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00374C - PIROZZI PROPERTY EXCHANGE SALE NPC BELARDO
Vincent & Karen Pirozzi 1st Amendment to Exchnge & Pur( AGREEMENT 374C Chrm Signed 9-17-97 per Sec 4. 1 of Agr FIRST AMENDMENT TO -- EXCHANGE AGREEMENT AND JOINT ESCROW INSTRUCTIONS THIS FIRST AMENDMENT TO EXCHANGE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this "Amendment") is dated for reference purposes as of September 17, 1997 and is entered into by and between VINCENT J. PIROZZI and KAREN M. PIROZZI, TRUSTEES OF THE PIROZZI FAMILY TRUST ( "Pirozzi" ) and THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ( "Agency" ) . R E C I T A L S A. Pirozzi and Agency previously entered into that certain Exchange Agreement and Joint Escrow Instructions dated for reference purposes as of May 27, 1997 (the "Exchange Agreement" ) providing for the exchange of the real properties described therein. Capitalized terms used and not defined in this Amendment shall have the meanings ascribed to such terms in the Exchange Agreement . B . The escrow for the exchange of the properties referenced in the Exchange Agreement closed on August 27, 1997 . C. Buyer and Seller desire to further amend the Exchange Agreement pursuant to the terms and conditions of this Amendment to clarify certain valuations regarding the exchange values of the respective properties . NOW, THEREFORE, incorporating herein the foregoing recitals and in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows : A G R E E M E N T 1 . Valuation and Balancing Equities . Section 4 . 1 of the Exchange Agreement provides that the Pirozzi Land Value is $212 , 437 . 50 and that the Agency Land Value is $328 , 312 . 50 . Section 4 . 2 of the Exchange Agreement provides that , based on the Adjust Pirozzi Property and the Adjusted Agency Property, the Pirozzi Exchange Value is $218 , 875 . 00 and that the Agency Exchange Value is $328 , 312 . 50 . The totals of the Pirozzi Land Value and the Agency Land Value is $540 , 750 and the total of the Pirozzi Exchange Value and the Agency Exchange Value is $431, 302 . 50 , leaving $109 , 447 . 50 in land value unaccounted for in the exchange . Of the total Agency Land Value , $109 , 447 . 50 in value is attributable to the portion of the Agency Land cross-hatched on Exhibit "A" attached hereto (the "Non-Exchanged Segment") . Following the Lot Line Adjustment, the 2211014094-W,13WS0231 D9117197 Non-Exchanged Segment was still vested in the Agency' s name . Therefore, when the Adjusted Pirozzi Property and the Adjusted Agency Property was exchanged, there was no transfer of title to the portion of the Adjusted Pirozzi Property which included the Non-Exchanged Segment . Accordingly, the Agency Exchange Value and the Pirozzi Exchange Value are as set forth in the Exchange Agreement, however, the Agency was vested in title to the Non- Exchanged Segment, both before and after the exchange, thus accounting for the differential in total land values noted above . 2 . Counterparts . This Amendment may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute on and the same instrument . 3 . Full Force and Effect . The Purchase Agreement is deemed modified to the extent inconsistent with the provisions of this Amendment . Except as provided herein, the Purchase Agreement shall continue unmodified and in full force and effect . IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Exchange Agreement and Joint Escrow Instructions as of the date first above written. "Pirozzi" VINCENT J. PTROZZI, 2MUSTEE OFFT THE / PIR/OZZI FAMILY TRUST KAREN M. PIROZ f, ��Gr OF THE PIROZZI FAMILY TRUST 223/0I4084-006/3105023 1 109/17/97 -2- "Agency" THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS Dated: By: Its : FLU ATTEST: l 4.��CiVy /l ro Age(—ncy Secretary APPROVED AS TO FORM RUTAN & TUCKER, LLP By: -� C---�" C'- —' - ori Sarner Smith, Esq. , Agency Counsel 223/014084-0006/3105023.1 e09/17/97 —3— CALWORNIA ALL-PURPON ACKNOWLEDGMENT • State of C ram.cry=rc-r,�=nc—r.F-r�--rc�r�Y��^;� c,hh,€rnr4.rc��c rmc��-r .�r�•�—r, .,,, c County of �� I On�/(�� //�/�� before me, �Ain�f G( �s;ri� fj) AI71 Dale Name and Ttle of OHlcer(e.g.,'Jdne Doe,NotaryPublic") personally appeared /nynel6l p($Ignell6) I personally known to me— — V ee to be the personv whose nameV)Oare subscribed to the within instrument and acknowledged to me that sh�a ty executed the s me it t it V) o ted instrument the and that , �5 e 9"� r signature ) on the instrument the person�f, EI.41NE L.WEDEKIIND or the entity upon behalf of which the person) acted, Q COMM.4'104L357 executed the instrument. z '�a e . Nota Public—California 7" x RIVERSIDE COUNT my comm.Er.p!resrEB3.19MW WITNESS my hand and official seal. wgriri Nolaw Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment or this form to another document, }' Description of Attached Document I� Title or Type of Document: Document Date: Number of Pages: P3' Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) I Signer's Name: Signer's Name: I Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee 'I ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other. Top of thumb here ❑ Other: Top of thumb Here �? I Signer Is Representing: Signer Is Representing: r�l I I ©1996 National Notary Assounion•8236 Pemmel Ave,PO.Box 7184•Canoga Park,CA 913 0 9-7 1 8 4 Prod No 5907 Reorder.Call Toll-Free 1-800-876-8827 CALIFORNIA ALL-PURPOACKNOWLEDGMENT • .� State of County of C On before me,_��Ain�EJ Data / IDlure an The of Officer e 'Q ( g.'iGane Doe,Notary Public) personally appeared L �i� �! �� L/}�?/��` 71f &c Ze_z� j I i Mal of Si w / ' f personally known to me — e to be the persorl whose naml6l re subscribed to the within instrument 4 and ackWwledged to me tha(he! he/they executed the same it her/their authorized capacityffes, and that by EL41NE L.WEDEKIND Q is er/their signatureo on the instrument the person,(•s'), CONwt.4� 104GC57 or the entityupon behalf of which the persorixacted, z `I ` '�.,,:. NOIC rul:hc—California ? P ,l f:ry'_F�DE COUNTY executed the instrument. AAy Cohr,M" Axpiras FE©3,11i99 WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent I� fraudulent removal and reattachment of this form to another document. I� Description of Attached Document Title or Type of Document: Document Date: Number of Pages: � Signer(s) Other Than Named Above: I Capacity(ies) Claimed by Signer(s) 'Si ners Name: I I g Signer's Name: I ❑ Individual I� ❑ Individual ❑ Corporate Officer ❑ Corporate Officer ti Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ umb here ❑ Other: Top of bomb Here Other, .�!f th Signer Is Representing: Signer Is Representing: S' el �I I i 1995 National Notary Association•8236 Remmet Ave P0,Box 7184•Canoga Park,CA 91309-7184 Prod No 5907 Reorder.Call Toll-Pree 1-800-876-6827 CALIFORNIA ALL-PURPOSACKNOWLEDGMENT State of ���fiLl�zJ County of I On c /C� �yh /�g9rf before me, E1 �IAQr4 TuBc/�J Oale / /p /�— Name and Title of Officer(e "Jane oe,Nolary Publi�j personally appeared o Name(s)of agner(s) U personally known to me-08 ❑ proved me on fhe eyj-evidsnse-to be the person(q whose name is/subscribed to the within instrument ) and acknowledged to me that he/she(the executed the same in his/her thei authorized capacit (e ), and that by his/her their signature@ on the instrument the persoro, . ELAINE L.WEDEKIND or the entity upon behalf of which the person 'sO acted, coMnn.s 1048257 _, executed the instrument. z No}ary Public—California it z RIVERSIDE COUNTY My Comm Expires FEB 3.triav WITNESS my hand and official seal. o r, Signature of I olary Pub N a OPTIONAL I Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent �I fraudulent removal and reattachment of this form to another document. I Description of Attached Document Title or Type of Document:. /sdT(Gia Document V27421' q/�/9� Number of Pages: Signer(s) Other Than Named Above: �/ �. 2c� fir fw � I Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual =I Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Facts ❑ Trustee ❑ Trustee ❑ Guardian or Conservator R ❑ Guardian or Conservator , A El Other: mP or thumb here Cl Other: Top of thumb here All I� I Signer Is Representing: Signer Is Representing: i �I I maw -- �. � O 1995 National Notary Assoaaoon•8236 Remmet Ave,P.O Box 7184•Canoga Park,CA 91309-]1 B4 Prod No 5907 Reorfar.Call Tall-Free 1-000-8]6-602] EXHIBIT "A" LOT 4 LOT 4 I LOT 4 N 89'50'00'E 257.50 128.75 ? 126.75 o Adios � m o A o P�ratz� PAR L�ELy2 I� LOT 5 b PARCEL 1 Z o LOT 5 0 12B.75 0 3 Z 9 O Z o LINE TO REMOVE m � 0 0 o N 89'50'00'E 257.50 � z o r// z Q o Nla- c o LOT 6 LOT 6 &fdh 4a Z LOT 6 BLOCK 12 BLOCK 23 BLOCK 24 L) m � U N a 4 33 33 40 40 ALEJO RD. 0 N.T.S. o AMADO RD. 0 a o TAHOUITZ J } W Z m a RAMON RD. U S J a a , LLA DEPT. OF PUBLIC WORKS CITY OF PALM SPRINGS ENGINEERING DIVISION LOT LINE ADJUSTMENT APPROVED 1996 ( AFTER ADJUSTMENT ) LEGAL DESCRIPTION CITY ENGINEER R . C . E . NO LOT 5 IN BLOCK 23 OF PALM SPRINGS, AS Vincent & Karen Pirozzi - Exchg & Purch Agr re 395 NPC (formerly Texaco - Ctr Belardo) & LLine Ac AGREEMENT 374C R1018 6-18-97 EXCHANGE AGREEMENT AND JOINT ESCROW INSTRUCTIONS BY AND BETWEEN VINCENT J. PIROZZI and KAREN M. PIROZZI, TRUSTEES OF THE PIROZZI FAMILY TRUST AND THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS o I W 223/014084-0006/3074683.3 a05/22/97 / �q Paae 12 . MISCELLANEOUS . . . . . . . . . . . . . . . . . 17 12 . 1 Assignment . . . . . . . . . . . 17 12 . 2 Successors and Assigns . . . . . . . . . . . . . 17 12 . 3 Qualification; Authority . . . . . . . . . . . . 17 12 . 4 Attorneys' Fees . . . . . . . . . . . . . . . . 17 12 . 5 Interpretation . . . . . . . . . . . . . . . . . 17 12 . 6 Legal Actions . . . . . . . . . . . . . . . 17 12 . 7 Waiver . . . . . . . . . . . . . . . . . 18 12 . 8 Modifications . . . . . . . . . . . . . . . 18 12 . 9 Severability . . . . . . . . . . 18 12 . 10 Merger of Prior Agreements and Understandings 18 12 . 11 Covenants to Survive Escrow . . . . . . . . 18 12 . 12 Notices . 19 12 . 13 Non-Liability of Agency Officers and Employees . 19 12 . 14 Conflict of Interest . . . . . 19 12 . 15 Covenant Against Discrimination . . . . . . . . 20 12 . 16 No Partnership Created . . . . . . . . . . . . . 20 12 . 17 Execution in Counterpart . . . . . . . . . . . . 20 12 . 18 Exhibits . . . . . . . . . . . . . . . . . . . . 20 ESCROW HOLDER' S ACCEPTANCE OF ESCROW INSTRUCTIONS . . . . . . 21 SCHEDULE OF EXHIBITS EXHIBIT "A" DESCRIPTION OF PIROZZI LAND EXHIBIT "B" DESCRIPTION OF AGENCY LAND EXHIBIT "C" DEPICTION OF AGENCY LAND AND PIROZZI LAND PRIOR TO LOT LINE ADJUSTMENT EXHIBIT "D" LOT LINE ADJUSTMENT EXHIBIT "D-1" OWNERSHIP FOLLOWING EXCHANGE EXHIBIT "E" DESCRIPTION OF ADJUSTED PIROZZI PROPERTY EXHIBIT "F" DESCRIPTION OF ADJUSTED AGENCY PROPERTY EXHIBIT "G" DEPICTION OF PIROZZI SEGMENT EXHIBIT "H" DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS 223/014094-0006/3074683.3 a05/27/97 TABLE OF CONTENTS Paae 1 . NOT AN OWNER PARTICIPATION AGREEMENT; NO AGREEMENT REGARDING DEVELOPMENT AND PARKING . . . . . . 2 1 . 1 Not An Owner Participation Agreement 2 1 . 2 Future Development Plan . . . . . . . . 3 1 . 3 No Representations Regarding Approvals or Parking . . . . . . . . . 3 1 .4 Full Police Power . . . . . . . . . . . . . . 3 2 . LOT LINE ADJUSTMENT . . . . . . . . . . . . . . . . . . 3 3 . EXCHANGE OF ADJUSTED PROPERTIES . . . . . . . . . . . . 3 4 . VALUATION AND BALANCING EQUITIES . . . . . 4 4 . 1 Valuation of the Properties 4 4 . 2 Valuation of the Adjusted Properties . 4 4 . 3 No Liens . . . . . . . . . . . . . . . . . . . . 4 5 . OPENING AND CLOSING OF ESCROW . . . . 4 5 . 1 Opening of Escrow . . . . . . . . . . 4 5 . 2 Closing Date; Close of Escrow 5 . 3 Possession 4. . . . . . . . . . . . . . . . 4 5 . 4 Time of Essence . . . . . . . . . . . . . . . . 4 6 . FUNDS AND DOCUMENTS REQUIRED FROM PIROZZI AND AGENCY 5 6 . 1 From Pirozzi . . . . . . . . . 5 6 . 2 From Agency . . . . . . . . 5 6 . 3 Recordation of Lot Line Adjustment, Grant Deeds and Declaration . . . . _ 6 6 . 4 Distribution of Documents . . . . . . . . . . . 7 7 . TITLE POLICY 7 7 . 1 Title Policy to be Issued to Pirozzi 7 7 . 2 Title Policy to be Issued to Agency . . . . . . 8 7 . 3 Supplemental Title Reports . . . . . . . . . . . 8 8 . CONDITIONS PRECEDENT TO CLOSE OF ESCROW 9 8 . 1 Conditions to Pirozzi' s Obligations . . . . . . 9 8 . 2 Conditions to Agency' s Obligations . . . . . . . 10 9 . ESCROW PROVISIONS . . . . . . . . . 11 9 . 1 Escrow Instructions . . . 11 9 . 2 General Escrow Provisions . . . 11 9 . 3 Proration of Real Property Taxes . . . . . . . 11 9 .4 Payment of Costs 9 . 5 Termination and Cancellation of Escrow . . . . 12 12 9 . 6 Information Report . . . . . . . 12 9 . 7 Brokerage Commissions . . . . . . . . . . . . . 13 10 . INSPECTIONS AND REVIEW; DISCLAIMERS OF REPRESENTATIONS AND WARRANTIES 13 10 . 1 Entry and Investigation of Subject Property 13 10 . 2 Disclaimer of Representations and Warranties 15 11 . REMEDIES FOR DEFAULT . . . . . . . 16 11 . 1 Exclusive Remedy . . . 16 11 . 2 Documents to Reflect Termination . . . . . . . 16 223/014084-0006/3074683.3 a05/27/97 _i_ EXCHANGE AGREEMENT AND JOINT ESCROW INSTRUCTIONS Escrow No. Date of Opening of Escrow: 1997 To : Pacific Coast Escrow ( "Escrow Holder" ) 74920 Hwy. Ill Indian Wells, CA 92210 Attention: Ruthie Furst Escrow Officer Telephone : (619) 568-0344 THIS EXCHANGE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this "Agreement" ) is dated for reference purposes as of the 27th day of May, 1997 by and between VINCENT J. PIROZZI and KAREN M. PIROZZI, TRUSTEES OF THE PIROZZI FAMILY TRUST ( "Pirozzi") and THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ( "Agency" ) . R E C I T A L S• A. Pirozzi is the owner of that certain real property as legally described on Exhibit "A" attached hereto and depicted on Exhibit "C" attached hereto ( "Pirozzi Land") . B. Agency is the owner of that certain unimproved real pro- perty as legally described on Exhibit "B" attached hereto and depicted on Exhibit "C" attached hereto ( "Agency Land") . together with (i) all improvements constructed thereon; (ii) all rights, privileges, easements, licenses and interests appurtenant thereto, including without limitation, all mineral, oil, gas, water and water rights; and (iii) all intangible property owned or held by Agency in connection with the Agency Land, including without limitation, development rights, governmental approvals and land entitlements (collectively the "Agency Property" ) . C. The Pirozzi Land and the Agency Land are sometimes referred to collectively in this Agreement as the "Lands . " D. Pirozzi and Agency desire to readjust the property line of their respective Lands whereby a portion of the Pirozzi Land would become a part of the Agency Land and be conveyed to the Agency, as depicted on Exhibit I'D" ("Lot Line Adjustment" ) . E. The Pirozzi Land, as modified by the Lot Line Adjustment, together with all improvements constructed thereon; all rights, 223/014084-0006/3074683.3 a06/04/97 privileges, easements, licenses and interests appurtenant thereto, including without limitation, all mineral, oil, gas, water and water rights; and all intangible property owned or held by Pirozzi in connection with the Pirozzi Land, is referred to herein as the Adjusted Pirozzi Property" and is described on Exhibit "E" attached hereto. F. The Agency Land, as modified by the Lot Line Adjustment, together with all improvements constructed thereon; all rights, privileges, easements, licenses and interests appurtenant thereto, including without limitation, all mineral, oil, gas, water and water rights; and all intangible property owned or held by Agency in connection with the Agency Land, is referred to herein as the "Adjusted Agency Property" and is described on Exhibit "F" attached hereto. G. Immediately after the Lot Line Adjustment and related conveyance to the Agency of the portion of the Pirozzi Property affected thereby have been recorded, and substantially concurrently therewith, the Agency and Pirozzi desire to enter into an exchange whereby the Adjusted Pirozzi Property will be exchanged for the Adjusted Agency Property. The parties intend their exchange to qualify as a tax-deferred exchange pursuant to Internal Revenue Code Section 1031 and corresponding California statutes as are applicable . H. The Adjusted Pirozzi Property and the Adjusted Agency Property are sometimes referred to collectively in this Agreement as the "Adjusted Properties . " I . The Adjusted Properties are within the Palm Springs Central Business District Redevelopment Project Area ( "Project Area" ) specifically described in the Redevelopment Plan for the Project Area which was approved and adopted by the City Council of the City of Palm Springs by Ordinance No. 952 on July 11, 1973, and as subsequently amended by means of ordinances of the City Council ( "Redevelopment Plan") . NOW, THEREFORE, Pirozzi and Agency agree as follows : TERMS AND CONDITIONS 1 . NOT AN OWNER PARTICIPATION AGREEMENT• NO AGREEMENT REGARDING DEVELOPMENT AND PARKING. 