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DATE: September 5, 2012 CONSENT CALENDAR
SUBJECT: APPROVE AN AGREEMENT FOR THE PURCHASE OF REAL
PROPERTY AND ESCROW INSTRUCTIONS FROM THE CHINO
CIENEGA FOUNDATION, A CALIFORNIA PUBLIC BENEFIT
CORPORATION AND STEPHEN C. NICHOLS & SARAH J. BENSON,
TRUSTEES OF THE BENSON-NICHOLS TRUST OF 2003 FOR
CERTAIN REAL PROPERTY CONSISTING OF APPROXIMATELY 2.78
ACRES, LOCATED AT THE NORTHWEST CORNER OF TRAMWAY
ROAD AND NORTH PALM CANYON DRIVE, AT 2901 NORTH PALM
CANYON DRIVE, APN: 504-040-001-8, IN THE AMOUNT OF $690,000
FROM: David H. Ready, City Manager
BY: Community & Economic Development Department
SUMMARY
This action would facilitate the purchase by the City of the 2.78 acre parcel in fee from
the property owner, which would consist of the Visitor Center Parking Lot and the
Entryway Sign parcel and the acreage in between.
In 1971, Sallie and Culver Nichols granted the City by license (the "Right of Way
Agreement") a right to place the City's gateway entry sign on a portion of the Nichols
Site at no cost. In 2003, the successor parties entered a Lease Agreement, which
included the area subject to the Right of Way as well as property for the construction of
a parking lot for the City's then-new Visitor Center at 2901 North Palm Canyon Drive,
landscaped pathways, and entry landscaping and signage improvements to be
constructed by its Public Arts Commission. The area between the gateway sign and the
Visitor Center was to be minimally developed as a series of landscaped pathways. This
Lease superseded and replaced the Right of Way Agreement.
Since 2003, the City has operated the Visitor Center and constructed the enlarged and
upgraded entry sign on the property. A portion of the property ownership has now
passed from a trust to a charitable foundation, and the owner now desires to sell the
property to the City.
REM NO.
City Council Staff Report
September 5, 2012 --Page 2
Nichols Purchase and Sale
The City appraised the property in March, 2011 and the value was determined to be
$690,000. Staff has revisited the appraisal over the past year and given the additional
square footage acquired under the Purchase and Sale Agreement beyond what was
appraised, at no additional compensation to the Seller, has determined the price
remains fair. Additionally, given the open space and recreational nature of the
acquisition, Staff also proposes that the City use Quimby park funds for the acquisition.
RECOMMENDATION:
t. APPROVE AN AGREEMENT FOR PURCHASE AND SALE OF REAL
PROPERTY AND ESCROW INSTRUCTIONS BETWEEN THE CITY OF PALM
SPRINGS AND THE CHINO CIENEGA FOUNDATION, A CALIFORNIA PUBLIC
BENEFIT CORPORATION AND STEPHEN C. NICHOLS & SARAH J. BENSON,
TRUSTEES OF THE BENSON-NICHOLS TRUST OF 2003 FOR CERTAIN
REAL PROPERTY CONSISTING OF APPROXIMATELY 2.78 ACRES,
LOCATED AT THE NORTHWEST CORNER OF TRAMWAY ROAD AND
NORTH PALM CANYON DRIVE, AT 2901 NORTH PALM CANYON DRIVE,
APN: 504-040-001-8, IN THE AMOUNT OF $690,000
2. Approve Resolution No. Amending the 2012-2013 Budget in the
Amount of$200,000
3. Authorize the City Manager or his designee to execute all necessary documents.
STAFF ANALYSIS:
In 1971, Sallie and Culver Nichols granted the City by license a right to place the City's
gateway entry sign on a portion of the Nichols Site, at no cost to the City. In 2003, the
parties entered a Lease Agreement, which included the original area as well as Property
for the construction of a parking lot for the City's then-new Visitor Center at 2901 North
Palm Canyon Drive, landscaped pathways, and entry landscaping and signage
improvements to be constructed by its Public Arts Commission. The area between the
gateway sign and the Visitor Center was to be minimally developed as a series of
landscaped pathways. This Lease superseded and replaced the original Right of Way
Agreement.
The property is now under the ownership of the Chino Cienega Foundation, a California
Public Benefit Corporation, as a 50% owner, and Stephen C. Nichols & Sarah J.
Benson, Trustees of the Benson-Nichols Trust of 2003, as the remaining 50% owners.
During the term of the Lease, it was anticipated that the Visitor Center, would be
integrated with the ultimate development of the Nichols Site.
In 2007, the City commenced construction of the Entry Improvements and subsequently
determined that it needed additional land from the Nichols Site, more particularly
described in Exhibit "B" of the Lease, "Map of the Lease Area." In the amendment to
City Council Staff Report
September 5, 2012-- Page 3
Nichols Purchase and Sale
the 2003 Lease, the additional square footage was added and the expiration of the
Lease term was extended from June 30, 2008 to June 30, 2010. The Lease expired in
June, 2010. Part of the Purchase and Sale Agreement would be a retroactive
amendment to the Lease granting the City the legal right to have occupied the property
since the Lease expiration in June, 2010, at no cost to the City.
Under the terms of the Lease, at any time during the term of the Lease and any
extension, the City had the option to purchase the fee title interest in the Property at the
then-current fair market value of the Property. Fair market value was to be determined
by an appraisal performed by Dozier Appraisal Services for the City in March, 2011.
The value was determined to be $690,000. Staff has revisited the appraisal over the
past year to determine whether the price remains fair: the additional square footage
acquired under the Purchase and Sale Agreement beyond what was appraised, at no
additional compensation to the Seller, mitigates any potential decline in per square foot
value seen in a new appraisal. In addition, land prices in Palm Springs have actually
risen slightly over the past year.
Additionally, given the open space and recreational nature of the acquisition, Staff
proposes that the City use Quimby park funds for the acquisition. There are sufficient
funds in that account to acquire this parcel.
Nichols still desires to develop the Nichols Site for a range of uses permitted under the
General Plan and Chino Cone Ordinance but does not currently have a development
plan.
This Agreement would grant the City the ownership of the property with the initial
payment of $200,000 and a Note for the remaining $490,000 (two notes of $245,000
each, one to each one-half interest in the property) for a period of seven years.
JVRay on , irector David H. Ready, C ager
Attachments:
1. Leasehold Map with Topography and Surround Land Uses
2. Budget Amendment
3. Purchase and Sale Agreement with Exhibits
3
City Council Staff Report
September 5, 2012 --Page 4
Nichols Purchase and Sale
ATTACHMENT "A"
Leasehold Map Showing Visitor Center and Entry Sign
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RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, AMENDING THE BUDGET
FOR FISCAL YEAR 2012-13.
WHEREAS, Resolution No. 23146 approving the Budget for the Fiscal Year
2012-2013 was adopted on June 6, 2012; and
WHEREAS the City Manager has recommended, and the City Council desires to
approve, certain amendments to said budget.
NOW THEREFORE THE CITY COUNCIL DETERMINES, RESOLVES AND
APPROVES AS FOLLOWS: that the Director of Finance is authorized to record inter-
fund cash transfers as required in accordance with this Resolution, and Resolution No.
23146, adopting the Budget for Fiscal Year 2012-13 is hereby amended as follows:
SECTION 1. ADDITIONS
Fund Activity Account Amount
Quimby Fund 2460 Pending $200,000
Purpose: Establish funding for Purchase of Visitor Center Parking Lot, Entry Sign site
and adjacent parcel. Initial payment followed by a seven year note.
SECTION 2. Source
Fund ActivityAccount Amount
Quimby Fund 152-29301 $200,000
Fund Balance
ADOPTED THIS 5th DAY OF September, 2012.
David H. Ready, City Manager
ATTEST:
James Thompson, City Clerk
6
Resolution No.
Page 2
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that
Resolution No. is a full, true and correct copy, and was duly adopted at a regular
meeting of the City Council of the City of Palm Springs on by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
James Thompson, City Clerk
City of Palm Springs, California
7
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY AND ESCROW INSTRUCTIONS
Escrow No.
Date of Opening of
Escrow: 12012
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND
ESCROW INSTRUCTIONS ("Agreement") is made this day of 2012, by and
between Chino Cienega Foundation, a California public benefit corporation and Stephen C.
Nichols & Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003 (collectively,
"Seller"), and The City of Palm Springs, a California municipal corporation and Charter City
("Buyer").
RECITALS
A. Seller is the owner of that certain real property consisting of approximately 2.78
gross acres, referred to as 2901 North Palm Canyon Drive; APN: 504-040-001-8, located at
the northwest corner of Tramway Road and North Palm Canyon Drive in the City of Palm
Springs, County of Riverside, State of California, more particularly described on Exhibit "A"
attached hereto ("Land"), together with (i) all rights, privileges, easements, licenses and interests
appurtenant thereto, including, without limitation, all oil, gas, water and water rights
(collectively, "Appurtenances"); and (ii) all intangible property("Intangible Property") owned or
held by Seller in connection with the Land, including, without limitation, development rights,
governmental approvals and land entitlements. The Land, Appurtenances and Intangible
Property are collectively referred to herein as the"Property."
B. Buyer has occupied the Property as Seller's tenant pursuant to a rent-free lease
that expired on June 30, 2010 ("Lease"), and Seller has agreed retroactively to an extension of
the Lease, through July 31, 2012, without any rent payable by Buyer. It is the intent of the
parties that the Visitor Center and the ultimate development of the adjacent property owned by
Seller ("Nichols Site") represent an integrated, harmonious project, and that reciprocal ingress,
egress and parking covenants may be utilized to integrate the development.
C. Buyer has occupied the Property as Seller's tenant since 2003 and has constructed
improvements on the Property, including a parking lot and the Palm Springs Entry Sign, and
therefore deems the Property suitable for Buyer's use.
C. Seller wishes to sell the property to Buyer and Buyer wishes to buy the property
from Seller pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
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858448.1
TERMS AND CONDITIONS
1. PURCHASE AND SALE OF PROPERTY.
Buyer hereby agrees to purchase from Seller, and Seller agrees to sell to Buyer the
Property, upon the terms and conditions hereinafter set forth.
2. OPENING OF ESCROW; CLOSING DATE.
2.1 Opening of Escrow. Within five (5) business days after the execution of this
Agreement by Buyer and Seller, the parties shall open an escrow ("Escrow") with Liberty
Escrow ("Escrow Holder") by causing an executed copy of this Agreement to be deposited with
Escrow Holder. Escrow Holder and Title Company have a physical office location in the City
of Palm Springs and were selected through the Buyer's Escrow Rotation Program. Escrow shall
be deemed open on the date that a fully executed copy of this Agreement is delivered to Escrow
Holder ("Opening of Escrow"). Escrow Holder shall fax written notice of the Opening of
Escrow date to Buyer and Seller.
2.2 Closing Date. Escrow shall close on or before 2012
("Closing Date"). The terms the "Close of Escrow" and/or the "Closing" are used herein to
mean the time the Grant Deed and Deed of Trust (as hereinafter defined) is recorded in the
Office of the County Recorder of Riverside County, California.
2.3 Time is of the Essence. Buyer and Seller agree that time is of the essence and
each party specifically agrees to strictly comply and perform the obligations herein in the time
and manner specified and waives any and all rights to claim such compliance by mere substantial
compliance with the terms of this Agreement.
3. CONSIDERATION.
3.1 Purchase Price. The total purchase price for the Property is Six Hundred Ninety
Thousand AND 00/100 DOLLARS ($690,000.00) ("Purchase Price"). The Purchase Price to be
paid by Buyer to Seller is all-inclusive compensation of Seller's interest in the Property and any
rights or obligations which exist or may arise out of the acquisition of the Property for public
purposes, which compensation Seller acknowledges and agrees is inclusive, without limitation,
of Seller's fee interest in the Land and any improvements located thereon, severance damages,
relocation expenses, costs, interest, attorneys' fees, and any claim whatsoever of Seller which
might arise out of or relate to the acquisition of the Property by Buyer.
3.2 Payment of Purchase Price. On or before the day preceding Close of Escrow,
Buyer shall deposit $200,000.00, as a portion of the Purchase Price ("Initial Payment") with
Escrow Holder in "good funds," and a Promissory Note, shown in Exhibit "C" to this
Agreement, and Deeds of Trust, shown in Exhibit "D" to this Agreement. ' "Good funds" shall
mean a wire transfer of funds, cashier's or certified check drawn on or issued by the offices of a
financial institution located in the State of California, or cash.
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858448.1
4. ADDITIONAL FUNDS AND DOCUMENTS REQUIRED FROM BUYER AND
SELLER.
4.1 Buyer. Buyer agrees that on or before 1:00 p.m. on the business day preceding
the Closing Date, Buyer will deposit with Escrow Holder the Initial Payment and all additional
funds and/or documents (executed and acknowledged, if appropriate) which are necessary to
comply with the terms of this Agreement,including, without limitation, the following:
(a) A Preliminary Change of Ownership Statement completed in the manner
required in Riverside County; and
(b) Such funds and other items and instruments as may be necessary in order
for Escrow Holder to comply with this Agreement.
4.2 Seller. Seller agrees that on or before 1:00 p.m. on the business day preceding the
Closing Date, Seller will deposit with Escrow Holder such funds and other items and instruments
(executed and acknowledged, if appropriate) as may be necessary in order for the Escrow Holder
to comply with this Agreement, including, without limitation, the following:
(a) A grant deed conveying the Property to Buyer in the form attached hereto
as Exhibit`B" ("Grant Deed");
(b) Two duplicate originals of a Non-Foreign Affidavit in the form attached
hereto as Exhibit "B"("Non-Foreign Affidavit');
(c) Two duplicate originals of California Form 590-RE Real Estate
Withholding Exemption Certificates in the form required by the California
Franchise Tax Board ("California Residency Affidavit'); and
(d) Such funds and other items and instruments as may be necessary in order
for Escrow Holder to comply with this Agreement.
4.3 Recordation, Completion and Distribution of Documents. Escrow Holder will
cause the Grant Deed to be recorded when (but in no event after the Closing Date) it can issue
the Title Policy in the form described in Section 5.2 below, and holds for the account of Seller
the items described above to be delivered to Seller through Escrow, less costs, expenses and
disbursements chargeable to Seller pursuant to the terms hereof.
5. TITLE MATTERS.
5.1 General. Seller will convey to Buyer good and marketable title to the property by
a valid Grant Deed, free of any encumbrances, easements, or any other restrictions or
reservations of rights of any kind reserved to, retained by, or granted to Seller.
5.2 Approval of Title.
(a) Promptly following execution of this Agreement (but in no event later
than ten (10) days following Opening of Escrow), Seller shall cause to be delivered to Buyer a
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858448.1 1
Preliminary Title Report issued through First American Title Insurance Company ("Title
Company"), describing the state of title of the Property, together with legible copies of all
exceptions specified therein and a map plotting all locatable easements specified therein
("Preliminary Title Report"). Buyer shall notify Seller in writing ("Buyer's Title Notice") of
Buyer's approval of all matters contained in the Preliminary Title Report or of any objections
Buyer may have to title exceptions or other matters ("Disapproved Exceptions") contained in the
Preliminary Title Report within fifteen (15) business days after Buyer's receipt of the
Preliminary Title Report ("Buyer's Title Notice").
