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HomeMy WebLinkAbout00373C - LAS CASUELAS TERRAZA SERVICE OPA PA1B9 EXHIBIT "A" LEGAL DESCRIPTION PARCEL lA BEING A PORTION OF LOT 3 , IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89050' 00" EAST A DISTANCE OF 114 . 00 FEET; THENCE SOUTH 00008' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET; THENCE SOUTH 11000'47" WEST A DISTANCE OF 20 .39 FEET TO THE SOUTH LINE OF' SAID LOT 3 ; THENCE SOUTH 89050' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 110 . 06 FEET TO THE SOUTHWEST CORNER OF SAID LOT 3 ; THENCE NORTH 00008' 00" WEST ALONG THE WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 TO THE TRUE POINT OF BEGINNING. PARCEL 1B BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 OF SAID BLOCK 28, THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89050' 00" EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 00008 ' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. THENCE SOUTH 11000' 47" WEST A DISTANCE OF 20 . 39 FEET TO THE NORTHERLY LINE OF SAID LOT 4 AND THE TRUE POINT OF BEGINNING. THENCE SOUTH 11000' 47" WEST A DIS —IC" OF 66 .26 FEET, THENCE SOUTH 00008 ' 00 " EAST PARALLEL WITH THE WEST LINE OF SAID LOT 5, A DISTANCE OF 35 . 00 FEET TO THE SOUTHERLY LINE OF SAID LOT 5 . THENCE SOUTH 89050 ' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 5, A DISTANCE OF 2 . 00 FEET, SAID POINT BEING 50 . 00 WEST OF THE SOUTHEAST CORNER OF SAID LOT 5 . THENCE NORTH 00008 ' 00" WEST PARALLEL WITH THE WEST LINE OF SAID LOT 4 AND 5 A DISTANCE OF 100 . 00 FEET TO THE NORTH LINE OF SAID LOT 4; EXHIBIT "A" TO GRANT DEED 526/014084-0006/3075729.3 07/02/97 Page 1 of 2 Richard & Patricia Service Las Casuelas Terraza Expan PA1B9 AGREEMENT #373C t6 mmT"I- Res 1017, 6-18-97 CITY Or PALM SPRINGS 80%2743 PALM SPRINGS,CA p?263 OWNER PARTICIPATION AGREEMENT (LAS CASUELAS TERRAZA RESTAURANT EXPANSION) BY AND AMONG THE REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, THE CITY OF PALM SPRINGS AND RICHARD M. SERVICE, JR. AND PATRICIA D. SERVICE 0531014094-000612172916.6 005/27/97 TABLE OF CONTENTS Page 1 . DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 2 1 . 1 Agency Exchange Deed . . . . . . . . . . . . . . 2 1.2 Agency Expansion Parcel Deed . . . . . . . . . . 2 1. 3 Agency Parcel . . . . . . . . . . . . . . . . . . 2 1 .4 Agency Parcel Title Report . . . . . . . . . . . 2 1 . 5 Appraisal . . . . . . . . . . . . . . . . . . . . 2 1 . 6 CC&Rs . . . . . . . . . . . . . . . . . . . . . . 2 1 . 7 Certificate of Completion . . . . . . . . . . . . 3 1 . 8 City Exchange Deed . . . . . . . . . . . . . . . 3 1 . 9 City Parcel . . . . . . . . . . . . . . . . . . . 3 1 . 10 City Title Policy . . . . . . . . . . . . . . . . 3 1 . 11 Closing and Close of Escrow . . . . . . . . . . . 3 1 . 12 Closing Date . . . . . . . . . . . . . . . . . . 3 1 . 13 Delgado Trust . . . . . . . . . . . . . . . . . 3 1 . 14 Effective Date . . . . . . . . . . . . . . . . . 3 1 . 15 Equity Difference . . . . . . . . . . . . . . . . 3 1 . 16 Escrow . . . . . . . . . . . . . . . . . . . . . 3 1 . 17 Escrow Holder. . . . . . . . . . . . . . . . . . 4 1 . 18 Exchange. . . . . . . . . . . . . . . . . . . . . 4 1 . 19 Exchange Deeds . . . . . . . . . . . . . . . . . . 4 1 . 20 Expansion Parcel . . . . . . . . . . . . . . . . 4 1 . 21 Expansion Parcel Title Report . . . . . . . . . . 4 1 . 22 In-Lieu Parking Fees . . . . . . . . . . . . . . 4 1 .23 In-Lieu Parking Note . . . . . . . . . . . . . . 4 1 .24 License Agreement . . . . . . . . . . . . . 4 1 .25 License Termination. . . . . . . . . . . . . . . 4 1 . 26 Participant Purchase Price . . . . . . . . . . . . 4 1 . 27 Participant Title Policy . . . . . . . . . . . . 5 1 .28 Project . . . . . . . . . . . . . . . . . . . . . 5 1 . 29 Public Improvements . . . . . . . . . . . . . . . 5 1.30 Repurchase Agreement . . . . . . . . . . . . . . 5 1.31 Restaurant. . . . . . . . . . . . . . . . . . . . 5 1.32 Restaurant Parcel . . . . . . . . . . . . . . . . 5 1 .33 Redevelopment Plan. . . . . . . . . . . . . . . . 5 1 .34 Schedule of Performance . . . . . . . . . . . . . 5 1 . 35 Site Plan . . . . . . . . . . . . . . . . . . . . 5 1 . 36 Title Company . . . . . . . . . . . . . . . . . . 6 2 . PURPOSE OF AGREEMENT . . . . . . . . . . . . . . . . . . . 6 3 . EXCHANGE OF THE PARCELS BETWEEN AGENCY AND CITY AND CONVEYANCE OF THE EXPANSION PARCEL TO PARTICIPANT . . . 6 3 . 1 Exchange of the Agency Parcel and City Parcel . . 6 3 .2 Agreement to Purchase and Sell . . . . . . . . . 6 3 . 3 Escrow . . . . . . . . . . . . . . . . . . . . . 6 3 .4 Establishing Values and Participant Purchase Price . . . . . . . . . . . . . . . . . . . . 7 3 . 5 Conditions to Closing . . . . 7 3 . 6 Tax Reporting and Miscellaneous Matters . . . . . 9 3 . 7 Close of Escrow; Documents and Funds Required 10 053/014084-0006/2172916.6 a05/28/97 -i- Page 3 . 8 Title Matters . . . . . . . . . . . . 12 3 .9 Condition of Expansion Parcel. . . . . . . . . . 13 3 . 10 Costs of Escrow . . . . . . . . . . . . . . . . . 15 3 . 11 Termination of Escrow . . . . . . . . . . . . . . 15 3 . 12 Responsibilities of Escrow Holder . . . . . . . . 16 3 . 13 Brokerage Commissions . . . . . . . . . . . . . . 17 4 . CONSTRUCTION OF THE PROJECT . . . . . . . . . . . . . . 17 4 . 1 Plans and Specifications . . . . . . . . . . . . 17 4 . 2 Permits . . . . . . . . . . . . . . . . . . . . . 17 4 .3 Governmental Approvals . . . . . . . . . . . . . 17 4 . 4 Costs of Construction . . . . . . . . . . . . . . 18 4 . 5 Construction Schedule . . . . . . . . . . . . . . 18 4 . 6 Right of Access . . . . . . . . . . . . . . . . . 18 4 . 7 Nondiscrimination During Construction . . . . . . 18 4 . 8 Certificate of Completion . . . . . . . . . . . . 18 4 . 9 Construction of Public Improvements . . . . . . . 19 4 . 10 Sale or Transfer of the Project . . . . . . . . . 19 4 . 11 Insurance and Indemnification . . . . . . . . . . 20 5 . USE OF THE EXPANSION PARCEL AND IN-LIEU PARKING FUND . . 22 5 . 1 No Inconsistent Uses . . . . . . . . . . . . . . 22 5 . 2 CC&Rs . . . . . . . . . . . . . . . . . . . . . . 22 5 .3 In-Lieu Parking Fund Payment . . . . . . . . . . 22 6 . ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . 23 6 . 1 Events of Default . . . . . . . . . . . . . . . . 23 6 . 2 Remedies . . . . . . . . . . . . . . . . . . . . 23 6 . 3 No Waiver . . . . . . . . . . . . . . . . . . . . . 23 6 .4 Rights and Remedies are Cumulative . . . . . . . 23 6 . 5 Right of Repurchase . . . . . . . . . . . . . . . 23 6 . 6 Attorneys' Fees . . . . . . . . . . . . . . . . . 24 7 . MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 24 7 . 1 Governing Law . . . . . . . . . . . . . . . . . . 24 7 .2 Notices . . . . . . . . . . . . . . . . . . . . . 24 7 .3 Conflicts of Interest . . . . . . . . . . . . . . 25 7 .4 Nonliability of Agency Officials and Employees 25 7 . 5 Books and Records . . . . . . . . . . . . . . . . 25 7 . 6 Modifications . . . . . . . . . . . . . . . . . . 25 7 . 7 Merger . . . . . . . . . . . . . . . . . . . . . 25 7 . 8 Assurances to Act in Good Faith . . . . . . . . . 25 7 . 9 Severability . . . . . . . . . . . . . . . . . . 26 7 . 10 Exhibits . . . . . . . . . . . . . . . . . . . . 26 ESCROW HOLDER' S ACCEPTANCE OF ESCROW INSTRUCTIONS . . . . . . 28 0531014084-000612172916.6 a05/28197 EXHIBITS "A-1" LEGAL DESCRIPTION OF THE AGENCY PARCEL "A-2" LEGAL DESCRIPTION OF CITY PARCEL "B" LEGAL DESCRIPTION OF THE EXPANSION PARCEL "C" LEGAL DESCRIPTION OF THE RESTAURANT PARCEL IT DIP DEPICTION OF PARCELS "E" DESCRIPTION OF PROJECT AND SCOPE OF DEVELOPMENT "E-1" SITE PLAN "F" DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANT OF EASEMENT "G" SCHEDULE OF PERFORMANCE "H" CERTIFICATE OF COMPLETION AND TERMINATION OF OPTION TO REPURCHASE AGREEMENT "I" AGENCY EXCHANGE DEED "J" CITY EXCHANGE DEED "K" AGENCY EXPANSION PARCEL DEED "L" TERMINATION OF LICENSE "M" OPTION TO REPURCHASE AGREEMENT "N" IN-LIEU PARKING FEES 110" (IN-LIEU PARKING) PROMISSORY NOTE 053/014084-0006/2172916.6 a05/27197 OWNER PARTICIPATION AGREEMENT THIS OWNER PARTICIPATION AGREEMENT ( "Agreement" ) is dated for reference purposes only June 10, 1997, by and among THE CITY OF PALM SPRINGS, a municipal corporation ( "City" ) , THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic ("Agency" ) , and RICHARD M. SERVICE, JR. and PATRICIA D. SERVICE (collectively "Participant" ) . R E C I T A L S• A. The Agency and Florencio H. and Mary Delgado (the "Delgados" ) entered into that certain Owner Participation Agreement dated July 20, 1977, as approved by the Agency Board pursuant to its Resolution No. 65, for the development of a 180-seat Mexican restaurant commonly known as "Las Casuelas Terraza" (the "Restaurant" ) , on that certain improved real property located at 222 South Palm Canyon Drive, Palm Springs, California (the "Restaurant Parcel" ) , as amended by a Supplemental Agreement dated December 7, 1977, and approved by the Agency Board pursuant to its Resolution No. 72, the Agency agreed to acquire a parking area adjacent to the Restaurant (the "Original Delgado OPA" ) . B. The Agency and Florencio Delgado subsequently entered into that certain License agreement dated July 28, 1982 , which was approved by the Agency Board pursuant to its Resolution No. 121 and an Amended License dated October 3, 1985, which was approved by the Agency Board pursuant to its Resolution No. 362, permitting the development of a structure over 3 . 5 feet of that certain real property owned by the Agency and which was immediately adjacent to the Restaurant Parcel (the "License Agreement") . C. The City, Agency and the Delgados further amended the Original Delgado OPA pursuant to that certain Amended Agreement No. 2 dated June ' 6, 1990, which was approved by the Agency Board pursuant to its Resolution No. 698 and by City by its Resolution No. 17154, for a 126-seat expansion to the Restaurant, the acquisition of Agency owned property and City owned property utilized for the Vehicle Parking District No. 1 by the Delgados, modification of the Vehicle Parking District No. 1, the payment of in-lieu parking fees to the City and the sale of Agency owned property to the Vehicle Parking District No. 1 . The Original Delgado OPA as amended is hereinafter referred to as the "Amended Delgado OPA. " D. Participant is a member of the Delgado family and manages the Restaurant . Participant proposes to further develop and expand the kitchen, patio and dining area of the Restaurant over certain real property adjacent to the Restaurant Parcel which adjacent real property is presently owned by the City and utilized as a portion of a City parking lot (the "Expansion Parcel") . 053/014084-000612172916.6 a05127/97 E . Agency desires to acquire the portion of the Expansion Parcel owned by the City from the City in exchange for other real property owned by the Agency and to subsequently to transfer title of Expansion Parcel to Participant for the proposed Restaurant expansion and Participant is prepared to acquire the Expansion Parcel from Agency and expand the Restaurant in accordance with the requirements of Agency as set forth herein. F. City, Agency and Participant desire to enter into this Agreement to provide for the transfer of the Expansion Parcel to Participant in exchange for certain commitments for the development and expansion of the Restaurant in accordance with the terms, conditions and provisions provided herein. NOW, THEREFORE, the parties hereto agree as follows : 1. DEFINITIONS. 1.1 _Agency Exchange Deed. The term "Agency Exchange Deed" shall mean that certain Grant Deed in substantially the form attached hereto as Exhibit "I" by which Agency as grantor will convey fee title of the Agency Parcel to the City as grantee in exchange for the City Exchange Deed. 1.2 Agency Expansion Parcel Deed. The term "Agency Expansion Parcel Deed" shall mean that certain Grant Deed in substantially the form attached hereto as Exhibit "K" by which Agency as grantor will convey fee title of the Expansion Parcel to Participant as grantee in accordance with the terms hereof . 1.3 Agency Parcel. The term "Agency Parcel" shall mean that certain real property owned by the Agency as of the Effective Date which property is located in the City of Palm Springs, State of California, more particularly described on Exhibit "A-1" attached hereto and depicted as Parcels 1B and 2 on Exhibit "D" attached hereto which will be conveyed to the City in exchange for the City Parcel . 1.4 Agency Parcel Title Report. The term "Agency Parcel Title Report" shall mean that certain Preliminary Title Report issued by Title Company, Order No. 124238-11 dated May 8, 1997 . 1.5 Appraisal. The term "Appraisal" shall mean that certain Appraisal Report prepared by R. F. Sweet & Associates dated January 8 , 1996 . 1. 6 CC&Rs. The term "CC&Rs" shall mean that certain Declaration of Covenants, Conditions and Restrictions and Grant of Easement in substantially the form attached hereto as Exhibit "F', (with such changes thereto as may be agreed by the Agency, City and Participant) which will be recorded against the Expansion Parcel and the Restaurant Parcel pursuant to Section 5 . 2 below. 053/014084-O006/2172916.6 a05/27/97 -2- 1.7 Certificate of Completion. The term "Certificate of Completion" shall mean that certain Certificate of Completion and Termination of Option to Repurchase Agreement attached hereto as Exhibit "H" which shall be recorded pursuant to Section 4 . 8 below upon completion of the Project . 1.8 City Exchange Deed. The term "City Exchange Deed" shall mean that certain Grant Deed in substantially the form attached hereto as Exhibit "J" by which City as grantor will convey fee title to the City Parcel to the Agency as grantee in exchange for the Agency Exchange Deed. 1. 9 City Parcel. The term "City Parcel" shall mean that certain real property owned by the City as of the Effective Date, which property is located in the City of Palm Springs, State of California, more particularly described on Exhibit "A-2 " attached hereto and depicted as Parcel lA on Exhibit "D" attached hereto, which will be conveyed to the Agency in exchange for the Agency Parcel . 1.10 City Title Policv. The term "City Title Policy" shall mean the CLTA title policy to be issued to the City by Title Company insuring the Agency Parcel in accordance with Section 3 . 8 . 2 . 1.11 Closing and Close of Escrow. The terms "Closing" and "Close of Escrow" shall mean the date the City Exchange Deed, the Agency Exchange Deed, the Agency Expansion Parcel Deed, the Repurchase Agreement and the CC&Rs are recorded in the Official Records of Riverside County, California. 1.12 Closing Date. The term "Closing Date" shall mean the date by which Close of Escrow must occur as set forth in the Schedule of Performance. 1. 13 Delgado Trust. The term "Delgado Trust" shall mean Mary T. Delgado and Wells Fargo Bank, N.A. , as Co-Trustees of the Florencio H. Delgado and Mary T. Delgado Revocable Inter Vivos Trust UTD June 26, 1990, which owns the Restaurant Parcel as of the Effective Date . 1.14 Effective Date. The term "Effective Date" shall mean the date that this Agreement has been approved by both the City Council and the Agency Board at a public meeting as indicated by their signatures below. 1. 15 Equity Difference. The term "Equity Difference" shall mean SIXTY-TWO THOUSAND FIVE HUNDRED FIFTY-FIVE THOUSAND DOLLARS ($62 , 550 . 00) , which is the difference in values of the City Parcel and the Agency Parcel to be paid at the Closing to the City. 1.16 Escrow. The term "Escrow" shall mean the escrow held by Escrow Holder for the Exchange and for the sale of the Expansion Parcel to Participant . 053/014084-0006/2172916.6 a05/27/97 -3- 1.17 Escrow Holder. The term "Escrow Holder" shall mean Liberty Escrow, 901 E. Tahquitz Canyon Way, Suite0401, Palm Springs, California 92663 , which shall serve as the escrow holder for the Exchange and the conveyance of the Expansion Parcel to Participant . 1.18 Exchange. The term "Exchange" shall mean the conveyance of the Agency Parcel by the Agency to the City in exchange for the conveyance of the City Parcel by the City to the Agency. 1.19 Exchange Deeds. The term "Exchange Deeds" shall mean the Agency Exchange Deed and the City Exchange Deed. 1.20 Expansion Parcel. The term "Expansion Parcel" shall mean that certain real property located in the City of Palm Springs, State of California, as more particularly described on Exhibit "B" attached hereto and depicted as Parcels lA and 1B on Exhibit "D" attached hereto, a portion of which (depicted as Parcel lA and defined herein as the City Parcel) is owned by the City as of the Effective Date and which will be exchanged for the Agency Parcel as set forth herein and then the entire Expansion Parcel will be subsequently conveyed by the Agency to the Participant pursuant to the terms set forth herein. 1 .21 Expansion Parcel Title Report. The term "Expansion Parcel Title Report" shall mean that certain Preliminary Title Report issued by Title Company, Order No. 124237-11 dated May 8, 1997 . 1.22 In-Lieu Parking Fees. The term "In-Lieu Parking Fees" shall mean the parking in-lieu fees required to be paid pursuant to Section 5 . 3 and Exhibit "N" . 1.23 In-Lieu Parking Note. The term "In-Lieu Parking Note" shall mean that certain Promissory Note executed by Participant in favor of City for the balance of the In-Lieu Parking Fees as provided in Section 5 . 3 and Exhibit "N" and in substantially the form attached hereto as Exhibit "O" . 1.24 License Agreement. The term "License Agreement" shall mean that certain License Agreement between the Agency and Florencio Delgado as defined in Recital B above. 1.25 License Termination. The term "License Termination" shall mean that certain Termination of License between the Agency and the Delgado Trust in the form attached hereto as Exhibit "L" which shall be effective upon the Close of Escrow. 1 .26 Participant Purchase Price. The term "Participant Purchase Price" shall mean that amount agreed upon as the payment to be made by Participant to the Agency for the purchase of the Expansion Parcel as set forth in Section 3 .4 . 2 . 053/014084-0006/2172916.6 a05/27/97 -4- 1.27 Participant Title Policy. The term "Participant Title Policy" shall mean the CLTA title policy to be issued by the Title Company to Participant insuring the Expansion Parcel in accordance with Section 3 . 8 . 1 . 1.28 Project. The term "Project" shall mean the Restaurant expansion project to be constructed by the Participant pursuant to this Agreement upon the Restaurant Parcel and the Expansion Parcel as more particularly described on "Description of Project and Scope of Development" attached hereto as Exhibit "E" . 1.29 Public Improvements. The term "Public Improvements" shall mean all on-site and off-site public improvements, if any, required to be constructed as part of the development of the Project pursuant to all applicable development requirements in the City' s Municipal Code. 1.30 Repurchase Agreement. The term "Repurchase Agreement" shall mean that certain Option to Repurchase Agreement in the form attached hereto as Exhibit "M" whereby the Agency has the option to repurchase the Expansion Parcel in the event the construction on the Restaurant expansion has not been commenced within the time periods specified herein. 1.31 Restaurant. The term "Restaurant" shall mean the Las Casuelas Terraza Restaurant located on the Restaurant Parcel as of the Effective Date and which business will be expanded onto the Expansion Parcel as set forth herein. 1.32 Restaurant Parcel. The term "Restaurant Parcel" shall mean that certain real property owned by the Delgado Trust, which property is located in the City of Palm Springs, State of California, more particularly described on Exhibit "C" attached hereto upon which the Restaurant is located as of the Effective Date and depicted on Exhibit "D" attached hereto. 1.33 Redevelopment Plan. The term "Redevelopment Plan" shall mean the Redevelopment Plan for the Palm Springs Central Business District Redevelopment Project Area ( "Project Area" ) which was adopted by Ordinance Number 952 of the City Council of City on July 11, 1973 , as amended from time to time. A copy of the Redevelopment Plan is on file in the office of the City Clerk of the City. The Redevelopment Plan is incorporated herein by this reference and made a part hereof as though fully set forth herein. 1.34 Schedule of Performance. The term "Schedule of Performance" shall mean that certain Schedule of Performance attached hereto as Exhibit "G" . 1.35 Site Plan. The term "Site Plan" shall mean the Site Plan attached hereto as Exhibit "E-111 . 053/014084-0006/2172916.6 a05/27/97 -5- 1.36 Title Company. The term "Title Company" shall mean Stewart Title of California, Inc . , 3403 Tenth Street, Suite 400, Riverside, California 92501 . 2 . PURPOSE OF AGREEMENT. The purpose of this Agreement is to effectuate the Redevelopment Plan for the Project Area by improving the Expansion Parcel within the Project Area. The development of the Project on the Expansion Parcel within the Project Area and the fulfillment generally of this Agreement are in the best interests of the City and the welfare of its residents and are in accordance with the public purposes and provisions of applicable federal, state, and local laws and regulations, under which the Project has been undertaken. 3 . EXCHANGE OF THE PARCELS BETWEEN AGENCY AND CITY AND CONVEYANCE OF THE EXPANSION PARCEL TO PARTICIPANT. 3 .1 Exchange of the Agency Parcel and City Parcel. City hereby agrees to convey fee title to the City Parcel to Agency in exchange for the conveyance of fee title to the Agency Parcel by Agency to the City, to which the Agency hereby agrees (the "Exchange" ) . The Equity Difference shall be paid to the City through Escrow at the Closing concurrently with the consummation of the Exchange . 3 .2 Agreement to Purchase and Sell. Concurrently with the Exchange, Participant hereby agrees to purchase the Expansion Parcel from Agency and Agency agrees to sell the Expansion Parcel to Participant upon the terms and conditions hereinafter set forth. 3 .3 Escrow. Escrow shall be opened with Escrow Holder as soon as possible after the execution of this Agreement by Participant, City and Agency. This Agreement shall constitute the joint escrow instructions of Agency, City and Participant, and a duplicate original of this Agreement shall be delivered to the Escrow Holder upon the opening of Escrow. Escrow Holder is hereby empowered to act under these instructions . Agency, City and Participant shall promptly execute, and deliver to the Escrow Holder such additional escrow instructions consistent with the terms herein as shall be reasonably necessary. No provision of any additional escrow instructions shall modify this document and in the event of any conflict between the provisions of this Agreement and such additional escrow instructions, the provisions of this Agreement shall prevail . 053/014084-0006/2172916.6 a05/27/97 -6- 3 .4 Establishing Values and Participant Purchase Price. 3 .4 .1 Appraisal. (a) Deposit. Prior to the date of this Agreement, Participant has deposited with Agency an amount necessary to pay for the Appraisal, for necessary surveys and legal descriptions . The amount deposited is adequate for these purposes . (b) Appraisal Valuation. Based on the Appraisal, the fair market value of the City Parcel is ONE HUNDRED ONE THOUSAND SEVEN HUNDRED NINETY DOLLARS ($101, 790 . 00) and the fair market value of the Agency Parcel is THIRTY-NINE THOUSAND TWO HUNDRED FIFTY DOLLARS ($39, 250 . 00) . 3 .4 .2 EEcuitV Difference and Participant Purchase Price. The Participant Purchase Price shall be ONE HUNDRED SEVEN THOUSAND FIVE HUNDRED FORTY DOLLARS ($107, 540 . 00) , the fair market value based on the Appraisal for the Expansion Parcel, and said amount shall be paid by Participant to the Agency through Escrow as of the Closing. The Equity Difference between the value of the City Parcel and the value of the Agency Parcel of SIXTY-TWO THOUSAND FIVE HUNDRED FORTY DOLLARS ($62 , 540 . 00) shall be paid by Agency to City through Escrow as of the Closing from the Participant Purchase Price. 3 .5 Conditions to Closing. 3 .5 .1 Participant' s Conditions to Closing. Partici- pant' s obligation to close the Escrow, in addition to any other conditions set forth herein in favor of Participant, shall, be conditioned upon the satisfaction, or written waiver by Participant, of each and all of the following conditions (collectively the "Participant' s Conditions" ) within the time provided in the Schedule of Performance : (a) Agency shall have deposited into Escrow a certificate ( "FIRPTA Certificate") in such form as may be required by the Internal Revenue Service pursuant to Section 1445 of the Internal Revenue Code and a California Form 590-RE ( "Residency Certificate" ) pursuant to Section 18805 of the California Revenue and Taxation Code . (b) Agency shall have executed and deposited into Escrow the Agency Exchange Deed, the Agency Expansion Parcel Deed, the Repurchase Agreement, the CC&Rs, the License Termination, a Certificate of Acceptance for the City Exchange Deed and all other funds and documents required under this Agreement . (c) City shall have executed and deposited into Escrow the City Exchange Deed, a Certificate of Acceptance for the Agency Exchange Deed, the CC&Rs and all other funds and documents required under this Agreement . 053/014084-000612172916.6 a05/27/97 -7- (d) The Title Company shall have committed to deliver the Participant Title Policy in accordance with Section 3 . 8 . 1 . Any waiver of the foregoing conditions must be express and in writing. In the event that the foregoing conditions have not been satisfied within the time provided therefor in the Schedule of Performance or herein, either party may terminate this Agreement by delivering a written notice in accordance with Section 3 . 11, subject to any cure rights provided therein. 3 .5 .2 Agency' s Conditions to Closing. Agency' s obligation to sell the Expansion Parcel to Participant and to close the Escrow shall, in addition to any other conditions set forth herein in favor of Agency, shall be conditional and contingent upon the satisfaction, or waiver by Agency, of each and all of the following conditions (collectively the "Agency' s Conditions" ) within the time provided in the Schedule of Performance : (a) Participant shall not have made or attempted to make a Transfer in violation of Section 4 . 10 . (b) Participant shall have executed and deposited into Escrow the Participant Purchase Price, the Repurchase Agreement, the CC&Rs executed by Participant and the Delgado Trust, the License Termination executed by the Delgado Trust and all other funds and documents required under this Agreement . . (c) Participant shall have timely performed each and every obligation of Participant hereunder. (d) The City shall have executed and deposited the City Exchange Deed, a Certificate of Acceptance for the Agency Exchange Deed, the CC&Rs and all other documents and funds required to be deposited by City under this Agreement. (e) Agency shall have approved the final building plans for the Project as provided in Section 4 .1 . (f) Participant has obtained all governmental permits and approvals necessary to commence construction of the Project as more particularly set forth in Section 4 . 3 . (g) Any required notices and/or approvals relating to the Property being within Vehicle Parking District #1 have been given and/or obtained. Any waiver of the foregoing conditions must be express and in writing. In the event that Participant defaults in the performance of its obligations hereunder, or the Agency' s foregoing conditions are not satisfied, Agency may terminate this Agreement by delivering a written notice in accordance with Section 3 . 11, subject to any cure rights provided therein. 