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HomeMy WebLinkAbout05682 - ENDURE INVESTMENTS LLC DDA WEDGE SHAPED PARCEL OFF GENE AUTRY TRL AT MISSION DR Commonwealth Land Title Company L.andAr�erlca 1555 So. Palm Canyon Drive, Suite D-SOS Commonwealth Palm Springs, CA 92264 Phone: (760) 327-6523 Dorothy L. Grames, Escrow Officer Phone: (760) 327-6523 • Fax: (760) 327-6748 e-mail. dorames(&landam.com ESCROW AMENDMENT/SUPPLEMENT Escrow Number: 08403733-811-DG4 Date: November 25, 2008 Property Address: vacant land, Palm Springs, CA Escrow Officer: Dorothy L. Grames TO: COMMONWEALTH LAND TITLE COMPANY My previous instructions in the above numbered escrow are hereby modified and/or supplemented in the following manner: Legal description to subject property is hereby corrected to read as per legal description attached hereto, made a part hereof and marked Exhibit"A". Attached plat map is also approved. All other terms and conditions not in direct conflict with the foregoing remain unchanged. Each of the undersigned states that he/she/they have read the foregoing instructions and understands and agrees to them in their entirety. BUYER: SELLER: Endure Investments, LLC The Community Redevelopment Agency of the City By: Excel Property Management, Managing Member of Palm Springs President By L.'�.I_)',i �� �I1V,i'��i ��;'� `Il'�:Lr Ij By: -�;.�,. . ,,lip UIV FHI 113., r,`rl'�. ATTEST: -- mes Thompson, ssistant Secretary EXHIBIT "A" LEGAL DESCRIPTION THAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 24604 ON FILE IN BOOK. '159 OF PARCEL MAPS, PAGES 66 AND 67, IN SECTION 18, TOWNSHIP 4 SOUTH, RANGE 5 EAST, S.B.M., COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL A: COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 2; THENCE SOUTH 00013' 20" EAST 21.33 FEET ALONG THE CENTERLINE Or SAN JOAQUIN DRIVE, ALSO BEING EASTERLY LINE OF SAID PARCEL 2; THENCE SOUTH 890 46' 40" WEST 32.69 FEET TO THE POINT OF BEGINNING, THENCE SOUTH 040 30' 58" EAST 90.86 FEET; THENCE SOUTH 010 27' 18" EAST 40.98 FEET; THENCE SOUTH 000 13' 20" EAST 33.81 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 25.25 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE A DISTANCE OF 11.83 FEET THROUGH A CENTRAL ANGLE OF 260 50' 15", A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 630 23' 04"WEST; THENCE SOUTH 740 59' 13"WEST 60.39 FEET; THENCE NORTH 490 52' 14"WEST 36.85 FEET TO THE EASTERLY RIGHT OF WAY LINE OF GENE AUTRY TRAIL, ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4905.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 740 40' 28" WEST, THENCE NORTHWESTERLY ALONG SAID EASTERLY RIGHT OF WAY LINE THE ARC OF SAID CURVE A DISTANCE OF 125.18 FEET THROUGH A CENTRAL ANGLE OF 01° 27' 44", A LINE RADIAL LINE BEARS NORTH 73° 12' 44" EAST; THENCE LEAVING EASTERLY RIGHT OF WAY NORTH 01° 05' 12" WEST 19.8 FEET; THENCE NORTH 280 57' 18" EAST 40.00 FEET TO THE BEGINNING OF A NON- TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 257.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 470 22' 04" EAST; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE A DISTANCE OF 74.61 FEET THROUGH A CENTRAL ANGLE OF 160 38' 02", A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 000 44' 02" WEST; Page 1 of 2 EXHIBIT "A" LEGAL DESCRIPTION THENCE SOUTH 51 41' 54" EAST 29.40 FEET TO THE POINT OF BEGINNING; SAID ABOVE DESCRIBED PARCEL "A" CONTAINING 20,636 S.F. (0.47 ACRES) MORE OR LESS AND AS SHOWN ON ATTACHED EXHIBIT"B", BY THIS REFERENCE BEING MADE A PART HEREOF. PREPARED UNDER THE SUPERVISION OF: pND S� ��O 0 0• � - , * NO. L 77&1„ ATE: REYNOLDS C. WRIGHT, L.S. #7762 OF C EXP: 12/31/09 WRIGHT LAND DEVELOPMENT, INC. 73-960 HWY 111, SUITE 4 PALM DESERT, CA 92260 Page 2 of 2 „ SHEET , OF 1 EXHIBIT $$ B MISSION DRIVE — 04'_W (R) a N17°22_ P N51 °41 '54"W P.O.C. �1 0 29.40' P.O-By/1� ti r C2 N28°57' 18"E / �1 40.00' 5' �/ 0 40 N89046 '40"E 5 0 I0) 32.69 ' L5 / wDo I o / l 0 40' +� P. rr-) w FLG�6 z mPP°6�� P � I o o - �o o K w `70 pQ Q Q o�� I 40'O a QPQ I 25' z 3 Cl �p7CpsG9 1a 6�2� S 1/tR. 2� O� \ - SEC 18 s 0 \°'= \ EXF 1231 m * NO.L nez � LINE DATA OF Cp `J 40' WIDE EASEMENT FOR STREET NO. BEARING DIST. R/W & PUBLIC UTILITY PURPOSES L1 S01 °27' 18"E 40.98' PER DEEDS RECORDED 04/29/77 AS L2 S00° 13'20"E 33.81 ' INST. NO.74689 AND 08/23/79 AS L3 S74°59 ' 13"W 60.39 ' INST. 177941 & 177942 L4 N49°52 ' 14"W 36.85' PREPARED UNDER THE L5 jN NO1 05 12 W 19.87 SUPERVISION OF: CURVE DATA N0. RADIUS DELTA ARC C1 25.25' 26°50' 15"1 , .83' Z�& C2 257.00' 16°38'02"74.6'I ' REYNOLDS C. WRIGHT, L.S. 7762 DATE LandArneric Commonwealth Land Title Company 1555 So. Palm Canyon Drive, Suite D-101 Commonwealth Palm Springs, CA 92264 LPhone: (760) 327-6523-6523 Dorothy L. Grames, Escrow Officer Phone: (760) 327-6523 • Fax: (760) 327-6748 e-mail: dgrames@landam.com THE ESCROW HOLDER IS COMMONWEALTH LAND TITLE COMPANY WHICH IS LICENSED BY THE CALIFORNIA DEPARTMENT OF INSURANCE. SUPPLEMENTAL ESCROW INSTRUCTIONS & GENERAL PROVISIONS THIS DOCUMENT WILL AFFECT YOUR LEGAL RIGHTS - READ IT CAREFULLY! Escrow No. 08403733-811-DG4 Escrow Officer: Dorothy L. Grames Date: October 10, 2008 These instructions are entered into pursuant to that certain DISPOSITION AND DEVELOPMENT AGREEMENT, undated, a copy of which is attached hereto, executed by ENDURE INVESTMENTS, LLC (BUYER) and THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS (SELLER) on property located at: Gene Autry and Mission, Palm Springs, CA (legal description attached hereto, made a part hereof and marked Exhibit"A-1") vacantland A) As Escrow Holder you shall only be concerned with the following provisions, as set forth in said agreement: Page 5, Paragraph 2.0 EXCEPT FOR sub-paragraphs 2.11.1(b), (c), (d), (e), (f), (g), and (h); 2.11.2(a) (c), (d) and (e), 2.12, 2.12.1, 2.12.2, 2.13 2.14, 2.14.1, 2.14.2, 2.14.3, 2.14.4, 2.14.5, 2.14.6. Any and all other provisions of said contract NOT enumerated shall impose no duties on you as escrow holder, and are matters of agreement and understanding between the parties above. B) The closing date of this transaction, as indicated in Paragraph 2.4, Page 5, of the Agreement, and by mutual agreement between buyer and seller shall be on or before November 26, 2008, C) Buyer and Seller are aware that in the event this escrow fails to consummate Escrow Holder must have mutual written instructions from Buyer and Seller in order to cancel the file. D) The parties acknowledge that they are entering into this transaction without any representation by a licensed real estate broker. The parties further acknowledge that they have been advised to seek the counsel of their own attorney and/gr accountant. The parties are relying solely on their own information as to their compliance with federal state or local laws or regulations and any legal ramifications for non compliance. Initials .,='/���, Page 1 of 10 Escrow No.: E) Fees and charges through this escrow are to be paid as follows: You are instructed to charge Buyer and Seller each $1,000.00 and pay your escrow fee of $2,000.00; Seller herein agrees to pay all Seller's usual costs and charges in this transaction which may include, but are not limited to the Owners Policy of title insurance, reconveyance fees, if any, Seller's portion of the escrow fee as set out hereinabove, recording fees for any documents necessary to place title in condition called for and documentary transfer tax. Buyer agrees to pay all Buyer's usual costs and charges in this transaction which may include, but are not limited to Buyer's loan fees and cost, if any, ALTA policy of title insurance, if any, and Buyer's escrow fee as set out hereinabove and recording charges. F) You are instructed to prorate taxes to the date of close of escrow based on figures set out on the preliminary title report covering this transaction. ---BUYER: . ._. . -- -_- SELLER,---- - - ------- Endure Investments, LLC The Community Redevelopment Agency of the City By: Excel Property Management, Managing Member of Palm Springs By: By: fi� President 1 __ - Ir By: By: By: ATTEST; hCnes Thompson, , sistant Secretary Initials Page 2 of 10 "EXHIBIT A-V All that certain real property situated in the County of Riverside, State of California, described as follows: Parcel 2, in the City of Palm Springs, County of Riverside, State of California, as shown on a Map filed in Book 159, Pages 66 and 67 of Parcel Maps, in the Office of the County Recorder of said County. EXCEPT that portion of said Parcel 2 lying Southerly of the Westerly prolongation of the Northerly line of the remainder parcel shown on Parcel Map No. 18787, filed in Book 135, Pages 53 and 54 of Parcel Maps, (the Northerly line of said remainder Parcel also being the Southerly line of Lots 1 to 13 of Palm Springs Country Club Estates, as per Map recorded in Book 22, Pages 40 to 44 of Maps), in the Office of the County Recorder of said County. Assessor's Parcel Number: 677-280-041 Page 3 GENERAL PROVISIONS (Rev. 9/25/2006) IMPORTANT - PLEASE READ CAREFULLY 1. Execution & Delivery of Escrow Instructions These instructions may be executed in counterparts and said counterparts together will constitute one and the same instrument. In the event that the parties hereto utilize facsimile or electronically transmitted instructions to Escrow Holder, said parties hereby instruct Escrow Holder to rely upon such instructions as if they were originals. Any amendments and supplements to these instructions must be in writing and shall only be effective when executed and delivered to Escrow Holder. Escrow Holder shall not be concerned with nor have any obligations with respect to items designated as memoranda in these instructions or with any other agreement or contract between the parties to this escrow. 2. Deposit of Funds (1) All funds received in this escrow will be deposited with other escrow funds in one or more non-interest-bearing escrow accounts of Escrow Holder in a financial institution selected by Escrow Holder. Escrow Holder shall not be responsible and shall have no liability for any delay in closing this escrow if the funds deposited in this escrow are not available for immediate withdrawal as a matter of right following deposit in such financial institution. You have the opportunity_to earn interest on-the-funds you deposjt-Mth-us-through-a-deposit-accaunt arrangement that Escrow Holder has established with one of its financial institutions. The interest rate for these accounts varies between financial institutions, fluctuates periodically based on market conditions and other factors, and may change prior to or during the time your funds are on deposit. You will not have an opportunity to earn interest on any funds deposited by a lender. (iii) If you elect to earn interest through this special account arrangement, Escrow Holder will charge you an additional fee of $35.00 for the establishment and maintenance of the account. This fee compensates Escrow Holder for the costs associated with opening and managing the interest-bearing account, preparing correspondence/documentation, transferring funds, maintaining appropriate records for audit/reconciliation purposes and filing any required tax withholding statements. It is important that you consider this cost in your decision since the cost may exceed the interest you earn. If you are interested in having your funds deposited in an - - interest-bearing account, please contact your escrow officer. (iv) If you do not elect to have your funds deposited in an interest-bearing account, your funds (together with any funds deposited by a lender) will be held in Escrow Holder's general escrow trust account. The general escrow trust account is restricted and protected against claims by third parties or creditors of Escrow Holder. Escrow Holder and/or its parent company may receive certain direct and indirect financial benefits from the financial institution as a result of maintaining the general escrow trust account. These benefits may include, without limitation, credits allowed by such financial institution on loans to Escrow Holder and/or its parent company and earnings on investments made with the proceeds of such loans, as well as accounting, reporting and other services and products of such financial institution. Escrow Holder shall have no obligation to account to the parties to this escrow in any manner for the value of, or to pay to any party, any benefit received by Escrow Holder and/or its parent company. Any such benefits shall be deemed additional compensation of Escrow Holder for its services in connection with this escrow. Some or all of these benefits may be deemed interest due you under California Insurance Code Section 12413.5. As indicated above, you may elect to have your funds placed in a separate, interest-bearing account and receive the benefits therefrom, but you will be required to pay Escrow Holder an additional fee for this service. Alternatively, you may leave your funds in the general escrow trust account and thereby authorize Escrow Holder to keep the benefits it and/or its parent company receives from the financial institution. In either event, you understand and agree that Escrow Holder and/or its parent company may receive and retain for their sole benefit any and all benefits derived from the general escrow trust account prior to the deposit of your funds in an interest-bearing account and following the withdrawal of your funds from such interest- bearing account(normally two business days prior to the close of escrow), (v) All parties depositing funds in connection with this escrow are hereby notified that the funds so deposited are insured only to the limit provided by the Federal Deposit Insurance Corporation. (vi) Funds deposited by a lender are ordinarily deposited to escrow one or two days prior to closing. You should be aware that your lender may begin charging interest on your loan from the date loan funds are deposited into Escrow Holder's escrow trust account. S. Good Funds Law - California Insurance Code §12413.1 All parties are aware and understand that California Insurance Code §12413.1 mandates that funds deposited into an escrow must be collected and available for withdrawal PRIOR TO DISBURSEMENT. The determination of the availability of funds is set forth as follows: (i) CASH AND ELECTRONIC TRANSFERS ("wired funds") are available for SAME DAY disbursement. (I) CASHIER'S CHECKS AND CERTIFIED CHECKS are available for disbursement THE NEXT BUSINESS DAY; In order to avoid unnecessary delays of two to seven days, or more, please use wire transfers, cashier's checks or certified checks whenever possible. 4. License of Escrow Holder Escrow Holder is licensed by the California Department of Insurance to act as an underwritten title company, or if Escrow Holder's name includes the word "Insurance", Escrow Holder has a Certificate of Authority issued by the California Department of Insurance to transact the business of title insurance. S. Prorations Initials Page 3 of 10 Escrow No.: 08403733 811 DG4 All adjustments and prorations called for in this escrow shall be made on the basis of a thirty (30) day month, unless otherwise instructed in writing. 6. Sufficiency, Validity, Authority, etc. of Documents Escrow Holder shall not be responsible or have any liability with respect to the sufficiency or correctness as to form, manner of execution, or validity of any document deposited in this escrow, nor as to the identity, authority or rights of any person executing the same. Escrow Holder's duties hereunder shall be limited to the proper handling and disbursement of funds deposited in this escrow and the proper safekeeping and delivery of such documents received by Escrow Holder, in accordance with the written instructions given to Escrow Holder in this escrow in which all parties have concurred. 7. Conveyance and Vesting Escrow Holder is instructed to draw a Grant Deed, using any standard form, conveying title from Seller to Buyer, with Buyer's legal vesting. Buyer acknowledges that Escrow Holder cannot give advice as to vesting, and understands that the vesting designated may have significant legal and tax consequences. Buyer is advised to seek the advice of Buyer's own attorney and accountant with regard to vesting. Buyer shall furnish Escrow Holder with Buyer's vesting prior to the date of preparation of Buyer's loan documents or close of escrow (if Buyer Is not obtaining financing). Escrow Holder is hereby authorized and instructed to complete and/or correct Buyer's vesting on the Grant Deed, even if it has already been executed and notarized. If Buyer is married and taking title alone, (1) Buyer shall furnish Escrow Holder with the name of Buyer's spouse, (2) Escrow Holder is authorized and instructed to prepare an Interspousal Transfer or - -quitclaim-Deed-for-Buyer's-spouse's--signature-and-(3)-Escrow-Holder is-to record same-at-Cksse of escrow charging Buyer's account for the preparation and recording fees associated with this deed. 8. Copies of Escrow Instructions Escrow Holder is authorized to furnish copies of these instructions, any supplements and/or amendments thereto, notices of cancellation and closing statements to any real estate brokers or agents representing any party to this escrow and to any lender whose loan will be paid through this escrow or will be used to fund this escrow. 9. Cancellation In the event this escrow is canceled, the parties hereto agree to pay Escrow Holder its cancellation fee for work performed, and to pay all expenses incurred by Escrow Holder. If a demand to cancel this escrow is submitted to Escrow Holder or if there is no written communication from the parties for a period of six months, Escrow Holder shall notify the parties of its intention to cancel this escrow and return all documents and funds (less cancellation fees and costs) to the party depositing the same. If no written objection to such notice is given to Escrow Holder within fifteen (15) days of mailing such notice, Escrow Holder shall cancel this escrow and return all funds and/or documents then held by Escrow Holder to the party depositing the same. 10. Disputes No notice, demand or change of instruction shall be of any effect in this escrow unless given in writing by all parties affected thereby. In the event a demand for funds and/or documents deposited with Escrow Holder in connection with this escrow is made and which is not concurred in by all parties hereto, Escrow Holder, notwithstanding which party made such demand, may elect to do any of the following: (i) Take no further action in connection with this escrow and continue to hold such funds and/or documents until receipt of mutual concurring instructions from all parties to this escrow as to the disposition of such funds and/or documents; (li) Commence an action in interpleader and obtain an order from the court allowing Escrow Holder to deposit such funds and/or documents with the court, in which case Escrow Holder shall have no further liability or obligations with respect to this escrow; or (III) In the event that any party commences an action against any other party with respect to this escrow, deposit such funds and/or documents with the court, in which case Escrow Holder shall have no further liability or obligations with respect to this escrow. In the event Escrow Holder interpleads any funds and/or documents with any court pursuant to either subparagraphs (ii) or (iii) above, Escrow Holder shall be entitled to reimbursement of its reasonable attorneys' fees and expenses of litigation in connection with such action. 11. Arbitration In the event of a claim or controversy between Escrow Holder and any party hereto involving an amount greater than $5,000.00 and arising out of this escrow, either Escrow Holder or such other party may demand arbitration pursuant to the Rules of the American Arbitration Association. The decision of the arbitrator shall be binding on all parties and judgment upon the award of the arbitrator may be entered in any court having jurisdiction thereof. 12. No Duty to Notify as to Other Transactions Escrow Holder shall have no duty or responsibility to notify any party to this escrow of any sale, resale, loan, exchange or other transaction involving the property which is the subject of this escrow or any profit realized by any person or entity in connection therewith, notwithstanding that Escrow Holder may act as escrow holder for such transaction(s) in this or another escrow(s). 13. Failure to Close Timely If the conditions for closing this escrow have not occurred at the time set forth herein for closing, Escrow Holder is nevertheless to continue to act hereunder and to close this escrow as soon thereafter as such conditions (except as to time) shall have been met, unless any party shall have made a written demand on Escrow Holder for cancellation of this escrow and/or for the return of any funds and/or documents deposited by such party. 14. Delivery of Documents and Fun Initials Page 4 of 10 Escrow No.: 08403733 811 DG4 Escrow Holder will send documents to the parties in an appropriate manner, such as regular mail, facsimile or email, unless otherwise instructed. Delivery by Escrow Holder of documents to a party's real estate agent or broker shall constitute delivery to that party. Funds may be delivered by regular mail, overnight mail or wire, at the discretion of Escrow Holder, unless otherwise instructed by the party to whom the funds are delivered. 15. Retention of Records After the closing or cancellation of this escrow, Escrow Holder shall retain the escrow file(s) pertaining to this escrow for a minimum of one year, after which time Escrow Holder is authorized to destroy or otherwise dispose of such file(s) without notice or liability to the parties hereto. 16. California Withholding In accordance with Section 18662 of the Revenue and Taxation Code, a buyer may be required to withhold an amount equal to 3 1/3 percent of the sales price or the amount that is specified in a written certificate executed by the transferor in the case of a disposition of California real property interest by either: 1. A seller who is an individual, trust, or estate or when the disbursement instructions authorize the proceeds to be sent to a financial intermediary of the seller, OR 2. A corporate seller that has no permanent place of business in California immediately after the transfer of title to the California real property. The buyer may become subject to penalty for failure to withhold an amount equal to the greater of 10 percent of the amount-required..to-be-wit held-or-five-hundred dollars-($500).----- --- - - However, notwithstanding any other provision included in the California statutes referenced above, no buyer will be required to withhold any amount or be subject to penalty for failure to withhold if: 1. The sales price of the California real property conveyed does not exceed one hundred thousand dollars ($100,000), OR 2. The seller executes a written certificate, under the penalty of perjury, certifying that the seller is a corporation with a permanent place of business in California, OR 3. The seller, who is an individual, trust, estate or a corporation without a permanent place of business in California executes a written certificate, under the penalty of perjury, of any of the following: A. The California real property being conveyed is the seller's or decedent's principal residence (within the meaning of Section 121 of the Internal Revenue Code). B. The last use of the property being conveyed was use by the transferor as the transferor's principal residence within the meaning of Section 121 of the Internal Revenue Code. C. The California real property being conveyed is or will be exchanged for property of like kind (within the meaning of Section 1031 of the Internal Revenue Code), but only to the extent of the amount of gain not required to be recognized for California income tax purposes under Section 1031 of the Internal Revenue Code. D. The California real property has been compulsorily or involuntarily converted (within the meaning of Section 1033 of the Internal Revenue Code) and that the seller intends to acquire property similar or related in service or use so as to be eligible for nonrecognition of gain for California income tax purposes under Section 1033 of the Internal Revenue Code, E. The California real property transaction will result in a loss or a net gain not required to be recognized for California income tax purposes. The seller is subject to penalty for knowingly filing a fraudulent certificate for the purpose of avoiding the withholding requirement. The California statutes referenced above include provisions which authorize the Franchise Tax Board to grant reduced withholding and waivers from withholding on a case-by-case basis for corporations or other entities. Buyer understands that in no event will Escrow Holder undertake to advise Buyer and/or Buyer's representative on the possible application of the above code sections to this specific transaction. Unless expressly instructed by Seller and Buyer herein, Buyer understands that Escrow Holder will NOT assist in obtaining a waiver from withholding from the Franchise Tax Board. Should Buyer and Seller herein direct Escrow Holder to undertake any activities pursuant to the withholding provisions under California law, Buyer and Seller agree to cooperate fully in providing necessary information to Escrow Holder. Buyer and Seller agree to indemnify and hold Escrow Holder harmless In the event of noncompliance resulting from information supplied by either Buyer and/or Seller. For additional information concerning the withholding provisions under the code sections referenced above, please contact the Franchise Tax Board-Withhold-at-Source Unit at (916) 845-4900, P.O. Box 651, Sacramento, CA 95812-0651. 17. Foreign Investment in Real Property Act (FIRPTA) Buyer is hereby notified that FIRPTA withholding (Internal Revenue Code Section 1445) may be applicable to certain sales of United States real estate by non-resident aliens. Unless instructed otherwise by the parties to this escrow, Escrow Holder is released from any liability, obligation or responsibility with respect to compliance with said Code Section, including, but not limited to (a) withholding of funds, (b) advising the parties as to the requirements of said sections, (c) determining whether transferor (Seller) is a foreign person or entity and/or (d) obtaining a non-foreign affidavit. 18. Preliminary Change of Ownership Initials �_1 CT Page 5 of 10 Escrow No.: 08403733 811 DG4 Prior to the close of escrow, Buyer may hand Escrow Holder a fully completed and executed "Preliminary Change of Ownership Report" (PCOR) pursuant to the requirements of California Revenue and Taxation Code Section 480.3. Buyer may elect not to complete and execute said form prior to the close of escrow. Should Buyer choose not to execute the PCOR or should the County Recorders office reject the PCOR for any reason, Buyer is aware that a $20.00 charge will be assessed by the County Recorder's office and Escrow Holder will charge the account of Buyer accordingly. In the event the PCOR has not been filed at the time the documents record OR the County Tax Assessors office determines that the form has not been properly completed, Buyer will be responsible for obtaining and completing a new PCOR and any additional documents that may be required by the Assessor's office. Failure to file a proper PCOR will result in additional penalties in accordance with Section 480 of the California Revenue and Taxation Code. Escrow Holder's sole duty shall be the delivery of the PCOR to the County Recorder at the time of recordation of transfer documents, if it is provided to Escrow Holder. Escrow Holder assumes no liability or responsibility regarding the proper completion of the PCOR. 19. General/Special Property Taxes, Supplemental Tax Bills, Bonds and Assessments 1. General/Special Property Taxes: Escrow holder shall prorate general and special taxes for the current fiscal year, based on the most recent and available tax bill from the County Assessor's for this subject property. 2. Supplemental Taxes: Buyer is advised the County Tax Assessor will revalue property which changes ownership or contains new construction, and this revaluation may result in a supplemental assessment. The supplemental taxes will-be-assessed-from-the-date-of the change-in-ownership-or-completion-of-construction.-In-addition,, a-lienbf --- supplemental taxes for the current fiscal year, if any, assessed pursuant to Chapter 3.5 (commencing with Section 75)of the California Revenue and Taxation Code will be prorated at the close of escrow. 3. Bonds and Assessments: All existing unpaid bonds and assessments levied or assessed prior to the date of the close of escrow shall be prorated , based upon the latest available public information Any tax bills, supplemental tax bills, bonds and assessments issued, levied or adjusted after the close of this transaction shall be handled directly between Buyer and Seller, outside of escrow. 20, Fire/Hazard Insurance Buyer shall obtain Fire/Hazard Insurance coverage, if applicable, on the subject property prior to the close of escrow, as per requirements of the new lender. If Buyer has not paid policy premium prior to close of escrow, Escrow Holder is authorized and instructed to debit Buyer's account with the cost of the annual premium and pay such premium to the insurance agent and/or company, at the close of escrow, from funds deposited by Buyer. Escrow Holder is instructed to request that the insurance company deliver the original policy and copies, as required, to all necessary parties. In the event the property is covered by a blanket insurance policy, Buyer shall provide Escrow Holder with a Certificate of Insurance. FAILURE TO PROVIDE FIRE/HAZARD INSURANCE WILL DELAY THE CLOSE OF ESCROW. Escrow Holder has no obligation to obtain fire or other insurance in the absence of a written instruction to do so. 21. Fees and Charges; Messenger Fees Escrow, title, and recording charges and other costs are to be charged to the principals' accounts in accordance with customary practices in this County, unless Escrow Holder is instructed to do otherwise in writing. The charges which the Company will make for sending documents and/or checks via next day messenger services (i.e. Federal Express, UPS, OHL, Airborne, Express Mail, etc.) are $15.00 per letter for standard overnight service, and $25.00 for larger size packages and/or priority delivery services, both of which charges Include a mark-up to cover the Company's expenses, overhead and profit for arranging the service. Special messenger fees will be charged at the actual cost of the messenger service, plus a mark-up to cover the Company's expenses, overhead and profit for arranging the service. There will be no additional charge for pick-up or delivery of packages via the Company's regularly scheduled messenger runs. 22. Fees Paid in Advance Escrow Holder is hereby instructed to use Buyer's funds deposited into escrow to pay any statements submitted prior to close of escrow to pay such items as, but not limited to, charge by a homeowner's association management company for ordering documents, lender's charge for a payoff statement, city's charge for city reports, home warranty insurance policy, natural hazard report, termite report, charges for work completed pursuant to an agreement of the parties, etc. In the event escrow is cancelled and Buyer is entitled to a refund of deposited funds, the amount of any fees advanced shall be deducted from the funds returned to Buyer. Seller hereby agrees to immediately deposit into escrow the amount of fees advanced for which Seller is responsible, and Escrow Holder will immediately disburse the amount of such deposit to Buyer. Buyer hereby agrees to immediately return to Escrow Holder any documentation provided to Buyer that Is associated with fees advanced by Escrow Holder. Buyer shall not be reimbursed for any fees associated with documents provided to Buyer which are not returned to Escrow Holder. Escrow Holder shall not be liable to Buyer for fees deducted from Buyer's deposit in the event Seller fails to deposit the amount of such fees into escrow. 23. Special Recording; Late Confirmation of Recording Seller's proceeds may not be available, and encumbrances may not be paid off, until the first business day following the day of recording if 1) documents recorded at closgrof escrow are recorded later in the day than 8:00 a.m. (which is Initials Page 6 of 10 Escrow No.: 08403733 811 DG4 called a "special recording") or if 2) the County Recorder does not provide confirmation of recording within sufficient time to allow same-day disbursement of funds by wire or check. 24. IRS Form 1099 Requirements If requested by Escrow Holder, Seller will furnish Escrow Holder with sufficient information to file form 1099, if required, with the Internal Revenue Service for the sale of the real property which is subject to this escrow. 25. Disclosure Reports Escrow Holder is not to be concerned with disclosures made by the parties to each other. In the event Escrow Holder receives any disclosure reports requiring signatures or approval by a party, Escrow Holder's only responsibility will be to forward the report to the appropriate party. 26. Loan Payoffs When a mortgage, deed of trust or tax lien is to be paid off through escrow, Escrow Holder is authorized to pay the payoff demand received from the creditor. Seller/borrower understands that a loan payoff may include a prepayment penalty and other charges. BUYER: — SELLER: Endure Investments, LLC The Community Redevelopment Agency of the City By: Excel Property Management, Managing Member of Palm Springs �= By: By By: By: DGE-G]U , may ATTEST: d mes Thompson, ssistant Secretary Initials Page 7 of 10 LandAmericaei PRIVACY POLICY NOTICE LandAmerica Financial Group, Inc. and its family of affiliated companies ("LandAmerica") respect the privacy of our customers' personal information. This Notice explains the ways in which we may collect and use personal information under the LandAmerica Privacy Policy. LandAmerica provides title insurance and other real estate services through its affiliates. The two largest members of the LandAmerica family, Commonwealth Land Title Insurance Company and Lawyers Title Insurance Corporation, and their title affiliates, issue title policies and handle real estate closings across the country. You may review a complete list of the LandAmerica family of affiliates covered by this Privacy Policy on our website at http://www.landam.com under the privacy policy link or request a copy be sent to you from the address listed below. The LandAmerica Privacy Policy applies to all LandAmerica customers, former customers and applicants. Please visit our website for an explanation of our privacy practices relating to electronic communication. What kinds of information we collect: Depending on the services you use, the types of information we may collect from you, your lender, attorney, real estate broker, public records or from other sources include: • information from forms and applications for services, such as your name, address and telephone number, • information about your transaction, including information about the real property you bought, sold or financed such as address, cost, existing liens, easements, other title information and deeds, • with closing, escrow, settlement or mortgage lending services or mortgage loan servicing, we may also collect your social security number as well as information from third parties including property appraisals, credit reports, loan applications, land surveys, real estate tax information, escrow account balances, and sometimes bank account numbers or credit card account numbers to facilitate the transaction, and • information about your transactions and experiences as a customer of ours or our affiliated companies, such as products or services purchased and payments made. How we use and disclose this information: We use your information to provide you with the services, products and insurance that you, your lender, attorney, or real estate brokers have requested. We disclose information to our affiliates and unrelated companies as needed to carry out and service your transaction, to protect against fraud or unauthorized transactions, for institutional risk control, to provide information to government and law enforcement agencies and as otherwise permitted by law. As required to facilitate a transaction, our title affiliates record documents that are part of your transaction in the public records as a legal requirement for real property notice purposes. We do not share any nonpublic personal information we collect from you with unrelated companies for their own use. We do not share any information regarding your transaction that we obtain from third parties (including credit report information) except as needed to enable your transaction as permitted by law. We may also disclose your name, address and property information to other companies who perform marketing services such as letter production and mailing on our behalf, or to other financial service companies (such as insurance companies, banks, mortgage brokers, credit companies) with whom we have joint marketing arrangements. Additionally, some LandAmerica affiliates may share information about their transaction and experiences with you in order to identify opportunities to market other LandAmerica services or products that may be useful to you. How we protect your information: We maintain administrative, physical, electronic and procedural safeguards to guard your nonpublic personal information. We reinforce our privacy policy with our employees and our contractors. Joint marketers and third parties service providers who have access to nonpublic personal information to provide marketing or services on our behalf are required by contract to follow appropriate standards of security and confidentiality. Title insurance agents may be covered by this policy: If your transaction goes through a title insurance agent that is not part of the LandAmerica family, the agent handling your transaction should provide you with the agent's own privacy policy or evidence that the agent has adopted our policy. If you have any questions about this privacy statement or our practices at LandAmerica, please email us at customerservice@landam.com or write us at: LandAmerica Privacy, P.O. Box 27567, Richmond, VA 23261. Form 3391-6 (Rev. September 2008) c�EEf (Cc Commonwealth Land Title Company 1555 So. Palm Canyon Drive, Suite D-101 IM Commonwealth Palm Springs, CA 92264 Phone: (760) 327-6523 Affiliated Business Relationship Disclosure Commonwealth Land Title Company This disclosure is being given pursuant to a federal law known as the Real Estate Settlement Procedures Act in order to give you notice that Commonwealth Land Title Company ("Commonwealth Title") has a business relationship with the affiliated companies named below. Commonwealth Land Title is wholly owned by Commonwealth Land Title Insurance Corporation ("CLTIC"), which is wholly owned by LandAmerica Financial Group, Inc. ("LandAmerica"). Because of these relationships, this referral may provide Commonwealth Title, CLTIC or LandAmerica with a financial or other benefit.. 