1.1 Not An Owner Participation Agreement. Although the Adjusted Properties are within the Project Area and subject to the Redevelopment Plan, Pirozzi is not, at this time, exercising its participation rights as an owner of real property within the Project Area and this Agreement shall not constitute an owner participation agreement . The Agency has determined that the 223/014084-0006/3074683.3 .05/22/97 -2- exchange of the Adjusted Properties as contemplated by this Agreement will facilitate the future development of the. Adjusted Agency Property after acquisition thereof by Pirozzi . 1.2 Future Development Plan. At such time as Pirozzi seeks to exercise his rights as a participant under the Redevelopment Plan and in accordance with the law applicable thereto, Pirozzi acknowledges and agrees that he will be required to submit and process for approval by the Agency a development plan as an owner/participant, to enter into an owner participation agreement and to process with Agency and the City of Palm Springs (Ticity" ) all required approvals for any development of the Adjusted Agency Property under the law applicable at such future time as such approvals are sought . 1 .3 No Representations Regarding Approvals or Parking. without limiting the generality of the foregoing provisions of this Article 1, it is expressly understood by Pirozzi that the Agency makes no representations or warranties with respect to the approvals required by Agency, the City or any other governmental entity for the development of the Property nor have any representations or warranties been made regarding parking requirements for the Property or the manner in which such requirements will be satisfied. Nothing in this Agreement shall be deemed to be a prejudgment or commitment with respect to such items nor to guaranty that such approvals or permits will be issued within any particular time or with or without any particular conditions . 1.4 Full Police Power. The Agency reserves full police power authority over the Adjusted Agency Property after conveyance thereof to Pirozzi and Pirozzi acknowledges that the City retains such full police power as well . 2 . LOT LINE ADJUSTMENT. On or before the Closing Date, Pirozzi and Agency agree to consummate the Lot Line Adjustment and, immediately thereafter and substantially concurrently therewith, Agency shall convey to Pirozzi the portion of the Agency Land depicted on Exhibit °G" (the "Pirozzi Segment" ) , pursuant to a Grant Deed in form reasonably acceptable to Agency and Pirozzi . Pirozzi shall process approval of the Lot Line Adjustment at Pirozzi' s sole cost and expense (other than engineering costs previously paid by Agency) . 3 . EXCHANGE OF ADJUSTED PROPERTIES . Following recordation of the Lot Line Adjustment and conveyance of the Pirozzi Segment to the Agency, and substantially concurrently therewith, Pirozzi hereby agrees to convey the Adjusted Pirozzi Property to Agency in exchange for the Adjusted Agency Property and the Agency agrees to concurrently convey the Adjusted Agency Property to Pirozzi in exchange for the Adjusted Pirozzi Property. Following such exchange, Pirozzi will own the Adjusted Agency Property and the Agency will own the Adjusted Pirozzi Property as depicted on Exhibit "D-111 . 223/014084-0006/3074683.3 a05/27/97 -3- 4 . VALUATION AND BALANCING EQUITIES . 4 . 1 Valuation of the Properties . For the purposes of this Agreement, the Pirozzi Land is valued at TWO HUNDRED TWELVE THOUSAND FOUR HUNDRED THIRTY SEVEN DOLLARS AND FIFTY CENTS ($212 , 437 . 50) (the "Pirozzi Land Value" ) and the Agency Land is valued at THREE HUNDRED TWENTY-EIGHT THOUSAND THREE HUNDRED TWELVE DOLLARS AND FIFTY CENTS ($328 , 312 . 50) (the "Agency Land Value" ) . 4 . 2 Valuation of the Adjusted Properties. For the purposes of this Agreement, the Adjusted Pirozzi Property is valued at TWO HUNDRED EIGHTEEN THOUSAND EIGHT HUNDRED SEVENTY-FIVE DOLLARS ($218 , 875 . 00) (the "Pirozzi Exchange Value" ) and the Adjusted Agency Property is valued at TWO HUNDRED TWELVE THOUSAND FOUR HUNDRED TWENTY-SEVEN DOLLARS AND FIFTY CENTS ($212 , 427 . 50) (the "Agency Exchange Value" ) . Pirozzi and the Agency have agreed that no compensation shall be paid to either party for the differences between the Pirozzi Exchange Value, the Pirozzi Land Value, the Agency Exchange Value, and the Agency Land Value . 4 . 3 No Liens . Neither the Pirozzi Property nor the Agency Property are encumbered by any mortgages or deeds of trust evidencing loans secured by the respective Properties . 5 . OPENING AND CLOSING OF ESCROW. 5 . 1 Opening of Escrow. Within three (3) business days after the execution of this Agreement by the Agency, the parties shall open an escrow ( "Escrow" ) with the Escrow Holder by causing an executed copy of this Agreement to be deposited with Escrow Holder. Escrow shall be deemed open on the date that a fully executed copy of this Agreement is delivered to Escrow Holder ( "Opening of Escrow" ) . 5 . 2 Closing Date; Close of Escrow. Escrow shall close on or before thirty (30) days after the Opening of Escrow ( "Closing Date" ) . The terms "the Close of Escrow" , and/or the "Closing" are used herein to mean the time Recorded Documents are filed con- currently (but in the order specified in Section 6 . 3) for record by the Escrow Holder in the Office of the County Recorder of Riverside County, California. 5 .3 Possession. Possession of the Adjusted Pirozzi Property shall be delivered to Agency as of Close of Escrow. Possession of the Adjusted Agency Property shall be delivered to Pirozzi as of Close of Escrow. 5 . 4 Time of Essence. Pirozzi and Agency each specifically understands that time is of the essence of each and every term of this Agreement and Pirozzi and Agency each specifically agrees to strictly comply and perform its 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 . 223/014094-0006/3074683 3 a06/17/97 -4- 0 6. FUNDS AND DOCUMENTS REQUIRED FROM PIROZZI AND AGENCY. 6 .1 From Pirozzi. Pirozzi agrees that on or before 1 : 00 p.m. on the business day preceding the Closing Date, Pirozzi will deposit with Escrow Holder all 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. All documents necessary to consummate the Lot Line Adjustment; b. A preliminary change of ownership report completed in the manner required in Riverside County with respect to the Pirozzi Segment Grant Deed; C . A standard form grant deed conveying the Adjusted Pirozzi Property to the Agency, which grant deed shall contain a recital that title to the Adjusted Pirozzi Property is conveyed "subject to real property taxes and assessments and to all easements, encumbrances, covenants, conditions, restrictions, reservations, rights-of-way, and other matters of record, or which could be determined upon reasonable inspection and investigation of whatever kind or nature" (the "Pirozzi Grant Deed") ; d. A preliminary change of ownership report completed in the manner required in Riverside County; e. Two (2) duplicate originals of a non-foreign affidavit in the form required by Escrow Holder; f . Two (2) duplicate originals of California Form 590-RE real estate withholding exemption certificates in the form required by the Escrow Holder; g. A Declaration of Covenants and Conditions in the form attached hereto as Exhibit "H" ( "Declaration" ) ; and h. Such funds and other items and instruments as may be reasonably necessary in order for Escrow Holder to comply with this Agreement . 6 .2 From Agency. Agency agrees that on or before 1 : 00 p.m. on the business day preceding the Closing Date, Agency will deposit with Escrow Holder 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. All documents necessary to consummate the Lot Line Adjustment, including without limitation, a standard form grant deed conveying the Pirozzi Segment to Pirozzi, which 223/014084-0006/3074683.3 a05/22/97 -55- • • grant deed shall contain a recital that title to the Pirozzi Segment is conveyed "subject to real property taxes and assessments and to all easements, encumbrances, covenants, conditions, restrictions , reservations, rights-of-way, and other matters of record, or which could be determined upon reasonable inspection and investigation of whatever kind or nature" (the "Pirozzi Segment Grant Deed" ) ; b. A standard form grant deed conveying the Adjusted Agency Property to Pirozzi which shall contain a recital that title to the Adjusted Agency Property is conveyed "subject to real property taxes and assessments and to all easements, encumbrances , covenants, conditions, restrictions, reservations, rights-of-way, and other matters of record, or which could be determined upon reasonable inspection and investigation of whatever kind or nature" (the "Agency Grant Deed" ) ; C . A certificate of acceptance as required by Government Code §27281 wherein the Agency accepts the Adjusted Pirozzi Property; d. A preliminary change of ownership report completed in the manner required in Riverside County with respect to the Pirozzi Grant Deed; e . Two (2) duplicate originals of a non-foreign affidavit in the form required by the Escrow Holder; f . Two (2) duplicate originals of California Form 590-RE Real Estate Withholding exemption certificates in the form required by the Escrow Holder; and g. Such funds and other items and instruments as may be reasonably necessary in order for Escrow Holder to comply with this Agreement . 6 .3 Recordation of Lot Line Adjustment Grant Deeds and Declaration. Escrow Holder will cause the documents to be recorded in the following order: U) the Lot Line Adjustment; (ii) the Pirozzi Segment Grant Deed; (iii) the Pirozzi Grant Deed (with the certificate of acceptance attached thereto) ; (iv) the Agency Grant Deed; and then (v) the Declaration; when (but, in no event, after the Closing Date, it can issue both the Agency Title Policy and the Pirozzi Title Policy in the manner 223/014084-0006/3074683.3 a05/22/97 -6- !1 • described in Section 7 below, and holds for the account of the respective party the items described hereinbelow to be delivered to said party through Escrow, less costs, expenses and disbursements chargeable to said party pursuant to the terms hereof . The Lot Line Adjustment, the Pirozzi Segment Grant Deed, the Pirozzi Grant Deed, the Agency Grant Deed and the Declaration are hereinafter collectively referred to as the "Recorded Documents" . 6 .4 Distribution of Documents . Following Close of Escrow, Escrow Holder shall distribute the documents as follows : a. To Pirozzi : (i) one certified conformed copy of the Pirozzi Segment Grant Deed and the Agency Grant Deed, the originals of which shall be mailed to Pirozzi following recordation thereof; (ii) one certified conformed copy of the Lot Line Adjustment, the Pirozzi Grant Deed, and the Declaration: and (iii) one certified copy, conformed if recorded, of any other document delivered to Escrow Holder by Pirozzi or Agency pursuant to the terms hereof . b. To Agency- (i) one certified conformed copy of Lot Line Adjustment, the Pirozzi Grant Deed, and the Declaration, the originals of which shall be mailed to Agency following recordation thereof; (ii) one certified conformed copy of the Agency Grant Deed and the Pirozzi Segment Grant Deed; and (iii) one certified copy, conformed if recorded, of any other document delivered to Escrow Holder by Agency or Pirozzi pursuant to the terms hereof . 7 . TITLE POLICY. 7 . 1 Title Policy to be Issued to Pirozzi . When Escrow Holder holds for Pirozzi the Agency Grant Deed executed and acknowledged by Agency covering the Adjusted Agency Property, Escrow Holder shall cause to be issued and delivered to Pirozzi as of the Close of Escrow an ALTA standard coverage (non-extended) owner' s policy of title insurance ( "Pirozzi Title Policy" ) , or, upon Pirozzi' s request therefor, an ALTA standard coverage owner' s Policy of title insurance with extended coverage, issued by First American Title Insurance Company (the "Title Company" ) , with liability in an amount equal to the Agency Exchange Value, covering the Adjusted Agency Property and showing title vested in Pirozzi free of encumbrances, except : a. All nondelinquent general and special real property taxes and assessments for the current fiscal year; b. Those easements, encumbrances, covenants, condi- tions, restrictions, reservations, rights-of-way and other matters of record to the extent applicable to the Adjusted Agency Property as shown as Exceptions 1 through 7 on that certain Preliminary Title Report No. 2075887 issued by the Title Company dated as of May 13 , 1997; 223/014084-IAA16/3074683.3 n06/17/97 -7- 0 C. The Declaration; d. The standard printed exceptions and exclusions contained in the ALTA form policy; and e. Any exceptions created or consented to by Pirozzi, including without limitation, any exceptions arising by reason of Pirozzi' s possession of or entry on the Adjusted Agency Property. 7 .2 Title Policy to be Issued to Agency. When Escrow Holder holds for the Agency the Pirozzi Grant Deed covering the Adjusted Pirozzi Property, Escrow Holder shall cause to be issued and delivered to Agency as of the Close of Escrow an ALTA standard coverage (non extended) owner' s policy of title insurance ( "Agency Title Policy" ) , or, upon Agency' s request therefor, an ALTA standard coverage owner' s policy of title insurance, issued by Title Company, with liability in the amount of the Pirozzi Exchange value, covering the Adjusted Pirozzi Property and showing title vested in the Agency free of encumbrances, except: a. Those easements, encumbrances, covenants, condi- tions, restrictions, reservations, rights-of-way and other matters of record shown on that certain Preliminary Title Report No. 2078434 to be issued by the Title Company to the extent applicable to the Adjusted Pirozzi Property and to the extent approved by Agency in writing; b. The standard printed exceptions and exclusions contained in the ALTA form policy; and C. Any exceptions created or consented to by Agency, including without limitation, any exceptions arising by reason of Agency' s possession of or entry on the Adjusted Pirozzi Property. No general or special real property taxes shall be shown on the Agency Title Policy. 7.3 Supplemental Title Reports. Upon the issuance of any amendment or supplement to either of the preliminary title reports referenced in Sections 7. 