(b) In the event Buyer delivers Buyer's Title Notice within said period, Seller
shall have a period of ten (10) days after receipt of Buyer's Title Notice in which to notify Buyer
of Seller's election to either (i) agree to attempt to remove the Disapproved Exceptions prior to
the Close of Escrow; or (ii) decline to remove any such Disapproved Exceptions ("Seller's
Notice"). Seller shall only elect to decline to remove Disapproved Exceptions which Seller in
good faith believes Seller's reasonable efforts would not result in removal or as to which
removal would result in cost or expense to Seller other than nominal administrative expense
incurred in the process of removal. Seller's failure to deliver Seller's Notice within said ten (10)
day period shall be deemed Seller's election to decline to remove the Disapproved Exceptions.
If Seller notifies Buyer of its election to decline to remove the Disapproved Exceptions, if Seller
is deemed to have elected to decline to remove the Disapproved Exceptions or if Seller is unable
to remove the Disapproved Exceptions, Buyer may elect either to terminate this Agreement and
the Escrow or to accept title to the Property subject to the Disapproved Exception(s). Buyer
shall exercise such election by delivery of written notice to Seller and Escrow Holder within ten
(10) days following the earlier of: (i) the date of written advice from Seller that such
Disapproved Exception(s) cannot be removed; or (ii) the date Seller declines or is deemed to
have declined to remove such Disapproved Exception(s).
(c) Upon the issuance of any amendment or supplement to the Preliminary
Title Report which adds additional exceptions, the foregoing right of review and approval shall
also apply to said amendment or supplement, provided, however, that Buyer's initial period of
review and approval or disapproval of any such additional exceptions shall be limited to ten (10)
days following receipt of notice of such additional exceptions, together with copies of the
underlying documents referenced therein.
(d) Nothing to the contrary herein withstanding, Buyer shall be deemed to
have automatically objected to all deeds of trust, mortgages, judgment liens, federal and state
income tax liens, delinquent general and special real property taxes and assessments and similar
monetary encumbrances affecting the Property, and Seller shall discharge any such non-
permitted title matters of record prior to or concurrently with the Close of Escrow.
5.3 Title Policv. When Escrow Holder holds for Buyer the Grant Deed in favor of
Buyer executed and acknowledged by Seller covering the Property, Escrow Holder shall cause to
be issued and delivered to Buyer and Seller as of the Close of Escrow a CLTA standard coverage
owner's policy of title insurance ("Title Policy"), or, upon Buyer's request therefor, an ALTA
extended coverage owner's policy of title insurance, issued by Title Company, with liability in
the amount of the Purchase Price, covering the Property and showing title vested in Buyer free of
encumbrances, except:
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858448.1
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(a) All non-delinquent general and special real property taxes and assessments
for the current fiscal year;
(b) Those easements, encumbrances, covenants, conditions, restrictions,
reservations, rights-of-way and other matters of record shown on the
Preliminary Title Report which have been approved by Buyer pursuant to
Section 5.1 above;
(c) The standard printed exceptions and exclusions contained in the CLTA or
ALTA form policy;
(d) Any exceptions created or consented to by Buyer, including, without
limitation, any exceptions arising by reason of Buyer's possession of or
entry on the Property.
6. CONDITIONS PRECEDENT TO CLOSE OF ESCROW.
6.1 Conditions to Buyer's Obligations. The obligations of Buyer under this
Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by Buyer of
each of the following conditions precedent:
(a) Title Company will issue the Title Policy as required by Section 5.2 of this
Agreement.
(b) Buyer has approved or deemed to have approved the condition to title of
the Property on or before the date provided in Section 5.1.
(c) Buyer has approved or deemed to have approved all Due Diligence Items
on or before the Due Diligence Date.
(d) Seller has removed from the Property all equipment, personal property,
debris and waste.
(e) Escrow Holder holds and will deliver to Buyer the instruments and funds,
if any, accruing to Buyer pursuant to this Agreement.
(f) All representations and warranties specified in Section 9.1 are true and
correct.
(g) Buyer's approval of any other conditions specified in this Agreement.
(h) Seller shall not be in default of any term or condition of this Agreement.
Buyer's approval shall be based upon Buyer's sole and absolute discretion; provided, however, if
Buyer has not delivered written notice of approval of the above conditions to Seller and Escrow
Holder by the times provided above, or if no time is provided, on or before the Close of Escrow,
each such condition shall automatically and conclusively be deemed to have been disapproved
by Buyer. Buyer may waive such automatic disapproval in writing.
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858448.1
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6.2 Conditions to Seller's Obligations. The obligations of Seller under this
Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by Seller of
each of the following conditions precedent:
(a) Escrow Holder holds and will deliver to Seller the instruments and funds
accruing to Seller pursuant to this Agreement.
(b) Buyer shall not be in default of any term or condition of this Agreement.
If requested by Escrow Holder or Buyer, Seller shall deliver to Escrow Holder
and Buyer written notice of satisfaction of the conditions set forth in this Section 6.2.
6.3 Covenant of Seller and Buyer. Buyer and Seller agree to cooperate with one
another, at no cost or expense to the cooperating party, in satisfying the conditions precedent to
Close of Escrow. Buyer shall be responsible for proceeding with diligence and in good faith to
satisfy the conditions to Buyer's performance set forth in Section 6.1 and Seller shall be
responsible for proceeding with diligence and in good faith to satisfy the conditions to Seller's
performance set forth in Section 6.2.
6.4 Termination for Failure of Condition. In the event Buyer fails to approve or
disapprove any condition precedent specified in Section 6.1 or elsewhere in this Agreement on or
before the date for approval set forth therein, Seller shall notify Buyer of such failure and Buyer
shall have a period of twenty (20) days from receipt of such notice to elect to approve such
matter or to disapprove such matter and terminate this Agreement. The failure of Buyer to
approve such matter within said twenty (20) days shall be deemed to constitute disapproval
thereof and Buyer's election to terminate. In the event Seller fails to approve or disapprove any
condition precedent specified in Section 6.1 or elsewhere in this Agreement on or before the date
for approval set forth therein, Buyer shall notify Seller of such failure and Seller shall have a
period of twenty (20) days from receipt of such notice to elect to approve such matter or to
disapprove such matter and terminate this Agreement. The failure of Seller to approve such
matter within said twenty (20) days shall be deemed to constitute disapproval thereof and
Seller's election to terminate. In the event Buyer or Seller terminates this Agreement based on
the disapproval of one or more of said conditions precedent as provided herein, Buyer shall be
entitled to all sums deposited into Escrow,paid to Seller as a portion of the Purchase Price.
7. ADDITIONAL COVENANTS OF BUYER AND SELLER.
7.1 Environmental Claims. Notwithstanding any contrary provisions of this
Agreement or otherwise, upon the Closing Date, Buyer shall and does hereby release Seller from
any liability, cost or expense Buyer may incur as a result of Buyer's Lease of the Property from
Seller or purchase of the Property or the presence of any Hazardous Materials (hereinafter
defined) which were knowingly and willingly placed on the Property by Buyer, with the
exception of the Retained Environmental Liabilities. Such release shall survive the Closing
Date. For the purposes of this Agreement, Hazardous Materials shall be deemed to mean
asbestos, polychlorinated biphenyls, petroleum or by-products thereof, radioactive materials, or
any chemical, material or substance included in the definitions of "hazardous substances"
"hazardous materials", "hazardous waste", "toxic substances" and/or words of similar import,
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858448.1 13
under any federal, state and local laws, ordinances, rules and regulations whether present or
future, relating to and/or dealing with the protection of the environment and/or human health and
safety and/or applicable to the generation,handling, manufacture, installation, treatment, storage,
use, transportation, discharge, disposal, presence and/or release into the air, soil, water at, above
or below ground level (whether accidental or intentional) of such substances or materials. This
release does not apply to any liability, cost or expense Buyer may incur as a result of the
presence of any Hazardous Materials (hereinafter defined) which are or may be located in, on or
about the Property that existed prior to the Lease's effective date or were knowlingly and
willingly placed upon the Property by Seller (the "Retained Environmental Liabilities"). Buyer
takes the Property without any representations or warranties by Seller or Seller's agent regarding
the existence of Hazardous Materials in, on, or about the Property, except for Seller's express
representations and warranties in this Section 7.1, Section 8, and elsewhere in this Agreement;
otherwise the Property is being purchased, conveyed and accepted by Buyer in its As-Is
condition and Buyer accepts the Property subject to all patent and/or latent physical conditions
whether or not known or yet to be discovered.
7.2 Master Plan. Seller intends to develop the Nichols Site for a range of uses
permitted under the General Plan but does not currently have a development plan (herein the
"Master Plan"). Any development on the Nichols Site, the Property or the adjacent City
Property (the Visitor Center) is subject to the Chino Cone Special Policy Area (Area 5A) and
must be consistent with the Environmentally Sensitive Development Areas Specific Plan
Ordinance (ESA-SP) in the Pahn Springs Zoning Code ("Code"). As such, under the Code any
development by Buyer or Seller would require a Specific Plan that would necessitate describing
and integrating adjacent land uses.
7.3 Survival. Notwithstanding any other provision of this Agreement, the provisions
of this Section 7 shall survive the Close of Escrow and the delivery of the Grant Deed.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Representations and Warranties. Seller hereby makes the following
representations and warranties to Buyer, each of which (i) is material and relied upon by Buyer
in making its determination to enter into this Agreement; (ii) to Seller's actual knowledge, is true
in all respects as of the date hereof and shall be true in all respects on the date of Close of
Escrow on the Property; and (iii) shall survive the Close of Escrow of the purchase and sale of
the Property as well as any future transfer of the Property to Buyer or any transferee, successor
or assignee of Buyer:
(a) There are no pending or threatened litigation, allegations, lawsuits or
claims, whether for personal injury, property damage, property taxes,
contractual disputes or otherwise, which do or may affect the Property or
the operation or value thereof, and there are no actions or proceedings
pending or, to the best of Seller's knowledge, threatened against Seller
before any court or administrative agency in any way connected with the
Property and neither the entering into of this Agreement nor the
consummation of the transactions contemplated hereby will constitute or
result in a violation or breach by Seller of any judgment, order, writ,
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858448.1 14
injunction or decree issued against or imposed upon it. There is no action,
suit, proceeding or investigation pending or threatened against Seller
which would become a cloud on Buyer's title to or have a material adverse
impact upon the Property or any portion thereof or which questions the
validity or enforceability of the transaction contemplated by this
Agreement or any action taken pursuant hereto in any court or before or
by any federal, district, county, or municipal department, commission,
board,bureau, agency or other governmental instrumentality.
(b) There are no contracts, leases, claims or rights affecting the Property and
no agreements entered into by or under Seller shall survive the Close of
Escrow that would adversely affect Buyer's rights with respect to the
Property, except as heretofore disclosed in writing by Seller to Buyer
pursuant to Section 6.3.
(c) Seller has delivered or, within the period required in Section 6.3, will have
delivered true, correct and complete copies of all the documents and other
information specified in Section 6.3 in Seller's possession or control (or
has reasonable access thereto). To the best of Seller's knowledge, the
information contained in the said documents is true and accurate.
(d) No part of the Property has been used by Seller for the use, storage,
disposal, or release of toxic or hazardous substances or wastes and that, to
the best of Seller's actual knowledge, no part of the Property has ever been
so used.
(e) There are no executory contracts, options or agreements existing (other
than this Agreement) relating to the purchase of all or any portion of the
Property or any interest therein.
(f) All federal, state, municipal, county and local taxes, the nonpayment of
which might become alien on or affect all or part of the Property, which
are due and payable prior to the Closing have been paid, or on the Closing
Date will have been paid in full.
(g) There are no contingent liabilities arising out of the ownership or
operation of, or affecting, the Property or any part thereof which would be
binding upon the Buyer or to which the Property would be subject after
the Closing.
(h) Seller has obtained, or will obtain before the Close of Escrow, all required
consents, releases and permissions in order to vest good and marketable
title in Buyer.
(i) The closing of the various transactions contemplated by this Agreement
will not constitute or result in any default or event that with the notice or
lapse of time, or both, would be a default,breach or violation of any lease,
mortgage, deed of trust or other agreement, instrument or arrangement by
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858448.1 15
which Seller or the Property are bound. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
will not violate any provision of, or require any consent, authorization or
approval under any law or administrative regulation or any order, award,
judgment, writ, injunction or decree applicable to, or any governmental
permit or license issued to Seller relating to the Property.
(j) Other than those conditions or encumbrances expressly identified in the
Preliminary Title Report which have been approved by Buyer pursuant to
Section 5.1 above, no defects or conditions of any portion of the Property
or the soil exists which may impair the use of the Property.
(k) All representations and warranties made hereunder are in addition to any
representations and warranties implied by law and in no event shall this
Section 8.1 be construed to limit, diminish or reduce any obligation of
disclosure implied upon Seller by law.
8.2 Changed Circumstances. If Seller becomes aware of any fact or circumstance
which would change or render incorrect, in whole or in part, any representation or warranty
made by Seller under this Agreement, whether as of the date given or any time thereafter through
the Close of Escrow and whether or not such representation or warranty was based upon Seller's
knowledge and/or belief as of a certain date, Seller will give immediate written notice of such
changed fact or circumstance to Buyer, but such notice shall not release Seller of its liabilities or
obligations with respect thereto. Seller shall issue a certificate as of the Close of Escrow stating
that all the representations and warranties contained in Section 9.1 are true and correct as of said
date, or setting forth in detail which of such matters are not true and correct. Buyer shall have
ten (10) days from the receipt of any notice by Seller of the material change of any
representation or warranty made by Seller hereunder to terminate this Agreement by providing
written notice to Seller and Escrow Holder, and receive return of its Deposit and any other sums
deposited in the Escrow.
9. ESCROW PROVISIONS.
9.1 Escrow Instructions. This Agreement, when signed by Buyer and Seller, shall
also constitute escrow instructions to Escrow Holder. If required by Escrow Holder, Buyer and
Seller agree to execute Escrow Holder's standard escrow instructions, provided that the same are
consistent with and do not conflict with the provisions of this Agreement. In the event of any
such conflict, the provisions of this Agreement shall prevail.
9.2 General Escrow Provisions. Escrow Holder shall deliver the Title Policy to the
Buyer and instruct the Riverside County Recorder to mail the Grant Deed to Buyer at the address
set forth in Section 13.13 after recordation. All funds received in this Escrow shall be deposited
in one or more general escrow accounts of the Escrow Holder with any bank doing business in
Riverside County, California, and may be disbursed to any other general escrow account or
accounts. All disbursements shall be made by Escrow Holder's check.
9.3 Proration of Real Property Taxes.
-9-
16
858448.1
(a) All non-delinquent general and special real property taxes and assessments
shall be paid by Seller, prorated to the Close of Escrow on the basis of a thirty (30) day month
and a three hundred sixty day (360) year. Seller acknowledges that Buyer is a governmental
agency, not subject to payment of taxes. Accordingly, Seller shall be solely responsible for
seeking a refund of any overpayment of taxes from the appropriate taxing agencies. In the event
that property taxes are assessed on a parcel of real property which includes land other than the
Property, such proration shall include only taxes attributable to the Property, calculated in teens
of total gross square feet of land assessed pursuant to the tax statement versus total gross square
footage of the Property. Any supplemental tax bills received after Close of Escrow shall be paid
by Seller to the extent they relate to a period prior to Close of Escrow. If a supplemental tax bill
covers a period commencing before and continuing after Close of Escrow, Seller will pay the tax
and shall be solely responsible for seeking any refund from the appropriate taxing agency. The
provisions of this Section shall survive Close of Escrow.