1. Affiliated Company: Buyers Home Warranty Company Nature of Relationship: Wholly owned by LandAmerica Service Provided Estimated Charge or Range of Charqes Home Warranty Insurance Basic Plans range from $250 to$330. Additional Options are available and range from $50 to $200 depending on the options selected. 2. Affiliated Company: Buyers Real Estate Services, Inc. Nature of Relationship: Wholly owned by LandAmerica Service Provided Estimated Charge or Range of Charges Natural Hazard &Zone Disclosure Reports $79.95 3. Affiliated Company: LandAmerica Exchange Company Nature of Relationship: Wholly owned by LandAmerica Service Provided Estimated Charge or Range of Charges Accommodator/1031 , r'PR,"D" Ei(i) Exchange Services $750.00 4. Affiliated Company: LandAmerica Property Inspection Services, Inc. (Formerly Inspectech,Inc.) Nature of Relationship: Wholly owned by LandAmerica Service Provided Estimated Charge or Range of Charqes Property Inspection Basic charges range from $250 to approximately $500. The charges can be more than that for very large homes. You are NOT required to use the provider(s) listed above as a condition for settlement services provided by Commonwealth Title in connection with the purchase, sale or refinance of your property. THERE ARE FREQUENTLY OTHER SETTLEMENT SERVICE PROVIDERS AVAILABLE WITH SIMILAR SERVICES. YOU ARE FREE TO SHOP AROUND TO DETERMINE THAT YOU ARE RECEIVING THE BEST SERVICES AND THE BEST RATE FOR THESE SERVICES. ACKNOWLEDGMENT: I/we have read this disclosure form, and understand that Commonwealth Title is referring me/us to purchase the above-described settlement service(s) and may receive a financial or other benefit as the result of this referral. Signed f Signed YA y 1a Pant Na.rn,e'. ..-. ?�_ Print Name: _ iy�Q�ra�l n VI C'_ 113,H [�L�- 0�JP 1 -- VED AS TO FORM ArreST Rev 9/1/08 es as =t'N,o�Psonon, -- � �A^ is it unley -- Inta DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS AND ENDURE INVESTMENTS, LLC II i I� I j f 531359.1 DISPOSITION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into as of the day of 2008, by and between the Community Redevelopment Agency of the City of Palm Springs, a public body, corporate and politic (the "Agency") and Endure Investments, LLC, a Nevada Limited Liability Company ("Developer"). The Agency and Developer agree as follows: RECITALS The following recitals are a substantive part of this Agreement; capitalized terms used herein and not otherwise defined are defined in Section 1.0 hereof: A. The purpose of this Agreement is to effectuate the Redevelopment Plan for the Redevelopment Project Area No. 1, by providing for the disposition of vacant real property constituting a wedge shaped parcel, APN 677-280-041, in the City of Palm Springs, County of Riverside, State of California. The Conveyance Parcel is depicted and more particularly described in the Legal Description. The legal description of the subject property is attached hereto as Exhibit "A" (hereinafter referred to as the "Conveyance Parcel"or"Site). B. The Agency and the Developer wish to enter into this Agreement in order to set forth the terms and conditions relating to the Agency's disposition of the Site to the Developer, and the Developer's development of the Site into an EZ Lube automobile service station. A more detailed description of the development activities on the Site is defined in Section 3A (the "Project"). C. In accordance with and subject to all the terms, covenants and conditions of this Agreement, the Agency agrees to convey the Conveyance Parcel to the Developer without monetary compensation. D. In further consideration of the benefits of Developer's Project, the Agency hereby agrees to contribute $60,000 toward the Developer's .cost of installing landscaping and site screening measures on the Conveyance Parcel in conjunction with the Developer's Project. Said contribution shall be payable by the Agency to the Developer within 30 days of Developer's written invoice and sufficient accompanying documentation (such as receipts) therefor. E. The Developer is required to obtain all necessary approvals from all government agencies for Developer's Project. F. The development of the Project as provided for in this Agreement is in the vital and best interest of the City and the welfare of its residents and is in accordance with the public purposes and provisions of applicable state and local laws. 1 581359,� i 1.0 DEFINITIONS. As used in this Agreement, the following capitalized terms shall have the following meanings, unless otherwise specified: "Actual knowledge" shall mean the actual knowledge of the Agency's employees and agents who have participated in the preparation of this Agreement and/or the management of the Site, and shall not impose a duty of investigation. "Agency" means the Redevelopment Agency of the City of Palm Springs, a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California, Part 1 of Division 24 of the Health & Safety Code (§§ 33000 et seq.), and any assignee of or successor to its rights, powers and responsibilities. "Agency's Conditions Precedent" means the conditions precedent to the Closing to the benefit of Agency, as set forth in Section 2.11.1. "Agreement" means this Disposition and Development Agreement between Agency and Developer. "Certificate of Completion means a Certificate of Completion of Construction and Development substantially in the farm of Attachment 3 hereto. i "City" means the City of Palm Springs, California. The City is not a party to this Agreement and shall have no obligations hereunder. The City is a third party beneficiary to this Agreement and shall have the right but not the duty to enforce any of the covenants of Developer contained herein. "Closing" is defined in Section 2.6. "Closing Date" is defined in Section 2.6. "Construction Lender' means any reputable financial institution providing a construction loan for the Project in accordance with Section 3.8. "Conveyance" is defined in Section 2.1. "Conveyance Parcel" or "Site" means certain real property constituting a wedge shaped parcel, APN 677-280-041, in the City of Palm Springs, County of Riverside, State of California. The Conveyance Parcel is depicted and more particularly described in the Legal Description. "County" means the County of Riverside, California. "Date of Agreement" is the date set forth in the first paragraph of this Agreement. 2 seiase.i 1 "Default' means the failure of a party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and opportunity to cure, as set forth in Section 5.1. "Developer" means Endure Investments, LLC, a Nevada Limited Liability Company, and its permitted successors and assigns. "Developer's Conditions Precedent" means the conditions precedent to the Closing for the benefit of Developer, as set forth in Section 2.11.2. "Due Diligence Period" is defined in Section 2.13. "Escrow" is defined in Section 2.2. "Escrow Agent" is defined in Section 2.2. "Exceptions"is defined in Section 2.9, "Governmental Requirements" means all laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State, the County, the City or any other political subdivision in which the Site is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over Agency, Developer or the Site. "Grant Deed" means the grant deed for the Conveyance of the Site from Agency to Developer, substantially in the form of Attachment 2, and incorporated herein. "Hazardous Materials" means any substance, material or waste which is or becomes, prior to the Closing, regulated by any local governmental authority, the State of California or the United States Government, including, but not limited to, any material or substance which is: (i) Defined as a "hazardous waste," "acutely hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) Defined as a "hazardous substance", under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (111) Defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) Petroleum or any material or substance the presence of which would require remediation pursuant to the guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual, whether or not the presence of such material resulted from a leaking underground fuel tank, (v) Friable asbestos, 3 ssrass� i (vi) Polychlorinated byphenyls, (vii) Designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act(33 U.S.C. § 1317), (viii) Defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act,42 U.S.C. §6901 et seq. (42 U.S.C. § 6903), (ix) Defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601), (x) Methyl-Tertiary Butyl Ether, or (xi) Any other substance, whether in the form of a solid, liquid, gas or any other form whatsoever, which by any Governmental Requirements either requires special handling in its use, transportation, generation, collection, storage, handling, treatment or disposal, or is defined as "hazardous" or harmful to the environment. "Legal Description" means the description of the Site which is attached hereto as Exhibit "A".and incorporated herein. i "Notice" means a notice in the form prescribed by Section 6.1. "Outside Closing Date" is the 45-day period commencing with the opening of Escrow, as defined in Section 2.6. "Project" is defined in Section 3.1. "Project Plans" means those plans, specifications and drawings for development of the Project which are (i) to be submitted to City for its approval, and (ii) required to obtain building permits for construction of the Project. "Redevelopment Plan" means the Redevelopment Plan for the Redevelopment Project Area No. 1 together with any amendments, all of which are incorporated herein by reference. "Redevelopment Law" means California Health and Safety Code Section 33000, et seq.; as the same now exists or may hereafter be amended. "Remediate" or "Remediation" means investigation, characterization, monitoring, remediation (active or passive), removal and any other response actions associated with Hazardous Materials at, on or under the Site, including, without limitation, offsite disposal and transportation of Hazardous Materials, replacement of any exported soil with clean import fill and compacted to the compaction requirements necessary for Developer's intended use, which actions are necessary to allow Developer's development of the Project to occur without any mitigation measures or institutional or engineering controls such as, but not limited to, vapor barriers, special construction, handling or disposal requirements. "Report" is defined in Section 2.9. 4 587359.7 "Schedule of Performance" means that certain Schedule of Performance attached hereto as Attachment 1 and incorporated herein by reference, setting out the dates and/or time periods by which certain obligations set forth in this Agreement must be accomplished. "Site" has the same meaning as the term "Conveyance Parcel"defined above. "Studies" is defined in Section 2.13. "Title Company" is defined in Section 2.9. "Title Policy° is defined in Section 2.10. 2.0 CONVEYANCE OF THE SITE. 2.1. Site Conveyance. The Agency agrees to convey the Site to the Developer and the Developer agrees to acquire the Site from the Agency (the Conveyance"), prior to the commencement of the construction of the Project, in accordance with and subject to all of the terms, covenants, and conditions of this Agreement, including the Agency's Conditions Precedent and Developer's Conditions Precedent as set forth in Section 2.11. 2.2. Escrow. Within the time set forth in the Schedule of Performance, the parties shall open escrow for the Conveyance of the Site (the "Escrow") with a mutually satisfactory escrow company to both parties (the "Escrow Agent"). 2.3. Costs of Escrow. Agency and Developer shall share equally in the cost for the Title Policy as set forth in Section 2.10, and all of the usual fees, charges, and costs which arise from the Escrow for the Site. 2.4. Escrow Instructions. This Agreement constitutes the joint escrow instructions of Developer and Agency for the Conveyance of the Site, and the Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties hereto agree to do all acts reasonably necessary to close Escrow for the Site in the shortest possible time, but in no event longer than three hundred sixty (360) days from the Effective Date of this Agreement. Insurance policies for fire or casualty are not to be transferred, and Agency will cancel its own policies after the Closing. All funds received in Escrow shall be deposited with other escrow funds in a general escrow account(s) and may be transferred to any other such escrow trust account in any State or National Bank doing business in the State of California. All disbursements shall be made by check from such account. If in the reasonable opinion of either party it is necessary or convenient in order to accomplish the Closing of the Conveyance of the Site, such party may require that the parties sign supplemental escrow instructions; provided that if there is any inconsistency between this Agreement and the supplemental escrow instructions, then the provisions of this Agreement shall control. The parties agree to execute such other and further documents as may be reasonably necessary, helpful or appropriate to effectuate the provisions of this Agreement. The Closing for the conveyance of the Site shall take place 5 587359.1 when both the Agency's Conditions Precedent and the Developer's Conditions Precedent as set forth in Section 2.11 have been satisfied. Escrow Agent is instructed to release Agency's escrow closing statements and Developer's escrow closing statements to the respective parties. 2.6. Authority of Escrow Agent. Escrow Agent is authorized to, and shall: (a) Pay and charge Agency and Developer for the cost of the premium of the Title Policy as set forth in Section 2.10 and any amount necessary to place title in the condition necessary to satisfy Section 2.11 of this Agreement. (b) Pay and charge Agency and Developer, in accordance with Section 2.3 hereof, for any endorsements to each Title Policy which are required by the Agency and/or Developer. (c) Deliver and record the Grant Deed, when both the Developer's Conditions Precedent and the Agency's Conditions Precedent have been fulfilled or waived in writing j by the benefited party. (d) Do such other actions as necessary, including obtaining the Title Policy, to fulfill its obligations under this Agreement. (e) Within the discretion of Escrow Agent, direct Agency and Developer to execute and deliver any instrument, affidavit, and statement, and to perform any act reasonably necessary to comply with Government Requirements. 2.6. Closing . The close of escrow (the "Closing") shall occur within five (5) days of the parties' satisfaction of all of Agency's Conditions Precedent and Developer's Conditions Precedent to Closing as set forth in Section 2.11, but in no event later than the date that is three hundred sixty (360) days after the opening of Escrow (the "Outside Closing Date"). In the event escrow has not closed on or before the Outside Closing Date, either Agency or Developer shall be entitled to terminate this Agreement. The parties mutually agree that.the Outside Closing Date may be extended by the mutual agreement of the parties. The Closing shall.occur through the Escrow as set forth in this Agreement. The "Closing" shall mean the time and day the Grant Deed is filed for recording with the Riverside County Recorder. The "Closing Date" shall mean the day on which the Closing occurs. 2.7. Termination Prior to Closina Escrow. If Escrow is not in condition to close by the Outside Closing Date, then either party which has fully performed under this Agreement may, in writing, demand the return of money or property and terminate this Agreement. If either party makes a written demand for return of documents or properties, this Agreement shall not terminate until five (5) days after Escrow Agent shall have delivered copies of such demand to all other parties at the respective addresses shown in this Agreement. If any objections are raised within said five (5) day period, Escrow Agent is authorized to hold all papers and documents, until instructed by a court of competent 6 531359.1 i jurisdiction or by mutual written instructions of the parties. Developer, however, shall have the sole option to withdraw any money deposited by it with respect to the Closing less Developer's share of costs of Escrow. Termination of this Agreement shall be without prejudice as to whatever legal rights either party may have against the other arising from this Agreement. If no demands are made, the Escrow Agent shall proceed with the Closing as soon as possible. 2.8. Closing Procedure. Escrow Agent shall close Escrow for the Site as follows: (a) Record the Grant Deed with instructions for the Recorder of Riverside County, California to deliver the Grant Deed to Developer; (b) Instruct the Title Company to deliver the Title Policies to Developer and Agency; i (c) Forward to both Developer and Agency a separate accounting of all funds i received and disbursed for each party and copies of all executed and recorded or filed documents deposited into Escrow, with such recording and filing date and information endorsed thereon. 2.9. Review of Title. (a) Developer will obtain from W. IJ Amer-.eeL Title Company (the "Title Company") a standard preliminary title report (the "Report") with respect to the title to the Site, together with legible copies of the documents underlying the exceptions ("Exceptions") set forth in the Report. The Developer shall have the right to reasonably approve or disapprove the Exceptions; provided, however, that the Developer hereby approves the following Exceptions: (1) The Redevelopment Plan; (2) The lien of any non-delinquent property taxes and assessments (to be prorated at Closing). (b) Developer shall have fifteen (15) days from the date of this Agreement to give written notice to the Agency and Escrow Agent of its approval or disapproval of any Exceptions. If the Developer notifies the Agency of its disapproval of any Exceptions in the Report, the Agency shall have the right, but not the obligation, to: (1) Remove any disapproved Exceptions within five (5) business days after receiving written notice of Developer's disapproval; or (2) Provide adequate assurances satisfactory to the Developer that such Exceptions will be removed on or before the Closing. If the Agency cannot or does not elect to remove any of the disapproved Exceptions within such five (5) business day period, the Developer shall have five (5) business days after the expiration of such five (5) business day period to either (a) give the 7 681359A i Agency written notice that the Developer elects to proceed with the conveyance of the Site subject to the disapproved Exceptions or (b) give the Agency written notice that the Developer elects to terminate this Agreement. The Exceptions to title approved by the Developer as provided herein shall hereinafter be referred to as the "Condition of Title."The Developer shall have the right to approve or disapprove all Exceptions (other than those created by the Developer) which are reported by the Title Company to the Developer after the Developer has approved the Condition of Title for the Site as set forth above. The Agency shall not voluntarily create any new exceptions to title following the Date of Agreement. The Agency shall ensure, at its sole cost and expense, that all financial liens on the Site are removed prior to or concurrently with the Closing. 2.10. Title Insurance. Concurrently with recordation of the Grant Deed conveying title to the Site to Developer, there shall be issued to Developer a CLTA or ALTA owner's policy of title insurance (the "Title Policy"), together with such endorsements as are reasonably requested by the Developer, issued by the Title Company insuring that the title to the Site is vested in Developer in the condition required by Section 2.9 of this Agreement. The Title Company shall provide Developer with a copy of the Title Policy. The Title Policy shall be for the amount specified during escrow. 2.11. Conditions of Closing. The Closing is conditioned upon the satisfaction of the following terms and conditions within the times designated below: 2.11.1. Agency's Conditions Precedent. Agency's obligation to proceed with the Closing of the Conveyance of the Site is subject to the fulfillment (or written waiver by ,Agency) of each and every one of the conditions precedent (a) through (h), inclusive, described below ("Agency's Conditions Precedent"), which are solely for the benefit of Agency, and which shall be fulfilled or waived by the time periods provided for herein: (a) Execution of Documents. The Developer shall have executed and acknowledged the Grant Deed, and any other documents required hereunder and shall have delivered such documents into Escrow. (b) Entitlements. Developer shall obtain all land use entitlements for development of the Project; (c) Permits. Developer shall obtain all building permits for construction of the Project; (d) Operating Covenant. Developer shall file and record a. 5 year operating covenant with the County Recorder's Office, for a EZ Lube or equivalent automobile service station as approved by the City; (e) EZ Lube Franchise. Developer shall provide proof of an executed franchise agreement with EZ Lube, including EZ Lube's approval of this Agreement and the plans for 8 53135Bd I the Site; (f) Insurance. The Developer shall have provided proof of insurance as required by Section 3.5. (g) Financing. The Developer shall have provided proof satisfactory to the Agency that the Developer has sufficient internal funds or has obtained a loan or financing for construction for the Project from a Construction Lender pursuant to Section 3.8, and such financing shall close and be available to the Developer upon the Closing. i (h) No Default. Prior to the Closing, Developer shall not be in default in any of its obligations under the terms of this Agreement and all representations and warranties of Developer contained herein shall be true and correct in all material respects. 2.11.2. Developer's Conditions Precedent. Developer's obligation to proceed with the purchase of the Site is subject to the fulfillment or waiver by Developer of each and all of the conditions precedent (a) through (g) inclusive, described below ("Developer's Conditions Precedent"), which are solely for the benefit of Developer, and which shall be fulfilled or waived by the time periods provided for herein: (a) Execution of Documents. The Agency shall have executed and acknowledged the Grant Deed and any other documents required hereunder, and delivered such documents into Escrow. (b) Title Policv. Developer shall have reviewed and approved the condition of title of the Site, as provided in Section 2.9, and the Title Company shall, upon payment of Title Company's regularly scheduled premium, have agreed to provide the Title Policy for the Site upon the Closing, in accordance with Section 2.10. (c) Environmental. The Developer shall either have approved, in writing, the environmental condition of the Site pursuant to Section 2.14, or if the Developer disapproved, in writing, the environmental condition of the Site. pursuant to Section 2.14, then the Agency shall have decided to Remediate any such disapproved conditions on the Site and the Remedial Work shall have been completed pursuant to Section 2.14. (d) No Litigation., No litigation shall be pending or threatened which seeks to enjoin the transactions contemplated by this Agreement or to obtain damages in connection therewith. (e) No Default. Prior to the Closing, Agency shall not be in default in any of its obligations under the terms of this Agreement and all representations and warranties of Agency contained herein shall be true and correct in all material respects. I 2.12. Representations and Warranties. i j 9 681359.1 i i 2.12.1. Aoencv Representations. Agency represents and warrants to Developer as follows: (a) Agency is a public body, corporate and politic, existing pursuant to the California Community Redevelopment Law (California Health and Safety Code Section 33000, et seq.),which has been authorized to transact business pursuant to action of the City. (b) Agency has full right, power and lawful authority to grant and convey the Site as provided herein, and the execution, performance and delivery of this Agreement and the instruments referenced herein by Agency has been dully authorized by all requisite actions on the part of Agency. (c) Agency's execution, delivery and performance of its obligations under this Agreement and the instruments referenced herein will not constitute a default or a breach under any contract, agreement or order to which Agency is a party or by which it is bound. (d) To Agency's actual knowledge, there are no pending actions, suits, arbitrations, claims or proceedings, at law, in equity or otherwise, affecting, or which may affect, all or d any portion of the Site. (e) To Agency's actual knowledge, there are no agreements (whether oral or written), affecting or relating to the right of any party with respect to the possession of the Site, or any portion thereof, which are obligations which will affect the Site or any portion thereof following the Closing. (0 Except for this Agreement, the Agency has not provided any person or entity any rights of first refusals or .options or other rights to lease or purchase the Site. Until the Closing, Agency shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 2.12.1 not to be true as of Closing, immediately give written notice of such fact or condition to Developer. Such exception(s) to a representation shall not be deemed a breach by Agency hereunder, but shall constitute an exception which Developer shall have a right to approve or disapprove if such exception would have an effect on .the value and/or operation of the Project. If Developer elects to close Escrow following disclosure of such information, Agency's representations and warranties contained herein shall be.deemed to have been made as of the Closing, subject to such excepfion(s). If, following the disclosure of such information, Developer elects to not close Escrow, then this Agreement and the Escrow shall automatically terminate, and neither party shall have any further rights, obligations or liabilities hereunder. The representations and warranties set forth in this Section 2.12.1 shall survive the Closing. 2.12.2. Developer's Representations. Developer represents and warrants to Agency as follows: (a) Authority. Developer is a duly organized limited liability company within and in good standing under the laws of the State of California. Developer has full right, power and 10 581359.1 RI lawful authority to accept the Conveyance of the Site, develop the Project on the Site, and undertake all obligations as provided herein. The execution, performance and delivery of this Agreement by Developer has been fully authorized by all requisite actions on the part of the Developer. (b) Developer's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement, or order to which the Developer is a party or by which it is bound. (c) Developer is not the subject of a current or pending bankruptcy proceeding. Until the Closing, Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 2.12.2 not to be true as of Closing, immediately give written notice of such fact or condition to Agency. Such exception(s) to a representation shall not be deemed a breach by Developer hereunder, but shall constitute an exception which Agency shall have a right to approve or disapprove if such exception would have an effect on the value and/or operation of the Project. If Agency elects to close Escrow following disclosure of such information, Developers representations and warranties contained herein shall be deemed to have been made as of the Closing, subject to such exception(s). If, following the disclosure of such information, Agency elects to not close Escrow, then this Agreement and the Escrow shall automatically terminate, and neither party shall have any further rights, obligations or liabilities hereunder. The representations and warranties set forth in this Section 2.12.2 shall survive the Closing. 2.13. Studies and Reports. Prior to the Closing, Developer shall be permitted to study the Site for the purpose of obtaining data and making surveys and tests necessary to carry out this Agreement, including the investigation of the environmental condition of the Site pursuant to Section 2.14.3 (collectively, the "Studies"). Any preliminary work undertaken on the Site by Developer prior to the Closing shall be done at the sole expense of Developer and Developer shall provide Agency with copies of any Studies or Reports conducted pursuant to this Section 2.13. Any preliminary work shall be undertaken only after securing any necessary permits from the appropriate governmental agencies. Agency shall provide Developer a copy of all documents and agreements in the possession or control of Agency with respect to the Site within ten (10) days after the Date of Agreement. Developer shall have ten (10) days from the date on which Developer receives the documentation referred to in the immediately preceding sentence to review such documentation (the "Due Diligence Period"); Developer may terminate this Agreement within such ten (10) day period by written notice to the Agency in accordance with Section 6.1 if Developer reasonably believes that the condition of the Site will not support the execution of the obligations of this Agreement. Agency and Developer shall each have an ongoing obligation to provide to the other party any documents relating to the condition of the Site which are obtained during the escrow period. 2.14. Condition of the Site: Releases. 2.14.1. Disclosure Regarding Condition of Site. The Agency hereby represents and warrants that it has no actual knowledge, and has not received any notice 581359,1 11 or communication from any governmental agency having jurisdiction over the Site notifying it of the presence of surface or subsurface zone Hazardous Materials in, on or under the Site or any portion thereof. 2.14.2. Investi ation. Developer may, prior to the Closing and at its own sole expense, cause an environmental investigation of the Site to be performed by an environmental consultant. Developer shall promptly provide the other a copy of all reports and test results provided by Developer's environmental consultant. 2.14.3. Approval of Environmental Conditions. Developer shall be entitled to reasonably approve or disapprove the environmental condition of the Site by written notice to the Agency. In the event that Developer disapproves the environmental condition of the Site, Developer shall be entitled to terminate this Agreement by giving Agency notice in accordance with Section 6.1, or grant the Agency the option to Remediate and/or correct the conditions disapproved by Developer. In the event the Agency chooses to Remediate at its sole cost and expense such disapproved conditions on the Site, the Developer will not be entitled to terminate this Agreement due to the environmental condition of the Site provided that within thirty (30) days after the date the Developer delivers its disapproval notice to the Agency, the parties agree upon a remedial action plan ("RAP") for the disapproved conditions and further agree to any extensions to the items in the Schedule of Performance that are affected by the delay due to the Remediation work, including without limitation the Closing Date. The remedial work to be performed pursuant to the RAP ("Remedial Work") shall be performed by the Agency in accordance with applicable Governmental Requirements. The Agency shall proceed continuously and diligently with the Remedial Work and upon completion of the work shall promptly deliver to the Developer the closure letter or such other similar official acknowledgement that is required to be obtained or that may be reasonably available from said public agency or agencies with jurisdiction over the work that confirms each such agency's determination as to whether the work has been completed in accordance with the RAP and applicable Governmental Requirements. In the event the Agency has elected to Remediate the Site, the Agency's compliance with the provisions of this Section 2.14.3 shall be a Developer Condition Precedent under Section 2,11. Upon completion of the Remedial Work, the Developer shall have the right to inspect the Site to determine if it is reasonably satisfied that the Remedial Work has been completed in accordance with the approved RAP and applicable Governmental Requirements. 2.14.4. No Further Warranties; Delivery of Property "as is". Except as otherwise provided herein, the physical condition of the Site is and shall be delivered to Developer in an "as-is" condition, with no warranty expressed or implied by the Agency, including without limitation, the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Site for the development purposes intended hereunder. Notwithstanding anything to the contrary in this Agreement, neither party waives or relinquishes any common law or statutory rights it may have against one another or third persons arising from or related to the cause or source of any Hazardous Materials on the Site, or for contribution or indemnity as a result of site evaluation, remediation and/or clean-up costs and liability. 12 587359,1 i i 2.14.5. Reauired Disclosures After Closina. After the Closing, the Developer shall notify the Agency, and provide to the Agency a copy or copies, of all environmental permits, disclosures, applications, entitlements or inquiries relating to the Site, including notices of violation, notices to comply, citations, inquiries, clean-up or abatement orders, cease and desist orders, reports filed pursuant to self-reporting requirements and reports filed or applications made pursuant to any Governmental Requirement relating to Hazardous Materials. Upon request, the Developer shall furnish to the Agency a copy or copies of any and all other environmental entitlements or inquiries relating to or affecting the Site including, but not limited to, all permit applications, permits and reports including, without limitation, those reports and other matters which may be. characterized as confidential. 