1 and 7.2 above, the party who is ac- quiring the property which is the subject of the supplemental report shall have the right to review and approve any such revised report which approval shall be delivered in writing to the other party within five (5) business days of receipt of the supplemental report. If such supplemental report is disapproved by the ac- quiring party within the time specified, the transferring party shall have five (5) days after receipt of the disapproval notice to notify in writing the acquiring party of its intention to remove the disapproved matter. If the transferring party is unable or refuses to so remove the matter, then the acquiring party shall have five (5) business days to elect in writing to proceed with the closing of Escrow and to accept said title matter or to terminate 22310140U-0006/3974683.3 a07/02/97 -8- the Escrow. Failure of the acquiring party to deliver said notice within the specified time period, shall be deemed an election to terminate the Escrow. A copy of all notices specified in this Section 7 .3 shall be sent concurrently to the Escrow Holder. 8 . CONDITIONS PRECEDENT TO CLOSE OF ESCROW. 8 .1 Conditions to Pirozzi' s Oblicrations. The obligations of Pirozzi under this Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by Pirozzi of each of the following conditions precedent : a. The Lot Line Adjustment has been approved for recordation in the Official Records of Riverside County, California; b. The Title Company will issue the Pirozzi Title Policy as required by Section 7 . 1 of this Agreement insuring title to the Adjusted Agency Property vested in Pirozzi or other vestee designated by Pirozzi for vesting purposes only. C . Escrow Holder holds and will deliver to Pirozzi the instruments and funds, if any, accruing to Pirozzi pursuant to this Agreement . d. Pirozzi has approved the condition of the Adjusted Agency Property in accordance with Section 10 . e. Pirozzi' s approval or waiver of any other conditions specified in this Agreement . f. Agency shall not be in default of any term or condition of this Agreement . Pirozzi' s approval shall be based upon Pirozzi' s reasonable dis- cretion; provided, however, if Pirozzi has not delivered written notice of disapproval with explanation of the above conditions and written notice of termination of this Agreement and the Escrow to Agency and Escrow Holder by the times provided, 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 ap- proved by Pirozzi . In the event that Pirozzi disapproves of any of the foregoing conditions and timely delivers written notice of termination of this Agreement and the Escrow to Agency and Escrow Holder, Agency, at Agency' s option, shall have a period of thirty (30) days following Pirozzi' s notice, to resolve to Pirozzi' s reasonable satisfaction the matter (s) disapproved by Pirozzi, in which event Pirozzi' s notice of termination shall be null and void. If Agency does not resolve the matters disapproved by Pirozzi within said thirty (30) day period or if Agency sooner gives written notice to Pirozzi and Escrow Holder that Agency does not intend to resolve such matters within such thirty (30) day period, then this Agreement shall terminate. In the event Pirozzi is not 223/014084-0006/3074683.3 a05/22/97 -9- in default of this Agreement and timely terminates this Agreement based on reasonable disapproval of one or more of the foregoing conditions in the manner provided herein, Pirozzi shall be entitled to refund of the Pirozzi Deposit, less any escrow or title cancellation fees . If requested by Escrow Holder or Agency, Pirozzi shall deliver to Escrow Holder and Agency written notice of satisfaction or deemed satisfaction of the conditions set forth in this Section 8 . 1 . 8 .2 Conditions to Agency' s Obligations. The obligations of Agency under this Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by Agency of each of the following conditions precedent : a. The Lot Line Adjustment has been approved for recordation in the Official Records of Riverside County, California; b. The Title Company will issue the Agency Title Policy as required by Section 7 . 2 of this Agreement insuring title to the Adjusted Pirozzi Property vested in Agency or other vestee designated by Agency for vesting purposes only. C . Escrow Holder holds and will deliver to Agency the instruments and funds, if any, accruing to Agency pursuant to this Agreement . d. Agency has approved the condition of the Adjusted Pirozzi Property in accordance with Section 10 . e. Agency' s approval or waiver of any other conditions specified in this Agreement . f . Pirozzi shall not be in default of any term or condition of this Agreement . Agency' s approval shall be based upon Agency' s reasonable discretion; provided, however, if Agency has not delivered written notice of disapproval with explanation of the above conditions and written notice of termination of this Agreement and the Escrow to Pirozzi and Escrow Holder by the times provided, 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 approved by Agency. In the event that Agency disapproves of any of the foregoing conditions and timely delivers written notice of termination of this Agreement and the Escrow to Pirozzi and Escrow Holder, Pirozzi, at Pirozzi' s option, shall have a period of thirty (30) days following Pirozzi' s notice, to resolve to Agency' s reasonable satisfaction the matter(s) disapproved by Agency, in which event Agency' s notice of termination shall be null and void. If Pirozzi does not resolve the matters disapproved by Agency within said thirty (30) day period or if Pirozzi sooner gives written notice to Agency and Escrow Holder that Pirozzi does not intend to resolve such matters within such thirty (30) day period, 223/014084-0006/3074683.3 a05/22/97 -1 0- then this Agreement shall terminate . If requested by Escrow Holder or Pirozzi, Agency shall deliver to Escrow Holder and Agency written notice of satisfaction or deemed satisfaction of the conditions set forth in this Section 8 . 2 . 9 . ESCROW PROVISIONS. 9 .1 Escrow Instructions. This Agreement, when signed by Pirozzi and Agency, shall also constitute escrow instructions to Escrow Holder, and such instructions shall consist of the provisions of Sections 2 through 8 , inclusive, 11 and 12 . The terms and conditions of this Agreement not set forth in the preceding sections are additional matters for the information of Escrow Holder, but about which Escrow Holder need not be concerned. If required by Escrow Holder, Pirozzi and Agency 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 Pirozzi Title Policy to the Pirozzi and instruct the Riverside County Recorder to mail the Agency Grant Deed to Pirozzi at the address set forth in Section 12 . 12 after recordation. Escrow Holder shall deliver the Agency Title Policy to the Agency and instruct the Riverside County Recorder to mail the Pirozzi Grant Deed and Declaration to the Agency at the address set forth in Section 12 . 12 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. This Agreement and any modifications, amendments, or supplements thereto may be executed in counterparts and shall be valid and binding as if all of the parties' signatures were on one document . 9 .3 Proration of Real Property Taxes. All nondelinquent general and special real property taxes on the Properties shall be prorated to the Close of Escrow on the basis of a thirty (30) day month and a three hundred sixty day (3G0) year. In the event that property taxes are assessed on a parcel of real property which includes land other than the Pirozzi Property, such proration shall include only taxes attributable to the Pirozzi Property, calculated in terms of total gross square feet of land assessed pursuant to the tax statement versus total gross square footage of the Pirozzi Property. Any supplemental tax bills for the Pirozzi Property received after Close of Escrow shall be paid by Pirozzi to the extent they relate to a period prior to Close of Escrow. If a supplemental tax bill covers a period commencing before and con- tinuing after Close of Escrow, the party named in the bill will pay the tax and the other party shall reimburse the first party its pro rata share within thirty (30) days after receipt of a copy of the 223/014084-0006/3074683.3 a05/22/97 —1 1 — tax bill and evidence of the second party' s payment of same. The provisions of this Section 9 . 3 shall survive Close of Escrow. If Pirozzi fails to pay its pro rata share of taxes by the times herein provided, interest shall accrue on all unpaid amounts from when owing until paid at five percent (5°s) 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 . Pirozzi shall pay one-half of the Escrow fee, the charges for recording both Agency Grant Deed and the Declaration, all documentary transfer taxes owing for recordation of the Pirozzi Segment Grant Deed, the Agency Grant Deed and the Pirozzi Grant Deed, and the title policy premiums for Pirozzi Title Policy. The Agency shall pay one-half of the Escrow fee, the charges for recording the Pirozzi Grant Deed, and the title policy premiums for the Agency Title Policy. 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. Time is of the essence of this Agreement . 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 Pirozzi or Agency may have against each other arising from the Escrow or this Agreement . All termination and cancel- lation fees shall be paid by Pirozzi; provided, however, that if the termination is the result of a default by the Agency, said termination and cancellation fees shall be the responsibility of the Agency. 9 . 6 Information Report. The "Reporting Person" within the meaning of Treasury Regulation Section 1 . 6045-4 (e) (5) with respect to the transactions contemplated by this Agreement shall be Escrow Holder. It is agreed that Escrow Holder is an eligible person under Section 1 . 6045-4 (e) (5) (ii) of said Regulations . Escrow Holder hereby agrees to be responsible for complying with the reporting and other requirements of Internal Revenue Code Section 6045 (e) and the income tax regulations promulgated thereunder. Pursuant to said regulations, the address for the transferor and transferee are as set forth for Agency and Pirozzi respectively in Section 12 . 12 and the identifying information regarding the real estate transferred is the legal description for each of the Adjusted Properties set forth on Exhibit "E" and/or Exhibit "F" , respectively. Escrow Holder agrees to file the form required by said regulations between the end of the calendar year in which the Close of Escrow occurs and February 28 of the following calendar 223n14084-INN16/3074683 3 A6/17/97 -12- year. Pirozzi and Agency agree (i) to cooperate with Escrow Holder and with each other in completing any report and/or other information required to be delivered to the Internal Revenue Service pursuant to Internal Revenue Code Section 6045 (e) regarding the real estate sales transaction contemplated by this Agreement, including without limitation, Internal Revenue Service Form 1099-5 as such may be hereinafter modified or amended by the Internal Revenue Service, or as may be required pursuant to any regulation now or hereinafter promulgated by the Treasury Department with respect thereto; (ii) that Pirozzi and Agency, their respective employees and attorneys, and Escrow Holder and its employees may disclose to the Internal Revenue Service, any information regarding this Agreement or the transaction contemplated herein as such party reasonably deems to be required to be disclosed to the Internal Revenue Service by such party pursuant to Internal Revenue Code Section 6045 (e) ; (iii) that neither Pirozzi nor Agency shall seek to hold any such party liable for the disclosure to the Internal Revenue Service of any such information; and (iv) to retain this Agreement for at least four (4) years following the close of the calendar year in which the Close of Escrow occurs . 9 .7 Brokerage Commissions. Each party hereto represents and warrants to the other that no third party is entitled to a broker' s commission and/or finder' s fee with respect to any portion of the transaction contemplated by this Agreement . Each party agrees to indemnify and hold the other harmless from and against all liabilities, costs, damages and expenses, including, without limitation, 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 . 10 . INSPECTIONS AND REVIEW; DISCLAIMERS OF REPRESENTATIONS AND WARRANTIES. 10 .1 Entry and Investigation of Subject Property. 10 .1. 1 Definitions. For purpose of this Section 10, the following terms shall be defined as follows : a. "Inspecting Party" shall mean the party that is acquiring a Property under this Agreement . b. "Owner" shall mean the owner of each Property which is the subject of this Agreement . C . "Owner' s Property" shall mean the Property under this Agreement that is owned by the Owner. 10 .1.2 License to Enter. Provided that the Inspecting Party is in compliance with the provisions of this Section 10 . 1, the Owner grants to the Inspecting Party, its agents and employees, a license to enter upon any portion of the Owner' s Property for the purpose of conducting engineering surveys, investigations, soils 223/014084-0006/3074683 3 a05/22/97 -1 3- tests and other studies . The limited license herein granted shall be co-extensive with the term of this Agreement . 10 .1.3 Liens. The Inspecting Party shall promptly pay and discharge all demands for payment relating to the construction of any improvements on the Owner' s Property caused by the In- specting Party and take all other steps to avoid the assertion of claims or lien against the Owner' s Property or said improvements . In the event a claim or lien is recorded with respect to any improvement or the Owner' s Property, the Inspecting Party, within twenty (20) days of such recordation, at Owner' s option, shall either: (1) Record or deliver a surety bond sufficient to release such claim or lien in accordance with applicable law; or (2) Provide Owner with such other assurance as Owner may require for the payment of the claim or lien. 10 .1.4 Notice of Non-Responsibility. Owner may elect to record and post notices of non-responsibility from time to time on and about the Owner' s Property. 10 .1.5 Indemnity. Inspecting Party hereby agrees to indemnify, and hold Owner free and harmless from and against any and all losses, damages (whether general, punitive or otherwise) , liabilities, claims, causes of action (whether legal, equitable or administrative) , judgments, court costs and legal or other expenses (including attorneys' fees) which Owner may suffer or incur as a direct or indirect consequence of Inspecting Party' s exercise of the license granted pursuant to Section 10 . 1 .2 above or any act or omission by Inspecting Party, any contractor, subcontractor or material supplier, engineer, architect or other person or entity, except Owner, with respect to Owner' s Property. Owner' s rights of indemnity shall not be directly or indirectly limited, prejudiced, impaired or eliminated in any way by any finding or allegation that Owner' s conduct is active, passive or subject to any other classi- fication or that Owner is directly or indirectly responsible under any theory of any kind, character or nature for any act or omission by the Inspecting Party or any other person or entity, except Owner. Inspecting Party shall pay any indebtedness which In- specting Party is determined by the judgment of a court of competent jurisdiction (sustained on appeal, if any) personally arising under said indemnity to Optionor immediately upon such determination together with interest thereon from the date such indebtedness arises until paid at the maximum rate of interest allowed by law. Inspecting Party' s duty to indemnify Owner shall survive termination of this Agreement . 