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HomeMy WebLinkAbout00518C - ENDURE INVESTMENTS, GEIGER LLC, HOME DEPOT VARIOUS AGREEMENTS Recording Requested By First American TitleCom any DOC # 2007-0448619 p 0-1/10/2007 08:008 ree:34.00 Pagc 1 of 10 Recorded in orfieval Records Cauncy of RiversLidc .. Larry W. 9ard 115sesllser, clot y clerk 8 Recor der • When recorded,rerun to- Robert H.Nagle,Esq. (cas) Nagle Law Group,P.C. 4530 East Shea Boulevard I R I ll jPAGEj $1ZEj on IMISCILONGI RFOJ COPY Suite 140 Phoenix Arizona 95029 M A I L 1 465 1 426 POOR NCOR SW NCNG e1Au Re Store No.8526 r; CTY 0M �\0�03G G a1 NON-DISTURBANCE AND A'IrORNMENT AGREEMENT T THIS NON-DISTURBANCE AND ATTORNMENT AGREEMENT(the"Agreement') D` is made as of this q K day of k 2007, by and among COMMUNITY REDEVELOPMENT AGENCY OF THE QW OF PALM SPRINGS ("Agency"), whose address is 3200 East Tahquitz Canyon Way, Palm Springs, CA 92263, Attention; Executive Director, ENDURE INVESTMENTS, LLC, a Nevada limited liability company ("Landlord"), having an address of 1898 Century Park East #450, Los Angeles, CA 90067, GEIGER LLC, a California limited liability company ("Geiger'), having an address of 1888 Century Park East 9450, Los Angeles, CA 90067, and HOME DEPOT U.S.A., INC., a Delaware corporation ("Tenant'),having an address of 2455 Paces Ferry Road,Atlanta,Georgia 30339, WHEREAS, Agency and Geiger have entered into that certain Disposition and Development Agreement, dated December 12, 2005 (such document, and any past and future amendments to saint, being the "DDA"), pursuant to which Geiger has purchased certain real property from the Agency and under which Geiger is obligated to develop and operate a retail shopping center on the real property located at the Northeast comer of Ramon Road and Gene Autry Trail, in the City of Palm Springs, County of Riverside, State of California and more particularly described on Exhibit "A" attached hereto and made a part hereof(the "Shopping Center Land")- WHEREAS, Geiger has conveyed all of its interest in the Shopping Center Land to Landlord. WHEREAS, Agency has certain rights and remedies under the DDA, including, but not limited to, a right to acquire all Or portions of the Shopping Center Land in the event Geiger and/or Landlord fails to perform certain obligations under the DDA. WHEREAS, Landlord has entered into a lease agreement with Home Depot(the "Home Depot Lease Agreement") to lease and demise to Home Depot that portion of the Shopping Center Land more particularly described on Exhibit "B" attached hereto and made a part hereof (hereinafter referred to as the 'Premises"). Home Depot intends to construct certain buildings and improvements on the Premises in accordance with plans and specifications provided by Home Depot and to operate a Home Depot store on the Premises. Sl0.Nq.l WHEREAS, Landlord has entered into a development agreement with Home Depot(the "Home Depot Development Agreement") under which Landlord is obligated to construct certain site improvements on,under and about the Shopping Center Land for the benefit of Home Depot and other expected commercial businesses and in accordance with plans and specifications approved by Home Depot. WHEREAS, Landlord and Home Depot has entered into a Restriction and Easement Agreement or to be recorded in the real estate records of the County of Riverside, California ("RFA") under which such certain easements, covenants and restrictions have been imposed on the Shopping Center Land for the benefit of certain owners, tenants and other occupants of the parcels making up the retail shopping center to be developed and operated on the Shopping Centcr Land. NOW THEREFORE, in consideration of the mutual promises and covenants herein contained and other good and valuable consideration, the receipt of which are hereby acknowledged,the parries agree as follows: I. Agency recognizes that Home Depot has certain rights and obligations under the Home Depot Lease Agreement, the Home Depot Development Agreement, and the REA (collectively the"Operating Documents"). Agency will not take any action to terminate,bar,cut off or otherwise disturb Homc Depot's leasehold estate in the Premises and any other right,title, interest or benefit of, or conferred upon, Home Depot or the Premises under the Operating Documents by reason of any default of Geiger and/or Landlord under the terms of the DDA or by reason of the exercise of any right or remedy of the Agency under the terms of the DDA- Such leasehold estate and all other rights, titles, interests, and benefits of Home Depot and the Premises arising under the Operating Documents will survive, and will not be affected in any manner by the acquisition of all or any portion of the Shopping Center Land by the Agency, Whether pursuant to the DDA or otherwise,or by any expiration or termination of the DDA or by the exercise of any right or remedy of the Agency under the terms of the DDA, subject to Home Depot performing all of its obligations under the Operating Documents. 2- In the event the Agency acquires fee title to the Premises from Landlord,whether pursuant to the DDA or otherwise, and subject to Agency's compliance with the obligations of the"Landlord"under the Home Depot Lease Agreement arising from and after the dale of such acquisition, Home Depot shall attorn to and recognize Agency as the successor landlord under the Home Depot Lease Agreement.Tn such event,Agency shall accept such attomment and shall recognize the Homo Depot Lease Agreement as a direct lease between Home Depot and Agency. Home Depot agrees that upon receipt of written notice from Agency enclosing the deed or court order transferring fee ownership of the Premises to Agency, all rent payments thereafter due under the Home Depot Lease Agreement shall be paid directly to Agency and credited against the rent due under the Home Depot Lease Agreement.Each party agrees to promptly execute and deliver each to the other any documents the other may reasonably request to evidence such attornment.Upon and after such atornment,the Home Depot Lease Agreement shall continue in full force and effect as a direct lease between Agency and Home Depot upon all the terms, conditions and covenants as arc set forth in said Home Depot Lease Agreement, subject to the following provisions: 2 s±wna i a. No Affect on Liability of Landlord. Nothing in this paragraph 2 shall be deemed to limit Home Depot's rights against Landlord in the event of a default by Landlord under the Operating Documents. b. Agency shall not be liable for any act or omission of any prior landlord and Home Depot shall look only to the interest of Agency in the Premises (if and when acquired from the Landlord) for the satisfaction of any obligations of Agency as successor to Landlord- C. Agency shall not be subject to or liable for any offsets or defenses which I•Iome Depot might have against any prior landlord,except for: (1)offsets or defenses for a breach by any prior landlord that Agency received a copy of prior to the date of Agency's acquisition of fee title to the Premises and (2) other offsets and defenses that cumulatively are equal to or less than one twelfth(1112)of the Rent("Rent"means Rent as defined in the Home Depot Lease Agreement). d. For purposes of this Agreement and otherwise, Agency shall not be bound by any amendment of the Operating Documents, or any part thereof, unless consented to in writing by Agency, but Agency will be bound by any written consent granted by a prior landlord in accordance with the Operator Documents before Agency has acquired fee title to the Premises. c. If Agency acquires fee title to the Premises, Agency shall be discharged from all responsibility arising under the Home Depot Lease Agreement after disposing of its interest in the Premises. If Agency acquires fee tide to any other portion of the Shopping Center Land, Agency shall be discharged from all responsibility arising under the other Operating Documents after disposing of any interest in the Shopping Center Land. f. Agency shall incur no responsibility for any security deposits which were paid by Home Depot to any landlord. g. Agency shall not be bound under any notice given by Home Depot to any landlord unless notice is also given concurrently to Agency- h. Home Depot shall not pay, and Agency shall not be bound by,any rent or other periodic payments to any landlord for more than thirty (30) days in advance of the current month. i. Home Depot shall comply with all environmental conditions contained in the Home Depot Lease Agreement. 3. In the event of a default by Geiger and/or Landlord under the terns and conditions of the AAA, in addition to any otter notice required to be given pursuant to said 3 ssnsnn i DDA, Agency shall provide Home Depot with a copy of any written notice of default which Agency gives to Geiger and/or Landlord. In the event of a default by Landlord under the terms and conditions of the Operating Documents, in addition to any other notice required to be given pursuant to said Operating Documents, Home Depot shalt provide Agency with a copy of any written notice of default which Home Depot gives to Landlord; provided, however, that such requirement shall remain in effect only so long as Agency has a right of reversion or a repurchase option with respect to the Premises under the DDA. 4. Geiger and Landlord hereby agree for itself and its respective successors and assigns, that (i) this Agreement does not (a) constitute a waiver by Agency of any of its rights against Geiger and/or Landlord under the DDA or any of the other transaction documents and(b) in any way release Geiger and/or Landlord from its obligation to comply with the terms, provisions, conditions, covenants, agreements and clauses of the DDA and the transaction documents,and(ii)the provisions of the DDA and the other transaction documents remain in full force and effect and must be complied with by Geiger and/or Landlord. 5, All notices or requests under this Agreement shall be given by certified mail to the addresses shown on page one of this Agreement. Each properly addressed notice or request sent by certified mail shall be deemed given and served upon being deposited in the United States mail,postage prepaid. G. Nothing contained in this Agreement shall be interpreted or construed to alrcr or amend the terms and conditions of the DDA as between Geiger and the Agency, it being the intention of the parties that Geiger's and/or Landlord's rights, duties and obligations shall be controlled exclusively by said DDA. 7. This Agreement may be executed simultaneously or in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. [SIGNATURES APPEAR ON FOLLOWING PAGE] 4 S;Yi961 , IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the day and year above set forth. GEIGER; GEIGER LLC, a California limited liability company By: John J. Carroll IV Inc. Its: Managin m 13y: Name: Ca V Titl . Presid t LANDLORD: ENDURE INVESTMENTS,LLC, a Nevada limited liability company By: Excel Property Management Services Inc. Its: Managin ember B : Name: Mark Gabay Title: President TENANT: HOME DEPOT U.S.A.,INC., a Delaware //corporation By: l i Name: An K jorboff Title: bire6dr-Legal 5 s:n+rw i AGENCY: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS By. -:1 Name: Its. ATTEST: pproved by the Community Assistant Secretary Redevelopment Agency by Resolution No.���a. on �0,aJ'o APPROVED AS TO FORM Office of Age Counsel By: Ag ncyCounsel AMOV19 BY VNE :.OMMUNIYT ftgot:V. AGENCY BY RES. Ka .p 6 i3la i STATE OF CALIFORNIA ) )SS. COUNTY OF ORANGE ) / O�&Z 21107, before me, (/ f"Z( �-��1 a No ry for the Slate of California, personally appeared personally known to me � ,, e Awisfietasy—e+'i�ers to be the person(,q— hosc name re subscribed to the within instrument, and acknowledged to me I at he t hey executed the same in h�/their authorized capacityoes,-and that by hi a tei[ turc(+on the instrument the person(s);or the entity upon behalf of which the person(&}acted,executed the instrument. WITNESS my hand and official seal. 115A M.SMITH Commlulon;r 1542011 -�'� Nolary Pubic Caloomlo SIGNATU FN0TARYP LIC Onnge County My Comm.Erpk�Jon 12,20 (SEAL) STATE OF CALIFORNIA ) )ss. COUNTY OFjbS A-179e11 5) On _ d 7 2007, before me, appe�re'd Notary P li�7 in and For the Stale of California, personal �hn J- ('t S aP� / ✓ ersona tv me Qr proved to me on the basis of satisfactory evidence) to be the person(s) w osc name(& is/Itre subscribed to within instrument, and acknowledged tv that he! a/they executed the same in is! er/their authorized capacity(ies), and that his cr/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. Xb" OGNATORF OF NOTARY PUBLIC (SEAL) Etty w eote� ramn+rnn r tMaU9 My CaMn1.6�YrtYQ 1,201 7 STATE OF CALIFORNIA ) COUNTY OF lfllpS) r On (f 2007, before me, L!- � �l4 a otary P c in and for the State of California, person ly appeared eerLsonally known to meSpr proved to me on the basis of satisfactory evidence) to be the person(s) whose nams(s 1 re subscribed to a within instrument, and acknowledged to that re hehhcy executed the same in is cr/their authorized capacity(ies),and that by is cdtheir signature(s) on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. W1TNE55 my hand and official seal. SIGNATURt OF NOTARY PUBLIC W A.Wn" (SEAL) IF 1604W �r CCy n cawoy MM I,Sol STATE OF CALIFORNIA ) )ss. COUNTY oRtvere,(de-) On 2007, before me, &V( Notary Puh717rcnin and for the State of Cali rnia, personally appeared )t K�Qda , personally known to me satisfael�) be the person whose nameW islaTg subscribed to the within instrument, and acknowledged to me that helshekhey executed the same in his/peKtTF* authorized capacity(**, and that by his/heWdteir signatureW on the instrument the person(&or the entity upon behalf of which the person(5-1 acted,executed the instrument- WITNESS my hand and official seal- 3 M G L H BOSWELL COM 01570678 NOTARY PIE=-C11FOPHWg end tCOLOI a�y SIGNATURE OF NOTARY PUBLIC (SEAL) 8 3364061 1 GXIml l'"A^ Legal Description of the Shoonine Center THAT PORTION OF PARCELS 1 AND 2,REMAINDER PARCEL AND LOTS"B"AND "C"OF PARCEL MAP NO. 18787 ON FILE IN BOOK 135 OF PARCEL MAPS,PAGES 53 AND 54,OFFICIAL RECORDS OF RIVERSIDE COUNTY, STATE OF CALIFORNIA. BEGINNING AT THE NORTHEAST CORNER OF SAID REMAINDER PARCEL; TI•IENCE SOUTH 89046'26"WEST 1321.19 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL; THENCE SOUTH 00013'20"EAST 463.66 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 3625.46 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 78°21'45"WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 138.94 FEET THROUGH A CENTRAL ANGLE OF 0201 V45", A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 80033'30"EAST; THENCE SOUTH 89048'13"WEST 1924 FEET TO THE BEGINNING OF A NON- TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4900.00 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 82°03'46"WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 640.99 FEET THROUGH A CENTRAL ANGLE OF 07°29'38",TO A REVERSE CURVE CONCAVE EASTERLY AND HAVING RADIUS OF 20.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 89033'24"EAST, THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.33 FEET THROUGH A CENTRAL ANGLE OF 89045'11"; T14ENCE NORTH 89048'13"EAST 176.58 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 33.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 2335 FEET THROUGH A CENTRAL ANGLE OF 40032'09",TO A REVERSE CURVE CONCAVE NORTHEASTERLY AND HAVING RADIUS OF 17,00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 4V20'22"EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 12.03 FEET THROUGH A CENTRAL ANGLE OF 40°32'09'; THENCE NORTH 89048'I3"EAST 1020.11 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTI•IERLY AND HAVING A RADIUS OF 20.00 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.39 FEET THROUGH A CENTRAL ANGLE OF 89°55'56"; THENCE NORTH 00007'43"WEST 1251.86 FEET ALONG EAST LINE OF SAID PARCEL 2 AND REMAINDER PARCEL TO THE POINT OF BEGINNING. s�uos i EXHIBIT"B" . Ixs;al Description of Premises IN THE CITY OF PALM SPRINGS,COUNTY OF RIVERSIDE, STATE OF CALIFORNIA BEING THAT PORTION OF THE REMAINDER PARCEL AS SHOWN ON PARCEL MAP NO. 18787 ON FILE IN BOOK 135,PAGES 53 AND 54 OF PARCEL MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,MORE PARTICULARLY DESCRIBED AS FOLLOWS: ' COMMENCING AT THE NORTHEAST CORNER OF SAID REMAINDER PARCEL; THLNCE,ALONG THE NORTH LINE OF SAID REMAINDER PARCEL, SOLM-I 89046'26"WEST,21.00 FEET TO THE TRUE POINT OF BEGINNING;THENCE LEAVING SAID NORTH LINE THE FOLLOWING FIVE(5)COURSES: 1, SOUTH 00°07'43"EAST,695.78 FEET; 2. SOUTH 89052'52"WEST,268.83 FEET; 3, SOUTH 70030'49" WEST,303.86 FELT; 4. SOUTH 8905847" WEST, 122.86 FEET; 5. NORTH 00001'36"WEST,795.07 FEET TO SAID NORTH LINE; ALONG SAID NORTH LINE,NORTH 89046'26" EAST,676.96 FEET TO THE TRUE POINT OF BEGEI'NING. THE ABOVE DESCRIBED PARCEL CONTAINS 11.43 ACRES,MORE OR LESS. DOC # 2007-0448616 Recording Regllosted By 07/10/2007 MOOR Fee:NC Page 1 of 7 First American Titlk Company Recerdcd in Official Records • County of Rivcrsidc Larry U. hard Assessor, County Clerk d Recorder Recording Requested By And 1111111111111111111111111111111111111111111111 IT IIII When Recorded Return To: I s R I U I PAGE1 SIZE.I OA I MISC I LQNQj RFC I COPY City Clerk 1 City of Palm Springs _ 3200 East Tahquitz Canyon Way M A I L 1 465 1 426 POOR NCOR SMF CH b3 f Palm Springs, CA 92262 7. h t T: I CTY I . Public Agency-oFre Business T Document Entitled to Free Recording Government Code Section 6103 0�4 EASEMENT DEED AND NON-SUIT AGREEMENT pw�02L/i/� (Aviation Rights) This EASEMENT DEED AND A EEM ENT ("A igation Easement Agreement") s executed and delivered as of this day of 2007 . by Endure Investments, LLC, a Nevada Limited Liability Compa ("Grantor") and the City of Palm Springs, a California charter city("Grantee"). with reference to the following facts: RECITALS A. Grantor is the owner in fee simple of that certain real property (the"Property") located in the City of Palm Springs, County of Riverside, State of California, legally described in Exhibit"A"attached hereto and incorporated herein by reference. B. Grantee is the owner and operator of the Palm Springs International Airport (together with any future expansion thereof or modification thereof being hereinafter referred to as the"Airport'), situated at 3400 East Tahquitz Canyon Way, in the City of Palm Springs, County of Riverside. State of Califomia. C_ This Avigation Easement Agreement is made, executed, and delivered pursuant to and in accordance with the requirements of Section 92.19.00 of the Palm Springs Municipal Code and the conditions of approval of the development of the Property as approved by the City Council of the Grantee GRANT OF AVIGATION EASEMENT FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Grantor,for itself and its successors and assigns, does hereby grant to Grantee, its successors and assigns, for the use and benefit of Grantee, the tenants and licensees of Grantee, and all users of the Airport, the following easements, rights and servitudes, which shall be appurtenant to the Airport, as to Grantee, and in gross, as to the tenants gmml and licensees of Grantee and as to all users of the Airport(collectively the"Avigation Easement"): 1. Passage of Aircraft and Incidental Effects. A. A perpetual nonexclusive easement and right of way for the "Passage of Aircraft" (as hereinafter defined) by whomsoever owned and operated in, to, over, and through all air space of the Property located above the height of the lowest of the "imaginary surfaces"established in relation to the Airport and to each runway at the Airport in accordance with the applicable provisions of Federal Aviation Administration regulations set forth in 14 C F.R. §§77.21, 7723, and 77.25(as the same may be amended from time to time), to an indefinite height above said imaginary surfaces. As used herein, the term "Aircraft" shall mean any contrivance now known or hereafter invented, used, or designed for navigation of or flight in the air, and the term "Passage of Aircraft" shalt include, but not be limited to,Aircraft operation, navigation, and flight; however, except to the extent constituting "Incidental Effects" as provided in Section 1 B below, the term "Passage of Aircraft" shall not include Aircraft landing, explosion, crash, falling objects, dumping, or spillage of liquid fuel causing direct physical injury to persons or direct physical damage to property. B. A perpetual nonexclusive easement and right to cause within, and to enter or penetrate into or transmit through, any improved or unimproved portion of the Property, or any air space above the ground surface of the Property, such noise, sounds, vibrations, electronic interference, fumes, dust, fuel vapor particles, and all other similar effects that may result from or be related to the ownership, operation or maintenance of the Airport, the use of the Airport by Aircraft, the flight of Aircraft to, from or over the Airport, or the flight of Aircraft over the Property (at heights above the "imaginary surfaces"described in Section 1A above), or the taking-off or landing of Aircraft from or at the Airport(collectively, "Incidental Effects"), including, without limitation, any Incidental Effects that may be objectionable or would otherwise constitute a trespass, a permanent or continuing nuisance, personal injury or taking or damage to the Property due to invasiveness, intermittence, frequency, loudness, intensity,toxicity of Aircraft emissions or fuel, interference, emission, odor, annoyance or otherwise. 2. Covenants A. In furtherance of the easements and rights herein granted, Grantor hereby covenants, for itself and its successors and assigns, at all times hereafter, that it will not take any action, cause or allow any electronic, electromagnetic or light emissions, allow any obstruction to exist, or construct any structure on the Property which would conflict or interfere with or infringe Grantee's rights hereunder, including the full use and enjoyment of the Avigation Easement. B. The rights, easements, benefits, waivers, covenants and agreements granted hereunder, including the Avigation Easement, shall continue notwithstanding any increase or other change in the boundaries, volume of operations, noise, or pattern SiCg(1:I of air traffic at the Airport. The Avigation Easement and this Avigation Easement Agreement may not be modified, amended, terminated or abandoned except by execution and delivery of an instrument executed and acknowledged by Grantee, and Grantor agrees that, in the absence of such an instrument, no conduct by Grantee or increase, diminution or change in use of the Avigation Easement shall constitute either an overburdening of the Avigation Easement or a termination or abandonment of the Avigation Easement. C. The parties intend that all waivers, restrictions, covenants and agreements set forth herein relate to the use, repair, maintenance or improvement of the Property or the Airport, or some part thereof, and shall run with the land of Grantor and Grantee, and any grantee, successor or assign of Grantorwho acquires any estate or interest in or right to use the Property shall be bound hereby for the benefit of the Airport and for the benefit of any grantee, successor or assign of Grantee, including, without, limitation, the tenants and licensees of Grantee, and all users of the Airport. 