053/014094-0006/2172916.6 a05/27/97 -8- 3 .5.3 Citv' s Conditions to Closing. The City' s obligation to exchange the City Parcel for the Agency Parcel and to close the Escrow shall, in addition to any other conditions set forth herein in favor of City, shall be conditional and contingent upon the satisfaction, or waiver by City, of each and all of the following conditions (collectively the "City' s Conditions" ) within the time provided in the Schedule of Performance : (a) The Title Company shall have committed to deliver the City Title Policy in accordance with Section 3 . 8 . 2 . (b) Participant shall not have made or attempted to make a Transfer in violation of Section 4 . 10 . (c) Participant shall have deposited into Escrow the Participant Purchase Price, the CC&Rs executed by Participant and the Delgado Trust and all other funds and documents required under this Agreement. (d) Participant and Agency shall have timely performed each and every obligation of Participant hereunder. (e) The Agency shall have deposited the Agency Exchange Deed, a Certificate of Acceptance for the City Exchange Deed, and all other documents and funds as required by this Agreement . (f) Participant shall have obtained all govern- mental permits and approvals necessary to commence con- struction of the Project as more particularly set forth in Section 4 .3 . (g) Any required notices and/or approvals relating to the Property being within Vehicle Parking District #1 have been given and/or obtained. Any waiver of the foregoing conditions must be express and in writing. In the event that Participant defaults in the performance of its obligations hereunder, or the Agency' s foregoing conditions are not satisfied, Agency may terminate this Agreement by delivering a written notice in accordance with Section 3 . 11, subject to any cure rights provided therein. 3 . 6 Tax Reporting and Miscellaneous Matters. Prior to the Closing Date, Participant, City and Agency shall execute and deliver a certificate ( "Taxpayer ID Certificate") in such form as may be required by the IRS pursuant to Section 6045 of the Internal Revenue Code, or the regulations issued pursuant thereto, certifying as to the description of the Expansion Parcel, date of Closing, gross price, and taxpayer identification number for Participant and Agency. Prior to the Closing, Participant and Agency shall cause to be delivered to the Escrow Holder such other items, instruments and documents, and the parties shall take such 053/014084-0006/2172916.6 a05/27/97 -9- 0 further actions, as may be necessary or desirable in order to complete the Close of Escrow. 3 .7 Close of Escrow; Documents and Funds Required. 3 .7 .1 Closing. Escrow shall close upon satisfaction of all conditions to the Closing contained herein, but not later than the Closing Date. On the Closing, the Exchange Deeds, the Agency Expansion Parcel Deed, the Repurchase Agreement, and the CC&Rs shall be filed for record (in that order) in the Office of the County Recorder of Riverside County, California. The Closing Date shall occur on or before the date established therefor in the Schedule of Performance, unless extended by the mutual written agreement of Agency, City and Participant . 3 .7 .2 Escrow Holder to Advise of Costs. On or before the date set forth in the Schedule of Performance, the Escrow Holder shall advise the Agency, City and the Participant in writing of the fees, charges, and costs necessary to close the Escrow, and of any documents which have not been provided by said party and which must be deposited in Escrow to permit timely Closing. 3 .7 .3 Deposits By Agency Prior to Closing. On or before 1 : 00 p.m. on the last business day preceding the Closing Date, Agency shall execute, acknowledge and deposit into Escrow (i) the Agency Exchange Deed; (ii) Agency Expansion Parcel Deed; (iii) the CC&Rs; (iv) the Repurchase Agreement; (v) two (2) copies of the License Termination; (vi) the FIRPTA Certificate; (vii) a Certificate of Acceptance for the City Exchange Deed; and (viii) payment to Escrow Holder of Agency' s share of costs as determined by the Escrow Holder pursuant to Section 3 . 10 . 3 .7 .4 Deposits By City Prior to Closing. On or before 1 : 00 p.m. on the last business day preceding the Closing Date, City shall execute, acknowledge and deposit into Escrow (i) the City Exchange Deed; (ii) a Certificate of Acceptance for the Agency Exchange Deed; (iii) the CC&Rs; and (iv) payment to Escrow Holder of City' s share of costs as determined by the Escrow Holder pursuant to Section 3 . 10 . 3 .7 . 5 Deposits By Participant Prior to Closing. On or before 1 : 00 p.m. on the last business day preceding the Closing Date, Participant shall execute and acknowledge as may be required and deposit into Escrow: (i) the Participant Purchase Price; (ii) the CC&Rs executed by both Participant and the Delgado Trust; (iii) two (2) copies of the License Termination; (iv) the Repurchase Agreement; and (v) payment to Escrow Holder of Participant' s share of costs, if any, as determined by the Escrow Holder pursuant to Section 3 . 10 . 053/014084-0006/2172916.6 a05/27/97 -1 0- 3 .7 .6 Completion, Recordation and Disbursement of Documents and Funds. (a) Upon the completion by the Agency, City and Participant of the deliveries and actions specified in these escrow instructions precedent to Closing, the Escrow Holder shall be authorized to pay any documentary transfer taxes and recording fees, if required by law, and thereafter cause to be recorded in the Official Records of Riverside County, California, the following documents in the order specified: (i) the Agency Exchange Deed, (ii) the City Exchange Deed, (iii) the Agency Expansion Parcel Deed, (iv) the Repurchase Agreement, (v) the CC&Rs, and (vi) any other appropriate instruments delivered through this Escrow. Escrow shall complete the date of Close of Escrow as the Termination Date in Paragraph 1 of the License Termination. (b) Within two (2) business days following recordation of the documents described in Section 3 . 7 . 6 (a) above, Escrow Holder shall deliver documents and funds to the parties at their respective addresses set forth in Section 7 . 2, as follows : (i) To Participant : Escrow Holder' s closing statements, an original of the FIRPTA Certificate and the Residency Certificate deposited by Agency pursuant to Section 3 . 5 . 1 (a) , conformed copies of all recorded documents (the original of the Agency Expansion Parcel Deed to be delivered to Participant from the recorder' s office) , a duplicate original of the License Termination, a certified copy of any other documents deposited in the Escrow, the original Participant Title Policy (which may be delivered within two weeks following Close of Escrow) , and any excess funds deposited in Escrow by Participant which are not required in Closing the Escrow. (ii) To the City: Escrow Holder' s closing statements, conformed copies of all recorded documents (the original of the Agency Exchange Deed to be delivered to the City from the recorder' s office) , a certified copy of any other documents deposited in the Escrow, the original City Title Policy (which may be delivered within two weeks following Close of Escrow) , and the Equity Difference, less any costs chargeable to the City pursuant to this Agreement . (iii) To the Agency: Escrow Holder' s closing statements, conformed copies of all recorded documents (the original of the City Exchange Deed to be delivered to the Agency from the recorder' s office) , a certified copy of any other documents deposited in the Escrow, and the Participant' s Purchase Price, less the Equity Difference and less any costs chargeable to the Agency pursuant to this Agreement . 053/014094-0006/2172916.6 a05/27/97 (iv) To Lori Sarner Smith, Esq. and to James M. Schlecht, Esq. : Escrow Holder' s closing statements, conformed copies of all recorded documents, certified copies of all other documents deposited in the Escrow, and copies of the City Title Policy and the Participant Title Policy (which may be delivered within two weeks following Close of Escrow) . 3 .8 Title Matters. 3 . 8.1 Participant Title Policy. (a) Condition of Title. Upon the Closing, Agency shall convey fee title to the Expansion Parcel to Participant subject only to: (i) the Redevelopment Plan; (ii) this Agreement; (iii) the Agency Expansion Parcel Deed; (iv) covenants, conditions and restrictions set forth in the CC&Rs; (v) the Repurchase Agreement; (vi) nondelinquent real property taxes and assessments; (vii) necessary public and quasi-public utility easements; (viii) public street easements; (ix) Exceptions 1, 2 , 3 , 4 and 5 as shown in the Expansion Parcel Title Report; and (x) exceptions created or consented to by Participant (collectively, the "Permitted Participant Title Exceptions") . (b) Approval of Title Exceptions. In the event of any change in the Expansion Parcel Title Report, Agency shall deliver to Participant an updated or supplemental preliminary title report issued by the Title Company, including copies of all documents referenced therein. Within ten (10) days thereafter, but not later than five (5) days prior to the Closing Date, Participant shall deliver to Agency and City and their counsel written notice specifying in detail any exception (other than the Permitted Participant Title Exceptions) disapproved and the reason therefor. Within five (5) business days thereafter, but no later than the Closing Date, City shall deliver to Agency, and Agency shall deliver to Participant, written notice as to whether City and Agency will or will not cause the disapproved exceptions to be removed or to be endorsed with endorsements providing reasonable assurance with respect to the disapproved exceptions . If Agency elects not to cure the disapproved exceptions, Participant may terminate this Agreement prior to Close of Escrow but without any liability of City or Agency to Participant . If Participant does not terminate this Agreement prior to Close of Escrow pursuant to the foregoing, Participant shall be deemed to have agreed to accept all such matters as additional Permitted Participant Title Exceptions . If Agency so elects to cure the disapproved exceptions, Agency shall do so on or before the Closing Date . (c) Requirements of Participant Title Policy. Upon the Closing, the Title Company shall furnish Participant with a CLTA owner' s policy of title insurance in an amount equal to the Participant Purchase Price insuring title of the Expansion Parcel vested in Participant subject only to the Permitted Participant Title Exceptions (the "Participant Title Policy") . Agency shall 053/014084-0006/2172916.6 a05/27/97 -12- pay the premium charged by Title Company attributable to the Participant Title Policy. Participant shall be responsible for any title policy insuring the interest of any lender (s) or grantor (s) of funds for the Project . 3 . 8 .2 City Title Policy. (a) Condition of Title. Upon the Closing, Agency shall convey fee title to the Agency Parcel to City subject only to: (i) the Redevelopment Plan; (ii) this Agreement; (iii) necessary public and quasi-public utility easements; (iv) public street easements; (v) Exceptions 1, 2 and 3 of the Agency Parcel Title Report; and (vi) exceptions created or consented to by City (collectively, the "Permitted City Title Exceptions" ) . (b) Approval of Title Exceptions. In the event of any change to the Agency Parcel Title Report, Agency shall deliver to City an updated or supplemental preliminary title report issued by the Title Company to City, including copies of all documents referenced therein. Within ten (10) days thereafter, but not later than five (5) days prior to the Closing Date, City shall deliver to Agency written notice specifying in detail any exception (other than the Permitted City Title Exceptions) disapproved and the reason therefor. Within five (5) business days thereafter, but no later than the Closing Date, Agency shall deliver written notice to City as to whether Agency will or will not cause the disapproved exceptions to be removed or to be endorsed with endorsements providing reasonable assurance with respect to the disapproved exceptions . If Agency elects not to cure the disapproved exceptions, City may terminate this Agreement but without any liability of City or Agency to Participant . If City does not terminate this Agreement prior to Close of Escrow, City shall be deemed to have agreed to have accepted all such matters as additional Permitted City Title Exceptions . If Agency so elects to cure the disapproved exceptions, Agency shall do so on or before the Closing Date . (c) Requirements of City Title Policv. Upon the Closing, the Title Company shall furnish City with a CLTA owner' s policy of title insurance in an amount equal to the value of the Agency Parcel as established by the Appraisal insuring title of the Expansion Parcel vested in City subject only to the Permitted City Title Exceptions (the "City Title Policy" ) . Agency shall pay the premium charged by the Title Company attributable to the City Title Policy. 3 .9 Condition of Expansion Parcel. 3 . 9 .1 Participant Approval of Expansion Parcel. Participant has approved the physical condition of the Expansion Parcel, including its soil and environmental condition, based upon Participant' s inspection of the Expansion Parcel and the records of Agency and the City. Participant may hire the consultant or consultants of its choice, at Participant' s sole cost and expense, 053/014084-0006/2172916.6 a05/27/97 -1 3- to review any and all aspects of the soils, environmental, geotechnical and other physical conditions of the Expansion Parcel, including all information, reports and records of the Agency and City pertaining to the physical condition of the Expansion Parcel . Participant and its consultants shall also have the right to make any inspection of the Expansion Parcel and to conduct any and all tests it deems appropriate with respect to its investigation and inspection of the Expansion Parcel pursuant to Section 3 . 9 . 3 . Participant shall notify Agency and City at least forty-eight (48) hours in advance of any entry onto the Expansion Parcel pursuant to Section 3 . 9 . 3 for such investigation or testing purposes, and in the event Participant or its consultant desires to conduct tests involving the drilling, trenching or boring of the soils located on the Expansion Parcel, Participant' s consultant shall work with and cooperate with the Agency and City to assure that all such tests are conducted in a manner consistent with the highest industry standards and in a manner that will not damage or injure the Expansion Parcel . Participant has, from its inspection and investigation of the Expansion Parcel, and its investigation of all records and reports concerning the physical condition of the Expansion Parcel, determined that the soils, environmental, geotechnical and other physical conditions of the Expansion Parcel are in accordance with the standards contained in this Agreement and suitable for the development and construction of the Project on the Expansion Parcel . Participant acknowledges that it has not discovered any condition on the Expansion Parcel, with regard to the soil, geology, suitability or other physical condition for Participant' s intended purpose, or other matter which might prevent it from performing all of its obligations under this Agreement, and Participant' s condition to purchase the Expansion Parcel set forth herein shall conclusively be deemed satisfied. 3 . 9 .2 Disclaimer of Warranties . As of the Closing, Participant shall take the Expansion Parcel in its "AS-IS" condition and shall be responsible for any defects in the Expansion Parcel, whether patent or latent, including, without limitation, the physical, environmental and geotechnical condition of the Expansion Parcel, and the existence of any contamination, Hazardous Materials, vaults, debris, pipelines, abandoned wells or other structures located on, under or about the Expansion Parcel . Neither Agency nor City makes any representation or warranty concerning the physical, environmental, geotechnical or other condition of the Expansion Parcel, the suitability of the Expansion Parcel for the Project, or the present use of the Expansion Parcel, and specifically disclaims all representations or warranties of any nature concerning the Expansion Parcel made by it, the City and their respective agents and representatives . The foregoing disclaimer includes, without limitation, topography, climate air, water rights, utilities, present and future zoning, soil, subsoil, existence of Hazardous Materials or similar substances, the purpose for which the Expansion Parcel is suited, or drainage. Neither the Agency nor the City shall be responsible for grading the Expansion Parcel and makes no representation nor warranty concerning the 053/014084-000612172916.6 a05/27/97 -14- compaction of soil upon the Expansion Parcel, nor of the suitability of the soil for construction. 3 . 9 .3 Right to Enter Expansion Parcel and Indemnification. Participant, its employees, agents or contractors have the right to enter onto the Expansion Parcel to conduct soils, engineering, or other tests and studies, to perform preliminary work or for any other purposes to carry out the terms of this Agreement . Participant shall indemnify, defend and hold Agency and City harmless from and against any claims, injuries or damages arising out of or involving any such entry or activity as provided in Section 4 . 11 . Any such activity shall be undertaken only after securing any necessary permits from the appropriate governmental agencies and providing Agency and City with certificates of insurance evidencing the coverages required in Section 4 . 11 . 3 .10 Costs of Escrow. 3 .10 .1 Allocation of Costs . Upon the Closing, the Escrow Holder is authorized to allocate costs as follows : Agency shall pay (i) the documentary transfer tax; (ii) the recording fees for the Exchange Deeds, the Agency Expansion Parcel Deed, the Repurchase Agreement, and the CC&Rs; and (iii) the premium for both the Participant Title Policy and the City Title Policy. Partic- ipant shall pay the recording charges for any other financing documents . Agency shall pay all Escrow and similar fees provided that if Participant defaults under this Agreement, Participant shall pay the Escrow fees and charges . Each party shall pay its own attorneys' fees . Any usual and customary fees or costs not allocated herein shall be paid by the Agency. 3 .10 .2 Prorations and Adjustments . General and special real property taxes and assessments on the Expansion Parcel shall be prorated by the Escrow Holder as of the date of Closing with the Participant responsible for those after Closing. If the actual taxes are not known at the date of Closing, the proration shall be based upon the most current tax figures . When the actual taxes for the year of Closing become known, Participant and Agency shall, within thirty (30) days thereafter, prorate the taxes in cash between the parties . 3 .11 Termination of Escrow. 3 .11.1 Termination. This Agreement and the Escrow may be terminated by demand of any party who then shall have fully performed its obligations hereunder if : (i) the Participant' s Conditions, the Agency' s Conditions, and/or the City' s Conditions, as the case may be, have not occurred or have not been approved, disapproved, or waived as the case may be, by the approving party by the date established herein for the occurrence of such condition, including any grace period pursuant to this Section; (ii) Escrow is not in a position to close by the Closing Date, as the same may be extended; or (iii) any party is in breach of the terms and conditions of this Agreement . In the event of the 053/014084-0006/2172916.6 a05/27/97 -1 5- foregoing, the terminating party may demand, in writing, return of its money, papers, or documents from the Escrow Holder if Escrow has been opened, and shall deliver a copy of such demand to the non-terminating parties . No demand shall be recognized until fifteen (15) days after such demand has been delivered to the non- terminating parties, and no objections are raised in writing to the terminating party and the Escrow Holder by the non-terminating parties within the fifteen (15) day period. In the event of such objections, the opportunity to cure shall be provided as stated below in subsection (b) of this Section. In addition, the Escrow Holder is authorized to hold all money, papers, and documents until instructed in writing by Participant, City and Agency or, upon failure thereof, by a court of competent jurisdiction. If no such demands are made, the Closing shall occur as soon as possible and neither party shall have any further liability to the other. 3 .11.2 Opportunity to Cure. In the event any of the Participant' s Conditions, Agency' s Conditions or City' s Conditions are not satisfied, or waived by the party with the power to approve said conditions (the "approving party" ) , then such party shall explain in writing to the other parties the reason for the disapproval or non-satisfaction. Thereafter, the party who has the burden to satisfy such condition (s) shall have an additional thirty (30) days to satisfy any such condition (s) and only if such condition (s) still cannot be satisfied may the approving party terminate this Agreement or the Escrow. In the event the Escrow is not in a condition to close because of a default by any party, and the performing parties has made demand as stated in subsection (a) , then upon the non-performing party' s delivering its objection to Escrow Holder and the performing parties within the above fifteen (15) day period, the non-performing party shall have the right to cure the default in accordance with and in the time provided in Section 6 . 2 . 3 .12 Responsibilities of Escrow Holder. 3 .12 .1 Deposit of Funds. All funds received in Escrow shall be deposited by the Escrow Holder in an escrow account with any state or national bank doing business in the State of California. 3 .12 .2 Notices. All communications from the Escrow Holder shall be directed to the addresses and in the manner provided in Section 7 . 2 of this Agreement for notices, demands and communications among Agency, City and Participant . 3 .12 .3 Sufficiency of Documents. The Escrow Holder is not to be concerned with the sufficiency, validity, correctness of form, or content of any document prepared outside of Escrow and delivered to Escrow. The sole duty of the Escrow Holder is to accept such documents and follow Participant' s, Agency' s and City' s instructions for their use . 0531014084-0006/2172916.6 a05127/97 -1 6- 3 .12 .4 Exculpation of Escrow Holder. In no event shall the Escrow Holder be liable for the failure of any of the conditions to Closing, or for forgeries or false impersonation, unless such liability or damage is the result of negligence or willful misconduct by the Escrow Holder. 3 .12 .5 Responsibilities in the Event of Contro- versies. If any controversy documented in writing arises among Participant, City and Agency or with any third party with respect to the subject matter of the Escrow or its terms or conditions, the Escrow Holder shall not be required to determine the same, to return any money, papers or documents, or take any action regarding the Expansion Parcel, the City Parcel and/or the Agency Parcel prior to settlement of the controversy by a final decision of a court of competent jurisdiction or written agreement of the parties to the controversy. The Escrow Holder shall be responsible for timely notifying Participant, City and Agency of the controversy. In the event of such a controversy, the Escrow Holder shall not be liable for interest or damage costs resulting from failure to timely close the Escrow or take any other action unless such controversy has been caused by the failure of the Escrow Holder to perform its responsibilities hereunder. 3 .13 Brokerage Commissions. Each party represents and warrants to the others 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 . Agency, City and Participant agree to indemnify and hold of the other parties 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. 4 . CONSTRUCTION OF THE PROJECT. 4.1 Plans and Specifications . The Participant shall con- struct the Project upon the Expansion Parcel in accordance with construction drawings, working specifications and related documents that have been submitted to and approved by the Agency and the City in advance and in writing. The Site Plan shall be approved by Agency as of the Effective Date . 4 .2 Permits. Before commencement of construction of the Project, Participant shall obtain any and all permits and approvals which may be required by the City or any other governmental agency with jurisdiction. 4 .3 Governmental Approvals. Notwithstanding anything herein contained to the contrary, it is expressly understood by Participant that the Agency makes no representations or warranties with respect to the approvals required by any other governmental entity or with respect to approvals hereinafter required from the City or the Agency. The Agency reserves full police power 053/014084-0006/2172916.6 205/27/97 -1 7- authority over the Project and the Participant 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 . 4 .4 Costs of Construction. The costs of constructing the Project shall be borne by the Participant . 4 .5 Construction Schedule. Participant shall submit the construction drawings, working specifications and related documents for approval by the Agency on or before the date set forth in the Schedule of Performance . Construction of the Project shall commence on or before the date set forth in the Schedule of Performance and shall be completed within the time set forth in the Schedule of Performance except as mutually agreed in writing by Participant and Agency. The Project shall be deemed complete upon the issuance of a Certificate of Completion as provided in Section 4 . 8 . 4 . 6 Right of Access. Representatives of Agency and City shall have the reasonable right of access to the Expansion Parcel during the period of construction for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed. 4 .7 Nondiscrimination Durina Construction. Participant, for itself and its successors and assigns, agrees that during the construction of the Project, Participant will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, marital status, ancestry or national origin. 4 . 8 Certificate of Completion. Upon written request by Participant, and upon satisfactory completion of the Project, Agency shall issue to Participant a Certificate of Completion. The Certificate of Completion shall be, and shall so state, a conclusive determination of satisfactory completion of the Project required by this Agreement, and a full compliance with the terms of this Agreement relating to commencement and completion of the Project . After the date Participant is entitled to issuance of the Certificate of Completion, and notwithstanding any other provision of this Agreement to the contrary, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Expansion Parcel shall not (because of any such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement, except that such party shall be bound by the covenants that survive the issuance of the Certificate of Completion, as set forth in the CC&RS. The Certificate of Completion is not a notice of completion as referred to in California Civil Code Section 3093 . 053/014084-0006/2172916.6 R05/27/97 -1 8- 4 .9 Construction of Public Improvements . Participant shall construct the Public Improvements, if any, at Participant' s sole cost and expense . 4.10 Sale or Transfer of the Project. The Participant covenants that Participant shall not transfer the Expansion Parcel or any of its interests therein except as provided in this Section 4 . 10 . 