(b) The provisions of this Section shall survive Close of Escrow. If either
party fails to pay its pro rata share of taxes or other expenses by the times herein provided,
interest shall accrue on all unpaid amounts from when owing until paid at five percent (5%) over
the Federal Discount Rate quoted by the Federal Reserve Bank of San Francisco on the 25th day
of the month preceding the date interest commences to accrue.
9.4 Payment of Costs. Seller shall pay one-half (1/2) of the Escrow fee, all
documentary transfer taxes, all title insurance premiums for that portion of the Title Policy
premium which would be incurred for a CLTA form policy, and the charge for drawing the
Grant Deed. Buyer shall pay one-half (1/2) of the Escrow fee, all charges for recording the
Grant Deed, and that portion of the Title Policy premium which is attributable to the additional
cost of obtaining any additional coverage requested by Buyer, including the difference between
CLTA and ALTA coverage. Seller and Buyer shall each be responsible for their respective
attorneys' fees and costs. All other costs of Escrow not otherwise specifically allocated by this
Agreement shall be apportioned between the parties in a manner consistent with the custom and
usage of Escrow Holder.
9.5 Termination and Cancellation of Escrow. If Escrow fails to close as provided
above, Escrow shall terminate automatically without further action by Escrow Holder or any
party, and Escrow Holder is instructed to return all funds and documents then in Escrow to the
respective depositor of the same with Escrow Holder; provided that any document which has
been signed by a party who is not to receive the return of such document, shall be marked "void
and of no force or effect" by Escrow Holder before it is delivered. Cancellation of Escrow, as
provided herein, shall be without prejudice to whatever legal rights Buyer or Seller may have
against each other arising from the Escrow or this Agreement.
10. BROKERAGE COMMISSIONS.
Buyer and Seller each represent and warrant to the other parties that no third party is
entitled to a broker's commission and/or finder's fee with respect to the transaction contemplated
by this Agreement. Buyer and Seller each agree to indemnify and hold the other parties harmless
from and against all liabilities, costs, damages and expenses, including, without limitation,
-10-
85s44s.
17
attorneys' fees, resulting from any claims or fees or commissions,based upon agreements by it, if
any, to pay a broker's commission and/or finder's fee.
11. POSSESSION.
Possession of the Property shall be delivered to Buyer as of Close of Escrow. In the
event any personal property remains on the Property following the Close of Escrow, it shall
automatically become the property of Buyer.
12. DEFAULTS; ENFORCEMENT.
12.1 Defaults and Right to Cure. Failure or delay by either party to timely perform any
covenant of this Agreement constitutes a default under this Agreement, but only if the party who
so fails or delays does not commence to cure, correct or remedy such failure or delay within
thirty (30) days after receipt of a written notice specifying such failure or delay, and does not
thereafter prosecute such cure, correction or remedy with diligence to completion. The injured
party shall give written notice of default to the party in default, specifying the default complained
of by the injured party. Except as required to protect against further damages, the injured party
may not institute proceedings against the party in default until thirty (30) days after giving such
notice. Failure or delay in giving such notice shall not constitute a waiver of any default, nor
shall it change the time of default.
12.2 Specific Performance. In addition to any other remedies permitted by this
Agreement, if either party defaults hereunder by failing to perform any of its obligations herein,
each party agrees that the other shall be entitled to the judicial remedy of specific performance,
and each party agrees (subject to its reserved right to contest whether in fact a default does exist)
not to challenge or contest the appropriateness of such remedy.
13. MISCELLANEOUS.
13.1 Successors and Assigns. This Agreement shall be binding upon the parties hereto
and their respective heirs, representatives, transferees, successors and assigns. The transfer of all
or any part of the interest of any party hereunder in the Property shall not release Seller of their
obligations under this Agreement.
13.2 Time Period Computations. All periods of time referred to in this Agreement
shall include all Saturdays, Sundays and California state or national holidays unless the reference
is to business days, in which event such weekends and holidays shall be excluded in the
computation of time and provide that if the last date to perform any act or give any notice with
respect to this Agreement shall fall on a Saturday, Sunday or California state or national holiday,
such act or notice shall be deemed to have been timely performed or given on the next
succeeding day which is not a Saturday, Sunday or California state or national holiday.
13.3 Qualification; Authority. Each individual executing this Agreement on behalf of
a partnership or corporation represents and warrants that such entity is duly formed and
authorized to do business in the State of California and that he or she is duly authorized to
execute and deliver this Agreement on behalf of such partnership or corporation in accordance
with authority granted under the formation documents of such entity, and, if a corporation, by a
-11-
85W8.1
18
duly passed resolution of its Board of Directors, that all conditions to the exercise of such
authority have been satisfied, and that this Agreement is binding upon such entity in accordance
with their respective terms. Upon request of either party, Escrow Holder or Title Company,
Buyer and Seller agree to deliver such documents reasonably necessary to evidence the
foregoing.
13.4 Attorneys' Fees. In the event of any dispute between the parties hereto arising out
of the subject matter of this Agreement or the Escrow, or in connection with the Property, the
prevailing party in such action shall be entitled to have and to recover from the other party its
actual attorneys' fees and other expenses and costs in connection with such action or proceeding
(including expert witness fees) in addition to its recoverable court costs.
13.5 Interpretation; Governing Law. This Agreement shall be construed according to
its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in
accordance with the laws of the State of California in effect at the time of the execution of this
Agreement. Titles and captions are for convenience only and shall not constitute a portion of
this Agreement. As used in this Agreement, masculine, feminine or neuter gender and the
singular or plural number shall each be deemed to include the others wherever and whenever the
context so dictates.
13.6 No Waiver. No delay or omission by either party hereto in exercising any right or
power accruing upon the compliance or failure of performance by the other party hereto under
the provisions of this Agreement shall impair any such right or power or be construed to be a
waiver thereof. A waiver by either party hereto of a breach of any of the covenants, conditions
or agreements hereof to be performed by the other party shall not be construed as a waiver of any
succeeding breach of the same or other covenants, agreements, restrictions or conditions hereof.
13.7 Modifications. Any alteration, change or modification of or to this Agreement, in
order to become effective, shall be made by written instrument or endorsement thereon and in
each such instance executed on behalf of each party hereto.
13.8 Severabilitv. If any term, provision, condition or covenant of this Agreement or
the application thereof to any party or circumstances shall, to any extent, be held invalid or
unenforceable, the remainder of this instrument, or the application of such term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected thereby, and each term and provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
13.9 Merger of Prior Agreements and Understandings. This Agreement and other
documents incorporated herein by reference contain the entire understanding between the parties
relating to the transaction contemplated hereby and all prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged herein and shall be of
no further force or effect.
13.10 Covenants to Survive Escrow. The covenants and agreements contained herein
shall survive the Close of Escrow and, subject to the limitations on assignment contained in
-12-
858"8.1 19
Section 14.1 above, shall be binding upon and inure to the benefit of the parties hereto and their
representatives, heirs, successors and assigns.
13.11 Consent of Parties. Whenever by the terms of this Agreement the consent or
approval of Buyer or Seller is to be given, such consent or approval shall be evidenced by the
signature of one person designated for such purpose. Initially such person for Seller shall be
Lincoln Saul and such person for Buyer shall be the City Manager of Buyer. Such designated
persons may be changed by the party so designating at any time by the delivery of a written
notice to the other party.
13.12 Execution in Counter. This Agreement and any modifications, amendments
or supplements thereto may be executed in several counterparts, and all so executed shall
constitute one agreement binding on all parties hereto, notwithstanding that all parties are not
signatories to the original or the same counterpart.
13.13 Notices. Any notice which either party may desire to give to the other party or to
the Escrow Holder must be in writing and shall be effective (i) when personally delivered by the
other party or messenger or courier thereof; (ii)three(3)business days after deposit in the United
States mail, registered or certified; (iii) twenty-four (24) hours after deposit before the daily
deadline time with a reputable overnight courier or service; or (iv) upon receipt of a telecopy or
fax transmission, provided a hard copy of such transmission shall be thereafter delivered in one
of the methods described in the foregoing (i) through (iii); in each case postage fully prepaid and
addressed to the respective parties as set forth below or to such other address and to such other
persons as the parties may hereafter designate by written notice to the other parties hereto:
To Seller: Chino Cienega Foundation, a California
public benefit corporation
Attn: Steve Nichols, Trustee; and
Stephen C. Nichols & Sarah J. Benson,
Trustees of the Benson-Nichols Trust of
2003
901 North Palm Canyon Drive, Suite 200
Pahn Springs, CA 92262
To Buyer: City of Palm Springs
3200 E. Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92262
Attn: City Manager
Copy to: WOODRUFF, SPRADLIN & SMART,APC
555 Anton Boulevard, Suite 1200
Costa Mesa, California 92626
Attention: Douglas C. Holland, Esq.
-13-
a5saas.1 20
13.14 Exhibits. Exhibits "A" and "B," inclusive, attached hereto, are incorporated
herein by this reference.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of Purchase
and Sale of Real Property and Escrow Instructions as of the date set forth above.
"SELLER"
Chino Cienega Foundation, a California public
benefit corporation
Stephen C. Nichols, Trustee
Stephen C. Nichols & Sarah J. Benson, Trustees of
the Benson-Nichols Trust of 2003
Stephen C. Nichols, Trustee
Sarah J. Benson, Trustee
"BUYER"
ATTEST: THE CITY OF PALM SPRINGS,
a California municipal corporation and Charter City
By:
City Clerk City Manager
ds
APPROVED AS TO FORM
WOODRUFF, SPRADLIN& SMART, APC
Douglas C. Holland, Esq.
City Attorney
-14-
858448.1 21
SCHEDULE OF EXHIBITS
EXHIBIT "A" LEGAL DESCRIPTION AND PLAT MAP
OF PROPERTY
EXHIBIT`B" GRANT DEED
EXHIBIT"C" Promissory Note(s)—Foundation and Trust
EXHIBIT"D" Deed(s) of Trust—Foundation and Trust
EXHIBIT "B" Non-Foreign Affidavit
-16-
858448.17..2
EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
The Land is that certain real property located in the City of Palm Springs, County of Riverside,
State of California, described as follows:
PARCEL"A":
ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO.23139 AS FILED IN
PARCEL MAP BOOK 181 AT PAGES 58 THROUGH 53, INCLUSIVE, RECORDS OF
RIVERSIDE COUNTY,CALIFORNIA,DESCRIBED AS FOLLOWS;
COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 1,THENCE
SOUTH 38'-3T-1T EAST ALONG THE NORTHEASTERLY LINE OF SAID PARCEL 1,
A DISTANCE OF 21.11 FEET TO THE TRUE POINT OF BEG
THE FOLLOWING SIX COURSES BEING ALONG THE NORTHEASTERLY AND
SOUTHEASTERLY LINES OF SAID PARCEL 1;
THENCE SOUTH 38°-33°-1T EAST,A DISTANCE OF 151.76 FEET,
THENCE NORTH 51'-26"-49`EAST,A DISTANCE OF 10_I0 FEET;
THENCE SOUTH 38'-3T-1T EAST,A DISTANCE OF 176.95 FEET;
THENCE SOUTH 51Q-26` 41"WEST,A DISTANCE OF 211I10 FEET,
THENCE SOUTH 38--33'-1T EAST,A DISTANCE OF 220_I0 FEET
THENCE SOUTH W-2&-41'WEST,A DISTANCE OF 190.00 FEET,
THENCE LEAVING SAID SOUTHEASTERLY LINE, NORTH 380-3T-19'WEST,A
DISTANCE OF 2200 FEET;
THENCE NORTH 04--51'-32"EAST„A DISTANCE OF 452.52 FEET;
THENCE NORTH 510-26'41a EAST,A DISTANCE OF 892_09 FEET TO THE TRUE
POINT OF
BEGINNING-
SUBJECT TO EASEMENTS OF RECORD IF ANY.
CONTAINING 120,981 SO FT12.78 AC.
PREPARED BY x*4
SANBORN AIE,WC_ +�
L. S4k6i�„fr'ri
JOHN L.SANBORN,PLS 4146 L S. 414E
WO 11-135 07A7,13
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858448.1
rCOP, OF EXH61T 18"
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-2-
858448.1 2 4
EXHIBIT "B"
GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
THE CITY OF PALM SPRINGS
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: City Manager
Space above this line for Recorder's Use
Order No.
Escrow No.
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Chino Cienega Foundation, a California public benefit corporation and Stephen C. Nichols &
Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003, (collectively, "Seller"), hereby
grant to the CITY OF PALM SPRINGS, a California municipal corporation and Charter City,
the real property in the City of Palm Springs, County of Riverside, State of California, described
in Exhibit "1" attached hereto and incorporated herein by reference (the"Property").
The Property conveyed hereby is subject to (i) non-delinquent general and special real
property taxes and assessments; and (ii)matters of record.
Dated: 2012 Chino Cienega Foundation, a California public
benefit corporation
Stephen C. Nichols, Trustee
Stephen C. Nichols & Sarah J. Benson, Trustees of
the Benson-Nichols Trust of 2003
Stephen C. Nichols, Trustee
Sarah J. Benson, Trustee
-3-
858448A 25
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On before me, Notary Public,
personally appeared personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
-4 26
858448.1
EXHIBIT "1" TO GRANT DEED
LEGAL DESCRIPTION OF LAND
The Land is that certain real property located in the City of Palm Springs, County of Riverside,
State of California, described as follows:
PARCEL"A7:
ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO.23130 AS FILED IN
PARCEL MAP BOOK 181 AT PAGES 50 THROUGH 53, OF
RIVERSIDE COUNTY,CALIFORNIA,DESCRWED AS F
G AT THE NORTHEAST CORNER OF SAIDP 1,THENCE
SOUTH 33'-1T EAST ALONG THE NORTHEASTERLY LIME OF SAID PARCEL 9,
A DISTANCE OF 21.11 FEET TO THE TRUE POINTOF BEGff0fiNQ
THE FOLLOWNG SIX COURSES BEING ALONG THE NORTHEASTERLY AND
SOUTHEASTERLY LINES OF SAID PARCEL 1;
THENCE SOUTH 380-3T-lT EAST,A DISTANCE OF 151.76 FEET,
THENCE NORTH 510- 41EAST,A DISTANCE Of 10-00
THENCE SOUTH -33 1T EAST,A DISTANCE OF 176.95
FEET,-
E SOUTH 514- -41 ST,A DISTANCE OF 211 OD FEET,
T 3-T-IT EAST,A DISTANCE OF 220.09 FEET
THENCE SOUTHSVk-26-4I-WEST,A DISTANCE 190,1 FEET,
THENCELEAVING SAID SOUTHEASTERLY LINE NORTH 38- 3T 1T WEST,A
DISTANCEOF 220.0 FEET,
THENCE NORTH I14--51`- T„A DISTANCE Of 452-52
THENCE NORTH 51�26-41-EAST,A DISTANCE OF 80 FEET TO THE TRUE
POINT OF'BEGINNING.
