judgment liens, federal and state income tax liens, delinquent general and special real property taxes and assessments and similar monetary encumbrances affecting the Property, and Seller shall discharge any such non- permitted title matters of record prior to or concurrently with the Close of Escrow. 5.3 Title Policy. When Escrow Holder holds for Buyer the Grant Deed in favor of Buyer executed and acknowledged by Seller covering the Property, Escrow Holder shall cause to be issued and delivered to Buyer and Seller as of the Close of Escrow a CLTA standard coverage owner's policy of title insurance ("Title Policy"), or, upon Buyer's request therefor, an ALTA extended coverage owner's policy of title insurance, issued by Title Company, with liability in the amount of the Purchase Price, covering the Property and showing title vested in Buyer free of encumbrances, except: -4- 858448A (a) All non-delinquent general and special real property taxes and assessments for the current fiscal year; (b) Those easements, encumbrances, covenants, conditions, restrictions, reservations, rights-of-way and other matters of record shown on the Preliminary Title Report which have been approved by Buyer pursuant to Section 5.1 above; (c) The standard printed exceptions and exclusions contained in the CLTA or ALTA form policy; (d) Any exceptions created or consented to by Buyer, including, without limitation, any exceptions arising by reason of Buyer's possession of or entry on the Property. 6. CONDITIONS PRECEDENT TO CLOSE OF ESCROW. 6.1 Conditions to Buyer's Obligations. The obligations of Buyer under this Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by Buyer of each of the following conditions precedent: (a) Title Company will issue the Title Policy as required by Section 5.2 of this Agreement. (b) Buyer has approved or deemed to have approved the condition to title of the Property on or before the date provided in Section 5.1. (c) Buyer has approved or deemed to have approved all Due Diligence Items on or before the Due Diligence Date. (d) Seller has removed from the Property all equipment, personal property, debris and waste. (e) Escrow Holder holds and will deliver to Buyer the instruments and funds, if any, accruing to Buyer pursuant to this Agreement. (f) All representations and warranties specified in Section 9.1 are true and correct. (g) Buyer's approval of any other conditions specified in this Agreement. (h) Seller shall not be in default of any term or condition of this Agreement. Buyer's approval shall be based upon Buyer's sole and absolute discretion; provided, however, if Buyer has not delivered written notice of approval of the above conditions to Seller and Escrow Holder by the times provided above, or if no time is provided, on or before the Close of Escrow, each such condition shall automatically and conclusively be deemed to have been disapproved by Buyer. Buyer may waive such automatic disapproval in writing. -5- 858448.1 6.2 Conditions to Seller's Obligations. The obligations of Seller under this Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by Seller of each of the following conditions precedent: (a) Escrow Holder holds and will deliver to Seller the instruments and funds accruing to Seller pursuant to this Agreement. (b) Buyer shall not be in default of any term or condition of this Agreement. If requested by Escrow Holder or Buyer, Seller shall deliver to Escrow Holder and Buyer written notice of satisfaction of the conditions set forth in this Section 6.2. 6.3 Covenant of Seller and Buyer. Buyer and Seller agree to cooperate with one another, at no cost or expense to the cooperating party, in satisfying the conditions precedent to Close of Escrow. Buyer shall be responsible for proceeding with diligence and in good faith to satisfy the conditions to Buyer's performance set forth in Section 6.1 and Seller shall be responsible for proceeding with diligence and in good faith to satisfy the conditions to Seller's performance set forth in Section 6.2. 6.4 Termination for Failure of Condition. In the event Buyer fails to approve or disapprove any condition precedent specified in Section 6.1 or elsewhere in this Agreement on or before the date for approval set forth therein, Seller shall notify Buyer of such failure and Buyer shall have a period of twenty (20) days from receipt of such notice to elect to approve such matter or to disapprove such matter and terminate this Agreement. The failure of Buyer to approve such matter within said twenty (20) days shall be deemed to constitute disapproval thereof and Buyer's election to terminate. In the event Seller fails to approve or disapprove any condition precedent specified in Section 6.1 or elsewhere in this Agreement on or before the date for approval set forth therein, Buyer shall notify Seller of such failure and Seller shall have a period of twenty (20) days from receipt of such notice to elect to approve such matter or to disapprove such matter and terminate this Agreement. The failure of Seller to approve such matter within said twenty (20) days shall be deemed to constitute disapproval thereof and Seller's election to terminate. In the event Buyer or Seller terminates this Agreement based on the disapproval of one or more of said conditions precedent as provided herein, Buyer shall be entitled to all sums deposited into Escrow, paid to Seller as a portion of the Purchase Price. 7. ADDITIONAL COVENANTS OF BUYER AND SELLER. 7.1 Environmental Claims. Notwithstanding any contrary provisions of this Agreement or otherwise, upon the Closing Date, Buyer shall and does hereby release Seller from any liability, cost or expense Buyer may incur as a result of Buyer's Lease of the Property from Seller or purchase of the Property or the presence of any Hazardous Materials (hereinafter defined) which were knowingly and willingly placed on the Property by Buyer, with the exception of the Retained Environmental Liabilities. Such release shall survive the Closing Date. For the purposes of this Agreement, Hazardous Materials shall be deemed to mean asbestos, polychlorinated biphenyls, petroleum or by-products thereof, radioactive materials, or any chemical, material or substance included in the definitions of "hazardous substances", "hazardous materials", "hazardous waste", "toxic substances" and/or words of similar import -6- 858448A under any federal, state and local laws, ordinances, rules and regulations whether present or future, relating to and/or dealing with the protection of the environment and/or human health and safety and/or applicable to the generation, handling, manufacture, installation, treatment, storage, use, transportation, discharge, disposal, presence and/or release into the air, soil, water at, above or below ground level (whether accidental or intentional) of such substances or materials. This release does not apply to any liability, cost or expense Buyer may incur as a result of the presence of any Hazardous Materials (hereinafter defined) which are or may be located in, on or about the Property that existed prior to the Lease's effective date or were knowlingly and willingly placed upon the Property by Seller (the "Retained Environmental Liabilities"). Buyer takes the Property without any representations or warranties by Seller or Seller's agent regarding the existence of Hazardous Materials in, on, or about the Property, except for Seller's express representations and warranties in this Section 7.1, Section 8, and elsewhere in this Agreement; otherwise the Property is being purchased, conveyed and accepted by Buyer in its As-Is condition and Buyer accepts the Property subject to all patent and/or latent physical conditions whether or not known or yet to be discovered. 7.2 Master Plan. Seller intends to develop the Nichols Site for a range of uses permitted under the General Plan but does not currently have a development plan (herein the "Master Plan"). Any development on the Nichols Site, the Property or the adjacent City Property (the Visitor Center) is subject to the Chino Cone Special Policy Area (Area 5A) and must be consistent with the Environmentally Sensitive Development Areas Specific Plan Ordinance (ESA-SP) in the Palm Springs Zoning Code ("Code"). As such, under the Code any development by Buyer or Seller would require a Specific Plan that would necessitate describing and integrating adjacent land uses. 7.3 Survival. Notwithstanding any other provision of this Agreement, the provisions of this Section 7 shall survive the Close of Escrow and the delivery of the Grant Deed. 8. REPRESENTATIONS AND WARRANTIES. 8.1 Representations and Warranties. Seller hereby makes the following representations and warranties to Buyer, each of which (i) is material and relied upon by Buyer in making its determination to enter into this Agreement; (ii) to Seller's actual knowledge, is true in all respects as of the date hereof and shall be true in all respects on the date of Close of Escrow on the Property; and (iii) shall survive the Close of Escrow of the purchase and sale of the Property as well as any future transfer of the Property to Buyer or any transferee, successor or assignee of Buyer: (a) There are no pending or threatened litigation, allegations, lawsuits or claims, whether for personal injury, property damage, property taxes, contractual disputes or otherwise, which do or may affect the Property or the operation or value thereof, and there are no actions or proceedings pending or, to the best of Seller's knowledge, threatened against Seller before any court or administrative agency in any way connected with the Property and neither the entering into of this Agreement nor the consummation of the transactions contemplated hereby will constitute or result in a violation or breach by Seller of any judgment, order, writ, -7- 8s8aa8.1 injunction or decree issued against or imposed upon it. There is no action, suit, proceeding or investigation pending or threatened against Seller which would become a cloud on Buyer's title to or have a material adverse impact upon the Property or any portion thereof or which questions the validity or enforceability of the transaction contemplated by this Agreement or any action taken pursuant hereto in any court or before or by any federal, district, county, or municipal department, commission, board, bureau, agency or other governmental instrumentality. (b) There are no contracts, leases, claims or rights affecting the Property and no agreements entered into by or under Seller shall survive the Close of Escrow that would adversely affect Buyer's rights with respect to the Property, except as heretofore disclosed in writing by Seller to Buyer pursuant to Section 6.3. (c) Seller has delivered or, within the period required in Section 6.3, will have delivered true, correct and complete copies of all the documents and other information specified in Section 6.3 in Seller's possession or control (or has reasonable access thereto). To the best of Seller's knowledge, the information contained in the said documents is true and accurate. (d) No part of the Property has been used by Seller for the use, storage, disposal, or release of toxic or hazardous substances or wastes and that, to the best of Seller's actual knowledge, no part of the Property has ever been so used. (e) There are no executory contracts, options or agreements existing (other than this Agreement) relating to the purchase of all or any portion of the Property or any interest therein. (f) All federal, state, municipal, county and local taxes, the nonpayment of which might become a lien on or affect all or part of the Property, which are due and payable prior to the Closing have been paid, or on the Closing Date will have been paid in full. (g) There are no contingent liabilities arising out of the ownership or operation of, or affecting, the Property or any part thereof which would be binding upon the Buyer or to which the Property would be subject after the Closing. (h) Seller has obtained, or will obtain before the Close of Escrow, all required consents, releases and permissions in order to vest good and marketable title in Buyer. (i) The closing of the various transactions contemplated by this Agreement will not constitute or result in any default or event that with the notice or lapse of time, or both, would be a default, breach or violation of any lease, mortgage, deed of trust or other agreement, instrument or arrangement by -8- 858448.1 which Seller or the Property are bound. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of, or require any consent, authorization or approval under any law or administrative regulation or any order, award, judgment, writ, injunction or decree applicable to, or any governmental permit or license issued to Seller relating to the Property. (j) Other than those conditions or encumbrances expressly identified in the Preliminary Title Report which have been approved by Buyer pursuant to Section 5.1 above, no defects or conditions of any portion of the Property or the soil exists which may impair the use of the Property. (k) All representations and warranties made hereunder are in addition to any representations and warranties implied by law and in no event shall this Section 8.1 be construed to limit, diminish or reduce any obligation of disclosure implied upon Seller by law. 8.2 Changed Circumstances. If Seller becomes aware of any fact or circumstance which would change or render incorrect, in whole or in part, any representation or warranty made by Seller under this Agreement, whether as of the date given or any time thereafter through the Close of Escrow and whether or not such representation or warranty was based upon Seller's knowledge and/or belief as of a certain date, Seller will give immediate written notice of such changed fact or circumstance to Buyer, but such notice shall not release Seller of its liabilities or obligations with respect thereto. Seller shall issue a certificate as of the Close of Escrow stating that all the representations and warranties contained in Section 9.1 are true and correct as of said date, or setting forth in detail which of such matters are not true and correct. Buyer shall have ten (10) days from the receipt of any notice by Seller of the material change of any representation or warranty made by Seller hereunder to terminate this Agreement by providing written notice to Seller and Escrow Holder, and receive return of its Deposit and any other sums deposited in the Escrow. 9. ESCROW PROVISIONS. 9.1 Escrow Instructions. This Agreement, when signed by Buyer and Seller, shall also constitute escrow instructions to Escrow Holder. If required by Escrow Holder, Buyer and Seller agree to execute Escrow Holder's standard escrow instructions, provided that the same are consistent with and do not conflict with the provisions of this Agreement. In the event of any such conflict, the provisions of this Agreement shall prevail. 