4.10 .1 Transfer Defined. As used in this Section, the term "Transfer" shall include any assignment, hypothecation, mortgage, pledge, conveyance, or encumbrance of this Agreement, the Expansion Parcel, or the improvements thereon. A Transfer shall also include the transfer to any person or group of persons acting in concert of more than twenty-five percent (250) (in the aggregate) of the present ownership and/or control of any person or entity constituting Participant or its general partners, taking all transfers into account on a cumulative basis, except transfers of such ownership or control interest between members of the same immediate family, or transfers to a trust, testamentary or otherwise, in which the beneficiaries are limited to members of the transferor' s immediate family, or among the entities constituting Participant or its general partners or their respective shareholders . In the event any entity constituting Participant, its successor or the constituent partners of Participant or any successor of Participant, is a corporation or trust, such transfer shall refer to the transfer of the issued and outstanding capital stock of such corporation, of beneficial interests of such trust; in the event that any entity constituting Participant, its successor or the constituent partners of Participant or any successor of Participant is a limited or general partnership, such transfer shall refer to the transfer of more than twenty-five percent (250) of such limited or general partnership interest; in the event that any entity constituting Participant, its successor or the constituent partners of Participant or any successor of Participant is a joint venture, such transfer shall refer to the transfer of more than twenty-five percent (250) of the ownership and/or control of any such joint venture partner, taking all transfers into account on a cumulative basis . 4 .10 .2 Agency Approval of Transfer Required. Prior to recordation of the Certificate of Completion, Participant shall not Transfer this Agreement or any of Participant' s rights hereunder, or any interest in the Expansion Parcel or in the improvements thereon, directly or indirectly, voluntarily or by operation of law, except as provided below, without the prior written approval of Agency, and any such purported Transfer without such approval shall be null and void. In considering whether it will grant approval to any Transfer by Participant before the recordation of the Certificate of Completion, which Transfer requires Agency approval, Agency shall consider factors such as (i) whether the completion of the Project is jeopardized; (ii) the financial strength and capability of the proposed transferee to perform Participant' s obligations hereunder; (iii) the proposed 053/014084-0006/2172916.6 a05/27/97 -1 9- transferee' s experience and expertise in the planning, financing, and rehabilitation of similar projects; and (iv) whether the Transfer is for the purpose of financing the purchase or rehabilitation of the Expansion Parcel . A Transfer for financing purposes shall not be approved by the Agency if the financing exceeds eighty-five percent (850) of the acquisition and rehabilitation costs of the Expansion Parcel or if the loan documents do not state that the loan proceeds must be used for the construction or development of the Project . The restrictions on Transfer set forth in this Agreement shall terminate upon issuance by Agency of the Certificate of Completion. In the absence of specific written agreement by Agency, prior to the recordation of a Certificate of Completion, no Transfer by Participant of all or any portion of its interest in the Expansion Parcel or this Agreement (including, without limitation, a Transfer not requiring Agency approval hereunder) shall be deemed to relieve Participant or any successor party from any obligations under this Agreement . In addition, no attempted Transfer of any of Participant' s obligations hereunder shall be effective unless and until the successor party executes and delivers to Agency an assumption agreement in a form approved by the Agency assuming such obligations . 4 .10 .3 Additional Transfer Restrictions of CC&Rs. Additional restrictions on conveyance of the Restaurant Parcel and the Expansion Parcel are set forth in the CC&Rs. Notwithstanding issuance by Agency of the Certificate of Completion, any such restrictions set forth in the CC&Rs shall continue in full force and effect . 4 .11 Insurance and Indemnification. 4 .11.1 Insurance. Prior to the commencement of any construction by Participant of the Project, Participant shall procure and maintain, or cause its general contractor to procure and maintain, at the sole cost and expense of Participant or its general contractor, in a form and content satisfactory to Agency and City, during the entire term of construction, the following policies of insurance : (a) Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than either (i) a combined single limit of ONE MILLION DOLLARS ($1, 000, 000 . 00) or (ii) bodily injury limits of FIVE HUNDRED THOUSAND DOLLARS ($500, 000 . 00) per person, ONE MILLION DOLLARS ($1, 000, 000 . 00) per occurrence and ONE MILLION DOLLARS ($1, 000, 000 . 00) products and completed operations and property damage limits of FIVE HUNDRED THOUSAND DOLLARS ($500, 000 . 00) per occurrence and ONE MILLION DOLLARS ($1, 000, 000 . 00) in the aggregate. (b) Workers, Compensation Insurance. A policy of workers' compensation insurance in such amount as will fully 053/014084-0006/2172916.6 a05127/97 -2 0- comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Participant, Agency and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Participant in the course of carrying out the work or services contemplated in this Agreement . (c) Automotive Insurance. A policy of compre- hensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250, 000 . 00) per person and FIVE HUNDRED THOUSAND DOLLARS ($500 , 000 . 00) per occurrence and property damage liability limits of ONE HUNDRED THOUSAND DOLLARS ($100 , 000 . 00) per occurrence and TWO HUNDRED FIFTY THOUSAND DOLLARS ($250, 000 . 00) in the aggregate or (ii) combined single limit liability of FIVE HUNDRED THOUSAND DOLLARS ($500 , 000 . 00) . Said policy shall include coverage for owned, non-owned, leased and hired cars . (d) Builder' s Risk Insurance. A policy of "builder' s risk" insurance covering the full replacement value of all of the improvements to be constructed by Participant pursuant to this Agreement. All of the above policies of insurance shall be primary insurance and shall name Agency, City, and their respective officers, employees and agents as additional insureds . The insurer shall waive all rights of subrogation and contribution it may have against Agency, City, and their officers, employees and agents and their respective insurers . All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days prior written notice by registered mail to Agency and City. In the event any of said policies of insurance are cancelled, the Participant shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 4 . 11 . 1 to the Executive Director. No work or services under this Agreement shall commence until the Participant has provided Agency with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by Agency and City. The policies of insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City ( "Risk Manager" ) due to unique circumstances . Participant shall provide in all contracts with contractors, subcontractors, architects and engineers that said contractor, 053/014084-0006/2172916 6 a05/27/97 -2 1- subcontractor or engineer shall maintain the same policies of insurance required to be maintained by Participant pursuant to this Section 4 . 11 . 1 . The Participant agrees that the provisions of this Section 4 . 11 . 1 shall not be construed as limiting in any way the extent to which the Participant may be held responsible for the payment of damages to any persons or property resulting from the Participant' s activities or the activities of any person or persons for which the Participant is otherwise responsible. 4 .11.2 Indemnification. During the period of construction of any of the improvements pursuant to this Agreement and until such time as is issued a Certificate of Completion for the Project, Participant agrees to and shall indemnify and hold the Agency and the City harmless from and against all liability, loss, damage, cost or expenses (including reasonable attorneys' fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss, or damage whatsoever caused to any person or to the property of any person which shall occur on the Expansion Parcel and which shall be directly or indirectly caused by the acts done thereon or any errors or omissions of the Participant or its agents, servants, employees or contractors . Participant shall not be responsible for (and such indemnity shall not apply to) any acts, errors or omissions of the Agency or the City or their respective agents, servants, employees or contractors . Agency and City shall not be responsible for any acts, errors or omissions of any person or entity except Agency and City and their respective agents, servants, employees or contractors, subject to any and all statutory and other immunities . The provisions of this Section 4 . 11 .2 shall survive the termination of this Agreement . 5 . USE OF THE EXPANSION PARCEL AND IN-LIEU PARKING FUND. 5 .1 No Inconsistent Uses. Participant covenants and agrees that it shall not devote the Expansion Parcel to uses inconsistent with the Redevelopment Plan, the applicable zoning restrictions, this Agreement and/or the CC&Rs . 5 .2 CC&Rs. As set forth in Section 3 above, Participant shall execute the CC&Rs and cause the Delgado Trust to execute same, and the CC&Rs shall be recorded against the Expansion Parcel and the Restaurant Parcel at the Closing. 5 .3 In-Lieu Parking Fund Payment. Participant agrees to pay to City the In-Lieu Parking Fees in the amounts, at the time and in the manner as more particularly described in Exhibit "N" attached hereto. 053/014084-0006/2172916.6 205/27/97 -2 2- 6. ENFORCEMENT. 6 .1 Events of Default. In the event a party defaults in the performance or observance of any covenant, agreement or obligation set forth in this Agreement, and if such default remains uncured for a period of thirty (30) days after written notice thereof shall have been given by the non-defaulting party, or, in the event said default cannot be cured within said time period, the defaulting party has failed to commence to cure such default within said thirty (30) days and diligently prosecute said cure to completion, then the non-defaulting party shall declare an event of default to have occurred hereunder. 6 .2 Remedies. In addition to any other rights or remedies that may be available and subject to the requirements of Section 6 . 1 above, a party to this Agreement may institute a legal or equitable action to cure, correct or remedy any default, to recover damages for any default or to obtain any other remedy consistent with the purposes of this Agreement . If a party defaults hereunder by failing to perform any of its obligations herein, each party agrees that the other shall be entitled to the judicial remedy of specific performance, and each party agrees (subject to its reserved right to contest whether in fact a default does exist) not to challenge or contest the appropriateness of such remedy. In this regard, Participant specifically acknowledges that Agency is entering into this Agreement for the purpose of assisting in the improvement of the Expansion Parcel and not for the purpose of enabling Participant to speculate with land. 6 .3 No Waiver. Waiver by a party of the performance of any covenant, condition or promise shall not invalidate this Agreement, nor shall it be considered a waiver of any other covenant, condition or promise . Waiver by a party of the time for performing any act shall not constitute a waiver of time for performing any ,other act or an identical act required to be performed at a later time. The delay or forbearance by a party in exercising any remedy or right as to any default shall not operate as a waiver of any other default or of any rights or remedies or to deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies . 6 .4 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by any party of one or more of its 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 another party. 6 . 5 Right of Repurchase. After the Closing, if Participant has not delivered to Agency certain information as set forth in the Repurchase Agreement and/or has not commenced construction of the Project in the time specified in the Repurchase Agreement, Agency 0531014084-O006/2172916.6 a05127197 -2 3- shall have the right to repurchase the Expansion Parcel pursuant to the Repurchase Agreement . 6 . 6 Attornevs' Fees. In the event of litigation between the parties arising out of this Agreement, the prevailing party or parties shall be entitled to recover reasonable attorneys' fees and other costs and expenses incurred in addition to whatever other relief to which it or they may be entitled. 7 . MISCELLANEOUS. 7 .1 Governing Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement . 7 .2 Notices. Any notice to be given under this Agreement shall be given by personal delivery or by depositing the same in the United States Mail, certified or registered, postage prepaid, or by reputable overnight delivery service, costs prepaid, to the following addresses : 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. Lori Sarner Smith, Esq. Participant : RICHARD M. SERVICE, JR. 222 S . Palm Canyon Drive Palm Springs, CA 92262 Copy to: SCHLECHT, SHEVLIN & SHOENBERGER 801 East Tahquitz Canyon Way Suite 100 Palm Springs, CA 92663-2744 Attn: James M. Schlecht, Esq. (If applicable: ) Escrow Holder: LIBERTY ESCROW 901 E. Tahquitz Canyon Way, SuiteP401 Palm Springs, California 92663 Attn: Escrow Holder 053/014084-000612172916.6 a05/27/97 -2 4- 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 notice given by overnight delivery service as above provided shall be effective on the next business day after deposit with such service before the deadline time required by such service for next business day delivery. Any party may change its address for notice by giving written notice of such change to all other parties . 7 .3 Conflicts of Interest. No member, official, or employee of Agency or City shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official, or employee participate in any decision relating to this Agreement which affects his personal interests or the interests of any corporation, partnership, or association in which he is, directly or indirectly, interested. 7 .4 Nonliability of Agency Officials and Employees. No member, official, employee, or consultant of Agency or City shall be personally liable to Participant, or any successor in interest of Participant, in the event of any default or breach by Agency or City for any amount which may become due to Participant or to its successor, or on any obligations under the terms of this Agreement . 7 .5 Books and Records. 7 .5 .1 Maintenance of Books and Records . Participant shall prepare and maintain all books, records and reports necessary to substantiate Participant' s compliance with the terms of this Agreement or reasonably required by the Agency. 7 . 5 .2 Right to Inspect. The Agency shall have the right, upon not less than seventy-two (72) hours notice, at all reasonable times, to inspect the books and records of the Participant pertinent to the purposes of this Agreement . Said right of inspection shall not extend to documents privileged under attorney-client or other such privileges. 7 . 6 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. 7 .7 Merger. This Agreement and all documents incorporated herein contain the entire understanding among the parties hereto relating to the transactions contemplated herein and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged herein and shall be of no further force or effect . 7 . 8 Assurances to Act in Good Faith. The parties agree to execute all documents and instruments and to take all action and shall use their best efforts to accomplish the purposes of this Agreement . The parties shall each diligently and in good faith 053/014084-O006/2172916.6 a05127197 -2 5- ESCROW HOLDER' S ACCEPTANCE OF ESCROW INSTRUCTIONS Escrow Holder hereby accepts this Owner Participation Agreement by and among the Agency, the City and Participant and agrees to act as Escrow Holder in accordance with the terms and provisions set forth herein. Dated: 1997 . LIBERTY ESCROW By: 053/014084-"6/2172916.6 a05/27/97 -2 8- pursue the satisfaction of any conditions or contingencies subject to their approval . 7 .9 Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If, however, any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement . 7 .10 Exhibits . Exhibits "A" through "O" , inclusive, attached hereto, and all exhibits and schedules to such exhibits, are each incorporated herein by reference . IN WITNESS WHEREOF the parties hereto have executed-fhis Owner Participation Agreement as of the date first written, above). "Particil5in"t" d p Dated: RICHARD M. SERVICE_,IaJR. Dated• PATRICIA D. SERVICE [Signatures continue on next page] 053/014084-0006/2172916.6 205/27/97 -2 6_ [Signatures continued from preceding page] "Agency" THE CO TY RE O NT AGENCY OF TH CITY OF P GS By: Dated: Its : Executive Director ;i ATTEST: i Agen cy)Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP By: ��-- David J�,,,_Aleshire, Esq. Agency Counsel 11City" `— THE ITY OF PALM SPR Dated: (�, r, ,x / 1 "7 By: Its : City Manager ATTEST: City , lerk APPROVED AS TO FORM: RUTAN & TUCKER, LLP ^fir By:_ David �Jj� Aleshire, Esq. City Attorney 053/014094-000612172916.6 205/27/97 -2 7- CALIFORNIA ALL-PURPO$IACKNOWLEDGMENT S Na 5907 State of CALIFORNIA County Of RIVERSIDE On JUNE 30, 1997 before me, FLORENCE L. ROSS, NOTARY PUBLIC DATE NAME,TITLE OF OFFICER-EO,"JANE DOE,NOTARY PUBLIC" personally appeared RICHARD M. SERVICE AND PATRICIA D. SERVICE J NAME(S)OF SIGNER(3) personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) bs/are subscribed to the within instrument and ac knowledged to me that k5t6dog/they executed the same in bff/their authorized capacity(ies), and that by 14�k=/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. aae E L OM ca�nraon41127421 WITNESS my hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT INDIVIDUAL �'j ❑ CORPORATE OFFICER OWNER PARTICIPATION AGREEMENT TITLE OR TYPE OF DOCUMENT TITLE(5) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL 28 plus Exhibits ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ;„ ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: dated June 10, 1997 IL DATE OF DOCUMENT SIGNER IS REPRESENTING: _ NAME OF PERsoN(s)oR ENTm(Iss) COMMUNITY REDEVELOPMENT AGENCY SIGNER(S)OTHER THAN NAMED ABOVE OF THE CITY OF PALM SPRINGS — - - M_ SPRINGS & -LIBERTY ESCROW ©1993 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91 3 09-71 84 AIO, CALIFORNIA ALL-PURPACKNOWLEDGMENT No 5907 State of County of 7P� On e2 c before me, «linl��L�i�� rN� �r�2 ¢�� 6661t1 d d TE NAME,TITLE OF OFFlCER--G "JANE DOE,N TAflY PUBLIC" personally appeared NAME(S)OF r ERIS) personally known to me - OR----B-p'r-euedlp medor-tbe basis-of-satisfactorT--idea-e to be the persons whose names is/Il subscribed to the within instrument and ac- knowledged to me that he/sheA�y}executed the same in his/her dh@01) authorized capacity(le and that by his/her then A Q ELAINEL. signature,�on the instrument the persons= a' COMMI 1048857or th e ent' rt u on behalf of which thzNotary Public—Caliiomfa y p e, RIVERSIDE COUNTY person acted, executed the instrument. '1,� My Comm.Expires FEB 3,1999 WITNESS my hand and official seal. SIGNATURE OF NOTARY t� OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. v CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ` ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLES) ❑ PARTNER(S) ❑ LIMITED ' ❑ GENERAL ❑ ATTORNEY-IN-FACT NUMBER OF PAGES I ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S)OR ENTITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION-8236 Rerl Ave.,P.O Box 7184-Canoga Park,CA 91 3 0 9-71 8 4 CALIFORNIA ALL-PURPO51t ACKNOWLEDGMENT � No.5907 State of County of L , On before me, DATE NAME,TITLE OF OFFICER-E G "JANE DOE,NOTARY PUBLIC' personally appeared NAME(S)OF SIGNER(S) ❑ personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. SIGNATURE OF NOTARY 4! OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. I CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE(S) TITLE OR TYPE OF DOCUMENT ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S)OR ENTITY(IES) 1 i SIGNER(S) OTHER THAN NAMED ABOVE " i 01993 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 EXHIBIT "A-1" LEGAL DESCRIPTION OF THE AGENCY PARCEL The Agency Parcel is that certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows : BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALMS SPRINGS, IN BOOK 9 PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 8905010011 EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 00008100" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. THENCE SOUTH 11000' 47" WEST A DISTANCE OF 39 . 39 FEET TO THE NORTH LINE OF SAID LOT 4 , SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING. THENCE NORTH 89050' 00" EAST ALONG THE NORTH LINE OF SAID LOT 4, A DISTANCE OF 35 . 19 FEET TO THE NORTHEAST CORNER OF SAID LOT 4 . THENCE SOUTH 00008' 00" EAST ALONG THE EAST LINE OF SAID LOTS 4 AND 5 A DISTANCE OF 100 . 00 FEET, TO THE SOUTHEAST CORNER OF SAID LOT 5 . THENCE SOUTH 8905010011 WEST ALONG THE SOUTH LINE OF SAID LOT 5, A DISTANCE OF 48 . 00 FEET. THENCE NORTH 00008100" WEST PARALLEL WITH THE WEST LINE OF SAID LOT 5, A DISTANCE OF 35 . 00 FEET. THENCE NORTH 11000' 47" EAST A DISTANCE OF 66 . 26 FEET TO THE NORTH LINE OF SAID LOT 4 ALSO BEING THE TRUE POINT OF BEGINNING. SUBJECT TO REAL PROPERTY TAXES AND ASSESSMENTS 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. EXHIBIT "A-1" TO OWNER PARTICIPATION AGREEMENT 053/014094-0006/2172916.6 a05/27/97 EXHIBIT "A-2" LEGAL DESCRIPTION OF THE CITY PARCEL The City Parcel is that certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows : BEING A PORTION OF LOT 3 , IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9, PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89050100" EAST A DISTANCE OF 114 . 00 FEET; THENCE SOUTH 00008 ' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET; THENCE SOUTH 11000147" WEST A DISTANCE OF 20 . 39 FEET TO THE SOUTH LINE OF SAID LOT 3 ; THENCE SOUTH 89050100" WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 95 .25 FEET TO THE SOUTHWEST CORNER OF SAID LOT 3 ; THENCE NORTH 00008100" WEST ALONG THE WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 TO THE TRUE POINT OF BEGINNING. SUBJECT TO REAL PROPERTY TAXES AND ASSESSMENTS 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. EXHIBIT "A-2" TO OWNER PARTICIPATION AGREEMENT 053/014084-00D6/2172916.6 a05127/97 EXHIBIT "B" LEGAL DESCRIPTION OF THE EXPANSION PARCEL The Expansion Parcel is certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows : PARCEL lA BEING A PORTION OF LOT 3 , IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9, PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89050100" EAST A DISTANCE OF 114 . 00 FEET; THENCE SOUTH 00008 , 001, EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET; THENCE SOUTH 11000147" WEST A DISTANCE OF 20 . 39 FEET TO THE SOUTH LINE OF SAID LOT 3 ; THENCE SOUTH 89050100 " WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 110 . 06 FEET TO THE SOUTHWEST CORNER OF SAID LOT 3 ; THENCE NORTH 00008 , 001, WEST ALONG THE WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 TO THE TRUE POINT OF BEGINNING. PARCEL 1B BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 OF SAID BLOCK 28 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89-501001, EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 00008 ' 00 " EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. THENCE SOUTH 11000 ' 47" WEST A DISTANCE OF 20 .39 FEET TO THE NORTHERLY LINE OF SAID LOT 4 AND THE TRUE POINT OF BEGINNING. THENCE SOUTH 11000' 47" WEST A DISTANCE OF 66.26 FEET; THENCE SOUTH 00008 , 001, EAST PARALLEL WITH THE WEST LINE OF SAID LOT 5, A DISTANCE OF 35 . 00 FEET TO THE SOUTHERLY LINE OF SAID LOT 5 . EXHIBIT "B" TO OWNER PARTICIPATION AGREEMENT Page 1 of 2 053/014084-0006/2172916.6 a07/02/97 7f THENCE SOUTH 89050, 001, WEST ALONG THE SOUTH LINE OF SAID LOT 5, A DISTANCE OF 2 . 00 FEET, SAID POINT BEING 50 . 00 WEST OF THE SOUTHEAST CORNER OF SAID LOT 5 . THENCE NORTH 00008' 00" WEST PARALLEL WITH THE WEST LINE OF SAID LOT 4 AND 5 A DISTANCE OF 100 . 00 FEET TO THE NORTH LINE OF SAID LOT 4; THENCE NORTH 89050' 00" EAST ALONG THE NORTH LINE OF SAID LOT 3, A DISTANCE OF 14. 81 FEET TO THE TRUE POINT OF BEGINNING. SUBJECT TO REAL PROPERTY TAXES AND ASSESSMENTS 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. EXHIBIT "B" TO OWNER PARTICIPATION AGREEMENT Page 2 of 2 053/014094-0006/2172916.6 a06/27/97 EXHIBIT "C" LEGAL DESCRIPTION OF THE RESTAURANT PARCEL The Restaurant Parcel is that certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows : Parcel 1 Lots 4 and 5 in Block 28 of Palm Springs Tract, as shown by Map on file in Book 9, Page 432, of Maps, Records of San Diego County, California. Parcel 2 Any easements appurtenant to Parcel 1 or used in conjunction with Parcel 1 in the operation of the Las Casuelas Terraza Restaurant . EXHIBIT "C" TO OWNER PARTICIPATION AGREEMENT 053/014084-0006/2172916.6 205/27/97 RCS• M :RUfAN & TUCKER, CN. 5-22-97 : 1^_: 1:3Ph1 6193258271— ROTA\ ti Tt CKER.v 3 EXHIBIT "D" ARENAS ROAD N89'5O'OO'E V1 N I 24 Y 2 O� 23 N89'50DOT: 114.00 LI CITY PARCEL (C TY OWNED1 z 5 PARCEL ] A � ul uj I b) sq•P.. ) ('r PARCEL 3 z Txyae T. r 3125 0 z N80'5900'E 9525 1481 35.19 e[ EXPANSION PARCEL N89'50'00'E co a (lA & cd URICEL iB co AGENCY W a 1, -4 PARCEL 21 40• N g RESTAURANT PARCEL g j 8 LLJ R- Nil Lq,1 h o m 4 p J Cl Cj J.L SANBOR`J '_'. g CIL. z IL NO, LS4146 ;{ > I �+ EXP. �:1 5 b 20 po i m z �' 200 SBOG SU.00 +l RevL"d 5/21/97 6 N99'S0'00-E 19 CITY 07 PALM SPRING PLAT SANBORN A1E, INC. A PORTION OF LOTS 3, 4 AND 5 IN BLOCK 28 OF aVL ENGWEER Q-ARCHiTECTu1E PALM SPRINGS, IN BOOK 9 PACE 432 OF MAPS, LAND U VEnNO RECORD F SAP DIEGO COUNTY, CALIFORNIA. DESIGN BY SCALE FILE NO_ EC. 5, T. 4 S., R. 4 E. M9V V" 30' CFHECKED BY SHEET NO. W.O. PROFE1. A LAND SURVEYOR�ji 4146 JLS 1 OF 1 96— 102 EXHIBIT "D" TO OWNER PARTICIPATION AGREEMENT EXHIBIT "E" DESCRIPTION OF PROJECT AND SCOPE OF DEVELOPMENT The Project shall consist of the expansion of the Las Casuelas Terraza Restaurant onto the Expansion Parcel . The Project will provide additional seats, bathrooms, and both dry and cold storage uses. A specialized foyer will be added to the East elevation of the existing kitchen to permit customers to order food to go directly from the kitchen. This area will be known as Las Casuelas Pronto and is accessed directly from the parking lot . The building expansion will be one story in height and include approximately 1, 785 square feet of floor area in an enclosed kitchen and service area addition as well as new patron restrooms . The new patio dining addition will extend the one story profile of the building addition to also include approximately 2, 485 square feet in semi- enclosed patio area with dining tables and booths and a bar area. The improvements to Terraza will consist of a palapa (palm frond thatch) bar and a series of seven private booths under a palapa roof plus a large open patio with trees, shrubbery, and seating with heaters and umbrellas. The architectural design of the building addition will continue and enhance the high quality traditional Mexican architecture of the original Restaurant structure . Approximately 2, 024 square feet of the Parcel will be improved as a new pedestrian walkway with decorative concrete paving, two (2) decorative fountains/water features, extensive landscaping and exterior lighting, a small portion of the decorative walkway surface will extend onto the Palm Canyon Drive right-of-way and will be designed to meet City standards in order to be accepted by the City for maintenance . All on-site private improvements will be constructed to City code standards and maintained by the Participant . The expansion will add new outdoor seats to the existing restaurant, bringing the new total to 360 seats . The improvements are shown on the Site Plan attached hereto as Exhibit "E-111 . The design plans for this Project were approved by the Palm Springs Planning Commission on March 12 , 1997 . Public Improve- ments, if any, are as set forth in the Conditions of Approval . Building and site improvements shall be constructed in conformance with the applicable requirements of the Palm Springs Building Municipal Codes and in accordance with the approved final building plans, including provision for signage, screening of mechanical equipment, landscaping and exterior lighting. The Participant will extend all required utilities services underground to the Restaurant expansion. EXHIBIT "E" TO OWNER PARTICIPATION AGREEMENT 053/014084-0006/2172916.6 a05/27197 EXHIBIT "E-1" SITE PLAN ---- --- --- 0 --- --- ---- 0 .......... .... --- --- v cu OnSTINO Km5TAUIKANT TO ff.FtYA4N PALM CoANYON PKIVE EXHIBIT "E-111 TO OWNER PARTICIPATION AGREEMENT 0531014094-OD0612172916.6 105/27197 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 AND GRANT OF EASEMENT THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANT OF EASEMENT (this "Declaration" or this "Agreement") is dated for reference purposes only as of , 1997, by and among RICHARD M. SERVICE and PATRICIA D. SERVICE, husband and wife, as community property (collectively "Service") , MARY T. DELGADO and WELLS FARGO BANK, N.A. , AS CO-TRUSTEES OF THE FLORENCIO H. DELGADO AND MARY T. DELGADO REVOCABLE INTER VIVOS TRUST UTD JUNE 26, 1990 (the "Delgado Trust") , 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. Service and the Delgado Trust are hereinafter collectively referred to herein as the "Declarant" . B. The Delgado Trust 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 ( "Restaurant Property" ) . C. Service is the owner of that certain real property in the City of Palm Springs, County of Riverside, State of California more particularly described on Exhibit 112 " attached hereto and incorporated herein by reference located immediately adjacent to the Restaurant Property ( "Expansion Property" ) . D. The Restaurant Property and the Expansion Property are hereinafter jointly referred to herein as the "Property" and individually as a "Parcel . " E. The Property is within the Palm Springs Central Business District Redevelopment Project Area ( "Project Area" ) specifically EXHIBIT "F" TO OWNER PARTICIPATION AGREEMENT 223/0140840006/3076618.5 a05/22197 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 . F. 