SUBJECT TO EASEMENTS OF RECORD 8F
CONTAINING 12T,981 SQ FT.t 2.78 AC-
PREPARED ARED BY
,3 L. . P3 .RCS,PLS 4146 €.S.. 414,6
11435 &TIT17 t �
- 5 -
27
1E CCP OF EXHIBIT '8"
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DATA TABLE
w Iz$T.
9°E 12ti.11'
9,
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To 22 a m
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CITY Or PALM NGS
,PUaIC WWS & ENONEERI O
EPARTME T
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JLS l7-3J5 I OF I
- 6 -
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29
EXHIBIT"C-l"
Promissory Note— Foundation
PROMISSORY NOTE
Visitor's Center Parking Lot and Palm Springs Entry Sign
DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to Borrower
for cancellation.
$ 245,000.00 Palm Springs, California
, 2012
FOR VALUE RECEIVED, the undersigned, the CITY OF PALM SPRINGS, a municipal
corporation and California Charter City ("Maker"), promises to pay the Chino Cienega
Foundation, a California public benefit corporation ("Holder") located at 901 North Palm
Canyon Drive, Suite 200, Palm Springs, CA 92262, the sum of Two Hundred Forty Five
Thousand Dollars ($245,000.00, the "Note Amount"), together with interest thereon at the rate
set forth herein. All sums payable hereunder shall be payable in lawful money of the United
States of America. This Promissory Note ("Note") is made in connection with the provision by
the Holder of funds equal to the Note pursuant to that certain the Agreement for Purchase and
Sale by and among Maker and Holder, dated as of 2012 (the
"Agreement").
This note is made with reference to the sale of a one-half undivided interest in a parcel
commonly described as the Visitor's Center Parking Lot and Palm Springs Entry Sign, of
approximately 2.78 acres (APN 504-040-001-8), located near the northwest corner of Tramway
Road and North Palm Canyon Drive in the City of Palm Springs, County of Riverside, State of
California, more particularly described on Exhibit"A" attached hereto ("Land").
1. Interest Rate. Simple interest shall accrue on the Note Amount from the date of
disbursement at the rate of percent (_°/u) per annum, but in no event greater than the
maximum interest rate permitted by law.
2. Repayment. Maker shall repay the principal amount of the Note Amount, plus all
interest then accrued at the interest rate set forth in Paragraph 1 above in arrears, in annual
installments in equal amounts as shown in the attached Amortization Table shown in Exhibit`B"
- 8 -
313
attached hereto ("Amortization Table"). The principal amount of the Note Amount, plus all
interest then accrued upon the Note Amount, shall be immediately due and payable upon (i) any
default of the Agreement, which is not cured within the time set forth in Section 13 of the Deed
of Trust, and, if not sooner paid in full, (ii) on April 1, 2019.
3. Prepayment of Note Amount. Maker may prepay to Holder the full Note
Amount, together with all accrued and unpaid interest thereon at the rate set forth in Section 1
hereof, at any time prior to the due date of the Note Amount without penalty.
4. Application of Payments. Each payment hereunder shall be credited first to
interest then accrued and the remainder, if any, to principal. Interest shall cease to accrue upon
principal so credited.
5. Security. This Note is secured by a deed of trust by and between Maker, as
trustor, and Holder, as beneficiary(the "Deed of Trust", Exhibit"D"to the Agreement).
6. Holder May Assign Holder may, at its option, assign its right to receive payment
under this Note without necessity of obtaining the consent of the Maker.
7. Maker Assignment Prohibited. In no event shall Maker assign or transfer any
portion of this Note without the prior express written consent of the Holder, which consent may
be given or withheld in the Holder's sole discretion.
8. Attorneys' Fees and Costs. In the event that any action is instituted with respect
to this Note, the non-prevailing party promises to pay such sums as a court may fix for court
costs and reasonable attorneys' fees. Maker's right to such fees shall not be limited to or by its
representation by City Attorney, and such representation shall be valued at customary and
reasonable rates for private sector legal services.
9. Non-Waiver. Failure or delay in giving any notice required hereunder shall not
constitute a waiver of any default or late payment, nor shall it change the time for any default or
payment.
10. Successors Bound. This Note shall be binding upon the parties hereto and their
respective heirs, successors and assigns. Any person or entity who takes over the any duties and
obligations under this Note, is also liable for the satisfaction of all such duties and obligations.
11. Terms. Any terms not separately defined herein shall have the same meanings as
set forth in the Agreement.
12. Collection of Penalties. No provision of this Agency Note or any instrument
securing payment hereof or otherwise relating to the debt evidenced hereby shall require the
payment or permit the collection of interest in excess of the maximum permitted by applicable
law. If any excess of interest in such respect is herein or in such other instrument provided for,
- 9 -
31
or shall be adjudicated to be so provided for herein or in any such instrument, the provisions of
this paragraph shall govern, in neither Maker or any endorsers of this Note, nor their respective
heirs, personal representatives, successors or assigns shall be obligated to pay the amount of such
interest to the extent it is in excess of the amount permitted by applicable law.
13. Non-Recourse. Notwithstanding anything to the contrary herein contained, (i) the
liability of Maker shall be limited to its interest in the Site and any rents, issues, and profits
arising from the Site and, in addition, with respect to any obligation to hold and apply insurance
proceeds, proceeds of condemnation or other monies hereunder, any such monies received by it
to the extent not so applied in accordance with the terms of this Note; (ii) no other assets of
Maker shall be affected by or subject to being applied to the satisfaction of any liability which
Maker may have to Holder or to another person by reason of this Note; and (iii) any judgment,
order, decree or other award in favor of Holder shall be collectible only out of, or enforceable in
accordance with, the terms of this Note by termination or other extinguishment of Maker's
interest in the Site.
IN WITNESS WHEREOF, Borrower has caused this Note to be executed by Maker or
Maker's authorized agent(s) as of the date and year first above written.
Maker:
By:
City of Palm Springs, California
David H. Ready, Esq., Ph.D.
City Manager
- 10 -
32
EXHIBIT"C-2"
Promissory Note—Trust
PROMISSORY NOTE
Visitor's Center Parking Lot and Palm Springs Entry Sign
DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to Borrower
for cancellation.
$ 245,000.00 Palm Springs, California
, 2012
FOR VALUE RECEIVED, the undersigned, the CITY OF PALM SPRINGS, a municipal
corporation and California Charter City ("Maker"), promises to pay Stephen C. Nichols & Sarah
J. Benson, Trustees of the Benson-Nichols Trust of 2003 ("Holder") located at 901 North Palm
Canyon Drive, Suite 200, Palm Springs, CA 92262, the sum of Two Hundred Forty Five
Thousand Dollars ($245,000.00, the "Note Amount"), together with interest thereon at the rate
set forth herein. All sums payable hereunder shall be payable in lawful money of the United
States of America. This Promissory Note ("Note") is made in connection with the provision by
the Holder of funds equal to the Note pursuant to that certain the Agreement for Purchase and
Sale by and among Maker and Holder, dated as of 2012 (the
"Agreement").
This note is made with reference to the sale of a one-half undivided interest in a parcel
commonly described as the Visitor's Center Parking Lot and Palm Springs Entry Sign, of
approximately 2.78 acres (APN 504-040-001-8), located near the northwest corner of Tramway
Road and North Palm Canyon Drive in the City of Palm Springs, County of Riverside, State of
California, more particularly described on Exhibit"A" attached hereto ("Land").
1. Interest Rate. Simple interest shall accrue on the Note Amount from the date of
disbursement at the rate of percent (_%) per annum, but in no event greater than the
maximum interest rate permitted by law.
2. Reoavment. Maker shall repay the principal amount of the Note Amount, plus all
interest then accrued at the interest rate set forth in Paragraph 1 above in arrears, in annual
installments in equal amounts as shown in the attached Amortization Table shown in Exhibit`B"
attached hereto ("Amortization Table"). The principal amount of the Note Amount, plus all
interest then accrued upon the Note Amount, shall be immediately due and payable upon (i) any
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33
default of the Agreement, which is not cured within the time set forth in Section 13 of the Deed
of Trust, and, if not sooner paid in full, (ii) on April 1, 2019.
3. Prepayment of Note Amount. Maker may prepay to Holder the full Note
Amount, together with all accrued and unpaid interest thereon at the rate set forth in Section 1
hereof, at any time prior to the due date of the Note Amount without penalty.
4. Application of Payments. Each payment hereunder shall be credited first to
interest then accrued and the remainder, if any, to principal. Interest shall cease to accrue upon
principal so credited.
5. Security. This Note is secured by a deed of trust by and between Maker, as
trustor, and Holder, as beneficiary(the "Deed of Trust", Exhibit"D"to the Agreement).
6. Holder May Assign. Holder may, at its option, assign its right to receive payment
under this Note without necessity of obtaining the consent of the Maker.
7. Maker Assignment Prohibited. hi no event shall Maker assign or transfer any
portion of this Note without the prior express written consent of the Holder, which consent may
be given or withheld in the Holder's sole discretion.
8. Attorneys' Fees and Costs. In the event that any action is instituted with respect
to this Note, the non-prevailing party promises to pay such sums as a court may fix for court
costs and reasonable attorneys' fees. Maker's right to such fees shall not be limited to or by its
representation by City Attorney, and such representation shall be valued at customary and
reasonable rates for private sector legal services.
9. Non-Waiver. Failure or delay in giving any notice required hereunder shall not
constitute a waiver of any default or late payment, nor shall it change the time for any default or
payment.
10. Successors Bound. This Note shall be binding upon the parties hereto and their
respective heirs, successors and assigns. Any person or entity who takes over the any duties and
obligations under this Note, is also liable for the satisfaction of all such duties and obligations.
11. Terms. Any terms not separately defined herein shall have the same meanings as
set forth in the Agreement.
12. Collection of Penalties. No provision of this Agency Note or any instrument
securing payment hereof or otherwise relating to the debt evidenced hereby shall require the
payment or permit the collection of interest in excess of the maximum permitted by applicable
law. If any excess of interest in such respect is herein or in such other instrument provided for,
or shall be adjudicated to be so provided for herein or in any such instrument, the provisions of
this paragraph shall govern, in neither Maker or any endorsers of this Note, nor their respective
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34
heirs,personal representatives, successors or assigns shall be obligated to pay the amount of such
interest to the extent it is in excess of the amount permitted by applicable law.
13. Non-Recourse. Notwithstanding anything to the contrary herein contained, (i) the
liability of Maker shall be limited to its interest in the Site and any rents, issues, and profits
arising from the Site and, in addition, with respect to any obligation to hold and apply insurance
proceeds, proceeds of condemnation or other monies hereunder, any such monies received by it
to the extent not so applied in accordance with the terms of this Note; (ii) no other assets of
Maker shall be affected by or subject to being applied to the satisfaction of any liability which
Maker may have to Holder or to another person by reason of this Note; and (iii) any judgment,
order, decree or other award in favor of Holder shall be collectible only out of, or enforceable in
accordance with, the terms of this Note by termination or other extinguishment of Maker's
interest in the Site.
IN WITNESS WHEREOF, Borrower has caused this Note to be executed by Maker or
Maker's authorized agent(s) as of the date and year first above written.
Maker:
By:
City of Palm Springs, California
David H. Ready, Esq., Ph.D.
City Manager
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35
EXHIBIT"D-l"
Deed of Trust—Foundation
DEED OF TRUST
Recording requested by,
and when recorded mail to:
Stephen C.Nichols & Sarah J. Benson,
Trustees of the Benson-Nichols
Trust of 2003
901 North Palm Canyon Drive, Suite 200
Palm Springs,CA 92262
INSTRUCTIONS TO COUNTY RECORDER:
Index this instrument as
(i) a Deed of Trust, and
(ii) a Fixture Filing
Space above for Recorder's Use
DEED OF TRUST AND ASSIGNMENT OF RENTS
This DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is entered into
between the CITY OF PALM SPRINGS, a municipal corporation and California Charter City,
whose principal executive office is at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm
Springs, California 92263 (the "Trustor"), in favor of FIRST AMERICAN TITLE COMPANY,
whose address is (the"Trustee"), for the benefit of
the Stephen C.Nichols& Sarah J. Benson,Trustees of the Benson-Nichols Trust of 2003, located at 901
North Palm Canyon Drive, Suite 200, Palm Springs, CA 92262, (the`Beneficiary").
THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO THE
TRUSTEE, in trust, with the power of sale, the real property in the City of Palm Springs,
Riverside County, California, more particularly described in Exhibit A attached hereto and made
part hereof by reference(the"Property"), together with:
(i) All tenements, hereditaments and appurtenances of or to the Property, including
without limitation all easements and rights used in connection therewith or as a means of access
thereto, all right, title and interest of the Trustor, now owned or hereafter acquired, in any land
lying within the right-of-way of any street, open or proposed, adjoining the Property, and any
and all sidewalks, alleys, strips and other areas of land adjacent to or used in connection with the
Property;
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30
(ii) All oil and gas or other mineral rights in or pertaining to the Property and all
royalty, leasehold and other rights of the Trustor pertaining thereto;
(iii) All water rights pertaining to the Property and shares of stock evidencing the
same, and all deposits made with or other security given to utility companies by the Trustor with
respect to the Property,
(iv) The rents, issues and profits thereof, subject, however, to the right, power and
authority of Trustor to collect and apply such rents, issues and profits and set forth in this Deed
of Trust;
(v) All buildings and improvements of every kind and description now or hereafter
erected or placed on the Property, and all fixtures thereon, including, but not limited to, all gas
and electric fixtures, engines and machinery, radiators, heaters, furnaces, heating equipment,
laundry equipment, steam and hot water boilers, stoves, ranges, elevators and motors, bath tubs,
sinks, water closets, basins, pipes, faucets and other plumbing and heating fixtures, mantels,
cabinets, refrigeration plant and refrigerators, whether mechanical or otherwise, cooking
apparatus and appurtenances, and all shades, awnings, screens, blinds and other furnishings, it
being hereby agreed that all such fixtures and furnishings shall to the extent permitted by law be
deemed permanently affixed to and a part of the realty;
(vi) All building materials and equipment now or hereafter delivered to the Property
and intended to be installed thereon; and
(vii) All articles of personal property owned by the Trustor and now or hereafter
attached to or used in and about the building or buildings now erected or hereafter to be erected
on the Property which are necessary to the complete and comfortable use and occupancy of such
building or buildings for the purposes for which they were or are to be erected, and all other
goods, chattels and personal property as are ever used or furnished in operating a building, or the
activities conducted therein, similar to the ones herein described and referred to, and all renewals
or replacements thereof or articles in substitution therefor, whether or not the same are or shall
be attached to the building or buildings in any manner; subject, however, to (and only to) any
purchase money security interests in such personal property.
Said real property and personal property described above, together with appurtenances, are
referred to collectively in this Deed of Trust as the "Collateral."
FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS:
(a) Payment to the Beneficiary of an indebtedness in the principal amount of Tow
Hundred Forty Five Thousand Dollars ($245,000.00), evidenced by a promissory note executed
by the Trustor and payable to the order of the Beneficiary, bearing the same date as this Deed of
Trust, and any and all modifications, extensions or renewals thereof or substitutions therefor (the
"Note"), and performance and satisfaction of each and all other obligations of the Trustor under
the Note;
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37
(b) Performance of every obligation or Trustor in this Deed of Trust, the Note, the
Agreement for Purchase and Sale between Beneficiary and Trustor related to the Property (the
"Agreement"); and
(c) Payment of all sums, if any, and interest thereon that may hereafter be loaned or
advanced by the Beneficiary to or for the benefit of the Trustor or to its successors, transferees
and assigns, made to the Trustor while the Trustor is the owner of record of fee title to the
Property, or any portion thereof, or to the successors, transferees or assigns of the Trustor while
they are the owners of record of such fee title, and evidenced by one or more notes or written
instruments which recite that they are secured by this Deed of Trust.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR
COVENANTS AND AGREES AS FOLLOWS:
1. The Trustor shall not use or permit the use of any of the Collateral for any
purpose other than the use for which it was intended at the time this Deed of Trust was executed,
as provided in the Participation Agreement.
2. Upon default under this Deed of Trust or the Note (following delivery of notice
and expiration of the cure period, if any, provided therein), the Beneficiary, at its option, may
declare the whole of the obligations and sums secured hereby to be immediately due and
payable.
3. The person(s) or entity(ies) who have executed this Deed of Trust are fully
authorized, and have obtained any and all written authorizations, approvals or consents
necessary, to bind the Trustor to this Deed of Trust.
4. All rents, profits and income from the Collateral covered by this Deed of Trust are
hereby assigned to the Beneficiary for the purpose of discharging the obligations hereby secured.
However, the Trustor shall be permitted, so long as no default exists hereunder or under the
Note, to collect such rents, profits and income for use consistent with the provisions of the
Agreement.
5. Upon default hereunder or under the Note (following delivery of notice and
expiration of the cure period, if any, provided herein or therein), for the purpose of protecting its
interests hereunder, the Beneficiary will be entitled to the appointment by a court having
jurisdiction, without further notice and without regard to adequacy of any security for the
indebtedness secured hereby, of a receiver to take possession of and protect the Collateral
described herein and operate same and collect the rents, profits and income therefrom. The
entering upon and taking possession of the Property or other Collateral by such receiver, the
collection of such rents, profits and income and the application thereof shall not cure or waive
any default or notice of default hereunder or invalidate any act done pursuant to such notice.
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38
6. The Trustor, at its sole cost and expense, shall provide and maintain on the entire
Property, including all buildings and improvements thereon: (i) a policy of broad-form builder's
risk insurance sufficient to cover 100 percent of the replacement value of all buildings and
improvements on the Property including; without limitation, labor and materials in place or to be
used as part of the permanent construction (including, without limitation, surplus miscellaneous
materials and supplies incidental to the work, and scaffolding, staging, towers, forms and
equipment not owned or rented by the Beneficiary, the cost of which is not included in the cost
of work), insuring against loss or damage by fire, extended coverage perils and such other
hazards, casualties or other contingencies as from time to time may be reasonably required by the
Beneficiary; (ii) a policy of commercial general liability insurance that includes contractual,
products and completed operations coverages, bodily injury and property damage liability
insurance with combined single limits of not less than $1,000,000 per occurrence; and (iii) such
other insurance as may be reasonably required by the Beneficiary, in each case in such amounts,
in such manner and with such companies as the Beneficiary and Trustor may reasonably
approve. The foregoing minimum insurance coverage limits shall be subject to reasonable
adjustment from time to time by the Beneficiary. Each such policy shall be endorsed with a
standard mortgage clause with loss payable to the Beneficiary and the Trustor, and shall provide
that the policy shall not be canceled or materially changed without at least thirty (30) days' prior
notice to the Beneficiary. Upon request by the Beneficiary, the Truster immediately shall
deposit with the Beneficiary certificates evidencing such policies.
7. The Trustor shall pay: (i) at least ten days before delinquency, all taxes and
assessments affecting the Collateral, including assessments on appurtenant water stock; (ii) when
due, all encumbrances, charges and liens, with interest, on the Collateral or any part thereof
which appear to be prior or superior hereto; and (iii) all costs, fees and expenses of the Trustee or
the Beneficiary reasonably incurred in connection with the trusts created under this Deed of
Trust.
8. The Trustor shall: (i) keep the Collateral in good condition and repair and not
remove or demolish any buildings on the Property; to the extent insurance or condemnation
proceeds are available; (ii) complete or restore promptly and in good and workmanlike manner
the buildings and improvements and any other building or improvement which may be
constructed, damaged or destroyed thereon; (iii)pay when due all claims for labor performed and
materials furnished therefore; (iv) comply in all material respects with all laws affecting the
Collateral or requiring any alterations or improvements to be made thereon; (v) not commit or
permit waste of or on the Collateral; and (vi) not commit, suffer or permit any act upon the
Property in violation of law and/or any covenants, conditions or restrictions affecting the
Collateral.
9. The Truster shall appear in and defend any action or proceeding purporting to
affect the security hereof or the rights or powers of the Beneficiary or the Trustee, and shall pay
all costs and expenses, including cost of evidence of title and reasonable attorneys' fees, in any
such action or proceeding in which the Beneficiary or the Trustee may appear, or in any suit
brought by the Beneficiary to foreclose this Deed of Trust.
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I
10. Should the Trustor fail to make any payment or do any act as herein provided,
then the Beneficiary or the Trustee, without obligation to do so, and following notice to or
demand on the Trustor, and without releasing the Trustor from any obligation hereof. (i) may
make or do the same in such manner and to such extent as either may deem necessary to protect
the security hereof, the Beneficiary or the Trustee being authorized to enter on the Property for
such purposes; (ii) may commence, appear in and/or defend any action or proceeding purporting
to affect the security hereof or the rights or powers of the Beneficiary or the Trustee; (iii) may
pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of
either appears to be prior or superior hereto (except for the deeds of trust, encumbrances and
liens securing the Construction/Permanent Financing Loan(s) and the Agency Loan, as such
terms are defined below); and (iv) in exercising any such powers, may pay necessary expenses,
employ legal counsel and pay such counsel's reasonable fees. All such amounts paid by the
Beneficiary or the Trustee hereunder shall be added to the obligations secured by this Deed of
Trust.
11. The Beneficiary shall have the right, but not the obligation, to pay when due fire
or other insurance premiums required hereunder if the Trustor fails to make such payments. All
such amounts paid by the Beneficiary hereunder shall be added to the obligations secured by this
Deed of Trust.
12. The Trustor shall pay immediately upon demand all sums so expended by the
Beneficiary or the Trustee under this Deed of Trust, with interest from date of expenditure at the
legal rate.
13. If the Trustor fails to pay any amount required by the Note or this Deed of Trust
when due and payable, or fails to perform all other covenants, conditions and agreements of the
Note, this Deed of Trust or the Participation Agreement (following delivery of notice and
expiration of the cure period, if any, provided therein), the amount of the Note, including unpaid
principal and late charges, and all other charges and amounts required by the Note and this Deed
of Trust shall, at the option of the Beneficiary, become immediately due and payable. This shall
be in addition to and without limitation on any other remedy or right available to the Beneficiary
for such failure.
14. The Trustor shall not voluntarily create or permit to be created against the
Collateral any lien or liens except as specifically permitted by this Deed of Trust or otherwise
authorized by the Beneficiary. The Trustor shall keep and maintain the Collateral free from the
claims of all persons supplying labor or materials who will enter into the construction,
rehabilitation, renovation or repair of any and all buildings or improvements now existing or to
be erected on the Property.
15. By accepting payment of any sum secured by this Deed of Trust after its due date
or by accepting partial payment of any such sum, the Beneficiary does not waive its right either
to require prompt payment when due of all other sums so secured or to declare default for the
Trustor's failure to pay.
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d0
16. If the Trustor, without the prior written consent of the Beneficiary: (i) agrees to
or actually sells, conveys, transfers or disposes of the Collateral or any interest therein or portion
thereof, or (ii) assigns or delegates any right or obligation under the Agreement, the Note or this
Deed of Trust, then all amounts secured by this Deed of Trust may be declared immediately due
and payable, at the option of the Beneficiary. The Beneficiary shall not unreasonably withhold
its consent to any such transaction. The Beneficiary's consent to one transaction of this type
shall not be a waiver of the right to require consent to future or successive transactions.
17. As further security for the full and complete performance of each and every
obligation, covenant, agreement and duty of the Trustor contained herein or in the Note, the
Trustor hereby grants and conveys to the Beneficiary a security interest in and lien on all of the
Collateral. This Deed of Trust shall serve as a security agreement and financing statement
created pursuant to the California Commercial Code, and the Beneficiary will have and may
exercise all rights, remedies and powers of a secured party under the California Commercial
Code. Further, this Deed of Trust is filed as a fixture filing pursuant to the California
Commercial Code and other applicable law, and covers goods which are or are to become
fixtures.
18. Should the Property, the buildings or improvements thereon, or any part of any of
them be taken or damaged by reason of any public improvement or condemnation proceeding, or
damaged by fire or earthquake or in any other manner, the Beneficiary will be entitled, to all of
the Trustor's interest in compensation, awards and other payments or relief therefor; and,
following the occurrence of a default as defined in the Note, the Beneficiary shall be entitled,
jointly with the Trustor, at the Beneficiary's option, to commence, appear in and prosecute in its
own name, any action or proceeding, or to make any compromise or settlement, in connection
with such taking or damage. All such compensation, awards, damages, rights of action and
proceeds, including the proceeds of any fire and other insurance affecting the Property or the
buildings or improvements thereon, are hereby assigned to the Beneficiary. After deducting
therefrom all its expenses, including reasonable attorneys' fees, and if there has not occurred a
default under the Note, the Beneficiary shall apply all such proceeds to restoring the Property or
the buildings or improvements thereon, or if there has been such default, or if the Trustor
determines not to rebuild, the Beneficiary shall retain the proceeds to the extent of the amount
due under the Note and any amounts due under this Deed of Trust. Any balance of such
proceeds still remaining shall be disbursed by the Beneficiary to the Trustor.
19. If the Trustor fails to perform any covenant or agreement in this Deed of Trust or
the Participation Agreement, or if a default occurs under the Note, the Beneficiary may declare
all obligations and sums secured hereby immediately due and payable by delivery to the Trustee
of written declaration of default and demand for sale and written notice of default and of election
to cause the Collateral to be sold, which notice the Trustee shall cause to be duly filed for record,
and the Beneficiary may foreclose this Deed of Trust; provided, however that the Trustor shall
not be deemed to be in default hereunder for failure to make any payment when due or for failure
to perform any other covenant or agreement contained herein until thirty (30) days after written
notice of such failure is given to the Trustor and Trustor is afforded a reasonable opportunity to
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41
cure the default. The Beneficiary shall also deposit with the Trustee this Deed of Trust, the Note
and all other documents evidencing the obligations or sums secured hereby.
20. After the lapse of such time as may then be required by law following the
recordation of the notice of default, and notice of sale having been given as then required by law,
the Trustee, without demand on the Trustor, shall sell the Property at the time and place fixed by
the Trustee in the notice of sale, either as a whole or in separate parcels, and in such order as it
may determine, at public auction to the highest bidder for cash in lawful money of the United
States, payable at time of sale. The Trustee may postpone sale of all or any portion of the
Property by public announcement at the time and place of sale, and from time to time thereafter
may further postpone the sale by public announcement at the time fixed by the preceding
postponement. The Trustee shall deliver to the purchaser its deed conveying fee title to the
Property or portion thereof so sold, but without any covenant or warranty, express or implied.
The recitals in the Trustee's deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including the Trustor, the Trustee and the Beneficiary, may
purchase at the sale. The Trustee shall apply the proceeds of the sale to payment of: (i) the
expenses of the sale, together with the reasonable expenses of the trust created by this Deed of
Trust, including reasonable Trustee's fees and attorneys' fees for conducting the sale, and the
actual cost of publishing, recording, mailing and posting notice of the sale; (ii) the cost of any
search and/or other evidence of title procedure in connection with the sale and of revenue stamps
on the Trustee's deed; (iii) all sums expended under the terms hereof not then repaid, with
accrued interest at the legal rate; (iv) all other sums then secured hereby; and (v) the remainder,
if any, to the person or persons legally entitled thereto.
21. The Beneficiary may from time to time substitute a successor or successors to the
Trustee named herein or acting hereunder to execute the trusts under this Deed of Trust. Upon
such appointment, and without conveyance to the successor trustee, the latter shall be vested with
all title, powers and duties conferred upon any Trustee herein named or acting hereunder. Each
such appointment and substitution shall be made by written instrument executed by the
Beneficiary, containing reference to this Deed of Trust and its place of record, which instrument,
when duly recorded in Riverside County, California, shall be conclusive proof of proper
appointment of the successor trustee.
22. Upon written request of the Beneficiary stating that all obligations secured hereby
have been satisfied and all sums secured hereby have been paid, and upon surrender of this Deed
of Trust and the Note to the Trustee for cancellation and retention, and upon payment of its fees,
the Trustee shall reconvey, without warranty, the Collateral then held hereunder. The recitals in
such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof.
The grantee in such reconveyance may be described as "the person or persons legally entitled
thereto."
23. The trusts created by this Deed of Trust are irrevocable by the Trustor.
24. This Deed of Trust applies to, inures to the benefit of, and binds of the Trustor,
the Beneficiary and the Trustee and their respective administrators, executors, officers, directors,
- 20 -
42
transferees, successors and assigns. The term `Beneficiary' shall include not only the original
Beneficiary hereunder but also any future owner and holder, including pledges, of the Note
secured hereby. In this Deed of Trust, whenever the context so requires, the masculine gender
includes the feminine and/or neuter, and the singular includes the plural.
25. In addition to and without limitation on any other rights or remedies of the
Trustee or the Beneficiary, if the Trustee or the Beneficiary commences any legal action or
proceeding to enforce or interpret any provision of this Deed of Trust or the Note, the Trustor
shall pay all costs and expenses incurred by the Trustee or the Beneficiary in connection with
such action or proceeding, including legal expenses and reasonable attorneys' fees and court
costs.
26. The Trustee accepts the trusts hereunder when this Deed of Trust, duly executed
and acknowledged, is made public record as provided by law. Except as otherwise provided by
law, the Trustee is not obligated to notify any party hereto of pending sale under this Deed of
Trust or of any action or proceeding in which the Trustor, the Beneficiary or the Trustee is a
party, unless brought by the Trustee.
27. The Trustor requests that a copy of any notice of default and of any notice of sale
hereunder be mailed to it at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm Springs,
California 92262.
28. The Trustor shall cause a copy of each deed of trust securing a Construction/
Permanent Financing Loan to be provided to the Beneficiary immediately upon its recordation,
so that the Beneficiary may prepare and record a request for notice of default and notice of sale
thereunder pursuant to California Civil Code Section 2924b.
29. This Deed of Trust shall be interpreted and enforced, and the rights and duties
(both procedural and substantive) of the parties hereunder shall be determined, according to
California law.
30. Capitalized terms not otherwise defined herein shall have the meanings given
them in the Agreement or the Note.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date set
forth above.
TRUSTOR:
City of Palm Springs, California
David H. Ready, Esq., Ph.D.