9.2 General Escrow Provisions. Escrow Holder shall deliver the Title Policy to the Buyer and instruct the Riverside County Recorder to mail the Grant Deed to Buyer at the address set forth in Section 13.13 after recordation. All funds received in this Escrow shall be deposited in one or more general escrow accounts of the Escrow Holder with any bank doing business in Riverside County, California, and may be disbursed to any other general escrow account or accounts. All disbursements shall be made by Escrow Holder's check. 9.3 Proration of Real Property Taxes. -9- 858448.1 (a) All non-delinquent general and special real property taxes and assessments shall be paid by Seller, prorated to the Close of Escrow on the basis of a thirty (30) day month and a three hundred sixty day (360) year. Seller acknowledges that Buyer is a governmental agency, not subject to payment of taxes. Accordingly, Seller shall be solely responsible for seeking a refund of any overpayment of taxes from the appropriate taxing agencies. In the event that property taxes are assessed on a parcel of real property which includes land other than the Property, such proration shall include only taxes attributable to the Property, calculated in terms of total gross square feet of land assessed pursuant to the tax statement versus total gross square footage of the Property. Any supplemental tax bills received after Close of Escrow shall be paid by Seller to the extent they relate to a period prior to Close of Escrow. If a supplemental tax bill covers a period commencing before and continuing after Close of Escrow, Seller will pay the tax and shall be solely responsible for seeking any refund from the appropriate taxing agency. The provisions of this Section shall survive Close of Escrow. (b) The provisions of this Section shall survive Close of Escrow. If either party fails to pay its pro rata share of taxes or other expenses by the times herein provided, interest shall accrue on all unpaid amounts from when owing until paid at five percent (5%) over the Federal Discount Rate quoted by the Federal Reserve Bank of San Francisco on the 25th day of the month preceding the date interest commences to accrue. 9.4 Payment of Costs. Seller shall pay one-half (1/2) of the Escrow fee, all documentary transfer taxes, all title insurance premiums for that portion of the Title Policy premium which would be incurred for a CLTA form policy, and the charge for drawing the Grant Deed. Buyer shall pay one-half (1/2) of the Escrow fee, all charges for recording the Grant Deed, and that portion of the Title Policy premium which is attributable to the additional cost of obtaining any additional coverage requested by Buyer, including the difference between CLTA and ALTA coverage. Seller and Buyer shall each be responsible for their respective attorneys' fees and costs. All other costs of Escrow not otherwise specifically allocated by this Agreement shall be apportioned between the parties in a manner consistent with the custom and usage of Escrow Holder. 9.5 Termination and Cancellation of Escrow. If Escrow fails to close as provided above, Escrow shall terminate automatically without further action by Escrow Holder or any party, and Escrow Holder is instructed to return all funds and documents then in Escrow to the respective depositor of the same with Escrow Holder; provided that any document which has been signed by a party who is not to receive the return of such document, shall be marked "void and of no force or effect" by Escrow Holder before it is delivered. Cancellation of Escrow, as provided herein, shall be without prejudice to whatever legal rights Buyer or Seller may have against each other arising from the Escrow or this Agreement. 10. BROKERAGE COMMISSIONS. Buyer and Seller each represent and warrant to the other parties that no third party is entitled to a broker's commission and/or finder's fee with respect to the transaction contemplated by this Agreement. Buyer and Seller each agree to indemnify and hold the other parties harmless from and against all liabilities, costs, damages and expenses, including, without limitation, -10- 858448.1 attorneys' fees, resulting from any claims or fees or commissions, based upon agreements by it, if any, to pay a broker's commission and/or finder's fee. 11. POSSESSION. Possession of the Property shall be delivered to Buyer as of Close of Escrow. In the event any personal property remains on the Property following the Close of Escrow, it shall automatically become the property of Buyer. 12. DEFAULTS, ENFORCEMENT. 12.1 Defaults and Right to Cure. Failure or delay by either party to timely perform any covenant of this Agreement constitutes a default under this Agreement, but only if the party who so fails or delays does not commence to cure, correct or remedy such failure or delay within thirty (30) days after receipt of a written notice specifying such failure or delay, and does not thereafter prosecute such cure, correction or remedy with diligence to completion. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Except as required to protect against further damages, 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. 12.2 Specific Performance. In addition to any other remedies permitted by this Agreement, if either party defaults hereunder by failing to perform any of its obligations herein, each party agrees that the other shall be entitled to the judicial remedy of specific performance, and each party agrees (subject to its reserved right to contest whether in fact a default does exist) not to challenge or contest the appropriateness of such remedy. 13. MISCELLANEOUS. 13.1 Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective heirs, representatives, transferees, successors and assigns. The transfer of all or any part of the interest of any party hereunder in the Property shall not release Seller of their obligations under this Agreement. 13.2 Time Period Computations. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and California state or national holidays unless the reference is to business days, in which event such weekends and holidays shall be excluded in the computation of time and provide that if the last date to perform any act or give any notice with respect to this Agreement shall fall on a Saturday, Sunday or California state or national holiday, such act or notice shall be deemed to have been timely performed or given on the next succeeding day which is not a Saturday, Sunday or California state or national holiday. 13.3 Qualification; Authority. Each individual executing this Agreement on behalf of a partnership or corporation represents and warrants that such entity is duly formed and authorized to do business in the State of California and that he or she is duly authorized to execute and deliver this Agreement on behalf of such partnership or corporation in accordance with authority granted under the formation documents of such entity, and, if a corporation, by a -11- 858448.1 duly passed resolution of its Board of Directors, that all conditions to the exercise of such authority have been satisfied, and that this Agreement is binding upon such entity in accordance with their respective terms. Upon request of either party, Escrow Holder or Title Company, Buyer and Seller agree to deliver such documents reasonably necessary to evidence the foregoing. 13.4 Attorneys' Fees. In the event of any dispute between the parties hereto arising out of the subject matter of this Agreement or the Escrow, or in connection with the Property, the prevailing party in such action shall be entitled to have and to recover from the other party its actual attorneys' fees and other expenses and costs in connection with such action or proceeding (including expert witness fees) in addition to its recoverable court costs. 13.5 Interpretation; Governing Law. This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. Titles and captions are for convenience only and shall not constitute a portion of this Agreement. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates. 13.6 No Waiver. No delay or omission by either party hereto in exercising any right or power accruing upon the compliance or failure of performance by the other party hereto under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party hereto of a breach of any of the covenants, conditions or agreements hereof to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions hereof. 13.7 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made by written instrument or endorsement thereon and in each such instance executed on behalf of each party hereto. 13.8 Severability. If any term, provision, condition or covenant of this Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this instrument, or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 13.9 Merger of Prior Agreements and Understandings. This Agreement and other documents incorporated herein by reference contain the entire understanding between the parties relating to the transaction contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein and shall be of no further force or effect. 13.10 Covenants to Survive Escrow. The covenants and agreements contained herein shall survive the Close of Escrow and, subject to the limitations on assignment contained in -12- 858448.1 Section 14.1 above, shall be binding upon and inure to the benefit of the parties hereto and their representatives, heirs, successors and assigns. 13.11 Consent of Parties. Whenever by the terms of this Agreement the consent or approval of Buyer or Seller is to be given, such consent or approval shall be evidenced by the signature of one person designated for such purpose. Initially such person for Seller shall be Lincoln Saul and such person for Buyer shall be the City Manager of Buyer. Such designated persons may be changed by the party so designating at any time by the delivery of a written notice to the other party. 13.12 Execution in Counterpart. This Agreement and any modifications, amendments or supplements thereto may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. 13.13 Notices. Any notice which either party may desire to give to the other party or to the Escrow Holder must be in writing and shall be effective (i) when personally delivered by the other party or messenger or courier thereof; (ii) three(3) business days after deposit in the United States mail, registered or certified; (iii) twenty-four (24) hours after deposit before the daily deadline time with a reputable overnight courier or service; or (iv) upon receipt of a telecopy or fax transmission, provided a hard copy of such transmission shall be thereafter delivered in one of the methods described in the foregoing (i) through (iii); in each case postage fully prepaid and addressed to the respective parties as set forth below or to such other address and to such other persons as the parties may hereafter designate by written notice to the other parties hereto: To Seller: Chino Cienega Foundation, a California public benefit corporation Attn: Steve Nichols, Trustee; and Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 901 North Palm Canyon Drive, Suite 200 Palm Springs, CA 92262 To Buyer: City of Palm Springs 3200 E. Tahquitz Canyon Way P.O. Box 2743 Palm Springs, CA 92262 Attn: City Manager Copy to: WOODRUFF, SPRADLIN & SMART, APC 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 Attention: Douglas C. Holland, Esq. 13.14 Exhibits. Exhibits "A" and `B," inclusive, attached hereto, are incorporated herein by this reference. -13- 858448.1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement of Purchase and Sale of Real Property and Escrow Instructions as of the date set forth above. "SELLER" Chino Cienega Foundation, a California public benefit corporation Stephen C. Nichols, Trustee Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 Stephen C. Nichols, Trustee Sarah J. Benson, Trustee "BUYER" ATTEST: THE CITY OF PALM SPRINGS, a California municipal corporation and Charter City j ty Clerk City Manager APPROVED AS TO FORM WOODRUFF, SPRADLIN & SMART, APC APPROVED BY CITY COUNCIL DouglAs C. Holland, Esq. City Attorney -14- 858448.1 SCHEDULE OF EXHIBITS EXHIBIT"A' LEGAL DESCRIPTION AND PLAT MAP OF PROPERTY EXHIBIT"B" GRANT DEED EXHIBIT"C" Promissory Note(s)—Foundation and Trust EXHIBIT"D" Deed(s) of Trust—Foundation and Trust EXHIBIT "E" Non-Foreign Affidavit -15- 858448.1 EXHIBIT "A" LEGAL DESCRIPTION OF LAND The Land is that certain real property located in the City of Palm Springs, County of Riverside, State of California, described as follows: PARCEL"A": ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO 23130 AS FILED IN PARCEL MAP BOOK 181 AT PAGES 50 THROUGH 53,INCLUSERVE,RECORDS OF RIVERSIDE COUNTY,CALIFORNIA,DESCRIBED AS FOLLOWS, COMMENCING THE NORTHEAST CORNER OF SAID PARCEL 1,THENCE SOUTH -33`-19'EAST ALONG THE NORTHEASTERLY LINE OF SAID PARCEL 1, A DISTANCE CE 21.11 FEET TO ME TRITE POINT OF THE FOLLOWING SW COURSES OURSES BEING ALCM THE NOKMEASTERLY AND SOUTHEASTERLY LINES OF SAID PARCEL 1; THENCE SOUTH 39-33'49`EAST,A DISTANCE OF 151.76 FEET; NORTH 51'4--29-41-EAST,A DISTANCE OF til_Oa FEET; THENCE SOUTH 38--3Y-19*EAST,A DISTANCE OF 1M95 FEET; THENCE SOUTH S1 k- -41-WEST,A DISTANCE OF 211.00 FEET; THENCE SOUTH 38"-33'-IT EAST,A DISTANCE OF 220_OD FEET THENCE SOUTH 51^26'41'WEST,A DISTANCE CE 190.OD FEET; THENCE LEAVING SAID SOUTHEASTERLY LINE,NORTH 33-IT IAEST,A DISTANCE OF 220.0 FEET, THENCE NORTH 04"51'-32'EAST,A DISTANCE OF 45252 FEET; THENCE NORTH 51--26'+I1-EAST,A STANCE OF 80.00 FEET TO THE TRUE PONT OF BEGINNING. SL03JECT TO EASEMENTS OF RECORD IF ANY. CONTAINING 12EL981 SO. FT12.78 AC:_ PREPARED BY SANBORN.AIE, S��pp844 4 d+9d JOHN L_SAN ;.PLS 4146 � 146 Hsr a,4 Wo 11435 8Yz1Wu 6� C,1S1� -1- 859448.1 HE COt OF BIT 080 MNL W N LK OF PAS I «!