223/014094-0006/3074683 3 a05/22/97 -1 4- 0 10 .2 Disclaimer of Representations and Warranties . 10 .2 .1 By Pirozzi. Pirozzi acknowledges that it has had an adequate opportunity to inspect the Adjusted Agency Property and to investigate its physical characteristics and conditions, and hereby waives any and all objections to the physical characteristics and conditions of the Adjusted Agency Property which would be disclosed by such inspection. Pirozzi acknowledges that neither Agency nor any of its employees, agents or representatives has made any representations, warranties or agreements to or with Pirozzi on behalf of Agency as to any matters concerning the Adjusted Agency Property, the present use thereof, or the suitability of Pirozzi' s intended use of the Adjusted Agency Property. The foregoing disclaimer includes, without limitation, topography, climate, air, water rights, utilities, present and future zoning, soil, subsoil, existence of hazardous waste or similar substances, purpose to which the Adjusted Agency Property is suited, drainage or access to public roads . Pirozzi further acknowledges and agrees that the Adjusted Agency Property is to be purchased, conveyed and accepted by Pirozzi in its present condition, "AS-IS" , and that no patent or latent physical condition of the Adjusted Agency Property, whether or not known or discovered, shall affect the rights of either party hereto. Pirozzi has investigated and has knowledge of operative or imposed governmental laws and regulations (including, but not limited to, zoning, environmental, including specifically the regulations of the Environmental Protection Agency, and land use laws and regulations) to which the Adjusted Agency Property may be subject, and is acquiring the Adjusted Agency Property on the basis of its review and determination of the application and effect of such laws and regulations . Pirozzi has neither received nor relied upon any representations concerning such laws and regulations made by Agency, Agency' s employees, agents, or any person acting under or on behalf of Agency. Any agreements, warranties or representations not expressly contained in this Agreement shall in no way bind Agency. 10 .2 .2 By Agency. Agency acknowledges that it has had an adequate opportunity to inspect the Adjusted Pirozzi Property and to investigate its physical characteristics and conditions, and hereby waives any and all objections to the physical characteristics and conditions of the Adjusted Pirozzi Property which would be disclosed by such inspection. Agency acknowledges that neither Pirozzi nor any of its employees, agents or representatives has made any representations, warranties or agreements to or with Agency on behalf of Pirozzi as to any matters concerning the Pirozzi Property, the present use thereof, or the suitability of Agency' s intended use of the Adjusted Pirozzi Property. The foregoing disclaimer includes, without limitation, topography, climate, air, water rights, utilities, present and 223/014084-0006/3074683.3 a05/22/97 -1 Cj- future zoning, soil, subsoil, existence of hazardous waste or similar substances, purpose to which the Adjusted Pirozzi Property is suited, drainage or access to public roads . Agency further ack- nowledges and agrees that the Adjusted Pirozzi Property is to be purchased, conveyed and accepted by Agency in its present condition, "AS-IS" , and that no patent or latent physical condition of the Adjusted Pirozzi Property, whether or not known or discovered, shall affect the rights of either party hereto. Agency has investigated and has knowledge of operative or imposed governmental laws and regulations (including, but not limited to, zoning, environmental, including specifically the regulations of the Environmental Protection Agency, and land use laws and regulations) to which the Adjusted Pirozzi Property may be subject, and is acquiring the Adjusted Pirozzi Property on the basis of its review and determination of the application and effect of such laws and regulations . Agency has neither received nor relied upon any representations concerning such laws and regulations made by Pirozzi, Pirozzi' s employees, agents, or any person acting under or on behalf of Pirozzi . Any agreements, warranties or represen- tations not expressly contained in this Agreement shall in no way bind Pirozzi . 11. REMEDIES FOR DEFAULT. 11.1 Exclusive Remedy. In the event either party materially breaches this Agreement, the other party shall be entitled to obtain equitable relief including, but not limited to, specific performance, mandatory and prohibitory orders and injunctions in order to restrain, prevent or reverse such material breach or, alternatively, the non-defaulting party may elect in writing to terminate this Agreement and Escrow. Notwithstanding anything to the contrary contained herein, both parties hereby expressly agree that each party expressly waives the right to seek damages from the other party in the event of a default by said party under this Agreement or any action relating to this Agreement or the subject matter of this Agreement . This foregoing limitation on remedies shall not apply to recovery of damages under the indemnity provisions set forth in this Agreement . 11.2 Documents to Reflect Termination. Although the rights granted herein shall automatically terminate as set forth herein, each party nonetheless agrees to execute, acknowledge and deliver to the other party within ten (10) days after request therefor, any quitclaim deed or other documents required by a reputable title company to remove any cloud from the title to the respective Property upon expiration or termination of such rights hereunder. If either party fails to deliver such quitclaim deed or other documents as herein required, the other party shall have all rights and remedies granted by law or equity. This covenant shall survive termination of this Agreement for any reason. Each party hereby agrees to indemnify, defend and hold the other party harmless for any loss, liability, action, fee or charge resulting from or 223/014084-0006/3074683.3 a05/22/97 -1 6- 0 arising out of its failure to deliver such quitclaim deed or other documents as herein required. 12 . MISCELLANEOUS . 12 . 1 Assignment. Pirozzi shall not have the right to assign this Agreement or any interest or right under this Agreement or under the Escrow without the prior written consent of the Agency. In the event the Agency consents to an assignment, in no event shall Pirozzi be released of liability in the event of an assignment or nomination. Any such assignment shall be conditioned upon the assignee assuming in a form satisfactory to the Agency all of the duties and obligations of the Pirozzi hereunder occurring or accruing after said assignment becomes effective. Notwithstanding the foregoing, Pirozzi may elect to nominate another person or entity to take title to all or a portion of the Adjusted Agency Property without the prior written consent of Agency; provided, however, that Pirozzi notifies the Agency and Escrow Holder in writing of such nomination and provided further that the nominee agrees to execute the Declaration as may be required to effect same. 12 .2 Successors and Assigns . This Agreement shall be binding upon the parties hereto and their respective heirs, representatives, transferees, successors and assigns . 12 .3 Qualification; Authority. Each of the trustees executing this Agreement on behalf of Pirozzi represents and warrants that it is duly formed, is authorized to do business in the State of California and that it has been duly authorized to enter into and perform this Agreement . 12 .4 Attorneys' Fees . If either party to this Agreement is required to initiate or defend, or is made a party to, any action or proceeding in any way connected with this Agreement, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be en- titled to reasonable attorney' s fees and expert witness fees . Attorney' s fees shall include reasonable costs for investigating such action, conducting discovery, and all other necessary costs the court allows which are incurred in such litigation. 12 . 5 Interpretation. This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. 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 . 12 . 6 Legal Actions. The Municipal and Superior Courts of the State of California in the County of Riverside shall have the 223/014084-0006/3074683.3 a05/22/97 -1 7- exclusive jurisdiction of any litigation between the parties arising out of this Agreement . This Agreement shall be governed by, and construed under, the laws of the State of California. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement . The rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Service of process on Agency shall be made in the manner required by law for service on a public entity. Service of process on Pirozzi shall be made in any manner permitted by law and shall be effective whether served within or outside of California. 12 .7 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party' s consent to or approval of any act by the other party requiring the party' s consent or approval shall not be deemed to waive or render unnecessary the other party' s consent to or approval of any subsequent act . Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement . 12 . 8 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. 12 .9 Severability. If any term, provision, condition or covenant of this Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this instrument, or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 12 .10 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 contempor- aneous agreements, understandings, representations, correspondence and statements, oral or written, are merged herein and shall be of no further force or effect . 12 .11 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 Section 12 . 1 223/014084-0006/3074683.3 a05/22/97 -1 8- 0 above, shall be binding upon and inure to the benefit of the parties hereto and their representatives, heirs, successors and assigns . 12 . 12 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 Agency: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263 Attn: Executive Director Copy to : RUTAN & TUCKER, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Attn: David Aleshire, Esq. Lori Sarner Smith, Esq. To Pirozzi : VINCENT J. PIROZZI AND KAREN M. PIROZZI TRUSTEES OF THE PIROZZI FAMILY TRUST Box 328 Palm Springs, CA 92263 12 .13 Non-Liability of Agency Officers and Employees . No officer, official, member, employee, agent, representative, or volunteer of the Agency shall be personally liable to Pirozzi, or any successor in interest, in the event of any default or breach by the Agency, or for any amount which may become due to Pirozzi or his successor, or for breach of any obligation of the terms of this Agreement . 12 . 14 Conflict of Interest. No officer, official, member, employee, agent, representative, or volunteer of the Agency shall have any financial interest, direct or indirect, in this Agreement, participate in any decision relating to this Agreement which affects his or her financial interest or the financial interest of any corporation, partnership or association in which he or she is interested, in violation of any Federal, State, or Agency statute, ordinance, or regulation. 223/014084-0006/3074683.3 a05/22/97 0 12 .15 Covenant Against Discrimination. Pirozzi covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the performance of this Agreement . 12 .16 No Partnership Created. The relationship of Pirozzi and Agency hereunder is that of Seller and Buyer and vice versa, and none of the provisions of this Agreement are intended to or do create a partnership or joint venture or relationship other than seller and buyer. 12 .17 Execution in Counterpart. This Agreement 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 . 12 .18 Exhibits . Exhibits "A" , "B" , "C" , "D" , "E" , "F" , "Gil and "H" attached hereto, are incorporated herein by this reference . IN WITNESS WHEREOF, the parties hereto have executed this Exchange Agreement and Joint Escrow Instructions as of the date set forth above. "Pirozzi" VINCENT J. P ROZZI, 'T USTEE OF THE, �P�IIRO,ZZZI FAMILY TRUST KAREN M. IROZZI,TRPSTEE OF THE PIROZZI FAMILY TRUST 223/014084-0006/3074683 3 R05/22/97 -2 0_ "Agency" THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS Dated: By: P\kk �C��IAPRPWIW Its : /15sT. SEc,rzcry� ATTEST: ency�Secretary APPROVED AS TO FORM RUTAN & TUCKER, LLP By: // y1_ David J. Aleshire, jDsq. , Agency Cdjnsel ESCROW HOLDER'S ACCEPTANCE OF ESCROW INSTRUCTIONS Escrow Holder hereby accepts this Exchange Agreement and Joint Escrow Instructions from Agency and Pirozzi and agrees to act as Escrow Holder in accordance with the terms and provisions set forth herein. Dated: 1997 . PACIFIC COAST ESCROW By: Ruthie Furst 223/014084-0006/3074683 3 a06/04/97 —Z 1— EXHIBIT "A" DESCRIPTION OF PIROZZI LAND The Pirozzi Land is that certain real property located in the City of Palm Springs, County of Riverside, State of California as more particularly described as follows : THE WESTERLY ONE HALF OF LOT 5 IN BLOCK 23 OF PALM SPRINGS, AS RECORDED IN MAP BOOK 9, AT PAGE 432 , RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. EXHIBIT "A" TO EXCHANGE AGREEMENT AND JOINT 223/014084-M6/30746833 z05/22/97 ESCROW INSTRUCTIONS EXHIBIT "B" DESCRIPTION OF AGENCY LAND The Agency Land is that certain real property located in the City of Palm Springs, County of Riverside, State of California as more particularly described as follows : THE EASTERLY ONE HALF OF LOT 5 IN BLOCK 23 OF PALM SPRINGS, AS RECORDED IN MAP BOOK 9, AT PAGE 432, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. EXHIBIT "B" TO EXCHANGE AGREEMENT AND JOINT 223/014084-0006/3074683.3 a05/22/97 ESCROW INSTRUCTIONS EXHIBIT "C" DEPICTION OF AGENCY LAND AND PIROZZI LAND PRIOR TO LOT LINE ADJUSTMENT LOT 4 BLOCK 12 BLOCK 23 BLOCK 24 N 89'50'00"E 257.50 1 128.75 0 128.75 s 0 0 p o c6 TICO2L.1 m Agl�1�y � m o p J �J 1 o 0 LOT 5 m LOT o 5 m S CD p Z LOT 5 3 3 I m I W > o O O Ln O � m yy 0 0 128.75 z 128.75 m 0 0 o N 89.50'00"E 257.50 Z 0 0 o O z z z LOT 6 V LOT 6 LOT 6 CL w J a m 33 33 40 40 - z 0 Y Z a U S 6 a ALEJO 0 0 0 ¢a AMADO J m TAHOUITZ N.T.S. RAMON LLA DEPT. OF PUBLIC WORKS CITY OF PALM SPRINGS ENGINEERING DIVISION LOT LINE ADJUSTMENT APPROVED 1996 ( BEFORE ADJUSTMENT ) LEGAL DESCRIPTION THE WESTERLY HALF AND THE EASTERLY HALF CITY ENGINEER R . C . E . NO OF LOT 5 IN BLOCK 23 OF PALM SPRINGS, AS DESIGN BY SCALE FILE NO. SHOWN BY MAP ON FILES IN BOOK 9 PAGE 432, OF MAPS, RECORDS OF SAN DIEGO COUNTY, CA. D . Id . I "=100 EXHIBIT "D" LOT LINE ADJUSTMENT LOT 4 LOT 4 I LOT 4 N 89'50'00"E 257.50 12B.75 ? 128.75 AAiuska- � � fusk�Q o m A�Ienc l0 m o Qiru2z� o PARCELy2 � m LOT 5 o N PARCEL 1 Z 3 0 LOT 5 128.75 0 o z LINE TO BE N B9'50'00"E oo m z o REMOVE o 0 m N 0 o p 0 N 89'50'00"E 257.50 z 0 z [] c o n p LOT 6 LOT 6 o LOT 6 BLOCK 12 BLOCK 23 BLOCK 24 N V ¢ u .�Jy Iq 8 Q 33 33 40 40 ALEJO RD. 0 N.T.S. Cc 0 AMADO RD. 0 a o TAHOUITZ J z W Z m a RAMON RD. U f J Q a LLA DEPT. OF PUBLIC WORKS CITY OF PALM SPRINGS ENGINEERING DIVISION LOT LINE ADJUSTMENT APPROVED 1996 ( AFTER ADJUSTMENT ) LEGAL DESCRIPTION LOT 5 IN BLOCK 23 OF PALM SPRINGS, AS CITY ENGINEER R . C . E . NO EXHIBIT "D-1" OWNERSHIP FOLLOWING EXCHANGE LOT 4 I LOT 4 I LOT 4 N 89'50'00"E 257.50 128.75 ? 