3. General Provisions A. Attorneys' Fees. Should Grantor or Grantee or any of their respective successors or assigns retain counsel to enforce any of the provisions herein or protect their interests in any matter arising under this Avigation Easement Agreement, or to recover damages by reason of any alleged breach of any provision of this Avigation Easement Agreement, the losing party in any action pursued in a court of competent jurisdiction shall pay to the prevailing party all costs, damages, and expenses incurred by the prevailing party, including, but not limited to, attomeys'fees and costs incurred in connection therewith. B. Interpretation. No provision of this Avigation Easement Agreement is to be interpreted for or against any party because that party or that party's legal epresentative drafted such provision. C. Waiver- No violation or breach of any provision of this Avigation Easement Agreement may be waived unless in writing. Waiver of any one breach of any provision of this Avigation Easement Agreement shall not be deemed to be a waiver of any other breach of the same or any other provision of this Avigation Easement Agreement. D. Severability- In the event that any one or more covenant, condition, right or other provision contained in this Avigation Easement Agreement is held to be invalid, void or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Avigation Easement Agreement and shall in no way affect, impair or invalidate any other covenant, condition, right or other provision contained in this Avigation Easement Agreement. E. Additional Documents. In addition to the documents and instruments to be delivered as provided in this Avigation Easement Agreement, Grantor or its successors and assigns, as the case may be, shall, from time to time at the request of Grantee, SYYJIIi 1 execute and deliver to Grantee such other documents and shall take such other action as may be reasonably required to can out more effectively the teens of this Avigation Easement Agreement. F. Governing Law. This Avigation Easement Agreement has been negotiated and entered into in the State of California, and shall be governed by, construed and enforced in accordance with the statutory, administrative and judicial laws of the State of California. G. Integration. This Avigation Easement Agreement, including the exhibits, constitute$the final, complete and exclusive statement of the parties relative to the subject matter hereof and there are no oral or parol agreements existing between Grantor and Grantee relative to the subject matter hereof which are not expressly set forth herein and covered hereby. This is an integrated agreement. IN WITNESS WHEREOF, the parties have executed and delivered this Avigation Easement Agreement as of the date first set forth above. GRANTOR Endur Inv ents, LLC, a Nevada Limited Liabilit o an}t By: Name: _�( I K� Title: ATTEST: By: Name: Title: *RANTEE rk APPROVED BY THE COCirJrAUMTY REDEV. City of Palm Springs, a California aear� r BY Res. MO. 0�03U charter city Approv o Form By: Li Name: Do las Holland, City Attomey Title: APPROVED BY THE COMMUMTY REOSV. AGENCY BY RES, MO. 6.V,01[Signature of Owner must be properly acknowledged and notarized] f��$(, APPROVED BY CRY COUNCIL t ` 3 1b-0 03� STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) 55 ,0667, before mei�- [°art name], a Notary Public, personally appeared o&2 ./. in V, lersonally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)w—iose ` name(s is/ire subscribed to the wi in instrument and acknowledged to me that h he/t ey executed the same i h0her/their authorized capacity(ies), and that by is/per/their signature(s) on the instrument the person(s), or the entity upon behalf of w ich the person(s) acted, executed the instrument. WITNESS my and and official seal. amA � c crmtrtn r isuus Signature /7 (Seal) Nokvy ftg*`'B°gne Lao k FMnE�rwr caa STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss ) On 1999, before me, (insert name], a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the attached Easement Deed and Nan-Suit Agreement (Aviation Rights) dated as of , from Endure Investments, LLC, a Nevada limited liability company, o the City of Palm Springs, a California charter city and is hereby accepted by the undersigned on behalf of the City of Palm Springs and Grantee consents to the recordation thereof by its duly authorized officer. Dated:As of-- U�� 2007 Grantee City of Palm Springs, a California charter city ey r David H. Ready City Manager P : s Thompson. City Clerk APPRO TO FORM: By: Dougla C. Holland, City Attorney 4ti'"OYF0 BY YNE ommuk-ary i(L'-DEV. ABFNCY BY RES. \Ith13'CD 6-�gdj APPROVED BY CITY COL't;njf PO�jl8L rxFrrsiT A" Leeni_Ilescription of the Shppping renter THAT PORTION OF PARCELS I AND 2,REMAINDER PARCEL AND LOTS'B"AND "C"OF PARCEL MAP NO. 18787 ON FILE IN BOOK 135 OF PARCEL MAPS,PAGES 53 AND 54,OFFICIAL RECORDS OF RIVERSIDE COUNTY,STATE OF CALIFORNIA. BEGINNING AT THE NORTHEAST CORNER OF SAID REMAINDER PARCEL; THENCE SOUTH 89046'26"WEST 1321.19 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL; THENCE SOUTH 00013'20"EAST 463.66 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 3625.46 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 7802V45" WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 138.94 FEET THROUGH A CENTRAL ANGLE OF 02011'45",A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 80033'30"EAST; THENCE SOUTH 89048'13"WEST 19.24 FEET TO THE BEGINNING OF A NON- TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4900.00 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 82003'46"WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 640.89 FEET THROUGH A CENTRAL ANGLE OF 07029'38",TO A REVERSE CURVE CONCAVE EASTERLY AND HAVING RADIUS OF 20.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 89633'24"EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.33 FEET THROUGH A CENTRAL ANGLE OF 89045'11'; THENCE NORTH 89048'13"EAST 176.58 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 33.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 23.35 FEET THROUGH A CENTRAL ANGLE OF 40032'09",TO A REVERSE CURVE CONCAVE NORTHEASTERLY AND HAVING RADIUS OF 17,00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 40020'22"EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 12.03 FEET THROUGH A CENTRAL ANGLE OF 40032'09"; THENCE NORTH 89°48'13"EAST 1020.11 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 20.00 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.39 FEET THROUGH A CENTRAL ANGLE OF 89055'56'; THENCE NORTH 00007'43"WEST 1251.96 FEET ALONG EAST LINE OF SAID PARCEL 2 AND REMAINDER PARCEL TO THE POINT OF BEGINNING. a�ai DOC # 2007-0472978 07/20/2007 08:00A Fee.NC Page 1 of 10 Recorded in Official Records County of Riverside S Larry W. Ward Assessor, County Clcrk & Recorder WHEN RECORDED, RETUlR11N,T61 L �� II I II I I II II I I II III �� Department of Building & SaF�t s R N PAGE I SIZE I DA MISC LONG RFD COPY City of Palm Springs e Attn: Gi"efl3niirg �ieial¢A CnTr I ' - Pl 3200 Taquitz Canyon Way 4$5426PCOR N Ew M Palm Springs, CA 92263-2743 a rr GRANT OF EASEMENT FOR PUBLIC YARD -" THE SPRINGS SHOPPING CENTER,PALM SPRINGS, CALIFORNIA This agreement ("Public Yard Easement") is entered into as of dune M, 2007 by and between Endure Investments, LLC, a Nevada limited liability company ("Endure"), and the City of Palm Springs, a municipal corporation ("City"). RECITALS A. Endure is the fee Owner of that parcel of real property located in the City of Palm Springs, County of Riverside, State of California, described in Exhibit "A" attached hereto and incorporated herein by reference ("Parcel A")- B. Endure is also the fee Owner of those parcels of real property located in the City of Palm Springs, County of Riverside, State of California which Parcel A is a part of and which is particularly described in Exhibit "A-1" attached hereto and incorporated herein by reference ("Site") C. The above referenced parcels which are owned by Endure, are being developed together as the "Site" as depicted on rite approved Site Plan attached hereto and incorporated herein in Exhibit 'B". Endure is in the process of developing the Site as a commercial shopping center which includes a retail building for Home Depot ("Malor A") and a retail building known as building B (`Building B")also as depicted on Exhibit B. D. California Building Code ("CBC") Section 505.2 authorizes the construction of one- or two-story buildings of an "unlimited area" if such buildings have an approved automatic sprinkler system and are "surrounded and adjoined by public ways or yards not less than 60 feet in width F. Endure desires that the Major A and Building B be approved by the buiulding department of the City pursuant to CBC Section 505.2 and accordingly, Endure has designed Major A and Building B to include automatic sprinkler systems and desires to create a 60 foot public yard that will adjoin Major A and Building B which shall be accomplished by granting to the City as a "Public Yard Easement" (Parcel A) as shown on Exhibit "B". G. The City and Endure desire to record this Public Yard Easement to ensure that the non- buildable public yard areas that surround and adjoin Major A and Building B will remain unobstructed unless otherwise allowed by the City building department. NOW, THEREFORE, Endure declares, covenants and agrees, by and for themselves, their heirs, executors slid assigns, and all persons claiming under or through them that the Site shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied subject to the restrictions hereinafter set forth, which restrictions are established expressly and exclusively for the use and benefit of the Site. TERMS AND CONDITIONS 1. Grant of Easement. Endure hereby grants this non-exclusive Public Yard Easement to provide a minimum of 60 feet (measured perpendicular to the building faces) of non-buildable open yard space between the Major A and Building B in order that the entire perimeter of the Major A and Building B be surrounded and adjoined by a yard whose depth is no less than 60 feet measured perpendicular to tlue building .faces . This area is necessary to allow adequate fire safety space around these large buildings and is required pursuant to CBC Section 505,2, No buildings, as defined in the California Building Code shall be located on the Public Yard Easement. Construction adjacent to the Public Yard Easement shall be limited to only those types of structures which are authorized by CBC Section 505.2. Moreover, all buildings within or adjacent to the Public Yard Easement Areas shall have an approved automatic sprinkler system and shall be a minimum of type VN construction with at least a class "B" roof covering assembly pursuant to CBC Section 504.2. Any wall of any building within or adjacent to the Public Yard Easement that is adjacent to a common property line or parcel line shall be constructed with one hour walls at each of the adjacent or abutting buildings to create a combined minimum fire rated assembly of two hours and shall include parapets, as required by CBC Section 709 4, when the proximity to a property line requires mitigation. This Public Yard Easement shall be appurtenant to the Site. 2. Non-exclusive Easement. The Public Yard Easement is nonexclusive and Endure hereby reserve and retain the right to use of the land underlying the Public Yard Easement for(i)parking, driveways, sidewalks, curbs and gutters (ii) low profile landscaping, (W) fire hydrants, (iv) light standards, and(v) any other structures or improvements permitted by CBC section 504 2 or other applicable law and approved by the City. The Public Yard Easement shall not be occupied by trash enclosures, loading docks or other structures which would impede fire access to the Buildings. Nevertheless, if approved by the City, a loading dock may be constructed adjacent to one of the Buildings where there remains an additional 60 feet or more of open space within the Public Yard Easement. Similarly, the creation of the Public Yard Easement shall not prohibit the expansion of either of the Buildings, if approved by the City, where there will remain an additional 60 feet or more of open space within the Public Yard Easement adjacent to the expanded area. 3, Expansion of the Easement, Should Endure desire to expand one of the Buildings or add a new loading dock or other structure in a manner which would reduce any portion of the existing Public Yard Easement to a measurement that is less than sixty feet, Endure may not undertake such expansion or installation until the parties have executed a written agreement to modify this agreement to modify the location of the Public Yard Easement to ensure that it continues to extend to a 60-foot width around the entire perimeter of the Buildings or structures as expanded or installed. 4. Benefit of Easement. The Public Yard Easement granted herein is for the benefit of Endure and any successors or assigns of the Site. 5. Commencement of Easement. The Public Yard Easement contained herein shall commence upon recordation of this Public Yard Easement, 6. Duration of Easement. The Public Yard Easement shall remain in effect as long as the Buildings exist or until the City records a release of this Public Yard Easement. The City shall III II IIII I II I I III II III III I IIIII II III Rr za 2of700760R record a release of this Public Yard Easement if Endure, or its successor in interest, send the City a written notice that (i) the California Building Code has been amended to eliminate the requirement of a 60-foot easement as a condition on a building with unlimited floor area, or (ii) Endure has demolished the Buildings, and City staff has confirmed that such notice is accurate. Upon such occurrence, the City shall execute and deliver any documents necessary to release this Public Yard Easement. 7, Maintenance, Repair and Taxes. The maintenance, repair and pa}rnent of any real property taxes and assessments relating to the Public Yard Easement granted heroin shall be bome by Endure, or its successor in interest for the parcel upon which each portion of the Public Yard Easement is located,. S. Permitted Use. Endure and any subsequent owners of the Site shall use or permit the use of the Public Yard Easement solely for the purposes stated in Sections 1 and 2 hereof. 9. Successors and Assigns This Public Yard Easement and all rights and duties of Endure or its successor in intcres, shall nm with the land and inure to the benefit of and be binding upon the heirs, successors and assigns of the parties hereto. 10. Indemnity. Endure, and any subsequent owners of the Site, agree to defend and hold the City harmless from all claims, damages, and liabilities, including reasonable attorneys' fees and costs of suit, resulting from any actual or alleged accident, injury, loss or damage whatsoever occasioned to any person or property of any person as shall occur on that Endure's property reason of ibe Public Yard Easement granted herein. 11. Transfer and Assignment. Endure shall not assign, transfer, convey or delegate any of their rights and duties with respect to the Public Yard Easement or under this agreement, except as part of the assignment, transfer or conveyance of the property to which the Public Yard Easement is appurtenant. Any other attempted assignment of the Public Yard Easement, whether voluntary or involuntary or by operation of law, shall be void and of no effect. Nothing contained in this agreement does, or shall be construed to, limit in any way the right and ability of Endure to transfer, sell or encumber its property or the Site. 12 Recitals Incorporated. The recitals set forth above are incorporated herein as if set forth in full, 13 Miscellaneous Provisions. (a) There are no representations, warranties or other agreements as to the matters described in this agreement except as expressly stated herein, and this agreement fully states the extent of any obligation of Endure as to such matters. (b) No change, amendment, alteration or revision of this agreement shall be valid unless in writing and signed by Endure or any successor in interest of the Site and the City of Palm Springs. (c) 1n any action between the parties to this agreement arising out of this Public Yazd Easement, the prevailing party in such action shall be awarded, in addition to any damages, injunctive or other relief, its reasonable costs and expenses, including attorneys'fees. (d) This agreement shall be interpreted, enforced and governed by the laws of the State of II I� IIII II I IIII 11 IIII II e�2 e£08 10 ,e aeR California. (e) Endure represents that as of the effective date hereof(i) they are the sole owners of the Site, (ii) they have the authonty to grant this Public Yard Easement, and (iii) this Public Yard Easement is a valid and binding obligation of Endure. 14. Counterparts. This Agreement may be executed in any number of counterparts, each of which,when executed and delivered, shall be deemed an original, but such counterparts shall together constitute one and the same instrument Owner Endur its, LLC, Levada linuted liabi corporation Its: Managing Member on June y LL 2007 City CITY OF PALM SPRINGS, CALIFORNIA, a municipal corporation ?ftm&�T-_12007 IIII II II III II II IIII II III II I I IN 01/ 6P 420 of 10 00R State of California CALIFORNIA ALL-PURPOSE County of Lt% e ss' CERTIFICATE OF ACKNOWLEDGMENT On �ll/Yc¢ U a�c` l a ' be4ore m ---�l_� -L 4Pr4lmorf Nifynr nl mrn vy. -At KLJD / tLJD I.iC I personally appeared AggLle 600); raniI r I N j r r t o ipri:n personally known tome -or- \'��ved to me on the basis of satisfactory evidence: — — �-eorm(s)olidcntlflcauon G �� ❑ credible witness(es) to be the persorip4-whose nameWipare subscribed to the within instrument and acknowledged to me that ee he/they executed the same in6 her/their authorized capacityt�_4), and that by(�her/their signature% on the instrument the person( or the entity upon behalf of which the person(&},acted, executed the instrument. WITNESS my hand and official seal. 1�ISirAMICH jQConrnYMvn*IW421 HA,y Pubic-calIll 'MVCAx=.b"wAuq17 2(Alt (sea)) OPTIONAL INFORMATION Nrhnugh the rnfnrmnnnn in rhrs section is nal required by lain If could preveru trOUCIUIerl!removal and reattachment of this acknowledgment ro an unnuth�nrized dncurnent and mny prove usrfirl rn prisons rrlyrng on rhr nrrnrhrd dnannent Description ofAU,)ched Document Z m©© The preceding Cerullcate of `,ckr)owIedgrnenL is attached to a document ni¢^ /r ''Addiriclial Sigii&(S) icner{s)Thumu rmt(s) piled/for She purpose of rno gAm-�*�ti+dc' sat ❑ s J r M1 Nvf n Other M1 © containing ®e' pages, and dated _ L01�1/0`7 The signei(s) capacity of auihonty Is/arc as I—i Individual(,) 71 At orney-m-Fact iseCorporate Cticer(s) P/Lw1 G[Pq .-.-.---.--.. i ❑ Guaidian/Conseivacor ❑ Parmei-Limited/General �w I Truscee(s) . ❑ Oil lei r+� rcpresennng: -- Nalna(s)of I'c,on(s)m Lnnryllc;l�I r]nrr i;Hcprrsrn;lnr) ----,rCopynnhi]ool Notary Aularylm ?351pth5[ D,,IvolnesiA5031]-3aP FwmA 02 ONroI in lr-rndm tau roll-Oan verz}1n-nSxH nr vlvlr u.nn rhr inrrrnnr,r http//wwwihrnn vyhnprnm LARRY W. WARD Recorder COUNTY OF RIVERSIDE P.O.Bpx 751 * * ASSESSOR-COUNTY CLERK-RECORDER IWvc`side,CA 92502-0751 C NOTARY CLARITY Under the provisions of Government Code 27361.7, 1 certify under the penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary: Commission #: 5 b 54-�—1 Place of Execution 1,1�7 At3nUFS c,00 CttN Date Commission Expires: . _ �L (�• .� , �Q� Date: P Q T Signature: Printed Name: F_j:F RAAERy-,- 111111111 IN F, �a 60£�_o��eR EXFTIBIT "A" LEGAL DESCRIPTION THAT PORTION OF THE REMAINDER PARCEL OF PARCEL MAP NO. 18787 ON FILE 1N BOOK 135 OF PARCEL MAPS, PAGES 53 AND 54, OFFICIAL RECORDS OF RTVERSIIJE COUNTY, STATE OF CALIFORNIA. PARCEL A: COMMENCING AT THE NORTHEAST CORNER OF SAID REMAINDER PARCEL; THENCE SOUTH 89046'26" WEST 666.46 FELT ALONG THE NORTH LINE OF SAID REMAINDER PARCEL TO THE POINT Ole' REG(NNING; THENCE SOUTH 00001'36" EAST 485.47 FF.F-.T; THENCE NORTH 89051'08" WEST 60.00 FEET; THENCE NORTH 00001'36" WEST 485.08 FEET; THENCE NORTH 89046526" EAST 60,00 FEE,r TO THE POINT OF BEGINNING. SAID ABOVE DESCRIBED PARCEL "A" CONTAINING 0.67 ACRES MORE OR LESS AND AS SHOWN ON ATTACHED EXHIBIT "B", BY THIS REFERENCE BEING MADE A PART I lEREOF. Prepared under the supervision of: n n\r)h Date: � , r•" r.�i` cu w Angela t.Dorf,P.L.S. ll8� 10 , n a G o Expires 12/31/08 { w- ' STANTEC CONSULTING, INC. �© 1, I / Tor G cu 73-733 Fred Waring Drive, Suite lUU :. a Palm Desen, CA 92260 (760) 346-9844 U.IJIIdi?IJOS7SOSIehznvingsLeurnp+INU BUILD Ldne -- Page 1 of I EXHIBIT " B" SHEET 1 of 1 I N89'4626"£ 60.00' N89'4626"£ 566,46' P.O.a P.O.C. ' i � W PARCEL 'A m 0.67 AC i N89'51'08"W 60.00' I Iz = r SCALE 1"=200' .............. ........... .... i.._I RAMON ROAD SED LAND 7 E. G WNV V �v No. 8010 V r©Ill pjN CO V a� PREPARED UNDER THE Exp. 12/31/08 SUPERVISION OF": STANTEC CONSULTING INC. 3EU WARING DRIVE SUITE00 XNGELAI E DORF, P.L.S 8010 DATE PALM DESERT,CA 92260 Stante[ 760.3d6.96AI .11mmm Eir 1 �Is I 211PIP"MIROMM, iJI -S All lilt V,LUU7 I Ml "AT rlll IM I I jll "aulyllll' an D ,�f 41AM"' di Fl I," 77' Illrr r 4 11—A 6K I) --M-1 I =Ts �]I 10 EE 7 IM 15117-177,IFFi ­7 -i'll 11H 111 1 El ��l FF of LI [I -Lill of 10 PALM Sp a w� •per �^ = City ®f Palm Springs * Office of the City Clerk * H�RPORnTEO T9' ' 3200 E.Thliquirz(,anyun Way • Pahn Springs, California 92262 CqC l FO R�\P Tel (760) 323-5204 • l-ax: (760) 322.8332 ^ Wcb: www.palmspnngs-ca.guv CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by GRANT OF EASEMENT FOR PUBLIC YARD, THE SPRINGS SHOPPING CENTER, PALM SPRINGS, CALIFORNIA dated: June 29, 2007 from, Endure Investments, LLC Grantor, to the City of Palm Springs, a municipal corporation and charter city, Grantee, is hereby accepted by the City Clerk of said City of Palm Springs, on this 291h day of June, © 2007, pursuant to authority granted by the City Council of said City, by Resolution No. ti o� 20255 made on the 16th day of January, 2002, and the Grantee consents to recordation Y G G �© thereof by the City Clerk, its duly authorized officer. om N N l 0 ' 0 Dated at Palm Springs, California, this 29th day of June, 2007. MEMO I� JAMES THOMPSON City Clerk Posr Office Box 2743 ° Palm Springs, California 92263-2743 INDEMNITY AGREEMENT This Indemnity Agreement is made as of QZ " _:@MIE5 2007 ("Effective Date") by and between the following entities, referred to herein as the Parties: City of Palm Springs, a California charter city ("City") Mailing Address: Office of the City Manager 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Attention: City Manager and City Attorney and Endure Investments, LLC, a Nevada Limited Liability Company ("Owner") Mailing Address: 1888 Century Park East#450 Los Angeles, CA 90067 Attention: John Carroll RECITALS WHEREAS, Owner owns the property located at 5200 E. Ramon Road, located in the City of Palm Springs, County of Riverside, State of California, more particularly described on Exhibit"A" attached hereto and incorporated herein by reference("Property"), and WHEREAS, Owner desires to develop the Property into a commercial and retail shopping center and entered into a Disposition and Development Agreement with the City of Palm Springs Community Redevelopment Agency ("Agency") on December 5, 2005 ("DDA"); and WHEREAS, Owner obtained preliminary approval from the Palm Springs Planning Commission as Case 5.0984 PD-291 on September 28, 2005 and the Palm Springs City Council on October 19, 2005 as Resolution No. 21433 to undertake the proposed development, which would be known as The Springs Commercial Center ("Springs"); and WHEREAS, it was determined that as part of such Resolution No. 21433, a condition to the final acceptance and approval by the Palm Springs Planning Commission and the Palm Springs City Council for the development and completion of the Springs would be the compliance with and satisfaction of certain conditions of approval ("Conditions"), and WIMRBAS, one such Condition for the development of the Springs is the indemnification of City by Owner for certain acts City may now or in the future undertake. NOW THEREFORE, in consideration of the above Recitals, City's approval o£PD-291, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows: ;;(Sv, I AGREEMENT 1, Indemnification: Specifically excluding those acts that are solely the result of the gross negligence or willfull misconduct of the City, Owner shall defend, indemnify, and hold harmless City,its agents, officers, and employees from any claim, action , or proceeding against City or its agency, officers or employees to attach, set aside, void or annul an approval of City, its legislative body, advisory agencies, or administrative officers concerning Case 5.0984-PD-291. 