� ► DATA TABLE i DIST_ x (D SM3319°E 21.11' X PA r� .A f 12QRM oaf. 2.70 AC &i n AFAWVM G P K CITY Of' PALM NOS PU&JC MMS & ENOACERWO DEPARTWWT F P PLAT am or a& = 1 - T .A w Ka ji-S F1-133 1 OF 1 2 858448A EXHIBIT "B" GRANT DEED RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: THE CITY OF PALM SPRINGS 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager Space above this line for Recorder's Use Order No. Escrow No. GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Chino Cienega Foundation, a California public benefit corporation and Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003, (collectively, "Seller"), hereby grant to the CITY OF PALM SPRINGS, a California municipal corporation and Charter City, the real property in the City of Palm Springs, County of Riverside, State of California, described in Exhibit "1" attached hereto and incorporated herein by reference (the"Property"). The Property conveyed hereby is subject to (i) non-delinquent general and special real property taxes and assessments; and (ii)matters of record. Dated: 12012 Chino Cienega Foundation, a California public benefit corporation Stephen C. Nichols, Trustee Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 Stephen C. Nichols, Trustee Sarah J. Benson,Trustee -3- 858448.t STATE OF CALIFORNIA ) ) ss. COUNTY OF RIVERSIDE ) On before me, Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] -4- ssa448.1 EXHIBIT "1" TO GRANT DEED LEGAL DESCRIPTION OF LAND The Land is that certain real property located in the City of Palm Springs, County of Riverside, State of California, described as follows: PARCEL"A": ALL THAT PORTION OF PARCEL 1 OF PARCEL.MAP No,23139 AS FILED IN PARCEL MAP BOOK 181 AT PAGES 50 THROUGH 53, INCLUSIVE RECORDS OF RIVERSIDE COUNTY,CALIFORNIA,DESCRIBED AS FOLLOV NCING AT THE NORTHEAST OF SAID PARCEL 1,THENCE SOUTH 380-33'-IT EAST ALONG THE NORTHEASTERLY LINE Of SAID PARCEL 1', A DISTANCE OF 21.11 FEET TO THE TRUE POINT OF BEGWWJQ THE FOLLOWING SIX ES BEING ALONG THE NORTHEASTERLYAND SOUTHEASTERLY LINES OF SAID PARCEL 1; THENCE SOUTH 38--33'-IT EAST,A DISTANCE OF 151.76 FEET, THENCE NORTH 516-29-41-EAST.A DISTANCE OF 10-00 FEET; THENCE SOUTH 380-21T-IT EAST,A DISTANCE OF 176.95 FEET; THENCE SOUTH Silk-26'41"WEST,A DISTANCE OF 211.00 FEET; THENCE SO "38lk-3T-lT EAST,A DISTANCE OF 220.00 FEET SOUTH Silk-20-41-{NEST,A DISTANCE OF 190-00 FEET, THENCE LEAVING SAN SOUTHEASTERLY LINE,NORTH 38°-3T-IT WEST,A DISTANCE OF 229-0 FEET; THEM NORTH 04--51'-37 EAST„A DISTANCE OF 452.52 FEET, THENCE NORTH 51--26 41-EAST,A DISTANCE OF 80_00 FEET TO THE TRUE POINT OF BEGINNING- SUBJECT TO EASEMENTS OF RECORD IF ANY_ CONTAINING 120,981 SQ. FTJ 2.78 AC_ PREPARED BY SANBORN.AIE,INC �S 1��4L .yYU sLdt 0+rp JOHN L.SANBORW PLS 4146 4146 �r WO H-Us P7I17:13 ,I " C A 4k'V - 5 - LVWT K LK Cr PAKEL I aF PATA TAStF OlS y ( "9 E 21.11" 9, 1011 "41-W 110, PARM f2a9m arl 178 ,A owl a S F � CITY OF P,48M41 Z PE & E DEPARNMT PLAT Bt €' _ - - 6 - EXHIBIT "C-1" Promissory Note—Foundation PROMISSORY NOTE Visitor's Center Parking Lot and Palm Springs Entry Sign DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to Borrower for cancellation. $ 245,000.00 Palm Springs, California , 2012 FOR VALUE RECEIVED, the undersigned, the CITY OF PALM SPRINGS, a municipal corporation and California Charter City ("Maker"), promises to pay the Chino Cienega Foundation, a California public benefit corporation ("Holder") located at 901 North Palm Canyon Drive, Suite 200, Palm Springs, CA 92262, the sum of Two Hundred Forty Five Thousand Dollars ($245,000.00, the "Note Amount"), together with interest thereon at the rate set forth herein. All sums payable hereunder shall be payable in lawful money of the United States of America. This Promissory Note ("Note") is made in connection with the provision by the Holder of funds equal to the Note pursuant to that certain the Agreement for Purchase and Sale by and among Maker and Holder, dated as of 2012 (the "Agreement"). This note is made with reference to the sale of a one-half undivided interest in a parcel commonly described as the Visitor's Center Parking Lot and Palm Springs Entry Sign, of approximately 2.78 acres (APN 504-040-001-8), located near the northwest corner of Tramway Road and North Palm Canyon Drive in the City of Palm Springs, County of Riverside, State of California, more particularly described on Exhibit"A" attached hereto ("Land"). 1. Interest Rate. Simple interest shall accrue on the Note Amount from the date of disbursement at the rate of percent (!/u) per annum, but in no event greater than the maximum interest rate permitted by law. 2. Repayment. Maker shall repay the principal amount of the Note Amount, plus all interest then accrued at the interest rate set forth in Paragraph 1 above in arrears, in annual installments in equal amounts as shown in the attached Amortization Table shown in Exhibit `B" - 8 - attached hereto ("Amortization Table"). The principal amount of the Note Amount, plus all interest then accrued upon the Note Amount, shall be immediately due and payable upon (i) any default of the Agreement, which is not cured within the time set forth in Section 13 of the Deed of Trust, and, if not sooner paid in full, (ii) on April 1, 2019. 3. Prepayment of Note Amount. Maker may prepay to Holder the full Note Amount, together with all accrued and unpaid interest thereon at the rate set forth in Section I hereof, at any time prior to the due date of the Note Amount without penalty. 4. Application of Payments. Each payment hereunder shall be credited first to interest then accrued and the remainder, if any, to principal. Interest shall cease to accrue upon principal so credited. 5. Security. This Note is secured by a deed of trust by and between Maker, as trustor, and Holder, as beneficiary (the "Deed of Trust", Exhibit "D"to the Agreement). 6. Holder May Assign. Holder may, at its option, assign its right to receive payment under this Note without necessity of obtaining the consent of the Maker. 7. Maker Assianment Prohibited. In no event shall Maker assign or transfer any portion of this Note without the prior express written consent of the Holder, which consent may be given or withheld in the Holder's sole discretion. 8. Attorneys' Fees and Costs. In the event that any action is instituted with respect to this Note, the non-prevailing party promises to pay such sums as a court may fix for court costs and reasonable attorneys' fees. Maker's right to such fees shall not be limited to or by its representation by City Attorney, and such representation shall be valued at customary and reasonable rates for private sector legal services. 9. Non-Waiver. Failure or delay in giving any notice required hereunder shall not constitute a waiver of any default or late payment, nor shall it change the time for any default or payment. 10. Successors Bound. This Note shall be binding upon the parties hereto and their respective heirs, successors and assigns. Any person or entity who takes over the any duties and obligations under this Note, is also liable for the satisfaction of all such duties and obligations. 11. Terms. Any terms not separately defined herein shall have the same meanings as set forth in the Agreement. 12. Collection of Penalties. No provision of this Agency Note or any instrument securing payment hereof or otherwise relating to the debt evidenced hereby shall require the payment or permit the collection of interest in excess of the maximum permitted by applicable law. If any excess of interest in such respect is herein or in such other instrument provided for, - 9 - or shall be adjudicated to be so provided for herein or in any such instrument, the provisions of this paragraph shall govern, in neither Maker or any endorsers of this Note, nor their respective heirs,personal representatives, successors or assigns shall be obligated to pay the amount of such interest to the extent it is in excess of the amount permitted by applicable law. 13. Non-Recourse. Notwithstanding anything to the contrary herein contained, (i) the liability of Maker shall be limited to its interest in the Site and any rents, issues, and profits arising from the Site and, in addition, with respect to any obligation to hold and apply insurance proceeds, proceeds of condemnation or other monies hereunder, any such monies received by it to the extent not so applied in accordance with the terms of this Note; (ii) no other assets of Maker shall be affected by or subject to being applied to the satisfaction of any liability which Maker may have to Holder or to another person by reason of this Note; and (iii) any judgment, order, decree or other award in favor of Holder shall be collectible only out of, or enforceable in accordance with, the terms of this Note by termination or other extinguishment of Maker's interest in the Site. IN WITNESS WHEREOF, Borrower has caused this Note to be executed by Maker or Maker's authorized agent(s) as of the date and year first above written. Maker: By: City of Palm Springs, California David H. Ready, Esq., Ph.D. City Manager - 10 - EXHIBIT "C-2" Promissory Note—Trust PROMISSORY NOTE Visitor's Center Parking Lot and Palm Springs Entry Sign DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to Borrower for cancellation. $ 245,000.00 Palm Springs, California , 2012 FOR VALUE RECEIVED, the undersigned, the CITY OF PALM SPRINGS, a municipal corporation and California Charter City ("Maker"), promises to pay Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 ("Holder") located at 901 North Palm Canyon Drive, Suite 200, Palm Springs, CA 92262, the sum of Two Hundred Forty Five Thousand Dollars ($245,000.00, the "Note Amount"), together with interest thereon at the rate set forth herein. All sums payable hereunder shall be payable in lawful money of the United States of America. This Promissory Note ("Note") is made in connection with the provision by the Holder of funds equal to the Note pursuant to that certain the Agreement for Purchase and Sale by and among Maker and Holder, dated as of 2012 (the "Agreement"). This note is made with reference to the sale of a one-half undivided interest in a parcel commonly described as the Visitor's Center Parking Lot and Palm Springs Entry Sign, of approximately 2.78 acres (APN 504-040-001-8), located near the northwest corner of Tramway Road and North Palm Canyon Drive in the City of Palm Springs, County of Riverside, State of California, more particularly described on Exhibit"A" attached hereto ("Land"). 1. Interest Rate. Simple interest shall accrue on the Note Amount from the date of disbursement at the rate of percent (_%) per annum, but in no event greater than the maximum interest rate permitted by law. 2. Repayment. Maker shall repay the principal amount of the Note Amount, plus all interest then accrued at the interest rate set forth in Paragraph 1 above in arrears, in annual installments in equal amounts as shown in the attached Amortization Table shown in Exhibit`B" attached hereto ("Amortization Table"). The principal amount of the Note Amount, plus all interest then accrued upon the Note Amount, shall be immediately due and payable upon (i) any - 11 - default of the Agreement, which is not cured within the time set forth in Section 13 of the Deed of Trust, and, if not sooner paid in full, (ii) on April 1, 2019. 3. Prepayment of Note Amount. Maker may prepay to Holder the full Note Amount, together with all accrued and unpaid interest thereon at the rate set forth in Section 1 hereof, at any time prior to the due date of the Note Amount without penalty. 4. Application of Pates_ Each payment hereunder shall be credited first to interest then accrued and the remainder, if any, to principal. Interest shall cease to accrue upon principal so credited. 5. Security. This Note is secured by a deed of trust by and between Maker, as trustor, and Holder, as beneficiary(the "Deed of Trust", Exhibit"D"to the Agreement). 6. Holder May Assign. Holder may, at its option, assign its right to receive payment under this Note without necessity of obtaining the consent of the Maker. 7. Maker Assignment Prohibited. In no event shall Maker assign or transfer any portion of this Note without the prior express written consent of the Holder, which consent may be given or withheld in the Holder's sole discretion. 8. Attorneys' Fees and Costs. In the event that any action is instituted with respect to this Note, the non-prevailing party promises to pay such sums as a court may fix for court costs and reasonable attorneys' fees. Maker's right to such fees shall not be limited to or by its representation by City Attorney, and such representation shall be valued at customary and reasonable rates for private sector legal services. 9. Non-Waiver. Failure or delay in giving any notice required hereunder shall not constitute a waiver of any default or late payment, nor shall it change the time for any default or payment. 10. Successors Bound. This Note shall be binding upon the parties hereto and their respective heirs, successors and assigns. Any person or entity who takes over the any duties and obligations under this Note, is also liable for the satisfaction of all such duties and obligations. 11. Terms. Any terms not separately defined herein shall have the same meanings as set forth in the Agreement. 12. Collection of Penalties. No provision of this Agency Note or any instrument securing payment hereof or otherwise relating to the debt evidenced hereby shall require the payment or permit the collection of interest in excess of the maximum permitted by applicable law. If any excess of interest in such respect is herein or in such other instrument provided for, or shall be adjudicated to be so provided for herein or in any such instrument, the provisions of this paragraph shall govern, in neither Maker or any endorsers of this Note, nor their respective - 12 - heirs, personal representatives, successors or assigns shall be obligated to pay the amount of such interest to the extent it is in excess of the amount permitted by applicable law. 13. Non-Recourse. Notwithstanding anything to the contrary herein contained, (i) the liability of Maker shall be limited to its interest in the Site and any rents, issues, and profits arising from the Site and, in addition, with respect to any obligation to hold and apply insurance proceeds, proceeds of condemnation or other monies hereunder, any such monies received by it to the extent not so applied in accordance with the terms of this Note; (ii) no other assets of Maker shall be affected by or subject to being applied to the satisfaction of any liability which Maker may have to Holder or to another person by reason of this Note; and (iii) any judgment, order, decree or other award in favor of Holder shall be collectible only out of, or enforceable in accordance with, the terms of this Note by termination or other extinguishment of Maker's interest in the Site. IN WITNESS WHEREOF, Borrower has caused this Note to be executed by Maker or Maker's authorized agent(s) as of the date and year first above written. Maker: By: City of Palm Springs, California David H. Ready, Esq., Ph.D. City Manager 13 - EXHIBIT "D-1" Deed of Trust—Foundation DEED OF TRUST Recording requested by, and when recorded mail to: Stephen C. Nichols& Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 901 North Palm Canyon Drive, Suite 200 Palm Springs, CA 92262 INSTRUCTIONS TO COUNTY RECORDER: Index this instrument as (i) a Deed of Trust, and (ii) a Fixture Filing Space above for Recorder's Use DEED OF TRUST AND ASSIGNMENT OF RENTS This DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is entered into between the CITY OF PALM SPRINGS, a municipal corporation and California Charter City, whose principal executive office is at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm Springs, California 92263 (the "Trustor"), in favor of FIRST AMERICAN TITLE COMPANY, whose address is (the"Trustee"), for the benefit of the Stephen C.Nichols & Sarah J. Benson,Trustees of the Benson-Nichols Trust of 2003, located at 901 North Palm Canyon Drive, Suite 200, Palm Springs, CA 92262, (the "Beneficiary"), THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO THE TRUSTEE, in trust, with the power of sale, the real property in the City of Palm Springs, Riverside County, California, more particularly