2.14.6. Indemnity. Except as otherwise provided herein, upon Closing, Developer agrees to indemnify, defend and hold Agency and the City and their respective officers, employees, agents, representatives and volunteers harmless from and against any claim, action, suit, proceeding, damage, liability, deficiency, fine, penalty, or punitive damage (including, without limitation, reasonable attorneys' fees), resulting from, arising out of, or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Site which first occurs after the Closing, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Site which first occurs after the Closing; it being the express intention of the parties that the foregoing provisions shall have no application to Hazardous Materials existing on or under the Site prior to the Closing Date. At the request of the Developer, the Agency shall cooperate with and assist the Developer in its defense of any such claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense; provided that the Agency shall not be obligated to,incur any expense in connection with such cooperation or assistance. This indemnification shall not apply to (i) any release or discharge of Hazardous Materials, or violations of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Site which occurred prior to the Closing, or any release after the Closing of Hazardous Materials that were located on the Site prior to the Closing except to the extent such released Hazardous Materials were handled, stored, or disposed of in a negligent manner by Developer or its employees, agents, or contractors, or (ii) any release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from the Site by Agency, City or any of their respective employees, agents or contractors, or (iii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Site by Agency, City or any of their respective employees, agents or contractors. 13 691359.7 i 3.0 DEVELOPMENT OF THE SITE. 3.1. Scope of Development. Developer shall develop the Conveyance Parcel for a EZ Lube automobile service station, and all onsite and offsite improvements required as conditions of regulatory approval of the foregoing (the "Project"). It is the intent of this Agreement to require the development of the Site pursuant to the approved plans and drawings. The Project shall be developed in accordance with the plans, drawings and documents to be submitted by Developer and approved by the Agency and the City of Palm Springs ("City") as set forth herein, within the time periods set forth in the Schedule of Performance. 3.2. Land Use Approvals. Before commencement of construction of the Project or other works of improvement upon the Site, Developer shall, at its own expense, secure or cause to be secured any and all land use and other entitlements, permits and approvals which may be required for the Project by the City or any other governmental agency affected by such construction or work, except for those which are the responsibility of Agency as set forth herein. 3.2.1. Finding of General Plan Consistency. No later than the date that is fifteen (15) days after the Date of Agreement, Agency shall submit a request to the Planning Commission of City to determine and make a finding that the disposition of the Property is consistent with the City's General Plan in accordance with Government Code Section 65402 ("Consistency Finding Matter"). In the event that the Planning Commission has not taken action on the Consistency Finding Matter by the date that is thirty (30) days after the Agency has submitted such request, but no later than forty-five (45) days after the Date of Agreement, Developer shall have the right to terminate this Agreement pursuant to Section 5.3. If the Planning Commission makes the determination during the Escrow period that the consistency finding cannot be made, then Agency and Developer each shall have the right to terminate this Agreement and the Escrow by delivery of written notice to the other party and Escrow Agent. 3.2.2. Developer to Pay Costs. Developer shall, without limitation, apply for and secure the following, and pay all costs, charges and fees associated therewith: (a) All permits, fees and approvals required by the City, County of Riverside and other governmental agencies with jurisdiction over the Project (other than the costs of Remediation, if any); and (b) All approvals required pursuant to the California Environmental Quality Act; and (c)Any Commission fees for the real estate transactions. 3.2.3. Agency Cooperation. Agency staff will work cooperatively with Developer to assist in coordinating the expeditious processing and consideration of all necessary permits, entitlements and approvals. The Developer shall be responsible for payment of all 14 581359.1 fees payable in connection with the Project. The execution of this Agreement does not constitute the granting of any required land use permits, entitlements or approvals. U. Schedule of Performance. Developer shall submit all required plans and drawings, commence and complete all construction of the Project, and satisfy all other obligations and conditions of this Agreement within the times established therefor in this Agreement and the Schedule of Performance, subject to extensions pursuant to Section 6.2. Agency shall satisfy all other obligations and conditions of this Agreement within the times established therefor in this Agreement and the Schedule of Performance. 3.4. Cost of Construction. All of the cost of planning, designing, developing and constructing the entire Project and all applicable offsite improvements, shall be borne solely by Developer. 3.6. Insurance Requirements. The Developer shall take out and maintain or shall cause its contractor to take out and maintain until the issuance of the final Certificate of Completion pursuant to Section 3.9 of this Agreement, a commercial general liability policy in the amount of Two Million Dollars ($2,000,000) per occurrence, and a comprehensive automobile liability policy in the amount of One Million Dollars ($1,000,000) per occurrence, or such other policy limits as the Agency may approve at its discretion, including contractual liability, as shall protect the Developer, City and Agency from claims for such damages, and which policy shall be issued by an "A-" or better rated insurance carrier. Any contractors, individuals, or any party performing work on the building must provide their own auto insurance. Such policy or policies shall be written on an occurrence form. The Developer shall also furnish or cause to be furnished to the Agency evidence satisfactory to the Agency that Developer and any contractor with whom it has contracted for the performance of work on the Site or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. The Developer shall furnish a certificate of insurance countersigned by an authorized agent of the insurance carrier on a form approved by the Agency setting forth the general provisions of the insurance coverage. This wuntersigned certificate shall name the City and the Agency and their respective officers, employees, agents, representatives and volunteers as additionally insured parties under the policy, and the certificate shall be accompanied by a duly executed endorsement evidencing such additional insured status. The certificate and endorsement by the insurance carrier shall contain a statement of obligation on the part of _ the carrier to notify City and the Agency of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination. Coverage ,provided hereunder by the Developer shall be primary insurance and not be contributing with any insurance maintained by the Agency or City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of the City and the Agency. The required certificate shall be furnished by the Developer at the time set forth therefor in the Schedule of Performance. 3.6. Developer's Indemnification. Except as otherwise set forth in this Agreement, the Developer shall defend, indemnify, assume all responsibility for, and hold 15 531359.1 1 the Agency and the City, and their officers, employees, agents, representatives and volunteers, harmless from all claims, judgments, demands, damages, defense costs or liability of any kind or nature arising out of or relating to the subject matter of this Agreement or the validity, applicability, interpretation or implementation hereof and for any damages to property or injuries to persons, including accidental death (including attorneys fees and costs), which is caused by the willful or negligent acts or omissions of the Developer under this Agreement, or that of Developer's agents, employees, or contractors, whether such damage shall accrue or be discovered before or after termination of this Agreement. In no event shall the foregoing indemnity apply to, and Developer shall not be liable for, such.matters to the extent caused by the negligence, willful misconduct, breach of this Agreement, or failure to comply with applicable laws by the Agency or City or their respective agents, contractors or employees. The Developer shall have the obligation to defend any such action; provided, however, that this obligation to defend shall not be effective if and to the extent that Developer determines in its reasonable discretion that such action is meritorious or that the interests of the parties justify a compromise or a settlement of such action, in.which case Developer shall compromise or settle such action in a way that fully protects Agency and City from any liability or obligation. In this regard, Developer's obligation and right to defend shall include the right to hire (subject to written approval by the Agency and City, which approval shall not be unreasonably withheld, conditioned or delayed) attorneys and experts necessary to defend, the right to process and settle reasonable claims, the right to enter into reasonable settlement agreements and pay amounts as required by the terms of such settlement, and the right to pay any judgments assessed against Developer, Agency, or City. 3.7. Riahts of Access. Representatives of Agency and City shall have the right of access to the Site, without charges or fees, at normal construction hours during the period of.construction for the purposes of this Agreement, including but not limited to, the inspection of the work being performed in constructing the Project so long as Agency and City representatives comply with all safety rules and do not interfere with, delay or interrupt Developer's construction activities. 16 587359,1 3.8. Financing of the Project. 3.8.1. Approval of Financing. As required herein and as an Agency Condition Precedent to the Closing, Developer shall submit to Agency evidence that Developer has obtained sufficient equity capital or has obtained firm and binding commitments for construction financing from a Construction Lender necessary to undertake the development of the Site and the construction of the Project in accordance with this Agreement. The Agency shall approve or disapprove such evidence of financing commitments within fifteen (15) days of receipt of a complete submission. Approval shall not be unreasonably withheld, delayed or conditioned. If Agency shall disapprove any such evidence of financing, Agency shall do so by Notice to Developer stating the specific reasons for such disapproval and Developer shall promptly obtain and submit to Agency new evidence of financing. Agency shall approve or disapprove such new evidence of financing in the same manner and within the same times established in this Section 3.8.1 for the approval or disapproval of the evidence of financing as initially submitted to Agency and such other documentation reasonably satisfactory to the Agency as evidence of other sources of capital sufficient to reasonably demonstrate that Developer has adequate funds to cover the difference, if any, between the total cost of the construction and completion of the Project, less financing authorized by those loans set forth in clause (a) above. j 3.8.2. No Encumbrances Except Mortgages. Deeds of Trust, or Sales and Leasebacks for Development. Mortgages, deeds of trust and sales and leasebacks for construction financing shall be permitted before completion of the Project only with the Agency's prior written approval, which approval shall not be unseasonably withheld, conditioned or delayed, but only for the purpose of securing loans of funds to be used for financing the construction of the Project (including architecture, engineering, legal, permit costs, construction interest, and related direct costs as well as indirect hard and soft costs) on or in connection with the Site (including real property taxes, assessments, and insurance costs), and any other purposes necessary and appropriate in connection with development under this Agreement. In no event, prior to the issuance of a Certificate of Completion, however, shall the amount or amounts of indebtedness secured by mortgages or deeds of trust exceed the sum of the fair market value of the Site and the projected cost of constructing the Project, as evidenced by a pro forma and a construction contract which set forth such construction costs. The Developer shall notify the Agency in advance of any mortgage, deed of trust or sale and leaseback financing, if the Developer proposes to enter into the same before completion of the construction of the Project. The words "mortgage" and "trust deed" as used hereinafter shall include sale and leaseback. Agency hereby covenants to reasonably cooperate with Developer in Developer's efforts to secure construction financing from Developer's Construction Lender, and to.execute all documents reasonably necessary and customary in connection therewith. 3.8.3. Holder Not Obligated to Construct Protect. The holder of any mortgage or deed of trust authorized by this Agreement (including without limitation, all Construction Lenders) shall not be obligated by the provisions of this Agreement to construct or 17 387359.1 1 complete the Project or any portion thereof, or to guarantee such construction or completion; nor shall any covenant or any other provision in this Agreement be construed so to obligate such holder. Nothing in this Agreement shall be deemed to construe, permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. 3.8.4. Notice of Default to Mortoagee or Deed of Trust Holders: Right to Cure. With respect to any mortgage or deed of trust granted by Developer as provided herein, whenever the Agency may deliver any notice or demand to Developer with respect to any breach or default by the Developer in completion of construction of the Project, the Agency shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement (including without limitation, all Construction Lenders) a copy of such notice or demand. Each such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within thirty (30) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Project, or any portion thereof(beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement reasonably satisfactory to the Agency. The holder, in that event, must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates. Any such holder properly completing such improvement shall be entitled, upon compliance with the requirements of Section 3.9 of this Agreement, to a Certificate of Completion. It is understood that a holder shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Site (or portion thereof) if and to the extent any such holder has within such thirty (30) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. Agency agrees to reasonably consider modifications or amendments to this Agreement proposed by the Construction Lenders relating to the protection of their interests in the Project. 3.8.6. Failure of Developer to Complete Project. In any case where, thirty (30) days after the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any part thereof(including without limitation, all Construction Lenders) receives a notice from Agency of a default by the Developer in completion of construction of any of the Project under this Agreement, and such holder has not exercised the option to construct as set forth in Section 3.8.4, or if it has exercised the option but has defaulted hereunder and failed to timely cure such default, the Agency may purchase, without recourse and without representation or warranty (other than if the lender is the holder and beneficiary of the deed of trust), the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. If the ownership of the Site or 18 591359A any part thereof has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder, within sixty (60) days after foreclosure, of an amount equal to the sum of the following: (a) The unpaid mortgage or deed of trust debt (including principal, interest, and all other sums secured by the mortgage or deed of trust) at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (b)All expenses with respect to foreclosure including reasonable attorneys'fees; (c) The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Site or part thereof; (d) The costs of any improvements made by such holder; (e) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency; and (f) Any customary prepayment charges imposed by the lender pursuant to its loan documents and agreed to by the Developer. 3.8.6. Riaht of the Aaency to Cure.Mortaage or Deed of Trust Default. In the event of a mortgage or deed of trust default or breach by the Developer prior to the completion of the construction of any of the Project or any part thereof, Developer shall immediately deliver to Agency a copy of any mortgage holder's notice of default. If the Il holder of any mortgage or deed of trust has not exercised its option to construct, the Agency shall have the right but no obligation to cure the default within the same cure periods, if any, given Developer under the mortgage or deed of trust. In such event, the Agency shall be entitled to reimbursement from the Developer of all proper costs and expenses incurred by the Agency in curing such default. The Agency shall also be entitled to a lien upon the Site to the extent of such costs and disbursements. Any such lien shall be unconditionally and fully junior and subordinate to the mortgages or deeds of trust pursuant to this Section 3.8. 3.9. Certificate of Completion. Promptly after completion of all construction and development required by this Agreement to be completed by Developer upon the Site in conformity with this Agreement, the Agency shall furnish Developer with the Certificate of Completion upon written request therefor by Developer. The Agency shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Completion shall be a conclusive determination of satisfactory completion of the construction required by this Agreement upon the Site and the Certificate of Completion shall so state. The Certificate of Completion shall be in such form as to permit it to be recorded in the Recorder's Office of Riverside County. If the Agency refuses or fails to furnish a Certificate of Completion after written request from Agency, the Agency shall, within ten (10) days of written request therefor, provide Developer with a written statement of the reasons the Agency refused or 19 53135'JA failed to furnish a Certificate of Completion. The statement shall also contain Agency's opinion of the actions Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate availability of specific items of materials for landscaping, the Agency will issue its Certificate of Completion upon the posting of a bond or other security acceptable to Agency by Developer with the Agency in an amount representing a fair value of the work not yet completed. Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the improvements, or any part thereof. Such Certificate of Completion is not a notice of completion as referred to in the California Civil Code Section 3093. 3.10. Compliance With Laws. The Developer shall carry out the design, construction and operation of the Project in conformity with all applicable laws, including all applicable state labor standards, the City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the City Municipal, and all applicable disabled and handicapped access requirements, including without l limitation (to the extent applicable) the Americans With Disabilities Act, 42 U.S.C. Section 12101, a seq.. Government Code Section 4450, et seq., Government Code Section 11135, a seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq. 3.10.1. Government Requirements. The Developer shall carry out the construction of the Project and the development of the Site in conformity with all applicable Government Requirements, The Developer shall be solely responsible for determining and effectuating compliance with all applicable public works requirements, prevailing wage laws, and federal and state labor laws, and the Agency and City make no representation as to the applicability or non-applicability of any of such laws to the Project or any part thereof. Developer hereby expressly acknowledges and agrees that the Agency has not previously affirmatively represented to the Developer or its contractor(s) for the construction or development of the Project, in writing or otherwise, in a call for bids or otherwise, that the work to be covered by this Agreement is not a "public work," as defined in Section 1720 of the Labor Code. Developer hereby agrees that Developer shall have the obligation to provide any and all disclosures or identifications required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law. Developer shall indemnify, protect, defend and hold harmless the Agency, City and their respective officers, employees, contractors and agents, with counsel reasonably acceptable to Agency and City, from and against any and all loss, liability, damage, claim, cost, expense and/or "increased costs" (including reasonable attorneys fees, court and litigation costs, and fees of expert witnesses) which, in connection with the development, construction (as defined by applicable law) and/or operation of the improvements, including, without limitation, any and all public works (as defined by applicable law), results or arises in any way from any of the following: (1) the noncompliance by Developer of any applicable local, state arid/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, if applicable, the requirement to pay state prevailing wages); (2) the implementation of Section 1781 of the Labor Code, as the same may be amended from 20 587359.7 E' time to time, or any other similar law; and/or (3) failure by Developer to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law, It is agreed by the parties that, in connection with the development and construction (as defined by applicable law) of the Project, including, without limitation, any and all public works (as defined by applicable law), Developer shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law. "Increased costs," as used in this Section 3.10.1, shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be amended from time to time. The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction and development of the Project by the Developer. 3.10.2. Liens and Stop Notices. If a claim of a lien or stop notice is given or recorded affecting the Site or the Project, the Developer shall within thirty (30) days of such recording or service or within five (5) days of the Agency's demand whichever last occurs: (a) pay and discharge the same; or (b) effect the release thereof by recording and delivering to the Agency a surety bond in sufficient form and amount, or otherwise; or (c) provide the Agency with other assurance which the Agency deems, in its sole discretion, to be satisfactory for the payment of such lien or bonded stop notice and for the full and continuous protection of Agency from the effect of such lien or bonded stop notice. 4.0 COVENANTS AND RESTRICTIONS. 4.1. Uses. The Developer covenants and agrees to devote, use, operate, and maintain the Site in accordance with the Grant Deed and this Agreement. All uses conducted on the Site, including, without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall conform to the Redevelopment Plan, all applicable provisions of the Palm Springs Municipal Code, the approved Project plans and drawings, and the recorded documents pertaining to and running with the Site. 4.2. Maintenance (a) Maintenance. The Developer shall maintain or cause to be maintained the interiors and exteriors of the Project and the Site in a decent, safe and sanitary manner, in accordance with the standard of maintenance of similar developments within Riverside County, California. If at any time Developer fails to maintain the Project and/or the Site in accordance with this Agreement and such condition is not corrected within fifteen (15) days after written notice from the Agency with respect to graffiti, debris, waste material, and general maintenance, or thirty (30) days after written notice from the Agency with respect to landscaping and building improvements (subject to notice and an opportunity to cure pursuant to Section 5.1 hereof), then the Agency, in addition to whatever remedy it may 21 587358.4 i have at law or at equity, shall have the right to enter upon the applicable portion of the Project and the Site and perform all acts and work necessary to protect, maintain, and preserve the Improvements and landscaped areas on the Project and the Site, and to attach a lien upon the Project and the Site, or to assess the Project and the Site, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the Agency and/or costs of such cure, which amount shall be promptly paid by Developer to the Agency upon demand. 5.0 DEFAULTS AND REMEDIES. 5.1. Default Remedies. Subject to the extensions of time set forth in Section 6.2 of this Agreement, failure by either party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and failure to cure as described hereafter, constitutes a "Default" under this Agreement. A party claiming a Default shall give written notice of Default to the other party specifying the Default complained of. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against any other party, and the other party shall not be in Default if such parry within thirty (30) days from receipt of such notice cures such Default, or if the nature of such Default is that it cannot reasonably be expected to be cured within such thirty (30) day period, then the claimant shall not institute any proceeding against any other party, and the other party shall. not be in Default if such party, with due diligence, commences to cure, correct or remedy such failure or delay within thirty (30) days of notice thereof and completes such cure, correction or remedy with diligence. 6.2. Institution of Legal Actions. In addition to any other rights or remedies and subject to the restrictions otherwise set forth in this Agreement, either party may institute an action at law or equity to seek specific performance of the terms of this Agreement, or to cure, correct or remedy any Default, to recover damages for any Default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, or in the Federal District Court with jurisdiction over the Site. 22 ' 3813HH.7 5.3. Termination by Developer. In the event that Developer is not in default under this Agreement and prior to the Closing: (a)Agency does not tender title to the Site pursuant to the Grant Deed in the manner and condition and by the date provided in this Agreement, or (b) One or more of Developer's Conditions Precedent to the Closing is not satisfied on or before the time set forth in the Schedule of Performance; or (c) Developer determines the condition of the Site will not support the construction of the Project thereon as set forth in Section 3.1; or (d) The Planning Commission has not approved a resolution finding the Agency's conveyance of the Site to be in conformity with the Palm Springs General Plan within thirty (30) days after the Agency has submitted such request but no later than forty-five (45) days of the Date of Agreement, as set forth in Section 3.4.1; or (e) A lawsuit is filed challenging the validity of this Agreement, including without limitation any land use or other entitlements, permits, or approvals required for the implementation of this Agreement, or which would otherwise impair Developer's ability to implement this Agreement, and the Developer reasonably believes defending such challenge will be futile or so costly as to make completion of the Project financially impracticable; or If j {f) In the event of any default of Agency prior to the Closing which is not cured within the time set forth in Section 5.1 hereof, and any such failure is not cured within the applicable time period after written demand by Developer, then this Agreement may, at the option of Developer, be terminated by written notice thereof to the Agency. From the date of the written notice of termination of this Agreement by Developer to Agency and thereafter this Agreement shall be deemed terminated, and there shall be no further rights or obligations between the parties with respect to the Site, except that Developer may pursue any remedies it has hereunder or at law or in equity. 5.4. Termination by Money. In the event that the Agency is not in Default under this Agreement and prior to the Closing: (a) One or more of Agency's Conditions Precedent to the Closing is not satisfied on or before the time set forth in the Schedule of Performance; or (b) Developer is otherwise in default of this Agreement and fails to cure such default within the time set forth in Section 5.1 hereof, then this Agreement and any rights of Developer or any assignee or transferee with respect to or arising out of the Agreement, shall, at the option of Agency, be terminated by Agency by written notice thereof to Developer. From the date of the written notice of termination of this Agreement by Agency to Developer and thereafter this Agreement shall be deemed terminated, and there shall be 23 581359.1 i no further rights or obligations between the parties with respect to the Site, except that Agency may pursue any remedies it has hereunder or at law or in equity. 5.6. Reentry and Revesting of Title to the Site After the Conveyance and Prior to Completion of Construction. Agency has the right, at its election, to reenter and take possession of the Site, with all improvements thereon, and terminate and revest in Agency the estate conveyed to Developer by the Conveyance if after the Closing and prior to the issuance of the Certificate of Completion, Developer (or its successors in interest) shall: (a) fail to start the construction of the Project as required by this Agreement for a period beginning when Developer receives written notice of such failure from Agency pursuant to Section 5.1 and ending on the later of (i) ninety (90) days or (ii) the end of the cure period provided in Section 5.1 hereof (subject to extensions pursuant to Section 6.2 hereof); or (b) abandon or substantially suspend construction of the Project required by this Agreement for a period beginning when Developer receives written notice of such abandoned or suspended construction from Agency pursuant to Section 5.1 and ending on the later of(i) sixty(60) days or(ii) the end of the cure period provided in Section 5.1 hereof (subject to extensions pursuant to Section 6.2 hereof); or (c) contrary to the provisions of Section 6.3 transfer or suffer any involuntary transfer of the Site or any part thereof in violation of this Agreement, which is not cured within the notice and cure period in Section 5.1. Such right to reenter, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid or limit: 1. Any mortgage or deed of trust permitted by this Agreement; or 2. Any rights or interests provided in this Agreement for the protection of the holders of such mortgages or deeds of trust. The Grant Deed shall contain appropriate reference and provision to give effect to Agency's right as set forth in this Section 5.5, under specified circumstances prior to recordation of the Certificate of Completion, to reenter and take possession of the Site, with all improvements thereon, and to terminate and revest in Agency the estate conveyed to Developer. Upon the revesting in Agency of title to the Site as provided in this Section 5.5, Agency shall, pursuant to its responsibilities under state law, use its reasonable efforts to resell the Site as soon and in such manner as Agency shall find feasible and consistent with the objectives of such law and of the Redevelopment Plan, as it exists or may be amended, to a qualified and responsible party or parties (as determined by Agency) who will assume the obligation of making or completing the Project, or such improvements in their stead as shall be satisfactory to Agency and in accordance with the uses specified for such Site or part thereof in the Redevelopment Plan. Upon such resale of the Site, the net 24 581359 i i proceeds thereof after repayment of any mortgage or deed of trust encumbering the Site which is permitted by this Agreement, shall be applied: i. First, to reimburse Agency for all costs and expenses incurred by Agency, excluding.Agency staff costs, but specifically, including, but not limited to, any expenditures by Agency in connection with the recapture, management and resale of the Site or part thereof(but less any income derived by Agency from the Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Site and presently due or part thereof which Developer has not paid; any payments made or necessary to be made to discharge any encumbrances or liens existing on the Site or part thereof at the time or revesting of title thereto in Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing Agency, and in the event additional proceeds are thereafter available, then ii. Second, to reimburse Developer, its successor or transferee, up to the amount equal to the sum of (a) the costs incurred for the acquisition and development of the Site and for the improvements existing on the Site at the time of the reentry and possession, less (b) any gains or income withdrawn or made by Developer from the Site or the improvements thereon. Any balance remaining after such reimbursements shall be retained by Agency as its property. In the event Agency exercises its rights under this Section 5.5 and acquires the it Site, Developer shall have no further responsibility for developing the Project; however, the rights established in this Section 5.5 are not intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy authorized herein or now or hereafter existing at law or in equity. These rights are to.be interpreted in light of the fact that Agency will have conveyed the Site to Developer for redevelopment purposes; particularly for development of housing and commercial uses and not for speculation in undeveloped land. 6.6. Acceptance of Service of Process. In the event that any legal action is commenced by Developer against Agency, service of process on Agency shall be made by personal service upon the Agency Secretary or in such other manner as may be provided by law. In the event that any legal action is commenced by Agency against Developer, service of process on Developer shall be made by personal service upon the president of the Developer, or in such other manner as may be provided by law. 6.7. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the 25 681358.1 i exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 5.8. Inaction Not a Waiver of Default. Any failures or delays by either party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of 'i any Default or of any such rights or remedies, or deprive either such party of its right to . institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. ff 6.9. Applicable Law. The laws of the State of California shall govern the I interpretation and enforcement of this Agreement. 6.0 GENERAL PROVISIONS. 