2. Notice of Claim: City shall promptly notify Owner of any such claim, action, or proceeding against City. If City fails to promptly notify Owner of any such claim, action, or proceeding or fails to cooperate fully in the defense, Owner shall not, thereafter, be responsible to defend,indemnify, or hold harmless City. 3, Payment of Legal Costs: Upon receipt of notice of a claim, action, or proceeding against City, Owner will either undertake defense of the matter and pay City's associated legal costs or will advance funds to pay for defense of the matter, by the City Attorney. Notwithstanding the foregoing, City retains the right to settle or abandon the matter without Owner's consent, but should it do so, City shall waive the indemnification herein, except, City's decision to settle or abandon a matter following an adverse judgment or failure to appeal shall not cause a waiver of the indemnification rights as applicable to such judgment. 4. Severability: The provisions of this Indemnity Agreement shall be deemed independent and severable and the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not effect the validity or enforceability of any other provision. 5. Counterparts: This Agreement may be executed in counterparts, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original, and all such counterparts together shall constitute one and the same instrument. 6. Authority of Signatories to Agreement: Each person executing this Indemnity Agreement represents and warrants that he or she is duly authorized and has the legal capacity to execute and deliver this Indemnity Agreement on behalf of the parties for which execution is made. Each party represents and warrants to the other that the execution of this Indemnity Agreement and the performance of such party's obligations hereunder have been duly authorized and that the Indemnity Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. (Signatures on Following Page) 2 �:156i 1 IN WITNESS WHEREOF, the parties hereto have executed this Covenant Agreement as of the Effective Date OWNER Endure Inves"tnrents, LLC, a Nevada Limited Liability Co pant By: _ Name. Title: By: Name- Title- CITY City of Palm Springs, a California charter city By ��r% C , ? `L � ,•;l + 'IJYiv,1 7 DavidH. Ready City Manager .ATT T: - By APPROVED BY CITY COUNCIL es Thompson 1� City Clerk - APPRo � s xo xoRNI• By: �7/t�� Dougla C. Holland City Atitorney 3 cvn,r;.ii EXIOB1T"A" Legal_Description of the Sh000iug Center THAT PORTION OF PARCELS 1 AND 2, REMAINDER PARCEL AND LOTS `B"AND "C" OF PARCEL MAP NO. 18787 ON FILE IN BOOK 135 OF PARCEL MAPS,PAGES 53 AND 54, OFFICIAL RECORDS OF RIVERSIDE COUNTY, STATE OF CALIFORNIA. BEGINNING AT TI4E NORTHEAST CORNER OF SAID REMAINDER PARCEL; THENCE SOUTH 89046'26" WEST 1321.19 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL; THENCE SOUTH 00013'20"EAST 463.66 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 3625.46 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 78021'45" WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 138.94 FEET THROUGH A CENTRAL ANGLE OF 02-11'45", A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 80033'30"EAST; THENCE SOUTH 89048'13" WEST 1924 FEET TO THE BEGINNING OF A NON- TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4900,00 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 82°03'46"WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 640.89 FEET THROUGH A CENTRAL ANGLE OF 07029'38", TO A REVERSE CURVE CONCAVE EASTERLY AND HAVTNG RADIUS OF 20.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 89033'24" EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.33 FEET THROUGH A CENTRAL ANGLE OF 89'45'11"; THENCE NORTH 89048'13"EAST 176.58 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 33.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 23.35 FEET T14ROUGH A CENTRAL ANGLE OF 40032'09", TO A REVERSE CURVE CONCAVE NORTHEASTERLY AND HAVING RADIUS OF 17.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 40°20'22"EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 12.03 FEET THROUGH A CENTRAL ANGLE OF 40032'09"-, THENCE NORTH 89°48'13"EAST 1020.11 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY"AND HAVING A RADIUS OF 20.00 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.39 FEET THROUGH A CENTRAL ANGLE OF 89°55'56'; THENCE NORTH 00007'43" WEST 1251.86 FEET ALONG CAST LINE OF SAID PARCEL 2 AND REMAINDER PARCEL TO THE POINT OF BEGINNING. omm 1 When recorded, return to: Robert H. Nagle, Esq. (eas) Nagle Law Group, P.C. 4530 East Shea Boulevard Suite 140 Phoenix Arizona 85028 Re: Store No. 8526 �\O 2ks _ NON-DISTURBANCE AND ATTORN'MENT AGREEMENT THIS NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the "Agreement") is made as of this A `day of / , 2007, by and among COMMUNITY REDEVELOPMENT AGENCY OF THE C OF PALM SPRINGS ("Agency"), whose address is 3200 Fast Tahquitz Canyon Way, Palm Springs, CA 92263, Attention: Executive Director, ENDURE INVESTMENTS, LLC, a Nevada limited liability company ("Landlord"), having an address of 1888 Century Park East #450, Los Angeles, CA 90067, GEIGER LLC, a California limited liability company ("Geiger"), having an address of 1888 Century Park East #450, Los Angeles, CA 90067, and HOME DEPOT U.S.A., INC., a Delaware corporation ("Tenant"),having an address of 2455 Paces Ferry Road, Atlanta, Georgia 30339. WHEREAS, Agency and Geiger have entered into that certain Disposition and Development Agreement, dated December 12, 2005 (such document, and any past and future amendments to same, being the "DDA"), pursuant to which Geiger has purchased certain real property from the Agency and Linder which Geiger is obligated to develop and operate a retail shopping center on the real property located at the Northeast corner of Ramon Road and Gene Autry Trail, in the City of Palm Springs, County of Riverside, State of California and more particularly described on Exhibit "A" attached hereto and made a part hereof (the "Shopping Center Land"). WHEREAS, Geiger- has conveyed all of its interest in the Shopping Center Land to Landlord. WHEREAS, Agency has certain rights and remedies under the DDA, including, but not limited to, a right to acquire all or portions of the Shopping Center Land in the event Gcigcr and/or Landlord fails to perform certain obligations under the DDA. WHEREAS, Landlord has entered into a lease agreement with Home Depot (the "Home Depot Lease Agreement") to lease and demise to Home Depot that portion of the Shopping Center Land more particularly described on Exhibit "B" attached hereto and made a part hereof (hereinafter referred to as the "Premises"), Home Depot intends to construct certain buildings and improvements on the Premises in accordance with plans and specifications provided by Home Depot and to operate a Home Depot store on the Premises. i"M0G I WHEREAS, Landlord has entered into a development agreement with Home Depot (the "Home Depot Development Agreement") under which Landlord is obligated to construct certain site improvements on, under and about the Shopping Center Land for the benefit of I•Iome Depot and other expected commercial businesses and in accordance with plans and specifications approved by Home Depot. WHEREAS, Landlord and Home Depot has entered into a Restriction and Easement Agreement or to be recorded in the real estate records of the County of Riverside, California ("REA") under which such certain easements, covenants and restrictions have been imposed on the Shopping Center Land for the benefit of certain owners, tenants and other occupants of the parcels making up the retail shopping center to be developed and operated on the Shopping Center Land. NOW THEREFORE, in consideration of the mutual promises and covenants herein contained and other good and valuable consideration, the receipt of which are hereby acknowledged, the parties agree as follows: 1. Agency recognizes that Home Depot has certain rights and obligations under the Home Depot Lease Agreement, the Home Depot Development Agreement, and the REA (collectively the "Operating Documents"). Agency will not take any action to terminate, bar, cut off or otherwise disturb Home Depot's leasehold estate in the Premises and any other right, title, interest or benefit of, or conferred upon, Home Depot or the Premises under the Operating Documents by reason of any default of Geiger and/or Landlord under the terms of the DDA or by reason of the exercise of any right or remedy of the Agency under the terms of the DDA. Such leasehold estate and all other rights, titles, interests, and benefits of Home Depot and the Premises arising under the Operating Documents will survive, and will not be affected in any manner by the acquisition of all or any portion of the Shopping Center Land by the Agency, whether pursuant to the DDA or otherwise, or by any expiration or termination of the DDA or by the exercise of any right or remedy of the Agency under the terms of the DDA, subject to Home Depot performing all of its obligations under the Operating Documents. 2, In the event the Agency acquires fee title to the Premises from Landlord, whether pursuant to the DDA or otherwise, and subject to Agency's compliance with the obligations of the "Landlord" under the Home Depot Lease Agreement arising from and after the date of such acquisition, Home Depot shall attor to and recognize Agency as the successor landlord under the Home Depot Lease Agreement. In such event,Agency shall accept such ahorment and shall recognize the Home Depot Lease Agreement as a direct lease between Home Depot and Agency. Home Depot agrees that upon receipt of written notice from Agency enclosing the deed or court order transferring fee ownership of the Premises to Agency, all rent payments thereafter due under the Home Depot Lease Agreement shall be paid directly to Agency and credited against the rent due under the Home Depot Lease Agreement. Each party agrees to promptly execute and deliver eacb to the other any documents the other may reasonably request to evidence such attorment. Upon and after such attornment, the Home Depot Lease Agreement shall continue in full force and effect as a direct lease between Agency and Home Depot upon all the terms, conditions and covenants as are set forth in said Nome Depot Lease Agreement, subject to the following provisions: 2 IM-106 I a. No Affect on Liability of Landlord. Nothing in this paragraph 2 shall be deemed to limit Home Depot's rights against Landlord in the event of a default by Landlord under the Operating Documents. b. Agency shall not be liable for any act or omission of any prior landlord and Home Depot shall look only to the interest of Agency in the Premises (if and when acquired from the Landlord) for the satisfaction of any obligations oFAgency as successor to Landlord. C. Agency shall not be subject to or liable for any offsets or defenses which Home Depot might have against any prior landlord, except for: (1) offsets or defenses for a breach by any prior landlord that Agency received a copy of prior to the date of Agency's acquisition of fee title to the Premises and (2) other offsets and defenses that cumulatively are equal to or less than one twelfth (I/12) of the Rent ("Rent" means Rent as defined in the Home Depot Lease Agreement). d. For purposes of this Agreement and otherwise, Agency shall not be bound by any amendment of the Operating Documents, or any part thereof, unless consented to in writing by Agency, but Agency will be bound by any written consent granted by a prior landlord in accordance with the Operator Documents before Agency has acquired fee title to the Premises. e. If Agency acquires fee title to the Premises, Agency shall be discharged from all responsibility arising under the Home ,Depot Lease Agreement after disposing of its interest in the Premises. I£Agency acquires fee title to any other portion of the Shopping Center Land, Agency shall be discharged from all responsibility arising under the other Operating Documents after disposing of any interest in the Shopping Center Land. f. Agency shall incur no responsibility for any security deposits which were paid by Home Depot to any landlord. g. Agency shall not be bound under any notice given by Home Depot to any landlord unless notice is also given concurrently to Agency- h. Home Depot shall not pay, and Agency shall not be bound by, any rent or other periodic payments to any landlord for more than thirty (30) days in advance of the current month. i. Home Depot shall comply with all environmental conditions contained in the Home Depot Lease Agreement. 3. In the event of a default by Geiger and/or Landlord under the terns and conditions of the DDA, in addition to any other notice required to be given pursuant to said 3 IM 106 1 DDA, Agency shall provide Home Depot with a copy of any written notice of default which Agency gives to Geiger and/or Landlord. In the event of a default by Landlord under the terms and conditions of the Operating Documents, in addition to any other notice required to be given pursuant to said Operating Documents, Home Depot shall provide Agency with a copy of any written notice of default which Home Depot gives to Landlord, provided, however, that such requirement shall remain in effect only so long as Agency has a right of reversion or a repurchase option with respect to the Premises under the DDA. 4. Geiger and Landlord hereby agree for itself and its respective successors and assigns, that (i) this Agreement does not (a) constitute a waiver by Agency of any of its rights against Geiger and/or Landlord under the DDA or any of the other transaction documents and(b) in any way release Geiger and/or Landlord from its obligation to comply with the terms, provisions, conditions, covenants, agreements and clauses of the DDA and the transaction documents, and (ii) the provisions of the DDA and the other transaction documents remain in full force and effect and must be complied with by Geiger and/or Landlord. 5. All notices or requests under this Agreement shall be given by certified mail to the addresses shown on page one of this Agreement. Each properly addressed notice or request sent by certified mail shall be deemed given and served upon being deposited in the United States mail,postage prepaid. 6. Nothing contained in this Agreement shall be interpreted or construed to alter or amend the terms and conditions of the DDA as between Geiger and the Agency, it being the intention of the parties that Geiger's and/or Landlord's rights, duties and obligations shall be controlled exclusively by said DDA. 7. This Agreement may be executed simultaneously or in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. [SIGNATURES APPEAR ON FOLLOWING PAGE] 4 5?R 10G I IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the day and year above set forth. GEIGE,R: GEIGER LLC, a California limited liability company By: John J. Carro}qV Inc. Its: Managing mem er By: N, re: Jol n J. Carroll IV Tit sident LANDLORD: ENDURE INVESTMENTS, LLC, a Nevada limited liability company By: Excel Property Management Services Inc. Its: Managing Member Name: Mark Gabay Title: President TENANT: HOME DEPOT U.S.A., INC., a Delaware corporation By: I Name: Title: _ ate�nnl 3 5d&IOG 1 AGENCY: COMMUNITY REDEVrLOPMENT AGENCY OF THE CITY OF PALM SPRINGS 13V: z Name: Its ATT,ST: s Approved by the Community Assistant Secretary Redevelopment Agency by Resolution No. on �D APPROVED AS O FORM Office of Ag CDLmsel *Age ""Cnsel SR lob 1 6 STATE OF CALIFORNIA ) )ss. COUNTY OF ORANGE ) //"" On _G ads 2007, before me, S�� / vtu a No ary Public in and for the State of California, personally appeared 17 �� �P�` Q-(2 P , personally known to me_ �giicfartnn� i rlr-nrr-) to be the person(s)- whose name ish re subscribed to the within instrument, and acknowledged to me at he e/ -1e hey executed the same in his their authorized capacity(iPa)-and that by bis er/ ely denature )-on the instrument the person(srsr the entity upon behalf of which the pen o acted, executed the instrument. WITNESS my hand and official sea , USA M.SMITH COMMIMIOn#1542011 46-6� .-� M1 *lary publIc-CglUarnia SIGN�'I'URE OF ROTA PUBLIC Orange county // MYcomm.Expires Jan 12,2009 y (SEAL) STATE OF CALIFORNIA ) )ss. COUNTY OF11#5 Al y C s ) Ono r{.tic —7 , 2007, before me,��1'4u G/ %1C1/i/1�J ��) r /C a Notary Public in and for the Slate of ' California,' personally appeared 1�Wa .l / kA./_.gW /(,1 , personally luiavm to m_e r proved tome on the basis of satisfactory evidence) to be the person(s) whose name(s) re subscribed to the within instrument, and acknowledged to me, thatLe)she/they executed the same in his er/their authorized capacity(ies), and that b hisler/their signature(-,) 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. §fI iNATJ/RF OF NOTARY PUBLIC (SEAL) eEm A e0R4oR COITlmlubn i 1643439 , o Natary RrWlc-CaMOrMO Los ArgWa Cow9y PMV Comm.64UM lilac 1.20 7 SiAiIG I STATE OF CALIFORNIA ) COUNTY OF ) On t l 7 2007, before me, lkcv � lri�-(//�( ���_ a 4 No ary Pabli in and for the State of California, perso ally appeared _� Cvti�it & personally known to me ar proved to me on the basis of satisfactory evidenee)'to be the person(s) whose name(s)us/ire subscribed to,-Ibe within instrument, and acknowledged to 1 that?/she/they executed the same in his/ er/their authorized capacity(ies), and that b his fier/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. SIGNATURE OF NOTARY PUBLIC BETR'A.80R M (SEAL) cammwlon#1618439 Nakn K*ft-Wftrla f LOS NVMM Cowdy If 46MV Cernm.EKF*a Mar 1,201 STATE ON CALIFORNIA ) )ss. COUNTY OF RUz�,S)eb—) On — 2007, before me, y Guy tom. a Notary Public in slid and for the State of Cali omia, personally appeared //� C e Z 1 , personally known to me (or proved to me on the basis of satisfactory evidence) to�erson(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. VId , t r 1570678 x - : KIC .RI RIVERSIDE •OALIFORNIAg SIGNATURE F NOTARY PUBLIC RIVERSIDE COUNTY Commission sAPR 18,2888 (SEAL) MART LYNN BOSWELL COMM.M70678 NOTARY PUBLIC.CALIFORNIA 8 RIVERSIDE COUNTY CommlfipM nKAPR1e 2888 iN I�1G I EXHIBIT"A" LceAl Description of the Slioppip2 Center THAT PORTION OF PARCELS 1 AND 2, REMAINDER PARCEL AND LOTS `B" AND "C" OF PARCEL MAP NO, 18787 ON FILE IN BOOK 135 OF PARCEL MAPS, PAGES 53 AND 54, OFFICIAL RECORDS OF RIVERSIDE COUNTY, STATE OF CALIFORNIA. BEGINNING AT THE NORTHEAST CORNER Of SAID REMAINDER PARCEL; THENCE SOUTH 89046'26" WEST 1321.19 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL; THENCE SOUTH 00013'20"EAST 463.66 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 3625,46 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 78021'45" WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 138.94 FEET THROUGH A CENTRAL ANGLE OF 02-11'45", A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 80°33'30" CAST; TRENCE SOUTH 89°48'13" WEST 19.24 FEET TO THE BEGINNING OF A NON- TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4900.00 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 82°03'46"WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 640.89 FEET THROUGH IROUGH A CENTRAL ANGLE". OF 07029'38", TO A REVERSE CURVE CONCAVE EASTERLY AND HAVING RADIUS OF 20.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 89°33'24" EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.33 FEET THROUGH A CENTRAL ANGLE OF 89045'11'; THENCE NORTH 8904 8'13"EAST 176.58 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND ]RAVING A RADIUS OF 33.00 FEET; THENCT SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 23.35 FEET THROUGH A CENTRAL ANGLE OF 40032'09", TO A REVERSE CURVE CONCAVE NORTHEASTERLY AND HAVING RADIUS OF 17.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 40020'22" BAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 12.03 FEET THROUGH A CENTRAL ANGLE OF 40°32'09"; THENCE NORTH 8904813"EAST 1020.11 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 20.00 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.39 FEET THROUGH A CENTRAL ANGLE OF 89055'56'; THENCE NORTH 00007'43" WEST 1251,86 FEET ALONG EAST LINE OF SAID PARCEL 2 AND REMAINDER PARCEL TO THE POINT OF BEGINNING. SiRJOG I EXHIRI7" all Lc al Description of Premises IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA 13EING THAT PORTION OF THE REMAINDER PARCEL AS SHOWN ON PARCEL MAP NO. 18787 ON FILE 1N BOOK 135, PAGES 53 AND 54 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID REMAINDER PARCEL; THENCE, ALONG THE NORTH LINE OF SAID REMAINDER PARCEL, SOUTH 89046'26"WEST, 21.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTXI LINE THE FOLLOWING FIVE (5) COURSES: 1. SOUTH 00007'43" EAST, 695.78 FEET-, 2. SOUTH 89052'52" WEST, 268.83 FEET; 3. SOUTH 70030'49" WEST, 303.86 FEET; 4. SOUTH 89058'47" WEST, 122.86 FEET; 5. NORTH 00001'36" WEST, 795.07 FEET TO SAID NORTH LINE; ALONG SAID NORTH LINE,NORTH 89046'26" EAST, 676.96 FEET TO THE TRITE POINT OF BEGINNING. THE A13OVE DESCRIBED PARCEL CONTAINS 11.43 ACRES, MORE OR LESS. 53ki06 I I DOC # 2007-0448616 hec dl � BY 07/10/2007 08:00R Fee:NC r'. C Titit; �.L)j"rfpany _ RccardedP ineOfficial Records Fr.,tP,, ae,ic�lz , e W Country of Riverside Larry W. Ward Assessor, IICountyI Clerk & Recorder Recording Requested By And it ?0 f - "; Illlflllllll IIIIIIIIII 11 1 IIIIIII IIII�II�II When Recorded Return To: `{S^_I R • U PAGE I SIZE I DA I MISC LONG I RFD COPY City Clerk t City of Palm Springs — 3200 East Tahquitz Canyon Way FM A L 465 426 POOR NCOR SMF firHG C%4M Palm Springs, CA 92262 2 y 4`"Lk- j, r: CTY UNI Public Agency-Official Business Document Entitled to Free Recording Govemment Code Section 6103 EASEMENT DEED AND NON-SUIT AGREEMENT P\L? (Aviation Rights) This EASEMENT DEED AND AGREEMENT ("Avigation Easement Agreement") is executed and delivered as of this %: day of a 0 2007 , by Endure Investments, LLC, a Nevada Limited Liability Compal ("Grantor') and the City of Palm Springs, a California charter city ("Grantee"), with reference to the following facts; RECITALS A. Grantor is the owner in fee simple of that certain real property (the "Property') located in the City of Palm Springs, County of Riverside, State of California, legally described in Exhibit "A" attached hereto and incorporated herein by reference. S. Grantee is the owner and operator of the Palm Springs International Airport (together with any future expansion thereof or modification thereof being hereinafter referred to as the "Airport"), situated at 3400 East Tahquitz Canyon Way, in the City of Palm Springs, County of Riverside, State of California. C. This Avigation Easement Agreement is made, executed, and delivered pursuant to and in accordance with the requirements of Section 92.19.00 of the Palm Springs Municipal Code and the conditions of approval of the development of the Property as approved by the City Council of the Grantee GRANT OF AVIGATION EASEMENT FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Grantor, for itself and its successors and assigns, does hereby grant to Grantee, its successors and assigns, for the use and benefit of Grantee, the tenants and licensees of Grantee, and all users of the Airport, the following easements, rights and servitudes, which shall be appurtenant to the Airport, as to Grantee, and in gross, as to the tenants c;VOfR 1 and licensees of Grantee and as to all users of the Airport (collectively the "Avigation Easement"): 1. Passage of Aircraft and Incidental Effects. A. A perpetual nonexclusive easement and right of way for the "Passage of Aircraft" (as hereinafter defined) by whomsoever owned and operated in, to, over, and through all airspace of the Property located above the height of the lowest of the "imaginary surfaces" established in relation to the Airport and to each runway at the Airport in accordance with the applicable provisions of Federal Aviation Administration regulations set forth in 14 C.F.R. §§77.21, 77.23, and 77.25 (as the same may be amended from time to time), to an indefinite height above said imaginary surfaces. As used herein, the term "Aircraft" shall mean any contrivance now known or hereafter invented, used, or designed for navigation of or flight in the air, and the term "Passage of Aircraft' shall include, but not be limited to, Aircraft operation, navigation, and flight; however, except to the extent constituting "Incidental Effects" as provided in Section 1 B below, the term "Passage of Aircraft" shall not include Aircraft landing, explosion, crash, falling objects, dumping, or spillage of liquid fuel causing direct physical injury to persons or direct physical damage to property. B. A perpetual nonexclusive easement and right to cause within, and to enter or penetrate into or transmit through, any improved or unimproved portion of the Property, or any air space above the ground surface of the Property, such noise, sounds, vibrations, electronic interference, fumes, dust, fuel vapor particles, and all other similar effects that may result from or be related to the ownership, operation or maintenance of the Airport, the use of the Airport by Aircraft, the flight of Aircraft to, from or over the Airport, or the flight of Aircraft over the Property (at heights above the "imaginary surfaces" described in Section 1A above), or the taking-off or landing of Aircraft from or at the Airport (collectively, "Incidental Effects"), including, without limitation, any Incidental Effects that may be objectionable or would otherwise constitute a trespass, a permanent or continuing nuisance, personal injury or taking or damage to the Property due to invasiveness, intermittence, frequency, loudness, intensity, toxicity of Aircraft emissions or fuel, interference, emission, odor, annoyance or otherwise. 