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 is depicted in Exhibit 113 " attached hereto and incorporated herein by reference ( "Public Parcel" ) . G. 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. H. Pursuant to the Redevelopment Plan, Service has entered into that certain Owner Participation Agreement dated June 10, 1997 for reference purposes, with the Agency and the City (the "Owner Participation Agreement" ) , which Owner Participation Agreement places certain restrictions on the Property. Pursuant to the City' s development requirements, the City has approved a site plan for the development of the Expansion Property as part of the restaurant on the Restaurant Property ( "Site Plan" ) , which plan places certain restrictions on the Property. Said Redevelopment Plan, Owner Participation Agreement and Site Plan (i) are on file and may be reviewed in the office of the executive director of the Agency ( "Executive Director" ) , in the Palm Springs City Hall and (ii) are each incorporated herein by this reference and made a part hereof as though fully set forth herein. I . The development of the expansion of the improvements on the Restaurant Property will involve building over the lot line between the Restaurant Property and the Expansion Property, which is not permitted by City building code requirements . City has nonetheless has approved the Site Plan subject to the transfer restrictions set forth in this Agreement. J. Declarant, the Agency and City intend, in exchange for the entering into the Owner Participation Agreement by the Agency and City and the approval of the Site Plan by City, that the Declarant 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. 223/014084-0006/3076618.5 .05/22197 -2- K. Declarant 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 restric- tions shall run to the benefit of the Public Parcel and bind the Property, the Declarant and its successors and assigns. NOW, THEREFORE, the Declarant, 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 General. The Property shall be developed and used only as permitted by the restrictions contained in the Site Plan, Redevelopment Plan and Owner Participation Agreement. 1.2 Maintenance Agreement. Declarant, for themselves and their successors and assigns, hereby covenant and agree to maintain and repair or cause to be maintained and repaired the Property and all related on-site improvements and landscaping thereon at its sole cost and expense, including, without limitation, buildings, parking areas, lighting, signs and walls, 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 following: (i) sweeping and trash removal; (ii) the care and replacement of all shrubbery, plantings, and other landscaping in a healthy condition; (iii) the repair, replacement and restriping of asphalt or concrete paving using the same type of material originally installed, to the end that such pavings at all times be kept in a level and smooth condition; and (iv) the repair and maintenance of two (2) fountains and all decorative walkways. In addition, Declarant 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. 223/014084-0006/3076618.5 a05/22/97 -3- 1.3 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. Declarant shall use its best efforts to insure that vehicles associated with the operation of the Property, including delivery vehicles, vehicles of customers and employees and vehicles of persons with business on the Property will park solely on the Property and not park on public streets or adjacent property. 1.4 Compliance With Ordinances. 1 .4 . 1 Except as provided in Article 3 , Declarant shall comply with all ordinances, regulations and standards of the City and Agency applicable to the Property. 1.4 .2 Declarant shall provide any proposed tenants of any portion of the Property with a copy of the conditions to approval of the Site Plan and this Declaration and shall, prior to entering into any lease agreement, have the proposed tenant execute an affidavit agreeing to comply with the provisions of this Declaration. All lease agreements shall be in writing and shall contain provisions which make compliance with the conditions of the Site Plan and this Declaration and the requirements of the City relating to signs, permits and business licenses express covenants of the Lease. 1.4 .3 Declarant shall comply with all rules and regulations of any assessment district of the City with jurisdiction over the Property. 1.5 Nondiscrimination. 1. 5 . 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 Declarant, 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. 1.5 .2 Declarant 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) : 2231014084-0006/3076618.5 a05122I97 -4- 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 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 2231014094-0006/3076618.5 •05/22197 _JC_ discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of land. " 1. 6 Outside Storage. No storage of any kind shall be permitted outside the building (s) located on the Property except for trash or other storage in any outside storage areas approved by the Agency or as required by law. Adequate trash enclosures shall be provided and screened. Locations of such areas and types of screening must be approved by the Executive Director. Gates for trash storage area shall be kept closed at all times except when in actual use. 1.7 Prohibition on Transfers. Prior to the recordation of the Certificate of Completion pursuant to Section 4 . 8 of the Owner Participation Agreement, Declarant shall not transfer the Owner Participation Agreement or any of Declarant' s rights thereunder, or any interest in the Property or in the improvements thereon, directly or indirectly, voluntarily or by operation of law, except in accordance with Section 4 . 8 of the Owner Participation Agreement. 1. 8 Public Agency Rights of Access. Declarant 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 TRANSFER RESTRICTIONS 2 .1 Conditional Building Code Compliance. 2 . 1. 1 The City' s current building code and regulations prohibits openings between lot line boundaries, prohibits building over lot lines and requires certain setback requirements with respect to improvements on each Parcel in relationship to the adjoining Parcel (such prohibitions referred to herein as the "Lot Line Restrictions") . 2 . 1.2 So long as any Service Affiliate or any Delgado Affiliate (as defined below) owns each of the Restaurant Property and the Expansion Property and both the Restaurant Property and the Expansion Property are leased under a single lease covering the Property for the operation of a restaurant to either a Service Affiliate or a Delgado Affiliate ( "Affiliate Restaurant Lease") , the City agrees that 223/0140840006/3076618.5 a05/22/97 -6- ! i the building (s) and other improvements on the Restaurant Property and the Expansion Property may be connected to be utilized as a single building and may otherwise cross the boundary line between the Restaurant Property and the Expansion Property and that, so long as all other requirements of the City and the City' s building code are satisfied with respect to such building (s) and improvements (including without limitation, setback requirements other than those relating to the setback in relation to the Parcel boundary line between the Restaurant Property and the Expansion Property) , the building (s) and improvements shall be deemed to be in compliance with the City' s Lot Line Restrictions . 2 .2 Transfer of Parcels. 2 .2 . 1 In the event of a "Transfer" (as defined below) of either the Restaurant Property or the Expansion Property, the owner of the Restaurant Property and the Owner of the Expansion Property shall make such modifications to the building (s) and improvements on the Restaurant Property and the Expansion Property so as to cause the building (s) and improvements on each of the Restaurant Property and the Expansion Property to be in compliance with the City' s building code and other requirements, including without limitation, the Lot Line Restrictions . Without limiting the generality of the foregoing, all building (s) and improvements which cross over the lot boundary lines of the Restaurant Property and the Expansion Property shall, upon any Transfer, be relocated such that such building (s) and improvements no longer cross the lot boundary lines and satisfy all setback requirements with respect thereto. 2 .2 .2 For purposes of this Agreement, the term "Transfer" shall mean (i) any conveyance or other transfer of the fee title interest in either the Restaurant Property or the Expansion Property to any person or entity which is not either a "Service Affiliate" or a "Delgado Affiliate" (as defined below) ; and/or (ii) expiration or termination of the Affiliate Restaurant Lease. The term "Service Affiliate" shall mean (i) Richard M. Service, Jr. ( "R. Service" ) ; (ii) Patricia D. Service ( "P. Service" ) ; (iii) any parent, spouse, child, grandchild or sibling of R. Service or P. Service ( "Service Family Members" ) ; (iv) any entity in which either R. Service, P. Service or any Service Family Members hold an interest and, alone or together with any Delgado Affiliate, hold a controlling interest; or (v) any trust in which the beneficial interests are held by R. Service, P. Service or any Service Family Members . The term "Delgado Affiliate" shall mean (i) the Delgado Trust; (ii) Mary T. Delgado ( "M. Delgado" ) ; (iii) any parent, spouse, child, grandchild or sibling of M. Delgado ( "Delgado Family Members") ; (iv) any entity in which either M. Delgado, the Delgado Trust or any Delgado Family Members hold an interest and, alone or together with any Service Affiliate, hold a controlling interest; or 223/014084-0006/3076618.5 a05/22197 -7- (v) any trust in which the beneficial interests are held by M. Delgado or any Delgado Family Members . The term "Transfer" shall exclude a hypothecation, assignment or other transfer for security purposes only, provided that the requirements in Section 2 .2 . 1 shall apply upon the holder of such security interest or their assignee or transferee in foreclosure acquiring an interest as owner of the Restaurant Property or the Expansion Property. 2 .2 . 3 The term "Transfer" shall exclude any transfer or conveyance of fee interest in both the Restaurant Property and the Expansion Property to a single owner, whether or not such owner is a Service Affiliate or a Delgado Affiliate, provided that in the event of such transfer to a single owner, such owner shall execute such documents and perform such acts as are necessary to consolidate the Restaurant Property and the Expansion Property as one legal parcel . ARTICLE 3 ENFORCEMENT 3 .1 Event of Default. An "Event of Default" under this Declaration shall mean (i) any Transfer of the Restaurant Property or the Expansion Property unless the actions described in Section 2 .2 . 1 are undertaken and completed substantially concurrently therewith; (ii) any conveyance of both the Restaurant Property or the Expansion Property to a single owner unless consolidation of the Restaurant Property and the Expansion Property are undertaken and completed substantially concurrently therewith; and/or (iii) any other breach or default by the owner of the Restaurant Property or the Expansion Property of the terms and conditions of this Declaration. 3 .2 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. 3 .3 Iniunction. 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. 3 .4 Other Rights of Agency and City. In the event of any violation or threatened violation of any of the provisions of this Declaration not cured within thirty (30) days after written notice from City or Agency to the owner of the Restaurant Property and the 2231014084-000613076618.5 n05122/97 -8- Expansion Property, 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. 3 .5 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 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 4 .5 may be recorded by the Agency or the City 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 4 . 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 223/014084-0006/3076618.5 a05/22197 -9- 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. ARTICLE 4 ENCUMBRANCES, MORTGAGE PROTECTION AND TAXES 4 .1 Declarant' s Breach Not to Default Mortgage Lien. Declarant' s breach of any of the covenants or restrictions contained in this Declaration or the Owner Participation Agreement 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 or the Owner Participation Agreement; but, unless otherwise herein provided, the terms, conditions, covenants, restrictions and reservations of this Declaration and the Owner Participation Agreement 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. 4 .2 Amendments or Modifications to Declaration. No purported rule, regulation, modification, amendment and/or termination of this Declaration or the Owner Participation Agreement 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. 4 .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 223/014084-0006/3076618.5 a05122/97 -1 0- the foreclosure of any such mortgage and/or deed of trust, all other liens and 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 3 .5 . 4.4 Payment of Taxes and Assessments. Declarant shall pay, when due, all real estate taxes and assessments assessed or levied against the Property. Nothing herein contained shall be deemed or prohibit Declarant from contesting the validity or amounts of any tax or assessments nor to limit the remedies available to Declarant with respect thereto. ARTICLE 5 COVENANTS TO RUN WITH THE LAND 5.1 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. Declarant 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 Declarant, its successors and assigns and successors in interest; and may be enforced by the Agency and City. Agency and Declarant hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that Declarant' s legal interest in the Property is rendered less valuable thereby. Agency and Declarant 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. 5.2 Agreement Among Declarant Agency and City. The Declarant, in exchange for entering the Owner Participation Agreement by the Agency and granting of the Site Plan by City, hereby agrees to hold, sell, and convey the Property subject to the covenants, conditions, restrictions and reservations of this 2231014084-0006/3076618.5 .05122/97 -1 1- Declaration. Declarant 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 Declarant and all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns . ARTICLE 6 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. ARTICLE 7 RESTAURANT PROPERTY OWNER PARTICIPATION AGREEMENT The Agency and Florencio H. and Mary Delgado (the "Delgados") entered into that certain Owner Participation Agreement dated July 20 , 1977, as approved by the Agency Board pursuant to its Resolution No. 65, relating to the Restaurant Property, as amended by a Supplemental Agreement dated December 7, 1977, and approved by the Agency Board pursuant to its Resolution No. 72 , and as amended by Amended Agreement No. 2 dated June 6, 1990, which was approved by the Agency Board pursuant to its Resolution No. 698 and by City by its Resolution No. 17154, and recorded July 19 , 1990 as Instrument No. 265636 (as amended, the "Delgado OPA" ) . The Delgado OPA shall be deemed terminated effective as of the recordation of this Declaration and superseded in its entirety by this Declaration and the Owner Participation Agreement . ARTICLE 8 MISCELLANEOUS 8 .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. 8.2 Governing Law. This Declaration shall be governed by and construed in accordance with the laws of the State of California. 8.3 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 223/014084-0006/3076618.5 a05/22/97 -12- when implied to another party or to a different set of circumstances . 8.4 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. Lori Sarner Smith, Esq. Declarant: RICHARD M. SERVICE, JR. 222 S . Palm Canyon Drive Palm Springs, CA 92262 With Copy to: SCHLECHT, SHEVLIN & SHOENBERGER 801 East Tahquitz Canyon Way Suite 100 Palm Springs, CA 92663-2744 Attn: James M. Schlecht, Esq. 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. [THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK. ] 2231014084-0006/3076618.5 a05122/97 8 .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 Declaration of Covenants, Conditions and Restrictions and Grant of Easement as of the date set forth by their signatures below. "DECLARANT" Dated: RICHARD M. SERVICE, JR. Dated• PATRICIA D. SERVICE "Service" WELLS FARGO BANK, N.A. AS CO-TRUSTEE OF THE FLORENCIO H. DELGADO AND MARY T. DELGADO REVOCABLE INTER VIVOS TRUST UTD JUNE 26, 1990 Dated: By: Its - Dated• MARY T. DELGADO, AS CO-TRUSTEE OF THE FLORENCIO H. DELGADO AND MARY T. DELGADO REVOCABLE INTER VIVOS TRUST UTD JUNE 26, 1990 "Delgado Trust" [Signatures continue on next page] 223/014084-0006/3076618.5 e05122/97 -14- [Signatures continued from preceding page] "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 "CITY" THE CITY OF PALM SPRINGS Dated: By: Its : ATTEST: City Clerk APPROVED AS TO FORM: RUTAN & TUCKER, LLP By: David J. Aleshire, Esq. Agency Counsel 223/014084-000613076618.5 .05/22/97 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 persons) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature (s) on the instrument the person (s) or the entity upon behalf of which the person (s) acted, executed the instrument. Witness my hand and official seal . Notary Public [SEAL] 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 223/014084-0006/3076618.5 a05/22/97 -1 6- 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 persons) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies) , and that by his/her/their signature (s) on the instrument the person (s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 223/014084-000613076618.5 a05/22/97 -1 7- EXHIBIT "1" LEGAL DESCRIPTION OF THE RESTAURANT PROPERTY The Restaurant Property is that certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows : Parcel 1 Lots 4 and 5 in Block 28 of Palm Springs Tract, as shown by Map on file in Book 9 , Page 432 , of Maps, Records of San Diego County, California. Parcel 2 Any easements appurtenant to Parcel 1 or used in conjunction with Parcel 1 in the operation of the Las Casuelas Terraza Restaurant. EXHIBIT 11111 TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS 2231014094-000613076618.5 a05123/97 • i EXHIBIT 11211 LEGAL DESCRIPTION OF THE EXPANSION PROPERTY The Expansion Property is certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows : PARCEL lA BEING A PORTION OF LOTS 3 , IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3, NORTH 89050' 00" EAST A DISTANCE OF 114 . 00 FEET; THENCE SOUTH 00008100" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET; THENCE SOUTH 11000147" WEST A DISTANCE OF 20 .39 FEET TO THE SOUTH LINE OF SAID LOT 3 ; THENCE SOUTH 89050 ' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 110 . 06 FEET TO THE SOUTHWEST CORNER OF SAID LOT 3 ; THENCE NORTH 00008' 00" WEST ALONG THE WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 TO THE TRUE POINT OF BEGINNING. PARCEL 1B BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 OF SAID BLOCK 28 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89050100" EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 00008 ' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. THENCE SOUTH 11000147" WEST A DISTANCE OF 20 .39 FEET TO THE NORTHERLY LINE OF SAID LOT 4 AND THE TRUE POINT OF BEGINNING. THENCE SOUTH 11000' 47" WEST A DISTANCE OF 66 .26 FEET; THENCE SOUTH 00008100" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 5, A DISTANCE OF 35 . 00 FEET TO THE SOUTHERLY LINE OF SAID LOT 5 . EXHIBIT 112 " TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 1 of 2 223/014084-0006/3076618.5 a07/02/97 0 THENCE SOUTH 89050' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 5, A DISTANCE OF 2 . 00 FEET, SAID POINT BEING 50 . 00 WEST OF THE SOUTHEAST CORNER OF SAID LOT S . THENCE NORTH 00008' 00" WEST PARALLEL WITH THE WEST LINE OF SAID LOT 4 AND 5 A DISTANCE OF 100 . 00 FEET TO THE NORTH LINE OF SAID LOT 4; THENCE NORTH 89050' 00" EAST ALONG THE NORTH LINE OF SAID LOT 3 , A DISTANCE OF 14 . 81 FEET TO THE TRUE POINT OF BEGINNING. EXHIBIT "2" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 2 of 2 223/014084-0006/3076618.5 e06/27/97 EXHIBIT "3" DEPICTION OF PUBLIC PARCEL The Public Parcel is that certain real property in the City of Palm Springs, County of Riverside, State of California, legally described as follows: T T � - ROAD — -i-- - - :-_ ro / 2 3 ofeTi57 sf4r ~ 0 O//- 32 -_ j - - -©- .MOFLC - O O I -4.M6, 119.5 • t 23 & ' O//•GOB 506 0.P] IX Z EO8 W rc 3.0/dG 4 LAS 4rS/k e431 /5 Ez•t /53 T' .• j• O Hld7� s / 4 3.S0� 'C23 ' �. Pot3 �� I L.7.77'. 3. / ® 20 n IIJJ Y' N � _ i.vo • O.ASncE zf3 � , 0 • I © Q S./JS - LDOAcf ✓` - LUDd.Ct�LKc.GS sY - Afdo _- 3.fdP w p Jo3/S ©9 3✓67 o .®O./TAe.� .,� Q;;•:. -. • , OPoG EO9 //O1L . ?. S Q Po{/ TPD1 /357¢" � .Z'. •. /•/4Ac.Nt. l7L8 0 \y .3 /2r/N�FS'.RTE� p ` 3 oDbb ASTRl!" - e . 3.,94' I p3Y� _: yb ••ram :. u4•� _ EE'• - 71f6 - -ROAD- _ ASSESSOR'S MAPBK.5/3 PG./5. .,' -- . RIVERS/OE COUNTY, CAL/F. EXHIBIT 11311 TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS 223/0140840006/3076618.5 f06/17/97 0 EXHIBIT "G" SCHEDULE OF PERFORMANCE SECTION ITEM OF PERFORMANCE TIME FOR PERFORMANCE REFERENCE 1 . Agency approves previously Effective Date . 4 . 1 submitted plans and specifications for Project . 2 . Agency, City and As soon as possible 3 . 3 Participant open escrow after the Effective with Escrow Holder. Date. 3 . Escrow Holder to advise of Not less than 5 3 . 7 . 2 fees, costs and required business days prior documents . to the Closing Date . 4 . Delivery by Agency, City On or before 1 : 00 pm 3 . 5 and Participant of closing on the last business documents and notice of day preceding the satisfaction/failure of Closing Date . conditions to Closing. 5 . Agency, City and Within 30 days of 3 . 5; 3 . 11; Participant may cure any receipt of notice. 6 . 1 condition to Closing disapproved or may cure default . 6 . Closing Date . On or before July 3 , 3 . 7 . 1 1997 . 7 . Participant to submit proof Prior to commencing 3 . 9; 4 . 11 of insurance . any inspections and work on the Project . 8 . Participant to deliver Upon City' s issuance 5 . 3 In-Lieu Parking Note to of building permit . and City. Exhibit "N" 9 . Participant to commence Approximately 4 . 5 construction of Project . July 8 , 1997 after issuance of Building Permit EXHIBIT "G" TO OWNER PARTICIPATION AGREEMENT Page 1 of 2 053/014084-0006/2172916.6 a06/06/97 • SECTION ITEM OF PERFORMANCE TIME FOR PERFORMANCE REFERENCE 10 . Participant to complete Approximately 4 . 5 construction of the October 15, 1997, Project . and in any event within one hundred twenty (120) days following the Close of Escrow. 11 . City completes final Within 15 days of 5 .3 inspection and issues performance of the Certificate of Occupancy. preceding item. 12 . Agency issues Certificate Following completion 4 . 8 of Completion. of construction of the Project . It is understood that this Schedule of Performance is subject to all of the terms and conditions of the text of the Agreement . The summary of the items of performance in this Schedule of Performance is not intended to supersede or modify the more complete description in the text; in the event of any conflict or inconsistency between this Schedule of Performance and the text of the Agreement, the text shall govern. The time periods set forth in this Schedule of Performance may be altered or amended only by written agreement signed by both the Participant and the Agency. The Executive Director of Agency. and City Manager of City shall have the authority to approve extensions of time without action of the Board of Directors of Agency or City Council of City not to exceed a cumulative total of one hundred eighty (180) days . EXHIBIT "G" TO OWNER PARTICIPATION AGREEMENT Page 2 of 2 053/014084-000612172916.6 a05/27197 FREE RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRING, CALIFORNIA 3200 East Tahquitz Canyon Way Palm Springs, CA 92263 Attn: Executive Director (Space Above Line for Recorder's Use Only) CERTIFICATE OF COMPLETION AND TERMINATION OF OPTION TO REPURCHASE AGREEMENT Pursuant to that certain Owner Participation Agreement (the "Agreement" ) dated June 10 , 1997 for reference purposes, by and among THE CITY OF PALM SPRINGS ( "City" ) , THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA ( "Agency") , and RICHARD M. SERVICE, JR. and PATRICIA D. SERVICE, husband and wife, as community property (collectively "Participant" ) , Participant has improved that certain real property (the "Parcel" ) , legally described on Attachment No. 1 attached hereto and incorporated herein by reference, according to the terms and conditions of said Agreement . Pursuant to Section 4 . 