6.1. Notices. Demands and Communications Between the Parties. Any approval, disapproval, demand, document or other notice ("Notice") which either parry may desire to give to the other party under this Agreement must be in writing and may be given by any commercially acceptable means to the party to whom the Notice is directed at the address of the party as set forth below, or at any other address as that party may later designate by Notice. To Agency: REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS 3200 E Tahquitz Canyon Way Palm Springs, CA 92262 Attn.: David H. Ready, Executive Director With Copy,To: Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 12000 Costa Mesa, CA 92626 Attn.: Douglas C. Holland,Agency Counsel _ To Developer: Endure Investments, LLC 1888 Century Park East, Suite 450 Los Angeles, CA 90067 Attn.: Mark Gabay Any written notice, demand or communication shall be deemed received immediately if delivered by hand and shall be deemed received on the third day from the date it is postmarked if delivered by registered or certified mail. 6.2. Enforced Delay: Extension of Times of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Agreement shall be extended, where delays or Defaults are due to causes beyond the control or without the fault of the party claiming an extension of time to perform, which may include, i 26 53135B,1 without limitation, the following: war; acts of terrorism, insurrection; strikes; lockouts; labor troubles; inability to procure materials; power failures; riots; floods; earthquakes; fires; other natural disasters; casualties; acts of God; acts of terrorism; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; unusually severe weather; governmental moratoria; or acts or failures to act of the City or any other public or governmental agency or entity (other than the acts or failures to act of Agency which shall not excuse performance by Agency). Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of Agency's Executive Director and Developer. Notwithstanding any provision of this Agreement to the contrary, the lack of funding to complete the Improvements shall not constitute grounds of enforced delay pursuant to this Section 6.2. 6.3. Transfers of Interest in Site or Agreement. 6.3.1. Prohibition. The qualifications and identity of Developer are very important and of particular concern to Agency. It is because of those qualifications and identity that Agency has entered into this Agreement with Developer. Except as provided as provided in Section 6.3.2, below, no voluntary or involuntary successor in interest of Developer shall, prior to the issuance of the Certificate of Completion, (i) acquire any rights or powers under . this Agreement, (ii) make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the Site or the improvements thereon, or (iii) transfer the Project, without the prior written approval of the Agency, except as expressly set forth herein. 6.3.2. Permitted Transfers. Notwithstanding any other provision of this Agreement to the contrary, Agency approval of an assignment of this Agreement or conveyance of the Site or Project, or any part thereof, shall not be required in connection with any of the following: (a) Any transfers to an entity or entities in which Developer or members, directly or indirectly, of the Developer retains a portion of the ownership or beneficial. interest and retains management and control of the transferee.entity or entities. (b) The conveyance or dedication of any portion of the Site to the City or other appropriate governmental agency, or the granting of easements or permits to facilitate construction of the Project. (c) Any requested assignment for financing purposes (subject to such financing being.considered and approved by Agency pursuant to Section 3.8), including the grant of a deed of trust to secure the funds necessary for land acquisition, construction and permanent financing of the Project. 27 631369,1 i In the event of an assignment by Developer under subparagraph (a) above not requiring Agency's prior approval, Developer nevertheless agrees that at least thirty (30) days prior to such assignment Developer shall give written notice to Agency of such assignment and satisfactory evidence that the assignee has assumed the obligations of this Agreement. _ 6.3.3. Successors and Assigns. All of the terms, covenants and conditions of this Agreement shall be binding upon Developer and their permitted successors and assigns. Whenever the term "Developer" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided. 6.3.4. Assignment by Agency. Agency may assign or transfer any of its rights or obligations under this Agreement with the approval of Developer, which approval shall not be unreasonably withheld; provided, however, that Agency may assign or transfer any of its interests hereunder to the City at any time without the consent of Developer; provided further that any such assignee of Agency shall assume all of the obligations of Agency hereunder. 6.4. Non-Liability of Officials and Employees of Agencv. No member, official or employee of Agency or the City shall be personally liable to Developer or any successor in interest, in the event of any Default or breach by Agency(or the City) or for any amount which may become due to Developer or its successors, or on any obligations under the terms of this Agreement. 6.5. Relationship Between Agency and Developer. It is hereby acknowledged that the relationship between Agency and Developer is not that of a partnership or joint venture and that Agency and Developer shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein or in the Attachments hereto, Agency shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Project. Developer agrees to indemnify, hold harmless and defend Agency from any claim made against Agency arising from .a claimed relationship of partnership or joint venture between Agency and Developer with respect to the development, operation, maintenance or management of the Site or the Project which claim arises.from or is based upon actions by Developer. 28 557359,7 i i 6.6. Agency Approvals and Actions. The Agency shall maintain authority of this Agreement and the authority to implement this Agreement through the Agency Executive Director (or his duly authorized representative). The Agency Executive Director shall have the authority to make approvals, issue interpretations, waive provisions, enter into amendments of this Agreement, sign and approve escrow documents and additional documents, on behalf of the Agency so long as such actions do not materially or substantially change the uses or development permitted on the Site, or materially or substantially add to the costs incurred or to be incurred by the Agency as specified herein. Such actions which may be approved by the Agency Executive Director include extensions of time to perform as specified in the Schedule of Performance, extensions of the Outside Closing Date, and assignments under Section 6.3. All other material and/or substantive approvals, interpretations, waivers or amendments, shall require the consideration, action and written consent of the Agency Board. 6.7. Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. 6.8. Intearation. This Agreement contains the entire understanding between the 7 parties relating to the transaction contemplated by this Agreement. All prior or contemporaneous agreements, understandings, representations and ,statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each party is entering this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. This Agreement includes Attachment Nos. 1 and 2, which together with the Agreement constitute the entire understanding and agreement of the parties, notwithstanding any previous negotiations or agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof 6.9. Real Estate Brokerage Commission. Developer shall be responsible for any commission or finder's fee in connection with this transaction, and Developer agrees to defend and hold the Agency harmless from any claim to any such commission or fee resulting from any action on its part. 6.10. Attorneys' Fees. In any action between the parties to interpret, enforce, reform, modify, rescind or otherwise in connection with any of the terms or provisions of this. Agreement, the prevailing party in the action shall be entitled, in addition to damages, ihjunctive relief or any other relief to which it might be entitled, reasonable costs and expenses including, without limitation, litigation costs and reasonable attorneys' fees. 6.11. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. Reference to section numbers are to sections in this Agreement, unless expressly stated otherwise. 6.12. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where 29 667359.1 i _ and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement shall be interpreted as though prepared jointly by both parties. 6.13. No Waiver. A waiver by either party of a breach of any of the covenants, conditions or agreements under this Agreement 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 of this Agreement. 6.14. Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party. 6.16. Severability. If any term, provision, condition or covenant of this Agreement or Its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the 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, and shall be valid and enforceable to the fullest extent permitted by law. 6.16. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the day escrow opens) and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall mean all holidays as specified in Section 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time. 6.17. Lenal Advice, Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees or attorneys, except as specifically set forth in this Agreement, and Without duress or coercion, whether economic or otherwise. 681359.1 30 6.18. Time of Essence. Time is expressly made of the essence with respect to the performance by Agency and Developer of each and every obligation and condition of this Agreement. 6.19. Cooperation. Each party. agrees to cooperate with the other in this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful or appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements. 6.20. Conflicts of Interest. No member, official or employee of Agency shall have d any personal interest, direct Or indirect, in this Agreement, nor shall any such member, y official or employee participate in any decision relating to the Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she is directly or indirectly interested. 6.21. Time for Acceptance of Agreement by Agency. This Agreement, when executed by Developer and delivered to Agency, must be authorized, executed and delivered by Agency within thirty (30) days after signing and delivery of this Agreement by Developer or this Agreement shall be void, except to the extent that Agency and Developer shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement by Agency. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below. [Signatures on the following page.] 31 531359.1 i "AGENCY' The Community Redevelopment Agency of the City of Palm Springs Dated `;Attest:. EXECUTWE DIRECTOR APPROVED By 04tf i tis�lW6dP��d�Y �'C��Y$F By RE-S. NO. • �ra��;� us� i , .,<='C; ��;>�,; �at�„gyp Approved as`to form: Edward L. Bertrand Assistant Agency Counsel "DEVELOPER" Endure Investments, LLC -kyEtccZ e,,� l.nn a�t t ri i! m.cmbr., Dated By Its Approve form: . Its 32 581359.1 f All-Purpose Acknowledgment , State of California ) County of Los Angeles ) on r1111 W O ,2008 before me, Patti Lavine,Notary Public,personally appeared Gc OTC who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)l&s/are subscribed to the within instrument and acknovAedged to me that e/she/they executed the same in rrs/her/their authorized capacity(ies), and that by er/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. ►14?11 AM 1AVNl epnanlalall 1711 N2 ►lplory►ubNo•QoaaMa ! Lot AM"$County Signa e ) calmOMbMMW212M1 I ACA_462909.1 i CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California 1 Cou��P,n^^ty of /�1✓el`5/� J} On 7 6bV - iA?" before me, d Y y f�rGc / i�r�1 /)/l7fz[vr� 411C —� eme n p T Here truert Name and TRle d the OHlc personally appeared Ap✓Id � � :2 jag%ej - / Name(e)azngner(a) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) subscribed to the within instrument and acknowledged,_tQ, me that W She4oexecuted the same in hkftr I Jauthorized capacity(ies), and that by fffs/l ei signature(s) on the Cornnuvion N� instrument the person(s), or the entity upon behalf of Nototy Pubdc-Cotlfada which the person(s) acted, executed the instrument. Riverside County awycomm. re.Feb 18,2ot0 1 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 sealL Signature Place Notary Seel Above Sign dure of Nolery Pab9c OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document / /� y 2-� '''" _ Title or Type of Document: b DS h{ A' �NE� �U/(Jh�2w�A yei pyl !�c wtl fe G9(4Q-'Ad � v� Document Date: Selo. V" Num Br of Pages: 6/iiu), l.0 ' Signer(s)Other Than Named Above: ! rK- (i2GA�cy C Vrl a Capacity(ies) Claimed ppby 'SllIgner(s) `( Signer's Name: IJG VIGC F t - T cInFI,� Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s): ❑ Partner—❑Limited,❑General ❑Partner—❑Limited ❑General ❑ Attorney in Fact ❑Attorney In Fact ❑ Trustee Tap of thumb here ❑Trustee Top of thumb here ❑ GuardiW or Conservator ❑GuardiSConservator Other;tgQ'�L 1l✓ GL ( 17Oher. Y 5fA S&yeL vtg- Signer Is Representin : ner Is Re presenting;�1 pa�lvl raw` r4w ni l/A r, n 41 olp r v wow 02007Netlonal Notary A•swlalwn•g35g D•6ob Ave.,P.O,Bo<29o2•Chokwodh,CA 97313-2402•xmv.NelbnelNoleryIXg II•m k59W FieoNer.GellTd-Fre•1-BW8r6-6e2] I I i Exhibit "A" LEGAL DESCRIPTION APN 677-280-041 (To Be Provided) i I i i �I i I I saiase.i 33 I i I EXHIBIT "A" LEGAL DESCRIPTION 'THAT PORTION OF PARCEL 2 OF PARCEL MAP NO.24604 ON FILE IN BOOR 159 OF PARCEL MAPS,PAGES 66 AND 67,IN SECTION 18,TOWNSHIP 4 SOUTH,RANGE 5 EAST, S.B.M, COUNTY OF RIVERSIDE,STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL A: COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 2; THENCE SOUTH 89046'20"WEST 53.62 FEET ALONG THE SOUTHERLY RIGHT OF WAY 1 LINE OF MISSION DRIVE TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 260.00 FEET; THENCE SOUTHWESTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE AND TFCE ARC OF SAID CURVE AN ARC DISTANCE OF 18.75 FEET THROUGH A CENTRAL ANGLE OF 04°07'55",A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 04-21,35" VEST TO THE POINT OF BEGINNING; THENCE SOUTH 58023'30"EAST 49.85 FEET; THENCE SOUTH 00013'20"EAST 152.26 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 30.00 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 39,60 FEET THROUGH A CENTRAL ANGLE OF 75'38'18"; THENCE SOUTH 75024'58"WEST 4.70' FEET; THENCE SOUTH 89046'26"WEST 25.35'FEET; THENCE NORTH 57053'04"WEST 37.98 FEET TO THE EASTERLY RIGHT OF WAY LINE OF GENE AUTRY TRAIL,ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4905.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 74040'10" WEST; THENCE NORTHWESTERLY ALONG SAID EASTERLY RIGHT OF WAY LINE THE ARC OF SAID CURVE AN ARC DISTANCE OF 122.80 FEET THROUGH A CENTRAL ANGLE OF 01°26'04",A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 730 14'06" EAST; THENCE NORTH 27037'26"EAST 72.17 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF MISSION DRIVE,ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 260.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 13°43'47" EAST; 0.1408 721408 72 02 1drawingsLvwmyULFFYLUBE LECALdoc Page 1 of 2 EXHIBIT "A" LEGAL DESCRIPTION THENCE NORTHEASTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE AND THE ARC OF SAID CURVE AN ARC DISTANCE OF 42,52 FEET THROUG14 A CENTRAL ANGLE CJF 09022'12"TO THE POINT OF BEGINNING; SAID ABOVE DESCRIBED PARCEL"A"CONTAINING 0.45 ACRES MORE OR LESS AND A3 SHOWN ON ATTACHED EXHIBIT"B",BY THIS REFERENCE BEING MADE A PART HEREOF. Pr and der the supervision of: L E D OO�GF1 Dater ArgelaE. rf,P,L.S-#8010 1 No. 8010 Ezlires 12/31/08 STANTEC CONSUL'17m,INC. E%p, 12/31/08 73.733 Fred Waring Drive,Suite 100 Palm Desert,CA 92260 11'T �P (760)346-9844 gl F OF C& O:IIAi71WO872021draw/ngsla veyUlFPYLVBELEGAL.doc Page 2 of 2 EXHIBIT " B" SHEET I of 1 1� 40' WIDE EASEMENT FOR STREET R/W & PUBLIC U71L/TY PURPOSES PER DE£OS RECORDED 04129177 AS 1NST. NO, 74689 ANO 08/23/79 AS INSI; NO, 177941 & 177942 MISSION DRIVE gtV43-7•6 P.QQ w �C2 Cl 589'4670"W l ss 53.62' y ;F � �' �h ky o�`•�'i h I C'1 J q m ro D o y 30, 40, SCALE 1"H60' 1 - 1 y S89'4626"W 25.35' S 1116 COR. SEC 16 1 CURVE DATA f C N0. RADIUS DELTA ARC C1 260.00' 04'0755" 18.75' C21 260.00' 09'22'12" 42.52' 55' 1 NO. I SEARING DISTANCE L E D oO'P/�F� I L21 1V5753'04"W 37.9B' No. 8010 PREPARED UNDER THE SUPER1,1510N OF., B eQL � E xp. 12/31/0 ��\ 7TAMFC CONF WC, SRE3PRED WARR40 DME31�tln OF CAO U TOO ANCELA tr. DORF, P.L.S.U8010 DATE PALM DESERT,CA 92260 Stantec 760.046.9B44 w xom i ATTACHMENT SCHEDULE OF PERFORMANCE ENDURE INVESTMENTS, LLC DISPOSITION AND DEVELOPMENT AGREEMENT MILESTONES COMPLIANCE DATE 1. Open Escrow. Developer and Not later than 14 days from full Agency shall open escrow. execution of the Agreement. 2. Close Escrow. Escrow period. Within 5 days of Conditions Precedent having been satisfied, but not later than 360 days from opening of Escrow (12 months based on 30 days per month). 3. Submittal of Application for Land Within 180 days from full execution of Use Permits. Developer shall the Agreement(6 months based on 30 submit all necessary plans, days per month). including site plans, floor plans and elevations, along with all corresponding fees and applications as required by the City. 4. Permit Issuance. All permits Not later than 360 days from opening required to commence of Escrow. construction shall be issued. 5. Commence Construction. Not later than 90 days from Close of Participant shall have Escrow (3 months based on 30 days commenced construction. per month). 6. Completion of Construction. Not later than 360 days from close of Participant shall complete escrow (12 months based on 30 days construction. per month). 631359.7 I i ATTACHMENT2 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Endure Investments, LLC SPACE ABOVE FOR RECORDER'S USE Recording fee exempt per Govt.§27383. Documentary Transfer Tax:$ Based on Full Value of Real Property Conveyed A.P. No.:677-280-041 GRANT DEED For valuable consideration, receipt of which is hereby acknowledged, The REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic (the "Agency"), acting to carry out the Redevelopment Plan for the Redevelopment Project Area No. 1 ("Redevelopment Plan"), under the Community Redevelopment Law of California, hereby grants to Endure Investments, LLC, a Nevada limited liability company ("Developer"), as of this 200_, the real property hereinafter referred to as the "Site," described in Exhibit A attached hereto and incorporated herein, subject to the existing easements, restrictions and covenants of record described therein. 1. Subject to DDA. The Site is conveyed in accordance with and subject to the Disposition and Development Agreement entered into between Agency and Developer dated , 2008, (the "DDA"), a copy of which is on file with Agency at its offices located at 3200 E Tahquitz Canyon Way, Palm Springs, CA 92262, as a public record and which is incorporated herein by reference. The DDA generally requires Developer to develop the site into an EZ.Lube or equivalent automobile service station (the "Project"), and other requirements as set forth therein. All terms used herein shall have the same meaning as those used in the DDA. 2. Restrictions on Use. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, that upon the date of this Grant Deed, (i) Developer shall devote the Site to the uses specified in the DDA, and (ii) Developer shall construct the Project in accordance with the DDA. All uses conducted on the Site, including, without limitation, all activities undertaken by Developer pursuant to the DDA, shall conform to the Redevelopment Plan and all applicable provisions of the Palm Springs Municipal Code. The foregoing covenants shall run with the land. 1 5813b9.1 3. Maintenance. The Developer shall maintain or cause to be maintained the interiors and exteriors of the Project and the Site in a decent, safe and sanitary manner, in accordance with the standard of maintenance of similar development within Riverside County, California. If at any time Developer fails to maintain the Project and/or the Site in accordance with this covenant and such condition is not corrected within fifteen days after written notice from the Agency with respect to graffiti, debris, waste material, and general maintenance, or thirty days after written notice from the Agency with respect to landscaping and building improvements (subject to notice and an opportunity to cure pursuant to the DDA), then the Agency, in addition to whatever remedy it may have at law or at equity, shall have the right to enter upon the applicable portion of the Project and the Site and perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Project and the Site, and to attach a lien upon the Project and the Site, or to assess the Project and the Site, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the Agency and/or costs of such cure, which amount shall be promptly paid by Developer to the Agency upon demand. 4. Restrictions on Transfer. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, that upon the date of this Grant Deed and until the Agency's issuance of the Certificate of Completion for the Project: a. Developer shall not make any sale, transfer, conveyance, subdivision, refinancing or assignment of the Site or any part thereof or any interest therein, without the prior written consent of Agency except as permitted by the DDA. b. Developer shall not place or allow to be placed on the Site any lien or encumbrance other than the documents to be recorded pursuant to the DDA, and mortgages, deeds of trust or any other form of conveyance required for acquisition of the Site and financing of the construction of the Project on the Site, and any other expenditures necessary and appropriate to develop the Site pursuant to the DDA. 5. Nondiscrimination. Developer herein covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall Developer itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land and remain in effect in perpetuity. The Developer shall refrain from restricting the rental, sale or lease of the Site on the basis of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry of 2 68135B.1 any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: f i There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased." In contracts: "There shall be no discrimination against or segregation of, any person, I or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises; nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises." The foregoing covenants regarding discrimination shall run with the land and shall remain in effect in perpetuity. 6. Revesting of Title, a. Agency has the right, at its election, to reenter and take possession of the Site, with all improvements thereon, and terminate and revest in Agency the estate i p ' 637369.1 0 conveyed to Developer if after the closing and prior to the issuance of the Certificate of Completion, Developer(or its successors in interest)shall: (1) fail to start the construction of the Project as required by the DDA for a period beginning when Developer receives written notice of such failure from Agency pursuant to Section 5.5 of the DDA and ending on the later of(1) ninety (90) days or (ii) the end of the cure period provided in Section 5.1 of the DDA (subject to extensions pursuant to Section 5.5 of the DDA); or (2) abandon or substantially suspend construction of the Project required by the DDA for a period beginning when Developer receives written notice of such abandoned or suspended construction from Agency pursuant to Section 5.5 of the DDA and ending on the later of (i) ninety (90) days or (ii) the end of the cure period provided in Section 5.1 of the DDA(subject to extensions pursuant to Section 6.2 of the DDA); or (3) contrary to the provisions.of the DDA transfer or allow any involuntary transfer of the Site or any part thereof in violation of the DDA, which is not cured within the notice and cure period in Section 5.1 of the DDA. b. Such right to reenter, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid or limit: (1) Any mortgage or deed of trust permitted by the DDA; or (2) Any rights or interests provided in the DDA for the protection of the holders of such mortgages or deeds of trust. C. Upon the revesting in Agency of title to the Site as provided herein, Agency shall, pursuant to its responsibilities under state law, use its reasonable efforts to resell the Site as soon and in such manner as Agency shall find feasible and consistent with the objectives of such law and of the Redevelopment Plan, as it exists or may be amended, to a qualified and responsible party or parties (as determined by Agency)who will assume the obligation of making or completing the Project, or such improvements in their stead as shall be satisfactory to Agency and in accordance with the uses specified for such Site or part thereof in the Redevelopment Plan. Upon such resale of the Site, the net proceeds thereof after repayment of any mortgage or deed of trust encumbering the Site which is permitted by this covenant, shall be applied: (1) First, to reimburse Agency, all costs and expenses incurred by Agency, excluding Agency staff costs, but specifically, including, but not limited to, any expenditures by Agency in connection with the recapture, management and resale of the Site or part thereof(but less any income derived by Agency from the Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Site or part thereof which Developer has not paid (or, in the event that Site is exempt from taxation or assessment of such charges during the period of ownership thereof by Agency, an amount, if paid, equal to such taxes, assessments or charges as would have 4 567359.7 been payable if the Site were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the Site or part thereof at the time or revesting of title thereto in Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing Agency, and in the event additional proceeds are thereafter available, then (2) Second, to reimburse Developer, its successor or transferee, up to the amount equal to the sum of (a) the costs incurred for the acquisition and development of the Site and for the improvements existing on the Site at the time of the reentry and possession, and (b) any gains or income withdrawn or made by Developer from the Site or the improvements thereon. Any balance remaining after such reimbursements shall be retained by Agency as its property. In the event Agency exercises its rights under this Section and acquires the Site, Developer shall have no further responsibility for developing the Project; however, the rights established in this Section are not intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy authorized herein or now or hereafter existing at law or in equity. These rights are to be interpreted in light of the fact that Agency will have conveyed the Site to Developer for redevelopment purposes, particularly for development of public parking and commercial uses, and not for speculation in undeveloped land. 7. Rights of Lienholders. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest. 8. Holder Not Obligated to Construct Project. The holder of any mortgage or deed of trust authorized by the DDA (including without limitation, all Construction Lenders) shall not be obligated by the provisions of this Grant Deed or the DDA to construct or complete the Project or any portion thereof, or to guarantee such construction or completion; nor shall any covenant or any other provision in this Grant Deed or the DDA be construed so to obligate such holder. Nothing in this Grant Deed or the DDA shall be deemed to construe, permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Grant Deed and the DDA. 9. Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Developer as provided herein, whenever the Agency may deliver any notice or demand to Developer with respect to any breach or default by the Developer in completion of construction of the Project, the Agency shall at the same time deliver to each holder of record of any mortgage or deed of 5 531359.1 _.—I trust authorized by this Agreement (including without limitation, all Construction Lenders) a copy of such notice or demand. Each such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within thirty (30) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this Grant Deed or the DDA shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Project, or any portion thereof (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developers obligations to the Agency by written agreement reasonably satisfactory to the Agency. The holder, in that event, must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates_ Any such holder properly completing such improvement shall be entitled, upon compliance with the requirements of the DDA, to a Certificate of Completion. It is understood that a holder shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Site (or portion thereof) if and to the extent any such holder has within such thirty (30) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. 10. Failure of Holder to Complete Project. In any case where, thirty (30) days after the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any part thereof (including without limitation, all Construction Lenders) receives a notice from Agency of a default by the Developer in completion of construction of any of the Project under this Agreement, and such holder has not exercised the option to construct as set forth in this Grant Deed, or if it has exercised the option but has defaulted hereunder and failed to timely cure such default, the Agency may purchase, without recourse and without representation or warranty (other than if the lender is the holder and beneficiary of the deed of trust), the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. If the ownership of the Site or any part thereof has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder, within sixty (60) days after foreclosure, of an amount equal to the sum of the following: (a) The unpaid mortgage or deed of trust debt (including principal, interest, and all other sums secured by the mortgage or deed of trust) at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); i (b)All expenses with respect to foreclosure including reasonable attorneys'fees; i (c) The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Site or part thereof; i I I 6 561359.7 (d) The costs of any improvements made by such holder; (e) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency; and (f) Any customary prepayment charges imposed by the lender pursuant to its loan documents and agreed to by the Developer. 11. Right of the Agency to Cure Mortgage or Deed of Trust Default. In the event of a mortgage or deed of trust default or breach by the Developer prior to the completion of the construction of any of the Project or any part thereof, Developer shall immediately deliver to Agency a copy of any mortgage holder's notice of default. If the holder of any mortgage or deed of trust has not exercised its option to construct, the Agency shall have the right but no obligation to cure the default within the same cure periods, if any, given Developer under the mortgage or deed of trust. In such event, the Agency shall be entitled to reimbursement from the Developer of all proper costs and expenses incurred by the Agency in curing such default. The Agency shall also be entitled to a lien upon the Site to the extent of such costs and disbursements. Any such lien shall be unconditionally and fully junior and subordinate to the mortgages or deeds of trust pursuant to this Section. 12. Termination of Covenants. All covenants contained in this Grant Deed shall be covenants running with the land. All of Developers obligations hereunder except as provided in Sections 5, 6 and 7 above, shall terminate and shall become null and void on November 24, 2034. Every covenant contained in this Grant Deed against discrimination contained in Section 6 of this Grant Deed shall remain in effect in perpetuity. The covenants contained in Sections 5 and 7 above shall terminate as provided therein. 13. Covenants to Benefit Agency. All covenants without regard to technical classification or designation shall be binding for the benefit of Agency, and such covenants shall run in favor of Agency for the entire period during which such covenants shall be in force and effect, without regard to whether Agency is or remains an owner of any land or interest therein to which such covenants relate. Agency, in the event of any breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. 14. Amendments. Both Agency, its successors and assigns, and Developer and the successors and assigns of Developer in and to all or any part of the fee title to the Site shall have the right with the mutual.consent of Agency to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants, easements or restrictions contained in this Grant Deed without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Site. However, Developer and Agency are obligated to give written notice to and obtain the consent of any first 7 581359.i l Jmortgagee prior to consent or agreement between the parties concerning such changes to this Grant Deed. The covenants contained in this Grant Deed, without regard to technical classification, shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such realty. Any amendment to the Redevelopment Plan which proposes to change the uses or development permitted on the Site, or otherwise proposes a change of any of the restrictions or controls that apply to the Site, shall require the written consent of the first mortgagee and Developer or,the successors and assigns of Developer in and to all or any part of the fee title to the Site, but any such amendment which proposes a change affecting the Site shall not require the consent of any tenant, lessee, easement holder, licensee, mortgagee (other than the first mortgagee), trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Site. IN WITNESS WHEREOF, the parties hereto have executed this Grant Deed on the date first set forth above. AGENCY: ACCEPTED BY DEVELOPER: THE COMMUNITY REDEVELOPMENT ENDURE INVESTMENTS, LLC, AGENCY OF THE CITY OF PALM a Nevada Limited Liability Company P SPRINGS, ^0 a public body, corporate and politic David H. Read Executive Director `;ATTEST: APPROVED By r"# LO wtaAUMVy FiIMPV ' ;1TAB�q� SEC Y AGENCY t3T files. f� �'� �- $ pFS.:..P�✓687 APPROVED AS TO FORM[ Agency Counsel 8 591899.1 ' mortgagee prior to consent or agreement between the parties concerning such changes to this Grant Deed. The covenants contained in this Grant Deed, without regard to technical classification, shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such realty. Any amendment to the Redevelopment Plan which proposes to change the uses or development permitted on the Site, or otherwise proposes a change of any of the restrictions or controls that apply to the Site, shall require the written consent of the first mortgagee and Developer or the successors and assigns of Developer in and to all or any part of the fee title to the Site, but any such amendment which proposes a change affecting the Site shall not require the consent of any tenant, lessee, easement holder, licensee, mortgagee(other than the first mortgagee), trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Site. IN WITNESS WHEREOF, the parties hereto have executed this Grant Deed on the date first set forth above. AGENCY: ACCEPTED BY DEVELOPER: THE COMMUNITY REDEVELOPMENT ENDURE INVESTMENTS, LLC, AGENCY OF THE CITY OF PALM a Nevada Limited Liability Company SPRINGS, n . a public body, corporate and politic B : By: David H. Ready, Executive Director ATTEST: APPROVED BY M� clumpAUftj f r r`dkot' Vf. A�SISTX Secretary S�CR�7AE�V mG€�tw�v BY Tics, �t3.13�2 �`R•P568 7 APP O AS TO FORM: Agen Cou4el 8 581359,1 i All-Purpose Acknowledgment . State of California ) County of Los Angeles ) On �� ,2008 before me,Patti Lavine,Notary Public,personally appeared /77 Gl & who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/ subscribed to the within instrument and acknowledged to me that �elshe/they executed the same in er/their authorized capacity(ies), and that by(9 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. rim sh AMM__ Signatur Seal) Come ksW• r741402 frofary/ubk•CC NOWO Los*vo1N'CoYMy 12011 ACA 462999.1 State of California ) )ss. County of Riverside ) // '//�I�I ,//�� On �J .X�� before me, (tea- A 17exa,- A/,)-A �a�, _ Date // Name andTitle of Officer ^�/ personally appeared yig /7. / A -n avfJ S / K�vr� �lJ✓1 N e(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)W(R subscrl ed to the within instrument and acknowledged to me that he/ftAfo executed the same in hfs/11&r the' authorized capacity(ies),and that by W/0or het signatures(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 CYNRRA A.MERARDI Commissbn • }OfMyCmm. a vory Puc- ONW110 Rlveskle Courdy Expires Feb l$.2010 / Signature of Notary Public EXHIBIT"A" LEGAL DESCRIPTION OF THE SITE , I i 9 581359,1 i EXHIBIT "A" LEGAL DESCRIPTION THAT PORTION OF PARCEL 2 OF PARCEL MAP NO.24604 ON FILE IN BOOK 159 OF PARCEL MAPS,PAGES 66 AND 67,IN SECTION 18,TOWNSHIP 4 SOUTH,RANGE 5 EAST, S.B.M., COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: )PARCEL A: COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 2; THENCE SOUTH 89046'20"WEST 53.62 FEET ALONG THE SOUTHERLY RIGHT OF WAY LINE OF MISSION DRIVE TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 260.00 FEET; THENCE SOUTHWESTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE AND TEE ARC OF SAID CURVE AN ARC DISTANCE OF 18.75 FEET THROUGH A CENTRAL ANGLE OF 04007'55",A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 0402 P 35" WEST TO THE POINT OF BEGINNING; THENCE SOUTH 58023'30"EAST 49.85 FEET; THENCE SOUTH 00013'20"EAST 152.26 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 30.00 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 39.60 FEET THROUGH A CENTRAL ANGLE OF 75*38'18"; THENCE SOUTH 75024'58"WEST 4.70'FEET; THENCE SOUTH 89046'26"WEST 25.35' FEET; THENCE NORTH 57653'04"WEST 37.98 FEET TO THE EASTERLY RIGHT OF WAY LINE OF GENE AUTRY TRAIL,ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4905.