2. Covenants A. In furtherance of the easements and rights herein granted, Grantor hereby covenants, for itself and its successors and assigns, at all times hereafter, that it will not take any action, cause or allow any electronic, electromagnetic or light emissions, allow any obstruction to exist, or construct any structure on the Property which would conflict or interfere with or infringe Grantee's rights hereunder, including the full use and enjoyment of the Avigation Easement. B. The rights, easements, benefits, waivers, covenants and agreements granted hereunder, including the Avigation Easement, shall continue notwithstanding any increase or other change in the boundaries, volume of operations, noise, or pattern 5¢y)p: I of air traffic at the Airport. The Avigation Easement and this Avigation Easement Agreement may not be modified, amended, terminated or abandoned except by execution and delivery of an instrument executed and acknowledged by Grantee, and Grantor agrees that, in the absence of such an instrument, no conduct by Grantee or increase, diminution or change in use of the Avigation Easement shall constitute either an overburdening of the Avigation Easement or a termination or abandonment of the Avigation Easement. C. The parties intend that all waivers, restrictions, covenants and agreements set forth herein relate to the use, repair, maintenance or improvement of the Property or the Airport, or some part thereof, and shall run with the land of Grantor and Grantee, and any grantee, successor or assign of Grantor who acquires any estate or interest in or right to use the Property shall be bound hereby for the benefit of the Airport and for the benefit of any grantee, successor or assign of Grantee, including, without, limitation, the tenants and licensees of Grantee, and all users of the Airport. 3. General Provisions A. Attorneys' Fees, Should Grantor or Grantee or any of their respective successors or assigns retain counsel to enforce any of the provisions herein or protect their interests in any matter arising under this Avigation Easement Agreement, or to recover damages by reason of any alleged breach of any provision of this Avigation Easement Agreement, the losing party in any action pursued in a court of competent jurisdiction shall pay to the prevailing party all costs, damages, and expenses incurred by the prevailing party, including, but not limited to, attorneys' fees and costs incurred in connection therewith- B. Interpretation. No provision of this Avigation Easement Agreement is to be interpreted for or against any party because that party or that party's legal epresentative drafted such provision. C. Waiver. No violation or breach of any provision of this Avigation Easement Agreement may be waived unless in writing. Waiver of any one breach of any provision of this Avigation Easement Agreement shall not be deemed to be a waiver of any other breach of the same or any other provision of this Avigation Easement Agreement. ❑. Severability. In the event that any one or more covenant, condition, right or other provision contained in this Avigation Easement Agreement is held to be invalid, void or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Avigation Easement Agreement and shall in no way affect, impair or invalidate any other covenant, condition, right or other provision contained in this Avigation Easement Agreement. E. Additional Documents. In addition to the documents and instruments to be delivered as provided in this Avigation Easement Agreement, Grantor or its successors and assigns, as the case may be, shall, from time to time at the request of Grantee, S""M01 I execute and deliver to Grantee such other documents and shall take such other action as may be reasonably required to carry out more effectively the terms of this Avigation Easement Agreement. F. Governing Law. This Avigation Easement Agreement has been negotiated and entered into in the State of California, and shall be governed by, construed and enforced in accordance with the statutory, administrative and judicial laws of the State of California. G. Integration. This Avigation Easement Agreement, including the exhibits, constitutes the final, complete and exclusive statement of the parties relative to the subject matter hereof and there are no oral or parol agreements existing between Grantor and Grantee relative to the subject matter hereof which are not expressly set forth herein and covered hereby. This is an integrated agreement. IN WITNESS WHEREOF, the parties have executed and delivered this Avigation Easement Agreement as of the date first set forth above. GRANTOR Endure Investments, LLC, a Nevada Limited Liability`Company, By: Name: /' Title: ATTEST: By: Name: Title: *RANTEE rk City of Palm Springs, aCalifornia /1/ ..�. - -- - •• charter city ApprovJ �' fo Form By: �Iyjri�CC�La Name: Douglas Holland, City-Attorney Title: _ �f101YYXCsi1� [Signature of Owner must be properly acknowledged and notarized] APPROI/D BY CITY, COMM �`?`�' � t,`-fib•c� �c?,�, STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss On. ] ;tom d l :c• before me,J'- c'n' [insert name], a Notary Public, personally appeared > v , 'erg sonally known to me (or proved to me on the basis of satisfactory evidence) to be the persons) whose name(s�is/are subscribed to the within instrument and acknowledged to me that lh7she/they executed the same irfhis/her/their authorized capacity(ies), and that by is/.per/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 and and official seal. �rrrti�oq 7 Cammlrlan/ 66�ON9 Signature % 7 :,/j � 'r' J-?_/ ? (Seal) Noftxy Rue o� / Wcam,.Eq1 MM i.201 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss On 1999, before me, [insert name], a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seap ;;"gin,i CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the attached Easement Deed and Non-Suit Agreement (Aviation Rights) dated as of , ` J , from Endure Investments, LLC, a Nevada limited liability company,go the City of Palm Springs, a California charter city and is hereby accepted by the undersigned on behalf of the City of Palm Springs and Grantee consents to the recordation thereof by its duly authorized officer. Dated: As of t'l' 2007 Grantee City of Palm Springs, a California charter city B� V L _ David H. Ready City Manager ATTEST: Jbmes Thompson. City Clerk APPROVES Tp/FORM: B A1 "L ❑ougl ad C- Holland, City Attorney 1e�t3'� t�•e�-a� APPROVED 2YCJ Y"^.. R���$C EXHIBIT"A" Legal Description of the Slioppmgg Center THAT PORTION OF PARCELS 1 AND 2, REMAINDER PARCEL AND LOTS `B"AND "C"OF PARCEL MAP NO. 18787 ON FILE IN BOOK 135 OF PARCEL MAPS, PAGES 53 AND 54, OFFICIAL RECORDS OF RIVERSIDE COUNTY, STATE OF CALIFORNIA. BEGINNING AT THE NORTHEAST CORNER OF SAID REMAINDER PARCEL; THENCE SOUTH 89046'26" WEST 1321.19 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL; THENCE SOUTH 00°13'20" EAST 463.66 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 3625 46 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 78021'45" WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 138.94 FEET TI-IROUG14 A CENTRAL ANGLE OF 02011'45", A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 80033'30" EAST; THENCE SOUTH 89048'13" WEST 19.24 FEET TO THE BEGINNING OF A NON- TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4900.00 FELT, A LINE RADIAL TO SAID POINT BEARS SOUTH 82°03'46" WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 640.89 FEET THROUGH A CENTRAL ANGLE: OF 07029'38", TO A REVERSE CURVE CONCAVE EASTERLY AND HAVING RADIUS OF 2000. FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 89033'24" EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.33 FEET THROUGH A CENTRAL ANGLE OF 89045'11"; THENCE NORTH 89048'13"EAST 176.58 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 33.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 2335 FEET THROUGH A CENTRAL ANGLE OF 40032'09", TO A REVERSE CURVE CONCAVE NORTHEASTERLY AND HAVING RADIUS OF 17.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 40°20'22"EAST; THENCE SOUTHEASTERLY'' ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 12.03 FEET TFMOUGH A CENTRAL ANGLE OF 40032'09"; THENCE NORTH 89048'13"EAST 1020.11 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 20.00 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.39 FEET THROUGH A CENTRAL ANGLE OF 89°55'56"; THENCE NORTH 00007'43" WEST 1251.86 FEET ALONG EAST LINE OF SAID PARCEL 2 AND REMAINDER PARCEL TO THE POINT OF BEGINNING. 53R•tpG 1 uested By =srst r4Rnen .:, company D©C # 2007-0448615 07/10/2007 08:00A Fee:NC When Recorded Page 1 of 5 Recorded in official Records Mail to: County of Riverside Larry [J. Ward Community Redevelopment Agency I Assessor, County IIIIII IIIIIII III IIIII IIIIII Clerk III corder IIIII IIII IIII City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, CA 5 R LI PAGE SIZE DA MISC LONG I RFD I COPY 92263 C1rr'I Attention: Executive-Dlrec or w M 1 A L 1 465 1 426 PCOR NCOR SMF I EUN EXAM T: CTY i 1 ASSIGNMENT AND ASSUMPTION AGEEMENT WITH CONSENT OF CITY This Assignment and Assumption Agreement ("Agreement") is made as of this ~77 9 T day of V( , , 2007, by and among GEIGER LLC, a California li mited liability company ("Geiger"), ENDURE INVESTMENTS, LLC, a Nevada 04 limited liability company ("Endure"), having an address of 1888 Century Park East #450, Los Angeles, CA 90067, and the COMMUNITY REDEVELOPMENT GENCY OF THE CITY OF PALM SPRINGS ("Agency"), whose address is 3200 East Tahquitz Canyon Way, Palm Springs, CA 92263, Attention: Executive Director, Recitals WHEREAS, Agency and Geiger have entered into that certain Disposition and Development Agreement, dated December 12, 2005 (such document, and any past and future amendments to same, being the "DDA"), pursuant to which Geiger has purchased certain real property from the Agency and under which Geiger is obligated to develop and operate a retail shopping center on the real property located at the Northeast corner of Ramon Road and Gene Autry Trail, in the City of Palm Springs, County of Riverside, State of California and more particularly described on Exhibit "A" attached hereto and made a part hereof (the "Shopping Center Land") WHEREAS, Geiger has transferred all of its rights, title and interest as the owner of the Shopping Center Land to Endure under that certain Grant Deed Document #2007-0108355 dated February 15, 2007 and recorded in the Official Records of the County of Riverside and which include Geiger's obligations under the DDA which Endure is desirous of assuming as evidenced by this Agreement and WHEREAS the DDA imposes certain requirements, conditions and restrictions for such assignment and assumption under Sections 2. 2.8 and 2.2.9 of the DDA, NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, it is agreed between the parties as follows: 1. Geiger hereby assigns and transfers to Endure all of its rights, title, interest and obligations in the DDA and Endure hereby accepts said assignment and hereby assumes and agrees to perform from and after the date this Agreement becomes effective, as a direct obligation to all concerned parties to the DDA, all of the terms and provisions of the DDA. 2. Geiger and Endure acknowledge that the DDA is in full force and effect, that Geiger and Endure have no set-off, claims or defenses against or to the enforcement of the DDA. 1 The effective date of this Agreement shall be 4. Endure agrees to indemnify and hold harmless the Agency from any and against any and all claims, losses, damages, costs, and/or expenses (including, but not limited to, reasonable attorneys' fees) arising out of or in connection with the assignment of Geiger's interest in the DDA to Endure, the Agreement, or the failure of Endure to fully perform its obligations under the DDA or this Agreement. 5. Execution of this document by the Agency shall constitute consent by the Agency to this Agreement. IN WITNESS WHEREOF, the parties hereto accept, agree and execute this Agreement on the day and year first above written: Geiger LB)A ari a 'fo is Limited Liability Coin By: Name: Ja� Title: PLL6— a— LL- By: Endure Invc ments,�Nevada Limited Liability Como ny By: Name: 1 L�}�Zo7 0 11 l �— c Title: By: Consent of Agency The undersigned hereby consents to the above assignment and assumption provided that this consent shall not in any way be deemed to be consent to any further assignment. AGENCY Attest: By: Name:_ David H_ Ready rr� Title: Executive Director �sistant Secretary By: Date: 2007 APPROVED AS TO FORM: m f V earl RES. Ely: \�bu b•DI•q �ocj1�3C Title: ii v APPROVED ByCRyCOUNCIL CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT fi{I �I State of California 4i QJ County of ! WI/11GQEd j On before m �l nin JJ 41 — 10111cot(o g din Don N; 'PI npersonally appeared /eV/7 . rl ' s� Ionally known to me ❑ proved to me on the basis of satisfactory �> evidence to be the person(s) whose narri Is/are icy subscribed to the wlhin instrument and <�F acknowledged to me that he/she/they executed r{ EEr1Y k jI the same in his/her/their authorized Commission 761tIJ4 capaclty(les), and that by his/her/their :�I 00MY Notary Public-CaIII signature(s) on the Instrument the person(s), or t� Los Mgeles County the entity upon behalf of which the person(s) ,I Comm.ExpI Mar 1,201pf acted, execuled the instrument. ,� WITNC my hand and office seal. agAnwrn of Notnry pu0llG h� 'h OPTIONAL �j Though the information below Is not required by law it may prove valuable to persons relying on the document and could prevent I� fraudulent removal and roadachment of this form to another document �I c� Description of Attached Document 3i i ' Title or Type of Document: Document Date: Number of Pages: Signer(s)Other Than Named Above, 3 r.{ Capacity(ies) Claimed by Signer li Irn Signer's Name. Q Individual Top of uwmb lu rt. ❑ Ccrporate Off icer—Title(s): h� ❑ Partner—❑ Limited ❑General 1i ❑ Attorney-In-Fact ❑ Trustees 110 ❑ Guardian or Conservator ❑ Other: hi Signer Is Representmg: , �`�ti-•�.c=:.w•.,r'�:<`�.�,�`�,ra;-^.,��ic<,ti:�icG�.>ci:=ti�>c<.'c.��,'�ti�c>c--:,r.:,..�...,;a':cry,`�`�rr�,cc;��,��•ci:�=<.c_r� 01999 Nit1onnl Notiry Aaoplann-935o Do solo Awe PD Bw 2402•Chaswotlh CA 9131 d2091•wnw nallonalnolnry om, Ffod No 5907 Reordw Cull T.II col-80087G,Ea2] State of California ) )ss. County of Riverside ) On L�J/�2 rJ�77 before me, Mari Lvnn Boswell, Notary Public Date JJ Nmie wid Title of Officer Q 'du personally appeared_ -��t�d 7T' 7`• 4 , Name(s)of SigAi(s) personally known to me proved to me on the basis of satisfactory evidence NIARI LYNN BOSWELL COMM.#1570678 ,� to be the person(s)whose name(s)is/are subscribed to the N0iARYMIDEC COUNTY within within instnunent and acknowledged to me that RNERSI�E C0l1NTY �} eommsan Em asnak to 2ooe he/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. WTTNESS my hand and official seal Signature of Notary Public EXHIBIT"A" Legal Description of the Shobping Center THAT PORTION OP PARCELS 1 AND 2, REMAINDER PARCEL AND LOTS "B" AND "C" OF PARCEL MAP NO. 18787 ON FILE IN BOOK 135 OF PARCEL MAPS, PAGES 53 AND 54, OFFICIAL RECORDS OF RIVERSIDE COUNTY, STATE OF CALIFORNIA. BEGINNING AT THE NORTHEAST CORNER OF SAID REMAINDER PARCEL; THENCE SOUTH 89046'26" WEST 1321.19 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL; THENCE SOUTH 000 13'20" EAST 463.66 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 3625.46 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 7V21'45" WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 138.94 FEET THROUGH A CENTRAL ANGLE OF 02011'45", A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 80°33'30" EAST; THENCE SOUTH 89648'13" WEST 19.24 FEET TO THE BEGINNING OF A NON- TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4900.00 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTII 82°03'46" WEST; THENCE. SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 640.89 FEET THROUGH A CENTRAL ANGLE OF 07°29'38", TO A REVERSE CURVE CONCAVE EASTERLY AND HAVING RADIUS OF 20.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTI-1 89033'24" EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.33 FEET THROUGH A CENTRAL ANGLE: OF 89°45'11"; THENCE NORTH W48'13"EAST 176.58 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 33.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 23.35 FEET THROUGH A CENTRAL ANGLE OF 40032'09", TO A REVERSE CURVE CONCAVE NORTHEASTERLY AND HAVING RADIUS OF 17.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 40020'22"1-AST; THENCE SOUTHEASTERLY ALONG THE.ARC OF SAID CURVE AN ARC DISTANCE OF 12.03 FEET THROUGH A CENTRAL ANGLE OF 40°32'09"; THENCE NORTH 89048'13"EAST 1020.11 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 20.00 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.39 FEET THROUGH A CENTRAL ANGLE OF 89°55'56'; THENCE NORTH 00007'43" WEST 1251.86 FEET ALONG EAST LINE OF SAID PARCEL 2 AND REMAINDER PARCEL TO THE POINT OF BEGINNING. 539,106 1 9, DEC # 2@i]7-0448620 Oposs ell ;l •07/10/2007 08a00A Fee:142.00 [;i:,l :S„}i�i1 .1'� Page 1 of 46 14 J. • . ' Recorded in Officaal Records County of Riverside Larry W. Ward Assessor, County Clerk & Recorder RECORDING REQUESTED BY AND WHEN RECORED I IIIIII IIIIIII III IIIII IIIIII IIIIII IIIII III IIIII IIII IIII MAIL TO:'"�: S R I U PAGE SIZE DA MISC I LONG I RFD I COPY City Clerk City of Palm Springs 4 C _ . 3200 East Tahquitz Canyon Way M I A L 1 465 1 426 PCOR NCOR SMF NCHG _ M Palm Springs, CA 92262 Space Above This Tine For Recorder's Use Only COVENANT AGREEMENT v \ W4 This Covenant Agreement is made as of 1t) 1 2007 ("Effective Date")by and between the following entities,referred to he tin as the Parties: City of Palm Springs, a California charter city ("City") Mailing Address: Office of City Manager 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Attention: City Manager and City Attorney and Endure Investments, LLC, a Nevada Limited Liability Company("Owner") Mailing Address: 1888 Century Park East#450 Los Angeles, CA 90067 Attention: John Carroll RECITALS VgIEREAS, Owner owns the property located at 5200 E. Ramon Road, located in City of Palm Springs, County of Riverside, State of California, more particularly described on Exhibit "A" attached hereto and incorporated herein by reference ("Property"); and WHEREAS, Owner desires to develop the Property into a commercial and retail shopping center and entered into a Disposition and Development Agreement with City of Palm Springs Com nunity Redevelopment Agency("Agency") on December 5, 2005 ("DDA"); and WHEREAS, Owner has entered into that certain lease dated March 5, 2007 by and between Owner and Home Depot U.S.A. Inc. a Delaware corporation ("Home Deport") for a portion of the Property ("Home Depot Parcel") subject to a Restriction and Easement Agreement made as of March 5, 2007, by and between Owner and Home Depot; a copy of a memorandum of lease is attached hereto as Exhibit"B'; and 539681.1 WHEREAS, Owner obtained preliminary approval from the Palm Springs Planning Commission ("Planning Commission") as Case 5.0984 PD-291 on September 28, 2005 and the Palm Springs City Council ("City Council") on October 19, 2005 as Resolution No. 21433 to undertake the proposed development, which would be known as The Springs Commercial Center ("Springs"); and WHEREAS, it was determined that as part of such Resolution No. 21433, a condition to the final acceptance and approval by the Planning Commission and City Council For the development and completion of the Springs would be the compliance with and satisfaction of certain conditions of approval ("Conditions"), a copy of which is attached hereto at Exhibit "C'; and WHEREAS, one such Condition for the development of the Springs is the recordation of Property Conditions, Covenants and Restrictions ("CC&Rs") to acknowledge the approved development entitlements, the Conditions, and the Mitigation and Reporting Program ("MMRP") portion of the Final Environmental Impact Report ("EIR") [SCH# 2003121001] for PD-291 and on file in the Office of City Clerk, and to provide for private restrictions with respect to the use of the Property that implement PD-291 and the MMRP; and WHEREAS, the DDA also requires the preparation of CC&Rs containing, at a minimum, the following provisions (a) maintenance of the Common Area; (b) a maintenance covenant for the benefit of the Agency as set forth in Section 122 of the DDA, (c) the release provisions set forth in Section 4.5.2(c) of the DDA; all other applicable requirements included in the Conditions; and (d) covenants to maintain and/or contribute to the maintenance of post- construction best management practices to control runoff; and WHEREAS, City and Owner each acknowledge that: 1) The EIR has been completed in compliance with CEQA, the State CEQA Guidelines, and City's CEQA Guidelines. The City Council has independently reviewed and considered the information contained in the EIR, including all comments received during review and public hearing of the EIR and the reconnmendation of the Planning Commission and finds that it adequately discusses and addresses the environmental effects of the Springs. The MMRP has been adopted. The City Council Curtner finds that the EIR reflects its independent judgment. 2) The Springs is a development for which a Planned Development is authorized by City's Zoning Ordinance. The Springs shall provide for conunercial uses consistent with the underlying M-1-P zone which permits commercial uses and large scale service retail outlets. Development of the Springs shall combine land uses in compatible relationships according to City's Municipal Code by a totally planned development that implements the Palm Springs General Plan and good zoning practices as shown below pursuant to the Conditions, and modifying the underlying M-1-P zone development standards as follows: 2 539881 1 Development Standard Required (M-1-P Zone) Approved PD-291 Building Height 40 feet 35-40 feet Yards Abutting Residential 100 feet 17-100 feet Landscaping Buffer 25 feet 17-25 feet Abutting Major Roads 25 feet Same Landscape Buffer 25 feet Same Abutting non-residential 20 feet 17-110 feet Landscape Buffer None 17-25 feet Walls 8 feet maximum 8 feet Coverage No limit 74% of Site Parking Spaces _ 1571 spaces 1817 spaces Parking Lot Shading 50% minimum Same DECLARATION OF CONDITIONS, COVF,NANTS, AND RESTRICTIONS In consideration of the above Recitals and City's approval of the Springs, Owner hereby covenants and agrees that the Property shall be held, conveyed, encumbered, used, occupied, developed, and maintained subject to the following obligations, all of which are for the purpose of enhancing attractiveness, usefulness, value, and desirability of the Property, the surrounding property, and the public at large, and to minimize possible adverse effects on the pubic health, safety, and welfare. Each of the obligations contained in this Covenant Agreement shall run with the Property and shall be binding on each successive owner of all or any portion of the Property. 