128.75 0 } o m 'P]SOZZl m o Agency o o PARCEL '2 o LOT 5 b N PARCEL I z „ ; o LOT 5 128.75 0 3 z N 89-50.00"E o o z o m 0 0 0 � o 0 0 o N 89'50'00'E 257.50 z 0 LOT 6 LOT 6 O LOT 6 ° BLOCK 12 BLOCK 23 BLOCK 24 p� U a U m a Q 33 33 40 401. ALEJO RD. 0 N.T.S. o AMADO RD. 0 a o 7AHQUITZ J } W Z a RAMON RD. U S J a a LLA DEPT. OF PUBLIC WORKS CITY OF PALM SPRINGS ENGINEERING DIVISION LOT LINE ADJUSTMENT APPROVED 1996 ( AFTER ADJUSTMENT LEGAL DESCRIPTION CITY ENGINEER R . C . E . NO LOT 5 IN BLOCK 23 OF PALM SPRINGS, AS SNf1WN RY MOP nm FTl FC Tl,l Pnnw 0 OArr_ nFQTrNl aV EXHIBIT "E" DESCRIPTION OF ADJUSTED PIROZZI PROPERTY The Adjusted Pirozzi Property is that certain real property located in the City of Palm Springs, County of Riverside, State of California as more particularly described as follows : ALL THAT PORTION OF LOT 5, BLOCK 23 OF PALM SPRINGS, AS RECORDED IN MAP BOOK 9, AT PAGE 432, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS : BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 5, THENCE N 890-50' -00" E ALONG THE NORTH LINE OF SAID LOT 5, A DISTANCE OF 128 . 75 FEET; THENCE LEAVING SAID NORTH LINE, S 000-08 ' -00" E A DISTANCE OF 100 . 00 FEET; THENCE N 890-50' -00" E A DISTANCE OF 128 . 75 FEET TO THE EASTERLY LINE OF SAID LOT 5; THE FOLLOWING THREE COURSES BEING ALONG THE EASTERLY, SOUTHERLY AND WESTERLY LINES OF SAID LOT 5; THENCE S 000-08 ' -00" E A DISTANCE OF 50 . 00 FEET; THENCE S 890-50 ' -00" W A DISTANCE OF 257 . 50 FEET; THENCE N 000-08 ' -00" W A DISTANCE OF 150 . 00 FEET TO THE POINT OF BEGINNING. EXHIBIT "E" TO EXCHANGE AGREEMENT AND JOINT ESCROW INSTRUCTIONS 223/014084-0006/3074693.3 n05/22/97 EXHIBIT "F" DESCRIPTION OF ADJUSTED AGENCY PROPERTY The Adjusted Agency Property is that certain real property located in the City of Palm Springs, County of Riverside, State of California as more particularly described as follows : ALL THAT PORTION OF LOT 5, BLOCK 23 OF PALM SPRINGS, AS RECORDED IN MAP BOOK 9, AT PAGE 432 , RECORDS OF SAN DIEGO COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS : COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 5; THENCE N 890-50' -00" E ALONG THE NORTH LINE OF SAID LOT 5, A DISTANCE OF 128 . 75 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTH LINE, S 000-08 ' -00" E A DISTANCE OF 100 . 00 FEET; THENCE N 890 -50' -00" E A DISTANCE OF 128 . 75 FEET TO THE EAST LINE OF SAID LOT 5 ; THENCE N 000-08' -00" W ALONG SAID EAST LINE A DISTANCE OF 100 . 00 FEET TO THE NORTHEAST CORNER OF SAID LOT 5 ; THENCE S 890-50' -00" W ALONG THE NORTH LINE OF SAID LOT 5, A DISTANCE OF 128 . 75 FEET TO THE TRUE POINT OF BEGINNING. EXHIBIT "F" TO EXCHANGE AGREEMENT AND JOINT 223/014094-0006/3074683 3 a05/22/97 ESCROW INSTRUCTIONS EXHIBIT "G" DEPICTION OF PIROZZI SEGMENT LOT 4 LOT 4 LOT 4 N 69'50'00"E 257.50 128.75 x 128.75 o PARCEL 2 Im LOT 5 0 PARCEL 1 z 3 b LOT 5 0 12B.75 0 o z N�C 0"Eoo z o LINE TO BE \ m REMOVE m o 0 0 o N 69'50'00"E L 57.50 z 0 z �ICD2L° ❑ o 0 LOT 6 LOT 6 ��""nf Zo LOT 6 ° BLOCK 12 BLOCK 23 BLOCK 24 U w Q U N a a 33 33 40 40 EXHIBIT "G" TO EXCHANGE AGREEMENT AND JOINT 223/014084-0006/3074683.2 a05n9/97 ESCROW INSTRUCTIONS FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: The Community Redevelopment Agency of the City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Attn: Executive Director (For Recorder' s Use Only) DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ( "Declaration") is dated for reference purposes as of this day of , 1997 by and between VINCENT J. PIROZZI and KAREN M. PIROZZI, TRUSTEES OF THE PIROZZI FAMILY TRUST ( "Owner" ) , THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic ( "Agency" ) , and THE CITY OF PALM SPRINGS, a municipal corporation ( "City" ) . R E C I T A L S• A. Owner is the owner of that certain real property located in the City of Palm Springs, County of Riverside, State of California more particularly described on Exhibit "1" attached hereto and incorporated herein by reference (the "Property") . B. The Property is within the Palm Springs Central Business District Redevelopment Project Area ( "Project Area") specifically described in the Redevelopment Plan for the Project Area which was approved and adopted by the City Council of the City of Palm Springs by Ordinance No. 952 on July 11, 1973 , and as subsequently amended by means of ordinances of the City Council . C. The Agency and the City have fee or easement interests in various streets, sidewalks and other property within the City and are responsible for the planning and development of land within the City in such a manner so as to provide for the health, safety and welfare of the residents of the City. That portion of the City' s interest in real property most directly affected by this Agreement EXHIBIT 11H" TO EXCHANGE AGREEMENT AND JOINT ESCROW INSTRUCTIONS 223/014084-0006/3074684.3 .05/22/97 is depicted in Exhibit 112" attached hereto and incorporated herein by reference ( "Public Parcel" ) . D. The purpose of the Redevelopment Plan is to remedy and alleviate blighted conditions associated with undeveloped and unproductive land, inadequate street and circulation systems, unsuitable land mixes, inadequate or total lack of public street improvements, and the existence of substandard and incompatible uses and structures . The redevelopment and restriction of the Property in accordance with the Redevelopment Plan will promote the utility and value of the Property and of the Project Area, for the benefit of its future owners and the entire city. E. Owner, the Agency and City intend, in exchange for the Agency entering into that certain Exchange Agreement and Joint Escrow Instructions with Owner dated for reference purposes May 27, 1997 ( "Exchange Agreement" ) pursuant to which Owner acquired the Property, that the Owner hold, sell, and convey the Property subject to the covenants, conditions, restrictions, and reservations set forth in this Declaration and that the Agency and City shall have the right and power to enforce the covenants, conditions, restrictions, and reservations as provided herein. F. Owner desires to establish and grant certain covenants, conditions and restrictions upon the property for the benefit of the Agency and the City and their respective successors and assigns for the purpose of enhancing and protecting the value, desirability and attractiveness of the Property and effectuating the Redevelopment Plan. Such covenants, conditions and restrictions shall run to the benefit of the Public Parcel and bind the Property, the Owner and its successors and assigns . NOW, THEREFORE, the Owner, Agency and City declare, covenant and agree, by and for themselves, their heirs, executors and assigns, and all persons claiming under or through them that the Property shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied subject to the covenants and restrictions hereinafter set forth, which covenants are established expressly and exclusively for the use and benefit of the Agency and City. ARTICLE 1 COVENANTS, CONDITIONS AND RESTRICTIONS 1.1 Not an Owner Participation Agreement. Although the Property is within the Project Area and subject to the Redevelopment Plan, Owner is not, at this time, exercising its participation rights as an owner of real property within the Project Area and this Declaration shall not constitute an owner participation agreement . The Agency has determined that the this 223/014084-0006/3074684.3 .05/22/97 -2- Declaration and the exchange of the Property for certain Property owned by the Agency which is being consummated substantially concurrently with the recordation of this Declaration will facilitate the future development of the Property. At such time as Owner seeks to exercise his rights as a participant under the Redevelopment Plan and in accordance with the law applicable thereto, Owner acknowledges and agrees that he will be required to submit and process for approval by the Agency a development plan as an owner/participant, to enter into an owner participation agreement and to process with Agency and the City all required approvals for any development of the Property under the law applicable at such future time as such approvals are sought. Without limiting the generality of the foregoing, it is expressly understood by Owner that neither the Agency nor the City makes any representations or warranties with respect to the approvals required by Agency, the City or any other governmental entity. The Agency reserves full police power authority over the Property and Pirozzi acknowledges that the City retains such full police power as well . Nothing in this Agreement shall be deemed to be a prejudgment or commitment with respect to such items nor to guaranty that such approvals or permits will be issued within any particular time or with or without any particular conditions . 1.2 General. Prior to any development of the Property, Owner shall enter into an Owner Participation Agreement with the Agency and the , City, which Agreement shall place certain restrictions on the Property as may hereafter be agreed to among Owner, the Agency and the City. All development approvals, including site plan approvals, shall be processed in accordance with the City' s requirements . The Property shall be developed and used only as permitted by the restrictions contained in the Redevelopment Plan and such future Owner Participation Agreement. 1.3 Maintenance Agreement. Owner, for themselves and their successors and assigns, hereby covenant and agree to maintain and repair or cause to be maintained and repaired the Property in a first class condition and repair, free of rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction over the Property. Such maintenance and repair shall include, but not be limited to, the care and replacement of all shrubbery, plantings, and other landscaping in a healthy conditio. In addition, Owner shall be required to maintain the Property in such a manner as to avoid the reasonable determination of a duly authorized official of the Agency or City that a public nuisance has been created by the absence of adequate maintenance such as to be detrimental to the public health, safety or general welfare or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within one thousand (1, 000) feet of such portion of the Property. 223/014084-0006/3074684.3 .05/22/97 -3- 0 1.4 Parking and Driveways. The driveways and traffic aisles on the Property, if any, shall be kept clear and unobstructed at all times except as is necessary for (i) construction or excavation on the Property and (ii) activities to prevent a public dedication of the Property or the accrual of prescriptive rights over the Property. No vehicles or other obstruction shall project into any of such driveways or traffic aisles . Owner shall use its best efforts to insure that vehicles associated with the operation of the Property, including delivery vehicles and vehicles of persons with business on the Property will park solely on the Property and not park on public streets or adjacent property. 1.5 Compliance With Ordinances. 1 . 5 . 1 Owner shall comply with all ordinances, regulations and standards of the City and Agency applicable to the Property. 1.5 .2 Owner shall comply with all rules and regulations of any assessment district of the City with jurisdiction over the Property. 1. 6 Nondiscrimination. 1. 6 . 1 There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof, nor shall Owner, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, or any part thereof . 1 . 6 .2 Owner shall not restrict the rental, sale or lease of any portion of the Property on the basis of race, color, creed, religion, sex, marital status, ancestry or national origin of any person. Any and all agreements relating to the rental, sale or lease of the Property, or any portion thereof, and shall contain the following nondiscrimination and nonsegregation clauses (or clauses substantially similar thereto) : i. Clause for Deeds. The following language shall appear in deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account 223/014084-0006/3074684.3 a05122/97 -4- of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself, or any persons claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " ii. Clause for Leases. The following language shall appear in leases : "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions : That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein leased. " iii. Clause for Contracts. The following language shall appear in contracts: "There shall be no discrimination against or segregation of any persons or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, transfer, use, occupancy, tenure or enjoyment of land, nor shall the transferee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of land. " 223/014084-0006/3074684.3 .05/22/97 0 1.7 Public Agency Rights of Access. Owner hereby grants to the Agency, the City and other public agencies the right, at their sole risk and expense, to enter the Property or any part thereof at all reasonable times with as little interference as possible for the purpose of construction, reconstruction, relocation, maintenance, repair or service of any public improvements or public facilities located on the Property. Any damage or injury to the Property or to the improvements constructed thereon resulting from such entry shall be promptly repaired at the sole expense of the public agency responsible for the entry. ARTICLE 2 ENFORCEMENT 2 .1 Termination. No breach of this Declaration shall entitle any party to cancel, rescind or otherwise terminate this Declaration, or excuse the performance of such party' s obligations hereunder; provided that, however, this limitation shall not affect in any manner any other rights or remedies which the parties may have by reason of such breach. 2 .2 Injunction. Notwithstanding anything contained herein to the contrary, in the event of any violation or threatened violation of any of the terms, covenants, restrictions and conditions contained herein, in addition to the other remedies herein provided, the parties hereto shall have the right to enjoin such violation or threatened violation in a court of competent jurisdiction. 2 .3 Other Rights of Agency and City. In the event of any violation or threatened violation of any of the provisions of this Declaration, then in addition to, but not in lieu of, any of the rights or remedies the Agency and City may have to enforce the provisions hereof, the Agency and City shall have the right (i) to enforce the provisions hereof as a party hereto and as an owner of the Public Parcel, and (ii) to withhold or revoke, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the Property or any part thereof or interests therein as to the violating person or one threatening violation. 