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 74040'10" WEST; THENCE NORTHWESTERLY ALONG SAID EASTERLY RIGHT OF WAY LINE THE ARC OF SAID CURVE AN ARC DISTANCE OF 122.80 FEET THROUGH A CENTRAL ANGLE OF 01026'04",A LINE RADIAL TO SAID CURVE AT SAID POINT 13BARS NORTH 73014'06" EAST; THENCE NORTH 27037'26"EAST 72.11 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF MISSION DRIVE,ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 260,00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 13143'47" EAST; 0.,1408 7214 08 72 02idrawingsWa y OFFYLUBE LEGAL.doc Page 1 of 2 EXHIBIT "A" LEGAL DESCRIPTION i THENCE NORTHEASTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE AND THE ARC OF SAID CURVE AN ARC DISTANCE OF 42.52 FEET THROUGH A CENTRAL ANGLE OF 09022'12"TO THE POINT OF BEGINNING; SAID ABOVE DESCRIBED PARCEL"A"CONTAINING 0.45 ACRES MORE OR LESS AND AS SHOWN ON ATTACHED EXHIBIT"B",BY THIS REFERENCE BEING MADE A PART HEREOF. Pr ared wider the supervision of: 13 LAND SG�G Date: Angela E. rQ P.L.S.#8010 Q No. 8010 Expires 12/31/08 STANTEC CONSULTING,INC. Exp. 12/31/08 73.733 Fred Waring Drive,Suite 100 " v Balm Desert,CA 92260 JJ N (760)346-9844 qTF OF CA1.�F r I 0:144 8 711408 71011 dmwings 4vrveyUlFPYLUBELEOAL.doc Page 2 of 2 i I j i EXHIBIT " B" SHEET 1 OF 1 �1 40' WIDE 69SEMENT FOR STREET R/W & PUBLIC UTIL?Y PURPOSES PER DEEDS RECORDEO 04129177 AS INS, 80, 74689 AND OB/23/79 AS INST. N0. 177941 dr 177942 MISSIONDRIVE �q���PA6� I paa P.Gl CZ Cl S89'46_'20"W 1 53 62' 1 , ry�� ��� +Kv�s"�O•+ ��LI 40' Q � �ry 1 ,�Okry/ 6`i• a G b � �G�lx a 1 \y Q� 4�O p ; W 4Fe Q42 ��p= r o o $ � 30' 40' SCALE 1"=80' ni m �n°j L 5825356"W i S 1116 COR. SEC 18 ,$ r CURVEDATA N0. IRADJUS OEL7A ARC oil 260.00' 04bT55 18.75' C21 260.00' 092212" 42.52' 55' I NO. I BEARING DISTANCE MD E ���F�o L2 N5T5304WI 37,98' No. 8010 PREPARED UNDER THE SUPERVISION OF. Exp. 12/31/OB Q fTANTFC CONSULTING INC. Oud, , 31�dQQ �rq OF CA4�F \ SLATE3 FRED WARING DWE 100 DORF, P L..S O 10 DATE PALM DESERT,CA 92260 SfaI10L'C 760.3A6.9844 wir.som I i I i i STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On before me, a 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. WITNESS my hand and official seal. Notary Public STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On before me, a 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. WITNESS my hand and official seal. Notary Public 10 687359A i AT7ACHMENT3 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Endure Investments, LLC (Space above for Recorder's Use.) Recording fee exempt per Govt.§27383. CERTIFICATE OF COMPLETION OF CONSTRUCTION AND DEVELOPMENT THIS CERTIFICATE OF COMPLETION OF CONSTRUCTION AND DEVELOPMENT (the "Certificate') is made by the REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic (the "Agency"), in favor of ENDURE INVESTMENTS, LLC, a Nevada Limited Liability Company (the "Developer"), as of the date set forth below. RECITALS A. The Agency and the Developer.have entered into that certain Disposition and Development Agreement (the "DDA") dated , 2008 concerning the redevelopment of certain real property situated in the City of Palm Springs, California as more fully described in Exhibit"A" attached hereto and made a part hereof. B. As referenced in Section 3.9 of the DDA, the Agency is required to furnish the Developer or its successors with a Certificate of Completion upon completion 'of construction of the Project (as defined in Section 1.0 of the DDA), which Certificate is required to be in such form as to permit it to be recorded in the Recorder's office of Riverside County. This Certificate is conclusive determination of satisfactory completion of the construction and development required by the DDA. C. The Agency has conclusively determined that such construction and development of the Project has been satisfactorily completed. NOW THEREFORE: 1. As provided in the DDA, the Agency does hereby certify that the construction of the Project has been satisfactorily performed and completed, and that such development and construction work complies with the DDA. 561359.7 2. This Certificate of Completion does not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage or any insurer of a mortgage security money loaned to finance the work of construction of improvements and development of the Site, or any part thereof. This Certificate of Completion is not a notice of completion as referred to in Section 3093 of the California Civil Code. IN WITNESS WHEREOF, the Agency has executed this Certificate as of this day of , 200 . THE COMMUNITY REDEVELOPMENT ENDURE INVESTMENTS, LLC, AGENCY OF THE CITY OF PALM a Nevada Limited Liability Company SPRINGS, a public body, corporate and politic By: By: David H. Ready, Executive Director By: ATTEST: Agency Secretary 581359.1 EXHIBIT A LEGAL DESCRIPTION OF THE SITE i I i 587359.1 i EXHIBIT "A" LEGAL DESCRIPTION "THAT PORTION OF PARCEL 2 OF PARCEL MAP NO.24604 ON FILE IN BOOK 159 OF PARCEL MAPS,PAGES 66 AND 67,IN SECTION 18,TOWNSHIP 4 SOUTH,RANGE 5 EAST, S,B.M, COUNTY OF RIVERSIDE,STATE OF CALIFORNIA,BEING MORE ]PARTICULARLY DESCRIBED AS FOLLOWS: ]PARCEL A: COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 2; THENCE SOUTH 89046'20"WEST 53.62 FEET ALONG THE SOUTHERLY RIGHT OF WAY LINE OF MISSION DRIVE TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 260.00 FEET; THENCE SOUTHWESTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE AND TIME .ARC OF SAID CURVE AN ARC DISTANCE OF 18.75 FEET THROUGH A CENTRAL ANGLE OF 04007'55",A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 04021'35" VEST TO THE POINT OF BEGINNING; THENCE SOUTH 58023'30"EAST 49.85 FEET; THENCE SOUTH 00013'20"EAST 152.26 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 30,00 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 39.60 FEET THROUGH A CENTRAL ANGLE OF 759 8'18'; THENCE SOUTH 75024'58"WEST 4.70' FEET; THENCE SOUTH 89046'26"WEST 25.35'FEET; THENCE NORTH 57053'04"WEST 37.98 FEET TO THE EASTERLY RIGHT OF WAY LINE OF GENE AUTRY TRAIL,ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4905.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 74040'10" WEST; THENCE NORTHWESTERLY ALONG SAID BASTERLY RIGHT OF WAY LINE THE ARC OF SAID CURVE AN ARC DISTANCE OF 122.80 FEET THROUGH A CENTRAL ANGLE OP 01a26'04",A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 73014'06" EAST; THENCE NORTH 27037'26"EAST 72.11 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF MISSION DRIVE,ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 260.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 13°43'47" EAST; 0:14087214087202WrawingslsurvryUIFFYLUBE LEGAL.dx Page 1 of 2 EXHIBIT "A" LEGAL DESCRIPTION 'THENCE NORTHEASTERLY ALONG SAID SOUTHERLY RIGHT OF WAY 'LINE AND THE ARC OF SAID CURVE AN ARC DISTANCE OF 42.52 FEET THROUG14 A CENTRAL ANGLE OF 09022'12" TO THE POINT OF BEGINNING; SAID ABOVE DESCRIBED PARCEL"A"CONTAINING 0.45 ACRES MORE OR LESS ANI) AS SHOWN ON ATTACHED EXHIBIT"B",BY THIS REFERENCE BEING MADE A PART" WREOR Pr aced under the supervision of; LAND S�? \V4��4P E D�nrG��o Date; aV Angela E.qrf,P.L.S.#8010 No. 8010 Expires 12/31/08 MANTEC CONSULTING,INC. Exp. 12/31/08 73-733 Fred Waring Drive,Suite 100 v Pain Desert,CA 92260 ,rT �P (760)346-9844 qTF 0) CALIF i Or 14872110872021drawbigstvurvryUfFFYLOBELEGAL.dae Page 2 of 2 EXHIBIT " B,1 SHEET 1 of , �Y 40' WIDE EASEMENT FOR STREET R/W cE PUBLIC UXITY PURPOSES PER DEEDS RECORDED 04129177 AS Mr. N0. 74689 AND 08/23/79 AS /NST. N0. 177941 dr I77942 MISSION DRIVE g1343,471� _ I RQQ aa Cr S89'46_:20"W 1 5J 62' �L� ryry. okry� ��P 40' Cv N 1�, G 1ni a o^nq; 30• 40' SCALE 1"=80' Cl1 L � } 5825 35' S 1/16 CDR. SEC 18 CURVE DArA S-' I Na I RADIUS I DELTA I ARC C11 260.00' 040755 Y8.75' 11 C21 260.OD' 0922'72" 42.52' .. 55• NO. BEAR/NC OISTANCE ll Wi L END p�/.F�p1 12 N57'53'04"W 37.9B' No. 8010 PREPARED UNDER THE SUPER14SION O Qxp, 12/31/08 F. IJ `rTgp \P STANTRC CONSULTING INC. l PoX L— OF CA1 �Flie SDITE30FRRED WARM DWE ANGET�1 DORF, P.L.S. 010 DATE RAIM DESERT,CA 92260 S}GIIfL'C 760.346.9844 n„rece„ I i I i STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On before me, a 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/herltheir 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 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On before me, a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name($) 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 I� I, A setase.7 i RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Endure Investments, LLC 1888 Century Park East, Suite 450 Los Angeles, CA 90067 SPACE ABOVE FOR RECORDER'S USE Recording fee exempt per Govt. § 27383. Documentary Transfer Tax: $ Based on Full Value of Real Property Conveyed A.P. No.: 677-280-041 GRANT DEED For valuable consideration, receipt of which is hereby acknowledged, The REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic (the "Agency"), acting to carry out the Redevelopment Plan for the Redevelopment Project Area No. 1 ("Redevelopment Plan"), under the Community Redevelopment Law of California, hereby grants to Endure Investments, LLC, a Nevada limited liability company ("Developer"), as of this June 18, 2008, the real property hereinafter referred to as the "Site," described in Exhibit A attached hereto and incorporated herein, subject to the existing easements, restrictions and covenants of record described therein. 1. Subject to DDA. The Site is conveyed in accordance with and subject to the Disposition and Development Agreement entered into between Agency and Developer dated June 18, 2008, (the "DDA"), a copy of which is on file with Agency at its offices located at 3200 E Tahquitz Canyon Way, Palm Springs, CA 92262, as a public record and which is incorporated herein by reference. The DDA generally requires Developer to develop the site into an EZ Lube or equivalent automobile service station (the "Project"), and other requirements as set forth therein. All terms used herein shall have the same meaning as those used in the DDA. 2. Restrictions on Use. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, that upon the date of this Grant Deed, (i) Developer shall devote the Site to the uses specified in the DDA, and (ii) Developer shall construct the Project in accordance with the DDA. All uses conducted on the Site, including, without limitation, all activities undertaken by Developer pursuant to the DDA, shall conform to the Redevelopment Plan and all applicable provisions of the Palm Springs Municipal Code. The foregoing covenants shall run with the land. 3. Maintenance. The Developer shall maintain or cause to be maintained the interiors and exteriors of the Project and the Site in a decent, safe and sanitary manner, in accordance with the standard of maintenance of similar development within Riverside County, California. If at any time Developer fails to maintain the Project and/or the Site in accordance with this covenant and such condition is not corrected within fifteen days after written notice from the Agency with respect to graffiti, debris, waste material, and general maintenance, or thirty days after written notice from the Agency with respect to landscaping and building improvements (subject to notice and an opportunity to cure pursuant to the DDA), then the Agency, in addition to whatever remedy it may have at law or at equity, shall have the right to enter upon the applicable portion of the Project and the Site and perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Project and the Site, and to attach a lien upon the Project and the Site, or to assess the Project and the Site, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the Agency and/or costs of such cure, which amount shall be promptly paid by Developer to the Agency upon demand. 4. Restrictions on Transfer. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, that upon the date of this Grant Deed and until the Agency's issuance of the Certificate of Completion for the Project: a. Developer shall not make any sale, transfer, conveyance, subdivision, refinancing or assignment of the Site or any part thereof or any interest therein, without the prior written consent of Agency except as permitted by the DDA. b. Developer shall not place or allow to be placed on the Site any lien or encumbrance other than the documents to be recorded pursuant to the DDA, and mortgages, deeds of trust or any other form of conveyance required for acquisition of the Site and financing of the construction of the Project on the Site, and any other expenditures necessary and appropriate to develop the Site pursuant to the DDA. 5. Nondiscrimination. Developer herein covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall Developer itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land and remain in effect in perpetuity. The Developer shall refrain from restricting the rental, sale or lease of the Site on the basis of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." In leases: 'The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased." In contracts: 'There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises." The foregoing covenants regarding discrimination shall run with the land and shall remain in effect in perpetuity. 6. Revesting of Title. a. Agency has the right, at its election, to reenter and take possession of the Site, with all improvements thereon, and terminate and revest in Agency the estate conveyed to Developer if after the closing and prior to the issuance of the Certificate of Completion, Developer (or its successors in interest) shall: (1) fail to start the construction of the Project as required by the DDA for a period beginning when Developer receives written notice of such failure from Agency pursuant to Section 5.5 of the DDA and ending on the later of (i) ninety (90) days or (ii) the end of the cure period provided in Section 5.1 of the DDA (subject to extensions pursuant to Section 5.5 of the DDA); or (2) abandon or substantially suspend construction of the Project required by the DDA for a period beginning when Developer receives written notice of such abandoned or suspended construction from Agency pursuant to Section 5.5 of the DDA and ending on the later of (i) ninety (90) days or (ii) the end of the cure period provided in Section 5.1 of the DDA (subject to extensions pursuant to Section 6.2 of the DDA); or (3) contrary to the provisions of the DDA transfer or allow any involuntary transfer of the Site or any part thereof in violation of the DDA, which is not cured within the notice and cure period in Section 5.1 of the DDA. b. Such right to reenter, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid or limit: (1) Any mortgage or deed of trust permitted by the DDA; or (2) Any rights or interests provided in the DDA for the protection of the holders of such mortgages or deeds of trust. C. Upon the revesting in Agency of title to the Site as provided herein, Agency shall, pursuant to its responsibilities under state law, use its reasonable efforts to resell the Site as soon and in such manner as Agency shall find feasible and consistent with the objectives of such law and of the Redevelopment Plan, as it exists or may be amended, to a qualified and responsible party or parties (as determined by Agency) who will assume the obligation of making or completing the Project, or such improvements in their stead as shall be satisfactory to Agency and in accordance with the uses specified for such Site or part thereof in the Redevelopment Plan. Upon such resale of the Site, the net proceeds thereof after repayment of any mortgage or deed of trust encumbering the Site which is permitted by this covenant, shall be applied: (1) First, to reimburse Agency, all costs and expenses incurred by Agency, excluding Agency staff costs, but specifically, including, but not limited to, any expenditures by Agency in connection with the recapture, management and resale of the Site or part thereof (but less any income derived by Agency from the Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Site or part thereof which Developer has not paid (or, in the event that Site is exempt from taxation or assessment of such charges during the period of ownership thereof by Agency, an amount, if paid, equal to such taxes, assessments or charges as would have been payable if the Site were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the Site or part thereof at the time or revesting of title thereto in Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing Agency, and in the event additional proceeds are thereafter available, then (2) Second, to reimburse Developer, its successor or transferee, up to the amount equal to the sum of (a) the costs incurred for the acquisition and development of the Site and for the improvements existing on the Site at the time of the reentry and possession, and (b) any gains or income withdrawn or made by Developer from the Site or the improvements thereon. Any balance remaining after such reimbursements shall be retained by Agency as its property. In the event Agency exercises its rights under this Section and acquires the Site, Developer shall have no further responsibility for developing the Project; however, the rights established in this Section are not intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy authorized herein or now or hereafter existing at law or in equity. These rights are to be interpreted in light of the fact that Agency will have conveyed the Site to Developer for redevelopment purposes, particularly for development of public parking and commercial uses, and not for speculation in undeveloped land. 7. Rights of Lienholders. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest. 8. Holder Not Obligated to Construct Project. The holder of any mortgage or deed of trust authorized by the DDA (including without limitation, all Construction Lenders) shall not be obligated by the provisions of this Grant Deed or the DDA to construct or complete the Project or any portion thereof, or to guarantee such construction or completion; nor shall any covenant or any other provision in this Grant Deed or the DDA be construed so to obligate such holder. Nothing in this Grant Deed or the DDA shall be deemed to construe, permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Grant Deed and the DDA. 9. Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Developer as provided herein, whenever the Agency may deliver any notice or demand to Developer with respect to any breach or default by the Developer in completion of construction of the Project, the Agency shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement (including without limitation, all Construction Lenders) a copy of such notice or demand. Each such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within thirty (30) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this Grant Deed or the DDA shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Project, or any portion thereof (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement reasonably satisfactory to the Agency. The holder, in that event, must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates. Any such holder properly completing such improvement shall be entitled, upon compliance with the requirements of the DDA, to a Certificate of Completion. It is understood that a holder shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Site (or portion thereof) if and to the extent any such holder has within such thirty (30) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. 10. Failure of Holder to Complete Project. In any case where, thirty (30) days after the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any part thereof (including without limitation, all Construction Lenders) receives a notice from Agency of a default by the Developer in completion of construction of any of the Project under this Agreement, and such holder has not exercised the option to construct as set forth in this Grant Deed, or if it has exercised the option but has defaulted hereunder and failed to timely cure such default, the Agency may purchase, without recourse and without representation or warranty (other than if the lender is the holder and beneficiary of the deed of trust), the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. If the ownership of the Site or any part thereof has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder, within sixty (60) days after foreclosure, of an amount equal to the sum of the following: (a) The unpaid mortgage or deed of trust debt (including principal, interest, and all other sums secured by the mortgage or deed of trust) at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (b) All expenses with respect to foreclosure including reasonable attorneys' fees; (c) The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Site or part thereof; (d) The costs of any improvements made by such holder; (e) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency; and (f) Any customary prepayment charges imposed by the lender pursuant to its loan documents and agreed to by the Developer. 11. Right of the Agency to Cure Mortgage or Deed of Trust Default. In the event of a mortgage or deed of trust default or breach by the Developer prior to the completion of the construction of any of the Project or any part thereof, Developer shall immediately deliver to Agency a copy of any mortgage holder's notice of default. If the holder of any mortgage or deed of trust has not exercised its option to construct, the Agency shall have the right but no obligation to cure the default within the same cure periods, if any, given Developer under the mortgage or deed of trust. In such event, the Agency shall be entitled to reimbursement from the Developer of all proper costs and expenses incurred by the Agency in curing such default. The Agency shall also be entitled to a lien upon the Site to the extent of such costs and disbursements. Any such lien shall be unconditionally and fully junior and subordinate to the mortgages or deeds of trust pursuant to this Section. 12. Termination of Covenants. All covenants contained in this Grant Deed shall be covenants running with the land. All of Developer's obligations hereunder except as provided in Sections 5, 6 and 7 above, shall terminate and shall become null and void on November 24, 2034. Every covenant contained in this Grant Deed against discrimination contained in Section 6 of this Grant Deed shall remain in effect in perpetuity. The covenants contained in Sections 5 and 7 above shall terminate as provided therein. 13. Covenants to Benefit Agency. All covenants without regard to technical classification or designation shall be binding for the benefit of Agency, and such covenants shall run in favor of Agency for the entire period during which such covenants shall be in force and effect, without regard to whether Agency is or remains an owner of any land or interest therein to which such covenants relate. Agency, in the event of any breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. 14. Amendments. Both Agency, its successors and assigns, and Developer and the successors and assigns of Developer in and to all or any part of the fee title to the Site shall have the right with the mutual consent of Agency to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants, easements or restrictions contained in this Grant Deed without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Site. However, Developer and Agency are obligated to give written notice to and obtain the consent of any first mortgagee prior to consent or agreement between the parties concerning such changes to this Grant Deed. The covenants contained in this Grant Deed, without regard to technical classification, shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such realty. Any amendment to the Redevelopment Plan which proposes to change the uses or development permitted on the Site, or otherwise proposes a change of any of the restrictions or controls that apply to the Site, shall require the written consent of the first mortgagee and Developer or the successors and assigns of Developer in and to all or any part of the fee title to the Site, but any such amendment which proposes a change affecting the Site shall not require the consent of any tenant, lessee, easement holder, licensee, mortgagee (other than the first mortgagee), trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Site. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties hereto have executed this Grant Deed on the date first set forth above. AGENCY: ACCEPTED BY DEVELOPER: THE COMMUNITY REDEVELOPMENT ENDURE INVESTMENTS, LLC, AGENCY OF THE CITY OF PALM a Nevada Limited Liability Company SPRINGS, a public body, corporate and politic By: By: David H. Ready, Executive Director By: ATTEST: James Thompson, Agency Secretary APPROVED AS TO FORM: Douglas Holland, Agency Counsel EXHIBIT "A" LEGAL DESCRIPTION OF THE SITE [TO BE INSERTED] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On before me, a 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 PURJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On before me, a 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 PURJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public I EXHIBIT "A" - 1 of 3 LEGAL DESCRIPTION 'THAT PORTION OF PARCEL 2 OF PARCEL MAP NO.24604 ON FILE IN BOOK 159 OF PARCEL MAPS,PAGES 66 AND 67,IN SECTION 18,TOWNSHIP 4 SOUTH,RANGE 5 EAST,S.B.M.,COUNTY OF RIVERSIDE,STATE OF CALIFORNIA,BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS- FARCEL A, COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 2; THENCE SOUTH 89°46'20"WEST 53.62 FEET ALONG THE SOUTHERLY RIGHT OF WAY IANE OF MISSION DRIVE TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 260.00 FEET; I THENCE SOUTHWESTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE AND TE3E .ARC OF SAID CURVE AN ARC DISTANCE OF 18.75 FEET THROUGH A CENTRAL ANGLE OF 04°07'55",A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 04021'35" VEST TO THE POINT OF BEGINNING; THENCE SOUTH 58°23'30"EAST 49.85 FEET; THENCE SOUTH 00013'20"EAST 152.26 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 30.00 FEET; THENCE SOUTHWESTERLYALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 39.60 FEET THROUGH A CENTRAL ANGLE OF 75*39'18'; THENCE SOUTH 75°24'58"WEST 4.70'FEET; THENCE SOUTH 89°'46'26"WEST 25.35'FEET; THENCE NORTH 57053'04"WEST 37.98 FEET TO THE EASTERLY RIGHT OF WAY LINE OF GENE AUTRY TRAIL,ALSO BEING THE BEGINNING OF A NON TANGENT CURVF CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4905.00 FEET,A LINE RADL41 TO SAID CURVE AT SAID POINT BEARS SOUTH 74040'10" WEST; THENCE NORTHWESTERLY ALONG SAID EASTERLY RIGHT OF WAY LINE THE ARC OF*SAID CURVE AN ARC DISTANCE OF 122.80 FEET THROUGH A CENTRAL ANGLE OF 0M6'04 ,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 73*14'06" EAST; THENCE NORTH 27037'26"EAST 72.11 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF MISSION DRIVE,ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 260.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 13043'4T' EAST; EXHIBIT"A"- 2 of 3 LEGAL DESCRIPTION THENCE NORTHEASTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE AND THE ARC OF SAID CURVE AN ARC DISTANCE OF 42.52 FEET THROUGH A CENTRAL ANGLE OF 09022'12"TO THE POINT OF BEGINNING; SAID ABOVE DESCRIBED PARCEL"A"CONTAINING 0.45 ACRES MORE OR LESS AND AS SHOWN ON ATTACHED EXHIBIT"B",BY THIS REFERENCE BEING MADE A PART HBREOR P aredunder the supervision of: EO LAW) $U �l Data; Argela E. P.LS.#8010 4 No. 8010 Tvyires 12/31/08 , STANTSC CONSULTING,INC. Exp. 12/31/06 73-733 Fred Waling Drive,Suite 100 }i}' Palm Desert,CA 92260 (70)346-9844 9TF OF CP\Qt Commonwealth Land Title Company L "A 1555 So. Palm Canyon Drive, Suite D-101 Commonwealth Palm Springs, CA 92264 Phone: (760) 327-6523 DOROTHY L. GRAMES, ESCROW OFFICER PHONE: (760) 327-6523 • FAX: (760) 327-6748 E-MAIL: DGRAMES@LANDAM.COM ESCROW AMENDMENT/SUPPLEMENT Escrow Number: 08403733-811-DG4 Date: November 18, 2008 Property Address: vacant land, Palm Springs, CA Escrow Officer: Dorothy L. Grames TO: COMMONWEALTH LAND TITLE COMPANY My previous instructions in the above numbered escrow are hereby modified and/or supplemented in the following manner: TAXES (NOT SEPARATELY ASSESSED): Prior to close of escrow, Buyer and Seller will furnish you with an amount of taxes for proration purposes herein, as the subject property has not been segregated and separately assessed as of this date. All other terms and conditions not in direct conflict with the foregoing remain unchanged. Each of the undersigned states that he/she/they have read the foregoing instructions and understands and agrees to them in their entirety. BUYER: SELLER: Endure Investments, LLC The Community Redevelopment Agency of the City By: Excel Property Management, Managing Member of PalmS ri�m BY: By By: By:!/ 'Al 1 51u Vds( PR®ILG) r� �ATTEST: y "a�r�An�^ eta �-✓'�-TEA-,� - - - - - '/��,v`Ay�dmes Thompson, �� ssistant Secretary. DCC # 2008--0532196 10/01/2008 08:00A Fee:NC Page I of 60 RECORDING REQUESTED BY: Recorded in Official Records CITY OF PALM SPRINGS County of Riverside Larry W. Ward Assessor, County Clerk & Recorder AND WHEN RECORDED MAIL TO: I IIIIII(IIIIII III IIII IIIIII IIII IIIIIIII III(IIII IIII IIII City of Palm Springs P. 0, Box 2743 5 R U PAGE SIZE DA MISC LONG RFD COPY Palm Springs, CA 92263 I So Attn: Office of the City Clerk M A L 465 426 PCOR NCOR SMF (hJCHM Filing Fee EXEMPT per government Code 6103 A5682 810 ENDURE INVESTMENTS, LLC Disposition and Development Agreement Title of Document THIS AREA FOR RECORDER ' S USE ONLY THIS PACE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) DISPOSITION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into as of the T �- day of 2008, by and between the Community Redevelopment Agency of the City a Palm Springs, a public body, corporate and politic (the "Agency") and Endure Investments, LLC, a Nevada Limited Liability Company ("Developer'). The Agency and Developer agree as follows: RECITALS The following recitals are a substantive part of this Agreement; capitalized terms used herein and not otherwise defined are defined in Section 1.0 hereof.- A. The purpose of this Agreement is to effectuate the Redevelopment Plan for the Redevelopment Project Area No. 1, by providing for the disposition of vacant real property constituting a wedge shaped parcel, APN 677-280-041, in the City of Palm Springs, County of Riverside, State of California. The Conveyance Parcel is depicted and more particularly described in the Legal Description. The legal description of the subject property is attached hereto as Exhibit "A" (hereinafter referred to as the "Conveyance Parcel" or"Site)- B. The Agency and the Developer wish to enter into this Agreement in order to set forth the terms and conditions relating to the Agency's disposition of the Site to the Developer, and the Developer's development of the Site into an EZ Lube automobile service station. A more detailed description of the development activities on the Site is defined in Section 3.1 (the "Project"). C. In accordance with and subject to all the terms, covenants and conditions of this Agreement, the Agency agrees to convey the Conveyance Parcel to the Developer without monetary compensation- D. In further consideration of the benefits of Developer's Project, the Agency hereby agrees to contribute $60,000 toward the Developer's cost of installing landscaping and site screening measures on the Conveyance Parcel in conjunction with the Developer's Project. Said contribution shall be payable by the Agency to the Developer within 30 days of Developer's written invoice and sufficient accompanying documentation (such as receipts) therefor. E. The Developer is required to obtain all necessary approvals from all government agencies for Developer's Project- F. The development of the Project as provided for in this Agreement is in the vital and best interest of the City and the welfare of its residents and is in accordance with the public purposes and provisions of applicable state and local laws. 1 581359 1 II I I IIIIII IIIIIII III IIII IIIIII INIIIIIIII I III IIIIII IIII IN re e09�01�60 eeR 1.0 DEFINITIONS. As used in this Agreement, the following capitalized terms shall have the following meanings, unless otherwise specified: "Actual knowledge" shall mean the actual knowledge of the Agency's employees and agents who have participated in the preparation of this Agreement and/or the management of the Site, and shall not impose a duty of investigation. "Agency" means the Redevelopment Agency of the City of Palm Springs, a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California, Part 1 of Division 24 of the Health & Safety Code (§§ 33000 et seq.), and any assignee of or successor to its rights, powers and responsibilities. "Agency's Conditions Precedent" means the conditions precedent to the Closing to the benefit of Agency, as set forth in Section 2.11.1. "Agreement" means this Disposition and Development Agreement between Agency and Developer. "Certificate of Completion means a Certificate of Completion of Construction and Development substantially in the form of Attachment 3 hereto. "City" means the City of Palm Springs, California. The City is not a party to this Agreement and shall have no obligations hereunder. The City is a third party beneficiary to this Agreement and shall have the right but not the duty to enforce any of the covenants of Developer contained herein. "Closing" is defined in Section 2.6. "Closing Date" is defined in Section 2.6. "Construction Lender" means any reputable financial institution providing a construction loan for the Project in accordance with Section 3.8. "Conveyance" is defined in Section 2.1. "Conveyance Parcel" or "Site" means certain real property constituting a wedge shaped parcel, APN 677-280-041, in the City of Palm Springs, County of Riverside, State of California. The Conveyance Parcel is depicted and more particularly described in the Legal Description. "County" means the County of Riverside, California. "Date of Agreement" is the date set forth in the first paragraph of this Agreement. 