8 of the Agreement, promptly after completion of all construction work to be completed by Participant upon the Parcel, and upon request by Participant, Agency shall furnish Participant with a Certificate of Completion in such form as to permit it to be recorded in the Official Records of the County of Riverside . The issuance by Agency of the Certificate of Completion shall be conclusive evidence that Participant has complied with the terms of the Agreement pertaining to the redevelopment of the Parcel . Participant has requested that Agency furnish Participant with the Certificate of Completion. Agency has conclusively determined that the improvement of the Parcel has been satisfactorily completed as required by the Agreement . The Agreement provided for certain covenants to run with the land, which covenants were incorporated in the Grant Deed whereby the Agency conveyed the Parcel to Participant (the "Deed") and that certain Declaration of Covenants, Conditions and Restrictions executed by Participant and Florencio H. Delgado and Mary Delgado and recorded concurrently with the Grant Deed (the "CC&Rs" ) . EXHIBIT "H" TO OWNER PARTICIPATION AGREEMENT 053/014084-0006/2172916.6 a05/27/97 Pursuant to the Agreement, Participant also entered into that certain Option to Repurchase Agreement which was recorded concurrently with the Grant Deed against the Property on 1997 as Instrument No. in the Official Records of Riverside County (the "Repurchase Agreement" ) . NOW, THEREFORE : 1 . As provided in the Agreement, Agency does hereby certify that improvement of the Parcel has been fully and satisfactorily performed and completed, and that such redevelopment is in full compliance with the Agreement . 2 . The Agency hereby releases, terminates and quitclaims all right, title and interest in the Repurchase Agreement to Participant and the Repurchase Agreement is deemed terminated and of no further force or effect . 3 . Except as set forth in Section 2 above, this Certificate of Completion shall not constitute evidence of Participant' s compliance with the Deed and the CC&Rs, the provisions of which shall continue to run with the land. 4 . This Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Participant to any holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance construction work on the Parcel, or any part thereof. Nothing contained herein shall modify in any way any other provision of said Agreement . 5 . This Certificate is not a Notice of Completion as referred to in California Civil Code Section 3093 . 6 . Except as stated herein, nothing contained in this instrument shall modify in any way any other provisions of the Agreement or any other provisions of the documents incorporated therein. IN WITNESS WHEREOF, Agency has executed this Certificate of Completion and Termination of Option to Repurchase Agreement as of this day of , 1997 . THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic By: Executive Director 053/014084-000612172916.6 205/27/97 -2- 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 persons) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies) , and that by his/her/their signature (s) on the instrument the person (s) or the entity upon behalf of which the person(s) acted, executed the instrument . Witness my hand and official seal . Notary Public [SEAL] 053/014094-000612172916.6 a05127/97 -3- ATTACHMENT NO. 1 LEGAL DESCRIPTION OF THE PARCEL The Parcel is certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows : PARCEL lA BEING A PORTION OF LOT 3 , IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3, NORTH 890501001, EAST A DISTANCE OF 114 . 00 FEET; THENCE SOUTH 000081001, EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET; THENCE SOUTH 11000'47" WEST A DISTANCE OF 20 . 39 FEET TO THE SOUTH LINE OF SAID LOT 3 ; THENCE SOUTH 8905010011 WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 110 . 06 FEET TO THE SOUTHWEST CORNER OF SAID LOT 3 ; THENCE NORTH 00008' 00 " WEST ALONG THE WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 TO THE TRUE POINT OF BEGINNING. PARCEL 1B BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 OF SAID BLOCK 28 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89-50 , 00" EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 000081001, EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. THENCE SOUTH 11000' 47" WEST A DISTANCE OF 20 . 39 FEET TO THE NORTHERLY LINE OF SAID LOT 4 AND THE TRUE POINT OF BEGINNING. THENCE SOUTH 11000' 47" WEST A DISTANCE OF 66 .26 FEET; THENCE SOUTH 0000810011 EAST PARALLEL WITH THE WEST LINE OF SAID LOT 5, A DISTANCE OF 35 . 00 FEET TO THE SOUTHERLY LINE OF SAID LOT 5 . ATTACHMENT NO. 1 TO CERTIFICATE OF COMPLETION AND TERMINATION OF OPTION TO REPURCHASE AGREEMENT Page 1 of 2 053/014084-0006/2172916.6 "07/02/97 THENCE SOUTH 89050' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 5, A DISTANCE OF 2 . 00 FEET, SAID POINT BEING 50 . 00 WEST OF THE SOUTHEAST CORNER OF SAID LOT 5 . THENCE NORTH 00008' 00" WEST PARALLEL WITH THE WEST LINE OF SAID LOT 4 AND 5 A DISTANCE OF 100 . 00 FEET TO THE NORTH LINE OF SAID LOT 4; THENCE NORTH 89050' 00" EAST ALONG THE NORTH LINE OF SAID LOT 3 , A DISTANCE OF 14 . 81 FEET TO THE TRUE POINT OF BEGINNING. ATTACHMENT NO. 1 TO CERTIFICATE OF COMPLETION AND TERMINATION OF OPTION TO REPURCHASE AGREEMENT Page 2 of 2 053/014094-000612172916.6 a06127/97 Order No. Escrow No. Loan No. FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF PALM SPRINGS Post Office Box 2743 Palm Springs, CA 92263 Ann: City Manager DOCUMENTARY TRANSFER TAX S-0-(Exempt by Revenue and SPACE ABOVE THIS LINE FOR RECORDER'S USE Taxation Code§11922) .....Computed on the consideration or value of property conveyed;OR .....Computed on the consideration or value less liens or encumbrances remaining at time of sale. Signature of Declantnt or Agent 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, CALIFORNIA, a public body, corporate and politic hereby GRANT(S) to THE CITY OF PALM SPRINGS, a municipal corporation, the real property in the City of Palm Springs, County of Riverside, State of California, described as [See EXHIBIT "A" attached hereto and incorporated herein by this reference.] Dated 1997 THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic } STATE OF CALIFORNIA } By: COUNTY OF } Its: On before me, , personally appeared personally known to me (or proved to me on the basis of satis- factory evidence) to be the person(s) whose names(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 signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s)acted, executed the instrument. WITNESS my hand and official seal. Signature (Thu ara for official a.uu-bd seal) MAIL TAX STATEMENTS AS DIRECTED TO: [Same as above] EXHIBIT "I" TO 526/0140840006/3G75995.2 .05122197 OWNER PARTICIPATION AGREEMENT 1002(1/94) EXHIBIT "A" LEGAL DESCRIPTION BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALMS SPRINGS, IN BOOK 9 PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89°50' 00" EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 00008 ' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. THENCE SOUTH 11000 ' 47" WEST A DISTANCE OF 39 .39 FEET TO THE NORTH LINE OF SAID LOT 4, SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING. THENCE NORTH 89050' 00" EAST ALONG THE NORTH LINE OF SAID LOT 4 , A DISTANCE OF 35 . 19 FEET TO THE NORTHEAST CORNER OF SAID LOT 4 . THENCE SOUTH 00008 ' 00" EAST ALONG THE EAST LINE OF SAID LOTS 4 AND 5 A DISTANCE OF 100 . 00 FEET, TO THE SOUTHEAST CORNER OF SAID LOT 5 . THENCE SOUTH 89050' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 5, A DISTANCE OF 48 . 00 FEET. THENCE NORTH 00008 ' 00" WEST PARALLEL WITH THE WEST LINE OF SAID LOT 5, A DISTANCE OF 35 . 00 FEET. THENCE NORTH 11000' 47" EAST A DISTANCE OF 66 .26 FEET TO THE NORTH LINE OF SAID LOT 4 ALSO BEING THE TRUE POINT OF BEGINNING. SUBJECT TO REAL PROPERTY TAXES AND ASSESSMENTS 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. 5261014084000613075995 1 005/12197 EXHIBIT "A" TO GRANT DEED • CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by GRANT DEED dated 1997 from, THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic, Grantor, to the CITY OF PALM SPRINGS, a municipal corporation, Grantee, is hereby accepted by the City Clerk of said City of Palm Springs, on this day of 1997, pursuant to authority granted by the City Council of said City, by Resolution No. made on the day of 1997, and the Grantee consents to recordation thereof by the City Clerk, its duly authorized officer. Dated at Palm Springs, California, this day of 1997 . JUDITH SUMICH City Clerk 926101A0R4_D1X)6/3075995 2 0512/97 Order No. Escrow No. Loan No. FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS 3200 E. Taltquitz Canyon Way Palm Springs, CA 92262 Attn: Lori Samer Smith, Esq. DOCUMENTARY TRANSFER TAX$-0-(Reveaue and Taxation Code SPACE ABOVE THIS LINE FOR RECORDER'S USE §11922) .....Computed on the consideration or value of property conveyed;OR .....Computed on the consideration or value less liens or encumbrances remaining at time of sale. Signature of Declarant or Agent determining tax-Firm Name GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE CITY OF PALM SPRINGS, a municipal corporation hereby GRANT(S) to THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic, the real property in the City of Palm Springs, County of Riverside, State of California, described as [See EXHIBIT "A" attached hereto and incorporated herein by this reference.] Dated 1997 THE CITY OF PALM SPRINGS, a municipal corporation } STATE OF CALIFORNIA } By: COUNTY OF } Its: On before me, , personally appeared personally known to me (or proved to me on the basis of satis- factory evidence) to be the person(s) whose names(s) Ware subscribed to the within instrument and acknowledged to me that he/she/they executed the same to his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s)acted, executed the instrument. WITNESS my hand and official seal. Signature ('fbu arca for official notarial sal) MAIL TAX STATEMENTS AS DIRECTED TO: [Same as above] EXHIBIT "J" TO 5261014094-0006/3075740 2 .05/22197 OWNER PARTICIPATION AGREEMENT 1002!1/941 EXHIBIT "A" LEGAL DESCRIPTION BEING A PORTION OF LOT 3 IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9, PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID .LOT 3 , NORTH 89050 ' 00" EAST A DISTANCE OF 114 . 00 FEET; THENCE SOUTH 00008' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET; THENCE SOUTH 11000' 47" WEST A DISTANCE OF 20 . 39 FEET TO THE SOUTH LINE OF SAID LOT 3 ; THENCE SOUTH 89050 ' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 95 . 25 FEET TO THE SOUTHWEST CORNER OF SAID LOT 3 ; THENCE NORTH 00008' 00" WEST ALONG THE. WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 FEET TO THE TRUE POINT OF BEGINNING. SUBJECT TO REAL PROPERTY TAXES AND ASSESSMENTS 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. 526/014084-0006/3075740, a05/22/97 EXHIBIT "A" TO GRANT DEED • CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by GRANT DEED dated 1997 from, THE CITY OF PALM SPRINGS, a municipal corporation Grantor, to THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic, Grantee, is hereby accepted by the City Clerk of said City of Palm Springs, on this day of , 1997, pursuant to authority granted by the City Council of said City, by Resolution No. made on the day of 1997, and the Grantee consents to recordation thereof by the Agency Secretary, its duly authorized officer. Dated at Palm Springs, California, this _ day of 1997 . JUDITH SUMICH Agency Secretary 5261014084-0006/3075740 2 a05/22197 Order No. Escrow No. Loan No. WHEN RECORDED MAIL TO: Richard M. Service, Jr. 222 S. Palm Canyon Drive Palm Springs, CA 92262 DOCUMENTARY TRANSFER TAX$ SPACE ABOVE THIS LINE FOR RECORDER'S USE .....Computed on the consideration or value of property conveyed;OR .....Computed on the consideration or value less liens or encumbrances remaining at time of sale. Signature of Declarant or Agent determimng 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, CALIFORNIA, a public body, corporate and politic hereby GRANT(S) to RICHARD M. SERVICE, JR. and PATRICIA D. SERVICE, husband and wife, as community property, the real property in the City of Palm Springs, County of Riverside, State of California, described as [See EXHIBIT "A" attached hereto and incorporated herein by this reference.] Dated 1997 THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic } STATE OF CALIFORNIA } By: COUNTY OF } Its: On before me, personally appeared personally known to me (or proved to me on the basis of satis- factory evidence) to be the person(s) whose names(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 signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s)acted, executed the instrument. WITNESS my hand and official seal. Signature (Thu a,ca for official notanal rw) MAIL TAX STATEMENTS AS DIRECTED TO: [Same as above] EXHIBIT "K" TO 526m1ansa-(M/3ms72n 2 a05122Ic7 OWNER PARTICIPATION AGREEMENT 1002!1/941 THENCE NORTH 89050, 00" EAST ALONG THE NORTH LINE OF SAID LOT 3 , A DISTANCE OF 14. 81 FEET TO THE TRUE POINT OF BEGINNING. SUBJECT TO REAL PROPERTY TAXES AND ASSESSMENTS 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. EXHIBIT "A" TO GRANT DEED 526/014094-0006/3075729.2 e06/27/97 Page 2 of 2 • FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: Lori Sarner Smith, Esq. TERMINATION OF LICENSE THIS TERMINATION OF LICENSE ( "Agreement" ) is made as of this day of 1997, between THE. COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS ( "Licensor" ) and MARY T. DELGADO and WELLS FARGO BANK, N.A. , as Co-Trustees of the Florencio H. Delgado and Mary T. Delgado Revocable Inter Vivos Trust UTD June 26, 1990 ( "Licensee" ) . R E C I T A L S : A. Licensor and Florencio Delgado ("Delgado") entered into that certain License dated July 28, 1982 , as amended by that certain Amended License dated October 3 , 1985 (together, the "License" ) pursuant to which Licensor gave Delgado the right to construct, maintain, use, and repair a portion of a trash container located within the westerly three and one-half (3 . 5) feet of that certain real property owned by Licensor described as the east fifty (50) feet of Lots 4 and 5 in Block 28 of Palm Springs Tract, beginning at a point approximately seventeen (17) feet from the south property line and extending northerly forty (40) feet ( "License Area") . B . Licensee is Delgado' s successor-in-interest to the subject property and under the License . C. Licensor and Licensee desire to terminate the License as of the "Termination Date" defined in Paragraph 1 of this Agreement, subject to the terms and conditions of this Agreement . NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, Licensor and Licensee agree as follows : 1 . Termination of License . Licensee' s rights to possession of the License Area shall absolutely terminate as of , 1997 (the "Termination Date" ) . The License shall be terminated and EXHIBIT "L" TO OWNER PARTICIPATION AGREEMENT 053/014094-0006/2172916.6 205/27/97 cancelled and the term thereof brought to an end as of the Termination Date, with the same force and effect as if the term of the License was, by its own terms, fixed to expire on the Termination Date and not as provided in the License . 2 . Time is of the Essence. Time is hereby expressly made of the essence in this Agreement and each and every term and condition contained in this Agreement . 3 . Integration. This Agreement and other documents express- ly incorporated herein by reference contain the entire and exclu- sive understanding and agreement between the parties relating to the matters contemplated hereby and all prior or contemporaneous negotiations, agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect . 4 . Modifications . Any alteration, change or modification of or to this Agreement, in order to become effective, shall be in writing and executed on behalf of each party to this Agreement . S . Governing Law. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement . 6 . Counterparts . This Agreement may be executed in counterparts which, when taken together, shall constitute one executed document as though all signatures appeared on one copy. IN WITNESS WHEREOF, the parties hereto have executed this Termination of Licensee as of the date first above written. THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS By: Its : "Licensor" [Signatures continue on next page] 053/014084-0006/2172916.6 205/27/97 -2- 0 [Signatures continued from preceding page] MARY T. DELGADO, CO-TRUSTEE, OF THE .FLORENCIO H. DELGADO AND MARY T. DELGADO REVOCABLE INTER VIVOS TRUST UTD JUNE 26, 1990 WELLS FARGO BANK, N.A. , AS CO-TRUSTEE OF THE FLORENCIO H. DELGADO AND MARY T. DELGADO REVOCABLE INTER VIVOS TRUST UTD JUNE 26, 1990 By: Its : "Licensee" 053/014084-006/2172916.6 a05127197 -3- 0 0 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 . Notary Public [SEAL] 053/014084-0006/2172916.6 a05/27/97 -4- 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) OPTION TO REPURCHASE AGREEMENT THIS OPTION TO REPURCHASE AGREEMENT ( "Agreement" ) is made this day of , 1997 by and among RICHARD M. SERVICE, JR. and PATRICIA D. SERVICE, husband and wife, as community property (collectively "Participant" ) , and THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic ("Agency" ) . R E C I T A L S: A. Participant is the owner of that certain real property as legally described on Exhibit "A" attached hereto (the "Property") . B. Concurrently with the date of recordation of this Agreement ( "Acquisition Date" ) , Participant has acquired the Property from the Agency pursuant to the terms and provisions of that certain Owner Participation Agreement dated June 10, 1997 for reference purposes (the "OPA" ) , among the Agency, Participant and the City of Palm Springs (the "City") . C. In connection with the acquisition of the Property, Participant represented to the Agency that it is acquiring the Property to develop same in accordance with the terms of the CPA in particular the obligation to commence construction of the Project (as defined in the OPA) within the time period specified in the OPA and in the event such obligations are not met, the Agency shall have the option to repurchase the Property upon the terms and conditions set forth herein. NOW, THEREFORE, the parties hereto agree as follows : EXHIBIT "M" TO OWNER PARTICIPATION AGREEMENT 053/014094-000612172916.6 a05/27/97 A G R E E M E N T: 1. OPTION TO REPURCHASE THE PROPERTY. The term "Commencement Conditions" shall mean each of the following: (i) Participant has delivered to Agency evidence that it has sufficient funds, through financing or otherwise, to complete the construction of the Project within the time frames contemplated in the OPA; (ii) Participant has delivered to Agency a copy of its construction contract for completion of the Project, executed by Participant and the contractor named therein; (iii) all requirements of the City with respect to commencement of issuance of the building permit for the Project have been satisfied; and (iv) construction of the Project has commenced. In the event Participant fails to satisfy all Commencement Conditions on or before the date which is sixty (60) days following the Acquisition Date, and such failure is not cured within thirty (30) days after written notice from Agency to do so, Agency, in its sole option and discretion, shall thereafter be entitled to exercise the option to repurchase the Property as provided below (the "Option Trigger Date" ) . 1.1 Grant of Option. Participant hereby grants to Agency an exclusive option to purchase the Property (the "Option" ) , subject only to: a. Current taxes not yet delinquent . b. Matters affecting title existing at the Acquisition Date. C . Matters affecting title which are created, made, assumed, consented to or requested by Agency. d. Matters shown as printed exceptions in the standard form California Property Title Association owner' s policy of title insurance . 1.2 Exercise of Repurchase Option. At any time through the date which is one hundred twenty (120) days after the Option Trigger Date (the "Option Exercise Period" ) , Agency may elect to exercise its Option to repurchase the Property by giving written notice to Participant . 1.3 Restoration Costs. Within thirty (30) days after Agency' s exercise of the Option ( "Removal Period") , Participant, at its sole cost and expense, shall restore the Property to at least as good condition as existed at the date hereof and shall remove from the Property all structures, buildings, pavings, landscaping and other improvements collectively the "Improvements") installed by Participant and all materials of whatever nature deposited at any time hereafter upon the Property. All of such work shall be accomplished to the sole but reasonable satisfaction of Agency. If such Improvements are not so removed and the Property so restored, then Agency at any time prior to Closing (as hereinafter defined) 053/014084-000612172916 6 205/27/97 -2- • may accomplish such matters and shall be entitled to a credit against the repurchase price in an amount equal to the cost of accomplishing such matters . Any Improvements not so removed by Participant within such Removal Period shall automatically become the property of Agency without the payment of further consideration and without the necessity of any further conveyance or bill of sale. 1.4 Repurchase Price. Agency' s purchase price for the Property, upon its exercise of the Option, shall be (i) the amount of cash consideration paid by Participant to Agency to purchase the Property; less (ii) Agency' s original costs of acquisition of the Property from the City and costs of sale thereof to Participant, such as escrow fees, title insurance and recording costs, documentary transfer tax, legal fees and any other closing costs; less (iii) all advances made by Agency pursuant to Section 1 . 3 above, to the extent not previously reimbursed to Agency by Participant . 1 .5 Repurchase Escrow Terms. Within five (5) days after Agency' s exercise of the Option as provided above or as soon thereafter as possible, an escrow shall be opened at Stewart Title of California, Inc . , Riverside office, or another escrow company selected by Agency to consummate the purchase as specified herein, which escrow shall close within thirty (30) days . Said escrow shall be subject only to approval by Agency of a then current preliminary title report . Any exceptions shown thereon created after the Acquisition Date, and disapproved by written notice delivered by Agency to Participant through escrow, shall be removed by Participant at its sole expense at or prior to closing of escrow. Participant and Agency shall each pay one-half (1/2) of the escrow fees; Participant shall pay for documentary tax stamps for recording the deed, and for a California Land Title Association standard form owner' s coverage policy of title insurance in the amount of the Repurchase Price showing title to the Property vested in Agency, free and clear of all liens, encumbrances or other title exceptions other than those set forth in this Agreement . Any other costs or expenses shall be allocated between the parties in the manner customary in Riverside County, California. 1 . 6 Other Defaults. Should Participant at any time prior to expiration of this Option commit any act of bankruptcy, or be adjudicated a bankrupt or insolvent, whether voluntarily or involuntarily, or transfer the Property or any portion thereof by operation of law under legal process pursuant to receivership or bankruptcy, or make an assignment for benefit of creditors, then Agency in its sole discretion may, in addition to any other rights or remedies available to it, exercise the Option at any time prior to expiration or termination of this Option, in the manner provided for herein. 1.7 Termination of Option. If the Option Trigger Date has occurred but the Agency has not exercised the Option during the Option Exercise Period as set forth hereinabove, the Option shall 053/014084-0006/2172916.6 a05/27/97 -3- 0 0 terminate and, upon written request by Participant delivered to the Agency, Agency shall promptly execute and acknowledge a document evidencing such termination and deliver same to Participant . Upon completion of the Project pursuant to the terms of the OPA, Participant is entitled to obtain a "Certificate of Completion and Termination of Option to Purchase Agreement" in the form attached to the OPA duly executed and acknowledged by the Agency ( "Certificate of Completion" ) . If not theretofore terminated or exercised, the Option shall terminate on the date of issuance by Agency of the Certificate of Completion. 1.8 Transfer Restrictions . Section 4 . 10 of the OPA sets forth certain Transfer restrictions respecting the Property and said Section 4 . 10 and all of said restrictions on Transfer are incorporated herein by reference, and shall terminate upon issuance by the Agency of the Certificate of Completion. 2 . GENERAL PROVISIONS . 2 .1 Estoppel Certificate. Within fifteen (15) days following a written request by either of the parties, the other party to this Agreement shall execute and deliver to the requesting party a statement certifying that : (i) this Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modifications; (ii) there are no current uncured defaults under this Agreement or specifying the date and nature of any such default; and (iii) any other reasonable information requested. The failure to deliver such a statement within such time shall constitute a conclusive presumption against the party which fails to deliver such statement that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. 2 .2 No Commissions Due. Agency and Participant each hereby warrant to the other that no person or entity can properly claim a right to a real estate brokerage commission, finder' s fee or other compensation based upon contracts or understandings between such claimant and Participant or Agency with respect to the transaction contemplated by this Agreement . Agency and Participant agree to indemnify, defend and hold the other party harmless from any claim, action, liability or expense arising out of any real estate brokerage commission, finder' s fee or other compensation based upon this Agreement . 2 .3 Execution of Documents. In addition to any documents expressly referred to in this Agreement to be executed by any or all parties, all parties agree to execute any and all documents which might be required to implement the provisions of this Agreement . 053/014084-0006/2172916.6 a05/27/97 -4- 2 .4 No Partnership Created. The relationship of Agency and Participant hereunder is that of seller and buyer and vice versa, and none of the provisions of this Agreement is intended to or does create a partnership or joint venture or relationship other than seller and buyer. 2 .5 Notices . All notices and communications desired or required to be sent or delivered hereunder shall be in writing and may be served personally, or shall be mailed, by certified mail, return receipt requested, as follows : Agency: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS P.O. Box 2743 Palm Springs, CA 92263 Attn: Executive Director With Copy to : RUTAN & TUCKER, LLP 611 Anton Blvd. , Suite 1400 Costa Mesa, CA 92623-9990 Attn: David J. Aleshire, Esq. Lori Sarner Smith, Esq. Declarant : RICHARD M. SERVICE, JR. 222 S . Palm Canyon Drive Palm Springs, CA 92262 With copy to: SCHLECHT, SHEVLIN & SHOENBERGER 801 East Tahquitz Canyon Way Suite 100 Palm Springs, CA 92663-2744 Attn: James M. Schlecht, Esq. or at such other address or addresses as any such Agency and Participant may designate, from time to time, by giving notice to each other in the form of a recorded change of address memorandum with respect to this Agreement . 2 . 6 S g inular & Plural. As used herein, the singular shall include the plural and the plural the singular unless the context otherwise requires, and words of gender may signify the masculine, feminine or neuter gender, as the context may require . 2 .7 No Third Party Beneficiarv. No provision of this Agreement or any transaction within its purview is intended nor shall in any way be construed to benefit any third party not specifically referenced herein as having such right . 2 . 8 Severability/Governing Law. The provisions herein shall be deemed independent and severable, and the invalidity or partial invalidity or unenforceability of any of the provisions hereof shall not affect the validity of the remaining provisions . This Agreement shall be governed by and construed in accordance with the laws of the State of California. 