2 .4 Failure to Perform; Lien. If any owner of the Property defaults on the performance of any of its obligations hereunder, the Agency or City, their employees, contractors and agents may, at their sole option, and after making reasonable demand of the owner of the Property that it cure said default, enter onto the Property for the purpose of curing the default . In making an entry, the Agency or City shall give the owners of the Property or their representative, reasonable notice of the time and manner of said 223/014084-0006/3074684.3 a05/22/97 -6- 0 entry and said entry shall only be at such times and in such manners as is reasonably necessary to carry out this Agreement . In such event, the owner of the Property shall reimburse the Agency or City for all costs and expenses related to the curing of said default . If the Agency or City is not reimbursed for such costs by the owner of the Property within thirty (30) days after giving notice thereof, the same shall be deemed delinquent, and the amount thereof shall bear interest thereafter at a rate of ten percent (100-.) per annum until paid. Any and all delinquent amounts, together with said interest, costs and reasonable attorneys fees shall be a personal obligation of the owner of the Property as well as a lien and charge, with power of sale, upon the Property. The Agency may bring an action at law against the owner of the Property to pay any such sums . The lien provided for in this Section 2 .4 may be recorded by the Agency as a Notice of Lien against the Property in the Office of the County Recorder, County of Riverside, signed and acknowledged, which Notice of Lien shall contain a statement of the unpaid amount of costs and expenses . The priority of such lien when so established against the Property shall date from the date such notice is filed of record and shall be prior and superior to any right, title, interest, lien or claim which may be or has been acquired or attached to such real property at the time of recording of such lien, but shall be junior and subordinate to matters having a priority prior to the date such notice is recorded; provided that, however, said lien shall be subordinate to any bona fide mortgage or deed of trust and any purchaser at any foreclosure or trustee' s sale under any such bona fide mortgage or deed of trust as provided in Section 3 .3 below. Such lien shall be for the use and benefit of the person filing the same, and may be enforced and foreclosed in a suit or action brought in any court of competent jurisdiction. Any such lien may be enforced by the Agency or City by taking either or both of the following actions concurrently or separately (and by exercising either of the remedies set forth below shall not prejudice or waive its rights to exercise the remedy) : (i) bring an action at law against the defaulting party personally obligated to pay such lien or (ii) foreclose such lien in accordance with the provisions of Section 2924 of the California Civil Code applicable to the exercise of powers of sale or mortgages and deeds of trust, or any other manner permitted by California law. Upon the timely curing of any default for which such lien was recorded, the City or Agency shall record an appropriate release of such lien, and sign any other documents reasonably necessary to satisfy title insurance requirements, upon payment by the owner of the Property of a reasonable fee to cover the costs of preparing and recording such release, together with the payment of such other costs, including without limitation, reasonable attorneys fees, court costs, interest or other fees which have been incurred. 223/014084-0006/3074684.3 a05/22/97 -7- 0 ARTICLE 3 ENCUMBRANCES, MORTGAGE PROTECTION AND TAXES 3 .1 Owner' s Breach Not to Default Mortgage Lien. Owner' s breach of any of the covenants or restrictions contained in this Declaration shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to the Property or any part thereof or interest therein, whether or not said mortgage or deed of trust is subordinated to this Declaration; but, unless otherwise herein provided, the terms, conditions, covenants, restrictions and reservations of this Declaration shall be binding and effective against the holder of any such mortgage or deed of trust and any owner of any of the Property or any part thereof whose title thereto is acquired by foreclosure, trustee' s sale, or otherwise. 3 .2 Amendments or Modifications to Declaration. No purported rule, regulation, modification, amendment and/or termination of this Declaration shall be binding upon or affect the rights of any mortgagee holding a mortgage or deed of trust upon the Property that is recorded in the Office of the Riverside County Recorder prior to the date any such rule, regulation, modification, amendment or termination is recorded in such office, without the prior written consent of such mortgagee. 3 .3 Liens Subordinate. Any monetary lien provided for herein shall be subordinate to any bona fide mortgage or deed of trust covering an ownership interest or leasehold or subleasehold estate in and to the Property and any purchaser at any foreclosure or trustee' sale (as well as any by deed or assignment in lieu of foreclosure or trustee' s sale) under any such mortgage or deed of trust shall take title free from any such monetary lien, but otherwise subject to the provisions hereof; provided that, after the foreclosure of any such mortgage and/or deed of trust, all other assessments provided for herein to the extent they relate to the expenses incurred subsequent to such foreclosure, assessed hereunder to the purchaser at the foreclosure sale, as owner of the Property after the date of such foreclosure sale, shall become a lien upon the Property and may be perfected and foreclosed as provided in Section 2 .4 . 3 .4 Payment of Taxes and Assessments. Owner shall pay, when due, all real estate taxes and assessments assessed or levied against the Property. Nothing herein contained shall be deemed or prohibit Owner from contesting the validity or amounts of any tax or assessments nor to limit the remedies available to Owner with respect thereto. 223/014084-0006/3074684.3 .05122/97 -a- ARTICLE 4 COVENANTS TO RUN WITH THE LAND 4.1 Covenants Running With the Land. This Declaration is designed to create equitable servitudes and covenants appurtenant to the Public Parcel and running with the Property. Owner hereby declares that all of the Property shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the covenants, conditions, restrictions and equitable servitudes, all of which are for the purposes of uniformly enhancing or protecting the value, attractiveness and desirability of the Property and effectuating the Redevelopment Plan. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth herein shall run with the Property and shall be binding upon all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns; shall inure to the benefit of every portion of the Public Parcel and any interest therein; shall inure to the benefit of the Agency, the City and their successors and assigns and successors in interest; shall be binding upon Owner, its successors and assigns and successors in interest; and may be enforced by the Agency and City. Agency and Owner hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that Owner' s legal interest in the Property is rendered less valuable thereby. Agency and Owner hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Property by the citizens of the City and by furthering the public purposes for which the Agency was formed. 4 .2 Agreement Among Owner Agency and City. The Owner, in exchange for entering into the Exchange Agreement by the Agency, hereby agrees to hold, sell, and convey the Property subject to the covenants, conditions, restrictions and reservations of this Declaration. Owner also grants to the Agency and City the right and power to enforce the covenants, conditions, restrictions and reservations contained in this Declaration against the Owner and all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns . ARTICLE 5 TERM The covenants, conditions and restrictions contained in this Declaration shall remain in effect until August 10, 2008, which is the expiration date of the Redevelopment Plan; provided that, however, the covenants contained in Section 1 . 5 shall remain in effect in perpetuity. 223/014084-0006/3074684.3 .05/22197 -9- ARTICLE 6 MISCELLANEOUS 6 .1 Modification. This Declaration may not be modified, terminated or rescinded, in whole or in part, except by a written instrument duly executed and acknowledged by the parties hereto, their successors or assigns and duly recorded in the Office of the County Recorder, County of Riverside. 6.2 Governing Law. This Declaration shall be governed by and construed in accordance with the laws of the State of California. 6.3 Severability. The invalidity or unenforceability of any provision of this Declaration with respect to a particular party or set of circumstances shall not in any way affect the validity and enforceability of any other provision hereof, or the same provision when implied to another party or to a different set of circumstances. 6 .4 Notices. Any notice to be given under this Declaration shall be given by personal delivery or by depositing the same in the United States Mail, certified or registered, postage prepaid, at the following address : Agency: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS P.O. Box 2743 Palm Springs, CA 92263 Attn: Executive Director City: CITY OF PALM SPRINGS P.O. Box 2743 Palm Springs, CA 92263 Attn: City Manager With Copy to: RUTAN & TUCKER, LLP 611 Anton Blvd. , Suite 1400 Costa Mesa, CA 92623-9990 Attn: David J. Aleshire, Esq. Owner: VINCENT J. PIROZZI AND KAREN M. PIROZZI, TRUSTEES OF THE PIROZZI FAMILY TRUST Box 328 Palm Springs, CA 92263 223/014084-0006/3074684 3 .05/22/97 -1 0_ 0 Any notice delivered personally shall be effective upon delivery. Any notice given by mail as above provided shall be effective forty-eight (48) hours after deposit in the mails . Any party may change address for notice by giving written notice of such change to the other party. 6 . 5 Counterparts. This Declaration may be executed in any number of counterparts each of which shall be an original but all of which shall constitute one and the same document . IN WITNESS WHEREOF, the undersigned have executed this Agreement was executed as of the date first written above. "Owner" VINCENT J. PIROZZI, TRUSTEE OF THE PIROZZI FAMILY TRUST KAREN M. PIROZZI, TRUSTEE OF THE PIROZZI FAMILY TRUST "AGENCY" THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS Dated: By: Its • ATTEST: Agency Secretary APPROVED AS TO FORM RUTAN & TUCKER, LLP By: David J. Aleshire, Esq. Agency Counsel 223/014094-0006/3074684.3 .05/22/97 STATE OF CALIFORNIA ) ss . COUNTY OF ) On the day of 199 before me, the undersigned, a Notary Public, in and for said State and County, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as the Executive Director on behalf of THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, the municipal corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors . WITNESS my hand and official seal . Notary Public (SEAL) STATE OF CALIFORNIA ) ss . COUNTY OF ) On before me, personally appeared personally known to me (or proved to me on the basis of satisfac- tory 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 . [SEAL] Notary Public 223/014084-0006/3074684.3 a05/22/97 -12- 0 STATE OF CALIFORNIA ) ss . COUNTY OF ) On before me, personally appeared personally known to me (or proved to me on the basis of satisfac- tory 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 . [SEAL] Notary Public 223/014084-0006/3074684.3 a05/22/97 -1 3- • i EXHIBIT 111" LEGAL DESCRIPTION OF PROPERTY The Property is that certain real property in the City of Palm Springs, County of Riverside, State of California, more particularly described as follows: ALL THAT PORTION OF LOT 5, BLOCK 23 OF PALM SPRINGS, AS RECORDED IN MAP BOOK 9, AT PAGE 432 , RECORDS OF SAN DIEGO COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS : BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 5, THENCE N 890-50' -0011 E ALONG THE NORTH LINE OF SAID LOT 5, A DISTANCE OF 128 . 75 FEET; THENCE LEAVING SAID NORTH LINE, S 000 -08 ' -00" E A DISTANCE OF 100 . 00 FEET; THENCE N 890 -50' -00" E A DISTANCE OF 128 . 75 FEET TO THE EASTERLY LINE OF SAID LOT 5 ; THE FOLLOWING THREE COURSES BEING ALONG THE EASTERLY, SOUTHERLY AND WESTERLY LINES OF SAID LOT 5; THENCE S 000-08' -00" E A DISTANCE OF 50 . 00 FEET; THENCE S 890 -50' -00" W A DISTANCE OF 257 . 50 FEET; THENCE N 000 -08' -0011 W A DISTANCE OF 150 . 00 FEET TO THE POINT OF BEGINNING. EXHIBIT "1" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS 223/014084-0006/3074694.3 a05/22/97 EXHIBIT 112" LEGAL DESCRIPTION OF THE PUBLIC PARCEL The Public Parcel is that certain real property in the City of Palm Springs, County of Riverside, State of California, more particularly described as follows : ALL THAT PORTION OF LOT 5, BLOCK 23 OF PALM SPRINGS, AS RECORDED IN MAP BOOK 9 , AT PAGE 432 , RECORDS OF SAN DIEGO COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS : COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 5; THENCE N 890 -50 ' -00" E ALONG THE NORTH LINE OF SAID LOT 5 , A DISTANCE OF 128 . 75 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTH LINE, S 000 -08' -00" E A DISTANCE OF 100 . 00 FEET; THENCE N 890-50' -00" E A DISTANCE OF 128 . 75 FEET TO THE EAST LINE OF SAID LOT 5 ; THENCE N 000 -08' -00" W ALONG SAID EAST LINE A DISTANCE OF 100 . 00 FEET TO THE NORTHEAST CORNER OF SAID LOT 5; THENCE S 890 -50' -00" W ALONG THE NORTH LINE OF SAID LOT 5 , A DISTANCE OF 128 . 75 FEET TO THE TRUE POINT OF BEGINNING. EXHIBIT 112" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS 223/014084-0006/3074684.3 "05/22/97 310855 RECEIVED FOR RECORD O AT 8:00 O'CLOCK FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: AUG 271997 THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS ricDded in mridal Records 3200 East Tahquitz Canyon Way of Riverside Cm nry.Cdllarnla Palm Springs, CA 92263 Recorder Attn: Executive Director n FeesE Space above this line for Recorder's U1e - > 1 DOCUMENTARY TRANSFER TAX $0 (Exempt by `• Revenue And Taxation Code § 11922) (� . .Computed on the consideration or value of property conveyed; OR . . . .Computed on the consideration or value less liens or encumbrances remaining SignKEure of Declarant or Agent �\ at time of sale. determining tax - Firm Name GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, VINCENT J. PIROZZI and KAREN M. PIROZZI, TRUSTEES OF THE PIROZZI FAMILY TRUST hereby grant to THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic, the real property in the City of Palm Springs, County of Riverside, State of California, described in Exhibit "A" attached hereto and incorporated herein by reference (the "Property" ) . The Property conveyed hereby is subject to real property taxes and assessments and to all easements, encumbrances, covenants, conditions, restrictions, reservations, rights-of-way, and other matters of record, or which could be determined upon reasonable inspection and investigation of whatever kind or nature. Dated: July 7 , 1997 // , Z Ash -- VINCENT JV PIROZZ'r, TRUSTEE OF THE PIROZZI FA/MMIJL/Y/ TRUST ( /l KAREN M. PIROZZ /TRUST E OF THE PIROZZI FAMILY TRUST 5261014084-000613086898.1 07/02/97 Recording pe0os d �y %10854 T First RECEIVED FOR RECORD ,O WHEN RECORDED MAIL T0: AT 8:00 O'CLOCK VINCENT J. PIROZZI and KAREN M. PIROZZI Trustees of the Pirozzi Family Trust Box 328 AUG G 2 7 1997 Palm Springs, CA 92263 R"d.d n WdO R.cad. a aiv.r40.Carry.e. gorder's Feesmace aboire this line for Re Use DOCUMENTARY TRANSFER TAY, $ --8-- . . . .Computed on the consideration or value of property conveyed; OR ��seif . . . .Computed on the consideration or value Sign ure of Declarant or Agent \ less liens or encumbrances remaining determining tax - Firm Name ( , at time of sale. g �\J G GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS , a public body, corporate and politic, hereby grants to VINCENT J. PIROZZI and KAREN M. PIROZZI, TRUSTEES OF THE PIROZZI FAMILY TRUST the real property in the City of Palm Springs , County of Riverside, State of California, described in Exhibit "A" attached hereto and incorporated herein by reference (the "Property" ) . The Property conveyed hereby is subject to real property taxes and assessments and to all easements, encumbrances, covenants, conditions, restrictions, reservations, rights-of-way, and other matters of record, or which could be determined upon reasonable inspection