described in Exhibit A attached hereto and made part hereof by reference (the"Property"), together with: (i) All tenements, hereditaments and appurtenances of or to the Property, including without limitation all easements and rights used in connection therewith or as a means of access thereto, all right, title and interest of the Trustor, now owned or hereafter acquired, in any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys, strips and other areas of land adjacent to or used in connection with the Property; - 14 - (ii) All oil and gas or other mineral rights in or pertaining to the Property and all royalty, leasehold and other rights of the Trustor pertaining thereto; (iii) All water rights pertaining to the Property and shares of stock evidencing the same, and all deposits made with or other security given to utility companies by the Trustor with respect to the Property; (iv) The rents, issues and profits thereof, subject, however, to the right, power and authority of Trustor to collect and apply such rents, issues and profits and set forth in this Deed of Trust; (v) All buildings and improvements of every kind and description now or hereafter erected or placed on the Property, and all fixtures thereon, including, but not limited to, all gas and electric fixtures, engines and machinery, radiators, heaters, furnaces, heating equipment, laundry equipment, steam and hot water boilers, stoves, ranges, elevators and motors, bath tubs, sinks, water closets, basins, pipes, faucets and other plumbing and heating fixtures, mantels, cabinets, refrigeration plant and refrigerators, whether mechanical or otherwise, cooking apparatus and appurtenances, and all shades, awnings, screens, blinds and other furnishings, it being hereby agreed that all such fixtures and furnishings shall to the extent permitted by law be deemed permanently affixed to and a part of the realty; (vi) All building materials and equipment now or hereafter delivered to the Property and intended to be installed thereon; and (vii) All articles of personal property owned by the Trustor and now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, and all other goods, chattels and personal property as are ever used or fumished in operating a building, or the activities conducted therein, similar to the ones herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are or shall be attached to the building or buildings in any manner; subject, however, to (and only to) any purchase money security interests in such personal property. Said real property and personal property described above, together with appurtenances, are referred to collectively in this Deed of Trust as the "Collateral." FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS: (a) Payment to the Beneficiary of an indebtedness in the principal amount of Tow Hundred Forty Five Thousand Dollars ($245,000.00), evidenced by a promissory note executed by the Trustor and payable to the order of the Beneficiary, bearing the same date as this Deed of Trust, and any and all modifications, extensions or renewals thereof or substitutions therefor (the "Note"), and performance and satisfaction of each and all other obligations of the Trustor under the Note; - 15 - (b) Performance of every obligation or Trustor in this Deed of Trust, the Note, the Agreement for Purchase and Sale between Beneficiary and Trustor related to the Property (the "Agreement'); and (c) Payment of all sums, if any, and interest thereon that may hereafter be loaned or advanced by the Beneficiary to or for the benefit of the Trustor or to its successors, transferees and assigns, made to the Trustor while the Trustor is the owner of record of fee title to the Property, or any portion thereof, or to the successors, transferees or assigns of the Trustor while they are the owners of record of such fee title, and evidenced by one or more notes or written instruments which recite that they are secured by this Deed of Trust. TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR COVENANTS AND AGREES AS FOLLOWS: 1. The Trustor shall not use or permit the use of any of the Collateral for any purpose other than the use for which it was intended at the time this Deed of Trust was executed, as provided in the Participation Agreement. 2. Upon default under this Deed of Trust or the Note (following delivery of notice and expiration of the cure period, if any, provided therein), the Beneficiary, at its option, may declare the whole of the obligations and sums secured hereby to be immediately due and payable. 3. The person(s) or entity(ies) who have executed this Deed of Trust are fully authorized, and have obtained any and all written authorizations, approvals or consents necessary, to bind the Trustor to this Deed of Trust. 4. All rents, profits and income from the Collateral covered by this Deed of Trust are hereby assigned to the Beneficiary for the purpose of discharging the obligations hereby secured. However, the Trustor shall be permitted, so long as no default exists hereunder or under the Note, to collect such rents, profits and income for use consistent with the provisions of the Agreement. 5. Upon default hereunder or under the Note (following delivery of notice and expiration of the cure period, if any, provided herein or therein), for the purpose of protecting its interests hereunder, the Beneficiary will be entitled to the appointment by a court having jurisdiction, without further notice and without regard to adequacy of any security for the indebtedness secured hereby, of a receiver to take possession of and protect the Collateral described herein and operate same and collect the rents, profits and income therefrom. The entering upon and taking possession of the Property or other Collateral by such receiver, the collection of such rents, profits and income and the application thereof shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. - 16 - 6. The Trustor, at its sole cost and expense, shall provide and maintain on the entire Property, including all buildings and improvements thereon: (i) a policy of broad-form builder's risk insurance sufficient to cover 100 percent of the replacement value of all buildings and improvements on the Property including; without limitation, labor and materials in place or to be used as part of the permanent construction (including, without limitation, surplus miscellaneous materials and supplies incidental to the work, and scaffolding, staging, towers, forms and equipment not owned or rented by the Beneficiary, the cost of which is not included in the cost of work), insuring against loss or damage by fire, extended coverage perils and such other hazards, casualties or other contingencies as from time to time may be reasonably required by the Beneficiary; (ii) a policy of commercial general liability insurance that includes contractual, products and completed operations coverages, bodily injury and property damage liability insurance with combined single limits of not less than $1,000,000 per occurrence; and (iii) such other insurance as may be reasonably required by the Beneficiary, in each case in such amounts, in such manner and with such companies as the Beneficiary and Trustor may reasonably approve. The foregoing minimum insurance coverage limits shall be subject to reasonable adjustment from time to time by the Beneficiary. Each such policy shall be endorsed with a standard mortgage clause with loss payable to the Beneficiary and the Trustor, and shall provide that the policy shall not be canceled or materially changed without at least thirty(30) days' prior notice to the Beneficiary. Upon request by the Beneficiary, the Trustor immediately shall deposit with the Beneficiary certificates evidencing such policies. 7. The Trustor shall pay: (i) at least ten days before delinquency, all taxes and assessments affecting the Collateral, including assessments on appurtenant water stock; (ii) when due, all encumbrances, charges and liens, with interest, on the Collateral or any part thereof which appear to be prior or superior hereto; and (iii) all costs, fees and expenses of the Trustee or the Beneficiary reasonably incurred in connection with the trusts created under this Deed of Trust. 8. The Trustor shall: (i) keep the Collateral in good condition and repair and not remove or demolish any buildings on the Property; to the extent insurance or condemnation proceeds are available; (ii) complete or restore promptly and in good and workmanlike manner the buildings and improvements and any other building or improvement which may be constructed, damaged or destroyed thereon; (iii) pay when due all claims for labor performed and materials furnished therefore; (iv) comply in all material respects with all laws affecting the Collateral or requiring any alterations or improvements to be made thereon; (v) not commit or permit waste of or on the Collateral; and (vi) not commit, suffer or permit any act upon the Property in violation of law and/or any covenants, conditions or restrictions affecting the Collateral. 9. The Trustor shall appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee, and shall pay all costs and expenses, including cost of evidence of title and reasonable attorneys' fees, in any such action or proceeding in which the Beneficiary or the Trustee may appear, or in any suit brought by the Beneficiary to foreclose this Deed of Trust. - 17 - 10. Should the Trustor fail to make any payment or do any act as herein provided, then the Beneficiary or the Trustee, without obligation to do so, and following notice to or demand on the Truster, and without releasing the Trustor from any obligation hereof. (i) may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, the Beneficiary or the Trustee being authorized to enter on the Property for such purposes; (ii) may commence, appear in and/or defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee; (iii) may pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto (except for the deeds of trust, encumbrances and liens securing the Construction/Permanent Financing Loan(s) and the Agency Loan, as such terms are defined below); and (iv) in exercising any such powers, may pay necessary expenses, employ legal counsel and pay such counsel's reasonable fees. All such amounts paid by the Beneficiary or the Trustee hereunder shall be added to the obligations secured by this Deed of Trust. 11. The Beneficiary shall have the right, but not the obligation, to pay when due fire or other insurance premiums required hereunder if the Trustor fails to make such payments. All such amounts paid by the Beneficiary hereunder shall be added to the obligations secured by this Deed of Trust. 12. The Trustor shall pay immediately upon demand all sums so expended by the Beneficiary or the Trustee under this Deed of Trust, with interest from date of expenditure at the legal rate. 13. If the Trustor fails to pay any amount required by the Note or this Deed of Trust when due and payable, or fails to perform all other covenants, conditions and agreements of the Note, this Deed of Trust or the Participation Agreement (following delivery of notice and expiration of the cure period, if any, provided therein), the amount of the Note, including unpaid principal and late charges, and all other charges and amounts required by the Note and this Deed of Trust shall, at the option of the Beneficiary, become immediately due and payable. This shall be in addition to and without limitation on any other remedy or right available to the Beneficiary for such failure. 14. The Trustor shall not voluntarily create or permit to be created against the Collateral any lien or liens except as specifically permitted by this Deed of Trust or otherwise authorized by the Beneficiary. The Trustor shall keep and maintain the Collateral free from the claims of all persons supplying labor or materials who will enter into the construction, rehabilitation, renovation or repair of any and all buildings or improvements now existing or to be erected on the Property. 15. By accepting payment of any sum secured by this Deed of Trust after its due date or by accepting partial payment of any such sum, the Beneficiary does not waive its right either to require prompt payment when due of all other sums so secured or to declare default for the Trustor's failure to pay. - 18 - 16. If the Trustor, without the prior written consent of the Beneficiary: (i) agrees to or actually sells, conveys, transfers or disposes of the Collateral or any interest therein or portion thereof, or (ii) assigns or delegates any right or obligation under the Agreement, the Note or this Deed of Trust, then all amounts secured by this Deed of Trust may be declared immediately due and payable, at the option of the Beneficiary. The Beneficiary shall not unreasonably withhold its consent to any such transaction. The Beneficiary's consent to one transaction of this type shall not be a waiver of the right to require consent to future or successive transactions. 17. As further security for the full and complete performance of each and every obligation, covenant, agreement and duty of the Trustor contained herein or in the Note, the Trustor hereby grants and conveys to the Beneficiary a security interest in and lien on all of the Collateral. This Deed of Trust shall serve as a security agreement and financing statement created pursuant to the California Commercial Code, and the Beneficiary will have and may exercise all rights, remedies and powers of a secured party under the California Commercial Code. Further, this Deed of Trust is filed as a fixture filing pursuant to the California Commercial Code and other applicable law, and covers goods which are or are to become fixtures. 18. Should the Property, the buildings or improvements thereon, or any part of any of them be taken or damaged by reason of any public improvement or condemnation proceeding, or damaged by fire or earthquake or in any other manner, the Beneficiary will be entitled, to all of the Trustor's interest in compensation, awards and other payments or relief therefor; and, following the occurrence of a default as defined in the Note, the Beneficiary shall be entitled, jointly with the Trustor, at the Beneficiary's option, to commence, appear in and prosecute in its own name, any action or proceeding, or to make any compromise or settlement, in connection with such taking or damage. All such compensation, awards, damages, rights of action and proceeds, including the proceeds of any fire and other insurance affecting the Property or the buildings or improvements thereon, are hereby assigned to the Beneficiary. After deducting therefrom all its expenses, including reasonable attorneys' fees, and if there has not occurred a default under the Note, the Beneficiary shall apply all such proceeds to restoring the Property or the buildings or improvements thereon, or if there has been such default, or if the Trustor determines not to rebuild, the Beneficiary shall retain the proceeds to the extent of the amount due under the Note and any amounts due under this Deed of Trust. Any balance of such proceeds still remaining shall be disbursed by the Beneficiary to the Trustor. 