2 581359 1 Iy IIIIII III�I�I III IIII IIIIII IIII IIIIIIII III IIII IIII I��I 10 0��2 00f 60�00R "Default" means the failure of a party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and opportunity to cure, as set forth in Section 5.1. "Developer" means Endure Investments, LLC, a Nevada Limited Liability Company, and its permitted successors and assigns. "Developer's Conditions Precedent" means the conditions precedent to the Closing for the benefit of Developer, as set forth in Section 2.11.2. "Due Diligence Period" is defined in Section 2.13. "Escrow" is defined in Section 2.2. "Escrow Agent" is defined in Section 2.2. "Exceptions" is defined in Section 2.9. "Governmental Requirements" means all laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State, the County, the City or any other political subdivision in which the Site is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over Agency, Developer or the Site. "Grant Deed" means the grant deed for the Conveyance of the Site from Agency to Developer, substantially in the form of Attachment 2, and incorporated herein. "Hazardous Materials" means any substance, material or waste which is or becomes, prior to the Closing, regulated by any local governmental authority, the State of California or the United States Government, including, but not limited to, any material or substance which is: (i) Defined as a "hazardous waste," "acutely hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) Defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (III) Defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) petroleum or any material or substance the presence of which would require remediation pursuant to the guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual, whether or not the presence of such material resulted from a leaking underground fuel tank, (v) Friable asbestos, 3 587359.1 I��I I��I�I�I II�III �IIIII II I�II�I��I III��III II I I��I vase ofa669�aR 1® (vi) Polychlorinated byphenyls, (vii) Designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.G. § 1317), (viii) Defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903), (ix) Defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601), (x) Methyl-Tertiary Butyl Ether, or (xi) Any other substance, whether in the form of a solid, liquid, gas or any other form whatsoever, which by any Governmental Requirements either requires special handling in its use, transportation, generation, collection, storage, handling, treatment or disposal, or is defined as "hazardous" or harmful to the environment. "Legal Description" means the description of the Site which is attached hereto as Exhibit "A" and incorporated herein. "Notice" means a notice in the form prescribed by Section 6.1. "Outside Closing Date" is the 45-day period commencing with the opening of Escrow, as defined in Section 2.6. "Project" is defined in Section 3.1. "Project Plans" means those plans, specifications and drawings for development of the Project which are (i) to be submitted to City for its approval, and (ii) required to obtain building permits for construction of the Project. "Redevelopment Plan" means the Redevelopment Plan for the Redevelopment Project Area No. 1 together with any amendments, all of which are incorporated herein by reference. "Redevelopment Law" means California Health and Safety Code Section 33000, et seq., as the same now exists or may hereafter be amended. "Remediate" or "Remediation" means investigation, characterization, monitoring, remediation (active or passive), removal and any other response actions associated with Hazardous Materials at, on or under the Site, including, without limitation, offsite disposal and transportation of Hazardous Materials, replacement of any exported soil with clean import fill and compacted to the compaction requirements necessary for Developer's intended use, which actions are necessary to allow Developer's development of the Project to occur without any mitigation measures or institutional or engineering controls such as, but not limited to, vapor barriers, special construction, handling or disposal requirements. "Report" is defined in Section 2.9. 4 581359 1 I III IIIIIII III I IIIIII IIII I IIIII III II I I II III xA aP05 of s9eea 5 0£ 8 "Schedule of Performance" means that certain Schedule of Performance attached hereto as Attachment 1 and incorporated herein by reference, setting out the dates and/or time periods by which certain obligations set forth in this Agreement must be accomplished. "Site" has the same meaning as the term "Conveyance Parcel" defined above. "Studies" is defined in Section 2.13. "Title Company" is defined in Section 2.9_ "Title Policy" is defined in Section 2.10. 2.0 CONVEYANCE OF THE SITE. 2.1. Site Conveyance. The Agency agrees to convey the Site to the Developer and the Developer agrees to acquire the Site from the Agency (the Conveyance"), prior to the commencement of the construction of the Project, in accordance with and subject to all of the terms, covenants, and conditions of this Agreement, including the Agency's Conditions Precedent and Developer's Conditions Precedent as set forth in Section 2.11. 2.2. Escrow. Within the time set forth in the Schedule of Performance, the parties shall open escrow for the Conveyance of the Site (the "Escrow") with a mutually satisfactory escrow company to both parties (the "Escrow Agent"). 2.3. Costs of Escrow. Agency and Developer shall share equally in the cost for the Title Policy as set forth in Section 2.10, and all of the usual fees, charges, and costs which arise from the Escrow for the Site. 2.4. Escrow Instructions. This Agreement constitutes the joint escrow instructions of Developer and Agency for the Conveyance of the Site, and the Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties hereto agree to do all acts reasonably necessary to close Escrow for the Site in the shortest possible time, but in no event longer than three hundred sixty (360) days from the Effective Date of this Agreement. Insurance policies for fire or casualty are not to be transferred, and Agency will cancel its own policies after the Closing. All funds received in Escrow shall be deposited with other escrow funds in a general escrow account(s) and may be transferred to any other such escrow trust account in any State or National Bank doing business in the State of California. All disbursements shall be made by check from such account. If in the reasonable opinion of either party it is necessary or convenient in order to accomplish the Closing of the Conveyance of the Site, such party may require that the parties sign supplemental escrow instructions; provided that if there is any inconsistency between this Agreement and the supplemental escrow instructions, then the provisions of this Agreement shall control. The parties agree to execute such other and further documents as may be reasonably necessary, helpful or appropriate to effectuate the provisions of this Agreement. The Closing for the conveyance of the Site shall take place 5 591359,1 Illllilllllll IIIIII III III IIIIIIIII IIIIIIIIIIIII 10,0A0�6£3�09M1 when both the Agency's Conditions Precedent and the Developer's Conditions Precedent as set forth in Section 2.11 have been satisfied. Escrow Agent is instructed to release Agency's escrow closing statements and Developer's escrow closing statements to the respective parties. 2.5. Authority of Escrow Agent. Escrow Agent is authorized to, and shall: (a) Pay and charge Agency and Developer for the cost of the premium of the Title Policy as set forth in Section 2.10 and any amount necessary to place title in the condition necessary to satisfy Section 2.11 of this Agreement. (b) Pay and charge Agency and Developer, in accordance with Section 23 hereof, for any endorsements to each Title Policy which are required by the Agency and/or Developer. (c) Deliver and record the Grant Deed, when both the Developer's Conditions Precedent and the Agency's Conditions Precedent have been fulfilled or waived in writing by the benefited party. (d) Do such other actions as necessary, including obtaining the Title Policy, to fulfill its obligations under this Agreement. (e) Within the discretion of Escrow Agent, direct Agency and Developer to execute and deliver any instrument, affidavit, and statement, and to perform any act reasonably necessary to comply with Government Requirements. 2.6. Closing . The close of escrow (the "Closing") shall occur within five (5) days of the parties' satisfaction of all of Agency's Conditions Precedent and Developer's Conditions Precedent to Closing as set forth in Section 2.11, but in no event later than the date that is three hundred sixty (360) days after the opening of Escrow (the "Outside Closing Date"). In the event escrow has not closed on or before the Outside Closing Date, either Agency or Developer shall be entitled to terminate this Agreement. The parties mutually agree that the Outside Closing Date may be extended by the mutual agreement of the parties. The Closing shall occur through the Escrow as set forth in this Agreement. The "Closing" shall mean the time and day the Grant Deed is filed for recording with the Riverside County Recorder. The "Closing Date" shall mean the day on which the Closing occurs. 2.7. Termination Prior to Closing Escrow. If Escrow is not in condition to close by the Outside Closing Date, then either party which has fully performed under this Agreement may, in writing, demand the return of money or property and terminate this Agreement. If either party makes a written demand for return of documents or properties, this Agreement shall not terminate until five (5) days after Escrow Agent shall have delivered copies of such demand to all other parties at the respective addresses shown in this Agreement. If any objections are raised within said five (5) day period, Escrow Agent is authorized to hold all papers and documents until instructed by a court of competent 6 561359.1 IIIIII IIIIIII l I IIII ie 00©8 es se©enI II IN IIIIII IIIIIIIIIIl jurisdiction or by mutual written instructions of the parties. Developer, however, shall have the sole option to withdraw any money deposited by it with respect to the Closing less Developer's share of costs of Escrow. Termination of this Agreement shall be without prejudice as to whatever legal rights either party may have against the other arising from this Agreement. If no demands are made, the Escrow Agent shall proceed with the Closing as soon as possible. 2.8. Closing Procedure. Escrow Agent shall close Escrow for the Site as follows: (a) Record the Grant Deed with instructions for the Recorder of Riverside County, California to deliver the Grant Deed to Developer ; (b) Instruct the Title Company to deliver the Title Policies to Developer and Agency; (c) Forward to both Developer and Agency a separate accounting of all funds received and disbursed for each party and copies of all executed and recorded or filed documents deposited into Escrow, with such recording and filing date and information endorsed thereon. 2.9. Review of Title. (a) Developer will obtain from ��� S� Title Company (the "Title Company") a standard preliminary title report (the "Report") with respect to the title to the Site, together with legible copies of the documents underlying the exceptions ("Exceptions") set forth in the Report, The Developer shall have the right to reasonably approve or disapprove the Exceptions; provided, however, that the Developer hereby approves the fallowing Exceptions: (1) The Redevelopment Plan; (2) The lien of any non-delinquent property taxes and assessments (to be prorated at Closing). (b) Developer shall have fifteen (15) days from the date of this Agreement to give written notice to the Agency and Escrow Agent of its approval or disapproval of any Exceptions. If the Developer notifies the Agency of its disapproval of any Exceptions in the Report, the Agency shall have the right, but not the obligation, to: (1) Remove any disapproved Exceptions within five (5) business days after receiving written notice of Developer's disapproval; or (2) Provide adequate assurances satisfactory to the Developer that such Exceptions will be removed on or before the Closing. If the Agency cannot or does not elect to remove any of the disapproved Exceptions within such five (5) business day period, the Developer shall have five (5) business days after the expiration of such five (5) business day period to either (a) give the 7 581359,1 I I I II II IIIIIIIIII�III III IIII IIIIII IIII IIIIIIII III IIIII IIII IIII se a/s of 6e9eaa Agency written notice that the Developer elects to proceed with the conveyance of the Site subject to the disapproved Exceptions or (b) give the Agency written notice that the Developer elects to terminate this Agreement. The Exceptions to title approved by the Developer as provided herein shall hereinafter be referred to as the "Condition of Title." The Developer shall have the right to approve or disapprove all Exceptions (other than those created by the Developer) which are reported by the Title Company to the Developer after the Developer has approved the Condition of Title for the Site as set forth above. The Agency shall not voluntarily create any new exceptions to title following the Date of Agreement. The Agency shall ensure, at its sole cost and expense, that all financial liens on the Site are removed prior to or concurrently with the Closing. 2.10. Title Insurance. Concurrently with recordation of the Grant Deed conveying title to the Site to Developer, there shall be issued to Developer a CLTA or ALTA owner's policy of title insurance (the "Title Policy"), together with such endorsements as are reasonably requested by the Developer, issued by the Title Company insuring that the title to the Site is vested in Developer in the condition required by Section 2.9 of this Agreement. The Title Company shall provide Developer with a copy of the Title Policy. The Title Policy shall be for the amount specified during escrow. 2.11. Conditions of Closing. The Closing is conditioned upon the satisfaction of the following terms and conditions within the times designated below: 2.11.1. Agency's Conditions Precedent_ Agency's obligation to proceed with the Closing of the Conveyance of the Site is subject to the fulfillment (or written waiver by Agency) of each and every one of the conditions precedent (a) through (h), inclusive, described below ("Agency's Conditions Precedent"), which are solely for the benefit of Agency, and which shall be fulfilled or waived by the time periods provided for herein: (a) Execution of Documents. The Developer shall have executed and acknowledged the Grant Deed, and any other documents required hereunder and shall have delivered such documents into Escrow. (b) Entitlements. Developer shall obtain all land use entitlements for development of the Project; (c) Permits. Developer shall obtain all building permits for construction of the Project; (d) Operating Covenant. Developer shall file and record a 5 year operating covenant with the County Recorder's Office, for a EZ Lube or equivalent automobile service station as approved by the City; (e) EZ Lube Franchise. Developer shall provide proof of an executed franchise agreement with EZ Lube, including EZ Lube's approval of this Agreement and the plans for 8 58�359 7 111111 IN II I II 111111111111 III 16 of 08 60 00R the Site; (f) Insurance. The Developer shall have provided proof of insurance as required by Section 3.5. (g) Fines. The Developer shall have provided proof satisfactory to the Agency that the Developer has sufficient internal funds or has obtained a loan or financing for construction for the Project from a Construction Lender pursuant to Section 3.8, and such financing shall close and be available to the Developer upon the Closing. (h) No Default. Prior to the Closing, Developer shall not be in default in any of its obligations under the terms of this Agreement and all representations and warranties of Developer contained herein shall be true and correct in all material respects. 2.11.2, Developer's Conditions Precedent. Developer's obligation to proceed with the purchase of the Site is subject to the fulfillment or waiver by Developer of each and all of the conditions precedent (a) through (g) inclusive, described below ("Developer's Conditions Precedent"), which are solely for the benefit of Developer, and which shall be fulfilled or waived by the time periods provided for herein- (a) Execution of Documents. The Agency shall have executed and acknowledged the Grant Deed and any other documents required hereunder, and delivered such documents into Escrow. (b) Titles. Developer shall have reviewed and approved the condition of title of the Site, as provided in Section 2,9, and the Title Company shall, upon payment of Title Company's regularly scheduled premium, have agreed to provide the Title Policy for the Site upon the Closing, in accordance with Section 2.10. (c) Environmental. The Developer shall either have approved, in writing, the environmental condition of the Site pursuant to Section 2.14, or if the Developer disapproved, in writing, the environmental condition of the Site pursuant to Section 2.14, then the Agency shall have decided to Remediate any such disapproved conditions on the Site and the Remedial Work shall have been completed pursuant to Section 2.14. (d) No Litigation. No litigation shall be pending or threatened which seeks to enjoin the transactions contemplated by this Agreement or to obtain damages in connection therewith- (e) No Default. Prior to the Closing, Agency shall not be in default in any of its obligations under the terms of this Agreement and all representations and warranties of Agency contained herein shall be true and correct in all material respects. 2.12. Representations and Warranties- 9 581359.1 I III III III II I II III I I I II III I IIII 111 1 11 ie e,A zQ of s 9eP 14 of , 2.12.1. Agency Representations. Agency represents and warrants to Developer as follows: (a) Agency is a public body, corporate and politic, existing pursuant to the California Community Redevelopment Law (California Health and Safety Code Section 33000, et seq.), which has been authorized to transact business pursuant to action of the City. (b) Agency has full right, power and lawful authority to grant and convey the Site as provided herein, and the execution, performance and delivery of this Agreement and the instruments referenced herein by Agency has been dully authorized by all requisite actions on the part of Agency. (c) Agency's execution, delivery and performance of its obligations under this Agreement and the instruments referenced herein will not constitute a default or a breach under any contract, agreement or order to which Agency is a party or by which it is bound. (d) To Agency's actual knowledge, there are no pending actions, suits, arbitrations, claims or proceedings, at law, in equity or otherwise, affecting, or which may affect, all or any portion of the Site- (e) To Agency's actual knowledge, there are no agreements (whether oral or written), affecting or relating to the right of any party with respect to the possession of the Site, or any portion thereof, which are obligations which will affect the Site or any portion thereof following the Closing. (f) Except for this Agreement, the Agency has not provided any person or entity any rights of first refusals or options or other rights to lease or purchase the Site. Until the Closing, Agency shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 2.12.1 not to be true as of Closing, immediately give written notice of such fact or condition to Developer. Such exception(s) to a representation shall not be deemed a breach by Agency hereunder, but shall constitute an exception which Developer shall have a right to approve or disapprove if such exception would have an effect on the value and/or operation of the Project. If Developer elects to close Escrow following disclosure of such information, Agency's representations and warranties contained herein shall be deemed to have been made as of the Closing, subject to such exception(s). If, following the disclosure of such information, Developer elects to not close Escrow, then this Agreement and the Escrow shall automatically terminate, and neither party shall have any further rights, obligations or liabilities hereunder. The representations and warranties set forth in this Section 2.12.1 shall survive the Closing. 2.12.2, Developer's Representations. Developer represents and warrants to Agency as follows: (a) Authority. Developer is a duly organized limited liability company within and in good standing under the laws of the State of California. Developer has full right, power and 10 581359.1 1111 II E 111111111111 III 111111 III 1111 a 11 Of 08000R lawful authority to accept the Conveyance of the Site, develop the Project on the Site, and undertake all obligations as provided herein. The execution, performance and delivery of this Agreement by Developer has been fully authorized by all requisite actions on the part of the Developer. (b) Developer's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement, or order to which the Developer is a party or by which it is bound. (c) Developer is not the subject of a current or pending bankruptcy proceeding. Until the Closing, Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 2.12.2 not to be true as of Closing, immediately give written notice of such fact or condition to Agency. Such exception(s) to a representation shall not be deemed a breach by Developer hereunder, but shall constitute an exception which Agency shall have a right to approve or disapprove if such exception would have an effect on the value and/or operation of the Project. If Agency elects to close Escrow following disclosure of such information, Developer's representations and warranties contained herein shall be deemed to have been made as of the Closing, subject to such exception(s). If, following the disclosure of such information, Agency elects to not close Escrow, then this Agreement and the Escrow shall automatically terminate, and neither party shall have any further rights, obligations or liabilities hereunder. The representations and warranties set forth in this Section 2.122 shall survive the Closing. 2.13. Studies and Reports. Prior to the Closing, Developer shall be permitted to study the Site for the purpose of obtaining data and making surveys and tests necessary to carry out this Agreement, including the investigation of the environmental condition of the Site pursuant to Section 2.14.3 (collectively, the "Studies"). Any preliminary work undertaken on the Site by Developer prior to the Closing shall be done at the sole expense of Developer and Developer shall provide Agency with copies of any Studies or Reports conducted pursuant to this Section 2.13. Any preliminary work shall be undertaken only after securing any necessary permits from the appropriate governmental agencies. Agency shall provide Developer a copy of all documents and agreements in the possession or control of Agency with respect to the Site within ten (10) days after the Date of Agreement. Developer shall have ten (10) days from the date on which Developer receives the documentation referred to in the immediately preceding sentence to review such documentation (the "Due Diligence Period"); Developer may terminate this Agreement within such ten (10) day period by written notice to the Agency in accordance with Section 6.1 if Developer reasonably believes that the condition of the Site will not support the execution of the obligations of this Agreement. Agency and Developer shall each have an ongoing obligation to provide to the other party any documents relating to the condition of the Site which are obtained during the escrow period. 2.14. Condition of the Site; Releases. 2.14.1. Disclosure Regardina Condition of Site. The Agency hereby represents and warrants that it has no actual knowledge, and has not received any notice 11 581359 7 IIII IIIIIIII IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 10ze01z t66 or communication from any governmental agency having jurisdiction over the Site notifying it of the presence of surface or subsurface zone Hazardous Materials in, on or under the Site or any portion thereof. 2.14.2. Investigation. Developer may, prior to the Closing and at its own sole expense, cause an environmental investigation of the Site to be performed by an environmental consultant. Developer shall promptly provide the other a copy of all reports and test results provided by Developer's environmental consultant. 2.14.3. Approval of Environmental Conditions. Developer shall be entitled to reasonably approve or disapprove the environmental condition of the Site by written notice to the Agency. In the event that Developer disapproves the environmental condition of the Site, Developer shall be entitled to terminate this Agreement by giving Agency notice in accordance with Section 6.1, or grant the Agency the option to Remediate and/or correct the conditions disapproved by Developer. In the event the Agency chooses to Remediate at its sole cost and expense such disapproved conditions on the Site, the Developer will not be entitled to terminate this Agreement due to the environmental condition of the Site provided that within thirty (30) days after the date the Developer delivers its disapproval notice to the Agency, the parties agree upon a remedial action plan ("RAP") for the disapproved conditions and further agree to any extensions to the items in the Schedule of Performance that are affected by the delay due to the Remediation work, including without limitation the Closing Date. The remedial work to be performed pursuant to the RAP ("Remedial Work") shall be performed by the Agency in accordance with applicable Governmental Requirements, The Agency shall proceed continuously and diligently with the Remedial Work and upon completion of the work shall promptly deliver to the Developer the closure letter or such other similar official acknowledgement that is required to be obtained or that may be reasonably available from said public agency or agencies with jurisdiction over the work that confirms each such agency's determination as to whether the work has been completed in accordance with the RAP and applicable Governmental Requirements_ In the event the Agency has elected to Remediate the Site, the Agency's compliance with the provisions of this Section 2.14.3 shall be a Developer Condition Precedent under Section 2.11. Upon completion of the Remedial Work, the Developer shall have the right to inspect the Site to determine if it is reasonably satisfied that the Remedial Work has been completed in accordance with the approved RAP and applicable Governmental Requirements. 2.14.4. No Further Warranties; Delivery of Property "as is". Except as otherwise provided herein, the physical condition of the Site is and shall be delivered to Developer in an "as-is" condition, with no warranty expressed or implied by the Agency, including without limitation, the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Site for the development purposes intended hereunder. Notwithstanding anything to the contrary in this Agreement, neither party waives or relinquishes any common law or statutory rights it may have against one another or third persons arising from or related to the cause or source of any Hazardous Materials on the Site, or for contribution or indemnity as a result of site evaluation, remediation and/or clean-up costs and liability. 12 581359 1 IIIIIIIIIIIIII111111IIIIV111IIIIIIII11111111111111111 ,0ra�0z�ae£�60aaA 2.14.5. Required Disclosures After Closinq. After the Closing, the Developer shall notify the Agency, and provide to the Agency a copy or copies, of all environmental permits, disclosures, applications, entitlements or inquiries relating to the Site, including notices of violation, notices to comply, citations, inquiries, clean-up or abatement orders, cease and desist orders, reports filed pursuant to self-reporting requirements and reports filed or applications made pursuant to any Governmental Requirement relating to Hazardous Materials. Upon request, the Developer shall furnish to the Agency a copy or copies of any and all other environmental entitlements or inquiries relating to or affecting the Site including, but not limited to, all permit applications, permits and reports including, without limitation, those reports and other matters which may be characterized as confidential. 2.14.6. Indemnity. Except as otherwise provided herein, upon Closing, Developer agrees to indemnify, defend and hold Agency and the City and their respective officers, employees, agents, representatives and volunteers harmless from and against any claim, action, suit, proceeding, damage, liability, deficiency, fine, penalty, or punitive damage (including, without limitation, reasonable attorneys' fees), resulting from, arising out of, or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Site which first occurs after the Closing, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Site which first occurs after the Closing; it being the express intention of the parties that the foregoing provisions shall have no application to Hazardous Materials existing on or under the Site prior to the Closing Date. At the request of the Developer, the Agency shall cooperate with and assist the Developer in its defense of any such claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense; provided that the Agency shall not be obligated to incur any expense in connection with such cooperation or assistance. This indemnification shall not apply to (i) any release or discharge of Hazardous Materials, or violations of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Site which occurred prior to the Closing, or any release after the Closing of Hazardous Materials that were located on the Site prior to the Closing except to the extent such released Hazardous Materials were handled, stored, or disposed of in a negligent manner by Developer or its employees, agents, or contractors, or (ii) any release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from the Site by Agency, City or any of their respective employees, agents or contractors, or (iii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Site by Agency, City or any of their respective employees, agents or contractors. 13 581359.1 i IIIIII IIIIIII III IIII IIIIII IIII IIIIIIII II I�IIII III IIII 0eA84]008£060R 09 3.0 DEVELOPMENT OF THE SITE, 3.1. Scope of Development. Developer shall develop the Conveyance Parcel for a EZ Lube automobile service station, and all onsite and offsite improvements required as conditions of regulatory approval of the foregoing (the "Project"). It is the intent of this Agreement to require the development of the Site pursuant to the approved plans and drawings. The Project shall be developed in accordance with the plans, drawings and documents to be submitted by Developer and approved by the Agency and the City of Palm Springs ("City") as set forth herein, within the time periods set forth in the Schedule of Performance. 3.2. Land Use Approvals. Before commencement of construction of the Project or other works of improvement upon the Site, Developer shall, at its own expense, secure or cause to be secured any and all land use and other entitlements, permits and approvals which may be required for the Project by the City or any other governmental agency affected by such construction or work, except for those which are the responsibility of Agency as set forth herein. 3.2.1. Findina of General Plan Consistency. No later than the date that is fifteen (15) days after the Date of Agreement, Agency shall submit a request to the Planning Commission of City to determine and make a finding that the disposition of the Property is consistent with the City's General Plan in accordance with Government Code Section 65402 ("Consistency Finding Matter"). In the event that the Planning Commission has not taken action on the Consistency Finding Matter by the date that is thirty (30) days after the Agency has submitted such request, but no later than forty-five (45) days after the Date of Agreement, Developer shall have the right to terminate this Agreement pursuant to Section 5.3. If the Planning Commission makes the determination during the Escrow period that the consistency finding cannot be made, then Agency and Developer each shall have the right to terminate this Agreement and the Escrow by delivery of written notice to the other party and Escrow Agent. 3.2.2. Developer to Pay Costs. Developer shall, without limitation, apply for and secure the following, and pay all costs, charges and fees associated therewith: (a) All permits, fees and approvals required by the City, County of Riverside and other governmental agencies with jurisdiction over the Project (other than the casts of Remediation, if any); and (b) All approvals required pursuant to the California Environmental Quality Act; and (c) Any Commission fees for the real estate transactions. 3.2.3. Agency Cooperation. Agency staff will work cooperatively with Developer to assist in coordinating the expeditious processing and consideration of all necessary permits, entitlements and approvals. The Developer shall be responsible for payment of all 14 581359.1 IIIIII IIIIIII III IIII IIIIII IIII IIIIIIII III IIIIII IIIIIII 10 ©s 15oo 60®0R fees payable in connection with the Project. The execution of this Agreement does not constitute the granting of any required land use permits, entitlements or approvals. 3.3. Schedule of Performance. Developer shall submit all required plans and drawings, commence and complete all construction of the Project, and satisfy all other obligations and conditions of this Agreement within the times established therefor in this Agreement and the Schedule of Performance, subject to extensions pursuant to Section 6.2. Agency shall satisfy all other obligations and conditions of this Agreement within the times established therefor in this Agreement and the Schedule of Performance. 3.4. Cosa of Construction. All of the cost of planning, designing, developing and constructing the entire Project and all applicable offsite improvements, shall be borne solely by Developer. 3.5. Insurance Requirements. The Developer shall take out and maintain or shall cause its contractor to take out and maintain until the issuance of the final Certificate of Completion pursuant to Section 3.9 of this Agreement, a commercial general liability policy in the amount of Two Million Dollars ($2,000,000) per occurrence, and a comprehensive automobile liability policy in the amount of One Million Dollars ($1,000,000) per occurrence, or such other policy limits as the Agency may approve at its discretion, including contractual liability, as shall protect the Developer, City and Agency from claims for such damages, and which policy shall be issued by an "A-" or better rated insurance carrier. Any contractors, individuals, or any party performing work on the building must provide their own auto insurance. Such policy or policies shall be written on an occurrence form. The Developer shall also furnish or cause to be furnished to the Agency evidence satisfactory to the Agency that Developer and any contractor with whom it has contracted for the performance of work on the Site or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. The Developer shall furnish a certificate of insurance countersigned by an authorized agent of the insurance carrier on a form approved by the Agency setting forth the general provisions of the insurance coverage_ This countersigned certificate shall name the City and the Agency and their respective officers, employees, agents, representatives and volunteers as additionally insured parties under the policy, and the certificate shall be accompanied by a duly executed endorsement evidencing such additional insured status. The certificate and endorsement by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify City and the Agency of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination. Coverage provided hereunder by the Developer shall be primary insurance and not be contributing with any insurance maintained by the Agency or City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of the City and the Agency. The required certificate shall be furnished by the Developer at the time set forth therefor in the Schedule of Performance. 3.6. Developer's Indemnification. Except as otherwise set forth in this Agreement, the Developer shall defend, indemnify, assume all responsibility for, and hold 15 531359.1 II IIIIIIIIIIIIIIIIIIIIIEIIIIIIIIIIIIIIIIIIIIIIIIIII xa40010orVa the Agency and the City, and their officers, employees, agents, representatives and volunteers, harmless from all claims, judgments, demands, damages, defense costs or liability of any kind or nature arising out of or relating to the subject matter of this Agreement or the validity, applicability, interpretation or implementation hereof and for any damages to property or injuries to persons, including accidental death (including attorneys fees and costs), which is caused by the willful or negligent acts or omissions of the Developer under this Agreement, or that of Developer's agents, employees, or contractors, whether such damage shall accrue or be discovered before or after termination of this Agreement. In no event shall the foregoing indemnity apply to, and Developer shall not be liable for, such matters to the extent caused by the negligence, willful misconduct, breach of this Agreement, or failure to comply with applicable laws by the Agency or City or their respective agents, contractors or employees. The Developer shall have the obligation to defend any such action; provided, however, that this obligation to defend shall not be effective if and to the extent that Developer determines in its reasonable discretion that such action is meritorious or that the interests of the parties justify a compromise or a settlement of such action, in which case Developer shall compromise or settle such action in a way that fully protects Agency and City from any liability or obligation. In this regard, Developer's obligation and right to defend shall include the right to hire (subject to written approval by the Agency and City, which approval shall not be unreasonably withheld, conditioned or delayed) attorneys and experts necessary to defend, the right to process and settle reasonable claims, the right to enter into reasonable settlement agreements and pay amounts as required by the terms of such settlement, and the right to pay any judgments assessed against Developer, Agency, or City_ 3.7. Rights of Access. Representatives of Agency and City shall have the right of access to the Site, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including but not limited to, the inspection of the work being performed in constructing the Project so long as Agency and City representatives comply with all safety rules and do not interfere with, delay or interrupt Developer's construction activities. 