1. Maintenance, of Property: The following maintenance provisions shall apply to the Property: a) At all times, Owner and its successors and assigns shall maintain the Property in the same aesthetic and sound condition (or better) as the condition of the Property at the time of transfer of the Property from the Agency to Owner. b) From the date of commencement of construction until issuance of a Certificate of Compliance, Owner and its successors and assigns shall maintain the Project Improvements (as defined in the DDA) on the portions of the Property under constriction consistent with best constriction industry practice. c) After completion of all or any portion of the Project Improvements, and in perpetuity, Owner, its successors and assigns, shall maintain the Project Improvements on the Property in the same aesthetic and sound condition or better as ale condition of such Project Improvements at the lime the Agency issues a Certificate of Compliance, reasonable wear and tear excepted. The standard for 3 saess� � the quality of maintenance of the Project Improvements required herein shall be met whether or not a specific item of maintenance is listed below. However, representative items of maintenance shall include: (i) maintenance, repair and replacement on a regular schedule, consistent with like developments in Riverside County, of private streets, roads, drives, bike paths, sidewalks, utilities (except to the extent owned or controlled by a utility franchisee), common areas, landscaping, hardscaping and fountains; (ii) frequent and regular inspection for graffiti or damage or deterioration or failure, and immediate repainting or repair or replacement of all surfaces, fencing, walls, equipment, etc., as necessary; (iii) emptying of trash receptacles and removal of litter; (iv) regular sweeping of roadways and sidewalks throughout the Property; (v) fertilizing and replacing vegetation as necessary; (vi) cleaning windows on a regular basis; (vi) painting the buildings on a regular program and prior to the deterioration of the painted surfaces; (vii) conducting roof inspections on a regular basis and maintaining roofs in a leak-free and weather-tight condition. d) In the event Owner or its successors or assigns fails to maintain the Project hnprovements in accordance with the above-described standards for maintenance, City shall give written notice to Owner or its successors and assigns of such failure and provide a reasonable time for Owner or its successors or assigns to remedy any such failure. In the event that Owner fails to remedy any such failure within the time frame established by City, City or its designee shall have the right but not the obligation to enter the Properly upon reasonable notice to Owner or its successor or assigns, correct any violation, and hold Owner, or such successors or assigns, responsible for the cost thereof, and such cost, until paid, shall constitute a lien on the Property. c) With City's and Agency's written consent, which shall not be unreasonably withheld, Owner shall have the right to assign all or a part of the maintenance responsibilities contained in this Section 1 to subsequent purchasers and/or to any maintenance association, upon which assignment Owner shall have no further liability under this Agreement for any such assigned maintenance responsibilities. 2. Compliance with Conditions: The Property shall be used and maintained at all times in compliance with the Conditions. 3. Compliance with MMPR: The Property shall be used and maintained at all times in compliance with the Post-Constriction mitigation measures identified in the MMRP. 4. The Operational Noise Control Plan: Owner and all lessees of all or any portion of the Property shall comply with the provisions of the Operational Noise Control Plan prepared pursuant to the MMRP and approved by and on file with City. 5. 5ignage: All signage installed anywhere on the Property shall comply with the Comprehensive Sign Program approved by and on file with City. Ju no case shall roof top advertising be permitted. 4 519881 1 6. Home Depot Parcel. Use of the Home Depot Parcel shall be restricted as follows: a) Outdoor Storage: Outdoor storage in the Outdoor Garden Center, Building Materials Storage, or Will Call areas shall not exceed the height of the perimeter screen fence/walls of their respective areas. b) Use Permit by Citv: A Land Use Permit from City shall be required for all outdoor special events, including, but not limited to, tree sales, car washes, plant sales, furniture sales, and other unspecified outdoor events on site. A maximum of six special events, each lasting no more than two weeks in duration, may be held per year. Special events for Halloween and Christmas may be permitted for extended time periods, subject to the approval of a Land Use Permit by City. In addition, any outdoor future food use shall be subject to the approval of a Land Use Permit by City as well as for all outdoor special events. c) Trailer Display/Salts Area: Home Depot shall be permitted to use ten parking spaces year round, as designated on the approved site plan (north of the loading clock), for a Trailer Display/Sales Area and an area to store and rent large equipment such as concrete mixers, scaffoldings, and rototillers. The equipment shall be placed so that the 26-foot wide parking lot driveway shall be kept clear at all times. d) Outdoor Display of Merchandise: Home Depot shall be limited to only the designated outdoor display areas and outdoor garden center display area, as shown on the approved site plan. Home Depot shall be permitted to leave the Outdoor display items in the designated areas overnight. The use of all other areas for outdoor display of merchandise shall be prohibited. e) Pay Phones: Home Depot shall be permitted to install pay phones in the outdoor display areas and vestibules in front of the store, as shown on the approved site plan. f) Vending Machines: Home Depot may install vending machines inside the vestibules and in those outdoor display areas designated on final development plan approved by City and that do not detract from the architecture of the building. f) Delivea restrictions: No deliveries shall take place between the hours of 10:00 p.m. and 7:00 a.m. in the event that the residential uses adjacent to the Home Depot Parcel are converted to non-residential uses, this restriction may be removed upon approval of City, which shall not be unreasonably withheld. 7. Operation and Maintenance of Cart Theft System. The Owner shall operate and maintain the electronic shopping cart system installed on the Property. 8. Li htirn : All lighting on the Property shall comply with the exterior lighting plan approved by City. Down-lights shall be utilized for all lights mounted on buildings. 5 539891.1 9. No Sirens: No sirens, outside paging or any type of signalization shall be installed on the Property other than City-approved alarm systems. 10. Trees: All trees on the Property shall be allowed to grow to fttll form and height and shall not be topped or excessively trimmed. 11. No Parking on Private Streets: No parking shall be allowed on either side of any private street on the Property. 12. Maintenance of On-Site Sewer Systems: All on-site sewer and storm drain systems shall be privately maintained by Owner in a commercially reasonable manner acceptable to City Engineer and similar to other first class commercial shopping centers in the immediate area. 13. Off-Site Storm Drain System: Owner acknowledges that certain off-site storm drain system laterals crossing within the public right-of-way exclusively serve the Property. Accordingly, Owner shall be financially responsible for any and all repair or maintenance of such off-site storm drain system laterals and shall indemnify and hold City harmless from and against all costs or expenses incurred by City relating to the maintenance and/or repair of such off-site storm drain system laterals. Notwithstanding the foregoing, it is expressly understood that City shall have the right to control all maintenance and/or repair of said off-site storm drain system laterals occurring within the public right-of-way. 14. Compliance With Water Quality Regulations and Ongoing Maintenance of BMPs: Owner and any lessee or licensee of all or any portion of the Property shall use and maintain the Property in full compliance with the provisions of the National Pollution Discharge Elimination System (NPDES) Permit issued for the Whitewater River Region by the Colorado River Basin Regional Water Quality Control Board (RWQCB); any an all applicable water quality regulations of the RWQCB, City (including, but not limited to, Chapter 8,70 of the Palm Springs Municipal Code), and/or any other governmental agency; and/or any water quality management plan or similar document submitted to and approved by City, as such permits, regulations, or documents may be amended. in addition, Owner shall Fund, implement, operate and maintain any and all post-construction best management practices on or applicable to the Property related to the treatment of stonnwater runoff and/or the prevention of illicit discharges to City's municipal separate Storm sewer system pursuant to an NPDES Permit issued by the RWQCB, any and all applicable federal, state, and/or local regulations, and/or any applicable water quality management plan or similar document approved by, and on file with, City. 15. Release: Except to the extent otherwise provided in the DDA, Owner and any Person claiming by, through or tinder Owner, including all voluntary and involuntary successors of Owner owning all or any portion of the Property ("Releasing Party"), hereby waives its rights to recover from, and hilly and irrevocably releases, the Agency and City and their respective officials, employees, agents, attorneys, affiliates, representatives, contractors, successors and assigns (individually, a "Released Party," collectively, the "Released Parties") from any and all Claims that Owner may now have or hereafter suffer or acquire for any costs, losses, liabilities, damages, expenses, demands, actions or causes of action: (a) arising from any information or documentation supplied by any of the Released Parties ("Due Diligence Information"); (b) arising from any condition of the Property, known or unknown by any Releasing Party or any 6 sa9Rai i Released Party; (c) arising from any construction defects, errors, omissions or other conditions, latent or otherwise, including environmental matters, as well as economic and legal conditions on or affecting the Property, or any portion thereof; (d) arising from the existence, Release, threatened Release, presence, storage, treatment, transportation or disposal of any Hazardous Materials at any time on, in, under, from, about or adjacent to the Property or any portion thereof; (c) by any governmental Authority or any other third party arising from or related to any actual, threatened, or suspected release of a Hazardous Material on, in, under, from, about, or adjacent to the Property, or any portion thereof, including any Investigation or Remediation at or about the Property, provided, however, that the foregoing release by the Releasing Parties shall not apply to the extent that any Claim is the result of the willful misconduct or fraud of the Agency, City, or their respective officials, employees, representatives, agents, or consultants arising after the Close of Escrow. This release includes Claims of which Owner is presently unaware or which Owner does not presently suspect to exist which, if known by Owner, would materially affect Owner's release to the Released Parties. The Owner specifically waives the provision of California Civil Code Section 1542, which provides as follows: "A GENERAL RELEASE DOES NOT EXTENT TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." Owner's Initials: Owner's Initials: If not otherwise defined in this Covenant Agreement, the capitalized terms in this Section 15 shall have the meanings set forth in the DDA. 16. Indemnification: Owner agrees to protect defend, and hold harmless City and its officials, officers, employees, contractors, attorneys, and agents to the maximum extent permitted under law from any and all claims, liabilities, losses, expenses, or damages of any nature, including attorneys' fees and costs, City may or does incur, arising out of or in any way related to Owner's performance of its obligations under this Covenant Agreement, but excluding any loss resulting from the intentional or active negligence of City or its officials, officers, employees, contractors, attorneys, and agents. Owner shall select and retain counsel reasonably acceptable to City to defend any action or actions, and Owner shall pay the cost thereof. 17. Attorneys' Fees: Should any action be brought arising out of this Covenant Agreement including, without limitation, any action for declaratory or injunctive relief, the prevailing party shall be entitled to reasonable attorneys' fees and costs and expenses of investigation incurred, including those incurred in appellate proceedings or in any action or participation in, or in connection with, any case or proceeding under Chapter 7, 11 or 13 of the Bankruptcy Code or any successor statutes, and any judgment or decree rendered in any such actions or proceedings shall include an award thereof. 18. Recordation: This Covenant Agreement shall be recorded and Owner shall provide a copy of the recorded Covenant Agreement to City. 7 539881 I 19. City Remedies: Any remedy described in this Covenant Agreement shall not be deemed or considered in any way to be the exclusive remedy available to City to enforce the provisions of this Covenant Agreement. The City may resort to any remedy available under law to enforce the provisions of this Covenant Agreement including the initiation and prosecution of an action for specific performance, including the recovery of any costs, fees, or charges of any ]rind including attorney's fees that City may incur in the enforcement of this Covenant Agreement. 20. Amendment or Termination: Neither this Covenant Agreement nor the CC&Rs herein shall not be amended in any manner or terminated without the prior written approval of City nor without the recordation of any such approval by City. 21. Covenant Running With the Land: The terms and conditions of this Covenant Agreement and the CC&Rs herein shall constitute a covenant running with and binding the land in accordance with the provisions of California Civil Code Section 1468. Accordingly, the Property shall hereafter be held, sold, conveyed, mortgaged, encumbered, leased, rented, used, occupied and improved subject to the aforementioned conditions, all of which shall run with the Property and shall be binding on all parties having any right, title or interest in the Property any part thereof, their heirs, successors and assigns (which, for purposes of this Section 18, shall each be referred to individually as an "Owner"). No Owner shall be bound by, or entitled to the benefit of, said conditions, upon transfer by Owner of its entire interest in the Property, in fee, to a successor in interest to the Property. Each Owner shall provide actual notice of this Agreement and its terms to its respective successor(s) in interest to the Property prior to transfer of said interest to such successor(s) in interest. 22. City Enforcement: The conditions of this Covenant Agreement are intended to benefit the public and public properties. Accordingly, it is agreed City of Palm Springs shall have the right to enforce this Covenant Agreement and the CC&Rs herein by any legal or equitable means against Owner or any person or persons in actual possession of the Property who directly or through any agent violate the terms hereof. All obligations of Owner under this Covenant Agreement shall inure solely to the benefit of City and there are no third party beneficiaries of said obligations. 23. Waiver: Failure by a patty to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terns of this Covenant Agreement thereafter. 24. Severability: The provisions of this Covenant Agreement shall be deemed independent and severable and the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not effect the validity or enforceability of any other provision. 25. Countematts: This Covenant Agreement may be executed in counterparts, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original, and all such counterparts together shall constitute one and the same instrument. 26. Authority of Signatories to Agreement: Each person executing this Covenant Agreement represents and warrants that he or she is duly authorized and has the legal capacity to execute 8 539561.1 and deliver this Agreement on behalf of the parties for which execution is made. Each party represents and warrants to the other that the execution of this Covenant Agreement and the performance of such party's obligations herewider have been duty authorized and that this Covenant Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms, [Signatures on Following Page] IN WITNESS WHEREOF, the parties hereto have executed this Covenant Agreement as of the Effective Date. OWNER Endure vestme ts, LLC, a Nevada Limited Li ' ity o By: Name: J h�C�: 11 ✓ L TtLle._ _ � ll, � r By: J Name: Title: AP?RO` M BY Ci,f GU; N;,L [Signature of Owner must be properly 1 6 D(2 acknowledged and notarized] -- ACCEPTED EX: City of Palm Springs, a California charter city ]3y: � David H. Ready Gv wE ""� �,Z" City 1Vlanager 1 y APPRO S TO FO M: ATTEST: l - By:— � Dougla C. Holland y Clerk City Attomey 9 539681 1 ALL-PURPOSE ACKNOWLEDGMENT State of C pr1,1�c CAPACITY CLAIMED BY County of �s lFo SIGNER On `ij,—a-) Q�'y beforeme', Ir r� Clcrltc� Date _ Name, Title of O� c INDIVIDUAL(S) lr.personally appeared lf) • . Jf�yr E i "r cCORPORATE NAME(S) OF SIGNER(S) OFFICER(S) c personally known to me - OR - TITLE(S) roved to me on the basis of satisfactory evidence to be the cPARTNER(S) persons(s) whose name(s) is/are subscribed to the within cATTORNEY-IN-FACT instrument and acknowledged to me that he/she/they executed cTRUSTEE(S) the same in his/her/their authorized capacity(ies), and that by cSUBSCRIBING WITNESS his/her/their signature(s) on the instrument the person(s) or the cGUARDIAN/CONSERVATOR entity upon behalf of which the persons(s) acted, executed the cOTHER instrument. Witness my hand and official seal rRisNAmroea Commisslon#1508421 ,-� NotaryPubllc-Callfomia51GNER IS REPRESENTING: Signature of Notary los Mgales Counfy MY Comm.1 P4 Aug 17,2OC81 ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to unauthorized document. THIS CERTIFICATE Title or Type of Document_ Carver% - .5 ec �:-�7- MUST BE ATTACHED TO THE DOCUMENT Number of Pages DATE OF DOCUMENT 'n) DESCRIBED AT RIGHT: Signer(s) Other Than Named Above 539831.1 EXHIBIT"A" Legal Description of the Sh000in^Center THAT PORTION OF PARCELS 1 AND 2, REMAINDER PARCEL AND LOTS `B" AND "C" OF PARCEL MAP NO. 18787 ON FILE IN BOOK. 135 OF PARCEL MAPS, PAGES 53 AND 54, OFFICIAL RECORDS OF RIVERSIDE COUNTY, STATE OF CALIFORNIA. BEGINNING AT THE NOR'rHEAST CORNER OF SAID REMAINDER PARCEL; THENCE SOUTH 89046'26" WEST 1321.19 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL; THENCE SOUTH 00013'20"EAST 463.66 (,CET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 3625.46 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 78021'45" WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 138.94 FEET THROUGH A CENTRAL ANGLE OF 02011'45", A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 8003T30" EAST; THENCE SOUTH 89048'13" WEST 1924 FEET TO THE BEGINNING OF A NON- TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4900.00 FEET, A LINE RADIAL 1.0 SAID POINT BEARS SOUTH 82°03'46" WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 640.89 FEET THROUGH A CENTRAL ANGLE OF 0729'38", TO A REVERSE CURVE CONCAVE EASTERLY AND HAVING RADIUS OF 20.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 89633'24" EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.33 FEET THROUGH A CENTRAL ANGLE OF 89'45'11"; THENCE NORTH 89048'13"EAST 176.58 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 33.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 23.35 FEET T14ROLJGH A CENTRAL ANGLL OF 40032'09", TO A REVERSE CURVE CONCAVE NORTHEASTERLY AND HAVING RADIUS OF 17.00 FEET,A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 40°20'22"EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 12.03 FEET THROUGH A CENTRAL ANGLE OF 40°32'09'; THENCE NORTH 89048'13"EAST 1020.11 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 20.00 FEET; THENCE NORTHEASTERLY ALONG TIIE ARC OF SAID CURVE AN ARC DISTANCE OF 31.39 FEET THROUGH A CENTRAL ANGLE OF 89°55'56"; THENCE NORTH 00007'43" WEST 1251.86 FEET ALONG EAST LINE OF SAID PARCEL 2 AND REMAINDER PARCEL TO THE POINT OF BEGINNING. SgNJOG.I EXHIBIT "B" LEASE BETWEEN ENDURE AND HOME DEPOT 539681.1 RECORDING REQUESTED BY,AND ) WHEN RECORDED RETURN TO: ) Nagle Law Group, P.C. ) 4530 E. Shea Boulevard, Suite 140 ) Phoenix,Arizona 85028 ) Attention:Robert Nagle ) MEMORANDUM OF LEASE THIS ML:MORANDUM OF LEASE is made and entered into effect as of the day of�Aa r L l+ -- , 200 " , by and between ENDURE, INVESTMENTS, LLC, a Nevada limited liability company, having an address of 1888 Century Park East 0450, Los Angeles, California 90067 ("Landlord") and HOME DEPOT U.S.A., INC., a Delaware corporation, having an address of 2455 Paces ferry Road, Atlanta, Georgia 30339 ("Tenant"), 1. TERM AND PREMISES. For the initial term of twenty-five (25) Lease Years (as such term is defined in the Lease) and upon the provisions set forth in that certain Ground Lease dated XI(Ct fc k `)� 2007 between Landlord and Tenant ("Lease's, all of which provisions are specifically made a part hereof as fully and completely as if set out in full herein, Landlord leases to Tenant and Tenant leases from Landlord those certain premises (the "Premises") described on Exhibit "A" hereto which are part of a shopping center(tire"Shopping Center") located on the real property described on Exhibit 1113" hereto, together with all rights of ingress and egress and all other rights, easements and appurtenances pertaining to said Premises, including, without limitation, the right to use the common areas of the Shopping Center for the purposes j contemplated in the Lease, all of which rights are more particularly described in the Lease. 2. OPTIONS TO EXTEND TERM. Reference is particularly made to Article III of the Lease wherein Tenant is given the option to extend the term of the Lease on the terms and conditions set forth therein for five (5) successive periods of five (5) years each. 3. USE, Reference is particularly made to Article VII of the Lease wherein i Tenant is granted the right to use the Premises for any lawful retail purpose subject to that certain Restriction and Easements Agreement recorded concurrently herewith in the Official Records of Riverside County, California. I ICI I I i 4. USE.RESTRICTIONS BINDING ON SHOPPING CENTER. Section 7.2 establishes the following use restrictions binding on the Shopping Center in favor of Tenant: 7.2 Tenant's Exclusive Use. (a) No portion of the Shopping Center, other than the Premises, shall be used for a home improvement center or for any business which sells, displays, leases, rents or distributes the following items or materials, singly or in any combination: lumber, hardware, tools, plumbing supplies, pool supplies, electrical supplies, paint, wallpaper and other wallcoverings, window treatments (including draperies, curtains and blinds) except a retailer whose primary business is the sale of bedroom, bathroom and kitchen-related goods such as Linens `N Things and Bed, Bath & Beyond shall not be so limited, kitchen or bathrooms or components thereof (including tubs, sinks, faucets, mirrors, cabinets, Showers, vanities, countertops and related hardware), windows, hard and soft flooring (including tile, wood flooring and carpeting), siding, ceiling fans, gardening and garden nursery supplies, outdoor cooking equipment and accessories, patio furniture and patio accessories, indoor and outdoor lighting systems and light fixtures, cabinets and unfinished and finished furniture, kitchen and household appliances, except For the incidental sale of such items_ An "incidental sale of such items" is one in which there is no more than the lesser of(a)(i) five percent (5%) of the total floor area of such business, or (ii) 1,000 square feet of sales and/or display area, relating to such items individually (the "Individual Cap"), or (b)(i) ten percent (10%) of the total floor area of such business, or (ii) 1,000 square feet of sales and/or display area,relating to such items in the aggregate,provided, however, no single item may exceed the Individual Cap. The restriction established in this paragraph is hereinafter referred to as"'tenant's Exclusive Use Right." Notwithstanding the above, the Landlord and Tenant agree that the following list of tenants and/or similar type uses will not be restricted anywhere in the Shopping Center: 1. Grocery store (i.e.,Vons, Trader Joes, etc.) 2. Arts & Crafts store (i.e., Aaron Brothers Art Mart, Michael's Arts & Crafts, etc.) 3. Club store(i.e., Sain's Chub, Coster, etc.) 4. Stationary store (i.e., Hallmark, Office Depot, etc.) 5. Drug/Prescription store(i.e., CVS Pharmacy, Walgreen's, etc.) 6. Department store(i.e., Kohl's,Burlington Coat Factory, etc.) 7. Discount store (i.e., Target, Sears, etc.) 8. Dollar store (i.e., Dollar Tree, 99 Cents Only, etc.) 9. Fabric store (i.e., Jo Ann Fabrics, Hancock, etc.) 10. Furniture store (i.e., Levitz,Ethan Allen, etc.) 11. Organize stare (i.e., Organized Living, The Container Store, etc.) 12, Bedding store(i.e., Banner Mattress, Sit& Sleep, etc.) ".I 2 13. Store selling primarily wicker and/or rattan fitmiture (such as, but not limited to, Cost Plus, Pier 1 Imports,etc.) 14. Consumer electronics store greater than 25,000 square feet of floor area (such as,but not limited to, Good Guys, Circuit City, Best Buy, etc.) 15. Soft goods bed, bath and kitchen supplies retailer (such as, but not limited to, Linens `N Things,Bed Bath & Beyond, Stroud's,etc.) 5. RIGHT OF FIRST OFFER. Reference is particularly made to Article SKI of the Lease wherein Landlord grants to Tenant the exclusive right of first offer to purchase the Premises on the terms and conditions as more fully described therein. 