City Manager
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43
ACKNOWLEDGMENTS
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On 2012, before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(SEAL)
- 22 -
44
EXHIBIT "A" TO DEED OF TRUST
LEGAL DESCRIPTION
All that certain real property situated in the City of Palm Springs, County of Riverside, State of
California, described as follows:
PARCEL`A":
ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO.23130 AS FILED IN
PARCEL MAP BOOK 181 AT PAGES 50 THROUGH 53, INCLUSNE,RECORDS OF
RIVERSIDE COUNTY,CALIFORNIA,DESCRIBED AS FOLLOWS;
COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 1,THENCE
SOUTH 389-3:YAT EAST ALONG THE NORTHEASTERLY LINE OF SAID PARCEL 1,
A DISTANCE OF 21.11 FEET TO ThE TRUE POINT OF BEGINNING;
THE FOLLOWING SIX COURSES BEING ALONG THE NORTHEASTERLY AND
SOUTHEASTERLY LINES OF SAID PARCEL 1;
THENCE SOUTH 33"-19" EAST,A DISTANCE OF 151.76 FEET;
THENCE NORTH 510-26'41'EAST,A DISTANCE OF 10.00 FEET;
THENCE SOUTH -3S-19e EAST,A DISTANCE OF 176.95 FEET;
THENCE SOUTH 51 2641"WEST,A DISTANCE OF 211_till FEET;
THENCE SOUTH 38--33-19-EAST,A DISTANCE OF 220.00 FEET
THENCE SOUTH 51--26'-41-WEST,A DISTANCE OF 190_00 FEET;
THENCE LEAVING SAID SOUTHEASTERLY LINE,NORTH W-3TAT VEST,A
DISTANCE OF 2200. FEET;
THENCE NORTH 04q-51'-32"EAST,A DISTAL OF 45252 FEET;
THENCE NORTH 51°-2F-41"EAST,A INSTANCE OF 80_00 FEET TO THE TRUE
POINT OF BEGINNING.
SL .IECT TO EASEMENTS OF RECORD IF ANY.
CONTAINING 120,981 SO. FT1278 AC.
PREPARED BY
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SANBORN AIE,INC.
JOHN L.SANBORN;PL.S 4146 L.S. 41 411
:3r avx. 6/30/114 #�
B'o 11-135 fl77172 °ti. ti
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- 23 -
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- 24 -
46
DEED OF TRUST
Recording requested by,
and when recorded mail to:
Chino Cienega Foundation,
a California public benefit corporation
901 North Palm Canyon Drive, Suite 200
Palm Springs, CA 92262
Attn: Steve Nichols, Trustee
INSTRUCTIONS TO COUNTY RECORDER:
Index this instrument as
(i) a Deed of Trust, and
(ii) a Fixture Filing
Space above for Recorder's Use
DEED OF TRUST AND ASSIGNMENT OF RENTS
This DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is entered into
between the CITY OF PALM SPRINGS, a municipal corporation and California Charter City,
whose principal executive office is at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm
Springs, California 92263 (the "Trustor"), in favor of FIRST AMERICAN TITLE COMPANY,
whose address is (the"Trustee"), for the benefit of
the Chino Cienega Foundation, a California public benefit corporation, located at 901 North
Palm Canyon Drive, Suite 200, Palm Springs, CA 92262, (the`Beneficiary").
THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO THE
TRUSTEE, in trust, with the power of sale, the real property in the City of Palm Springs,
Riverside County, California, more particularly described in Exhibit A attached hereto and made
part hereof by reference(the"Property"), together with:
(i) All tenements, hereditaments and appurtenances of or to the Property, including
without limitation all easements and rights used in connection therewith or as a means of access
thereto, all right, title and interest of the Trustor, now owned or hereafter acquired, in any land
lying within the right-of-way of any street, open or proposed, adjoining the Property, and any
and all sidewalks, alleys, strips and other areas of land adjacent to or used in connection with the
Property;
(ii) All oil and gas or other mineral rights in or pertaining to the Property and all
royalty, leasehold and other rights of the Trustor pertaining thereto;
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47
(iii) All water rights pertaining to the Property and shares of stock evidencing the
same, and all deposits made with or other security given to utility companies by the Trustor with
respect to the Property;
(iv) The rents, issues and profits thereof, subject, however, to the right, power and
authority of Trustor to collect and apply such rents, issues and profits and set forth in this Deed
of Trust;
(v) All buildings and improvements of every kind and description now or hereafter
erected or placed on the Property, and all fixtures thereon, including, but not limited to, all gas
and electric fixtures, engines and machinery, radiators, heaters, furnaces, heating equipment,
laundry equipment, steam and hot water boilers, stoves, ranges, elevators and motors, bath tubs,
sinks, water closets, basins, pipes, faucets and other plumbing and heating fixtures, mantels,
cabinets, refrigeration plant and refrigerators, whether mechanical or otherwise, cooking
apparatus and appurtenances, and all shades, awnings, screens, blinds and other furnishings, it
being hereby agreed that all such fixtures and furnishings shall to the extent permitted by law be
deemed permanently affixed to and a part of the realty;
(vi) All building materials and equipment now or hereafter delivered to the Property
and intended to be installed thereon; and
(vii) All articles of personal property owned by the Trustor and now or hereafter
attached to or used in and about the building or buildings now erected or hereafter to be erected
on the Property which are necessary to the complete and comfortable use and occupancy of such
building or buildings for the purposes for which they were or are to be erected, and all other
goods, chattels and personal property as are ever used or fumished in operating a building, or the
activities conducted therein, similar to the ones herein described and referred to, and all renewals
or replacements thereof or articles in substitution therefor, whether or not the same are or shall
be attached to the building or buildings in any manner; subject, however, to (and only to) any
purchase money security interests in such personal property.
Said real property and personal property described above, together with appurtenances, are
referred to collectively in this Deed of Trust as the"Collateral."
FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS:
(a) Payment to the Beneficiary of an indebtedness in the principal amount of Tow
Hundred Forty Five Thousand Dollars ($245,000.00), evidenced by a promissory note executed
by the Trustor and payable to the order of the Beneficiary, bearing the same date as this Deed of
Trust, and any and all modifications, extensions or renewals thereof or substitutions therefor (the
"Note"), and performance and satisfaction of each and all other obligations of the Trustor under
the Note;
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48
(b) Performance of every obligation or Trustor in this Deed of Trust, the Note, the
Agreement for Purchase and Sale between Beneficiary and Trustor related to the Property (the
"Agreement"); and
(c) Payment of all sums, if any, and interest thereon that may hereafter be loaned or
advanced by the Beneficiary to or for the benefit of the Trustor or to its successors, transferees
and assigns, made to the Trustor while the Trustor is the owner of record of fee title to the
Property, or any portion thereof, or to the successors, transferees or assigns of the Trustor while
they are the owners of record of such fee title, and evidenced by one or more notes or written
instruments which recite that they are secured by this Deed of Trust.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR
COVENANTS AND AGREES AS FOLLOWS:
1. The Trustor shall not use or permit the use of any of the Collateral for any
purpose other than the use for which it was intended at the time this Deed of Trust was executed,
as provided in the Participation Agreement.
2. Upon default under this Deed of Trust or the Note (following delivery of notice
and expiration of the cure period, if any, provided therein), the Beneficiary, at its option, may
declare the whole of the obligations and sums secured hereby to be immediately due and
payable.
3. The person(s) or entity(ies) who have executed this Deed of Trust are fully
authorized, and have obtained any and all written authorizations, approvals or consents
necessary, to bind the Trustor to this Deed of Trust.
4. All rents, profits and income from the Collateral covered by this Deed of Trust are
hereby assigned to the Beneficiary for the purpose of discharging the obligations hereby secured.
However, the Trustor shall be permitted, so long as no default exists hereunder or under the
Note, to collect such rents, profits and income for use consistent with the provisions of the
Agreement.
5. Upon default hereunder or under the Note (following delivery of notice and
expiration of the cure period, if any, provided herein or therein), for the purpose of protecting its
interests hereunder, the Beneficiary will be entitled to the appointment by a court having
jurisdiction, without further notice and without regard to adequacy of any security for the
indebtedness secured hereby, of a receiver to take possession of and protect the Collateral
described herein and operate same and collect the rents, profits and income therefrom. The
entering upon and taking possession of the Property or other Collateral by such receiver, the
collection of such rents, profits and income and the application thereof shall not cure or waive
any default or notice of default hereunder or invalidate any act done pursuant to such notice.
6. The Trustor, at its sole cost and expense, shall provide and maintain on the entire
Property, including all buildings and improvements thereon: (i) a policy of broad-form builder's
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49
risk insurance sufficient to cover 100 percent of the replacement value of all buildings and
improvements on the Property including; without limitation, labor and materials in place or to be
used as part of the permanent construction (including, without limitation, surplus miscellaneous
materials and supplies incidental to the work, and scaffolding, staging, towers, forms and
equipment not owned or rented by the Beneficiary, the cost of which is not included in the cost
of work), insuring against loss or damage by fire, extended coverage perils and such other
hazards, casualties or other contingencies as from time to time may be reasonably required by the
Beneficiary; (ii) a policy of commercial general liability insurance that includes contractual,
products and completed operations coverages, bodily injury and property damage liability
insurance with combined single limits of not less than $1,000,000 per occurrence; and (iii) such
other insurance as may be reasonably required by the Beneficiary, in each case in such amounts,
in such manner and with such companies as the Beneficiary and Trustor may reasonably
approve. The foregoing minimum insurance coverage limits shall be subject to reasonable
adjustment from time to time by the Beneficiary. Each such policy shall be endorsed with a
standard mortgage clause with loss payable to the Beneficiary and the Trustor, and shall provide
that the policy shall not be canceled or materially changed without at least thirty (30) days' prior
notice to the Beneficiary. Upon request by the Beneficiary, the Trustor immediately shall
deposit with the Beneficiary certificates evidencing such policies.
7. The Trustor shall pay: (i) at least ten days before delinquency, all taxes and
assessments affecting the Collateral, including assessments on appurtenant water stock; (ii) when
due, all encumbrances, charges and liens, with interest, on the Collateral or any part thereof
which appear to be prior or superior hereto; and (iii) all costs, fees and expenses of the Trustee or
the Beneficiary reasonably incurred in connection with the trusts created under this Deed of
Trust.
8. The Trustor shall: (i) keep the Collateral in good condition and repair and not
remove or demolish any buildings on the Property; to the extent insurance or condemnation
proceeds are available; (ii) complete or restore promptly and in good and workmanlike manner
the buildings and improvements and any other building or improvement which may be
constructed, damaged or destroyed thereon; (iii)pay when due all claims for labor performed and
materials furnished therefore; (iv) comply in all material respects with all laws affecting the
Collateral or requiring any alterations or improvements to be made thereon; (v) not commit or
permit waste of or on the Collateral; and (vi) not commit, suffer or permit any act upon the
Property in violation of law and/or any covenants, conditions or restrictions affecting the
Collateral.
9. The Trustor shall appear in and defend any action or proceeding purporting to
affect the security hereof or the rights or powers of the Beneficiary or the Trustee, and shall pay
all costs and expenses, including cost of evidence of title and reasonable attorneys' fees, in any
such action or proceeding in which the Beneficiary or the Trustee may appear, or in any suit
brought by the Beneficiary to foreclose this Deed of Trust.
10. Should the Trustor fail to make any payment or do any act as herein provided,
then the Beneficiary or the Trustee, without obligation to do so, and following notice to or
_ 28 _
50
demand on the Trustor, and without releasing the Trustor from any obligation hereof: (i) may
make or do the same in such manner and to such extent as either may deem necessary to protect
the security hereof, the Beneficiary or the Trustee being authorized to enter on the Property for
such purposes; (ii) may commence, appear in and/or defend any action or proceeding purporting
to affect the security hereof or the rights or powers of the Beneficiary or the Trustee; (iii) may
pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of
either appears to be prior or superior hereto (except for the deeds of trust, encumbrances and
liens securing the Construction/Permanent Financing Loan(s) and the Agency Loan, as such
terms are defined below); and (iv) in exercising any such powers, may pay necessary expenses,
employ legal counsel and pay such counsel's reasonable fees. All such amounts paid by the
Beneficiary or the Trustee hereunder shall be added to the obligations secured by this Deed of
Trust.
11. The Beneficiary shall have the right, but not the obligation, to pay when due fire
or other insurance premiums required hereunder if the Trustor fails to make such payments. All
such amounts paid by the Beneficiary hereunder shall be added to the obligations secured by this
Deed of Trust.
12. The Trustor shall pay immediately upon demand all sums so expended by the
Beneficiary or the Trustee under this Deed of Trust, with interest from date of expenditure at the
legal rate.
13. If the Trustor fails to pay any amount required by the Note or this Deed of Trust
when due and payable, or fails to perform all other covenants, conditions and agreements of the
Note, this Deed of Trust or the Participation Agreement (following delivery of notice and
expiration of the cure period, if any, provided therein), the amount of the Note, including unpaid
principal and late charges, and all other charges and amounts required by the Note and this Deed
of Trust shall, at the option of the Beneficiary, become immediately due and payable. This shall
be in addition to and without limitation on any other remedy or right available to the Beneficiary
for such failure.
14. The Trustor shall not voluntarily create or permit to be created against the
Collateral any lien or liens except as specifically permitted by this Deed of Trust or otherwise
authorized by the Beneficiary. The Trustor shall keep and maintain the Collateral free from the
claims of all persons supplying labor or materials who will enter into the construction,
rehabilitation, renovation or repair of any and all buildings or improvements now existing or to
be erected on the Property.
15. By accepting payment of any sum secured by this Deed of Trust after its due date
or by accepting partial payment of any such sum, the Beneficiary does not waive its right either
to require prompt payment when due of all other sums so secured or to declare default for the
Trustor's failure to pay.
16. If the Trustor, without the prior written consent of the Beneficiary: (i) agrees to
or actually sells, conveys, transfers or disposes of the Collateral or any interest therein or portion
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51
thereof, or (ii) assigns or delegates any right or obligation under the Agreement, the Note or this
Deed of Trust, then all amounts secured by this Deed of Trust may be declared immediately due
and payable, at the option of the Beneficiary. The Beneficiary shall not unreasonably withhold
its consent to any such transaction. The Beneficiary's consent to one transaction of this type
shall not be a waiver of the right to require consent to future or successive transactions.
17. As farther security for the full and complete performance of each and every
obligation, covenant, agreement and duty of the Trustor contained herein or in the Note, the
Trustor hereby grants and conveys to the Beneficiary a security interest in and lien on all of the
Collateral. This Deed of Trust shall serve as a security agreement and financing statement
created pursuant to the California Commercial Code, and the Beneficiary will have and may
exercise all rights, remedies and powers of a secured party under the California Commercial
Code. Further, this Deed of Trust is filed as a fixture filing pursuant to the California
Commercial Code and other applicable law, and covers goods which are or are to become
fixtures.