16 58�3$9.1 II I I I I I IA A�A A III III I I I III I I III II II III I III ief e00817 sofa 60seR 3.8. Financina of the Project. 3.8.1, Approval of Financing. As required herein and as an Agency Condition Precedent to the Closing, Developer shall submit to Agency evidence that Developer has obtained sufficient equity capital or has obtained firm and binding commitments for construction financing from a Construction lender necessary to undertake the development of the Site and the construction of the Project in accordance with this Agreement. The Agency shall approve or disapprove such evidence of financing commitments within fifteen (15) days of receipt of a complete submission. Approval shall not be unreasonably withheld, delayed or conditioned. If Agency shall disapprove any such evidence of financing, Agency shall do so by Notice to Developer stating the specific reasons for such disapproval and Developer shall promptly obtain and submit to Agency new evidence of financing. Agency shall approve or disapprove such new evidence of financing in the same manner and within the same times established in this Section 3.8.1 for the approval or disapproval of the evidence of financing as initially submitted to Agency and such other documentation reasonably satisfactory to the Agency as evidence of other sources of capital sufficient to reasonably demonstrate that Developer has adequate funds to cover the difference, if any, between the total cost of the construction and completion of the Project, less financing authorized by those loans set forth in clause (a) above. 3.8.2. No Encumbrances Except Mortgages. Deeds of Trust, or Sales and Leasebacks for Development. Mortgages, deeds of trust and sales and leasebacks for construction financing shall be permitted before completion of the Project only with the Agency's prior written approval, which approval shall not be unseasonably withheld, conditioned or delayed, but only for the purpose of securing loans of funds to be used for financing the construction of the Project (including architecture, engineering, legal, permit costs, construction interest, and related direct costs as well as indirect hard and soft costs) on or in connection with the Site (including real property taxes, assessments, and insurance costs), and any other purposes necessary and appropriate in connection with development under this Agreement. In no event, prior to the issuance of a Certificate of Completion, however, shall the amount or amounts of indebtedness secured by mortgages or deeds of trust exceed the sum of the fair market value of the Site and the projected cost of constructing the Project, as evidenced by a pro forma and a construction contract which set forth such construction costs. The Developer shall notify the Agency in advance of any mortgage, deed of trust or sale and leaseback financing, if the Developer proposes to enter into the same before completion of the construction of the Project. The words "mortgage" and "trust deed" as used hereinafter shall include sale and leaseback. Agency hereby covenants to reasonably cooperate with Developer in Developer's efforts to secure construction financing from Developer's Construction Lender, and to execute all documents reasonably necessary and customary in connection therewith. 3.8.3. Holder Not Obligated to Construct Proiect. The holder of any mortgage or deed of trust authorized by this Agreement (including without limitation, all Construction Lenders) shall not be obligated by the provisions of this Agreement to construct or 17 58135J 1 III HIM III III �0faas a8 D ea eea 8 $ 66 complete the Project or any portion thereof, or to guarantee such construction or completion; nor shall any covenant or any other provision in this Agreement be construed so to obligate such holder. Nothing in this Agreement shall be deemed to construe, permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. 3.8.4. Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Developer as provided herein, whenever the Agency may deliver any notice or demand to Developer with respect to any breach or default by the Developer in completion of construction of the Project, the Agency shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement (including without limitation, all Construction Lenders) a copy of such notice or demand. Each such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within thirty (30) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cast thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Project, or any portion thereof (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement reasonably satisfactory to the Agency. The holder, in that event, must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates. Any such holder properly completing such improvement shall be entitled, upon compliance with the requirements of Section 3.9 of this Agreement, to a Certificate of Completion. It is understood that a holder shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Site (or portion thereof) if and to the extent any such holder has within such thirty (30) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. Agency agrees to reasonably consider modifications or amendments to this Agreement proposed by the Construction Lenders relating to the protection of their interests in the Project. 3.8.5, Failure of Developer to Complete Project. In any case where, thirty (30) days after the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any part thereof (including without limitation, all Construction Lenders) receives a notice from Agency of a default by the Developer in completion of construction of any of the Project under this Agreement, and such holder has not exercised the option to construct as set forth in Section 3.8.4, or if it has exercised the option but has defaulted hereunder and failed to timely cure such default, the Agency may purchase, without recourse and without representation or warranty (other than if the lender is the holder and beneficiary of the deed of trust), the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. If the ownership of the Site or 1I8 5813591 IIIIIIIIIIIIII IIIIIIIIIIIIIIIIIIIII�III IIIIIIIII IIIIIII 10r01/ZOO8 I, 0R 2008 0532196 Is any part thereof has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder, within sixty (60) days after foreclosure, of an amount equal to the sum of the following- (a) The unpaid mortgage or deed of trust debt (including principal, interest, and all other sums secured by the mortgage or deed of trust) at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (b) All expenses with respect to foreclosure including reasonable attorneys' fees; (c) The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Site or part thereof; (d) The costs of any improvements made by such holder; (e) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency; and (fj Any customary prepayment charges imposed by the lender pursuant to its loan documents and agreed to by the Developer. 3.8.6. Right of the Agency to Cure Mortgage or Deed of Trust Default. In the event of a mortgage or deed of trust default or breach by the Developer prior to the completion of the construction of any of the Project or any part thereof, Developer shall immediately deliver to Agency a copy of any mortgage holder's notice of default. If the holder of any mortgage or deed of trust has not exercised its option to construct, the Agency shall have the right but no obligation to cure the default within the same cure periods, if any, given Developer under the mortgage or deed of trust. In such event, the Agency shall be entitled to reimbursement from the Developer of all proper costs and expenses incurred by the Agency in curing such default. The Agency shall also be entitled to a lien upon the Site to the extent of such costs and disbursements. Any such lien shall be unconditionally and fully junior and subordinate to the mortgages or deeds of trust pursuant to this Section 3.8. 3.9. Certificate of Completion. Promptly after completion of all construction and development required by this Agreement to be completed by Developer upon the Site in conformity with this Agreement, the Agency shall furnish Developer with the Certificate of Completion upon written request therefor by Developer. The Agency shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Completion shall be a conclusive determination of satisfactory completion of the construction required by this Agreement upon the Site and the Certificate of Completion shall so state. The Certificate of Completion shall be in such form as to permit it to be recorded in the Recorder's Office of Riverside County- If the Agency refuses or fails to furnish a Certificate of Completion after written request from Agency, the Agency shall, within ten (10) days of written request therefor, provide Developer with a written statement of the reasons the Agency refused or 19 581359.1 I I III IIIIIII I IIII I IIII I IIII III IIIIIII II IIII xa o908 205f 60eep failed to furnish a Certificate of Completion. The statement shall also contain Agency's opinion of the actions Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate availability of specific items of materials for landscaping, the Agency will issue its Certificate of Completion upon the posting of a bond or other security acceptable to Agency by Developer with the Agency in an amount representing a fair value of the work not yet completed. Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the improvements, or any part thereof. Such Certificate of Completion is not a notice of completion as referred to in the California Civil Code Section 3093, 3.10. Compliance With Laws. The Developer shall carry out the design, construction and operation of the Project in conformity with all applicable laws, including all applicable state labor standards, the City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the City Municipal, and all applicable disabled and handicapped access requirements, including without limitation (to the extent applicable) the Americans With Disabilities Act, 42 U.S.C. Section 12101, a seq.. Government Code Section 4450, et seq., Government Code Section 11135, a seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq. 3.10.1. Government Requirements. The Developer shall carry out the construction of the Project and the development of the Site in conformity with all applicable Government Requirements. The Developer shall be solely responsible for determining and effectuating compliance with all applicable public works requirements, prevailing wage laws, and federal and state labor laws, and the Agency and City make no representation as to the applicability or non-applicability of any of such laws to the Project or any part thereof. Developer hereby expressly acknowledges and agrees that the Agency has not previously affirmatively represented to the Developer or its contractor(s) for the construction or development of the Project, in writing or otherwise, in a call for bids or otherwise, that the work to be covered by this Agreement is not a "public work," as defined in Section 1720 of the Labor Code. Developer hereby agrees that Developer shall have the obligation to provide any and all disclosures or identifications required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law. Developer shall indemnify, protect, defend and hold harmless the Agency, City and their respective officers, employees, contractors and agents, with counsel reasonably acceptable to Agency and City, from and against any and all loss, liability, damage, claim, cost, expense and/or "increased costs" (including reasonable attorneys fees, court and litigation costs, and fees of expert witnesses) which, in connection with the development, construction (as defined by applicable law) and/or operation of the improvements, including, without limitation, any and all public works (as defined by applicable law), results or arises in any way from any of the following: (1) the noncompliance by Developer of any applicable local, state and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, if applicable, the requirement to pay state prevailing wages); (2) the implementation of Section 1781 of the Labor Code, as the same may be amended from 20 5813591 I II IIIIIIIIIIIIII IIIIIIIIII�IIIIIIIIIIIIII IIIIIIIIIIII IIII 1B/01A2 08f060B0R time to time, or any other similar law; and/or (3) failure by Developer to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law. It is agreed by the parties that, in connection with the development and construction (as defined by applicable law) of the Project, including, without limitation, any and all public works (as defined by applicable law), Developer shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law. "Increased costs," as used in this Section 3.10.1, shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be amended from time to time. The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction and development of the Project by the Developer. 3.10.2. Liens and Stop Notices. If a claim of a lien or stop notice is given or recorded affecting the Site or the Project, the Developer shall within thirty (30) days of such recording or service or within five (5) days of the Agency's demand whichever last occurs: (a) pay and discharge the same; or (b) effect the release thereof by recording and delivering to the Agency a surety bond in sufficient form and amount, or otherwise; or (c) provide the Agency with other assurance which the Agency deems, in its sole discretion, to be satisfactory for the payment of such lien or bonded stop notice and for the full and continuous protection of Agency from the effect of such lien or bonded stop notice. 4.0 COVENANTS AND RESTRICTIONS. 4.1, Uses. The Developer covenants and agrees to devote, use, operate, and maintain the Site in accordance with the Grant Deed and this Agreement. All uses conducted on the Site, including, without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall conform to the Redevelopment Plan, all applicable provisions of the Palm Springs Municipal Code, the approved Project plans and drawings, and the recorded documents pertaining to and running with the Site. 4.2. Maintenance (a) Maintenance. The Developer shall maintain or cause to be maintained the interiors and exteriors of the Project and the Site in a decent, safe and sanitary manner, in accordance with the standard of maintenance of similar developments within Riverside County, California. If at any time Developer fails to maintain the Project and/or the Site in accordance with this Agreement and such condition is not corrected within fifteen (15) days after written notice from the Agency with respect to graffiti, debris, waste material, and general maintenance, or thirty (30) days after written notice from the Agency with respect to landscaping and building improvements (subject to notice and an opportunity to cure pursuant to Section 5.1 hereof), then the Agency, in addition to whatever remedy it may 21 GGA 581359.1 II III I I I IIIIII I�I�I�I III IIAI IIIIII III�IIIIIII III IIIIIII II IIII ief e0022 of so have at law or at equity, shall have the right to enter upon the applicable portion of the Project and the Site and perform all acts and work necessary to protect, maintain, and preserve the Improvements and landscaped areas on the Project and the Site, and to attach a lien upon the Project and the Site, or to assess the Project and the Site, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the Agency and/or costs of such cure, which amount shall be promptly paid by Developer to the Agency upon demand. 5.0 DEFAULTS AND REMEDIES. 5.1, Default Remedies. Subject to the extensions of time set forth in Section 6.2 of this Agreement, failure by either party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and failure to cure as described hereafter, constitutes a "Default" under this Agreement. A party claiming a Default shall give written notice of Default to the other party specifying the Default complained of. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against any other party, and the other party shall not be in Default if such party within thirty (30) days from receipt of such notice cures such Default, or if the nature of such Default is that it cannot reasonably be expected to be cured within such thirty (30) day period, then the claimant shall not institute any proceeding against any other party, and the other party shall not be in Default if such party, with due diligence, commences to cure, correct or remedy such failure or delay within thirty (30) days of notice thereof and completes such cure, correction or remedy with diligence. 5.2. Institution of Legal Actions. In addition to any other rights or remedies and subject to the restrictions otherwise set forth in this Agreement, either party may institute an action at law or equity to seek specific performance of the terms of this Agreement, or to cure, correct or remedy any Default, to recover damages for any Default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, or in the Federal District Court with jurisdiction over the Site. 22 581359.1 II HE IN 111111111111111111111111 10 es 23 oa 0 or so 5.3. Termination by Developer. In the event that Developer is not in default under this Agreement and prior to the Closing: (a) Agency does not tender title to the Site pursuant to the Grant Deed in the manner and condition and by the date provided in this Agreement, or (b) One or more of Developer's Conditions Precedent to the Closing is not satisfied on or before the time set forth in the Schedule of Performance; or (c) Developer determines the condition of the Site will not support the construction of the Project thereon as set forth in Section 3.1; or (d) The Planning Commission has not approved a resolution finding the Agency's conveyance of the Site to be in conformity with the Palm Springs General Plan within thirty (30) days after the Agency has submitted such request but no later than forty-five (45) days of the Date of Agreement, as set forth in Section 3.4.1; or (e) A lawsuit is filed challenging the validity of this Agreement, including without limitation any land use or other entitlements, permits, or approvals required for the implementation of this Agreement, or which would otherwise impair Developer's ability to implement this Agreement, and the Developer reasonably believes defending such challenge will be futile or so costly as to make completion of the Project financially impracticable; or (f) In the event of any default of Agency prior to the Closing which is not cured within the time set forth in Section 5.1 hereof, and any such failure is not cured within the applicable time period after written demand by Developer, then this Agreement may, at the option of Developer, be terminated by written notice thereof to the Agency. From the date of the written notice of termination of this Agreement by Developer to Agency and thereafter this Agreement shall be deemed terminated, and there shall be no further rights or obligations between the parties with respect to the Site, except that Developer may pursue any remedies it has hereunder or at law or in equity. 5.4. Termination by Agency. In the event that the Agency is not in Default under this Agreement and prior to the Closing: (a) One or more of Agency's Conditions Precedent to the Closing is not satisfied on or before the time set forth in the Schedule of Performance; or (b) Developer is otherwise in default of this Agreement and fails to cure such default within the time set forth in Section 5.1 hereof; then this Agreement and any rights of Developer or any assignee or transferee with respect to or arising out of the Agreement, shall, at the option of Agency, be terminated by Agency by written notice thereof to Developer. From the date of the written notice of termination of this Agreement by Agency to Developer and thereafter this Agreement shall be deemed terminated, and there shall be 23 581359 1 II II�II III III IIIIII �� IIIIIIIII IIIIIIIIIIIII 10r01/0e poi®0000R no further rights or obligations between the parties with respect to the Site, except that Agency may pursue any remedies it has hereunder or at law or in equity. 5.5. Reentry and Revestina of Title to the Site After the Conveyance and Prior to Completion of Construction. Agency has the right, at its election, to reenter and take possession of the Site, with all improvements thereon, and terminate and revest in Agency the estate conveyed to Developer by the Conveyance if after the Closing and prior to the issuance of the Certificate of Completion, Developer (or its successors in interest) shall: (a) fail to start the construction of the Project as required by this Agreement for a period beginning when Developer receives written notice of such failure from Agency pursuant to Section 5.1 and ending on the later of (i) ninety (90) days or (ii) the end of the cure period provided in Section 5.1 hereof (subject to extensions pursuant to Section 6.2 hereof); or (b) abandon or substantially suspend construction of the Project required by this Agreement for a period beginning when Developer receives written notice of such abandoned or suspended construction from Agency pursuant to Section 5.1 and ending on the later of(i) sixty (60) days or (ii) the end of the cure period provided in Section 5.1 hereof (subject to extensions pursuant to Section 62 hereof); or (c) contrary to the provisions of Section 6.3 transfer or suffer any involuntary transfer of the Site or any part thereof in violation of this Agreement, which is not cured within the notice and cure period in Section 5.1. Such right to reenter, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid or limit: 1. Any mortgage or deed of trust permitted by this Agreement; or 2. Any rights or interests provided in this Agreement for the protection of the holders of such mortgages or deeds of trust. The Grant Deed shall contain appropriate reference and provision to give effect to Agency's right as set forth in this Section 5.5, under specified circumstances prior to recordation of the Certificate of Completion, to reenter and take possession of the Site, with all improvements thereon, and to terminate and revest in Agency the estate conveyed to Developer. Upon the revesting in Agency of title to the Site as provided in this Section 5.5, Agency shall, pursuant to its responsibilities under state law, use its reasonable efforts to resell the Site as soon and in such manner as Agency shall find feasible and consistent with the objectives of such law and of the Redevelopment Plan, as it exists or may be amended, to a qualified and responsible party or parties (as determined by Agency) who will assume the obligation of making or completing the Project, or such improvements in their stead as shall be satisfactory to Agency and in accordance with the uses specified for such Site or part thereof in the Redevelopment Plan. Upon such resale of the Site, the net 24 $813591 I I I III III I II I II I 1 III I IIII III IIIIIII 1111111111 IIII r ere00825 es a SO proceeds thereof after repayment of any mortgage or deed of trust encumbering the Site which is permitted by this Agreement, shall be applied: i. First, to reimburse Agency for all costs and expenses incurred by Agency, excluding Agency staff costs, but specifically, including, but not limited to, any expenditures by Agency in connection with the recapture, management and resale of the Site or part thereof (but less any income derived by Agency from the Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Site and presently due or part thereof which Developer has not paid; any payments made or necessary to be made to discharge any encumbrances or liens existing on the Site or part thereof at the time or revesting of title thereto in Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing Agency, and in the event additional proceeds are thereafter available, then ii. Second, to reimburse Developer, its successor or transferee, up to the amount equal to the sum of (a) the costs incurred for the acquisition and development of the Site and for the improvements existing on the Site at the time of the reentry and possession, less (b) any gains or income withdrawn or made by Developer from the Site or the improvements thereon. Any balance remaining after such reimbursements shall be retained by Agency as its property. In the event Agency exercises its rights under this Section 5.5 and acquires the Site, Developer shall have no further responsibility for developing the Project; however, the rights established in this Section 5.5 are not intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy authorized herein or now or hereafter existing at law or in equity. These rights are to be interpreted in light of the fact that Agency will have conveyed the Site to Developer for redevelopment purposes, particularly for development of housing and commercial uses and not for speculation in undeveloped land. 5.6. Acceptance of Service of Process. In the event that any legal action is commenced by Developer against Agency, service of process on Agency shall be made by personal service upon the Agency Secretary or in such other manner as may be provided by law. In the event that any legal action is commenced by Agency against Developer, service of process on Developer shall be made by personal service upon the president of the Developer, or in such other manner as may be provided by law. 5.7. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the 25 581359.1 I IIIIII II I II III IIII IIII II I I III II II IIII I II xars0�izees as9®®A 2s er sa exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 5.8. Inaction Not a Waiver of Default. Any failures or delays by either party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 5.9, Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 6.0 GENERAL PROVISIONS. 6.1. Notices, Demands and Communications Between the Parties_ Any approval, disapproval, demand, document or other notice ("Notice") which either parry may desire to give to the other party under this Agreement must be in writing and may be given by any commercially acceptable means to the party to whom the Notice is directed at the address of the party as set forth below, or at any other address as that party may later designate by Notice. To Agency: REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS 3200 E Tahquitz Canyon Way Palm Springs, CA 92262 Attn.: David H. Ready, Executive Director With Copy To: Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 12000 Costa Mesa, CA 92626 Attn.: Douglas C. Holland, Agency Counsel To Developer: Endure Investments, LLC 1888 Century Park East, Suite 450 Los Angeles, CA 90067 Attn.: Mark Gabay Any written notice, demand or communication shall be deemed received immediately if delivered by hand and shall be deemed received on the third day from the date it is postmarked if delivered by registered or certified mail. 6.2. Enforced Delay; Extension of Times of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Agreement shall be extended, where delays or Defaults are due to causes beyond the control or without the fault of the party claiming an extension of time to perform, which may include, 26 581350.1 III IIII II IIIIIII II III �aras�e aaof 6 27 0£ ' without limitation, the following: war; acts of terrorism, insurrection; strikes; lockouts; labor troubles; inability to procure materials; power failures; riots; floods; earthquakes; fires; other natural disasters; casualties; acts of God; acts of terrorism; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; unusually severe weather; governmental moratoria; or acts or failures to act of the City or any other public or governmental agency or entity (other than the acts or failures to act of Agency which shall not excuse performance by Agency). Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of Agency's Executive Director and Developer. Notwithstanding any provision of this Agreement to the contrary, the lack of funding to complete the Improvements shall not constitute grounds of enforced delay pursuant to this Section 6.2. 6.3, Transfers of Interest in Site or Aareement. 6.3.1. Prohibition. The qualifications and identity of Developer are very important and of particular concern to Agency. It is because of those qualifications and identity that Agency has entered into this Agreement with Developer. Except as provided as provided in Section 6.3.2, below, no voluntary or involuntary successor in interest of Developer shall, prior to the issuance of the Certificate of Completion, (i) acquire any rights or powers under this Agreement, (ii) make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the Site or the improvements thereon, or (iii) transfer the Project, without the prior written approval of the Agency, except as expressly set forth herein. 6.3.2. Permitted Transfers. Notwithstanding any other provision of this Agreement to the contrary, Agency approval of an assignment of this Agreement or conveyance of the Site or Project, or any part thereof, shall not be required in connection with any of the following: (a) Any transfers to an entity or entities in which Developer or members, directly or indirectly, of the Developer retains a portion of the ownership or beneficial interest and retains management and control of the transferee entity or entities. (b) The conveyance or dedication of any portion of the Site to the City or other appropriate governmental agency, or the granting of easements or permits to facilitate construction of the Project- (c) Any requested assignment for financing purposes (subject to such financing being considered and approved by Agency pursuant to Section 3.8), including the grant of a deed of trust to secure the funds necessary for land acquisition, construction and permanent financing of the Project. 27 58 3591 Illill Illlill I II I III I I II III I I II 10/01�8 0 08 S900E o 28 of 6B In the event of an assignment by Developer under subparagraph (a) above not requiring Agency's prior approval, Developer nevertheless agrees that at least thirty (30) days prior to such assignment Developer shall give written notice to Agency of such assignment and satisfactory evidence that the assignee has assumed the obligations of this Agreement. 6.3.3. Successors and Assigns. All of the terms, covenants and conditions of this Agreement shall be binding upon Developer and their permitted successors and assigns. Whenever the term "Developer' is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided. 6.3.4. Assignment by Agency. Agency may assign or transfer any of its rights or obligations under this Agreement with the approval of Developer, which approval shall not be unreasonably withheld; provided, however, that Agency may assign or transfer any of its interests hereunder to the City at any time without the consent of Developer; provided further that any such assignee of Agency shall assume all of the obligations of Agency hereunder. 6.4. Non-Liability of Officials and Employees of Aaencv- No member, official or employee of Agency or the City shall be personally liable to Developer or any successor in interest, in the event of any Default or breach by Agency (or the City) or for any amount which may become due to Developer or its successors, or on any obligations under the terms of this Agreement. 6.5. Relationship Between Agency and Developer. It is hereby acknowledged that the relationship between Agency and Developer is not that of a partnership or joint venture and that Agency and Developer shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein or in the Attachments hereto, Agency shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Project. Developer agrees to indemnify, hold harmless and defend Agency from any claim made against Agency arising from a claimed relationship of partnership or joint venture between Agency and Developer with respect to the development, operation, maintenance or management of the Site or the Project which claim arises from or is based upon actions by Developer. 28 587359.1 I II�III�IIIIII III IIII�IIIII IIII IIIIIIII III IIIIII�II IIII SH �20 06 25 £06000R 6.6, Agency Approvals and Actions. The Agency shall maintain authority of this Agreement and the authority to implement this Agreement through the Agency Executive Director (or his duly authorized representative). The Agency Executive Director shall have the authority to make approvals, issue interpretations, waive provisions, enter into amendments of this Agreement, sign and approve escrow documents and additional documents, on behalf of the Agency so long as such actions do not materially or substantially change the uses or development permitted on the Site, or materially or substantially add to the costs incurred or to be incurred by the Agency as specified herein. Such actions which may be approved by the Agency Executive Director include extensions of time to perform as specified in the Schedule of Performance, extensions of the Outside Closing Date, and assignments under Section 6.3. All other material and/or substantive approvals, interpretations, waivers or amendments, shall require the consideration, action and written consent of the Agency Board. 6.7. Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. 6.8. Integration. This Agreement contains the entire understanding between the parties relating to the transaction contemplated by this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each party is entering this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. This Agreement includes Attachment Nos. 1 and 2, which together with the Agreement constitute the entire understanding and agreement of the parties, notwithstanding any previous negotiations or agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof 6.9. Real Estate Brokerage Commission. Developer shall be responsible for any commission or finder's fee in connection with this transaction, and Developer agrees to defend and hold the Agency harmless from any claim to any such commission or fee resulting from any action on its part. 6.10. Attorneys' Fees. In any action between the parties to interpret, enforce, reform, modify, rescind or otherwise in connection with any of the terms or provisions of this Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive relief or any other relief to which it might be entitled, reasonable costs and expenses including, without limitation, litigation costs and reasonable attorneys' fees. 6.11. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. Reference to section numbers are to sections in this Agreement, unless expressly stated otherwise. 6.12. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where 29 5813591 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII IIIIIIII III IIII 11111 IIII 10 0�1026n£069 and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement shall be interpreted as though prepared jointly by both parties. 6.13. No Waiver. A waiver by either party of a breach of any of the covenants, conditions or agreements under this Agreement 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 of this Agreement. 6.14. Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party. 6,15. Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the 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, and shall be valid and enforceable to the fullest extent permitted by law. 6,16. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the day escrow opens) and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall mean all holidays as specified in Section 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time. 6.17, Legal Advice. Each party represents and warrants to the other the following.- they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. 