6. PURPOSE OF MEMORANDUM OF LEASE_ This Memorandum of Lease is prepared for the purposes of recording a notification as to the existence of the Lease but in no way modifies the express and particular provisions of the Lease. In the event of a conflict between the terms of the Lease and the terms of this Memorandum of Lease, the terms of the Lease shall control. [intentionally Left Blank] I 3 _ �J IN WITNESS WHEREOF,the parties hereto have caused their duly authorized representatives to execute and deliver this Memorandum of Lease as of the day and year first above written. LANDLORD: ENDURE INVESTMENTS, LLC,a Nevada limited liability company By: Excel Property Management Services Inc. Iis: M 3gis b Mei Name: Mark Gabay Its: President TENANT: HOME DEPOT U.S.A., INC., a Delaware corporation By: Nance: =Or K.J ofF Title: Director rL8Qal M1 f r� i 4 STATE OF CALIFORNIA ) COUNTY OF � SS 2007, before me, a , a Notary Public in and for the State of California,personally appeared Mftp +e G q,,6�-2 personally known to me (or proved to me on the basis of satisfactory evidence)to be the person(s) whose name(s)is/are subscribed to the within instrument, and acknowledged to me that ire/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. TRI5HARMOR Commzwn#1518471 v OW Natory Pubilc-CnllfergsAn ales county SIGNATURE OF NO ARY PUBLIC canm.expiresAug 17,20M (SEAL) STATE OF CALIFORNIA ) )SS. COUNTY OF ) On M tacA, S 2007, before me, i , a Notary Public in and for the State of California,personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the persojip' whose nameVis/yrE subscribed to the within instntment, and acknowledged to me thatnshe/n executed the same in*ier/t rr authorized capacityW, and that by later/ tr signatureKon the instrument the person or the entity upon behalf of which the person) acted, executed the insbzlment. I WITNESS my hand and official seal. AtICIA R OA727 ATURE OF N Y PUBLIC ? r Commisslgn Iioigty Public -Colllornto �a county f ounty _ (SEAL) 1 5 Stantec Comml4ng Inc, r.}raaredwannaunF SnnPiuo Prim DeSerl CA P22f>0 TFi (7rn) 44F-PR44 - ---- Exhibit. r,A,, Legal Description of Premises IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA BEING THAT PORTION OF THE REMAINDER PARCEL AS SHOWN ON PARCEL MAP NO. 18787 ON FILE IN BOOK 135, PAGES 53 AND 54 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID REMAINDER PARCEL; THENCE, ALONG THE NORTH LINE OF SAID REMAINDER PARCEL, SOUTH 89°46'26" WEST, 21.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTH LINE THE FOLLOWING FIVE (5) COURSES: 1. SOUTH 00007'43" EAST, 695.78 FEET; 2. SOUTH 89052'52" WEST, 268.83 FEET; 3. SOUTH 70030'49" WEST, 303.86 FEET; 4. SOUTH 89058'47" WEST, 122.86 FEET; 5, NORTH 00001'36" WEST, 795.07 FEET TO SAID NORTH LINE; ALONG SAID NORTH LINE, NORTH 89`46'26" EAST, 676.96 FEET TO THE TRUE POINT OF BEGINNING. THE ABOVE DESCRIBED PARCEL CONTAINS 11.43 ACRES, MORE OR LESS. EXHIBIT"B" Legal Description of the Shopping Center THAT PORTION OF PARCELS 1 AND 2, REMAINDER PARCEL AND LOTS"B"AND"C" OF PARCEL MAP NO. 18787 ON FILE IN BOOK 135 OF PARCEL MAPS, PAGES 53 AND 54, OFFICIAL RECORDS OF RIVERSIDE COUNTY, STATE OF CALIFORNIA. BEGINNING AT THE NORTHEAST CORNER OF SAID REMAINDER PARCEL; THENCE SOUTH 89046726" WEST 1321.19 FEET ALONG THE NORT14 LINE OF SAID REMAINDER PARCEL; THENCE SOUTH 00013'20" EAST 463.66 FEET ALONG THE NORTH LINE OF SAID REMAINDER PARCEL TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 3625.46 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 78°21745" WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 138.94 FEET THROUGH A CENTRAL ANGLE OF 02011'45", A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 80°33'30"EAST; TI4ENCE SOUTII 89048'13" WEST 19.24 FEET TO THE BEGINNING OF A NON- TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4900.00 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 82°03'46" WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 640.89 FEET THROUGH A CENTRAL ANGLE OF 07029'38", TO A REVERSE CURVE CONCAVE EASTERLY AND HAVING RADIUS OF 20.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT"BEARS NORTH 89033'24"FAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 31.33 FEET THROUGH A CENTRAL ANGLE OF 89'45'11 THENCE NORTH 89°48'13" EAST 176.58 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 33_00 FEET, THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 23.35 FEET TIIIiOUGH A CENTRAL ANGLE OF 40032'09", TO A REVERSE CURVE CONCAVE NORTI-MASTERLY AND HAVING RADIUS OF 17.00 FEET, A LINE RADIAL TO SAID CURVE AT SAID POINT BEARS NORTH 40020'22"EAST; TFIENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 12.03 FEET THROUGH A CENTRAL ANGLE OF 40632'09"; THENCE NORTH 89048'13" EAST 1020.11 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 20.00 FEET; I yl THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE. OF 31.39 FEET THROUGH A CENTRAL ANGLE OF 89055'56'; THENCE NORTH 00007'43" WEST 1251.86 FEET ALONG EAST LINE OF SAID PARCEL 2 AND REMAINDER PARCEL TO THE POINT OF BEGINNING. 1 1 li 4 r I� ;J EXHIBIT "C" CONDITIONS OF APPROVAL 539981 1 u'rHUYLO in P4ANNIAu GurMmwo"A AN sri.(191Y'f TSL�lone t+S InHlat APPROYEO BY CITY CONCIL EXHIBITA tam .p f 1 .1Ct W Case 5.0984 PD-291 "110910 Ordil 11084 s I r The Springs Commercial Center 11PPROYAL SUBJECT TO ALL RMUM OnNUITIONS BY AR NE 3005 Northeast Comer of Ramon Road and Gene Autry Trail October 19, 2005 CONDITIONS OF APPROVAL Before final acceptance of the project, all conditions listed below shall be completed to the satisfaction of the City Engineer, the Director of Planning Services, the Chief of Police, the Fire Chief or their designee, depending on which department recommended the condition. Any agreements, easements or covenants required to be entered into shall be in a form approved by the City Attorney. PROJECT SPECIFIC CONDITIONS Administrative 1. The proposed development of the premises shall conform to all applicable regulations of the Palm Springs Zoning Ordinance, Municipal Code, or any other City Codes, ordinances and resolutions which supplement the zoning district regulations. 2. The owner shall defend, indemnify, and hold harmless the City of Palm Springs, its agents, officers, and employees from any claim, action, or proceeding against the City of Palm Springs or its agents, officers or employees to attach, set aside, void or annul, an approval of the City of Palm Springs, its legislative body, advisory agencies, or administrative officers concerning Case 5.0984-PD-291. The City of Palm Springs will promptly notify the applicant of any such claim, action, or proceeding against the City of Palm Springs and the applicant will either undertake defense of the matter and pay the City's associated legal costs or will advance funds to pay for defense of the matter by the City Attorney- If the City of Palm Springs fails to promptly notify the applicant of any such claim, action or .proceeding or fails to cooperate fully in the defense, the applicant shall not, thereafter, be responsible to defend, indemnify, or hold harmless the City of Palm Springs. Notwithstanding the foregoing, the City retains the right to settle or abandon the matter without the applicant's consent but should it do so, the City shall waive the indemnification herein, except, the City's decision to settle or abandon a matter following an adverse judgment or failure to appeal, shall not cause a waiver of the indemnification rights herein. Resolution No. Page 2 3. That the property owner(s) and successors and assignees in interest shall maintain and repair the improvements including and without limitation sidewalks, bikeways, parking areas, landscape, irrigation, fighting, signs, walls, and fences between the curb and property line, including sidewalk or bikeway easement areas that extend onto private property, in a first class condition, free from waste and debris, and in accordance with all applicable law, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction at the property owner's sale expense. This condition shall be included in the recorded covenant agreement for the property if required by the City. 4_ The project is located in an area defined as having an impact on fish and wildlife as defined in Section 711 A of the Fish and Game Code and an Environmental Impact Report is being prepared on the project; therefore a fee of$914,00 plus an administrative fee of $50.00 shall be submitted by the applicant in the form of a money order or a cashier's check payable to the Riverside County Clerk prior to Council action on the project. This fee shall be submitted by the City to the County Clerk with the Notice of Determination. Action on this application shall not be final until such fee is paid. 5. This project shall be subject to Chapters 2.24 and 3.37 of the Municipal Code regarding public art_ Prior to issuance of building permits, the project shall either provide public art or payment of an in lieu fee. In the case of the in-lieu fee, the fee shall be based upon the total building permit valuation as calculated pursuant to the valuation table in the uniform Building Code, the fee being 1/2% for commercial or industrial projects, 1/4% for new residential subdivisions, or 114% for new individual single-family residential units constructed on a lot located in an existing subdivision with first $100,000 of total building permit valuation for individual single-family units exempt. Should the public art be located on the project site, said location shall be reviewed and approved by the Director of Planning Services and the Public Arts Commission, and the property owner shall enter into a recorded agreement to maintain the art work and protect the public rights of access and viewing. CEQA 6. As adopted in the Final Environmental Impact Report (SCH#2003121001), the applicant shall provide mitigation monitoring and report to the city on implementation of environmental mitigation measures according to the Mitigation Monitoring and Reporting Program (MMRP). The applicant shall be responsible for reimbursing the city for costs associated with review and approval of the applicant's implementation of the MMRP. Resolution No. Page 3 7. The development standards of Planned Development 291 modify the underlying M-1-P zone development standards as follows: Development Standard Required M-1-P Zone Approved PD-291 Building Height 40 feet 35-00 feet Yards Abutting Residential 100 feet 17-100 feet Landscape Buffer 25 feet 17-25 feet Abutting Major Roads 25 feet Same Landscape Buffer 25 feet Same Abutting Non-Residential 20 feet 17-110 feet Landscape Buffer None 17-25 feet Walls 8 feet maximum 8 feet Coverage No Limit 74% of site Parking Spa 1571 spaces 1817 spaces Parking Lot Shading 50% minimum Same CC&R's 8. Property Conditions, Covenants and Restrictions (CC&Rs): Prior to issuance of building permits CC&Rs shall be submitted for review and approval by the Director of Planning Services in a form to be approved by the City Attorney to acknowledge Planned Development 291 (PD-291), the adopted Conditions of Approval of PD-291, and the MMRP of the Final Environmental Impact Report (SCH#2003121001); and provide for private restrictions on use of the site that implement PD-291 and the MMRP_ The provisions in the CC&Rs shall be enforceable by the City and not be amended without City approval, and shall require the maintenance of all property in a good condition in accordance with all regulations by one entity. The approved CC&Rs shall be recorded prior to issuance or the first Certificate of Occupancy. 9. The applicant shall submit to the City of Palm Springs, a deposit in the amount of $2500, for the review of the CC&R's by the City Attorney. A $250 filing fee shall also be paid to the City Planning Services Department for administrative review purposes. PROJECT OPERATIONS 10. Seasonal Garden Area: A Land Use Permit is required for all outdoor special events. A maximum of six special events, each lasting no more than two weeks in duration, may be held per year. These special events include, but are not limited to, tree sales, car washes, plant sales, furniture sales, and other unspecified outdoor events on site. Special events for Halloween and Christmas may be permitted for extended time periods, subject to the approval of a Land Resolution No. Page 4 Use Permit by the City. In addition, any outdoor future food use shall be subject to the approval of a land Use Permit by the City. 11. Outdoor Storage: Outdoor storage in the Outdoor Garden Center, Building Materials Storage, or Will Call areas shall not exceed the height of the perimeter screen fence/walls of their respective areas. 12. Signage: Prior to issuance of a building permit, the applicant shall submit for review and approval a Comprehensive Sign Program showing all proposed signage for the site. The comprehensive Sign Program shall be integrally designed with the site landscaping and architecture and incorporate reference to comments received during Architectural Advisory review of PD-291_ In no case shall mof top advertising be permitted.s 13. Loading facilities: Prior to issuance of Building permits, 1) a loading facility shall be provided for the building "Food-1" on Exhibit 1 by conversion of two nearby parking spaces or other means acceptable to the Director of Planning Services; 2). A loading facility shall be provided for building °Retail-1" on Exhibit 1 by reconfiguration of the 4-trash bins and elimination of the 3-parking spaces on the north side of the Retail-1, or by other means acceptable to the Director of Planning Services; and 3) PD-291 Exhibit 1 shall be amended to note that prior to issuance of any permit to expand any building "Major C-E" or alter the loading facilities for the buildings "Major C-E" a new loading facility plan shall be submitted for review and approval as an amendment to Planned Development 291. The Operational Noise Control Plan, as part of the MMRP (condition 6), shall limit deliveries as noted in the July 18t" letter from Home Depot in the Final EIR, and such limits shall be included in the project CC&Rs (condition 8). 14_ Site remediation: Prior to submission of a building permit, the applicant shall provide certification to the satisfaction of the City Attorney that the Removal Action Plan (RAW) has been completed and the site is clear of all environmental concerns, and that implementation of PD-291 will not pose any concerns relative to the prior land fill operation on the site. The applicant shall reimburse any city costs in the review of the certification. 15. Cart theft system: Prior to issuance of the first certificate of occupancy, the applicant shall install and operate an electronic shopping cart theft system to prevent shopping carts from being removed from the property to the satisfaction of the Director of Planning Services. The ongoing maintenance and operation of the electronic shopping cart theft system shall be provided for in the CC&Rs for the site. This requirement shall only apply to shopping carts but not lumber carts. 16. Home Depot shall be permitted to use ten parking spaces year round, as designated on the approved site plan (north of the loading dock), for a Trailer Display/Sales Area and an area to store and rent large equipment such as concrete mixers, scaffoldings, and rototillers. The equipment shall be placed so Resolution NO. Page 5 that the 26-foot wide parking lot driveway shall be kept clear at all times. 17. Outdoor display of merchandise at Home Depot shall be limited to only the designated outdoor display areas and outdoor garden center display area, as shown on the approved site plan_ Home Depot shall be permitted to leave the outdoor display items in the designated areas overnight. The use of all other areas for outdoor display of merchandise shall be prohibited_ I& Home Depot shall be permitted to install pay phones in the outdoor display areas and vestibules in front of the store, as shown on the approved site plan, Vending machines are permitted to be installed inside the vestibules. If vending machines are to be installed in the outdoor display areas, the applicant shall submit details on location and design of the areas such that the vending machines are in designated areas that do not detract from the architecture of the building. The details for the outdoor vending machines areas shall be submitted as part of the final development plans. 19. Prior to approval of the final development plans, the applicant shall submit plans for a visual terminus, to consist of landscaping or other architectural alternative, at the north end of the two north-south parking lot driveways that take access from Ramon Road. This improvement shall be constructed prior to issuance of certificate of occupancy. FINAL DLSIGN 20_ An exterior lighting plan in accordance with Zoning Ordinance Section 93.21.00, Outdoor lighting Standards, shall be submitted for review and approval by the Director of Planning Services prior to the issuance of building permits. Manufacturer's cut sheets of all exterior lighting on the building and in the landscaping shall be submitted for approval prior to issuance of a building permit. If lights are proposed to be mounted on buildings, down-lights shall be utilized, 21. Prior to issuance of the first certificate of occupancy, the roof and all equipment on the roof shall be a consistent earth tone color to be approved by the Director of Planning Services. 22. All roof mounted mechanical equipment shall be screened from all adjacent at grade vantage points both existing and future per Section 9303.00 of the Zoning Ordinance. The screening shall be considered as an element of the overall design and must blend with the architectural design of the building(s). The exterior elevations and roof plans of the buildings shall indicate any fixtures or equipment to be located on the roof of the building, the equipment heights, and type of screening. Parapet walls shall be at least 6" above the tallest piece of roof mounted equipment for the purpose of screening. Cross sections of the parapet walls and manufacturers cut sheets for each piece of roof mounted mechanical equipment shall be required prior to issuance of building permits. Resolution No. Page 6 23_ No exterior downspouts shall be permitted on any facade on the proposed building(s) which are visible from adjacent streets or residential and commercial areas_ 24. Submit plans meeting City standard for approval on the proposed trash and recyclable materials enclosure prior to issuance of a building permit. 25. No sirens, outside paging or any type of signalization will be permitted, except approved alarm systems. 26. Prior to the issuance of building permits, locations of all telephone and electrical boxes must be indicated on the building plans and must be completely screened and located in the interior of the building. Electrical transformers must be located toward the interior of the project maintaining a sufficient distance from the frontage(s) of the project. Said transformer(s) must be adequately and decoratively screened. 27. Final landscaping, irrigation, exterior lighting, and fencing plans shall be submitted for approval by the Department of Planning Services prior to issuance of a building permit. Landscape plans shall be approved by the Riverside County Agricultural Commissioner's Office prior to submittal to the City of Palm Springs. 28. The entire parking lot and all drive-through facilities must adequately screened by 4'-0" tall decorative walls and/or berms. The walls should include decorative block, cap and pilasters and berms architecturally integrated with the site architecture. Walls and berms must include landscaping, including trees and shrubs. 29. Landscaping shall include a mixture of 24", 36", 46" and 60" box size trees. All trees shall be allowed to grow to full form and height and shall not be topped or excessively trimmed. 30. Shading requirements for parking lot areas as set forth in Section 9306.00 of the Zoning Ordinance shall be met. Details to be provided with final landscape plan. A minimum 50% of the parking area must be shaded. Tree wells shall be provided within the parking lot and shall have a planting area of six feet in diameter/width. 31. The project is subject to the City of Palm Springs Water Efficient Landscape Ordinance. The applicant shall submit an application far Final Landscape Document Package to the Director of Planning Services for review and approval prior to the issuance of a building permit. Refer to Chapter 8.60 of the Municipal Code for specific requirements. 32. Prior to issuance of a building permit, the applicant must provide a standard avigation easement and non-suit covenant in a form prescribed and approved by Resolution No, Page 7 the City Attorney, with reference to present and future owners of the parcel. The avigation and non-suite covenant shall be recorded against all parcels. 33. Prior to issuance of a grading permit, a Fugitive Dust and Erosion Control Plan shall be submitted and approved by the Building Official. Refer to Chapter 8.50 of the Municipal Code for specific requirements. 34. The grading plan shall show the disposition of all cut and fill materials_ Limits of site disturbance shall be shown and all disturbed areas shall be fully restored or landscaped. 35. The project shall comply with the City of Palm Springs Transportation Demand Management (TDM) Ordinance, which establishes transportation demand management requirements for the City of Palm Springs. Refer to Chapter 8.4 of the Municipal Code for specific requirements_ This must be submitted for approval a minimum of(60) days prior to issuance of the certificate of occupancy and must be approved prior to opening. POLICE DEPARTMENT 36. Developer shall comply with Section II of Chapter 8.04 of the Palm Springs Municipal Code. FIRE DEPARTMENT 37, Fire Hydrant Systems: Following Fire Department selection of hydrant locations, plans and specifications for fire hydrant systems shall be submitted to the fire department for review and approval prior to construction (901.2.2.2 CFC). All fire hydrants shall be installed in accordance with DWA specifications and standards. No landscape planting, walls, fences, signposts, or aboveground utility facilities are permitted within 3 feet of fire hydrants, or in fine with hose connections. 38. Water Systems and Hydrants: Underground water mains and fire hydrants shall be installed, completed, tested and in service prior to the time when combustible materials are delivered to the construction site (903 CFC). Installation, testing, and inspection will meet requirements of NFPA 24 1995 edition. Prior to final approval of the installation, contractor shall submit a completed Contractor's material and Test Certificate to the Fire Department (9-2.1 NFPA 24 1995 edition). 