19. If the Trustor fails to perform any covenant or agreement in this Deed of Trust or the Participation Agreement, or if a default occurs under the Note, the Beneficiary may declare all obligations and sums secured hereby immediately due and payable by delivery to the Trustee of written declaration of default and demand for sale and written notice of default and of election to cause the Collateral to be sold, which notice the Trustee shall cause to be duly filed for record, and the Beneficiary may foreclose this Deed of Trust; provided, however that the Trustor shall not be deemed to be in default hereunder for failure to make any payment when due or for failure to perform any other covenant or agreement contained herein until thirty (30) days after written notice of such failure is given to the Trustor and Trustor is afforded a reasonable opportunity to - 19 - cure the default. The Beneficiary shall also deposit with the Trustee this Deed of Trust, the Note and all other documents evidencing the obligations or sums secured hereby. 20. After the lapse of such time as may then be required by law following the recordation of the notice of default, and notice of sale having been given as then required by law, the Trustee, without demand on the Trustor, shall sell the Property at the time and place fixed by the Trustee in the notice of sale, either as a whole or in separate parcels, 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 time of sale. The Trustee may postpone sale of all or any portion of the Property by public announcement at the time and place of sale, and from time to time thereafter may further postpone the sale by public announcement at the time fixed by the preceding postponement. The Trustee shall deliver to the purchaser its deed conveying fee title to the Property or portion thereof so sold, but without any covenant or warranty, express or implied. The recitals in the Trustee's deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including the Trustor, the Trustee and the Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds of the sale to payment of (i) the expenses of the sale, together with the reasonable expenses of the trust created by this Deed of Trust, including reasonable Trustee's fees and attorneys' fees for conducting the sale, and the actual cost of publishing, recording, mailing and posting notice of the sale; (ii) the cost of any search and/or other evidence of title procedure in connection with the sale and of revenue stamps on the Trustee's deed; (iii) all sums expended under the terms hereof not then repaid, with accrued interest at the legal rate; (iv) all other sums then secured hereby; and (v) the remainder, if any, to the person or persons legally entitled thereto. 21. The Beneficiary may from time to time substitute a successor or successors to the Trustee named herein or acting hereunder to execute the trusts under this Deed of Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by the Beneficiary, containing reference to this Deed of Trust and its place of record, which instrument, when duly recorded in Riverside County, California, shall be conclusive proof of proper appointment of the successor trustee. 22. Upon written request of the Beneficiary stating that all obligations secured hereby have been satisfied and all sums secured hereby have been paid, and upon surrender of this Deed of Trust and the Note to the Trustee for cancellation and retention, and upon payment of its fees, the Trustee shall reconvey, without warranty, the Collateral then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto." 23. The trusts created by this Deed of Trust are irrevocable by the Trustor. 24. This Deed of Trust applies to, inures to the benefit of, and binds of the Trustor, the Beneficiary and the Trustee and their respective administrators, executors, officers, directors, - 20 - transferees, successors and assigns. The term "Beneficiary" shall include not only the original Beneficiary hereunder but also any future owner and holder, including pledges, of the Note secured hereby. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular includes the plural. 25. In addition to and without limitation on any other rights or remedies of the Trustee or the Beneficiary, if the Trustee or the Beneficiary commences any legal action or proceeding to enforce or interpret any provision of this Deed of Trust or the Note, the Trustor shall pay all costs and expenses incurred by the Trustee or the Beneficiary in connection with such action or proceeding, including legal expenses and reasonable attorneys' fees and court costs. 26. The Trustee accepts the trusts hereunder when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law, the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action or proceeding in which the Trustor, the Beneficiary or the Trustee is a party, unless brought by the Trustee. 27. The Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to it at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm Springs, California 92262. 28. The Trustor shall cause a copy of each deed of trust securing a Construction/ Permanent Financing Loan to be provided to the Beneficiary immediately upon its recordation, so that the Beneficiary may prepare and record a request for notice of default and notice of sale thereunder pursuant to California Civil Code Section 2924b. 29. This Deed of Trust shall be interpreted and enforced, and the rights and duties (both procedural and substantive) of the parties hereunder shall be determined, according to California law. 30. Capitalized terms not otherwise defined herein shall have the meanings given them in the Agreement or the Note. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date set forth above. TRUSTOR: City of Palm Springs, California David H. Ready, Esq., Ph.D. City Manager - 21 - ACKNOWLEDGMENTS STATE OF CALIFORNIA ) ) ss. COUNTY OF RIVERSIDE ) On 2012, before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (SEAL) _ 22 _ EXHIBIT "A" TO DEED OF TRUST LEGAL DESCRIPTION All that certain real property situated in the City of Palm Springs, County of Riverside, State of California, described as follows: PARCEL`A": ALL THAT PORTION N OF PARCEL 1 OF PARCEL MAP NO.23130 AS FILED IN PARCEL MAP BOOK 181 AT PAGES 50 THROUGH 63,INCLUSIVE,RECORDS Of RIVERSIDE COUNTY,CALIFORNIA, DESCRIBED AS FOLLOWS; COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 1,THENCE SOUTH 381k-337-1T EAST ALONG;THE NORTHEASTERLY LINE OF SAID PARCEL 1, A DISTANCE OF 21.11 FEET TO THE TRUE POINT-OF BEGWMWG, THE FOLLOWING SIX COURSES DING ALONG THE NORTHEASTERLY AND SOUTHEASTERLY LINES OF SAID PARCEL 1; THENCE SOUTH 38--TY-IT EAST,A DISTANCE E OF 151.76 FEET, THENCE NORTH 5112-26"-41'EAST,A DISTANCE E OF 10_00 FEET; THENCE SOUTH 38--33'-1T EAST,A DISTANCE OF 176.95 FEET, THENCE SOUTH 51"-2F-41-WEST,A DISTANCE OF 211.00 FEET; THENCE SOUTH 38--3SAT EAST,A DISTANCE OF 220-00 FEET TWJ14CE SOUTH 51'°-26'41-WEST,A DISTANCE 190_00 FEET; PiENCE LEAVING SAID SOUTHEASTERLY LINE,NORTH 38--33' IT WEST,A DISTANCE OF 220.0 FEET; THENCE NORTH 04'-51-32-EAST,A DISTANCE OF`452.52 FEET; THENCE NORTH 51 - 1'EAST„A DISTANCE OF 80_00 FEET TO THE TRUE POINT OF BEGINNING. SUBJECT TO EASEMENTS OF RECORD IF ANY. CONTAINING 120,981 SQ. FT12.78 AC. PREPARED BY SANBORN.A+E,INC_ ti ' L b_ Q ,y �� vi JOHN L.SAN ;PLS 4146 [..S_ 4146 ENT, 6/30114 Wo11-ns 37t}SY72 6.f "C y� Op CA � - 23 - EXHIBIT IB. K LIE CFPA I 1 DAZATALE + DIST. i PARCEL F2 fA f MOM aF. 179 Aa 1' to Aiv lip APM CITY Of PAW SPMGS EEP RNAIR D 7WT MPM&MG V -w— PLA T OEM or as p� pto = tw I -ul-yy J.Ll IF-03 tort - 24 - DEED OF TRUST Recording requested by, and when recorded mail to: Chino Cienega Foundation, a California public benefit corporation 901 North Palm Canyon Drive, Suite 200 Palm Springs, CA 92262 Attn: Steve Nichols, Trustee INSTRUCTIONS TO COUNTY RECORDER: Index this instrument as (i) a Deed of Trust, and (ii) a Fixture Filing Space above for Recorder's Use DEED OF TRUST AND ASSIGNMENT OF RENTS This DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is entered into between the CITY OF PALM SPRINGS, a municipal corporation and California Charter City, whose principal executive office is at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm Springs, California 92263 (the "Trustor"), in favor of FIRST AMERICAN TITLE COMPANY, whose address is (the"Trustee"), for the benefit of the Chino Cienega Foundation, a California public benefit corporation, located at 901 North Palm Canyon Drive, Suite 200, Palm Springs, CA 92262, (the"Beneficiary"). THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO THE TRUSTEE, in trust, with the power of sale, the real property in the City of Palm Springs, Riverside County, California, more particularly described in Exhibit A attached hereto and made part hereof by reference(the "Property"), together with: (i) All tenements, hereditaments and appurtenances of or to the Property, including without limitation all easements and rights used in connection therewith or as a means of access thereto, all right, title and interest of the Trustor, now owned or hereafter acquired, in any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys, strips and other areas of land adjacent to or used in connection with the Property; (ii) All oil and gas or other mineral rights in or pertaining to the Property and all royalty, leasehold and other rights of the Trustor pertaining thereto; - 25 - (iii) All water rights pertaining to the Property and shares of stock evidencing the same, and all deposits made with or other security given to utility companies by the Trustor with respect to the Property; (iv) The rents, issues and profits thereof, subject, however, to the right, power and authority of Trustor to collect and apply such rents, issues and profits and set forth in this Deed of Trust; (v) All buildings and improvements of every kind and description now or hereafter erected or placed on the Property, and all fixtures thereon, including, but not limited to, all gas and electric fixtures, engines and machinery, radiators, heaters, furnaces, heating equipment, laundry equipment, steam and hot water boilers, stoves, ranges, elevators and motors, bath tubs, sinks, water closets, basins, pipes, faucets and other plumbing and heating fixtures, mantels, cabinets, refrigeration plant and refrigerators, whether mechanical or otherwise, cooking apparatus and appurtenances, and all shades, awnings, screens, blinds and other furnishings, it being hereby agreed that all such fixtures and furnishings shall to the extent permitted by law be deemed permanently affixed to and a part of the realty; (vi) All building materials and equipment now or hereafter delivered to the Property and intended to be installed thereon; and (vii) All articles of personal property owned by the Trustor and now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, and all other goods, chattels and personal property as are ever used or fiunished in operating a building, or the activities conducted therein, similar to the ones herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are or shall be attached to the building or buildings in any manner; subject, however, to (and only to) any purchase money security interests in such personal property. Said real property and personal property described above, together with appurtenances, are referred to collectively in this Deed of Trust as the "Collateral." FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS: (a) Payment to the Beneficiary of an indebtedness in the principal amount of Tow Hundred Forty Five Thousand Dollars ($245,000.00), evidenced by a promissory note executed by the Trustor and payable to the order of the Beneficiary, bearing the same date as this Deed of Trust, and any and all modifications, extensions or renewals thereof or substitutions therefor (the "Note"), and performance and satisfaction of each and all other obligations of the Trustor under the Note; - 26 - (b) Performance of every obligation or Trustor in this Deed of Trust, the Note, the Agreement for Purchase and Sale between Beneficiary and Trustor related to the Property (the "Agreement"); and (c) Payment of all sums, if any, and interest thereon that may hereafter be loaned or advanced by the Beneficiary to or for the benefit of the Trustor or to its successors, transferees and assigns, made to the Trustor while the Trustor is the owner of record of fee title to the Property, or any portion thereof, or to the successors, transferees or assigns of the Truster while they are the owners of record of such fee title, and evidenced by one or more notes or written instruments which recite that they are secured by this Deed of Trust. TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR COVENANTS AND AGREES AS FOLLOWS: 1. The Trustor shall not use or permit the use of any of the Collateral for any purpose other than the use for which it was intended at the time this Deed of Trust was executed, as provided in the Participation Agreement. 2. Upon default under this Deed of Trust or the Note (following delivery of notice and expiration of the cure period, if any, provided therein), the Beneficiary, at its option, may declare the whole of the obligations and sums secured hereby to be immediately due and payable. 3. The person(s) or entity(ies) who have executed this Deed of Trust are fully authorized, and have obtained any and all written authorizations, approvals or consents necessary, to bind the Truster to this Deed of Trust. 4. All rents, profits and income from the Collateral covered by this Deed of Trust are hereby assigned to the Beneficiary for the purpose of discharging the obligations hereby secured. However, the Trustor shall be permitted, so long as no default exists hereunder or under the Note, to collect such rents, profits and income for use consistent with the provisions of the Agreement. 5. Upon default hereunder or under the Note (following delivery of notice and expiration of the cure period, if any, provided herein or therein), for the purpose of protecting its interests hereunder, the Beneficiary will be entitled to the appointment by a court having jurisdiction, without further notice and without regard to adequacy of any security for the indebtedness secured hereby, of a receiver to take possession of and protect the Collateral described herein and operate same and collect the rents, profits and income therefrom. The entering upon and taking possession of the Property or other Collateral by such receiver, the collection of such rents, profits and income and the application thereof shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. 