053/014064-0006/2172916.6 a05/27/97 -5- 0 0 2 .9 Time of the Essence. Time is of the essence of each of the terms, covenants and conditions of this Agreement . 2 .10 No Waiver. No waiver of any breach of any of the obligations in this Agreement shall constitute a waiver of any succeeding or preceding breach of the same, or any other covenant or restriction contained herein. 2 .11 Successors and Assigns. The successors and assigns of the Agency and Participant, shall be bound, burdened or benefitted hereby. 2 .12 Governing Law. This Agreement shall be governed by and construed under California law. 2 .13 No Violation of Law. Nothing contained herein shall be construed so as to require the commission of any act contrary to law and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance, or regulation contrary to which the parties have no legal right to contract, the latter shall prevail but the provisions of this Agreement which is affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law without invalidating or affecting the remaining provisions of this Agreement . 2 .14 Entire Agreement. This Agreement contains the entire agreement of the parties hereto with respect to the matters covered hereby, and all negotiations and agreements, statements or promises between the parties hereto or their agents with respect to this transaction are merged in this Agreement, which alone expresses the parties' rights and obligations and if not contained herein shall not be binding or valid against either of the parties hereto . 2 .15 Modification. Any amendments or modifications to this Agreement must be in writing and executed by all the parties to this Agreement . [THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK. ] 0531014084-0006/2172916.6 a05/27197 —(— 2 .16 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, but all of which, when taken together shall constitute one and the same instrument . IN WITNESS WHEREOF, the undersigned has executed this Option to Repurchase Agreement as .of the date first above written. "PARTICIPANT" Dated: RICHARD M. SERVICE, JR. Dated: PATRICIA D. SERVICE "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 053/014084-000612172916.6 a05/27197 -7- i • 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 I , 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 . Notary Public [SEAL] 0531014084-0006/2172916 6 a05/27/97 —$— EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY The Property is certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows: PARCEL lA BEING A PORTION OF LOT 3 , IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3, NORTH 89050100 " EAST A DISTANCE OF 114 . 00 FEET; THENCE SOUTH 00008' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET; THENCE SOUTH 1100014711 WEST A DISTANCE OF 20 .39 FEET TO THE SOUTH LINE OF SAID LOT 3; THENCE SOUTH 89050100" WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 110 . 06 FEET TO THE SOUTHWEST CORNER OF SAID LOT 3 ; THENCE NORTH 00008, 00" WEST ALONG THE WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 TO THE TRUE POINT OF BEGINNING. PARCEL 1B BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 OF SAID BLOCK 28 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89-50 , 00" EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 00008100 " EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. THENCE SOUTH 11000'47" WEST A DISTANCE OF 20 . 39 FEET TO THE NORTHERLY LINE OF SAID LOT 4 AND THE TRUE POINT OF BEGINNING. THENCE SOUTH 11000'47" WEST A DISTANCE OF 66.26 FEET; THENCE SOUTH 00008100" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 5, A DISTANCE OF 35 . 00 FEET TO THE SOUTHERLY LINE OF SAID LOT 5 . EXHIBIT "A" TO OPTION TO REPURCHASE AGREEMENT Page 1 of 2 053/014084-0006/2172916.6 a07/02/97 w THENCE SOUTH 89050' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 5 , A DISTANCE OF 2 . 00 FEET, SAID POINT BEING 50 . 00 WEST OF THE SOUTHEAST CORNER OF SAID LOT S . THENCE NORTH 00008 ' 00" WEST PARALLEL WITH THE WEST LINE OF SAID LOT 4 AND 5 A DISTANCE OF 100 . 00 FEET TO THE NORTH LINE OF SAID LOT 4; THENCE NORTH 89050' 00" EAST ALONG THE NORTH LINE OF SAID LOT 3 , A DISTANCE OF 14 . 81 FEET TO THE TRUE POINT OF BEGINNING. EXHIBIT "A" TO OPTION TO REPURCHASE AGREEMENT Page 2 of 2 053/014084-0006/2172916.6 a06/27/97 EXHIBIT "N" IN LIEU PARKING FUND PAYMENT Participant agrees to pay to City in-lieu parking fees in the amount of ONE HUNDRED FORTY-EIGHT THOUSAND DOLLARS ($148 , 000 . 00) ( "In-Lieu Parking Fees" ) , to be placed in the In-Lieu Parking Fund of the City in order to accommodate and satisfy the additional sixteen (16) parking spaces required by the Project . Upon issuance of the building permit for the Project, Participant shall execute and deliver to City the Promissory Note in the form attached as Exhibit 110" to this Owner Participation Agreement, which Promissory Note shall provide the terms of payment for the In-Lieu Parking Fees . EXHIBIT "N" TO OWNER PARTICIPATION AGREEMENT 053/014094-0006/2172916.6 z06/06/97 PROMISSORY NOTE $148, 000 . 00 1997 Palm Springs, California FOR VALUE RECEIVED, the undersigned, RICHARD M. SERVICE, JR. and PATRICIA D. SERVICE (collectively "Maker" ) do hereby promise to pay to THE CITY OF PALM SPRINGS, a municipal corporation ( "City" ) , or order, at 3200 East Tahquitz Canyon Way, Palm Springs, CA 92263 or such other address as City may designate from time to time, the principal sum of ONE HUNDRED FORTY-EIGHT THOUSAND DOLLARS ($148, 000 . 00) , together with interest thereon if owing pursuant to this Note at the rate described below, in lawful currency of the United States of America. Principal payments in the amount of EIGHTEEN THOUSAND FIVE HUNDRED DOLLARS ($18, 500 . 00) each shall be due commencing on the date which is two (2) years following issuance of certificate of occupancy for the improvements constructed on the Expansion Parcel (as such term is defined in the OPA referenced below) but in no event later than April 15, 2000 and continuing on the same day of each year thereafter until this Note is paid in full . If not sooner paid, the unpaid principal balance and accrued interest hereunder shall be due and payable on the date which is ten (10) years following issuance of certificate of occupancy for the improvements constructed on the Expansion Parcel, but in no event later than April 15, 2008 ( "Maturity Date" ) . Maker at its option may prepay any amount due under this Note, in whole or in part, without penalty. If any principal payment is not made within ten (10) days following the date due, such amount due and not paid shall bear interest at the rate of ten percent (10°s) per annum from the date due until paid. In addition, Maker agrees that if Maker fails to make any principal payment provided for herein more than ten (10) days written notice from City to Maker that same is due, it would be impracticable or extremely difficult to fix the actual damages resulting therefrom to City, and, therefore, Maker hereby agrees to pay to City, without any notice or demand by City, a late charge equal to five percent (5a) of any payment which is not made within such ten (10) day period, not as a penalty, but for the purpose of defraying the expenses incident to handling such delinquent payment. Such late charge represents the reasonable estimate of a fair average compensation for the loss that may be sustained by City due to the failure of Maker to make timely payments. Such late charge shall be paid without prejudice to the right of City to collect any other amount provided to be paid or to declare a default under this Note. Such late charge shall be payable not later than thirty (30) days after the due date of the delinquent payment. Any payments made by Maker in payment of this Note shall be applied first to costs and expenses of City incurred in collection EXHIBIT 11011 TO OWNER PARTICIPATION AGREEMENT 223/014084-0006/3075997.5 a06/17/97 or enforcement of this Note, if any, then to late fees, if any, then to interest then accrued on the unpaid principal balance under this Note, if any, and the remainder shall be applied to the reduction of the unpaid principal . This Note is being paid as part of the in-lieu parking fees owed by Maker to City pursuant to the certain Owner Participation Agreement dated for reference purposes June 10, 1997 entered into by and among Maker, City and The Community Redevelopment Agency of the City of Palm Springs ( "OPA" ) . City agrees that in the event City shall adopt a modification of its downtown parking and in-lieu parking fee program from the program existing as of the date of this Note, then, upon Maker' s written request, City shall determine the in-lieu parking fees and similar parking fees that would be imposed on Maker for adding an additional sixteen (16) spaces to the restaurant project on the Restaurant Parcel and the Expansion Parcel (as such terms are defined in the OPA) under the City' s adopted and revised parking program ( "Substitute In-Lieu Fee Amount" ) . City shall then subtract all principal payments previously made pursuant to this Note from the Substitute In-Lieu Fee Amount to derive the "Substitute In-Lieu Fee Difference" . City shall deliver written notice to Maker of the amount of the Substitute In-Lieu Fee Difference and the basis for City' s calculation and determination of same, and the date City delivers such notice to Maker shall be referred to herein as "City' s Substitute In-Lieu Fee Difference Notice" . Maker shall have the option to pay the entire Substitute In-Lieu Fee Difference in cash to City provided Maker delivers written notice of such election to City within sixty (60) days after receipt of City' s Substitute In- Lieu Fee Difference Notice. If Maker exercises its option to pay the entire Substitute In-Lieu Fee Difference in cash to City, Maker shall pay the entire Substitute In-Lieu Fee Difference to City in cash on or before the date which is one year following the date of City' s In-Lieu Fee Difference Notice. If Maker timely makes payment to the City of the Substitute In-Lieu Fee Difference, City shall accept such payment as payment in full of the principal then outstanding under this Note and shall forgive any principal over and above the Substitute In-Lieu Fee Difference. If Maker fails to pay such Substitute In-Lieu Fee Difference within such time period, Maker' s option and right to do so shall terminate and the outstanding indebtedness of this Note shall be paid in accordance with the terms hereof. In the event the Substitute In-Lieu Fee Difference is zero (or less than zero) , City shall cancel and forgive any principal then outstanding under this Note, however, notwithstanding that the Substitute In-Lieu Fee Difference may be less than zero, City shall have no obligation to reimburse or refund any portion of the in-lieu parking fees previously paid by Maker, whether paid prior to the date of this Note or made as principal payments under this Note. The occurrence of any of the following shall be an Event of Default under this Note: (i) default in any payment of principal within ten (10) days after written notice from City to Maker that same is due; or (ii) if a petition under any chapter of the Federal 223/014084-0006/3075997.5 .06/17197 -2- Bankruptcy law or any state bankruptcy or insolvency law is filed by Maker, if an involuntary petition of bankruptcy is filed against Maker and not dismissed within one hundred twenty (120) days after the filing date, if a receiver or trustee is appointed for Maker. Upon the occurrence of an Event of Default, City may, at its option, declare this Note and the entire indebtedness hereby evidenced, including without limitation, all principal and accrued interest, to be immediately due and payable and collectible then or thereafter as City may elect, regardless of the date of maturity, and notice of the exercise of said option is hereby expressly waived by Maker. Also, upon the occurrence of an Event of Default, Maker' s option to pay the In-Lieu Fee Difference and obtain partial forgiveness of this Note shall terminate. Upon the occurrence of any Event of Default, City may exercise any right or remedy under this Note and any other remedy available at law or equity, regardless of any prior forbearance. All of City' s remedies in connection with this Note or under applicable law shall be cumulative, and City' s exercise of any one or more of those remedies shall not constitute an election of remedies . From and after the Maturity Date, or such earlier date as all sums owing on this Note become due and payable by acceleration or otherwise, all sums owing on this Note (including accrued and unpaid interest) , shall bear interest from the date the payment becomes due until Maker pays in full, at an annual interest rate (in place of the rate hereinabove specified) equal to twelve percent (12%) per annum, or the maximum rate allowed by law, if less than said rate. If an Event of Default occurs and this Note is placed in the hands of an attorney for collection, or suit is filed hereon, or proceedings are had in bankruptcy, probate, receivership, or other judicial proceedings for the establishment or collection of any amount called for hereunder, Maker promises to pay all costs of collection, including, but not limited to, attorneys' fees and all expenses incurred in connection with the protection or realization of the collateral securing the payment hereof, incurred by City on account of such collection, whether or not suit is filed hereon. If more than one person or entity is signing this Note as Maker, their obligations under this Note will be joint and several . As to any Maker that is a partnership, the obligations of Maker under this Note are the joint and several obligation of each general partner thereof. Any married person signing this Note agrees that recourse may be had against community property assets and against his or her separate property for the satisfaction of all obligations contained herein. With respect to any person executing this Note as a trustee of a revocable trust, the liability of said person shall not be limited to said person' s interest in such trust or any trust property, and City shall have full and immediate recourse to any and all property of said person in his or her individual capacity for any and all obligations of said person in his or her trust capacity. 223/014084-0006/3075997.5 a06/17/97 -3- Maker and all endorsers, guarantors and persons liable or to become liable on this Note waive presentment, protest and demand, notice of protest, demand and dishonor and nonpayment of this Note, notice of interest on interest and late charges and any and all other notices or matters of a like nature, and consent to any and all renewals and extensions near the time of payment hereof and agree further that at any time and from time to time without notice, the terms of payment herein may be modified or the security described in any documents securing this Note released in whole or in part, or increased, changed or exchanged by agreement between City and any owner of the premises affected by said documents securing this Note, without in any way affecting the liability of any party to this Note or any persons liable or to become liable with respect to any indebtedness evidenced hereby. The unenforceability or invalidity of any provision or provisions of this Note as to any persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other provisions or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable. Neither this Note nor any term hereof may be waived, amended, discharged, modified, changed or terminated orally; nor shall any waiver of any provision hereof be effective except by an instrument in writing signed by Maker and City. No delay or omission on the part of City in exercising any right hereunder shall operate as a waiver of such right or of any other right under this Note. Notwithstanding any provision in this Note or any document now or hereafter securing this Note, the total liability for payment in the nature of interest shall not exceed the limit now imposed by applicable laws of the State of California. This Note has been executed and delivered by Maker in the State of California and is to be governed and construed in accordance with the laws thereof. Maker and each other person or entity jointly liable under this Note hereby consent to the jurisdiction of any competent court within the State of California and further consent to service of process by any means authorized by California law. IN WITNESS WHEREOF, Maker has executed this Promissory Note as of the date and year first above written. RICHARD M. SERVICE, JR. PATRICIA D. SERVICE "Maker" 223/014094-0006/3075997.5 a06/17/97 -4- 344915 RECEIVED FOR RECORD FREE RECORDING REQUESTED BY AT 8:00 O'CLOCK AND WHEN RECORDED MAIL TO: The Community Redevelopment SEP 2 21997" Agency of the City of Palm Springs 3200 East Tahquitz Canyon Way RemraCd i,OfLoa1 Records 0 Palm Springs, CA 92262 ,fNversmeceunry,carmrnfa � Recrorder A Attn: fit ' C�°�C°LP��� T-, Fees$ (For Recorder' s Use Only) DECLARATION OF COVENANTS, CONDITIONS wvvy�y�I AND RESTRICTIONS AND GRANT OF EASEMENT N THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANT OF EASEMENT (this "Declaration" or this "Agreement" ) is dated for reference purposes only as of Z6�2- a (� , 1997, by and among RICHARD M. SERVICE and PATRICIA D. SERVICE, husband and wife, as community property (collectively "Service") , MARY T. DELGADO and WELLS FARGO BANK, N.A. , AS CO-TRUSTEES OF THE FLORENCIO H. DELGADO AND MARY T. DELGADO REVOCABLE INTER VIVOS TRUST UTD JUNE 26, 1990 � 3 (the "Delgado Trust") , 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. Service and the Delgado Trust are hereinafter collectively referred to herein as the "Declarant" . B. The Delgado Trust 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 ( "Restaurant Property" ) . C. Service is the owner of that certain real property in the City of Palm Springs, County of Riverside, State of California more particularly described , on Exhibit "2" attached hereto and incorporated herein by reference located immediately adjacent to the Restaurant Property ( "Expansion Property" ) . D. The Restaurant Property and the Expansion Property are hereinafter jointly referred to herein as the "Property" and individually as a "Parcel . " E. The Property is within the Palm Springs Central Business District Redevelopment Project Area ( "Project Area" ) specifically 2231014084-0006/3076618.5 a06/17/97 344915 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 . F. 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 is depicted in Exhibit 113 " attached hereto and incorporated herein by reference ( "Public Parcel") . G. 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. H. Pursuant to the Redevelopment Plan, Service has entered into that certain Owner Participation Agreement dated June 10, 1997 for reference purposes, with the Agency and the City (the "Owner Participation Agreement") , which Owner Participation Agreement places certain restrictions on the Property. Pursuant to the City' s development requirements, the City has approved a site plan for the development of the Expansion Property as part of the restaurant on the Restaurant Property ( "Site Plan") , which plan places certain restrictions on the Property. Said Redevelopment Plan, Owner Participation Agreement and Site Plan (i) are on file and may be reviewed in the office of the executive director of the Agency ( "Executive Director" ) , in the Palm Springs City Hall and (ii) are each incorporated herein by this reference and made a part hereof as though fully set forth herein. I. The development of the expansion of the improvements on the Restaurant Property will involve building over the lot line between the Restaurant Property and the Expansion Property, which is not permitted by City building code requirements . City has nonetheless has approved the Site Plan subject to the transfer restrictions set forth in this Agreement. J. Declarant, the Agency and City intend, in exchange for the entering into the Owner Participation Agreement by the Agency and City and the approval of the Site Plan by City, that the Declarant 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. 223/014084-000613076618.5 a06117/97 -2- 344915 K. Declarant 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 restric- tions shall run to the benefit of the Public Parcel and bind the Property, the Declarant and its successors and assigns . NOW, THEREFORE, the Declarant, 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 General. The Property shall be developed and used only as permitted by the restrictions contained in the Site Plan, Redevelopment Plan and Owner Participation Agreement. 1.2 Maintenance Agreement. Declarant, for themselves and their successors and assigns, hereby covenant and agree to maintain and repair or cause to be maintained and repaired the Property and all related on-site improvements and landscaping thereon at its sole cost and expense, including, without limitation, buildings, parking areas, lighting, signs and walls, 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 following: (i) sweeping and trash removal; (ii) the care and replacement of all shrubbery, plantings, and other landscaping in a healthy condition; (iii) the repair, replacement and restriping of asphalt or concrete paving using the same type of material originally installed, to the end that such pavings at all times be kept in a level and smooth condition; and (iv) the repair and maintenance of two (2) fountains and all decorative walkways . In addition, Declarant 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. 223/014094-000613076618.5 u06/17/97 -3- 344915 1.3 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 . Declarant shall use its best efforts to insure that vehicles associated with the operation of the Property, including delivery vehicles, vehicles of customers and employees and vehicles of persons with business on the Property will park solely on the Property and not park on public streets or adjacent property. 1.4 Compliance With Ordinances. 1.4 . 1 Except as provided in Article 3 , Declarant shall comply with all ordinances, regulations and standards of the City and Agency applicable to the Property. 1.4 .2 Declarant shall provide any proposed tenants of any portion of the Property with a copy of the conditions to approval of the Site Plan and this Declaration and shall, prior to entering into any lease agreement, have the proposed tenant execute an affidavit agreeing to comply with the provisions of this Declaration. All lease agreements shall be in writing and shall contain provisions which make compliance with the conditions of the Site Plan and this Declaration and the requirements of the City relating to signs, permits and business licenses express covenants of the Lease. 1.4.3 Declarant shall comply with all rules and regulations of any assessment district of the City with jurisdiction over the Property. 1.5 Nondiscrimination. 1.5 .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 Declarant, 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 . 5 .2 Declarant 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) : 223/014084-0006/3076618.5 a06117/97 -4- i • 344915 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 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 223/014094-0006/3076618.5 a06/17/97 -j- �44915 discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of land. ,, 1.6 Outside Storage. No storage of any kind shall be permitted outside the building (s) located on the Property except for trash or other storage in any outside storage areas approved by the Agency or as required by law. Adequate trash enclosures shall be provided and screened. Locations of such areas and types of screening must be approved by the Executive Director. Gates for trash storage area shall be kept closed at all times except when in actual use. 1.7 Prohibition on Transfers. Prior to the recordation of the Certificate of Completion pursuant to Section 4 . 8 of the Owner Participation Agreement, Declarant shall not transfer the Owner Participation Agreement or any of Declarant Isrights thereunder, or any interest in the Property or in the improvements thereon, directly or indirectly, voluntarily or by operation of law, except in accordance with Section 4 . 8 of the Owner Participation Agreement. 1. 8 Public Agency Rights of Access. Declarant 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 TRANSFER RESTRICTIONS 2 .1 Conditional Building Code Compliance. 2 . 1.1 The City' s current building code and regulations prohibits openings between lot line boundaries, prohibits building over lot lines and requires certain setback requirements with respect to improvements on each Parcel in relationship to the adjoining Parcel (such prohibitions referred to herein as the "Lot Line Restrictions" ) . 2 .1.2 So long as any Service Affiliate or any Delgado Affiliate (as defined below) owns each of the Restaurant Property and the Expansion Property and both the Restaurant Property and the Expansion Property are leased under a single lease covering the Property for the operation of a restaurant to either a Service Affiliate or a Delgado Affiliate ( "Affiliate Restaurant Lease") , the City agrees that 223/0140840006/3076618.5 a06/17197 —6— 344915 the building (s) and other improvements on the Restaurant Property and the Expansion Property may be connected to be utilized as a single building and may otherwise cross the boundary line between the Restaurant Property and the Expansion Property and that, so long as all other requirements of the City and the City' s building code are satisfied with respect to such building (s) and improvements (including without limitation, setback requirements other than those relating to the setback in relation to the Parcel boundary line between the Restaurant Property and the Expansion Property) , the building (s) and improvements shall be deemed to be in compliance with the City' s Lot Line Restrictions. 2 .2 Transfer of Parcels. 2 .2 .1 In the event of a "Transfer" (as defined below) of either the Restaurant Property or the Expansion Property, the owner of the Restaurant Property and the Owner of the Expansion Property shall make such modifications to the building (s) and improvements on the Restaurant Property and the Expansion Property so as to cause the building (s) and improvements on each of the Restaurant Property and the Expansion Property to be in compliance with the City' s building code and other requirements, including without limitation, the Lot Line Restrictions . Without limiting the generality of the foregoing, all building(s) and improvements which cross over the lot boundary lines of the Restaurant Property and the Expansion Property shall, upon any Transfer, be relocated such that such building (s) and improvements no longer cross the lot boundary lines and satisfy all setback requirements with respect thereto. 2 .2 .2 For purposes of this Agreement, the term "Transfer" shall mean (i) any conveyance or other transfer of the fee title interest in either the Restaurant Property or the Expansion Property to any person or entity which is not either a "Service Affiliate" or a "Delgado Affiliate" (as defined below) ; and/or (ii) expiration or termination of the Affiliate Restaurant Lease. The term "Service Affiliate" shall mean (i) Richard M. Service, Jr. ( "R. Service" ) ; (ii) Patricia D. Service ( "P. Service") ; (iii) any parent, spouse, child, grandchild or sibling of R. Service or P. Service ( "Service Family Members") ; (iv) any entity in which either R. Service, P. Service or any Service Family Members hold an interest and, alone or together with any Delgado Affiliate, hold a controlling interest; or (v) any trust in which the beneficial interests are held by R. Service, P. Service or any Service Family Members . The term "Delgado Affiliate" shall mean (i) the Delgado Trust; (ii) Mary T. Delgado ( "M. Delgado" ) ; (iii) any parent, spouse, child, grandchild or sibling of M. Delgado ( "Delgado Family Members" ) ; (iv) any entity in which either M. Delgado, the Delgado Trust or any Delgado Family Members hold an interest and, alone or together with any Service Affiliate, hold a controlling interest; or 223/014094-0006/3976618.5 a06117/97 -7- 344915 (v) any trust in which the beneficial interests are held by M. Delgado or any Delgado Family Members . The term "Transfer" shall exclude a hypothecation, assignment or other transfer for security purposes only, provided that the requirements in Section 2 .2 . 