39. Fencing Requirements: Construction site fencing required over 5,000 SF or as the Fire Marshall deems necessary as the authority having jurisdiction, in accordance with the 1998 California Fire Code and City of Palm Springs Ordinance 1570. Fencing shall remain intact until buildings are stuccoed or covered and secured with lockable doors and windows. Resolution No. Page 8 40, Access During Construction: Access for firefighting equipment shall be provided to the immediate job site at the start of construction and maintained until all construction is complete. Fire apparatus access roads shall have unobstructed width of not less than 20 feet and an unobstructed vertical clearance of not less than 13Y. Fire Department access roads shall have an all weather driving surface and support a minimum weight of 73,000 lbs. (Sec. 92 CFC). 41. Private Streets: They shall have a minimum width of at least 20 feet, pursuant to California Fire Code 902.1 however, a greater width for private streets maybe required by the City Engineer to address traffic engineering, parking, and other issues. Generally, for two-way private streets, a minimum width of 24 feet will be required, unless otherwise allowed by the City Engineer, to the minimum of 20 feet required by the Fire Code. No parking shall be allowed on ether side of the roadway. 42. Road Design: Fire apparatus access roads shall be designed and constructed as all weather capable and able to support a fire truck weighing 73,000 pounds G.V.W. (902.2.2.2CFC). The minimum inside turning radius is 30 feet, with outside radius of 45 feet. 43_ Automatic Fire Sprinklers: Approved, automatic Fire Sprinkler Systems are required for all project buildings. BUILDING DEPARTMENT 44. Application for building permit requires the submittal of three sets of construction documents, including attachments such as structural engineering, energy calculations, etc. 45. All food service type uses must have Health Department approval prior to building permit issuance. 46_ Each food service type use must be provided with its own dedicated grease interceptor (common interceptors are not allowed)_ 47. If the intent is to use CBC section 505.2 to justify the size of buildings, and ultimately to subdivide the property, the 60 foot yard required by that section will not be permitted to extend over a real property line (as opposed to an assumed property line), unless otherwise permitted by the Building and Safety Manager. ENGINEERING Before final acceptance of the project, all conditions listed below shall be completed to the satisfaction of the City Engineer. Resolution No. Page 9 STREETS 48. Any improvements within the public right-of-way require a City of Palm Springs Encroachment Permit. 49. Applicant shall obtain State permits and approval of plans for all work done on State Highway 111. A copy of Caltrans requirements shall be submitted to the City Engineer prior to issuance of building permits, 50_ Submit street improvement plans prepared by a Registered Civil Engineer to the Engineering Division. The plans shall be approved by the City Engineer prior to issuance of any building permits. 51. Site Access Alternative D shall be implemented for this project, as identified in the Traffic Impact Study prepared by Endo Engineering for "The Springs Retail Center", dated May 2005. The required improvements below identify the construction of a connection to Mission Drive from the project site, via an extension of San Joaquin Drive south of Mission Drive with an intersection (standard street knuckle) at Gene Autry Trail aligned with Site Access A, as generally shown in Figure 1-10 "Alternative Access Plan D" from the Traffic Impact Study. In the event Caltrans demonstrates requirements that prohibit the ability to construct a directional median opening on Highway 111 at Site Access B, the City Engineer will coordinate with the applicant to resolve the restriction, including consideration of Site Access Alternative B and installation of a full access signalized driveway at Site Access B. Conditions indicated herein relative to Highway 111 are subject to change in accordance with Caltrans requirements, as may be indicated in an Encroachment Permit issued by Caltrans to the applicant for construction of improvements along Highway 111 related to this project. GENE AUTRY TRAIL (HIGHWAY 111) 52. Remove the existing curb returns, spandrels, and cross-gutter at the intersection with Mission Drive, and construct 35 feet radius curb returns and spandrels, and an 8 feet wide cross-gutter, in accordance with City of Palm Springs Standard Drawing No. 200 and 206. 53. Remove the existing curb and gutter, and construct a new 40 feet wide local street intersection aligned with Site Access A (northerly driveway along Gene Autry Trail). The new street shall be constructed with a 6 inch curb and gutter located 20 feet north and south of the centerline of Site Access A, extending to a standard knuckle aligned with the southerly prolongation of the centerline of San Joaquin Drive, including 35 feet radius curb returns and spandrels, and an 8 feet wide cross-gutter, in accordance with City of Palm Springs Standard Drawing No_ 200 and 206. Resolution No. Page 10 54. Construct a standard street knuckle, in accordance with City of Palm Springs Standard Drawing No. 104, at the intersection aligned with Site Access A and the southerly prolongation of the centerline of San Joaquin Drive. 55. Construct a 30 feet wide driveway approach in accordance with City of Palm Springs Standard Drawing No. 201. The driveway approach shall be constructed at the location identified as Site Access A (northerly Gene Autry Trail driveway), within the standard street knuckle. 56. Construct a 5 feet wide sidewalk along both sides of the new local street, in accordance with City of Palm Springs Standard Drawing No. 210. 57. Construct a minimum pavement section of 3 inches asphalt concrete pavement over 6 inches crushed miscellaneous base with a minimum subgrade of 24 inches at 95% relative compaction, or equal, within the new local street from edge of proposed gutters in accordance with City of Palm Springs Standard Drawing No. 110 and 300. The required pavement section shall be designed by a California registered Geotechnical Engineer using "R" values from the project site and submitted to the City Engineer for approval, and designed to withstand anticipated heavy truck volumes generated by the development. 58. Construct Type A curb ramps meeting current California State Accessibility standards on each side of the new local street intersection aligned with Site Access A, in accordance with City of Palm Springs Standard Drawing No. 212. 59. Construct a directional median opening within the existing landscaped median, aligned with Site Access B. The directional median opening shall provide a 100 feet long southbound, left-turn bay, and shall be designed and constructed in accordance with the Caltrans Highway Design Manual and in a manner to prohibit westbound left-turn egress from Site Access B. The applicant shall be responsible for removing and replacing irrigation system and landscaping improvements within the existing median, to the satisfaction of the Director of Planning Services and City Engineer, in accordance with Caltrans standards. 60. Site Access B (central Gene Autry Trail driveway) shall be revised to eliminate the two westbound exit lanes, and shall consist of a divided entry with two entrance lanes (12 feet wide each, 24 feet wide total), a landscaped median (13 feet wide), and one exit lane (16 feet wide), for a total width of 53 feet, or as otherwise approved by the City Engineer. Remove the existing curb and gutter, and construct Site Access B as a 53 feet wide driveway approach at the location as shown on the approved site plan, in accordance with City of Palm Springs Standard Drawing No. 205. Access shall be limited to right-turn in, right-turn out, and left-turn in only. Left-turn out egress shall be prohibited. 61. Remove the existing curb and gutter, and construct Site Access C (southerly Gene Autry Trail driveway) as a 32 feet wide driveway approach at the location Resolution No. Page 11 as shown on the approved site plan, in accordance with City of Palm Springs Standard Drawing No. 205. Access shall be limited to right-turn in and right-turn out only. 62. Construct a Type C curb ramp meeting current California State Accessibility standards on each side of the driveway approaches (for Site Access 13 and C) in accordance with City of Palm Springs Standard Drawing No_ 214. The applicant shall ensure that an appropriate path of travel, meeting ADA guidelines, is provided across the driveway, and shall adjust the location of the access ramps, if necessary, to meet ADA guidelines, subject to the approval of the City Engineer and ADA Coordinator. If necessary, additional pedestrian and sidewalk easements shall be provided on-site to construct a path of travel meeting ADA guidelines. 63. Construct a 10 feet wide sidewalk behind the curb along the entire frontage in accordance with City of Palm Springs Standard Drawing No. 210. The sidewalk may be meandering, and shall be constructed of colored Portland cement concrete. The admixture shall be Desert Sand, Palm Springs Tan, or approved equal color by the Engineering Division. The applicant shall dedicate an easement for sidewalk purposes for portions of the sidewalk, if meandering, that are located outside of existing right-of-way. 64. Construct a Type A curb ramp meeting current California State Accessibility standards at the northeast and southeast comers of the intersection of Gene Autry Trail and Mission Drive, in accordance with City of Palm Springs Standard Drawing No. 212. 65_ All broken or off grade street improvements shall be repaired or replaced. RAMON ROAD 66. Remove the existing curb, gutter and sidewalk, and construct Site Access D (westerly Ramon Road driveway) as a 32 feet wide driveway approach at the location as shown on the approved site plan, in accordance with City of Palm Springs Standard Drawing No. 205. Access shall be limited to right-turn in and right-turn out only. 67. Site Access E (easterly Ramon Road driveway) shall be revised to eliminate the two southbound exit lanes, and shall consist of a divided entry with two entrance lanes (12 feet wide each, 24 feet wide total), a landscaped median (5 feet wide), and one exit lane (16 feet wide), for a total width of 45 feet, or as otherwise approved by the City Engineer. Remove the existing curb returns, spandrels, cross-gutter, and access ramps, and construct Site Access E as a 45 feet wide driveway approach at the location as shown on the approved site plan, in accordance with City of Palm Springs Standard Drawing No_ 205. Access shall be limited to right-turn in, right-turn out, and left-turn in only. Resolution No. Page 12 68. Modify the existing median opening at Site Access E to provide a directional median opening with a 100 feet long eastbound, left-turn access into the development and to prohibit southbound left-turn egress from Site Access E; and modify the existing median to extend the eastbound, left turn pocket at San Luis Rey Drive to provide a 200 feet long left-turn bay. The median modifications shall be designed and constructed in accordance with the Caltrans Highway Design Manual. The applicant shall be responsible for removing and replacing irrigation system and landscaping improvements within the existing median, to the satisfaction of the Director of Planning Services and City Engineer. fig. Construct a Type C curb ramp meeting current California State Accessibility standards on each side of the driveway approaches (for Site Access D and E) in accordance with City of Palm Springs Standard Drawing No. 214. The applicant shall ensure that an appropriate path of travel, meeting ADA guidelines, is provided across the driveway, and shall adjust the location of the access ramps, if necessary, to meet ADA guidelines, subject to the approval of the City Engineer and ADA Coordinator. If necessary, additional pedestrian and sidewalk easements shall be provided on-site to construct a path of travel meeting ADA guidelines. 70. Remove existing street improvements as necessary to construct a 170-feet long by 12-feet wide bus turn out on the north side of Ramon Road, west of San Luis Rey Drive. Dedicate additional right-of-way concentric with the back of the 8 feet wide color concrete sidewalk to match existing improvements. Construction of a bus stop shelter shall be required, with a design compatible to project architecture as approved by Sunline Transit Agency and the Director of Planning Services. Bus stop furniture and other accessories, as required by Sunline Transit Agency, shall be provided by the developer, as necessary. The applicant shall be responsible for coordinating the removal of existing bus stop furniture and other accessories located at the northeast corner of Ramon Road and San Luis Rey Drive, as required by Sunline Transit Agency. 71. All broken or off grade street improvements shall be repaired or replaced_ SAN LUIS REY DRIVE 72. Dedicate an additional 21 feet of right-of-way along the entire frontage, together with a property line corner cut-back at the southeast corner of the subject property in accordance with City of Palm Springs Standard Drawing No. 105. 73. Remove the existing asphalt concrete berm and replace with a 6 inch curb and gutter located 48 feet west of the record centerline of San Luis Rey Drive along the entire frontage, with a 35 feet radius curb return at the northwest corner of the intersection of Ramon Road and San Luis Rey Drive, in accordance with City of Palm Springs Standard Drawing No. 200 and 206_ Install an appropriate taper and transition from the north end of the subject property to the widened section of Resolution No. Page 13 San Luis Rey Drive, to the satisfaction of the City Engineer. 74. Remove and reconstruct the existing 14 feet wide catch basin and storm drain connector pipe located on the north side of Ramon Road, west of San Luis Rey Drive, associated with Riverside County Flood Control District (RCFC) Palm Springs Storm Drain Line 34, as necessary to facilitate the widening of San Luis Rey Drive. The reconstruction of the catch basin and storm drain connector pipe shall be subject to the review and approval by RCFC and the City Engineer. 75. Construct a 170-feet long by 12-feet wide bus turn out on the west side of San Luis Rey Drive, north of Ramon Road (at the current location of the existing bus stop). Dedicate additional right-of-way concentric with the back of the 8 feet wide colored concrete sidewalk to match existing improvements. Construction of a bus stop shelter shall be required, with a design compatible to project architecture as approved by Sunline Transit Agency and the Director of Planning Services. Bus stop furniture and other accessories, as required by SunLine Transit Agency, shall be provided by the developer, as necessary. 76. Remove and replace the existing cross-gutter located across the north leg of the Ramon Road and San Luis Rey Drive intersection, as necessary to facilitate the required street improvements. 77. Construct Site Access F and G (southerly and center San Luis Rey Drive driveways) as a 32 feet wide driveway approach at the locations as shown on the approved site plan, in accordance with City of Palm Springs Standard Drawing No. 205. Full access shall be permitted. 78. Construct Site Access H (northerly San Luis Rey Drive driveway) as a 30 feet wide driveway approach at the location as shown on the approved site plan, in accordance with City of Palm Springs Standard Drawing No. 201. The applicant shall post signage indicating that delivery trucks are prohibited from turning left onto San Luis Rey Drive. 79. Construct a Type C curb ramp meeting current California State Accessibility standards on each side of the driveway approaches (for Site Access F and G) in accordance with City of Palm Springs Standard Drawing No. 214. The applicant shall ensure that an appropriate path of travel, meeting ADA guidelines, is provided across the driveway, and shall adjust the location of the access ramps, if necessary, to meet ADA guidelines, subject to the approval of the City Engineer and ADA Coordinator. If necessary, additional pedestrian and sidewalk easements shall be provided on-site to construct a path of travel meeting ADA guidelines. 80. Construct an entry monument, or non-traversable median within San Luis Rey Drive immediately north of Site Access H (separating opposing traffic lanes) to restrict delivery truck right-turn access into the development from San Luis Rey Resolution No. Page 14 Drive, or left-turn access out of the development onto San Luis Rey Drive. The entry monument shall be designed to narrow the travelway, but allow non-project related delivery truck access directly into the adjacent neighborhood. The entry monument design shall be subject to the review and approval of Cathedral City. The applicant is encouraged to coordinate with Cathedral City staff to obtain the application process or procedure to obtain official approval of the entry monument design, including, if applicable, approval from the City Council of Cathedral City, 81. Construct an 8 feet wide sidewalk behind the curb along the entire frontage in accordance with City of Palm Springs Standard Drawing No, 210. The sidewalk shall be constructed of colored Portland cement concrete. The admixture shall be Desert Sand, Palm Springs Tan, or approved equal color by the Engineering Division. 82. Construct a minimum pavement section of 3 inches asphalt concrete pavement over 6 inches crushed miscellaneous base with a minimum subgrade of 24 inches at 95% relative compaction, or equal from edge of proposed gutter to clean sawcut edge of pavement, in accordance with City of Palm Springs Standard Drawing No. 110. The required pavement section shall be designed by a California registered Geotechnical Engineer using "R" values from the project site and submitted to the City Engineer for approval, and designed to withstand anticipated heavy truck volumes generated by the development. 83. The applicant shall crackfill, repair, or otherwise improve the existing pavement section in accordance with requirements indicated in a Geotechnical Design Report evaluating the current pavement condition of San Luis Rey Drive and its ability to withstand use by the anticipated heavy truck volumes generated by the development, which may include, but not be limited to, construction of a minimum 11/2 inch asphalt concrete overlay on the existing asphalt concrete pavement within San Luis Rey Drive. 84. Install new traffic striping improvements to provide two (2) through traffic lanes northbound and southbound, a 12 feet wide center two-way left-tum lane, and an 8 feet parking lane adjacent to the east curb, from Ramon Road across the project frontage, transitioning at the north property line. Provide appropriate traffic striping and signage along the entire frontage, as required by the City Engineer. Parking shall be prohibited along the west side of San Luis Rey Drive along the entire project frontage. The applicant shall install appropriate "No Parking° signs prohibiting parking along the west side of San Luis Rey Drive, along the entire project frontage. MISSION DRIVE 85. The entire segment of Mission Drive, from Gene Autry Trail to San Joaquin Drive shall be removed and reconstructed as required herein, to facilitate access into Resolution No. Page 15 the proposed development. 86. Construct a 6 inch curb and gutter located 20 feet north and south of the centerline of Mission Drive from Gene Autry Trail to San Joaquin Drive, with a 25 feet radius curb return and spandrel at the northwest, northeast, and southeast corners of the intersection of Mission Drive and San Joaquin Drive, and with a 35 feet radius curb return and spandrel at the southwest corner of the intersection of Mission Drive and San Joaquin Drive, in accordance with City of Palm Springs and City of Cathedral City specifications. 87. Construct a 6 feet wide cross gutter across the north and south legs of the Mission Drive and San Joaquin Drive intersection with a flow line parallel with and 20 feet from the centerline of San Joaquin Drive in accordance with City of Palm Springs and City of Cathedral City specifications. 88. Construct a 5 feet wide sidewalk behind the curb on the north and south sides of Mission Drive, from Gene Autry Trail to San Joaquin Drive, in accordance with City of Palm Springs Standard Drawing No, 210. 89. Construct a Type A curb ramp meeting current California State Accessibility standards at the northwest, northeast, southwest, and southeast corners of the intersection of Mission Drive and San Joaquin Drive, in accordance with City of Palm Springs Standard Drawing No. 212. 90. Construct a minimum pavement section of 3 inches asphalt concrete pavement over 6 inches crushed miscellaneous base with a minimum subgrade of 24 inches at 95% relative compaction, throughout the entire travelway to the end of new improvements at the east leg of the Mission Drive and San Joaquin Drive intersection, in accordance with City of Palm Springs Standard Drawing No, 110. The required pavement section shall be designed by a California registered Geotechnical Engineer using "R" values from the project site and submitted to the City Engineer for approval, and designed to withstand anticipated heavy truck volumes generated by the development. 91. Construct an entry monument, or non-traversable median within Mission Drive immediately east of San Joaquin Drive (separating opposing traffic lanes) to discourage delivery truck access into the adjacent neighborhood along Mission Drive. The entry monument shall be designed to narrow the travelway, but allow non-project related delivery truck access directly into the adjacent neighborhood. The entry monument design shall be subject to the review and approval of Cathedral City. The applicant is encouraged to coordinate with Cathedral City staff to obtain the application process or procedure to obtain official approval of the entry monument design, including, if applicable, approval from the City Council of Cathedral City. 92_ Install new traffic striping improvements to provide two (2) westbound traffic Resolution No. Page 16 lanes and one (1) eastbound traffic lane from Gene Autry Trail to San Joaquin Drive. The westbound lanes shall be striped for left-turn and right-turn movements; the left-turn lane shall be 12 feet wide and the right-turn lane shall be 14 feet wide. The eastbound lane shall be 14 feet wide. Appropriate traffic striping and signage along the Mission Drive frontage to San Joaquin Drive shall be installed, as required by the City Engineer. Parking shall be prohibited along both sides of Mission Drive from Gene Autry Trail to San Joaquin Drive. The applicant shall install appropriate "No Parking" signs restricting parking along the both sides of this segment of Mission Drive. 93. Install a 2-way stop controlled intersection at Mission Drive and San Joaquin Drive, with stop controls installed for northbound and southbound vehicles on San Joaquin Drive. Install appropriate traffic striping and signage in accordance with City of Palm Springs and City of Cathedral City specifications. At the Mission Drive and San Joaquin Drive intersection, the applicant shall post signage indicating that eastbound commercial vehicles accessing the development are prohibited from proceeding eastbound, and are directed to proceed southbound at San Luis Rey Drive; and shall post signage prohibiting northbound commercial vehicles leaving the development from turning right (eastbound) onto Mission Drive. Proposed signage shall be subject to the review and approval by Palm Springs and Cathedral City. SAN JOAQUIN DRIVE 94. The entire segment of San Joaquin Drive, from Mission Drive to the standard street knuckle aligned with the centerline of Site Access A shall be removed and reconstructed as required herein, to facilitate access into the proposed development. 