18. Should the Property, the buildings or improvements thereon, or any part of any of
them be taken or damaged by reason of any public improvement or condemnation proceeding, or
damaged by fire or earthquake or in any other manner, the Beneficiary will be entitled, to all of
the Trustor's interest in compensation, awards and other payments or relief therefor; and,
following the occurrence of a default as defined in the Note, the Beneficiary shall be entitled,
jointly with the Trustor, at the Beneficiary's option, to commence, appear in and prosecute in its
own name, any action or proceeding, or to make any compromise or settlement, in connection
with such taking or damage. All such compensation, awards, damages, rights of action and
proceeds, including the proceeds of any fire and other insurance affecting the Property or the
buildings or improvements thereon, are hereby assigned to the Beneficiary. After deducting
therefrom all its expenses, including reasonable attorneys' fees, and if there has not occurred a
default under the Note, the Beneficiary shall apply all such proceeds to restoring the Property or
the buildings or improvements thereon, or if there has been such default, or if the Trustor
determines not to rebuild, the Beneficiary shall retain the proceeds to the extent of the amount
due under the Note and any amounts due under this Deed of Trust. Any balance of such
proceeds still remaining shall be disbursed by the Beneficiary to the Trustor.
19. If the Trustor fails to perform any covenant or agreement in this Deed of Trust or
the Participation Agreement, or if a default occurs under the Note, the Beneficiary may declare
all obligations and sums secured hereby immediately due and payable by delivery to the Trustee
of written declaration of default and demand for sale and written notice of default and of election
to cause the Collateral to be sold, which notice the Trustee shall cause to be duly filed for record,
and the Beneficiary may foreclose this Deed of Trust; provided, however that the Trustor shall
not be deemed to be in default hereunder for failure to make any payment when due or for failure
to perform any other covenant or agreement contained herein until thirty (30) days after written
notice of such failure is given to the Trustor and Trustor is afforded a reasonable opportunity to
cure the default. The Beneficiary shall also deposit with the Trustee this Deed of Trust, the Note
and all other documents evidencing the obligations or sums secured hereby.
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52
20. After the lapse of such time as may then be required by law following the
recordation of the notice of default, and notice of sale having been given as then required by law,
the Trustee, without demand on the Trustor, shall sell the Property at the time and place fixed by
the Trustee in the notice of sale, either as a whole or in separate parcels, and in such order as it
may determine, at public auction to the highest bidder for cash in lawful money of the United
States, payable at time of sale. The Trustee may postpone sale of all or any portion of the
Property by public announcement at the time and place of sale, and from time to time thereafter
may further postpone the sale by public announcement at the time fixed by the preceding
postponement. The Trustee shall deliver to the purchaser its deed conveying fee title to the
Property or portion thereof so sold, but without any covenant or warranty, express or implied.
The recitals in the Trustee's deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including the Trustor, the Trustee and the Beneficiary, may
purchase at the sale. The Trustee shall apply the proceeds of the sale to payment of: (i) the
expenses of the sale, together with the reasonable expenses of the trust created by this Deed of
Trust, including reasonable Trustee's fees and attorneys' fees for conducting the sale, and the
actual cost of publishing, recording, mailing and posting notice of the sale; (ii) the cost of any
search and/or other evidence of title procedure in connection with the sale and of revenue stamps
on the Trustee's deed; (iii) all sums expended under the terms hereof not then repaid, with
accrued interest at the legal rate; (iv) all other sums then secured hereby; and (v) the remainder,
if any, to the person or persons legally entitled thereto.
21. The Beneficiary may from time to time substitute a successor or successors to the
Trustee named herein or acting hereunder to execute the trusts under this Deed of Trust. Upon
such appointment, and without conveyance to the successor trustee, the latter shall be vested with
all title, powers and duties conferred upon any Trustee herein named or acting hereunder. Each
such appointment and substitution shall be made by written instrument executed by the
Beneficiary, containing reference to this Deed of Trust and its place of record, which instrument,
when duly recorded in Riverside County, California, shall be conclusive proof of proper
appointment of the successor trustee.
22. Upon written request of the Beneficiary stating that all obligations secured hereby
have been satisfied and all sums secured hereby have been paid, and upon surrender of this Deed
of Trust and the Note to the Trustee for cancellation and retention, and upon payment of its fees,
the Trustee shall reconvey, without warranty, the Collateral then held hereunder. The recitals in
such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof.
The grantee in such reconveyance may be described as "the person or persons legally entitled
thereto."
23. The trusts created by this Deed of Trust are irrevocable by the Trustor.
24. This Deed of Trust applies to, inures to the benefit of, and binds of the Trustor,
the Beneficiary and the Trustee and their respective administrators, executors, officers, directors,
transferees, successors and assigns. The term "Beneficiary" shall include not only the original
Beneficiary hereunder but also any future owner and holder, including pledges, of the Note
- 31 -
53
secured hereby. In this Deed of Trust, whenever the context so requires, the masculine gender
includes the feminine and/or neuter, and the singular includes the plural.
25. In addition to and without limitation on any other rights or remedies of the
Trustee or the Beneficiary, if the Trustee or the Beneficiary commences any legal action or
proceeding to enforce or interpret any provision of this Deed of Trust or the Note, the Trustor
shall pay all costs and expenses incurred by the Trustee or the Beneficiary in connection with
such action or proceeding, including legal expenses and reasonable attorneys' fees and court
costs.
26. The Trustee accepts the trusts hereunder when this Deed of Trust, duly executed
and acknowledged, is made public record as provided by law. Except as otherwise provided by
law, the Trustee is not obligated to notify any party hereto of pending sale under this Deed of
Trust or of any action or proceeding in which the Trustor, the Beneficiary or the Trustee is a
party,unless brought by the Trustee.
27. The Trustor requests that a copy of any notice of default and of any notice of sale
hereunder be mailed to it at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm Springs,
California 92262.
28. The Truster shall cause a copy of each deed of trust securing a Construction/
Permanent Financing Loan to be provided to the Beneficiary immediately upon its recordation,
so that the Beneficiary may prepare and record a request for notice of default and notice of sale
thereunder pursuant to California Civil Code Section 2924b.
29. This Deed of Trust shall be interpreted and enforced, and the rights and duties
(both procedural and substantive) of the parties hereunder shall be determined, according to
California law.
30. Capitalized terms not otherwise defined herein shall have the meanings given
them in the Agreement or the Note.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date set
forth above.
TRUSTOR:
City of Palm Springs, California
David H. Ready, Esq., Ph.D.,
City Manager
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54
ACKNOWLEDGMENTS
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On 2012, before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(SEAL)
- 33 -
55
EXHIBIT "A" TO DEED OF TRUST
LEGAL DESCRIPTION
All that certain real property situated in the City of Palm Springs, County of Riverside, State of
California, described as follows:
PA "A":
ALL THAT PORTION OF PARCEL I OF PARCEL MAP NO 23139 AS FILED IN
PARCEL MAP BOM 181 AT PAGES 5D THROUGH 53,INCLUSIVE,RECORDS
RIVERSIDE COUNTY,CALIFORNIA,DESCRIBED AS S;
COMMAENCING AT THE NORTHEASTC OF SAID PARCEL 1,THENCE
SOUTH 33'-IT EAST ALONG THE NORTHEASTERLY LINE OF SAM PARCEL 1,
A DI STAN CE OF 21.11 FEET TO THE TRUE POW OF BEGMNINIG;
THE FOLLOWING SIX COURSES BEING ALONG THE NORTHEASTERLY AND
SOUTHEASTERLY LINES OFF SAID PARCEL 1;
THENCE SOUTH n-I9 EAST,A DISTANCE 151.76 FEET;
THENCE NORTH 51--26'-49ffi EAST,A DISTANCE OF 11100 FEET;
THENCE 33'-19 EAST,A DISTANCE IM95 FEET;
TI-E 51--26%4I-WEST,A DISTANCE OF 211_00 FEET;
THENCE SOUTH 3a--3TAT EAST,A DISTANCE OF 220 BID FEET
THENCE SOUTH 51°- U-41-WEST,A DISTANCE OF 190.00 FEET;
THENCE LEAVING G lTHEA RLY LINE,NORTH 3T-19 WEST,A
DISTANCE OF 0 FEET,-
THENCE NORTH 04°51° A DISTANCE OF 45252 FEET;
THENCE NORTH 51--2F-4 -EAST,A DISTANCE OF 11C OO FEET TO THE TRUE
POINT OF BEGINNING.
SUBJECT TO EASEhIENTS OF RECORD IF ANY.
CONTAINING 120,901 SO. FT12 78 AC_
PREPARED BY
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- 34 -
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- 35 -
57
EXHIBIT "D-2"
Deed of Trust—Trust
DEED OF TRUST
Recording requested by,
and when recorded mail to:
Stephen C.Nichols& Sarah J. Benson,
Trustees of the Benson-Nichols
Trust of 2003
901 North Palm Canyon Drive, Suite 200
Palm Springs,CA 92262
INSTRUCTIONS TO COUNTY RECORDER:
Index this instrument as
(i) a Deed of Trust, and
(ii) a Fixture Filing
space above for Recorders Use
DEED OF TRUST AND ASSIGNMENT OF RENTS
This DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is entered into
between the CITY OF PALM SPRINGS, a municipal corporation and California Charter City,
whose principal executive office is at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm
Springs, California 92263 (the "Trustor"), in favor of FIRST AMERICAN TITLE COMPANY,
whose address is (the "Trustee"), for the benefit of
the Stephen C.Nichols& Sarah J. Benson, Trustees of the Benson-Nichols Trust of 2003, located at 901
North Palm Canyon Drive, Suite 200, Palm Springs, CA 92262, (the`Beneficiary").
THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO THE
TRUSTEE, in trust, with the power of sale, the real property in the City of Palm Springs,
Riverside County, California, more particularly described in Exhibit A attached hereto and made
part hereof by reference (the"Property"), together with:
(i) All tenements, hereditaments and appurtenances of or to the Property, including
without limitation all easements and rights used in connection therewith or as a means of access
thereto, all right, title and interest of the Trustor, now owned or hereafter acquired, in any land
lying within the right-of-way of any street, open or proposed, adjoining the Property, and any
and all sidewalks, alleys, strips and other areas of land adjacent to or used in connection with the
Property;
- 37 -
58
(ii) All oil and gas or other mineral rights in or pertaining to the Property and all
royalty, leasehold and other rights of the Trustor pertaining thereto;
(iii) All water rights pertaining to the Property and shares of stock evidencing the
same, and all deposits made with or other security given to utility companies by the Trustor with
respect to the Property;
(iv) The rents, issues and profits thereof, subject, however, to the right, power and
authority of Trustor to collect and apply such rents, issues and profits and set forth in this Deed
of Trust;
(v) All buildings and improvements of every kind and description now or hereafter
erected or placed on the Property, and all fixtures thereon, including, but not limited to, all gas
and electric fixtures, engines and machinery, radiators, heaters, furnaces, heating equipment,
laundry equipment, steam and hot water boilers, stoves, ranges, elevators and motors, bath tubs,
sinks, water closets, basins, pipes, faucets and other plumbing and heating fixtures, mantels,
cabinets, refrigeration plant and refrigerators, whether mechanical or otherwise, cooking
apparatus and appurtenances, and all shades, awnings, screens, blinds and other furnishings, it
being hereby agreed that all such fixtures and furnishings shall to the extent permitted by law be
deemed permanently affixed to and a part of the realty;
(vi) All building materials and equipment now or hereafter delivered to the Property
and intended to be installed thereon; and
(vii) All articles of personal property owned by the Trustor and now or hereafter
attached to or used in and about the building or buildings now erected or hereafter to be erected
on the Property which are necessary to the complete and comfortable use and occupancy of such
building or buildings for the purposes for which they were or are to be erected, and all other
goods, chattels and personal property as are ever used or finmished in operating a building, or the
activities conducted therein, similar to the ones herein described and referred to, and all renewals
or replacements thereof or articles in substitution therefor, whether or not the same are or shall
be attached to the building or buildings in any manner; subject, however, to (and only to) any
purchase money security interests in such personal property.
Said real property and personal property described above, together with appurtenances, are
referred to collectively in this Deed of Trust as the"Collateral."
FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS:
(a) Payment to the Beneficiary of an indebtedness in the principal amount of Tow
Hundred Forty Five Thousand Dollars ($245,000.00), evidenced by a promissory note executed
by the Trustor and payable to the order of the Beneficiary, bearing the same date as this Deed of
Trust, and any and all modifications, extensions or renewals thereof or substitutions therefor(the
"Note"), and performance and satisfaction of each and all other obligations of the Trustor under
the Note;
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59
(b) Performance of every obligation or Trustor in this Deed of Trust, the Note, the
Agreement for Purchase and Sale between Beneficiary and Trustor related to the Property (the
"Agreement'); and
(c) Payment of all sums, if any, and interest thereon that may hereafter be loaned or
advanced by the Beneficiary to or for the benefit of the Trustor or to its successors, transferees
and assigns, made to the Trustor while the Trustor is the owner of record of fee title to the
Property, or any portion thereof, or to the successors, transferees or assigns of the Trustor while
they are the owners of record of such fee title, and evidenced by one or more notes or written
instruments which recite that they are secured by this Deed of Trust.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR
COVENANTS AND AGREES AS FOLLOWS:
1. The Trustor shall not use or permit the use of any of the Collateral for any
purpose other than the use for which it was intended at the time this Deed of Trust was executed,
as provided in the Participation Agreement.
2. Upon default under this Deed of Trust or the Note (following delivery of notice
and expiration of the cure period, if any, provided therein), the Beneficiary, at its option, may
declare the whole of the obligations and sums secured hereby to be immediately due and
payable.
3. The person(s) or entity(ies) who have executed this Deed of Trust are fully
authorized, and have obtained any and all written authorizations, approvals or consents
necessary, to bind the Trustor to this Deed of Trust.
4. All rents, profits and income from the Collateral covered by this Deed of Trust are
hereby assigned to the Beneficiary for the purpose of discharging the obligations hereby secured.
However, the Trustor shall be permitted, so long as no default exists hereunder or under the
Note, to collect such rents, profits and income for use consistent with the provisions of the
Agreement.
5. Upon default hereunder or under the Note (following delivery of notice and
expiration of the cure period, if any, provided herein or therein), for the purpose of protecting its
interests hereunder, the Beneficiary will be entitled to the appointment by a court having
jurisdiction, without further notice and without regard to adequacy of any security for the
indebtedness secured hereby, of a receiver to take possession of and protect the Collateral
described herein and operate same and collect the rents, profits and income therefrom. The
entering upon and taking possession of the Property or other Collateral by such receiver, the
collection of such rents, profits and income and the application thereof shall not cure or waive
any default or notice of default hereunder or invalidate any act done pursuant to such notice.
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6. The Trustor, at its sole cost and expense, shall provide and maintain on the entire
Property, including all buildings and improvements thereon: (i) a policy of broad-form builder's
risk insurance sufficient to cover 100 percent of the replacement value of all buildings and
improvements on the Property including; without limitation, labor and materials in place or to be
used as part of the permanent construction (including, without limitation, surplus miscellaneous
materials and supplies incidental to the work, and scaffolding, staging, towers, forms and
equipment not owned or rented by the Beneficiary, the cost of which is not included in the cost
of work), insuring against loss or damage by fire, extended coverage perils and such other
hazards, casualties or other contingencies as from time to time may be reasonably required by the
Beneficiary; (ii) a policy of commercial general liability insurance that includes contractual,
products and completed operations coverages, bodily injury and property damage liability
insurance with combined single limits of not less than $1,000,000 per occurrence; and (iii) such
other insurance as may be reasonably required by the Beneficiary, in each case in such amounts,
in such manner and with such companies as the Beneficiary and Trustor may reasonably
approve. The foregoing minimum insurance coverage limits shall be subject to reasonable
adjustment from time to time by the Beneficiary. Each such policy shall be endorsed with a
standard mortgage clause with loss payable to the Beneficiary and the Trustor, and shall provide
that the policy shall not be canceled or materially changed without at least thirty (30) days' prior
notice to the Beneficiary. Upon request by the Beneficiary, the Trustor immediately shall
deposit with the Beneficiary certificates evidencing such policies.