30 581359.1 1111111111111111111111111111111111111111111111111111111 10 0eae a0 F, 00R 60 6.13. Time of Essence. Time is expressly made of the essence with respect to the performance by Agency and Developer of each and every obligation and condition of this Agreement. 6.19. Cooperation. Each party agrees to cooperate with the other in this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful or appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements. 6.20. Conflicts of Interest. No member, official or employee of Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she is directly or indirectly interested. 6.21, Time for Acceptance of Agreement by Agency. This Agreement, when executed by Developer and delivered to Agency, must be authorized, executed and delivered by Agency within thirty (30) days after signing and delivery of this Agreement by Developer or this Agreement shall be void, except to the extent that Agency and Developer shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement by Agency. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below. [Signatures on the following page.] 31 581359 1 IIIIIII IIIIIII IIIIIII IIIIII IIII IIIIIIII III IIIII IIII IIII 10 0008$08003G000P "AGENCY" The Community Redevelopment Agency of the City of Palm Springs Dated Camara Attest_ EXECU VE DHRECTOR = M Awry ASS¢ �'�"1�n�"ii Approve as o form` Edward L. Bertrand Assistant Agency Counsel "DEVELOPER" Endure Investments, LLC Dated Its Appr a to form: vau E{vw ,�17 Its 32 581359.1 I III I I I IIIII IIIIII I I III'III�AIIIIII�1 II I�I �II��I za e008--�o�60eeR 33 f All-Purpose Acknowledgment State of California ) County of Los Angeles ) On ff 3 ZOO4 2008 before me, Patti Lavine, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose names 6/are subscribed to the within instrument and acknowledged to me that tTshe/they executed the same in 6 lherhheir authorized capacity(ies), and that by tLM/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executcd 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. aRA� b 4Carnn 1442 MMY Public•Ce111erNp �L�os,,,�Angeles County Signatu eal) ACA...462909.7 II�IIII I�IIIII III IIAI III�II IIII I�IAIAII III IIAII IIII IAII 1e.0198 0of06090R CALIFORNIA ALL-PURPOSE ACKNOWL9DGMENT State of California pp County,of I . l 9 1✓2�5�G�K 1 L On�f,AeKJ �31 before me, � VwI �IG _i� e✓7�rdt l NQ1u �JJ�iG �iT-� Date — Horc Iq'crt Name arc[Title el the Xicor personally appeared �G V t Namelel of Signers) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) I ee subscribed to the within instrument and acknowledged to me that he/she S)executed the same in his/lae the• authorized cyrrlFtwa 6EB 0 capacity(ies), and that by itts/I)er he signature(s) on the Cortlmts IA �1a45699 instrument the person(s), or the entity upon behalf of •-r MoKuy Pu61(c-Calaomta which the person(s) acted, executed the instrument. Rlverl County my comm P tresFeb18.2010f 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand e —and/ official seal. Signature 4 Place Notary Seel Above i9nature of Notary Public OPTIONAL Though the information below is not required by law, It may prove valuable to persons relying on the document and could prevent Fraudulent removal and reattachment of this form to another document. Description of Attached Document (n ((� �I- )_ �j r f 1 Y /t q f , Title or Type of Document:p(S )5l'�rJvl ed IJPVCu� fllGW ewuo-,t &17f ePq 1 / 4 eft Ccl~d r^ aI - Document Date:S�� xc-iM,�e� >Sf Number of Pages 7M /`�/:��,7wr�c�c�Lrr� Signer(5) Other Than Named Above: ! L/s f G cc�n akV1( ���)UG �Td��Q k J Capacity(ies) Claimed bySigner(s) 7 Signer's Name: l/CI VIOL Ct- /CAD-F.rl; Signer's Name: ❑ Individual L3Individual ❑ Corporate Officer—Title(s): F Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑ General _ ❑ Partner—❑ Limited ❑ General _ ❑ Attorney in Fact ❑Attorney in Fact q Trustee Top al thumb here ❑Trustee Top of thumb here ❑ Guardian or Conservator L7 Guardian or Conservator Other:�Xr�Jyrr/2 /JIfGc�pr �[Other:}�{SSiS�r^-f �d��� �j^yJIgner Is Representing: -t o� Signer Is Representing:rt PF"�W1, nn 5 cprqv�uwo ,�Gz�•y rt.l.�o,5 �mML)✓l- lv e 1�w c e c:lv v�2 02007 National NPlary Association-9350 De Soto Ave. RQ 2142902-ChaL^ ovlh CA 01313-2402-v NationalNotaryorg Ilomn5907 Reortler:CallToll-Prec 1.900•876-6627 29©3-d532196 I IIIIII gIIIII III IIII UIII IN IIIIIIII111111111 ttl/tlt 35tlo� 60 tlR Exhibit"A" LEGAL DESCRIPTION APN 677-280-041 (To Be Provided) 33 581350.1 1111111111 IN 11111111 III 111111111 ill 16��a�6 or 6000R Y� EXHIBIT "A" LEGAL DESCIZUTION "IHAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 24604 ON FILE IN BOOT{ 159 OF TA.RCEL MAPS, PAGES 66 AND 67,IN SECTION 18,TOWNSHIP 4 SOUTH, RANGE 5 EAST, S.B.M., COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, BEING MORE ;PARTICULARLY DESCRIBED AS FOLLOWS: E PARCEL A: COMMENCING AT TITS NORTHEAST CORNER OF SAID PARCEL 2; i THENCE SOUTH 89046'20"WEST 53.62 FEET ALONG THE SOUTHERLY RIGHT OF WAY LANE OF MISSION DRIVE TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTIRLY AND HAVING A RADIUS OF 260.00 FEET; THENCE SOUTHWESTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE AND TFIE ARC OF SAID CURVE AN ARC DISTANCE OF 1835 FEET THROUGH A CENTRAL ANGLE OF 04°07'55", A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 04021'35" 'WEST TO TIME POINT OF BEGINNING; THENCE SOUTH 58023'30"EAST 49.85 FEET; THENCE SOUTH 00°13'20"EAST 152.26 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 30.00 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 39.60 FEET THROUGH A CENTRAL ANGLE OF 75038'18'; THENCE SOUTH 75024'58"WEST 4,70' FEET; THENCE SOUTH 89046'26"WEST 25.35' FEET; THENCE NORTH 57053'04"WEST 37.98 FEET TO THE EASTERLY RIGHT OF WAY LINE OF GENE AUTRY TRAIL,ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4905.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 74-40'10" WEST; THENCE NORTHWESTERLY ALONG SAM EASTERLY RIGHT OF WAY LINE THE ARC OF SAID CURVE AN ARC DISTANCE OF 122.80 FEET THROUGH A CENTRAL ANGLE OF 01026'04", A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 73°14'06" EAST; THENCE NORTH 27037726"EAST 72.17 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF MISSION DRIVE,ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHEASTERLY AND RAVING A RADIUS OF 260,00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 13°43747" EAST; 0:14W210872021dra Wings t7w -yV/FFYLU,95 LEGIGdoe Page 1 of 2 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII IIIIIIIIIIII IIII 10�91087 of 8660bo l r, EXHIBIT "A" LEGAL DESCRIPTION THENCE NORTHEASTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE AND TIDE ARC OF SAID CURVE AN ARC DISTANCE OF 42.52 FEET THROUGH A CENTRAL ANGLE OF 09°22'12"TO THE POINT OF BEGINNING; SAM ABOVE DESCRIBED PARCEL"A"CONTAINING 0.45 ACRES MORJs OR LESS AND HIS SHOWN ON ATTACHED EXHIBIT`B", BY THIS REFERENCE BEING MADE A PART HEREOF. Prc aced under the supervision of: LAN SGR 1 � Aate:�� Angela E. rF P.L.S.#8D10 No. 8010 E.pires 12/31/08 STANTEC CONSULTING,INC. Exp. 12/31/08 73.733 Fred Wariag Drive,Suite 100 Palm Desert,CA 92260 (760)346-9844 41, OF CALF { i i i 1 I I Of 14?67214087202IdrawingrtsurvcyUIPFYLU BEL6Gdl..doc Page 2 of 2 III II IIIIII IN 11111111111111111111 IN to vase 38 8 0 OP Si 9eaR Ts a SHEET 1 OF 1 EXHIBIT B II 40' WIDE EASEMENT FOR STREET R/W & PUBLIC UTILITY PURPOSES PER DEEDS RECORDED 04129177 AS INST. NO, 74689 AND 0512JI79 AS INST, N0. 177941 & 177942 i MISS/ONDRIVE 13'_ ~43.4r1 (Rr I paa q. �G2 C1 S89'46_70"w + •53.62' Q Z SCALE 1"=60' M^q W 40' 11l u n i m 5825.J5'S W o S 1f16 CDR. SEC 18 1 CURVE' DATA RAoius DELTA ARC CI 260.00' 04'0755" 16.75' + C2 260.00'1 0972'12" 4252' 551 NO. I BEARING DISTANCE yED LAND SG� L> S75z456"w 4.70 E. Op�GFo 42 1 4457'53'04"w I s11,98' No. 8010 PREPARED UNDER THE Exp. 12/31/08 SUPERW510N OF: 3 `rlgrF CR�\P STANTEC CONSULTING INC. — OF CAA SUITS 1000p WAKING 111WE ANGELA 6. DORM'; P.L.S 8010 DAPS PALM DESERT,CA 92260 $1311/;CC 760346.9844 a.ni�can II III I II I II III IIII I IIII IIII IIIIIIII II II I III I I 1 Gre 10 339 9 5£°60eQFl ATTACHMENT SCHEDULE OF PERFORMANCE ENDURE INVESTMENTS, LLC DISPOSITION AND DEVELOPMENT AGREEMENT MILESTONES COMPLIANCE DATE 1. Open Escrow. Developer and Not later than 14 days from full Agency shall open escrow. execution of the Agreement. 2, Close Escrow. Escrow period. Within 5 days of Conditions Precedent having been satisfied, but not later than 360 days from opening of Escrow (12 months based on 30 days per month). 3. Submittal of Application for Land Within 180 days from full execution of Use Permits. Developer shall the Agreement (6 months based on 30 submit all necessary plans, days per month). including site plans, floor plans and elevations, along with all corresponding fees and applications as required by the City, 4. Permit Issuance. All permits Not later than 360 days from opening required to commence of Escrow. construction shall be issued. 5. Commence Construction. Not later than 90 days from Close of Participant shall have Escrow (3 months based on 30 days commenced construction. per month). 6. Completion of Construction. Not later than 360 days from close of Participant shall complete escrow (12 months based on 30 days construction. per month). 581359.1 2003 0532196 III 1111111111 IN I I III I I�I 111111111111 IN zF/a1/40 of 66 6R ATTACHMENT 2 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Endure Investments, LLC SPACE ABOVE FOR RECORDER'S USE Recording fee exempt per Govt. §27383. Documentary Transfer Tax: $ Based on Full Value of Real Property Conveyed A.P. No.: 677-280-041 GRANT DEED For valuable consideration, receipt of which is hereby acknowledged, The REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic (the "Agency"), acting to carry out the Redevelopment Plan for the Redevelopment Project Area No. 1 ("Redevelopment Plan"), under the Community Redevelopment Law of California, hereby grants to Endure Investments, LLC, a Nevada limited liability company ("Developer"), as of this , 200_, the real property hereinafter referred to as the "Site," described in Exhibit A attached hereto and incorporated herein, subject to the existing easements, restrictions and covenants of record described therein. 1. Subject to DDA. The Site is conveyed in accordance with and subject to the Disposition and Development Agreement entered into between Agency and Developer dated , 2008, (the "DDA"), a copy of which is on file with Agency at its offices located at 3200 E Tahquitz Canyon Way, Palm Springs, CA 92262, as a public record and which is incorporated herein by reference. The DDA generally requires Developer to develop the site into an EZ Lube or equivalent automobile service station (the "Project"), and other requirements as set forth therein. All terms used herein shall have the same meaning as those used in the DDA. 2. Restrictions on Use. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, that upon the date of this Grant Deed, (i) Developer shall devote the Site to the uses specified in the DDA, and (ii) Developer shall construct the Project in accordance with the DDA. All uses conducted on the Site, including, without limitation, all activities undertaken by Developer pursuant to the DDA, shall conform to the Redevelopment Plan and all applicable provisions of the Palm Springs Municipal Code. The foregoing covenants shall run with the land. 1 581359 7 I I II I II I I IIIIII IIIIIII III III IIIII IIII IIIIIIII III III I II II to�e0�raeea3es�ese M1l aC 60 3. Maintenance. The Developer shall maintain or cause to be maintained the interiors and exteriors of the Project and the Site in a decent, safe and sanitary manner, in accordance with the standard of maintenance of similar development within Riverside County, California. If at any time Developer fails to maintain the Project and/or the Site in accordance with this covenant and such condition is not corrected within fifteen days after written notice from the Agency with respect to graffiti, debris, waste material, and general maintenance, or thirty days after written notice from the Agency with respect to landscaping and building improvements (subject to notice and an opportunity to cure pursuant to the DDA), then the Agency, in addition to whatever remedy it may have at law or at equity, shall have the right to enter upon the applicable portion of the Project and the Site and perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Project and the Site, and to attach a lien upon the Project and the Site, or to assess the Project and the Site, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the Agency and/or costs of such cure, which amount shall be promptly paid by Developer to the Agency upon demand. 4. Restrictions on Transfer. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, that upon the date of this Grant Deed and until the Agency's issuance of the Certificate of Completion for the Project: a. Developer shall not make any sale, transfer, conveyance, subdivision, refinancing or assignment of the Site or any part thereof or any interest therein, without the prior written consent of Agency except as permitted by the DDA, b. Developer shall not place or allow to be placed on the Site any lien or encumbrance other than the documents to be recorded pursuant to the DDA, and mortgages, deeds of trust or any other form of conveyance required for acquisition of the Site and financing of the construction of the Project on the Site, and any other expenditures necessary and appropriate to develop the Site pursuant to the DDA. 5. Nondiscrimination. Developer herein covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall Developer itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land and remain in effect in perpetuity. The Developer shall refrain from restricting the rental, sale or lease of the Site on the basis of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry of 2 5813591 IIIIII Iilllll III IIII IIIIII IIII IIIIIIII III IIIIII III IIII 10? 0 Q9 6£9 66F O any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased." In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises." The foregoing covenants regarding discrimination shall run with the land and shall remain in effect in perpetuity. 6. Revesting of Title. a. Agency has the right, at its election, to reenter and take possession of the Site, with all improvements thereon, and terminate and revest in Agency the estate 3 5eiasg i II I I I IIAIII IIIIIII III 1111 II E IN 111111111111111111111 II I1II ie e0043 o�'60eeR conveyed to Developer if after the closing and prior to the issuance of the Certificate of Completion, Developer (or its successors in interest) shall: (1) fail to start the construction of the Project as required by the DDA for a period beginning when Developer receives written notice of such failure from Agency pursuant to Section 5.5 of the DDA and ending on the later of (i) ninety (90) days or (ii) the end of the cure period provided in Section 5.1 of the DDA (subject to extensions pursuant to Section 5.5 of the DDA); or (2) abandon or substantially suspend construction of the Project required by the DDA for a period beginning when Developer receives written notice of such abandoned or suspended construction from Agency pursuant to Section 5.5 of the DDA and ending on the later of (i) ninety (90) days or (ii) the end of the cure period provided in Section 5.1 of the DDA (subject to extensions pursuant to Section 62 of the DDA); or (3) contrary to the provisions of the DDA transfer or allow any involuntary transfer of the Site or any part thereof in violation of the DDA, which is not cured within the notice and cure period in Section 5.1 of the DDA. b. Such right to reenter, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid or limit: (1) Any mortgage or deed of trust permitted by the DDA; or (2) Any rights or interests provided in the DDA for the protection of the holders of such mortgages or deeds of trust. C. Upon the revesting in Agency of title to the Site as provided herein, Agency shall, pursuant to its responsibilities under state law, use its reasonable efforts to resell the Site as soon and in such manner as Agency shall find feasible and consistent with the objectives of such law and of the Redevelopment Plan, as it exists or may be amended, to a qualified and responsible party or parties (as determined by Agency) who will assume the obligation of making or completing the Project, or such improvements in their stead as shall be satisfactory to Agency and in accordance with the uses specified for such Site or part thereof in the Redevelopment Plan. Upon such resale of the Site, the net proceeds thereof after repayment of any mortgage or deed of trust encumbering the Site which is permitted by this covenant, shall be applied: (1) First, to reimburse Agency, all costs and expenses incurred by Agency, excluding Agency staff costs, but specifically, including, but not limited to, any expenditures by Agency in connection with the recapture, management and resale of the Site or part thereof (but less any income derived by Agency from the Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Site or part thereof which Developer has not paid (or, in the event that Site is exempt from taxation or assessment of such charges during the period of ownership thereof by Agency, an amount, if paid, equal to such taxes, assessments or charges as would have 4 581359.1 IIIIIIIIIIIIII III IIII Nil IIII IIIIIIII III IIIIII III 1111 10/B1/440of 800R 2PA2-0532196 been payable if the Site were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the Site or part thereof at the time or revesting of title thereto in Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing Agency, and in the event additional proceeds are thereafter available, then (2) Second, to reimburse Developer, its successor or transferee, up to the amount equal to the sum of (a) the costs incurred for the acquisition and development of the Site and for the improvements existing on the Site at the time of the reentry and possession, and (b) any gains or income withdrawn or made by Developer from the Site or the improvements thereon. Any balance remaining after such reimbursements shall be retained by Agency as its property. In the event Agency exercises its rights under this Section and acquires the Site, Developer shall have no further responsibility for developing the Project; however, the rights established in this Section are not intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy authorized herein or now or hereafter existing at law or in equity. These rights are to be interpreted in light of the fact that Agency will have conveyed the Site to Developer for redevelopment purposes, particularly for development of public parking and commercial uses, and not for speculation in undeveloped land. 7. Rights of Lienholders. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest. S. Holder Not Obligated to Construct Project. The holder of any mortgage or deed of trust authorized by the DDA (including without limitation, all Construction Lenders) shall not be obligated by the provisions of this Grant Deed or the DDA to construct or complete the Project or any portion thereof, or to guarantee such construction or completion; nor shall any covenant or any other provision in this Grant Deed or the DDA be construed so to obligate such holder. Nothing in this Grant Deed or the DDA shall be deemed to construe, permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Grant Deed and the DDA. 9. Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Developer as provided herein, whenever the Agency may deliver any notice or demand to Developer with respect to any breach or default by the Developer in completion of construction of the Project, the Agency shall at the same time deliver to each holder of record of any mortgage or deed of 5 581359.1 111111 IN 111111111111111111111111 16 0�a 45 0$06000R trust authorized by this Agreement (including without limitation, all Construction Lenders) a copy of such notice or demand. Each such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within thirty (30) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this Grant Deed or the DDA shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Project, or any portion thereof (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement reasonably satisfactory to the Agency. The holder, in that event, must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates. Any such holder properly completing such improvement shall be entitled, upon compliance with the requirements of the DDA, to a Certificate of Completion. It is understood that a holder shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Site (or portion thereof) if and to the extent any such holder has within such thirty (30) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. 10. Failure of Holder to Complete Project. In any case where, thirty (30) days after the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any part thereof (including without limitation, all Construction Lenders) receives a notice from Agency of a default by the Developer in completion of construction of any of the Project under this Agreement, and such holder has not exercised the option to construct as set forth in this Grant Deed, or if it has exercised the option but has defaulted hereunder and failed to timely cure such default, the Agency may purchase, without recourse and without representation or warranty (other than if the lender is the holder and beneficiary of the deed of trust), the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. If the ownership of the Site or any part thereof has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder, within sixty (60) days after foreclosure, of an amount equal to the sum of the following: (a) The unpaid mortgage or deed of trust debt (including principal, interest, and all other sums secured by the mortgage or deed of trust) at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (b) All expenses with respect to foreclosure including reasonable attorneys' fees; (c) The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Site or part thereof; 6 581359.1 I I�IIiI III�I�I III IIII IIIIII III IIIIIIII III I�IIIIIIIIIII 10 �1a0860 f66:8W1 (d) The costs of any improvements made by such holder; (e) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency; and (f) Any customary prepayment charges imposed by the lender pursuant to its loan documents and agreed to by the Developer. 11. Right of the Agency to Cure Mortgage or Deed of Trust Default. In the event of a mortgage or deed of trust default or breach by the Developer prior to the completion of the construction of any of the Project or any part thereof, Developer shall immediately deliver to Agency a copy of any mortgage holder's notice of default. If the holder of any mortgage or deed of trust has not exercised its option to construct, the Agency shall have the right but no obligation to cure the default within the same cure periods, if any, given Developer under the mortgage or deed of trust. In such event, the Agency shall be entitled to reimbursement from the Developer of all proper costs and expenses incurred by the Agency in curing such default. The Agency shall also be entitled to a lien upon the Site to the extent of such costs and disbursements. Any such lien shall be unconditionally and fully junior and subordinate to the mortgages or deeds of trust pursuant to this Section. 12. Termination of Covenants. All covenants contained in this Grant Deed shall be covenants running with the land. All of Developer's obligations hereunder except as provided in Sections 5, 6 and 7 above, shall terminate and shall become null and void on November 24, 2034. Every covenant contained in this Grant Deed against discrimination contained in Section 6 of this Grant Deed shall remain in effect in perpetuity. The covenants contained in Sections 5 and 7 above shall terminate as provided therein. 13. Covenants to Benefit Agency. All covenants without regard to technical classification or designation shall be binding for the benefit of Agency, and such covenants shall run in favor of Agency for the entire period during which such covenants shall be in force and effect, without regard to whether Agency is or remains an owner of any land or interest therein to which such covenants relate. Agency, in the event of any breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. 14. Amendments. Both Agency, its successors and assigns, and Developer and the successors and assigns of Developer in and to all or any part of the fee title to the Site shall have the right with the mutual consent of Agency to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants, easements or restrictions contained in this Grant Deed without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Site, However, Developer and Agency are obligated to give written notice to and obtain the consent of any first 7 581359.1 I I III I I I�IIIIIIIIIIIIIIIIIIIIIIIIINIIIIIIIIIIIIIIIIIIIII im1e0047£e6SGOA mortgagee prior to consent or agreement between the parties concerning such changes to this Grant Deed. The covenants contained in this Grant Deed, without regard to technical classification, shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such realty. Any amendment to the Redevelopment Plan which proposes to change the uses or development permitted on the Site, or otherwise proposes a change of any of the restrictions or controls that apply to the Site, shall require the written consent of the first mortgagee and Developer or the successors and assigns of Developer in and to all or any part of the fee title to the Site, but any such amendment which proposes a change affecting the Site shall not require the consent of any tenant, lessee, easement holder, licensee, mortgagee (other than the first mortgagee), trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Site. IN WITNESS WHEREOF, the parties hereto have executed this Grant Deed on the date first set forth above. AGENCY: ACCEPTED BY DEVELOPER: THE COMMUNITY REDEVELOPMENT ENDURE INVESTMENTS, LLC, AGENCY OF THE CITY OF PALM a Nevada Limited Liability Company SPRINGS, a public body, corporate and politic S°JthPZI�- C�p�U'M( By: David H. Ready, Executive e Director ATTEST: --,),4YLDIt2J-Z-P? -4 eno Secrets —5 O P �,r1,LL^ 1 t Gln:z_ L'"- e p .p$ ry A�M '1�0�9P�hi ��, 101. 9 SECR21ARy P �6 �7 APP O AS TO FORM: Agenc ounsel r ppV.Gl,P+,S �+pL&�D 8 581350.1 I I�IIII IIIIIII III����111111 IN IIIIIIII III IIII III IN 201a 4 a022190 g£66SOR All-Purpose Acknowledgment State of California ) County of Loess Angeles ) On 4 L3 LO6� 2008 before me, Patti Lavine,Notary Public, personally appeared C[ , who proved to me on the basis of satisfactory evidence to be the person(s) whose narne(s) is/subscribed to the within instrument and acknowledged to me that &Ishe/they executed the same in er/their authorized capacity(ies), and that by Ks/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 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. *M "ANN LAVINE CommNolon r 17+t16�R '+ Notary public -C011fornto Signature Sital) t *l*r C0 1 11 ACA_462909.1 I IIIIII�AINIII II�IIII IIIIII IIII I�IIIAAI I�I IIIIII�I�I II 19 e098 sofa$S State of California ) )ss. County of Riverside //�� / On S ,/, before me, ( ,uJiz p- / OJ6�Gc�� . Al0 Dale (� ` -t/ pName and Title of Officer personally appeared A clv 'd( . C � /ilG1' J1 My-S / 77,7L. Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/arc subscribed to the within instrument and acknowledged to me that lie/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signatures(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 CYNTWIAA. BERARDI Commission# 1649899 $ ` ,-�... Notary Public-California S _ Riverside County MyComm.ERplreS Fab 18,2010 Signature of Notary Public �����111111111111111 IN IIIIIIII II IIII II III 1a alas 0e£0600eR EXHIBIT "A" LEGAL DESCRIPTION OF THE SITE 9 587359,1 111111 IIII 11111111111 Hill 1111111a,aasa 008 05906 51 oP 60 EXHIBIT "A" LEGAL DESCRIPTION `THAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 24604 ON FILE IN BOOK 159 OF ]PARCEL MAPS,PAGES 66 AND 67,IN SECTION 18, TOWNSHIP 4 SOUTH,RANGE 5 FAST,S.B.M, COUNTY OF RIVERSIDE,STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ]PARCEL A: COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 2; THENCE SOUTH 89046'20"WEST 53.62 FEET ALONG THE SOUTHERLY RIGHT OF WAX LdNE OF MISSION DRIVE TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 260.00 FEET; THENCE SOUTHWESTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE AND T14E ARC OF SAID CURVE AN ARC DISTANCE OF 18.75 FEET THROUGH A CENTRAL ANGLE OF 04°07'55",A LIM RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 04°21'35" NEST TO THE POINT OF BEGINNING; THENCE SOUTH 58023'30"EAST 49.85 FEET; 1 THENCE SOUTH 00013'20"EAST 152.26 FEET TO THE BEGINNING OF A TANGENT Ij CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 30.00 FEET; THENCE SOUTHWESTERLY ALONG TINE ARC OF SAID CURVE AN ARC DISTANCE OF 39.60 FEET THROUGH A CENTRAL ANGLE OF 75038'18'; THENCE SOUTH 75024'58"WEST 4.70' FEET; TMNCE SOUTH 89046'26"WEST 25.35'FEET; THENCE NORTH 57053'04"WEST 37.98 FEET TO THE EASTERLY RIGHT OF WAY LINE OF GENE AUTRY TRAIL.,ALSO BEING THE BEGINNING OF A NON—TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4905.00 FEET,A LAVE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 74°40'10" WEST; THENCE NORTHWESTERLY ALONG SAID EASTERLY RIGHT OF WAY LINE THE ARC OF SAID CURVE AN ARC DISTANCE OF 122.80 FEET THROUGH A CENTRAL ANGLE OF 01026'04",A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 73014'06" EAST; THENCE NORTH 27037'26"EAST 72.11 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF MISSION DRIVE,ALSO BEING THE BEGINNING OF A NON—TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 260.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 13°43'47" EAST; 0:14AS7Zf40B72027druwingsl swvepV7FF7LUBE,LEGAL.doc IPage 1 o1£2 Iillll IIIIIII III IIII i IIII IIII IIIIIIII III IIIIIII II IIII ie/e 0S 688£0600eR i1 EXHIBIT "A" LEGAL DESCRIPTION 'THENCE NORTHEASTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINB AND THE ARC OF SAID CURVE AN ARC DISTANCE OF 42.52 FEET THROUGH A CENTRAL ANGLE OF 09022712"TO THE POINT Of, BEGINNING; SAID ABOVE DESCRIBED PARCEL"A"CONTAINING 0.45 ACRES MORE OR LESS AND AS SHOWN ON ATTACHED E)MMIT"B",BY THIS REFERENCE BEING MADE A PART f-EREOF. Pre ared auder the sapervision.of LAND SGP Date: Angela E. r�P.L.S.#8010 No. 8010 Expires 12/31/08 STANTEC CONSULTING,INC. Exp_ 12/31/08 73.733 Fred Waring Drive,Suite 100r Pabi Desert,CA 92260 1pq \� (760)346-9844 OF CAVtF I1 I O.-Id08721Ap872D21drawingslsurvcyVIFFPZU�LEG.1L.dnc I I Page 2 oIfI2 l 1 1 IIIIIIIIIIIIIII1IIIIIIIII�IIIII� IIIIIIIIIIIIIIII 1°�°1 of EA ATTACHMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Endure Investments, LLC (Space above for Recorders Use.) Recording fee exempt per Govt. §27383. CERTIFICATE OF COMPLETION OF CONSTRUCTION AND DEVELOPMENT THIS CERTIFICATE OF COMPLETION OF CONSTRUCTION AND DEVELOPMENT (the "Certificate") is made by the REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic (the "Agency"), in favor of ENDURE INVESTMENTS, LLC, a Nevada Limited Liability Company (the "Developer"), as of the date set forth below. RECITALS A. The Agency and the Developer have entered into that certain Disposition and Development Agreement (the "DDA") dated , 2008 concerning the redevelopment of certain real property situated in the City of Palm Springs, California as more fully described in Exhibit"A" attached hereto and made a part hereof. B. As referenced in Section 3.9 of the DDA, the Agency is required to furnish the Developer or its successors with a Certificate of Completion upon completion of construction of the Project (as defined in Section 1.0 of the DDA), which Certificate is required to be in such form as to permit it to be recorded in the Recorder's office of Riverside County. This Certificate is conclusive determination of satisfactory completion of the construction and development required by the DDA. C. The Agency has conclusively determined that such construction and development of the Project has been satisfactorily completed. NOW THEREFORE: 1. As provided in the DDA, the Agency does hereby certify that the construction of the Project has been satisfactorily performed and completed, and that such development and construction work complies with the DDA. seisss I III I I 2008-9532196 IIIIII IIIIIII III IIII IIIIII IN IIIIIIII III IIIIIII II IN ie air55®ar 60 eA 2. This Certificate of Completion does not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage or any insurer of a mortgage security money loaned to finance the work of construction of improvements and development of the Site, or any part thereof. This Certificate of Completion is not a notice of completion as referred to in Section 3093 of the California Civil Code. IN WITNESS WHEREOF, the Agency has executed this Certificate as of this day of 200 - THE COMMUNITY REDEVELOPMENT ENDURE: INVESTMENTS, LLC, AGENCY OF THE CITY OF PALM a Nevada Limited Liability Company SPRINGS, a public body, corporate and politic By: By: David H. Ready, Executive Director By: ATTEST: Agency Secretary 58,959, IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII HIM IIIIII 1S60 e E00R 20A8 t�532186 EXHIBIT A LEGAL DESCRIPTION OF THE SITE 5873597 IIIIIIIIIII�II IIIIIIII�IIIIIIIIIIIIIIII IIIIIIIIIIIIIIII ld 510/S0 a£ s GBR EXHIBIT "A" LEGAL,DESCRIPTION -YHAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 24604 ON FILE IN 1300K 159 OF ]PARCEL MAPS,PAGES 66 AND 67,IN SECTION 18,TOWNSHIP 4 SOUTH, RANGE 5 ]BAST, S.B.M., COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,BEING MORE ]PARTICULARLY DESCRIBED AS FOLLOWS: ]PARCEL A: COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 2; THENCE SOUTH 89046520"WEST 53.62 FEET ALONG THE SOUTHERLY RIGHT OF WAY LNE OF MISSION DRIVE TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 260.00 FEET; THENCE SOUTHWESTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE AND TINE ARC OF SAID CURVE AN ARC DISTANCE OF 18.75 FEET THROUGH A CENTRAL ANGLE OF 04007'55",A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 04021'35" "WEST TO THE POINT OF BEGINNING; THENCE SOUTH 58023'30"EAST 49.85 FEET; THENCE SOUTH 00013'20"EAST 152.26 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 30.00 FEET; T MNCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 39.60 FEET THROUGH A CENTRAL ANGLE OF 75038'18'; THENCE SOUTH 75024'58"WEST 4.70' FEET; THENCE SOUTH 89'46'26"WEST 25.35'FEET; THENCE NORTH 57053'04"WEST 37.98 FEET TO THE EASTERLY RIGHT OF WAY LINE OF GENE AUTRY TR AJ L,ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4905.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 74a40'10" WEST; THENCE NORTHWESTERLY ALONG SAID EASTERLY RIGHT OF WAY LINE THE ARC OF SAID CURVE AN ARC DISTANCE OF 122.80 FEET THROUGH A CENTRAL ANGLE OF 01°26'04",A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 73°14'06" EAST; THENCE NORTH 27037'26"EAST 72.17 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF MISSION DRIVE,ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 260.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS SOUTH 13°43'47" EAST; O:140872140872021drawrng&6s eyU7FFYLLI,95 LWALdov Page 1 of 2 IIIIIII IN O,eaa$ of a0R 58 B 60 EXHIBIT "A" LEGAL DESCTZIPTION THENCE NORTHEASTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE AND THE ARC OF SAID CURVE AN ARC DISTANCE OF 42.52 FEET THROUGH A CENTRAL ANGLE DF 09022'12"TO THE POINT OF BEGINNING; SAID ABOVE DESCRIBED PARCEL"A"CONTAINING 0.45 ACRES MORE OR LESS AND AS SHOWN ON ATTACHED EXHIBIT"B» BY THIS REFERENCE 13EING MADE A PART 1 IEREOF. Pr ared under the supervision of- LAND SU Date: Argela E.Ljir4 P.L.S.#8010 No. 8010 EVires 12/31/08 STANUC CONSULUNG,INC. Exp- 12/31/08 73.733 Fred Waring Drive,Suite 100 Palen Desert,CA 92260 JT �P (70)346-9844 OF GALXF 0-1408721408720ZWMwingslsuweYLMFPYLUBELEGU-doc I Page 2lof2 I��III III�I�I I IIII III�II IIII III�I��I I�I IIIIII�II I��I 10 0888 59oF0 BO EXHIBIT " B" SHEET 1 of 1 7� 40' WIDE EASEMENT FOR STREET R/W $ PUBUC UDUTY PURPOSES PER DEEDS RECORDED 04/29/77 AS INST. NO. 74689 AND 08/2.Y/79 AS INST. NO. 177941 & 177942 MISSION DRIVE E (R) P.RG p4aa Cl S89'46_20"W \ , 53.62' ffZt d l Z.� �• �ry� ��Q` 40• ❑ \ !� 1 m g�o: SCALE 10=80' 00 Z �• mod ; n m w iSl �00 ww © a 589'462rW ^C \0 25.35' I S 1116 CM SEC 18 CURVE DATA ARC lL9DIU5 DELTA Cf 2s0.00' 04'0755" 76.75' C2 F60 .1 097272"1 026,21 55' 1 NO I BEARING 1DISTANCE LAND S(/�G L2 N5753�W 37..98' No. 8010 PREPARED UNDER THE Exp. 72/3T/08 SUPERVISION OF. STANTT,C CONSMINGINC• A P( f . O l qrE OF CmA MTE 1 D0 D WAKING bMlE ANCELA V. DORF P.L.S.L6010 DATE PALM DESERT:CA 92260 $f811�C'C 760.7A6,904A wrawn