and investigation of whatever kind or nature . Dated: July � , 1997 THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, E)nj politic V / 526/014084 0006/3086900.1 .07102/97 kocordinc+ 310853 hirst American lili� irs ",rrre Congt:!ul RECEIVED FOR RECORD WHEN RECORDED MAIL T0: AT 8:00 O'CLOCK AUG 2 71997 I'�n�� ' gecortled in Clrinpl Aewrdy CITY CLERK Recordeer, j4/COL/�y` � of Nr anldo CouRecor Ill IY OF PALM SPRING$ BOX 2T43 Feos 5 :IALMSPRINGS CAg= Space above this line for Recorder s DOCUMENTARY TRANSFER TAX $ '-C3— . . . .Computed on the consideration or value of property conveyed; OR �� . . . .Computed on the consideration or value less liens or encumbrances remaining Signature of Declarant or Agent = at time of sale. determining tax - Firm Name (� GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic, hereby grants to VINCENT J. PIROZZI and KAREN M. PIROZZI, TRUSTEES OF THE PIROZZI FAMILY TRUST the real property in the City of Palm Springs, County of Riverside, State of California, described in Exhibit "A" attached hereto and incorporated herein by reference (the "Property" ) . The Property conveyed hereby is subject to real property taxes and assessments and to all easements, encumbrances, covenants, conditions, restrictions, reservations, rights-of-way, and other matters of record, or which could be determined upon reasonable inspection and investigation of whatever kind or nature. Dated: July 7 1997 THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, c orate ad politic B. By: 11 - �i r� f 0 � I�•yp I` 526/014084-0006/3096900.1 p07/02/97 1 r,{, r� REOCIVED FOR RECORD Recorc ing Reestted By 310852 � AT 8:00 O'CLOCK t�J�st Arnerican Tide insslrance Company FREE RECORDATION REQUESTED BY AUG 2 71997 0 41 AND WHEN RECORDED MAIL TO: CITY OF PALM SPRINGS nM.,dedinOP,dalAe Ids M = P.O. Box 2743 el Averside Cauny.Cal,farnla m Palm Springs, CA 92263-2743 Recorder Attn: Engineering Division FaesS Y ¢M (For Recorder's s y oa z ++ c w c •r- E vow OWNER'S CERTIFICATE FOR LOT LINE ADJUSTMENT / x / o WAIVER OF PARCEL MAP CERT. OF COMPLIANCE \ IN ACCORDANCE WITH CITY OF PALM SPRINGS �T COUNTY'OF RIVERSIDE, STATE OF CALIFORNIA �_1� No. t-LFI 'I ] -nLJ LOT LINE ADJUSTMENT We, the undersigned, do hereby certify that we are all and the only parties having any C� record title interest in the property as described in the attached description and plat \�.. and do hereby approve of, join in, and consent to the preparation and execution of this certifi Lot Line Adjustment as described in the attached \\ desc ' tion and plat. Cc unit edev o n Agency of the City of Palm rings xecutive Director Assistant Secretary STATE OF CALIFORNIA } } SS COUNTY OF RIVERSIDE } - On t'� before me, SA fC/t/ v date p rsonally appeared 2 �S personally known to me eR L�-paved ta- eon-the t� is of sats#aetar-y-gv deiLce_ I to be the person0whose name is/ re ubscribed to the within Lostrument and acknowledged to m that he/she t e executed the same in his/he their ''• ELAINE LINEDEKIND authorized cap (Ie5aclt and that by his/he their `= �1 CljnAr.a ,:',04,%7 signature-5-))on the instrument the persorfDacted,zC°Nromia JUNi executed the instrument. Y , _ fVi,C•,r I_irca rEO 3,1999 "4 Witness my hand and official seal. n ��JL (SEAL) Signature of Notary Page i of 3 DEPT. OF PUBLIC WORKS CITY OF PALM SPRINGS ENGINEERING DIVISION LOT LfINE ADJUSTMENT � APPROVE7-� - _sf�r __-1997 ( BEFORE ADJUSTMENT I �F Trt„a _ 28931 LEGAL DESCRIPTION CITY ENGINEER R . C . E . NO THE WESTERLY HALF AND THE EASTERLY HALF - - -SC �• OF LOT 5 IN BLOCK 23 OF PALM SPRINGS. AS DESIGN BY ALE c FILE NO. WN BY I P ON FILES IN BOOK 9 PAGE 432, i . 1 ��=100 ' LLA 97-04 O PBS CORDS OF SAN DIEGO COUNTY, CA. D . CHECKED BY SHEET Z - -- J . S . 1 OF 2 PR ESSIONAL LAND SURVEYOR P_LS 4176_ - __ m„ _„•, t«_-n„ - P# LLA EXHIBITTAA BEFOR -�1017 [0, 1O21 PF: 97122 0000 16-Jul-97 O7F28 AM i 97122-53 310856 RECEIVED FOR RECORD AT 8:00 O'CLOCK FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: AUG 271997 The Community Redevelopment Recaldetl in 011ioal Recautls Agency of the City of Palm Springs nl Riverside county.California 3200 East Tahquitz Canyon Way d�ecorder _, Palm Springs, CA 92262 Fees C Attn: Ex€-cutdve—D reeto (For Recorder' s Use Only) r � 1 DECLARATION OF COVENANTS, CONDITIONS ' AND RESTRICTIONS THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ( "Declaration" ) is dated for reference purposes as of this l day `J\ of L° , 1997 by and between VINCENT J. PIROZZI and KAREN M. PIROZZI, TRUSTEES OF THE PIROZZI FAMILY TRUST ( "Owner" ) , THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic ( "Agency") , and THE CITY OF PALM SPRINGS, a municipal corporation ( "City" ) . R E C I T A L S: A. Owner is the owner of that certain real property located in the City of Palm Springs, County of Riverside, State of California more particularly described on Exhibit 11111 attached hereto and incorporated herein by reference (the "Property") . B. The Property is within the Palm Springs Central Business District Redevelopment Project Area ( "Project Area" ) specifically described in the Redevelopment Plan for the Project Area which was approved and adopted by the City Council of the City of Palm Springs by Ordinance No. 952 on July 11, 1973 , and as subsequently amended by means of ordinances of the City Council . C. The Agency and the City have fee or easement interests in various streets, sidewalks and other property within the City and are responsible for the planning and development of land within the City in such a manner so as to provide for the health, safety and welfare of the residents of the City. That portion of the City' s interest in real property most directly affected by this Agreement 2 2 3/014 0 8 4-0006/3 0746 84.3 a07/01/97 Vincent & Karen Pirozzi - Executed Exhibit H - CC&Rs AGREEMENT 374C • • �ao�ss is depicted in Exhibit 112 " attached hereto and incorporated herein by reference ( "Public Parcel" ) . D. The purpose of the Redevelopment Plan is to remedy and alleviate blighted conditions associated with undeveloped and unproductive land, inadequate street and circulation systems, unsuitable land mixes, inadequate or total lack of public street improvements, and the existence of substandard and incompatible uses and structures . The redevelopment and restriction of the Property in accordance with the Redevelopment Plan will promote the utility and value of the Property and of the Project Area, for the benefit of its future owners and the entire city. E. Owner, the Agency and City intend, in exchange for the Agency entering into that certain Exchange Agreement and Joint Escrow Instructions with Owner dated for reference purposes May 27, 1997 ( "Exchange Agreement" ) pursuant to which Owner acquired the Property, that the Owner hold, sell, and convey the Property subject to the covenants, conditions, restrictions, and reservations set forth in this Declaration and that the Agency and City shall have the right and power to enforce the covenants, conditions, restrictions, and reservations as provided herein. F. Owner desires to establish and grant certain covenants, conditions and restrictions upon the property for the benefit of the Agency and the City and their respective successors and assigns for the purpose of enhancing and protecting the value, desirability and attractiveness of the Property and effectuating the Redevelopment Plan. Such covenants, conditions and restrictions shall run to the benefit of the Public Parcel and bind the Property, the Owner and its successors and assigns . NOW, THEREFORE, the Owner, Agency and City declare, covenant and agree, by and for themselves, their heirs, executors and assigns, and all persons claiming under or through them that the Property shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied subject to the covenants and restrictions hereinafter set forth, which covenants are established expressly and exclusively for the use and benefit of the Agency and City. ARTICLE 1 COVENANTS, CONDITIONS AND RESTRICTIONS 1.1 Not an Owner Participation Agreement. Although the Property is within the Project Area and subject to the Redevelopment Plan, Owner is not, at this time, exercising its participation rights as an owner of real property within the Project Area and this Declaration shall not constitute an owner participation agreement . The Agency has determined that the this 223/014084-0006/30746843 a07/01/97 -2- . • 3��856 Declaration and the exchange of the Property for certain Property owned by the Agency which is being consummated substantially concurrently with the recordation of this Declaration will facilitate the future development of the Property. At such time as Owner seeks to exercise his rights as a participant under the Redevelopment Plan and in accordance with the law applicable thereto, Owner acknowledges and agrees that he will be required to submit and process for approval by the Agency a development plan as an owner/participant, to enter into an owner participation agreement and to process with Agency and the City all required approvals for any development of the Property under the law applicable at such future time as such approvals are sought . without limiting the generality of the foregoing, it is expressly understood by Owner that neither the Agency nor the City makes any. representations or warranties with respect to the approvals required by Agency, the City or any other governmental entity. The Agency reserves full police power authority over the Property and Pirozzi acknowledges that the City retains such full police power as well . Nothing in this Agreement shall be deemed to be a prejudgment or commitment with respect to such items nor to guaranty that such approvals or permits will be issued within any particular time or with or without any particular conditions . 1.2 General. Prior to any development of the Property, Owner shall enter into an Owner Participation Agreement with the Agency and the City, which Agreement shall place certain restrictions on the Property as may hereafter be agreed to among Owner, the Agency and the City. All development approvals, including site plan approvals, shall be processed in accordance with the City' s requirements . The Property shall be developed and used only as permitted by the restrictions contained in the Redevelopment Plan and such future Owner Participation Agreement. 1.3 Maintenance Agreement. Owner, for themselves and their successors and assigns, hereby covenant and agree to maintain and repair or cause to be maintained and repaired the Property in a first class condition and repair, free of rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction over the Property. Such maintenance and repair shall include, but not be limited to, the care and replacement of all shrubbery, plantings, and other landscaping in a healthy conditio. In addition, Owner shall be required to maintain the Property in such a manner as to avoid the reasonable determination of a duly authorized official of the Agency or City that a public nuisance has been created by the absence of adequate maintenance such as to be detrimental to the public health, safety or general welfare or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within one thousand (1, 000) feet of such portion of the Property. 223/014084-0006/3074684.3 e07/01/97 —3— • 310856 1.4 Parking and Driveways. The driveways and traffic aisles on the Property, if any, shall be kept clear and unobstructed at all times except as is necessary for (i) construction or excavation on the Property and (ii) activities to prevent a public dedication of the Property or the accrual of prescriptive rights over the Property. No vehicles or other obstruction shall project into any of such driveways or traffic aisles. Owner shall use its best efforts to insure that vehicles associated with the operation of the Property, including delivery vehicles and vehicles of persons with business on the Property will park solely on the Property and not park on public streets or adjacent property. 1.5 Compliance With Ordinances. 1 . 5 . 1 Owner shall comply with all ordinances, regulations and standards of the City and Agency applicable to the Property. 1 . 5 .2 Owner shall comply with all rules and regulations of any assessment district of the City with jurisdiction over the Property. 1. 6 Nondiscrimination. 1 . 6 . 1 There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof, nor shall Owner, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, or any part thereof . 1 . 6 .2 Owner shall not restrict the rental, sale or lease of any portion of the Property on the basis of race, color, creed, religion, sex, marital status, ancestry or national origin of any person. Any and all agreements relating to the rental, sale or lease of the Property, or any portion thereof, and shall contain the following nondiscrimination and nonsegregation clauses (or clauses substantially similar thereto) : i. Clause for Deeds. The following language shall appear in deeds : "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account 223/014064-0006/3074684.3 .07/01/97 -4- 310856 of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself, or anv persons claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " ii. Clause for Leases. The following language shall appear in leases : "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions : That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein leased. " iii. Clause for Contracts. The following language shall appear in contracts : "There shall be no discrimination against or segregation of any persons or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, transfer, use, occupancy, tenure or enjoyment of land, nor shall the transferee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of land. " 223/014094-000613074684.3 a07/01/97 310856 1.7 Public Agency Rights of Access. Owner hereby grants to the Agency, the City and other public agencies the right, at their sole risk and expense, to enter the Property or any part thereof at all reasonable times with as little interference as possible for the purpose of construction, reconstruction, relocation, maintenance, repair or service of any public improvements or public facilities located on the Property. Any damage or injury to the Property or to the improvements constructed thereon resulting from such entry shall be promptly repaired at the sole expense of the public agency responsible for the entry. ARTICLE 2 ENFORCEMENT 2 . 1 Termination. No breach of this Declaration shall entitle any party to cancel, rescind or otherwise terminate this Declaration, or excuse the performance of such party' s obligations hereunder; provided that, however, this limitation shall not affect in any manner any other rights or remedies which the parties may have by .reason of such breach. 2 .2 Injunction. Notwithstanding anything contained herein to the contrary, in the event of any violation or threatened violation of any of the terms, covenants, restrictions and conditions contained herein, in addition to the other remedies herein provided, the parties hereto shall have the right to enjoin such violation or threatened violation in a court of competent jurisdiction. 2 .3 Other Rights of Agency and City. In the event of any violation or threatened violation of any of the provisions of this Declaration, then in addition to, but not in lieu of, any of the rights or remedies the Agency and City may have to enforce the provisions hereof, the Agency and City shall have the right (i) to enforce the provisions hereof as a party hereto and as an owner of the Public Parcel, and (ii) to withhold or revoke, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the Property or any part thereof or interests therein as to the violating person or one threatening violation. 