7. The Trustor shall pay: (i) at least ten days before delinquency, all taxes and
assessments affecting the Collateral, including assessments on appurtenant water stock; (ii) when
due, all encumbrances, charges and liens, with interest, on the Collateral or any part thereof
which appear to be prior or superior hereto; and (iii) all costs, fees and expenses of the Trustee or
the Beneficiary reasonably incurred in connection with the trusts created under this Deed of
Trust.
8. The Trustor shall: (i) keep the Collateral in good condition and repair and not
remove or demolish any buildings on the Property; to the extent insurance or condemnation
proceeds are available; (ii) complete or restore promptly and in good and workmanlike manner
the buildings and improvements and any other building or improvement which may be
constructed, damaged or destroyed thereon; (iii) pay when due all claims for labor performed and
materials furnished therefore; (iv) comply in all material respects with all laws affecting the
Collateral or requiring any alterations or improvements to be made thereon; (v) not commit or
permit waste of or on the Collateral; and (vi) not commit, suffer or permit any act upon the
Property in violation of law and/or any covenants, conditions or restrictions affecting the
Collateral.
9. The Trustor shall appear in and defend any action or proceeding purporting to
affect the security hereof or the rights or powers of the Beneficiary or the Trustee, and shall pay
all costs and expenses, including cost of evidence of title and reasonable attorneys' fees, in any
such action or proceeding in which the Beneficiary or the Trustee may appear, or in any suit
brought by the Beneficiary to foreclose this Deed of Trust.
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10. Should the Trustor fail to make any payment or do any act as herein provided,
then the Beneficiary or the Trustee, without obligation to do so, and following notice to or
demand on the Trustor, and without releasing the Trustor from any obligation hereof: (i) may
make or do the same in such manner and to such extent as either may deem necessary to protect
the security hereof, the Beneficiary or the Trustee being authorized to enter on the Property for
such purposes; (ii) may commence, appear in and/or defend any action or proceeding purporting
to affect the security hereof or the rights or powers of the Beneficiary or the Trustee; (iii) may
pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of
either appears to be prior or superior hereto (except for the deeds of trust, encumbrances and
liens securing the Construction/Permanent Financing Loan(s) and the Agency Loan, as such
terms are defined below); and (iv) in exercising any such powers, may pay necessary expenses,
employ legal counsel and pay such counsel's reasonable fees. All such amounts paid by the
Beneficiary or the Trustee hereunder shall be added to the obligations secured by this Deed of
Trust.
11. The Beneficiary shall have the right, but not the obligation, to pay when due fire
or other insurance premiums required hereunder if the Trustor fails to make such payments. All
such amounts paid by the Beneficiary hereunder shall be added to the obligations secured by this
Deed of Trust.
12. The Trustor shall pay immediately upon demand all sums so expended by the
Beneficiary or the Trustee under this Deed of Trust, with interest from date of expenditure at the
legal rate.
13. If the Trustor fails to pay any amount required by the Note or this Deed of Trust
when due and payable, or fails to perform all other covenants, conditions and agreements of the
Note, this Deed of Trust or the Participation Agreement (following delivery of notice and
expiration of the cure period, if any, provided therein), the amount of the Note, including unpaid
principal and late charges, and all other charges and amounts required by the Note and this Deed
of Trust shall, at the option of the Beneficiary, become immediately due and payable. This shall
be in addition to and without limitation on any other remedy or right available to the Beneficiary
for such failure.
14. The Trustor shall not voluntarily create or permit to be created against the
Collateral any lien or liens except as specifically permitted by this Deed of Trust or otherwise
authorized by the Beneficiary. The Trustor shall keep and maintain the Collateral free from the
claims of all persons supplying labor or materials who will enter into the construction,
rehabilitation, renovation or repair of any and all buildings or improvements now existing or to
be erected on the Property.
15. By accepting payment of any sum secured by this Deed of Trust after its due date
or by accepting partial payment of any such sum, the Beneficiary does not waive its right either
to require prompt payment when due of all other sums so secured or to declare default for the
Trustor's failure to pay.
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62
16. If the Trustor, without the prior written consent of the Beneficiary: (i) agrees to
or actually sells, conveys, transfers or disposes of the Collateral or any interest therein or portion
thereof, or (ii) assigns or delegates any right or obligation under the Agreement, the Note or this
Deed of Trust, then all amounts secured by this Deed of Trust may be declared immediately due
and payable, at the option of the Beneficiary. The Beneficiary shall not unreasonably withhold
its consent to any such transaction. The Beneficiary's consent to one transaction of this type
shall not be a waiver of the right to require consent to future or successive transactions.
17. As further security for the full and complete performance of each and every
obligation, covenant, agreement and duty of the Trustor contained herein or in the Note, the
Trustor hereby grants and conveys to the Beneficiary a security interest in and lien on all of the
Collateral. This Deed of Trust shall serve as a security agreement and financing statement
created pursuant to the California Commercial Code, and the Beneficiary will have and may
exercise all rights, remedies and powers of a secured party under the California Commercial
Code. Further, this Deed of Trust is filed as a fixture filing pursuant to the California
Commercial Code and other applicable law, and covers goods which are or are to become
fixtures.
18. Should the Property, the buildings or improvements thereon, or any part of any of
them be taken or damaged by reason of any public improvement or condemnation proceeding, or
damaged by fire or earthquake or in any other manner, the Beneficiary will be entitled, to all of
the Trustor's interest in compensation, awards and other payments or relief therefor; and,
following the occurrence of a default as defined in the Note, the Beneficiary shall be entitled,
jointly with the Trustor, at the Beneficiary's option, to commence, appear in and prosecute in its
own name, any action or proceeding, or to make any compromise or settlement, in connection
with such taking or damage. All such compensation, awards, damages, rights of action and
proceeds, including the proceeds of any fire and other insurance affecting the Property or the
buildings or improvements thereon, are hereby assigned to the Beneficiary. After deducting
therefrom all its expenses, including reasonable attorneys' fees, and if there has not occurred a
default under the Note, the Beneficiary shall apply all such proceeds to restoring the Property or
the buildings or improvements thereon, or if there has been such default, or if the Trustor
determines not to rebuild, the Beneficiary shall retain the proceeds to the extent of the amount
due under the Note and any amounts due under this Deed of Trust. Any balance of such
proceeds still remaining shall be disbursed by the Beneficiary to the Trustor.
19. If the Trustor fails to perform any covenant or agreement in this Deed of Trust or
the Participation Agreement, or if a default occurs under the Note, the Beneficiary may declare
all obligations and sums secured hereby immediately due and payable by delivery to the Trustee
of written declaration of default and demand for sale and written notice of default and of election
to cause the Collateral to be sold, which notice the Trustee shall cause to be duly filed for record,
and the Beneficiary may foreclose this Deed of Trust; provided, however that the Trustor shall
not be deemed to be in default hereunder for failure to make any payment when due or for failure
to perform any other covenant or agreement contained herein until thirty (30) days after written
notice of such failure is given to the Trustor and Trustor is afforded a reasonable opportunity to
_ 42 _
63
cure the default. The Beneficiary shall also deposit with the Trustee this Deed of Trust, the Note
and all other documents evidencing the obligations or sums secured hereby.
20. After the lapse of such time as may then be required by law following the
recordation of the notice of default, and notice of sale having been given as then required by law,
the Trustee, without demand on the Trustor, shall sell the Property at the time and place fixed by
the Trustee in the notice of sale, either as a whole or in separate parcels, and in such order as it
may determine, at public auction to the highest bidder for cash in lawful money of the United
States, payable at time of sale. The Trustee may postpone sale of all or any portion of the
Property by public announcement at the time and place of sale, and from time to time thereafter
may further postpone the sale by public announcement at the time fixed by the preceding
postponement. The Trustee shall deliver to the purchaser its deed conveying fee title to the
Property or portion thereof so sold, but without any covenant or warranty, express or implied.
The recitals in the Trustee's deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including the Trustor, the Trustee and the Beneficiary, may
purchase at the sale. The Trustee shall apply the proceeds of the sale to payment of. (i) the
expenses of the sale, together with the reasonable expenses of the trust created by this Deed of
Trust, including reasonable Trustee's fees and attorneys' fees for conducting the sale, and the
actual cost of publishing, recording, mailing and posting notice of the sale; (ii) the cost of any
search and/or other evidence of title procedure in connection with the sale and of revenue stamps
on the Trustee's deed; (iii) all sums expended under the terms hereof not then repaid, with
accrued interest at the legal rate; (iv) all other sums then secured hereby; and (v) the remainder,
if any, to the person or persons legally entitled thereto.
21. The Beneficiary may from time to time substitute a successor or successors to the
Trustee named herein or acting hereunder to execute the trusts under this Deed of Trust. Upon
such appointment, and without conveyance to the successor trustee, the latter shall be vested with
all title, powers and duties conferred upon any Trustee herein named or acting hereunder. Each
such appointment and substitution shall be made by written instrument executed by the
Beneficiary, containing reference to this Deed of Trust and its place of record, which instrument,
when duly recorded in Riverside County, California, shall be conclusive proof of proper
appointment of the successor trustee.
22. Upon written request of the Beneficiary stating that all obligations secured hereby
have been satisfied and all sums secured hereby have been paid, and upon surrender of this Deed
of Trust and the Note to the Trustee for cancellation and retention, and upon payment of its fees,
the Trustee shall reconvey, without warranty, the Collateral then held hereunder. The recitals in
such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof.
The grantee in such reconveyance may be described as "the person or persons legally entitled
thereto."
23. The trusts created by this Deed of Trust are irrevocable by the Trustor.
24. This Deed of Trust applies to, inures to the benefit of, and binds of the Trustor,
the Beneficiary and the Trustee and their respective administrators, executors, officers, directors,
- 43 -
64
transferees, successors and assigns. The term "Beneficiary" shall include not only the original
Beneficiary hereunder but also any future owner and holder, including pledges, of the Note
secured hereby. In this Deed of Trust, whenever the context so requires, the masculine gender
includes the feminine and/or neuter, and the singular includes the plural.
25. In addition to and without limitation on any other rights or remedies of the
Trustee or the Beneficiary, if the Trustee or the Beneficiary commences any legal action or
proceeding to enforce or interpret any provision of this Deed of Trust or the Note, the Trustor
shall pay all costs and expenses incurred by the Trustee or the Beneficiary in connection with
such action or proceeding, including legal expenses and reasonable attorneys' fees and court
costs.
26. The Trustee accepts the trusts hereunder when this Deed of Trust, duly executed
and acknowledged, is made public record as provided by law. Except as otherwise provided by
law, the Trustee is not obligated to notify any party hereto of pending sale under this Deed of
Trust or of any action or proceeding in which the Trustor, the Beneficiary or the Trustee is a
party, unless brought by the Trustee.
27. The Trustor requests that a copy of any notice of default and of any notice of sale
hereunder be mailed to it at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm Springs,
California 92262.
28. The Trustor shall cause a copy of each deed of trust securing a Construction/
Permanent Financing Loan to be provided to the Beneficiary immediately upon its recordation,
so that the Beneficiary may prepare and record a request for notice of default and notice of sale
thereunder pursuant to California Civil Code Section 2924b.
29. This Deed of Trust shall be interpreted and enforced, and the rights and duties
(both procedural and substantive) of the parties hereunder shall be determined, according to
California law.
30. Capitalized terms not otherwise defined herein shall have the meanings given
them in the Agreement or the Note.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date set
forth above.
TRUSTOR:
City of Palm Springs, California
David H. Ready, Esq., Ph.D.
City Manager
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65
- 45 -
66
ACKNOWLEDGMENTS
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On 2012, before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(SEAL)
- 46 -
67
EXHIBIT "A" TO DEED OF TRUST
LEGAL DESCRIPTION
All that certain real property situated in the City of Palm Springs, County of Riverside, State of
California, described as follows:
PARCEL"A":
ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO-23130 AS FILED ON
PARCEL MAP BOOK 181 AT PAGES 50 THROUGH 53, INCLUSIVE,RECORDS OF
RIVERSIDE COUNTY,CALIFORNIA, DESCRIBED AS FOLLOWS;
COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 1„THENCE
SOUTH 380-33`-1',T EAST ALONG THE NORTHEASTERLY LINE OF SAID PARCEL 1,
A DISTANCE OF 21.11 FEET TO THE TRUE ANT OF BEGWMQ
THE FOLLOINING SIX COURSES BEING ALONG THE NORTHEASTERLY AND
SOUTHEASTERLY LINES OF SAID PARCEL 1;
THENCE SOUTH 38"-3N49 EAST,A DISTANCE OF 15116 FEET,
THENCE NORTH 51-- -41-EAST,A DISTANCE OF 10.00 FEET;
THENCE SOUTH 3B--33`49 EAST,A DISTANCE OF 176.95 FEET;
THENCE SOUTH 51"-26'41-WEST,A DISTANCE OF 211.00 FEET;
THENCE SOUTH 380-33A EAST,A DISTANCE OF 220.00 FEET
THENCE SOUTH 510-26'-41'"1NEST,A DISTANCE OF 190-DO FEET;
THENCE LEAVING SAID SOUTHEASTERLY LINE, NORTH 38--3T-19"WEST,A
DISTANCE OF 220_0 FEET;
THENCE NORTH W-51'32'EAST,A DISTANCE OF 45252 FEET;
THENCE NORTH 51'-26 41'EAST,A DISTANCE OF 80.00 FEET TO THE TRUE
POINT OF BEGINNING_
SUBJECT TO EASEMENTS OF RECORD IF ANY.
CONTAINING 120,981 SO- FT12.78 AC.
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EXHIBIT "E"
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real
property interest must withhold tax if the transferor is a foreign person. To inform the transferee
that withholding of tax is not required upon disposition of a U.S. real property interest by
("Transferor"), the undersigned hereby certifies the following on behalf of
Transferor:
1. Transferor is not a foreign corporation, foreign partnership, foreign trust or
foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax
Regulations);
2. Transferor's U.S. employer identification or social security number is
and
3. Transferor's office address is
The undersigned understands that this certification may be disclosed to the Internal
Revenue Service by the transferee and that any false statement contained herein could be
punished by fine, imprisonment, or both.
Under penalties of perjury, we declare that we have examined this certification and to the
best of our knowledge and belief, it is true, correct, and complete, and we further declare that we
have authority to sign this document on behalf of Transferors.
Dated: 12012
Stephen C. Nichols, Trustee
"Transferor"
Address of Property for Sale: 2901 North Palm Canyon Drive
See legal description attached as Exhibit"A"
70
1003/012/31756.01 49
858448.1