6. The Trustor, at its sole cost and expense, shall provide and maintain on the entire Property, including all buildings and improvements thereon: (i) a policy of broad-form builder's - 27 - risk insurance sufficient to cover 100 percent of the replacement value of all buildings and improvements on the Property including; without limitation, labor and materials in place or to be used as part of the permanent construction (including, without limitation, surplus miscellaneous materials and supplies incidental to the work, and scaffolding, staging, towers, forms and equipment not owned or rented by the Beneficiary, the cost of which is not included in the cost of work), insuring against loss or damage by fire, extended coverage perils and such other hazards, casualties or other contingencies as from time to time may be reasonably required by the Beneficiary; (ii) a policy of commercial general liability insurance that includes contractual, products and completed operations coverages, bodily injury and property damage liability insurance with combined single limits of not less than $1,000,000 per occurrence; and (iii) such other insurance as may be reasonably required by the Beneficiary, in each case in such amounts, in such manner and with such companies as the Beneficiary and Trustor may reasonably approve. The foregoing minimum insurance coverage limits shall be subject to reasonable adjustment from time to time by the Beneficiary. Each such policy shall be endorsed with a standard mortgage clause with loss payable to the Beneficiary and the Trustor, and shall provide that the policy shall not be canceled or materially changed without at least thirty (30) days' prior notice to the Beneficiary. Upon request by the Beneficiary, the Trustor immediately shall deposit with the Beneficiary certificates evidencing such policies. 7. The Trustor shall pay: (i) at least ten days before delinquency, all taxes and assessments affecting the Collateral, including assessments on appurtenant water stock; (ii) when due, all encumbrances, charges and liens, with interest, on the Collateral or any part thereof which appear to be prior or superior hereto; and (iii) all costs, fees and expenses of the Trustee or the Beneficiary reasonably incurred in connection with the trusts created under this Deed of Trust. 8. The Trustor shall: (i) keep the Collateral in good condition and repair and not remove or demolish any buildings on the Property; to the extent insurance or condemnation proceeds are available; (ii) complete or restore promptly and in good and workmanlike manner the buildings and improvements and any other building or improvement which may be constructed, damaged or destroyed thereon; (iii) pay when due all claims for labor performed and materials furnished therefore; (iv) comply in all material respects with all laws affecting the Collateral or requiring any alterations or improvements to be made thereon; (v) not commit or permit waste of or on the Collateral; and (vi) not commit, suffer or permit any act upon the Property in violation of law and/or any covenants, conditions or restrictions affecting the Collateral. 9. The Trustor shall appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee, and shall pay all costs and expenses, including cost of evidence of title and reasonable attorneys' fees, in any such action or proceeding in which the Beneficiary or the Trustee may appear, or in any suit brought by the Beneficiary to foreclose this Deed of Trust. 10. Should the Trustor fail to make any payment or do any act as herein provided, then the Beneficiary or the Trustee, without obligation to do so, and following notice to or _ 28 _ demand on the Trustor, and without releasing the Trustor from any obligation hereof: (i) may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, the Beneficiary or the Trustee being authorized to enter on the Property for such purposes; (ii) may commence, appear in and/or defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee; (iii) may pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto (except for the deeds of trust, encumbrances and liens securing the Construction/Permanent Financing Loan(s) and the Agency Loan, as such terms are defined below); and (iv) in exercising any such powers, may pay necessary expenses, employ legal counsel and pay such counsel's reasonable fees. All such amounts paid by the Beneficiary or the Trustee hereunder shall be added to the obligations secured by this Deed of Trust. 11. The Beneficiary shall have the right, but not the obligation, to pay when due fire or other insurance premiums required hereunder if the Trustor fails to make such payments. All such amounts paid by the Beneficiary hereunder shall be added to the obligations secured by this Deed of Trust. 12. The Trustor shall pay immediately upon demand all sums so expended by the Beneficiary or the Trustee under this Deed of Trust, with interest from date of expenditure at the legal rate. 13. If the Trustor fails to pay any amount required by the Note or this Deed of Trust when due and payable, or fails to perform all other covenants, conditions and agreements of the Note, this Deed of Trust or the Participation Agreement (following delivery of notice and expiration of the cure period, if any, provided therein), the amount of the Note, including unpaid principal and late charges, and all other charges and amounts required by the Note and this Deed of Trust shall, at the option of the Beneficiary, become immediately due and payable. This shall be in addition to and without limitation on any other remedy or right available to the Beneficiary for such failure. 14. The Trustor shall not voluntarily create or permit to be created against the Collateral any lien or liens except as specifically permitted by this Deed of Trust or otherwise authorized by the Beneficiary. The Trustor shall keep and maintain the Collateral free from the claims of all persons supplying labor or materials who will enter into the construction, rehabilitation, renovation or repair of any and all buildings or improvements now existing or to be erected on the Property. 15. By accepting payment of any sum secured by this Deed of Trust after its due date or by accepting partial payment of any such sum, the Beneficiary does not waive its right either to require prompt payment when due of all other sums so secured or to declare default for the Trustor's failure to pay. 16. If the Trustor, without the prior written consent of the Beneficiary: (i) agrees to or actually sells, conveys, transfers or disposes of the Collateral or any interest therein or portion - 29 - thereof, or (ii) assigns or delegates any right or obligation under the Agreement, the Note or this Deed of Trust, then all amounts secured by this Deed of Trust may be declared immediately due and payable, at the option of the Beneficiary. The Beneficiary shall not unreasonably withhold its consent to any such transaction. The Beneficiary's consent to one transaction of this type shall not be a waiver of the right to require consent to future or successive transactions. 17. As further security for the full and complete performance of each and every obligation, covenant, agreement and duty of the Trustor contained herein or in the Note, the Trustor hereby grants and conveys to the Beneficiary a security interest in and lien on all of the Collateral. This Deed of Trust shall serve as a security agreement and financing statement created pursuant to the California Commercial Code, and the Beneficiary will have and may exercise all rights, remedies and powers of a secured party under the California Commercial Code. Further, this Deed of Trust is filed as a fixture filing pursuant to the California Commercial Code and other applicable law, and covers goods which are or are to become fixtures. 18. Should the Property, the buildings or improvements thereon, or any part of any of them be taken or damaged by reason of any public improvement or condemnation proceeding, or damaged by fire or earthquake or in any other manner, the Beneficiary will be entitled, to all of the Trustor's interest in compensation, awards and other payments or relief therefor; and, following the occurrence of a default as defined in the Note, the Beneficiary shall be entitled, jointly with the Trustor, at the Beneficiary's option, to commence, appear in and prosecute in its own name, any action or proceeding, or to make any compromise or settlement, in connection with such taking or damage. All such compensation, awards, damages, rights of action and proceeds, including the proceeds of any fire and other insurance affecting the Property or the buildings or improvements thereon, are hereby assigned to the Beneficiary. After deducting therefrom all its expenses, including reasonable attorneys' fees, and if there has not occurred a default under the Note, the Beneficiary shall apply all such proceeds to restoring the Property or the buildings or improvements thereon, or if there has been such default, or if the Trustor determines not to rebuild, the Beneficiary shall retain the proceeds to the extent of the amount due under the Note and any amounts due under this Deed of Trust. Any balance of such proceeds still remaining shall be disbursed by the Beneficiary to the Trustor. 19. If the Trustor fails to perform any covenant or agreement in this Deed of Trust or the Participation Agreement, or if a default occurs under the Note, the Beneficiary may declare all obligations and sums secured hereby immediately due and payable by delivery to the Trustee of written declaration of default and demand for sale and written notice of default and of election to cause the Collateral to be sold, which notice the Trustee shall cause to be duly filed for record, and the Beneficiary may foreclose this Deed of Trust; provided, however that the Trustor shall not be deemed to be in default hereunder for failure to make any payment when due or for failure to perform any other covenant or agreement contained herein until thirty (30) days after written notice of such failure is given to the Trustor and Trustor is afforded a reasonable opportunity to cure the default. The Beneficiary shall also deposit with the Trustee this Deed of Trust, the Note and all other documents evidencing the obligations or sums secured hereby. - 30 - 20. After the lapse of such time as may then be required by law following the recordation of the notice of default, and notice of sale having been given as then required by law, the Trustee, without demand on the Trustor, shall sell the Property at the time and place fixed by the Trustee in the notice of sale, either as a whole or in separate parcels, 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 time of sale. The Trustee may postpone sale of all or any portion of the Property by public announcement at the time and place of sale, and from time to time thereafter may further postpone the sale by public announcement at the time fixed by the preceding postponement. The Trustee shall deliver to the purchaser its deed conveying fee title to the Property or portion thereof so sold, but without any covenant or warranty, express or implied. The recitals in the Trustee's deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including the Trustor, the Trustee and the Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds of the sale to payment of (i) the expenses of the sale, together with the reasonable expenses of the trust created by this Deed of Trust, including reasonable Trustee's fees and attorneys' fees for conducting the sale, and the actual cost of publishing, recording, mailing and posting notice of the sale; (ii) the cost of any search and/or other evidence of title procedure in connection with the sale and of revenue stamps on the Trustee's deed; (iii) all sums expended under the terms hereof not then repaid, with accrued interest at the legal rate; (iv) all other sums then secured hereby; and (v) the remainder, if any, to the person or persons legally entitled thereto. 21. The Beneficiary may from time to time substitute a successor or successors to the Trustee named herein or acting hereunder to execute the trusts under this Deed of Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by the Beneficiary, containing reference to this Deed of Trust and its place of record, which instrument, when duly recorded in Riverside County, California, shall be conclusive proof of proper appointment of the successor trustee. 22. Upon written request of the Beneficiary stating that all obligations secured hereby have been satisfied and all sums secured hereby have been paid, and upon surrender of this Deed of Trust and the Note to the Trustee for cancellation and retention, and upon payment of its fees, the Trustee shall reconvey, without warranty, the Collateral then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto." 23. The trusts created by this Deed of Trust are irrevocable by the Trustor. 24. This Deed of Trust applies to, inures to the benefit of, and binds of the Trustor, the Beneficiary and the Trustee and their respective administrators, executors, officers, directors, transferees, successors and assigns. The term `Beneficiary" shall include not only the original Beneficiary hereunder but also any future owner and holder, including pledges, of the Note - 31 - secured hereby. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular includes the plural. 25. In addition to and without limitation on any other rights or remedies of the Trustee or the Beneficiary, if the Trustee or the Beneficiary commences any legal action or proceeding to enforce or interpret any provision of this Deed of Trust or the Note, the Trustor shall pay all costs and expenses incurred by the Trustee or the Beneficiary in connection with such action or proceeding, including legal expenses and reasonable attorneys' fees and court costs. 26. The Trustee accepts the trusts hereunder when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law, the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action or proceeding in which the Trustor, the Beneficiary or the Trustee is a party, unless brought by the Trustee. 27. The Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to it at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm Springs, California 92262. 28. The Trustor shall cause a copy of each deed of trust securing a Construction/ Permanent Financing Loan to be provided to the Beneficiary immediately upon its recordation, so that the Beneficiary may prepare and record a request for notice of default and notice of sale thereunder pursuant to California Civil Code Section 2924b. 29. This Deed of Trust shall be interpreted and enforced, and the rights and duties (both procedural and substantive) of the parties hereunder shall be determined, according to California law. 30. Capitalized terms not otherwise defined herein shall have the meanings given them in the Agreement or the Note. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date set forth above. TRUSTOR: City of Palm Springs, California David H. Ready, Esq., Ph.D., City Manager - 32 - ACKNOWLEDGMENTS STATE OF CALIFORNIA ) ) ss. COUNTY OF RIVERSIDE ) On 2012, before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ics), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (SEAL) - 33 - EXHIBIT "A" TO DEED OF TRUST LEGAL DESCRIPTION All that certain real property situated in the City of Palm Springs, County of Riverside, State of California, described as follows: PARCEL"A": ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO 231311 AS FILED IN PARCEL MAP BOOK 181 AT PAGES 50 THROUGH 53,INCLUSIVE,RECORDS OF RIVERSIDE COUNTY,CALIFORNIA,DESCRIBED AS FOLLOWS, COMMENCING AT THE NORTIVIEAST CORNER OF SAID PARCEL 1,THENCE SOUTH 380-33AT EAST ALONG THE NORTHEASTERLY LINE OF SAID PARCEL 1, A DISTANCE OF 21.11 FEET TO THE TRUE POINT OF BEGIUNNIQ THE FOLLOWING SIX COURSES BEING ALONG THE NORTHEASTERLY AND SOUTHEASTERLY LINES OF SAID PARCEL 1; THENCE -3T-IT EAST,A DISTANCE OF 151.76 FEET; THENCE NORTH 51'-26'-41-EAST,A DISTANCE OF 10.00 FEET; THENCE SOUTH 38"-Tr-1T EAST,A DISTANCE OF 176.95 FEET; THENCE SOUTH 51"-26'41-WEST,A DISTANCE OF 211.00 FEET; THENCE SOUTH 38"33 IT EAST,A DISTANCE OF 220.IX1 FEET THENCE SO "51 26' 41 MST,A DESTANCE OF 190-00 FEET; THENCE LEAV04G SAID SOUTHEASTERLY LINE,NORTH 38---33'1T WEST,A DISTANCE OF 220.0 FEET; THENCE NORTH 04'-51'-32-EAST,A DISTANCE OF 45252 FEET, THENCE NORTH 5111-2F-41"EAST,A DISTANCE OF 80 0 FEET TO THE TRUE PONTOF BEGINNING. SUBJECT TO EASEMENTS OF RECORD IF ANY. CONTAINING 120,901 SO.FTJ 2.78 AC_ PREPARED BY L Ldiiy SA ME,Me- ;�C "N L.SAN N;PIS 4146 L S. 414.6 rav e/330/14 A Wo 11-13§ 9Tr97.nx � ap C A L% - 34 - KECOL OF EXHI]t T "B" P "A" N LPG 0=Pam I - DAM MOLE I CI$T. (jN PARCEL jh ( PVC V. A78 AC, t' b e Q L& 4146 M i CITY Or PALM y� gg NtfGS PUMC WORKS DFPAR77o. . T MW P"T fESMBY± SCAM Mr EXMT W af an P. itQ 1 S it- - 35 - - 36 - EXHIBIT "D-2" Deed of Trust—Trust DEED OF TRUST Recording requested by, and when recorded mail to: Stephen C.Nichols& Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 901 North Palm Canyon Drive, Suite 200 Palm Springs, CA 92262 INSTRUCTIONS TO COUNTY RECORDER: Index this instrument as (i) a Deed of Trust, and (ii) a Fixture Filing Space above for Recorder's Use DEED OF TRUST AND ASSIGNMENT OF RENTS This DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is entered into between the. CITY OF PALM SPRINGS, a municipal corporation and California Charter City, whose principal executive office is at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm Springs, California 92263 (the "Trustor"), in favor of FIRST AMERICAN TITLE COMPANY, whose address is (the"Trustee"), for the benefit of the Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003, located at 901 North Palm Canyon Drive, Suite 200, Palm Springs, CA 92262, (the`Beneficiary"). THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO THE TRUSTEE, in trust, with the power of sale, the real property in the City of Palm Springs, Riverside County, California, more particularly described in Exhibit A attached hereto and made part hereof by reference (the"Property"), together with: (i) All tenements, hereditaments and appurtenances of or to the Property, including without limitation all easements and rights used in connection therewith or as a means of access thereto, all right, title and interest of the Trustor, now owned or hereafter acquired, in any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys, strips and other areas of land adjacent to or used in connection with the Property; - 37 - (ii) All oil and gas or other mineral rights in or pertaining to the Property and all royalty, leasehold and other rights of the Trustor pertaining thereto; (iii) All water rights pertaining to the Property and shares of stock evidencing the same, and all deposits made with or other security given to utility companies by the Trustor with respect to the Property, (iv) The rents, issues and profits thereof, subject, however, to the right, power and authority of Trustor to collect and apply such rents, issues and profits and set forth in this Deed of Trust; (v) All buildings and improvements of every kind and description now or hereafter erected or placed on the Property, and all fixtures thereon, including, but not limited to, all gas and electric fixtures, engines and machinery, radiators, heaters, furnaces, heating equipment, laundry equipment, steam and hot water boilers, stoves, ranges, elevators and motors, bath tubs, sinks, water closets, basins, pipes, faucets and other plumbing and heating fixtures, mantels, cabinets, refrigeration plant and refrigerators, whether mechanical or otherwise, cooking apparatus and appurtenances, and all shades, awnings, screens, blinds and other furnishings, it being hereby agreed that all such fixtures and fi raishings shall to the extent permitted by law be deemed permanently affixed to and a part of the realty; (vi) All building materials and equipment now or hereafter delivered to the Property and intended to be installed thereon; and (vii) All articles of personal property owned by the Trustor and now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, and all other goods, chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the ones herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are or shall be attached to the building or buildings in any manner; subject, however, to (and only to) any purchase money security interests in such personal property. Said real property and personal property described above, together with appurtenances, are referred to collectively in this Deed of Trust as the "Collateral." FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS: (a) Payment to the Beneficiary of an indebtedness in the principal amount of Tow Hundred Forty Five Thousand Dollars ($245,000.00), evidenced by a promissory note executed by the Trustor and payable to the order of the Beneficiary, bearing the same date as this Deed of Trust, and any and all modifications, extensions or renewals thereof or substitutions therefor (the "Note"), and performance and satisfaction of each and all other obligations of the Trustor under the Note; - 38 - (b) Performance of every obligation or Trustor in this Deed of Trust, the Note, the Agreement for Purchase and Sale between Beneficiary and Trustor related to the Property (the "Agreement'); and (c) Payment of all sums, if any, and interest thereon that may hereafter be loaned or advanced by the Beneficiary to or for the benefit of the Trustor or to its successors, transferees and assigns, made to the Trustor while the Trustor is the owner of record of fee title to the Property, or any portion thereof, or to the successors, transferees or assigns of the Trustor while they are the owners of record of such fee title, and evidenced by one or more notes or written instruments which recite that they are secured by this Deed of Trust. TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR COVENANTS AND AGREES AS FOLLOWS: 1. The Trustor shall not use or permit the use of any of the Collateral for any purpose other than the use for which it was intended at the time this Deed of Trust was executed, as provided in the Participation Agreement. 2. Upon default under this Deed of Trust or the Note (following delivery of notice and expiration of the cure period, if any, provided therein), the Beneficiary, at its option, may declare the whole of the obligations and sums secured hereby to be immediately due and payable. 3. The person(s) or entity(ies) who have executed this Deed of Trust are fully authorized, and have obtained any and all written authorizations, approvals or consents necessary, to bind the Trustor to this Deed of Trust. 4. All rents,profits and income from the Collateral covered by this Deed of Trust are hereby assigned to the Beneficiary for the purpose of discharging the obligations hereby secured. However, the Trustor shall be permitted, so long as no default exists hereunder or under the Note, to collect such rents, profits and income for use consistent with the provisions of the Agreement. 5. Upon default hereunder or under the Note (following delivery of notice and expiration of the cure period, if any, provided herein or therein), for the purpose of protecting its interests hereunder, the Beneficiary will be entitled to the appointment by a court having jurisdiction, without further notice and without regard to adequacy of any security for the indebtedness secured hereby, of a receiver to take possession of and protect the Collateral described herein and operate same and collect the rents, profits and income therefrom. The entering upon and taking possession of the Property or other Collateral by such receiver, the collection of such rents, profits and income and the application thereof shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. - 39 - 6. The Trustor, at its sole cost and expense, shall provide and maintain on the entire Property, including all buildings and improvements thereon: (i) a policy of broad-form builder's risk insurance sufficient to cover 100 percent of the replacement value of all buildings and improvements on the Property including; without limitation, labor and materials in place or to be used as part of the permanent construction (including, without limitation, surplus miscellaneous materials and supplies incidental to the work, and scaffolding, staging, towers, forms and equipment not owned or rented by the Beneficiary, the cost of which is not included in the cost of work), insuring against loss or damage by fire, extended coverage perils and such other hazards, casualties or other contingencies as from time to time may be reasonably required by the Beneficiary; (ii) a policy of commercial general liability insurance that includes contractual, products and completed operations coverages, bodily injury and property damage liability insurance with combined single limits of not less than $1,000,000 per occurrence; and (iii) such other insurance as may be reasonably required by the Beneficiary, in each case in such amounts, in such manner and with such companies as the Beneficiary and Trustor may reasonably approve. The foregoing minimum insurance coverage limits shall be subject to reasonable adjustment from time to time by the Beneficiary. Each such policy shall be endorsed with a standard mortgage clause with loss payable to the Beneficiary and the Trustor, and shall provide that the policy shall not be canceled or materially changed without at least thirty(30) days' prior notice to the Beneficiary. Upon request by the Beneficiary, the Trustor immediately shall deposit with the Beneficiary certificates evidencing such policies. 7. The Trustor shall pay: (i) at least ten days before delinquency, all taxes and assessments affecting the Collateral, including assessments on appurtenant water stock; (ii) when due, all encumbrances, charges and liens, with interest, on the Collateral or any part thereof which appear to be prior or superior hereto; and (iii) all costs, fees and expenses of the Trustee or the Beneficiary reasonably incurred in connection with the trusts created under this Deed of Trust. 8. The Trustor shall: (i) keep the Collateral in good condition and repair and not remove or demolish any buildings on the Property; to the extent insurance or condemnation proceeds are available; (ii) complete or restore promptly and in good and workmanlike manner the buildings and improvements and any other building or improvement which may be constructed, damaged or destroyed thereon; (iii) pay when due all claims for labor performed and materials furnished therefore; (iv) comply in all material respects with all laws affecting the Collateral or requiring any alterations or improvements to be made thereon; (v) not commit or permit waste of or on the Collateral; and (vi) not commit, suffer or permit any act upon the Property in violation of law and/or any covenants, conditions or restrictions affecting the Collateral. 9. The Trustor shall appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee, and shall pay all costs and expenses, including cost of evidence of title and reasonable attorneys' fees, in any such action or proceeding in which the Beneficiary or the Trustee may appear, or in any suit brought by the Beneficiary to foreclose this Deed of Trust. -40 - 10. Should the Trustor fail to make any payment or do any act as herein provided, then the Beneficiary or the Trustee, without obligation to do so, and following notice to or demand on the Trustor, and without releasing the Truster from any obligation hereof: (i) may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, the Beneficiary or the Trustee being authorized to enter on the Property for such purposes; (ii) may commence, appear in and/or defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee; (iii) may pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto (except for the deeds of trust, encumbrances and liens securing the Construction/Permanent Financing Loan(s) and the Agency Loan, as such terms are defined below); and (iv) in exercising any such powers, may pay necessary expenses, employ legal counsel and pay such counsel's reasonable fees. All such amounts paid by the Beneficiary or the Trustee hereunder shall be added to the obligations secured by this Deed of Trust. 11. The Beneficiary shall have the right, but not the obligation, to pay when due fire or other insurance premiums required hereunder if the Trustor fails to make such payments. All such amounts paid by the Beneficiary hereunder shall be added to the obligations secured by this Deed of Trust. 12. The Trustor shall pay immediately upon demand all sums so expended by the Beneficiary or the Trustee under this Deed of Trust, with interest from date of expenditure at the legal rate. 13. If the Truster fails to pay any amount required by the Note or this Deed of Trust when due and payable, or fails to perform all other covenants, conditions and agreements of the Note, this Deed of Trust or the Participation Agreement (following delivery of notice and expiration of the cure period, if any, provided therein), the amount of the Note, including unpaid principal and late charges, and all other charges and amounts required by the Note and this Deed of Trust shall, at the option of the Beneficiary, become immediately due and payable. This shall be in addition to and without limitation on any other remedy or right available to the Beneficiary for such failure. 14. The Trustor shall not voluntarily create or permit to be created against the Collateral any lien or liens except as specifically permitted by this Deed of Trust or otherwise authorized by the Beneficiary. The Truster shall keep and maintain the Collateral free from the claims of all persons supplying labor or materials who will enter into the construction, rehabilitation, renovation or repair of any and all buildings or improvements now existing or to be erected on the Property. 