2 .4 Failure to Perform; Lien. If any owner of the Property defaults on the performance of any of its obligations hereunder, the Agency or City, their employees, contractors and agents may, at their sole option, and after making reasonable demand of the owner of the Property that it cure said default, enter onto the Property for the purpose of curing the default. In making an entry, the Agency or City shall give the owners of the Property or their representative, reasonable notice of the time and manner of said 2231014094-0006/3074694.3 :,07/01197 -6- � a:tasss entry and said entry shall only be at such times and in such manners as is reasonably necessary to carry out this Agreement. In such event, the owner of the Property shall reimburse the Agency or Citv for all costs and expenses related to the curing of said default . If the Agency or City is not reimbursed for such costs by the owner of the Property within thirty (30) days after giving notice thereof, the same shall be deemed delinquent, and the amount thereof shall bear interest thereafter at a rate of ten percent (100) per annum until paid. Any and all delinquent amounts, together with said interest, costs and reasonable attorneys fees shall be a personal obligation of the owner of the Property as well as a lien and charge, with power of sale, upon the Property. The Agency may bring an action at law against the owner of the Property to pay any such sums . The lien provided for in this Section 2 .4 may be recorded by the Agency as a Notice of Lien against the Property in the Office of the County Recorder, County of Riverside, signed and acknowledged, which Notice of Lien shall contain a statement of the unpaid amount of costs and expenses . The priority of such lien when so established against the Property shall date from the date such notice is filed of record and shall be prior and superior to any right, title, interest, lien or claim which may be or has been acquired or attached to such real property at the time of recording of such lien, but shall be junior and subordinate to matters having a priority prior to the date such notice is recorded; provided that, however, said lien shall be subordinate to any bona fide mortgage or deed of trust and any purchaser at any foreclosure or trustee' s sale under any such bona fide mortgage or deed of trust as provided in Section 3 . 3 below. Such lien shall be for the use and benefit of the person filing the same, and may be enforced and foreclosed in a suit or action brought in any court of competent jurisdiction. Any such lien may be enforced by the Agency or City by taking either or both of the following actions concurrently or separately (and by exercising either of the remedies set forth below shall not prejudice or waive its rights to exercise the remedy) : (i) bring an action at law against the defaulting party personally obligated to pay such lien or (ii) foreclose such lien in accordance with the provisions of Section 2924 of the California Civil Code applicable to the exercise of powers of sale or mortgages and deeds of trust, or any other manner permitted by California law. Upon the timely curing of any default for which such lien was recorded, the City or Agency shall record an appropriate release of such lien, and sign any other documents reasonably necessary to satisfy title insurance requirements, upon payment by the owner of the Property of a reasonable fee to cover the costs of preparing and recording such release, together with the payment of such other costs, including without limitation, reasonable attorneys fees, court costs, interest or other fees which have been incurred. 223/014084-0006/3074684.3 n07/01/97 -7- • 31C856 ARTICLE 3 ENCUMBRANCES, MORTGAGE PROTECTION AND TAXES 3 .1 Owner' s Breach Not to Default Mortgage Lien. Owner' s breach of any of the covenants or restrictions contained in this Declaration shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to the Property or any part thereof or interest therein, whether or not said mortgage or deed of trust is subordinated to this Declaration; but, unless otherwise herein provided, the terms, conditions, covenants, restrictions and reservations of this Declaration shall be binding and effective against the holder of any such mortgage or deed of trust and any owner of any of the Property or any part thereof whose title thereto is acquired by foreclosure, trustee' s sale, or otherwise. 3 .2 Amendments or Modifications to Declaration. No purported rule, regulation, modification, amendment and/or termination of this Declaration shall be binding upon or affect the rights of any mortgagee holding a mortgage or deed of trust upon the Property that is recorded in the Office of the Riverside County Recorder prior to the date any such rule, regulation, modification, amendment or termination is recorded in such office, without the prior written consent of such mortgagee. 3 .3 Liens Subordinate. Any monetary lien provided for herein shall be subordinate to any bona fide mortgage or deed of trust covering an ownership interest or leasehold or subleasehold estate in and to the Property and any purchaser at any foreclosure or trustee' sale (as well as any by deed or assignment in lieu of foreclosure or trustee' s sale) under any such mortgage or deed of trust shall take title free from any such monetary lien, but otherwise subject to the provisions hereof; provided that, after the foreclosure of any such mortgage and/or deed of trust, all other assessments provided for herein to the extent they relate to the expenses incurred subsequent to such foreclosure, assessed hereunder to the purchaser at the foreclosure sale, as owner of the Property after the date of such foreclosure sale, shall become a lien upon the Property and may be perfected and foreclosed as provided in Section 2 .4 . 3 .4 Payment of Taxes and Assessments. Owner shall pay, when due, all real estate taxes and assessments assessed or levied against the Property. Nothing herein contained shall be deemed or prohibit Owner from contesting the validity or amounts of any tax or assessments nor to limit the remedies available to Owner with respect thereto. 2231014084-0006/3074684.3 n07/0l/97 -a • • 310856 ARTICLE 4 COVENANTS TO RUN WITH THE LAND 4 .1 Covenants Running With the Land. This Declaration is designed to create equitable servitudes and covenants appurtenant to the Public Parcel and running with the Property. Owner hereby declares that all of the Property shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the covenants, conditions, restrictions and equitable servitudes, all of which are for the purposes of uniformly enhancing or protecting the value, attractiveness and desirability of the Property and effectuating the Redevelopment Plan. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth herein shall run with the Property and shall be binding upon all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns; shall inure to the benefit of every portion of the Public Parcel and any interest therein; shall inure to the benefit of the Agency, the City and their successors and assigns and successors in interest; shall be binding upon Owner, its successors and assigns and successors in interest; and may be enforced by the Agency and City. Agency and Owner hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that Owner' s legal interest in the Property is rendered less valuable thereby. Agency and Owner hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Property by the citizens of the City and by furthering the public purposes for which the Agency was formed. 4 .2 Agreement Among Owner, Agency and City. The Owner, in exchange for entering into the Exchange Agreement by the Agency, hereby agrees to hold, sell, and convey the Property subject to the covenants, conditions, restrictions and reservations of this Declaration. Owner also grants to the Agency and City the right and power to enforce the covenants, conditions, restrictions and reservations contained in this Declaration against the Owner and all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns. ARTICLE 5 TERM The covenants, conditions and restrictions contained in this Declaration shall remain in effect until August 10, 2008 , which is the expiration date of the Redevelopment Plan; provided that, however, the covenants contained in Section 1 . 5 shall remain in effect in perpetuity. 223/014084-0006/3074684.3 .07/01/97 -9- 3:10856 ARTICLE 6 MISCELLANEOUS 6 .1 Modification. This Declaration may not be modified, terminated or rescinded, in whole or in part, except by a written instrument duly executed and acknowledged by the parties hereto, their successors or assigns and duly recorded in the Office of the County Recorder, County of Riverside. 6 .2 Governing Law. This Declaration shall be governed by and construed in accordance with the laws of the State of California. 6 .3 Severability. The invalidity or unenforceability of any provision of this Declaration with respect to a particular party or set of circumstances shall not in any way affect the validity and enforceability of any other provision hereof, or the same provision when implied to another party or to a different set of circumstances . 6.4 Notices. Any notice to be given under this Declaration shall be given by personal delivery or by depositing the same in the United States Mail, certified or registered, postage prepaid, at the following address : Agency: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS P.O. Box 2743 Palm Springs, CA 92263 Attn: Executive Director City: CITY OF PALM SPRINGS P.O. Box 2743 Palm Springs, CA 92263 Attn: City Manager With Copy to: RUTAN & TUCKER, LLP 611 Anton Blvd. , Suite 1400 Costa Mesa, CA 92623-9990 Attn: David J. Aleshire, Esq. Owner: VINCENT J. PIROZZI AND KAREN M. PIROZZI, TRUSTEES OF THE PIROZZI FAMILY TRUST Box 328 Palm Springs, CA 92263 223/014094-0006/3074684.3 a07/01/97 -1 0- • 3�16856 Any notice delivered personally shall be effective upon delivery. Any notice given by mail as above provided shall be effective forty-eight (48) hours after deposit in the mails . Any party may change address for notice by giving written notice of such change to the other party. 6 . 5 Counterparts. This Declaration may be executed in any number of counterparts each of which shall be an original but all of which shall constitute one and the same document. IN WITNESS WHEREOF, the undersigned have executed this Agreement was executed as of the date first written above. "Owner" VINCENT J. PI'ROZZI,"TRUSTEE OF THE PIROZZI FAMILY TRUST �v / a /°i/1� - � ' cr KAREN M. PIROZZI, RUSTEE OF THE PIROZZI FAMILY TRUST "AGENCY" THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS Dated ��' d; /li 7 By � � � �� ' i Its : MY711YW e' #ir}i�°4 ATTEST: 7 /Agency! Secretary eL I L APPROVED AS TO FORM RUTAN & TUCKER, LLP rl David J.,, Aleshire, sq. Agency Counsel 223/014084-0006/3074684.3 .07/01/97 3:10856 STATE "&,F CALIFORNIA ) ss . COUNTY OF ) On the \ day of 199 before me, the undersigned, a DTo'tary Public, in and for said State and County, personally appeared,, personally known to me (or proved to m on the basis of satisfactory evidence) to be the person who executea,,khe, within instrument as the Executive Director on behalf of THE '`COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, the municipal corporation therein named, and acknowledged to me that Such-"'co .rporation executed the within instrument pursuant ,to its bylaws Y,,a resolution of its board of directors . WITNESS my hand and official seal . (SEAL) Notary Public STATE OF CALIFORNIA ) COUNTY OF ��� � � ) ss . On �vLi L�� f C�% before me, C /J� / C _ Ld ce �k�NlSe6zlc personal Epp 'ar4d f r2 1� ��, ii� �:_f✓�,s %�7. �2 a personally known to me fer�prosed-fe-me- i- 1Z i f ea - o n�P) to be the person whose name ( ise-subscribed to the within instrument and acknowledged to me that he/sherhey executed the same in his he ' i _ _,_� ,�4 / 3�t_heix�authorized capacityc�ies�y and that by his/he2ctRi i )signature �) on the instrument the person�� or the entity upon behalf of which the person ((Zy acted, executed the instrument . Witness my hand and official seal . ,�J / Notary PubIjlE [SEAL] , '" '• EUVNE L.WEDEKIND Notary Public—California R'A/ER3IDE COUNTY IVIy col so Enplfps FED 3,1999 223/014084-0006/3074684.3 .07/01/97 -12- �:�Q8S6 State of California SS . County of Riverside On �Z�Gzz �L�� before me, ELAINE L. WEDEKIND, Notary PubWc,Oersonally appeared *** WILLIAM G. KLEINDIENST & JUDITH SUMICH ***, personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Notary Public ELAI E L.L.WEDEKIND z :I4. ' .; Notary Public—California ti RIVERSIDE COUNTY MY Comm.Epiras FED 3,1999 • • :310856 EXHIBIT 11111 LEGAL DESCRIPTION OF PROPERTY The Property is that certain real property in the City of Palm Springs, County of Riverside, State of California, more particularly described as follows : ALL THAT PORTION OF LOT 5, BLOCK 23 OF PALM SPRINGS, AS RECORDED IN MAP BOOK 9 , AT PAGE 432, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS : BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 5, THENCE N 890 -50' -00" E ALONG THE NORTH LINE OF SAID LOT 5 , A DISTANCE OF 128 . 75 FEET; THENCE LEAVING SAID NORTH LINE, S 000-08 ' -00 " E A DISTANCE OF 100 . 00 FEET; THENCE N 890 -50 ' -00" E A DISTANCE OF 128 . 75 FEET TO THE EASTERLY LINE OF SAID LOT 5; THE FOLLOWING THREE COURSES BEING ALONG THE EASTERLY, SOUTHERLY AND WESTERLY LINES OF SAID LOT 5 ; THENCE S 000 -08' -00 " E A DISTANCE OF 50 . 00 FEET; THENCE S 890 -50' -00" W A DISTANCE OF 257 . 50 FEET; THENCE N 000 -08' -00" W A DISTANCE OF 150 . 00 FEET TO THE POINT OF BEGINNING. EXHIBIT "1" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS 223/014084-0006/3074684.3 .07/01/97 z9-3/ 310856 5/3. 08 T.C.A. //O8 - �" TH4 MAP /S FOR P OR. E. 112 SEC. 15, 7:4 S.T R. 4 E. ASSESSMENT PURPOSES ONLY . /,•- oe ot INDIAN CANYON DRIVE 33 an 7G — — us r•Y roo fS+ mo' L L- I � 08I ) I O O �wO « ® ` O •� w I� •n tz Q O I O O I I O ' 0 h _ I� I J Lt 's` 75- 1 rzS 75- 2f so fo- So r•• sf It.or -- — �_ PALM CANYON DRIVE - o C I {^+ o r a so rr 7 3r xf ir r. r• / A erc^ 100' ya. Q V. AA iw �� ® O h ® � N JO q�n Mc � V. y I q 2 7 J I r a �q to- `ice 01 17 /50f Sa /oa- <'!,1 9 5o P.AL 93/S 3So./o P.M.93/a Sl.+ IDATE OLD NO NE3YN ---DRiVE Y �e-•17 zlL7 4 ii�ss a}2J8 082-29 3/ 90/ 32 az Data+ G.L.O. ' f/Ba t3 3} 2101 Da&Vxr 35 M.B. 91432 S.D. PALM SPRINGS +182=1 38 1 PM. 93/8-9 Parcel Mop-14748 7 89 9 p -3T . ASSESSOR'S MAP BX.5I3 PG.08 RIVERSIDE COUNTY, CALIF .rent roao FM 0 3i856 EXHIBIT "2" LEGAL DESCRIPTION OF THE PUBLIC PARCEL The Public Parcel is that certain real property in the City of Palm Springs, County of Riverside, State of California, more particularly described as follows : ALL THAT PORTION OF LOT 5 , BLOCK 23 OF PALM SPRINGS, AS RECORDED IN MAP BOOK 9 , AT PAGE 432, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS : COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 5; THENCE N 890-50' -00" E ALONG THE NORTH LINE OF SAID LOT 5 , A DISTANCE OF 128 . 75 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTH LINE, S 000 -08 ' -00" E A DISTANCE OF 100 . 00 FEET; THENCE N 890-50' -00" E A DISTANCE OF 128 . 75 FEET TO THE EAST LINE OF SAID LOT 5; THENCE N 000 -08 ' -00" W ALONG SAID EAST LINE A DISTANCE OF 100 . 00 FEET TO THE NORTHEAST CORNER OF SAID LOT 5 ; THENCE S 890 -50 ' -00" W ALONG THE NORTH LINE OF SAID LOT 5, A DISTANCE OF 128 . 75 FEET TO THE TRUE POINT OF BEGINNING. EXHIBIT 112 " TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS 223/014084-000613074684.3 ,07/01/97