1 shall apply upon the holder of such security interest or their assignee or transferee in foreclosure acquiring an interest as owner of the Restaurant Property or the Expansion Property. 2 .2 .3 The term "Transfer" shall exclude any transfer or conveyance of fee interest in both the Restaurant Property and the Expansion Property to a single owner, whether or not such owner is a Service Affiliate or a Delgado Affiliate, provided that in the event of such transfer to a single owner, such owner shall execute such documents and perform such acts as are necessary to consolidate the Restaurant Property and the Expansion Property as one legal parcel . ARTICLE 3 ENFORCEMENT 3 .1 Event of Default. An "Event of Default" under this Declaration shall mean (i) any Transfer of the Restaurant Property or the Expansion Property unless the actions described in Section 2 .2 .1 are undertaken and completed substantially concurrently therewith; (ii) any conveyance of both the Restaurant Property or the Expansion Property to a single owner unless consolidation of the Restaurant Property and the Expansion Property are undertaken and completed substantially concurrently therewith; and/or (iii) any other breach or default by the owner of the Restaurant Property or the Expansion Property of the terms and conditions of this Declaration. 3 .2 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. 3 .3 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. 3 .4 Other Rights of Agency and City. In the event of any violation or threatened violation of any of the provisions of this Declaration not cured within thirty (30) days after written notice from City or Agency to the owner of the Restaurant Property and the 223/014084-0006/3076618.5 a06/17197 -a- 344915 Expansion Property, 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. 3 .5 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 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 4 .5 may be recorded by the Agency or the City 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 4 .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 223/014084-0006/3076618.5 a06117/97 -9- • 344915 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. ARTICLE 4 ENCUMBRANCES, MORTGAGE PROTECTION AND TAXES 4.1 Declarant' s Breach Not to Default Mortgage Lien. Declarant' s breach of any of the covenants or restrictions contained in this Declaration or the Owner Participation Agreement 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 or the Owner Participation Agreement; but, unless otherwise herein provided, the terms, conditions, covenants, restrictions and reservations of this Declaration and the Owner Participation Agreement 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. 4.2 Amendments or Modifications to Declaration. No purported rule, regulation, modification, amendment and/or termination of this Declaration or the Owner Participation Agreement 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. 4 .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 223/014084-0006/3076618.5 a06/17/97 -10- 344915 the foreclosure of any such mortgage and/or deed of trust, all other liens and 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 3 .5 . 4.4 Payment of Taxes and Assessments. Declarant shall pay, when due, all real estate taxes and assessments assessed or levied against the Property. Nothing herein contained shall be deemed or prohibit Declarant from contesting the validity or amounts of any tax or assessments nor to limit the remedies available to Declarant with respect thereto. ARTICLE 5 COVENANTS TO RUN WITH THE LAND 5.1 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. Declarant 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 Declarant, its successors and assigns and successors in interest; and may be enforced by the Agency and City. Agency and Declarant hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that Declarant' s legal interest in the Property is rendered less valuable thereby. Agency and Declarant 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. 5.2 Agreement Among Declarant Agency and City. The Declarant, in exchange for entering the Owner Participation Agreement by the Agency and granting of the Site Plan by City, hereby agrees to hold, sell, and convey the Property subject to the covenants, conditions, restrictions and reservations of this 223/014084-0006/3076618.5 a06/17/97 -].1 344915 Declaration. Declarant 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 Declarant and all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns . ARTICLE 6 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. ARTICLE 7 RESTAURANT PROPERTY OWNER PARTICIPATION AGREEMENT The Agency and Florencio H. and Mary Delgado (the "Delgados") entered into that certain Owner Participation Agreement dated July 20, 1977, as approved by the Agency Board pursuant to its Resolution No. 65, relating to the Restaurant Property, as amended by a Supplemental Agreement dated December 7, 1977, and approved by the Agency Board pursuant to its Resolution No. 72 , and as amended by Amended Agreement No. 2 dated June 6, 1990, which was approved by the Agency Board pursuant to its Resolution No. 698 and by City by its Resolution No. 17154, and recorded July 19 , 1990 as Instrument No. 265636 (as amended, the "Delgado OPA") The Delgado OPA shall be deemed terminated effective as of the recordation of this Declaration and superseded in its entirety by this Declaration and the Owner Participation Agreement. ARTICLE 8 MISCELLANEOUS 8.1 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. 8.2 Governing Law. This Declaration shall be governed by and construed in accordance with the laws of the State of California: 8.3 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 223/014084-0006/3076618.5 a06/17/97 -12- 344915 when implied to another party or to a different set of circumstances. 8.4 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. Lori Sarner Smith, Esq. Declarant: RICHARD M. SERVICE, JR. 222 S. Palm Canyon Drive Palm Springs, CA 92262 With Copy to: SCHLECHT, SHEVLIN & SHOENBERGER 801 East Tahquitz Canyon Way Suite 100 Palm Springs, CA 92663-2744 Attn: James M. Schlecht, Esq. 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. [THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK. ] 223/014084-0006/3076618.5 a06/17/97 -1 3- 344915 8.5 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 Declaration of Covenants, Conditions and Restrictions and Grant of Easement as of the date set forth by their"signatures low. DEC4ARANr—"� Dated: �y RICHARD M. SERVICE, JR. Dated: �U' ! (3 , ilit/�i! PATRICIA D. SERVICE "Service" WELLS FARGO BANK, N.A. AS CO-TRUSTEE OF THE FLORENCIO H. DELGADO AND MARY T. DELGADO REVOCABLE INTER VIVOS TRUST UTD JUNE 26, 1990 Dated: �3 D/ 7 n� By: Its: ViG�WL-5,1 L(,+ Dated: Z�:vv� Y T. DELGADO AS CO-TRUSTEE OF THE FLORENCIO H. DELGADO AND MARY T. DELGADO REVOCABLE INTER VIVOS TRUST UTD JUNE 26, 1990 "Delgado Trust" [Signatures continue on next page] 223/014084-0006/3076619.5 a06117/97 -14- 344915 [Signatures continued from preceding page] "AGENCY" THE CO LOPMENT AGENCY OF T CITY OF PALM NGS Dated: ( , /t 97 By: Its• E ecutive Director ATTEST: Agin Secretary APPROVED AS TO FORM: RUTA�N & TUCKER, LLP David Aleshire, Esq. Agency Counsel "CITY" THE4OFLM SPR Dated: > � /�9� By: anager ATTEST: Ci lerk APPROVED AS TO FORM: RUTAN & TUCKER, LLP David Aleshire, Esq. Agency Counsel 223/014094-0006/3076618.5 a06/17/97 944915 STATE OF CALIFORNIA,, ) COUNTY OFF SS . On (f ? C( before me, (Jyl'q personall appeared �y]Q2u T it n personally known to me F c_ t&ry-ev�) to be the person(O whose name () is/aT,-subscribed to the within instrument and acknowledged to me that Y7,e-/she/titer executed the same in lris her/the-ri- authorized capacity(i-es) , and that by hi-s/her/t-lie-ir signature (,%-T on the instrument the person(e) or the entity upon behalf of which the person(s7 acted, executed the instrument. official seal . o NA LEECOMM #1021 p1pN =. c�1ne,s ta¢uot N+av PLMC-CalbTAe o Q t11VERNDE COUNTY1+1V COMM. rAPO 90 199! Notary Public [ E ] STATE OF CALIFORNIA ) COUNTY OFjV�SIDE ) ss . /g On c�0 //c before me, personal y appea ed � personally known to me (or proved to me on the basis of satisfac- tory evidence) to be the person(s) whose name (s) is{� subscribed to the within instrument and acknowledged to me that hi�sheht4ley executed the same in kss- her/+4i-e� authorized capacity(les , and that by histher/-tixezr signature (-s-3 on the instrument the person(-s4 or the entity upon behalf of which the person(ss•} acted, executed the instrument. Witness my hand and official seal . [SEAL] Notary ubli CAROL A.MORENO Conmtsbn#1103767 -� NOtW Wb1C—Ca1fa1N0 My Comm.Bpk%JN 15.2= 223/014084-0006/3076619.5 a06/17/97 -l 6- 344915 STATE OF CALIFORNIA ) ss . COUNTY OF PjVeR.SlDB ) On ;nb#4E 30 1g9r before me, F1,69-twete f„ RoSS personally appeared _ jejc�" 3) DD . Ser jU I t E Al 1fp PATRI C.11i D SE12 lV GE 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 persons) or the entity upon behalf of which the person (s) acted, executed the instrument. Witness my hand and official seal. .,o ///1. _ ,i�-y n..� X. a�a� Notary Public (SEAL] RORENCE L 2 42 Cormirbn 11127421 NofayR"0—Co amb WN*b Cow y My Comm.F1q ku Mv/23.20G1 223/014084-0006/3076618.5 a06/17/97 -1 7- 344915 State of California SS . County of Riverside On � / before me, ELAINE L. WEDEKIND, NotaryPublic, per o 12y ppeared *** ROB W. PARKINS and 7 Se su UMICH ***, personally known to me to bet e persons w ose names ar scribed 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 Pu �:.'•. EU+INE L WEDEKIND COMM.#1048857 z Notary Public—California z "" °` RIVERSIDE COUNtt ' My Comm.Explres FEB 3,1999 i 344915 EXHIBIT "1" LEGAL DESCRIPTION OF THE RESTAURANT PROPERTY The Restaurant Property is that certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows: Parcel 1 Lots 4 and 5 in Block 28 of Palm Springs Tract, as shown by Map on file in Book 9, Page 432, of Maps, Records of San Diego County, California_ Parcel 2 Any easements appurtenant to Parcel 1 or used in conjunction with Parcel 1 in the operation of the Las Casuelas Terraza Restaurant. EXHIBIT 111" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS 223/014094-0006/3076619.5 a06/17/97 -344915 EXHIBIT "2" LEGAL DESCRIPTION OF THE EXPANSION PROPERTY The Expansion Property is certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows : PARCEL lA BEING A PORTION OF LOTS 3, IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89-50, 00 -1 EAST A DISTANCE OF 114. 00 FEET; THENCE SOUTH 000081001, EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET; THENCE SOUTH 11000'47" WEST A DISTANCE OF 20 . 39 FEET TO THE SOUTH LINE OF SAID LOT 3 ; THENCE SOUTH 89050, 001, WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 110 . 06 FEET TO THE SOUTHWEST CORNER OF SAID LOT 3 ; THENCE NORTH 00008 , 001, WEST ALONG THE WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 TO THE TRUE POINT OF BEGINNING. PARCEL 1B BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE. NORTHWEST CORNER OF SAID LOT 3 OF SAID BLOCK 28, THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89-50, 001, EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 00008 ' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. THENCE SOUTH 11000 ' 47" WEST A DISTANCE OF 20 .39 FEET TO THE NORTHERLY LINE OF SAID LOT 4 AND THE TRUE POINT OF BEGINNING. THENCE SOUTH 11000 ' 47" WEST A DISTANCE OF 66 .26 FEET; THENCE SOUTH 0000810011 EAST PARALLEL WITH THE WEST LINE OF SAID LOT 5, A DISTANCE OF 35 . 00 FEET TO THE SOUTHERLY LINE OF SAID LOT 5 . EXHIBIT 112 " TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 1 of 2 223/014084-0006/3076618.5 .07/02/97 344915 THENCE SOUTH 89050' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 5, A DISTANCE OF 2 . 00 FEET, SAID POINT BEING 50 . 00 WEST OF THE SOUTHEAST CORNER OF SAID LOT 5 . THENCE NORTH 00008 ' 00" WEST PARALLEL WITH THE WEST LINE OF SAID LOT 4 AND 5 A DISTANCE OF 100 . 00 FEET TO THE NORTH LINE OF SAID LOT 4; THENCE NORTH 89050' 00" EAST ALONG THE NORTH LINE OF SAID LOT 3 , A DISTANCE OF 14 . 81 FEET TO THE TRUE POINT OF BEGINNING. EXHIBIT "2" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Page 2 of 2 223/014084-0006/3076618.5 a06/27197 344915 EXHIBIT "3" DEPICTION OF PUBLIC PARCEL The Public Parcel is that certain real property in the City of Palm Springs, County of Riverside, State of California, legally described as follows: - ROAD � - ' f — see` 9AloY4 I • • . 4 : t / - � 21 I yd&/Ab sf P OIL-032 — _ O NP lL / A 7F6 'i -1 1 _ 23 �• D/1-DD8 ly ffoi. Ax ®- ly1 - J.O/04 GAS 44SUd a3 ' /6 24 /53 a H i do * F 3,5 / O - 23 r >:.eP=3 ,�,_y I [.f.7t S. 4 20 N v V � II.TJ 0.0&4.t V _ - ' Pore O 4 - y _ Q ..,. Q d/I6 7. . '- O /e SAi1e.✓+ -;,.i�j; .�: �- - 14, r��Dwuects t xr a 1o !OP?t,LSaPU//,EE i ldd 3. b ti 0 s o3/F ©9 OQ Par /3./083 ✓08�, ® .xOH7 .,� 'Pld/S2 /rr.f]' //ofZ Q Par TPO//3574� Q Zy 9 / . 618Rc. '•." a 1.14Ac.Nl. - / L 444 A"ZI 1 . 3.aD68 L A5r44. -WFi-,A -w I its.>r - -ROAD— -f-•- _ � _ , ASSESSOR'S MAPSK.5/3 PG.45 --- RIVERSIDE COUNTY, CAL/F. EXHIBIT 113" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS 223/014084-000613076618.5 ]06/17/97 PROMISSORY NOTE $148, 000 . 00 September 22, 1997 Palm Springs, California FOR VALUE RECEIVED, the undersigned, RICHARD M. SERVICE, JR. and PATRICIA D. SERVICE (collectively "Maker" ) do hereby promise to pay to THE CITY OF PALM SPRINGS, a municipal corporation ( "City" ) , or order, at 3200 East Tahquitz Canyon Way, Palm Springs, CA 92263 or such other address as City may designate from time to time, the principal sum of ONE HUNDRED FORTY-EIGHT THOUSAND DOLLARS ($148 , 000 . 00) , together with interest thereon if owing pursuant to this Note at the rate described below, in lawful currency of the United States of America. Principal payments in the amount of EIGHTEEN THOUSAND FIVE HUNDRED DOLLARS ($18, 500 . 00) each shall be due commencing on the date which is two (2) years following issuance of certificate of occupancy for the improvements constructed on the Expansion Parcel (as such term is defined in the OPA referenced below) but in no event later than April 15 , 2000 and continuing on the same day of each year thereafter until this Note is paid in full . If not sooner paid, the unpaid principal balance and accrued interest hereunder shall be due and payable on the date which is ten (10) years following issuance of certificate of occupancy for the improvements constructed on the Expansion Parcel, but in no event later than April 15, 2008 ( "Maturity Date" ) . Maker at its option may prepay any amount due under this Note, in whole or in part, without penalty. If any principal payment is not made within ten (10) days following the date due, such amount due and not paid shall bear interest at the rate of ten percent (10%) per annum from the date due until paid. In addition, Maker agrees that if Maker fails to make any principal payment provided for herein more than ten (10) days written notice from City to Maker that same is due, it would be impracticable or extremely difficult to fix the actual damages resulting therefrom to City, and, therefore, Maker hereby agrees to pay to City, without any notice or demand by City, a late charge equal to five percent (5%) of any payment which is not made within such ten (10) day period, not as a penalty, but for the purpose of defraying the expenses incident to handling such delinquent payment. Such late charge represents the reasonable estimate of a fair average compensation for the loss that may be sustained by City due to the failure of Maker to make timely payments . Such late charge shall be paid without prejudice to the right of City to collect any other amount provided to be paid or to declare a default under this Note. Such late charge shall be payable not later than thirty (30) days after the due date of the delinquent payment. Any payments made by Maker in payment of this Note shall be applied first to costs and expenses of City incurred in collection 223/0140&4-0006/3075997.5 a06/17/97 !�;i'i ilk �C. ✓': a. -. or enforcement of this Note, if any, then to late fees, if any, then to interest then accrued on the unpaid principal balance under this Note, if any, and the remainder shall be applied to the reduction of the unpaid principal . This Note is being paid as part of the in-lieu parking fees owed by Maker to City pursuant to the certain Owner Participation Agreement dated for reference purposes June 10, 1997 entered into by and among Maker, City and The Community Redevelopment Agency of the City of Palm Springs ( "OPA" ) . City agrees that in the event City shall adopt a modification of its downtown parking and in-lieu parking fee program from the program existing as of the date of this Note, then, upon Maker' s written request, City shall determine the in-lieu parking fees and similar parking fees that would be imposed on Maker for adding an additional sixteen (16) spaces to the restaurant project on the Restaurant Parcel and the E�,pansion Parcel (as such terms are defined in the OPA) under the City' s adopted and revised parking program ( "Substitute In-Lieu Fee Amount" ) . City shall then subtract all principal payments previously made pursuant to this Note from the Substitute In-Lieu Fee Amount to derive the "Substitute In-Lieu Fee Difference" . City shall deliver written notice to Maker of the amount of the Substitute In-Lieu Fee Difference and the basis for City' s calculation and determination of same, and the date City delivers such notice to Maker shall be referred to herein as "City' s Substitute In-Lieu Fee . Difference Notice" . Maker shall have the option to pay the entire Substitute In-Lieu Fee Difference in cash to City provided Maker delivers written notice of such election to City within sixty (60) days after receipt of City' s Substitute In- Lieu Fee Difference Notice. If Maker exercises its option to pay the entire Substitute In-Lieu Fee Difference in cash to City, Maker shall pay the entire Substitute In-Lieu Fee Difference to City in cash on or before the date which is one year following the date of City' s In-Lieu Fee Difference Notice. If Maker timely makes payment to the City of the Substitute In-Lieu Fee Difference, City shall accept such payment as payment in full of the principal then outstanding under this Note and shall forgive any principal over and above the Substitute In-Lieu Fee Difference. If Maker fails to pay such Substitute In-Lieu Fee Difference within such time period, Maker' s option and right to do so shall terminate and the outstanding indebtedness of this Note shall be paid in accordance with the terms hereof . In the event the Substitute In-Lieu Fee Difference is zero (or less than zero) , City shall cancel and forgive any principal then outstanding under this Note, however, notwithstanding that the Substitute In-Lieu Fee Difference may be less than zero, City shall have no obligation to reimburse or refund any portion of the in-lieu parking fees previously paid by Maker, whether paid prior to the date of this Note or made as principal payments under this Note. The occurrence of any of the following shall be an Event of Default under this Note: W default in any payment of principal within ten (10) days after written notice from City to Maker that same is due; or (ii) if a petition under any chapter of the Federal 223/014084-0006/3075997.5 a06117/97 -2- Bankruptcy law or any state bankruptcy or insolvency law is filed by Maker, if an involuntary petition of bankruptcy is filed against Maker and not dismissed within one hundred twenty (120) days after the filing date, if a receiver or trustee is appointed for Maker. Upon the occurrence of an Event of Default, City may, at its option, declare this Note and the entire indebtedness hereby evidenced, including without limitation, all principal and accrued interest, to be immediately due and payable and collectible then or thereafter as City may elect, regardless of the date of maturity, and notice of the exercise of said option is hereby expressly waived by Maker. Also, upon the occurrence of an Event of Default, Maker' s option to pay the In-Lieu Fee Difference and obtain partial forgiveness of this Note shall terminate. Upon the occurrence of any Event of Default, City may exercise any right or remedy under this Note and any other remedy available at law or equity, regardless of any prior forbearance- All of City' s remedies in connection with this Note or under applicable law shall be cumulative, and City' s exercise of any one or more of those remedies shall not constitute an election of remedies . From and after the Maturity Date, or such earlier date as all sums owing on this Note become due and payable by acceleration- or otherwise, all sums owing on this Note (including accrued and unpaid interest) , shall bear interest from the date the payment becomes due until Maker pays in full, at an annual interest rate (in place of the rate hereinabove specified) equal to twelve percent (120) per annum, or the maximum rate allowed by law, if less than said rate. If an Event of Default occurs and this Note is placed in the hands of an attorney for collection, or suit is filed hereon, or proceedings are had in bankruptcy, probate, receivership, or other judicial proceedings for the establishment or collection of any amount called for hereunder, Maker promises to pay all costs of collection, including, but not limited to, attorneys' fees and all expenses incurred in connection with the protection or realization of the collateral securing the payment hereof, incurred by City on account of such collection, whether or not suit is filed hereon. If more than one person or entity is signing this Note as Maker, their obligations under this Note will be joint and several . As to any Maker that is a partnership, the obligations of Maker under this Note are the joint and several obligation of each general partner thereof . Any married person signing this Note agrees that recourse may be had against community property assets and against his or her separate property for the satisfaction of all obligations contained herein. With respect to any person executing this Note as a trustee of a revocable trust, the liability of said person shall not be limited to said person' s interest in such trust or any trust property, and City shall have full and immediate recourse to any and all property of said person in his or her individual capacity for any and all obligations of said person in his or her trust capacity. 223/014084-0006/3075997.5 .06/17197 -3- _ _ 4 e I ' Maker and all endorsers, guarantors and persons liable or to become liable on this Note waive presentment, protest and demand, notice of protest, demand and dishonor and nonpayment of this Note, notice of interest on interest and late charges and any and all other notices or matters of a like nature, and consent to any and all renewals and extensions near the time of payment hereof and agree further that at any time and from time to time without notice, the terms of payment herein may be modified or the security described in any documents securing this Note released in whole or in part, or increased, changed or exchanged by agreement between City and any owner of the premises affected by said documents securing this Note, without in any way affecting the liability of any party to this Note or any persons liable or to become liable with respect to any indebtedness evidenced hereby. The unenforceability or invalidity of anv provision or provisions of this Note as to any persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other provisions or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable. Neither this Note nor any term hereof may be waived, amended, discharged, modified, changed or terminated orally; nor shall any waiver of any provision hereof be effective except by an instrument in writing signed by Maker and City. No delay or omission on the part of City in exercising any right hereunder shall operate as a waiver of such right or of any other right under this Note. Notwithstanding any provision in this Note or any document now or hereafter securing this Note, the total liability for payment in the nature of interest shall not exceed the limit now imposed by applicable laws of the State of California. This Note has been executed and delivered by Maker in the State of California and is to be governed and construed in accordance with the laws thereof . Maker and each other person or entity jointly liable under this Note hereby consent to the jurisdiction of any competent court within the Sta �f California and further consent to seraice of process by an means uthorized by California law. IN WITNESS WHEREOF, Maker has e eu thi Promisso y Note as of the date and year first above rit n. RICHARD M. SERVICE' JR. �PATRICIA D. SERVICES "Maker" 223/014084-0006/3075997.5 a06117/97 -4- _i _, 1 • �� 14MC37 RECEIVED FOR RECORD FREE RECORDING REQUESTED BY AT $ROAM O'CLOCK AND WHEN RECORDED RETURN TO: COMMUNITY REDEVELOPMENT AGENCY OF APR 0 7 1999 THE CITY OF PALM SPRING, CALIFORNIA a.mmin01kWm6 r& 3200 East Tahquitz Canyon Way ul Fit a.w000&j,Odbml" Palm Springs, CA 92263 Recorder Attn: Fees$ (Space Above Line for Recorder's Use Only) CERTIFICATE OF COMPLETION 51 AND TERMINATION OF OPTION TO REPURCHASE AGREEMENT Pursuant to that certain Owner Participation Agreement (the "Agreement" ) dated June 10, 1997 for reference purposes, by and among THE CITY OF PALM SPRINGS ( "City" ) , THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA ( "Agency" ) , and RICHARD M. SERVICE, JR. and PATRICIA D. SERVICE, husband and wife, as community property (collectively "Participant" ) , Participant has improved that certain real property (the "Parcel" ) , legally described on Attachment No. 1 attached hereto and incorporated herein by reference, according to the terms and conditions of said Agreement . Pursuant to Section 4 . 8 of the Agreement, promptly after completion of all construction work to be completed by Participant upon the Parcel, and upon request by Participant, Agency shall furnish Participant with a Certificate of Completion in such form as to permit it to be recorded in the Official Records of the County of Riverside . The issuance by Agency of the Certificate of Completion shall be conclusive evidence that Participant has complied with the terms of the Agreement pertaining to the redevelopment of the Parcel . Participant has requested that Agency furnish Participant with the Certificate of Completion. Agency has conclusively determined that the improvement of the Parcel has been satisfactorily completed as required by the Agreement . The Agreement provided for certain covenants to run with the land, which covenants were incorporated in the Grant Deed whereby the Agency conveyed the Parcel to Participant (the "Deed" ) and that certain Declaration of Covenants, Conditions and Restrictions executed by Participant and Florencio H. Delgado and Mary Delgado and recorded concurrently with the Grant Deed (the "CC&Rs" ) . 053/014084-0006/2172916.6 205/27/97 �`„'- nocu�/.Cr- 84 ;� �JN4�tFt�81,J i Pr' 146667 Pursuant to the ,A reement Participant also entered into that g P certain Option to Repurchase Agreement which was recorded concurrently with the Grant Deed against the Property on , 1997 as Instrument No. -!Z� in the Official Records of ive side County (the "Repurchase Agreement" ) . NOW, THEREFORE : 1 . As provided in the Agreement, Agency does hereby certify that improvement of the Parcel has been fully and satisfactorily performed and completed, and that such redevelopment is in full compliance with the Agreement . 