95. Dedicate additional right-of-way as necessary to construct a standard street knuckle on-site, at the intersection of the prolongation of the centerline of San Joaquin Drive and the centerline of Site Access A, in accordance with City of Palm Springs Standard Drawing No. 104. 96. Construct a 6 inch curb and gutter, 20 feet east and west of the centerline from Mission Drive to the standard street knuckle located at the intersection with the centerline of Site Access A. 97. Construct a 5 feet wide sidewalk behind the curb on the east and west sides of San Joaquin Drive, from Mission Drive to the standard street knuckle located at the intersection with the centerline of Site Access A, in accordance with City of Palm Springs Standard Drawing No. 210_ 98. Construct a minimum pavement section of 3 inches asphalt concrete pavement over 6 inches crushed miscellaneous base with a minimum subgrade of 24 inches at 95% relative compaction, throughout the entire travelway, in Resolution No. Page 17 accordance with City of Palm Springs Standard Drawing No. 110. The required pavement section shall be designed by a California registered Geotechnical Engineer using "R" values from the project site and submitted to the City Engineer for approval, and designed to withstand anticipated heavy truck volumes generated by the development. SANITARY SEWER 99. All sanitary facilities shall be connected to the public sewer system. New laterals shall not be connected at manholes. 100. If not already constructed, extend the existing 15 inch public sewer main from the end of the existing sewer main in San Luis Rey Drive north of Ramon Road to the point of on-site sewer connection for the project. The applicant shall coordinate installation of laterals for future sewer connections to adjacent properties along the east side of San Luis Rey Drive, within Cathedral City, subject to the review and approval of the Desert Water Agency and the Cathedral City, City Engineer. The sewer main extension shall be constructed prior to issuance of a certificate of occupancy, or as otherwise allowed by the City Engineer. 101. Coordinate with Desert Water Agency for preparation of sewer improvement plans for the extension of the existing 15 inch public sewer main in San Luis Rey Drive. The plans shall be approved by Desert Water Agency prior to issuance of any building permits. 102. All on-site sewer systems shall be privately maintained by the Commercial Shopping Center. Provisions for maintenance of the on-site sewer system acceptable to the City Engineer shall be included in the Covenants, Conditions and Restrictions (CC&R"s) required for this project. 103. All sewer mains constructed by the applicant and to be publicly maintained shall be subject to the review and approval by Desert Water Agency. The applicant shall comply with all Desert Water Agency requirements necessary for acceptance of the extended sewer main by Desert Water Agency. 104. Construct an on-site private sewer system to collect sewage from the development and connect to the existing public sewer system. Private on-site sewer mains shall conform to City sewer design standards, including construction of V.C.P_ sewer mains and standard sewer manholes, unless otherwise allowed by the City Engineer. A profile view of the on-site private sewer mains is not necessary provided sufficient invert information is provided in the plan view, including elevations with conflicting utility lines. Plans for sewers other than the private on-site sewer mains, Le. building sewers and laterals from the buildings to the on-site private sewer mains, are subject to separate review and approval by the Building Division_ Resolution No. Page Is 105. The on-site private sewer system shall connect to the sewer main within San Luis Rey Drive in accordance with Desert Water Agency standards. GRADING 106. Submit a Precise Grading and Paving Plan prepared by a California registered Civil Engineer to the Engineering Division for review and approval. The Precise Grading and Paving Plan shall be approved by the City Engineer prior to issuance of grading permit. 107. A Fugitive Dust Control Plan shall be prepared by the applicant and/or its grading contractor and submitted to the Engineering Division for review and approval. The applicant and/or its grading contractor shall be required to comply with Chapter 8.50 of the City of Palm Springs Municipal Cade, and shall be required to utilize one or more "Coachella Valley Best Available Control Measures" as identified in the Coachella Valley Fugitive Dust Control Handbook for each fugitive dust source such that the applicable performance standards are met. The applicant's or its contractor's Fugitive Dust Control Plan shall be prepared by staff that has completed the South Coast Air Quality Management District (AQMD) Coachella Valley Fugitive Dust Control Class_ The applicant and/or its grading contractor shall provide the Engineering Division with current and valid Gertificate(s) of Completion from AQMD for staff members that have completed the required training_ For information on attending a Fugitive Dust Control Class and information on the Coachella Valley Fugitive Dust Control Handbook and related "PM10" Dust Control issues, please contact AQMD at (909) 396-3752, or at www.AQMD.gov_ A Fugitive Dust Control Plan, in conformance with the Coachella Valley Fugitive Dust Control Handbook, shall be submitted to and approved by the Engineering Division prior to approval of the Precise Grading and Paving Plan. 108. The first submittal of the Precise Grading and Paving Plan shall include the following information_ a copy of final approved conformed copy of Conditions of Approval; a copy of a final approved conformed copy of the Site Plan; a copy of current Title Report; a copy of Soils Report; and a copy of the associated Hydrology Study/Report_ 109. Drainage swales shall be provided adjacent to all curbs and sidewalks to keep nuisance water from entering the adjacent streets, roadways, or gutters. 110. A National Pollutant Discharge Elimination System (NPDES) stormwater permit, issued from the California Regional Water Quality Control Board (Phone No_ 760- 346-7491) is required for the proposed development_ A copy of the executed permit shall be provided to the City Engineer prior to approval of the Precise Grading and Paving Plan. Resolution No. Page 19 111. In accordance with City of Palm Springs Municipal Code, Section 8.50.025 (c), the applicant shall post with the City a cash bond of two thousand dollars ($2,000.00) per disturbed acre for mitigation measures for erosion/blowsand relating to this property and development. 112. A soils report prepared by a California registered Geotechnical Engineer shall be required for and incorporated as an integral part of the grading plan for the proposed development. A copy of the soils report shall be submitted to the Building Department and to the Engineering Division prior to approval of the Precise Grading and Paving Plan_ The soils report shall evaluate existing pavement conditions of San Luis Rey Drive, Mission Drive, and San Joaquin Drive, and identify pavement repairs and/or pavement construction requirements with regard to the use of these streets by heavy trucks associated with this development_ 113. In cooperation with the Riverside County Agricultural Commissioner and the California Department of Food and Agriculture Red Imported Fire Ant Project, applicants for grading permits involving a grading plan and involving the export of soil will be required to present a clearance document from a Department of Food and Agriculture representative in the form of an approved "Notification of Intent To Move Soil From or Within Quarantined Areas of Orange, Riverside, and Los Angeles Counties" (RIFA Form CA-1) prior to approval of the Precise Grading and Paving Plan. The California Department of Food and Agriculture office is located at 73-710 Fred Waring Drive, Palm Desert (Phone: 760-776-8208). DRAINAGE 114. All stormwater runoff across the property shall be accepted and conveyed in a manner acceptable to the City Engineer and released to Palm Springs Master Storm Drain Line 34 through an on-site storm drain system. Stormwater runoff may not be released directly to Line 34 or adjacent streets without first intercepting and treating with approved Best Management Practices (BMP's). 115. Provisions for the interception of nuisance water from entering adjacent public streets from the project site shall be provided through the use of a minor storm drain system that collects and conveys nuisance water to landscape or parkway areas, and in only a stormwater runoff condition, pass runoff directly to the streets through parkway or under sidewalk drains. 116. The on-site storm drain system, including storm drain pipe sizing, catch basin sizing and other specifications for construction of required on-site storm drainage improvements shall be finalized in a Hydrology Report for this development. 117. Submit storm drain improvement plans for all on-site storm drainage system facilities for review and approval by the City Engineer. Resolution No. Page 20 118. Construct storm drainage improvements, including but not limited to, catch basins and storm drain lines, for drainage of the development into Line 34, subject to the review and approval by the City of Palm Springs, City of Cathedral City, and Riverside County Flood Control District (RCFC). 119. The applicant shall extend Palm Springs Master Storm Drain Lateral 34A within San Luis Rey Drive, from the existing terminus just north of Ramon Road along the frontage of the development. The applicant shall coordinate with Riverside County Flood Control District (RCFC) for the design and installation of Storm Drain Lateral 34A, including associated catch basins and storm drain connector pipes, along both sides of San Luis Rey Drive. The extension of Storm Drain Lateral 34A shall be completed prior to construction of the required street improvements within San Luis Rey Drive, and prior to issuance of a certificate of occupancy, unless otherwise allowed by the City Engineer. 120. The project is subject to flood control and drainage implementation fees. The acreage drainage fee at the present time is $9,212.00 per acre in accordance with Resolution No. 15189. Any design and construction costs associated with the extension of Storm Drain Lateral 34A may be credited against drainage implementation fees otherwise due. The applicant shall coordinate the credit of drainage implementation fees with the City and Riverside County Flood Control District (RCFC) through approval of a Cooperative Agreement between the applicant, the City of Palm Springs, the City of Cathedral City, and RCFC, prior to issuance of building permits. In the event extension of Storm Drain Lateral 34A is not completed prior to an application for building permits, the drainage implementation fee applicable to any building permit(s) shall be paid, with the fee(s) being added to the total costs related to the extension of Storm Drain Lateral 34A for which credit of drainage implementation fees will be considered. ON-SITE 121. The minimum pavement section for all on-site pavement shall be 2Y2 inches asphalt concrete pavement over 4 inches crushed miscellaneous base with a minimum subgrade of 24 inches at 95% relative compaction, or equal. If an alternative pavement section is proposed, the proposed pavement section shall be designed by a California registered Geotechnical Engineer using "R" values from the project site and submitted to the City Engineer for approval. 122. Sufficient stacking area shall be provided on-site to accommodate a minimum of seven tandem vehicle spaces, inclusive of the vehicle being served at each drive-through service window, per Municipal Code Section 93.06.00, and the queue of vehicles shall not extend into or interfere with any internal circulation patterns. Resolution No. Page 21 GENERAL 123. Any utility trenches or other excavations within existing asphalt concrete pavement of off-site streets required by the proposed development shall be backfilled and repaired in accordance with City of Palm Springs Standard Drawing No. 115. The applicant shall be responsible for removing, grinding, paving and/or overlaying existing asphalt concrete pavement of off-site streets as required by and at the discretion of the City Engineer, including additional pavement repairs to pavement repairs made by utility companies for utilities installed for the benefit of the proposed development (i.e. Desert Water Agency, Southern California Edison, Southern California Gas Company, Time Warner, Verizon, etc.). Multiple excavations, trenches, and other street cuts within existing asphalt concrete pavement of off-site streets required by the proposed development may require complete grinding and asphalt concrete overlay of the affected off-site streets, at the discretion of the City Engineer. The pavement condition of the existing off-site streets shall be returned to a condition equal to or better than existed prior to construction of the proposed development. 124. All proposed utility lines shall be installed underground. 125_ In accordance with Chapter 8.04.401 of the City of Palm Springs Municipal Code, all existing and proposed electrical lines of thirty-five thousand volts or less and overhead service drop conductors, and all gas, telephone, television cable service, and similar service wires or lines, which are on-site, abutting, and/or transecting, shall be installed underground unless specific restrictions are shown in General Orders 95 and 128 of the California Public Utilities Commission, and service requirements published by the utilities. A detailed plan approved by the owner(s) of the affected utilities depicting all above ground facilities in the area of the project to be undergrounded, shall be submitted to the Engineering Division prior to approval of the grading plan. The existing overhead utilities across the north properly line meet the requirement to be installed underground. Utility undergrounding shall be completed prior to issuance of a certificate of occupancy. 126. All existing utilities shall be shown on the improvement plans. The existing and proposed service laterals shall be shown from the main line to the property line. 127. Upon approval of any improvement plan by the City Engineer, the improvement plan shall be provided to the City in digital format, consisting of a DWG (AutoCAD drawing file) and DXF (AutoCAD ASCII drawing exchange file). Variation of the type and format of the digital data to be submitted to the City may be authorized, upon prior approval of the City Engineer. 128. The original improvement plans prepared for the proposed development and approved by the City Engineer shall be documented with record drawing "as- built" information and returned to the Engineering Division prior to issuance of a Resolution No. Page 22 certificate of occupancy. Any modifications or changes to approved improvement plans shall be submitted to the City Engineer for approval prior to construction. 129. Nothing shall be constructed or planted in the corner cut-off area of any driveway which does or will exceed the height required to maintain an appropriate sight distance per City of Palm Springs Zoning Code Section 93.02.00, D. 130. All proposed trees within the public right-of-way and within 10 feet of the public sidewalk and/or curb shall have City approved deep root barriers installed per City of Palm Springs Standard Drawing No. 904. MAP 131. In accordance with Government Cade 66426 (c), an application for a Tentative Parcel Map shall be submitted to the Planning Services Department if the subject property is proposed to be subdivided for purposes of sale, lease, or financing of commercial parcels within the proposed development. 132. In the absence of an approved and recorded Parcel Map, an application for a lot line adjustment shall be submitted to the Engineering Division for review and approval to remove Lot "B" of Parcel Map 18787 from record, and to adjust the existing property lines of Parcels 1 and 2 of Parcel Map 18787 to avoid intersecting any proposed buildings_ A copy of a current title report and copies of record documents shall be submitted with the application for the Lot Line Adjustment. The application shall be reviewed and approved by the Engineering Division, and the Lot Line Adjustment shall be recorded, prior to issuance of any building permit for buildings intersected by existing property lines. 133. Relocation or abandonment of record easements across the property shall be performed prior to issuance of a building permit for buildings proposed within the record easements. The easements, identified as an easement to Southern Sierras Power Company recorded on May, 9, 1922 in Book 570, Page 34 of Deeds of Records of Riverside County; and a 10 feet wide easement to California Water and Telephone Company recorded July 12, 1957 in Book 2117, Page 483 of Official Records of Riverside County; and Lot `V, as depicted on Parcel Map No. 18787, shall be extinguished, quit-claimed, relocated or abandoned to facilitate development of the subject property. All record easements shall be extinguished, quit-claimed, relocated or abandoned to facilitate development of the subject property. Without evidence of such, proposed buildings encumbered by existing record easements are rendered unbuildable until such time as these easements are removed of record and are not an encumbrance to the affected building(s). TRAFFIC 134. Relocate and modify the existing traffic signal at the intersection of Ramon Road Resolution No. Page 23 and San Luis Rey Drive, in conjunction with the associated widening of San Luis Rey Drive. The traffic signal shall be split-phased with dual left-turn lanes in the north-south direction. Traffic striping or other improvements shall be installed on San Luis Rey Drive, south of Ramon Road, as necessary to implement the required improvements. The applicant shall submit traffic signal modification plans, and traffic striping and signage plans prepared by a California registered Civil Engineer or Traffic Engineer for review and approval by the City Engineer. The traffic signal shall be installed and operational prior to issuance of a Certificate of Occupancy, unless otherwise allowed by the City Engineer. The applicant shall be responsible for 100% of the cost of these improvements, however, any other developers fair share costs that the City may receive for this improvement may be reimbursed to the applicant subject to the terms of a reimbursement agreement_ 135_ Install a traffic signal at the intersection of Gene Autry Trail and Mission Drive. The applicant shall submit traffic signal installation plans prepared by a California registered Civil Engineer or Traffic Engineer for review and approval by the California Department of Transportation (Caltrans). The traffic signal shall be installed and operational prior to issuance of a Certificate of Occupancy, unless otherwise allowed by the City Engineer. The applicant shall be responsible for 100% of the cost to design and install the traffic signal; however, the applicant's fair share cost of this improvement is 11.51%. Any other developer's fair share costs that the City may receive for this traffic signal may be reimbursed to the applicant subject to the terms of a reimbursement agreement, up to a maximum of 88.49% of the total cost. 136. If reimbursement of costs associated with traffic mitigation measures is requested in writing by the applicant, the applicant shall submit a formal request for preparation of a Reimbursement Agreement and a $2,500 deposit for City staff time associated with the preparation of the Reimbursement Agreement, including City Attorney fees. The applicant shall be responsible for payment of all associated staff time and expenses necessary in the preparation and processing of the Reimbursement Agreement with the City Council, and shall submit additional deposits as necessary when requested by the City, which are included in the amount that may be reimbursed to the applicant through the Reimbursement Agreement, The Reimbursement Agreement is subject to the City Council's review and approval, and its approval is not guaranteed nor implied by this condition. 13T Install traffic striping and signage improvements at the intersection of Sunny Dunes Road and Crossley Road to provide an exclusive northbound left-turn lane, and an exclusive eastbound left-turn lane. Submit traffic striping and signage plans to the City Engineer for review and approval. Required traffic striping and signage improvements shall be completed prior to issuance of a certificate of occupancy. Resolution No. Page 24 138_ Based on the "The Springs Retail Centers Planned Development District Traffic Impact Study prepared by Endo Engineering, dated May 2005 (as amended or updated) traffic mitigation measures are required. For each item identified below, the applicant shall provide a conceptual geometric plan of the intersection improvements, identifying existing and future improvements, and any necessary right-of-way acquisition. The applicant shall submit an estimate for the cost to construct the required improvements, including associated relocation/modification of existing traffic signal improvements and acquisition of additional right-of--way (if necessary), for review and approval by the City Engineer. The following mitigation measures shall be required prior to issuance of a building permit: a. Payment of applicant's fair share of 4.29% of the cost to widen the Sunrise Way and Ramon Road intersection to add a northbound right-turn lane and a second southbound left-tum lane. b. Payment of applicant's fair share of 5.56% of the cost to widen the Farrell Drive and Ramon Road intersection to add a northbound right-turn lane and a second southbound left-tum lane. c. Payment of applicant's fair share of 14.00% of the cost to widen the Crossley Road and Ramon Road intersection to add a northbound right- turn lane. d. Payment of applicant's fair share of 11.43% of the cost to widen the Cathedral Canyon Drive and Ramon Road intersection to add a northbound left-turn lane. e. Payment of applicant's fair share of 6.18% of the cost to install a traffic signal at the Crossley Road and Sunny Dunes Road intersection. f Payment of applicant's fair share of 8.57% of the cost to install a traffic signal at the San Luis Rey Drive and Mesquite Avenue (renamed Dinah Shore Drive) intersection. g. Payment of applicant's fair share of 7.80% of the cost to widen the Crossley Road and Mesquite Avenue (renamed Dinah Shore Drive) intersection to add a northbound through lane, and a second southbound left-tum lane. 139. A minimum of 48 inches of clearance shall be provided on public sidewalks for handicap accessibility. Minimum clearance on public sidewalks shall be provided by either an additional dedication of a sidewalk easement (if necessary) and widening of the sidewalk; or by the relocation of any obstructions within the public sidewalks along the Gene Autry Trail, Ramon Road, San Luis Rey Drive, Mission Drive, and San Joaquin Drive frontages of the subject property. 140. All damaged, destroyed, or modified traffic control devices, pavement legends, or striping associated with the proposed development shall be replaced as required by the City Engineer prior to issuance of a Certificate of Occupancy. Resolution No. Page 25 141. Install a 24 inch stop sign, stop bar, and "STOP" legend for traffic exiting the development at each of the site driveways (Site Access A, 8, C, D, E, F, G, and H) in accordance with City of Palm Springs Standard Drawing Nos. 620-625, 142. Construction signing, lighting and barricading shall be provided for on all projects as required by City Standards or as directed by the City Engineer. As a minimum, all construction signing, lighting and barricading shall be in accordance with State of California, Department of Transportation, "Manual of Traffic Controls for Construction and Maintenance Work Zones" dated 1996, or subsequent additions in force at the time of construction. 143. This property is subject to the Transportation Uniform Mitigation Fee which shall be paid prior to issuance of building permit.