15. By accepting payment of any sum secured by this Deed of Trust after its due date or by accepting partial payment of any such sum, the Beneficiary does not waive its right either to require prompt payment when due of all other sums so secured or to declare default for the Truster's failure to pay. - 41 - 16. If the Trustor, without the prior written consent of the Beneficiary: (i) agrees to or actually sells, conveys, transfers or disposes of the Collateral or any interest therein or portion thereof, or(ii) assigns or delegates any right or obligation under the Agreement, the Note or this Deed of Trust, then all amounts secured by this Deed of Trust may be declared immediately due and payable, at the option of the Beneficiary. The Beneficiary shall not unreasonably withhold its consent to any such transaction. The Beneficiary's.consent to one transaction of this type shall not be a waiver of the right to require consent to future or successive transactions. 17. As further security for the full and complete performance of each and every obligation, covenant, agreement and duty of the Trustor contained herein or in the Note, the Trustor hereby grants and conveys to the Beneficiary a security interest in and lien on all of the Collateral. This Deed of Trust shall serve as a security agreement and financing statement created pursuant to the California Commercial Code, and the Beneficiary will have and may exercise all rights, remedies and powers of a secured party under the California Commercial Code. Further, this Deed of Trust is filed as a fixture filing pursuant to the California Commercial Code and other applicable law, and covers goods which are or are to become fixtures. 18. Should the Property, the buildings or improvements thereon, or any part of any of them be taken or damaged by reason of any public improvement or condemnation proceeding, or damaged by fire or earthquake or in any other manner, the Beneficiary will be entitled, to all of the Trustor's interest in compensation, awards and other payments or relief therefor; and, following the occurrence of a default as defined in the Note, the Beneficiary shall be entitled, jointly with the Trustor, at the Beneficiary's option, to commence, appear in and prosecute in its own name, any action or proceeding, or to make any compromise or settlement, in connection with such taking or damage. All such compensation, awards, damages, rights of action and proceeds, including the proceeds of any fire and other insurance affecting the Property or the buildings or improvements thereon, are hereby assigned to the Beneficiary. After deducting therefrom all its expenses, including reasonable attorneys' fees, and if there has not occurred a default under the Note, the Beneficiary shall apply all such proceeds to restoring the Property or the buildings or improvements thereon, or if there has been such default, or if the Trustor determines not to rebuild, the Beneficiary shall retain the proceeds to the extent of the amount due under the Note and any amounts due under this Deed of Trust. Any balance of such proceeds still remaining shall be disbursed by the Beneficiary to the Trustor. 19. If the Trustor fails to perform any covenant or agreement in this Deed of Trust or the Participation Agreement, or if a default occurs under the Note, the Beneficiary may declare all obligations and sums secured hereby immediately due and payable by delivery to the Trustee of written declaration of default and demand for sale and written notice of default and of election to cause the Collateral to be sold, which notice the Trustee shall cause to be duly filed for record, and the Beneficiary may foreclose this Deed of Trust; provided, however that the Trustor shall not be deemed to be in default hereunder for failure to make any payment when due or for failure to perform any other covenant or agreement contained herein until thirty (30) days after written notice of such failure is given to the Trustor and Trustor is afforded a reasonable opportunity to - 42 - cure the default. The Beneficiary shall also deposit with the Trustee this Deed of Trust, the Note and all other documents evidencing the obligations or sums secured hereby. 20. After the lapse of such time as may then be required by law following the recordation of the notice of default, and notice of sale having been given as then required by law, the Trustee, without demand on the Trustor, shall sell the Property at the time and place fixed by the Trustee in the notice of sale, either as a whole or in separate parcels, 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 time of sale. The Trustee may postpone sale of all or any portion of the Property by public announcement at the time and place of sale, and from time to time thereafter may further postpone the sale by public announcement at the time fixed by the preceding postponement. The Trustee shall deliver to the purchaser its deed conveying fee title to the Property or portion thereof so sold, but without any covenant or warranty, express or implied. The recitals in the Trustee's deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including the Trustor, the Trustee and the Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds of the sale to payment of: (i) the expenses of the sale, together with the reasonable expenses of the trust created by this Deed of Trust, including reasonable Trustee's fees and attorneys' fees for conducting the sale, and the actual cost of publishing, recording, mailing and posting notice of the sale; (ii) the cost of any search and/or other evidence of title procedure in connection with the sale and of revenue stamps on the Trustee's deed; (iii) all sums expended under the terms hereof not then repaid, with accrued interest at the legal rate; (iv) all other sums then secured hereby; and (v) the remainder, if any, to the person or persons legally entitled thereto. 21. The Beneficiary may from time to time substitute a successor or successors to the Trustee named herein or acting hereunder to execute the trusts under this Deed of Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by the Beneficiary, containing reference to this Deed of Trust and its place of record, which instrument, when duly recorded in Riverside County, California, shall be conclusive proof of proper appointment of the successor trustee. 22. Upon written request of the Beneficiary stating that all obligations secured hereby have been satisfied and all sums secured hereby have been paid, and upon surrender of this Deed of Trust and the Note to the Trustee for cancellation and retention, and upon payment of its fees, the Trustee shall reconvey, without warranty, the Collateral then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto." 23. The trusts created by this Deed of Trust are irrevocable by the Trustor. 24. This Deed of Trust applies to, inures to the benefit of, and binds of the Trustor, the Beneficiary and the Trustee and their respective administrators, executors, officers, directors, - 43 - transferees, successors and assigns. The term "Beneficiary" shall include not only the original Beneficiary hereunder but also any future owner and holder, including pledges, of the Note secured hereby. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular includes the plural. 25. In addition to and without limitation on any other rights or remedies of the Trustee or the Beneficiary, if the Trustee or the Beneficiary commences any legal action or proceeding to enforce or interpret any provision of this Deed of Trust or the Note, the Trustor shall pay all costs and expenses incurred by the Trustee or the Beneficiary in connection with such action or proceeding, including legal expenses and reasonable attorneys' fees and court costs. 26. The Trustee accepts the trusts hereunder when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law, the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action or proceeding in which the Trustor, the Beneficiary or the Trustee is a party, unless brought by the Trustee. 27. The Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to it at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm Springs, California 92262. 28. The Trustor shall cause a copy of each deed of trust securing a Construction/ Permanent Financing Loan to be provided to the Beneficiary immediately upon its recordation, so that the Beneficiary may prepare and record a request for notice of default and notice of sale thereunder pursuant to California Civil Code Section 2924b. 29. This Deed of Trust shall be interpreted and enforced, and the rights and duties (both procedural and substantive) of the parties hereunder shall be determined, according to California law. 30. Capitalized terms not otherwise defined herein shall have the meanings given them in the Agreement or the Note. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date set forth above. TRUSTOR: City of Palm Springs, California David H. Ready, Esq., Ph.D. City Manager - 44 - - 45 - ACKNOWLEDGMENTS STATE OF CALIFORNIA ) ) ss. COUNTY OF RIVERSIDE ) On 2012, before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (SEAL) - 46 - EXHIBIT "A" TO DEED OF TRUST LEGAL DESCRIPTION All that certain real property situated in the City of Palm Springs, County of Riverside, State of California, described as follows: PARCEL"A": ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 23130 AS FILED IN PARCEL MAP BOOK 181 AT PAGES 50 THROUGH 53,INCLL VE,RECORDS OF COUNTY,RIVERSIDE CALIFORNIA,DESCRIBED AS FOLLOWS; COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 1,THENCE SOUTH 38 33-1'9'EAST ALONG THE NORTHEASTERLY LINE OF SAID PARCEL 1, A DISTANCE OF 21.11 FEET TO THE TINE POffff OF BEGnWfG, THE FOLLOWING SIX COURSES BEING ALONG THE NORTHEASTERLY AND SOUTHEASTERLY LINES OF SAID PARCEL 1; THENCE SOUTH 3T-1T EAST,A DISTANCE OF 151.76 FEET; THENCE NORTH 51'-26'41-EAST,A DISTANCE OF 1000 FEET, THENCE SOUTH 38--3T-1T EAST,A DISTANCE OF 176_95 FEET, THENCE SOUTH 51--A'd1-LEST,A DISTANCE€1F 211.00 FEET; THENCE SOUTH -33'4T EAST,A DISTANCE OF 220_00 FEET THENCE SOUTH 5i8 29-41-WEST,A DISTANCE OF 190.00 FEET; THENCE LEAVING SAID SOUTHEASTERLY LINE,NORTH -33'-IT WEST,A DISTANCE OF _0 FEET; THENCE NORTH 04-51'32-EAST,A DISTANCE OF 452-52 FEET; THENCE NORTH 51"-29-41'FAST,A DISTANCE OF 80.00 FEET TO THE TRUE POINT OF BEGINNING. SUBJECT TO EASEMENTS OF RECORD IF ANY- CONTAINING 120,981 SQ_ FT 12.78 AG. PREPARED€3Y SANBORN'.ME,INC- � D JOHNL -PS4146 LS. 4146 wo11-135 M7R2 4� 1003/012/31756.01 NE COP OF M01 T R LEE CF PAKELi- s OATH VOLE a10 1 BEAROM I IAT_ .q� r (D 3-19 E I 21,1V 101 S51-2041-W14.44" d' FARM r `A ff SF P Ll 4140 f .22 2 ts�� CITY Or PAW --my— PUBLIC & ENONEFFWC DMARTMENT --AZE-- PLA f£ = — gF A" 4f£m 8K wa / Ste!M—, .u_ ff-A3,S' f OF f 1003/012/31756.01 48 EXHIBIT "E" NON-FOREIGN AFFIDAVIT Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform the transferee that withholding of tax is not required upon disposition of a U.S. real property interest by ("Transferor"), the undersigned hereby certifies the following on behalf of Transferor: 1. Transferor is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); 2. Transferor's U.S. employer identification or social security number is and 3. Transferor's office address is The undersigned understands that this certification may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalties of perjury, we declare that we have examined this certification and to the best of our knowledge and belief, it is true, correct, and complete, and we further declare that we have authority to sign this document on behalf of Transferors. Dated: 12012 Stephen C. Nichols, Trustee "Transferor" Address of Property for Sale: 2901 North Palm Canyon Drive See legal description attached as Exhibit "A" 1003/012/31756.01 49 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING THE BUDGET FOR FISCAL YEAR 2012-13. WHEREAS, Resolution No. 23146 approving the Budget for the Fiscal Year 2012-2013 was adopted on June 6, 2012; and WHEREAS the City Manager has recommended, and the City Council desires to approve, certain amendments to said budget. NOW THEREFORE THE CITY COUNCIL DETERMINES, RESOLVES AND APPROVES AS FOLLOWS: that the Director of Finance is authorized to record inter- fund cash transfers as required in accordance with this Resolution, and Resolution No. 23146, adopting the Budget for Fiscal Year 2012-13 is hereby amended as follows: SECTION 1. ADDITIONS Fund Activity Account Amount Quimby Fund 2460 Pending $200,000 Purpose: Establish funding for Purchase of Visitor Center Parking Lot, Entry Sign site and adjacent parcel. Initial payment followed by a seven year note. SECTION 2. Source Fund Activity Account Amount Quimby Fund 152-29301 $200,000 Fund Balance ADOPTED THIS 5th DAY OF September, 2012. David H. Ready, City Manager ATTEST: James Thompson, City Clerk Resolution No. Page 2 CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that Resolution No. is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on by the following vote: AYES: NOES: ABSENT: ABSTAIN: James Thompson, City Clerk City of Palm Springs, California GRANT DEED RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: THE CITY OF PALM SPRINGS 3200 E.Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager Space above this line for Recorder's Use Order No. 4108477 Escrow No. 24414KC GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Chino Cienega Foundation, a California public benefit corporation and Stephen C. Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003, (collectively, "Seller"), hereby grant to the CITY OF PALM SPRINGS,a California municipal corporation and Charter City,the real property in the City of Palm Springs, County of Riverside, State of California, described in Exhibit"I"attached hereto and incorporated herein by reference(the"Property"). The Property conveyed hereby is subject to (i) non-delinquent general and special real property taxes and assessments; and (ii)matters of record. Dated: 3�ko5A .31 2012 Chino Cienega Foundation, a California public benefit corporation Stephct ichols, President Sarah J. B 'son, Secretary Stephen C.Nichols& Sarah J. Benson,Trustees of the Benson-Nichols Trust of 2003 Stephen C. icho s,Trustee /Sarah J. Benson,Trustee 958448.1 QpLM sA� _ -Z City of Palm Springs v m Office of the City Clerk ` 3200 E. Tahquitz Canyon Way • Palm Springs, CA 92262 Tel: (760) 323-8204 • Fax: (760) 322-8332 • TDD: (760)864-9527 Web: www.palmspringsca.gov C4 41FORN�P A6271 CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by GRANT DEED APN 504-040-001-8 dated: August 31, 2012 from, Chino Cienega Foundation, a California Public Benefit Corporation and Stephen C. Nicholas & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 Grantor, to the City of Palm Springs, a municipal corporation and charter city, Grantee, is hereby accepted by the City Clerk of said City of Palm Springs, on this 4t day of October, 2012, pursuant to authority granted by the City Council of said City, by Resolution No. 20255 made on the 16th day of January, 2002, and the Grantee consents to recordation thereof by the City Clerk, its duly authorized officer. Dated at Palm Springs, California, this 4ch day of October, 2012. ames Thompson City Clerk Post Office Box 2743 0 Palm Springs, California 92263-2743