2 . The Agency hereby releases, terminates and quitclaims all right, title and interest in the Repurchase Agreement to Participant and the Repurchase Agreement is deemed terminated and of no further force or effect . 3 . Except as set forth in Section 2 above, this Certificate of Completion shall not constitute evidence of Participant' s compliance with the Deed and the CC&Rs, the provisions of which shall continue to run with the land. 4 . This Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Participant :o any holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance construction work on the Parcel, or any part thereof . Nothing contained herein shall modify in any way any other provision of said Agreement . 5 . This Certificate is not a Notice of Completion as referred to in California Civil Code Section 3093 . G . Except as stated herein, nothing contained in this instrument shall modify in any way any other provisions of the Agreement or any other provisions of the documents incorporated therein. IN WITNESS WHEREOF, Agency has executed this Certificate of Completion and Termination of Option to Repurchase Agreement as of this �a�' day of _�q�y�h 1991 . THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY.-OF--PA- RINGS, CALIFORNIA, a publ c body, cor o to and politic By: Execu ive Director 053/014084-0006/2172916.6 a05/27/97 —2— ORISFINi�°y' , ��OE-0��QP-1 4 ,I 14f GG7 STATE OF CALIFORNIA ) ss . COUNTY OF ) On Q/L Cu , before me C�141WL L I. )A personally appear d GU. personally known to me —sat}sae- to be the person(/) whose name ( i /are subscribed to the within instrum� and acknowledged to me that he she/they executed_t.tie same in >_ her/their authorized capacity (ies) and that b /her/their signature (V) on the instrument the person O or the entity upon behalf of which the person( acted, executed the instrument . Witness my hand and official seal . Notary Pub lid [SEAL] r ELAINE L.WEDEKIND K COMM.#1206984 „NOTARY PUBLIC-CALIFORNIAG RIVERSIDE COUNTY 0 p n�L COMPA EXP.FEB.3,2003 g,ga RED (€uxt mrrvvvp 053/014094-0006/2172916.6 a0512707 —3— 14GG67 ATTACHMENT NO. 1 LEGAL DESCRIPTION OF THE PARCEL The Parcel is certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows : PARCEL lA BEING A PORTION OF LOT 3 , IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3, NORTH 89050' 00" EAST A DISTANCE OF 114 . 00 FEET; THENCE SOUTH 00008 ' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET; THENCE SOUTH 11000' 47" WEST A DISTANCE OF 20 . 39 FEET TO THE SOUTH LINE OF SAID LOT 3 ; THENCE SOUTH 89050' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 110 . 06 FEET TO THE SOUTHWEST CORNER OF SAID LOT 3 ; THENCE NORTH 00008' 00" WEST ALONG THE WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 TO THE TRUE POINT OF BEGINNING. PARCEL 1B BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 OF SAID BLOCK 28 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89G50 ' 00" EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 00008' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. THENCE SOUTH 11000' 47" WEST A DISTANCE OF 20 . 39 FEET TO THE NORTHERLY LINE OF SAID LOT 4 AND THE TRUE POINT OF BEGINNING. THENCE SOUTH 11000' 47" WEST A DISTANCE OF 66 .26 FEET; THENCE SOUTH 00008' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 5 , A DISTANCE OF 35 . 00 FEET TO THE SOUTHERLY LINE OF SAID LOT 5 . ATTACHMENT NO. 1 TO CERTIFICATE OF COMPLETION AND TERMINATION OF OPTION TO REPURCHASE AGREEMENT Page 1 of 2 0531014084-0006/2172916.6 .07102197 J 146667 THENCE SOUTH 89°50' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 5 , A DISTANCE OF 2 .00 FEET, SAID POINT BEING '50 .00"?VST OF THE SOUTHEAST CORNER OF SAID LOT 5 . THENCE NORTH 00008' 00" WEST PARALLEL W .TH THE WET LINE OF SAID LOT 4 AND 5 A DISTANCE OF 100 . 00 FEET ;, THE NO H LINE OF SAID LOT 4; THENCE NORTH 89050100" EAST ALONG THE NORTH LINE OF SAID LOT 3 , A DISTANCE OF 14. 81 FEET TO THE TRUE POINT OF BEGINNING. ATTACHMENT NO. 1 TO CERTIFICATE OF COMPLETION AND TERMINATION OF OPTION TO REPURCHASE AGREEMENT Page 2 of 2 �0531014064-0006/2172916.6 a06127/97 � 344913 order No. I Z g 2 7�// Escrow No. RECEIVED FOR RECORD Loan No. AT 8:00 O'CLOCK WHEN RECORDED MAIL TO: fs �i I D SEP 2 u 1997 PMI- RN TO.- Doc. TransfoltTax N3�E�r\ R . Rec�rdtd,n 011ioal Reca,ds fV. (.0. Recorder ca n.�esme CITY OF PALM SPRINGS "`��, Recordur BOX2743 I� .... .' PALM SPRINGS.CA MW Fees$ tDt��OCUMENTARY TRANSFER TAX$ 113, XU SPACE ABOVE THIS LINE FOR RECORDER'S USE X.-Computed on the consideration or value of property conveyed;OR , D .....Computed on the consideration or value less liens or encumbrances u4��f-G/`'S�l/L�C�t � ✓f. remaining at time of sale. Signature of Declarant or Agent Seterminmg tax-firm Name 1/—0CJ M/d 513_/Sy-0 GRANT DEED 573-tS`f—c,3/3 FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic hereby GRANT(S) to RICHARD M. SERVICE, JR. and PATRICIA D. SERVICE, husband and wife, as community property, the real property in the City of Palm Springs, County of Riverside, State of California, described as [See EXHIBIT "A" attached hereto and incorporated herein by this reference.] Dated -Z 1997 THE C UNITY REDEV ENT AGENCY OF THE CIT OF PALM SPRINGS, a lie o , corporate and politic } C7 STATE OF CALlt0 IA' } By: COUNTY OF Its: } — — Its: On e before me, � I FilylL.e personally appeared 14 per nally known to me (oFpreued-te-xne�nfl,e-basis-ef_sags- -factety-evidenee)- to be the persort('xs whose names(;:,}1 is/Ari subscribed to the within instrument and acknowledged to me EIAINE L.WEDEKIND ,;K'= -E-=_ that be/she/Q executed the same in his/her air uthorized COMM.#1048557 z -,e ; r z s '; Notary Public—California capacr res and that by his/herA�signaturesl7a on the "1. RIVERSIDE COUNTY instrument the person(('s)}1 or the entity upon behalf of which � f,dY Cornm,,.E::Pires FEB 3,1999 the personaacted, executed the instrument. WITNESS my hand and official seal. Signature jh,e arc.for official..um l awl) MAR, TAX STATEMENTS AS DIRECTED TO: [Same as above] 526/014084-000613075729.2 .06/17197 1002(1/94) • . 344913 EXHIBIT "A" LEGAL DESCRIPTION PARCEL lA BEING A PORTION OF LOT 3 , IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89050' 00" EAST A DISTANCE OF 114 . 00 FEET; THENCE SOUTH 00008' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET; THENCE SOUTH 11000 ' 47" WEST A DISTANCE OF 20 .39 FEET TO THE SOUTH LINE OF SAID LOT 3 ; THENCE SOUTH 89050' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 110 . 06 FEET TO THE SOUTHWEST CORNER OF SAID LOT 3 ; THENCE NORTH 00008' 00" WEST ALONG THE WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 TO THE TRUE POINT OF BEGINNING. PARCEL 1B BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS , RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 OF SAID BLOCK 28 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89050' 00" EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 00008 ' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. THENCE SOUTH 11000' 47" WEST A DISTANCE OF 20 . 39 FEET TO THE NORTHERLY LINE OF SAID LOT 4 AND THE TRUE POINT OF BEGINNING. THENCE SOUTH 11000' 47" WEST A DISTA CE OF 66 .26 FEET, THENCE SOUTH 00008 ' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 5 , A DISTANCE OF 35 . 00 FEET TO THE SOUTHERLY LINE OF SAID LOT 5 . THENCE SOUTH 89050' 00 " WEST ALONG THE SOUTH LINE OF SAID LOT 5 , A DISTANCE OF 2 . 00 FEET, SAID POINT BEING 50 . 00 WEST OF THE SOUTHEAST CORNER OF SAID LOT 5 . THENCE NORTH 00008 ' 00" WEST PARALLEL WITH THE WEST LINE OF SAID LOT 4 AND 5 A DISTANCE OF 100 . 00 FEET TO THE NORTH LINE OF SAID LOT 4; EXHIBIT "A" TO GRANT DEED 5261014094-000613075729 3 .07/02/97 Page 1 of 2 0 344913 THENCE NORTH 89050100" EAST ALONG THE NORTH LINE OF SAID LOT 3 , A DISTANCE OF 14 . 81 FEET TO THE TRUE POINT OF BEGINNING. SUBJECT TO REAL PROPERTY TAXES AND ASSESSMENTS 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. EXHIBIT "A" TO GRANT DEED 5261014094-0006/3075729.2 .06/27/97 Page 2 of 2 344912 Order No. 12112,3 I ff �11.(13. �� • RECEIVED FOR RECORD Escrow No. AT 8:00 O'CLOCK Loan No. FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: SEP 2 x 1997 THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS recorded s 011ioal Record: ' 3200 E. Tahquitz Canyon Way ei ra,�e,e�de c"e I c'I r'nis Palm Springs, CA 92262 Recorder Attn: — —i Bc Fees S DOCUMENTARY TRANSFER TAX$-0-(Revenue and Taxation Code SPACE ABOVE THIS LINE FOR RECORDER'S USE ((/ §II922) (.Computed on the consideration or value of property conveyed;OR 77���� ���� (/,///� /, t��, .....Computed on the consideration or value less liens or encumbrances _ CM 6(. 16;, '1 ts)J K remaining at time of sale. Signature of Declarant or Agen determining -Firm Name GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE CITY OF PALM SPRINGS, a municipal corporation hereby GRANT(S) to THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic, the real property in the City of Palm Springs, County of Riverside, State of California, described as [See EXHIBIT "A" attached hereto and incorporated herein by this reference.] Dated 1997 THE CI Y OF PA;RI , a cipal corporation } STATE OF CALIFORNIA } By: _ COUNTY OF On before me, t ub a e�i personally appeared persoKally known to me(er-proved-te- a-the4ia is-of-gabs- faetory-evidence) to be the persottjM)whose names sm ism subscribed to the within instrument and acknowledged to me )MY ELAINE L.WEDEKIND a '. t COMM.#1048957 that he/she ey executed the same in his/he the' uthonzed z ,`x:I, =� z � Not cry Public COUNTY capacity tes , and that by his/he their ignatures(Q) on the yle RIVERSIDE COUNN instrument the person )D or the entity upon behalf of which Comm.Expires FEB 3.1999 the person(D acted, executed the instrument. WITNESS my hand and official seal. Signature J c (Thu arm for official nolariel reel) MAIL TAX STATEMENTS AS DIRECTED TO: [Same as above] 526/014084-0006/3075740. .06117/97 1002(1/94) • 0 344912 CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by GRANT DEED dated 1997 from, THE CITY OF PALM SPRINGS, a municipal corporation Grantor, to THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic, Grantee, is hereby accepted by the City Clerk of said City of Palm Springs, on thisL->d->� day of l 1997, pursuant to authority granted by the City Council of said City, by Resolution No. /o/ J made on the hj,tL— day of c 1997, and the Grantee consents to recordation thereof by the Agency Secretary, its duly authorized officer. Dated at Palm Springs, California, this ,�2' day of 1997 . ,/ qtDITH SUMICH Agency Secretary 526/014094-000613075740. .06117197 344912 EXHIBIT "A" LEGAL DESCRIPTION BEING A PORTION OF LOT 3 IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89°50' 00" EAST A DISTANCE OF 114 . 00 FEET; THENCE SOUTH 00008 ' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET; THENCE SOUTH 11000' 47" WEST A DISTANCE OF 20 . 39 FEET TO THE SOUTH LINE OF SAID LOT 3 ; THENCE SOUTH 89050 ' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 9e�kS FEET TO THE SOUTHWEST CORNER OF SAID LOT 3 ; ((o.o& THENCE NORTH 00008 ' 00" WEST ALONG THE WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 FEET TO THE TRUE POINT OF BEGINNING. SUBJECT TO REAL PROPERTY TAXES AND ASSESSMENTS 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. 526/014091-0006/3075740. .06/17/97 EXHIBIT "A" TO GRANT DEED -rr Ordet No. I �y 237-// 34911 Escrow No. 1.1LU-3 RECEIVED FOR RECORD Loan No. AT 8:00 O'CLOCK FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF PALM SPRINGS SEP ! 2 1997 Post Office Box 2743 Palm Springs, CA 92263 / RxorePd in 011ioal Records Attn: City Mimzgar6L ll�—h p1 Z,c,v.e C...ry,Cahlornia Record Of Fees$ DOCUMENTARY TRANSFER TAX$-0-(Exempt by Revenue and SPACE ABOVE THIS LINE FOR RECORDER'S USE Taxation Code§11922)er Computed on are consideration or value of property conveyed;OR .... Computed on the consideration or value less liens or encumbrances remaining at time of sale. Signature of Declarant or Agent determining tax-Firm Name 5'l3 -/ S-Y-o i GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic hereby GRANT(S) to THE CITY OF PALM SPRINGS, a municipal corporation, the real property in the City of Palm Springs, County of Riverside, State of California, described as [See EXHIBIT "A" attached hereto and incorporated herein by this reference.] Dated •i C� 1997 THE COMMUNITY REDEVELO T AGENCY OF THE CITY O PAL SPRINGS, ub' b y, corporate and politic. STATE OF CALIF NIA° , } By: COUNTY OF •t2h-lZe-c�,Fi } .�, On before me, LA personally appeared per' on9 ally known to me (or-grovedAo-me on the basis f-strtis_ faetwy- vidence) to be the persorrsDwhose nameso ism subscribed to the within instrument and acknowledged to me "' ELAINE L.WEDEKIND that he/she executed the same iin�nrrhii+s�/her ev uthorized _�t,_ ''<,; COMM.�'1048957 capaci re and that by his/herA6G)signamres(p on the z ? �� Notary Public 1 Colifomla Ir instrument the persons? or the entity upon behalf of which y RIVERSIDE COUNTY 1 ,My Comm.Expires FEB 3.1999 the person(soacted, executed the instrument. WITNESS my hand and official seal. Signature i l ! �� (Thu area for official n.umal sea0 MAIL TAX STATEMENTS AS DIRECTED TO: [Same as above] 526/014084-OM/3075995.2 aO6/17/97 1002(1/94) • • 344911 EXHIBIT "A" LEGAL DESCRIPTION BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALMS SPRINGS, IN BOOK 9 PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89050' 00" EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 00008100" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. '20:3 THENCE SOUTH 11000' 47" WEST A DISTANCE OF FEET TO THE NORTH LINE OF SAID LOT 4, SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING. THENCE NORTH 89050' 00" EAST ALONG THE NORTH LINE OF SAID LOT 4, A DISTANCE OF 35 . 19 FEET TO THE NORTHEAST CORNER OF SAID LOT 4 . THENCE SOUTH 00008 ' 00" EAST ALONG THE EAST LINE OF SAID LOTS 4 AND 5 A DISTANCE OF 100 . 00 FEET, TO THE SOUTHEAST CORNER OF SAID LOT 5 . THENCE SOUTH 89050' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 5 , A DISTANCE OF 48 . 00 FEET. THENCE NORTH 00008 ' 00" WEST PARALLEL WITH THE WEST LINE OF SAID LOT 5 , A DISTANCE OF 35 . 00 FEET. THENCE NORTH 11000' 47" EAST A DISTANCE OF 66 .26 FEET TO THE NORTH LINE OF SAID LOT 4 ALSO BEING THE TRUE POINT OF BEGINNING. SUBJECT TO REAL PROPERTY TAXES AND ASSESSMENTS 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. 526/014094-0006/3075995.2 a06/17197 EXHIBIT "A" TO GRANT DEED • 0 344911 CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by GRANT DEED dated 1997 from, THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic, Grantor, to the CITY OF PALM SPRINGS, a municipal corporation, Grantee, is hereby accepted by the City Clerk of said City of Palm Springs, on this day of , 1997, pursuant to authority granted by the City Council of said City, by Resolution No. made on the /d — day of y -� 1997, and the Grantee consents to recordation thereof by the City Clerk, its duly authorized officer. Dated at Palm Springs, California, this day of '. c.<<,_ 1997. dUbITH SUMICH 'City Clerk 526/014094-0006/3075995.2 .06/17/97 Jm 344916 FREE RECORDING REQUESTED BY AND RECEIVED FOR RECORD WHEN RECORDED MAIL TO: AT 8:00 O'CLOCK THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITYIOF PALM SPRINGS SEP 2 21997 3200 E. Tahquitz Canyon Way +G'Odg-c 575� Palm Springs, CA 92262 necomed in onitiai Records Attn: of Riverside County,Calilonnla Recorder Fees$ TERMINATION OF LICENSE ORIGINAL 9f RM INK SWAMP N9THIS TE NATION OF LICENSE ( "Agreement") is made as of this day of 1997, between THE COMMUNITY REDEVELOPMENT AGENCY OF THE6CITY OF PALM SPRINGS ( "Licensor") and MARY T. DELGADO and WELLS FARGO BANK, N.A. , as Co-Trustees of the Florencio H. Delgado and Mary T. Delgado Revocable Inter Vivos Trust UTD June 26, 1990 ( "Licensee") . N R E C I T A L S : l� A. Licensor and Florencio Delgado ( "Delgado") entered into that certain License dated July 28 , 1982 , as amended by that certain Amended License dated October 3, 1985 (together, the "License") pursuant to which Licensor gave Delgado the right to construct, maintain, use, and repair a, portion of a trash container located within the westerly three and one-half (3 .5) feet of that certain real property owned by Licensor described as the east fifty (50) feet of Lots 4 and 5 in Block 28 of Palm Springs Tract, beginning at a point approximately seventeen (17) feet from the south property line and extending northerly forty (40) feet ( "License Area" ) . B. Licensee is Delgado' s successor-in-interest to the subject property and under the License- C. Licensor and Licensee desire to terminate the License as of the "Termination Date" defined -in Paragraph 1 of this Agreement, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, Licensor and Licensee agree as follows: 1 . Termination of License. Licensee' s rights to possession of the License Area shall absolutely terminate as of _ Rqf, 22 1997 (the "Termination Date") . The License shall be terminated and r 0531014084-000612172916.6 -06117/97 `-� 344916 cancelled and the term thereof brought to ,an end as of the Termination Date, with the same force and effect as if the term of the License was, by its own terms, fixed to expire on the Termination Date and not as provided in the License. 2 . Time is of the Essence. Time is hereby expressly made of the essence in this Agreement and each and every term and condition contained in this Agreement. 3 . Integration. This Agreement and other documents express- ly incorporated herein by reference contain the entire and exclu- sive understanding and agreement between the parties relating to the matters contemplated hereby and all prior or contemporaneous negotiations, agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. 4 . Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be in writing and executed on behalf of each party to this Agreement. S . Governing Law. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. 6 . Counterparts. This Agreement may be executed in counterparts which, when taken together, shall constitute one executed document as though all signatures appeared on one copy. IN WITNESS WHEREOF, the parties hereto have executed this Termination of Licensee as of the date first above written. THE CO ITY REDEVE AGENCY OF THE CIT OF PALM I GS By: n un c-ro Its : s,sra NT .saeatraav� "Licensor" [Signatures continue on next page] 053/014094-000612172916.6 a06/17/97 -2- 344916 1F. , OrA OF CALIF07IA ) ) ss . COUNTY OF ) On the -da f 199Z, before me, the undersigned, a Notary P c, n and for said State and C x�t� ' personally appeared a ly known to me (or proved to me on the bas ' of satisf evidence) to be the person who executed the withi rument as the Executive Director on behalf of THE CO R VELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, the icipal corpora ' n therein named, and acknowledged to me at such corporation e uted, the within instrument pur nt to its bylaws or a resolution its board of directors WITNESS my hand and official seal . Notary Public (SEAL) STATE OF CALIFORNIA ) Ss. COUNTY OF �I IJI Qom( ) On 199-7 bef ore me,-Do YIA personailr appeared ' { yjap, T , '1 : IVCCO personally known to me *=reaidsn. ) to be the person(a) whose name (.a') is/awe- subscribed to the within instrument and acknowledged to me that he-/she/t4iey executed the same in his/her/thei>= authorized capacity(ie-s) , and that by hd-s/her/their signature (sj on the instrument the person(z) or the entity upon behalf of which the person(ol acted, executed the instrument. Witness my hand and official seal . Notary Pub is [SEA DONA W MCHA i m' COMgr 1021�0 ��, `e Not — C UN1� My CoOs APR 29,199E 053/014094-0006/2172916.6 .06/17/97 -4- 344916 [Signatures continued from preceding page] MAI�Y T. ELGADO, C -TRUSTEE, OF THE FLO ENCIO H. DELGADO AND MARY T.- DELGADO REVOCABLE INTER VIVOS TRUST UTD JUNE 26, 1990 WELLS FARGO BANK, N.A. , AS CO-TRUSTEE OF THE FLORENCIO H. DELGADO AND MARY T. DELGADO REVOCABLE INTER VIVOS TRUST UTD JUNE 26, 1990 By: Its : A,& "Licensee" CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 344916 No.5193 State of California OPTIONAL SECTION� CAPACITY CLAIMED BY SIGNER C unty of Riverside Though statute does not require the Notary to fill in the data below, doing so may prove On A-3D—Q7 before me, Carol A. Moreno Notary Pllbl 'r invaluable to persons relying on the document. DATE NAME,TITLE OF OFFICER-E G.,'JANEDOE,NOTARY PUBLIC" [ INDIVIDUAL Tammy Fox ,CORPORATE OFFICER(S) personally appeared t NAME(S)OF SIGNER(5) & TITLE(S) ®personally known to me -OR -❑ proved to me on the basis of satisfactory evidence ❑ PARTNER(S) ❑ LIMITED to be the person(*whose name* is/ere ❑ GENERAL subscribed to the within instrument and ac- ❑ATTORNEY-IN-FACT knowledged to me that hefsheA14W executed ❑TRUSTEE(S) the same in h�&/her#ke+r authorized ❑ GUARDIAN/CONSERVATOR CAflplAi�gBBllp� Ca I capacity(--EI and that by #}e/hers OTHER: vAA)1C CW= ❑-.; �Qgy�_� signature(sJ'on the instrument the person(sj; Coal — or the entity upon behalf of which the person(s) acted, executed the instrument. SIGNER IS REPRESENTING: WITS my hand and off'.ial seal. NAMEOF�R ENn -- E SIGNATU OF NOTARV OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT Z2iPf9/AIAT/D/✓ OF -,''IL7Fys g l�o THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES DATE OF DOCUMENT 24&AA-` .2 !6 � ] Though the data requested here is not required by law, if could prevent fraudulent reattachment of this form. SIGNER(S)OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91 3 0 9-71 84 053/014094-0006/2172916.6 a06/17/97 -3- 344916 State of California SS . County of Riverside On � //��1 , before me, ELAINE L. WEDEKIND, Notary Public, per on lly appeared *** ROB W. PARKINS and J. SUMICH ***, personally known to me to bet e 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 o ficial seal . o , Notary Public 4 A ELAINE L WEDEKIND k COMM.#1048857 Notary Public—Colifomla � \'y' RIVERSIDE COUNTY 'j My Comm.Expires FEB 3.1999 TA 344H4 RECEIVED FOR RECORD AT 8:00 O'CLOCK. FREE RECORDING REQUESTED BY SEP 2 21997 7 AND WHEN RECORDED MAIL TO: 1 Recorded in 011irial❑ecords The Community Redevelopment of Riverside Comtty.0a tlemf3 Agency of the City of Palm Springs FlecoId., 3200 East Tahquitz Canyon Way Fees Palm Springs, CA 92262 Attn: (For Recorder's Use Only) ^, MA) OPTION TO REPURCHASE AGREEMENT AIJ THIS OPTION TO REPURCHASE AGREEMENT ( "Agreement" ) is made this day off , 1997 by and among RICHARD M. SERVICE, JR. and PATRICIA D. SERVICE, husband and wife, as community property (collectively "Participant" ) , and THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic ( "Agency") . N R E C I T A L S: A. Participant is the owner of that certain real property as legally described on Exhibit "A" attached hereto (the "Property") . B. Concurrently with the date of recordation of this Agreement ( "Acquisition Date") , Participant has acquired the Property from the Agency pursuant to the terms and provisions of that certain Owner Participation Agreement dated June 10, 1997 for reference purposes (the "OPA") , among the Agency, Participant and the City of Palm Springs (the "City") . C. In connection with the acquisition of the Property, Participant represented to the Agency that it is acquiring the Property to develop same in accordance with the terms of the OPA in particular the obligation to commence construction of the Project (as defined in the OPA) within the time period specified in the OPA and in the event such obligations are not met, the Agency shall have the option to repurchase the Property upon the terms and conditions set forth herein. NOW, THEREFORE, the parties hereto agree as follows : 0531014094-0006/2172916.6 "06/17/97 344914 A G R E E M E N T: 1. OPTION TO REPURCHASE THE PROPERTY. The term "Commencement Conditions" shall mean each of the following: (i) Participant has delivered to Agency evidence that it has sufficient funds, through financing or otherwise, to complete the construction of the Project within the time frames contemplated in the OPA; (ii) Participant has delivered to Agency a copy of its construction contract for completion of the Project, executed by Participant and the contractor named therein; (iii) all requirements of the City with respect to commencement of issuance of the building permit for the Project have been satisfied; and (iv) construction of the Project has commenced. In the event Participant fails to satisfy all Commencement Conditions on or before the date which is sixty (60) days following the Acquisition Date, and such failure is not cured within thirty (30) days after written notice from Agency to do so, Agency, in its sole option and discretion, shall thereafter be entitled to exercise the option to repurchase the Property as provided below (the "Option Trigger Date") . 1.1 Grant of Option. Participant hereby grants to Agency an exclusive option to purchase the Property (the "Option") , subject only to: a. Current taxes not yet delinquent. b. Matters affecting title existing at the Acquisition Date. C. Matters affecting title which are created, made, assumed, consented to or requested by Agency. d. Matters shown as printed exceptions in the standard form California Property Title Association owner' s policy of title insurance. 1.2 Exercise of Repurchase Option. At any time through the date which is one hundred twenty (120) days after the Option Trigger Date (the "Option Exercise Period") , Agency may elect to exercise its Option to repurchase the Property by giving written notice to Participant. 1.3 Restoration Costs. Within thirty (30) days after Agency' s exercise of the Option ( "Removal Period") , Participant, at its sole cost and expense, shall restore the Property to at least as good condition as existed at the date hereof and shall remove from the Property all structures, buildings, pavings, landscaping and other improvements collectively the "Improvements") installed by Participant and all materials of whatever nature deposited at any time hereafter upon the Property. All of such work shall be accomplished to the sole but reasonable satisfaction of Agency. If such Improvements are not so removed and the Property so restored, then Agency at any time prior to Closing (as hereinafter defined) 053/014094-0006/2172916.6 a06/17/97 -2- 344914 may accomplish such matters and shall be entitled to a credit against the repurchase price in an amount equal to the cost of accomplishing such matters . Any Improvements not so removed by Participant within such Removal Period shall automatically become the property of Agency without the payment of further consideration and without the necessity of any further conveyance or bill of sale. 1.4 Repurchase Price. Agency' s purchase price for the Property, upon its exercise of the Option, shall be (i) the amount of cash consideration paid by Participant to Agency to purchase the Property; less (ii) Agency' s original costs of acquisition of the Property from the City and costs of sale thereof to Participant, such as escrow fees, title insurance and recording costs, documentary transfer tax, legal fees and any other closing costs; less (iii) all advances made by Agency pursuant to Section 1.3 above, to the extent not previously reimbursed to Agency by Participant. 1.5 Repurchase Escrow Terms. Within five (5) days after Agency' s exercise of the Option as provided above or as soon thereafter as possible, an escrow shall be opened at Stewart Title of California, Inc. , Riverside office, or another escrow company selected by Agency to consummate the purchase as specified herein, which escrow shall close within thirty (30) days. Said escrow shall be subject only to approval by Agency of a then current preliminary title report. Any exceptions shown thereon created after the Acquisition Date, and disapproved by written notice delivered by Agency to Participant through escrow, shall be removed by Participant at its sole expense at or prior to closing of escrow. Participant and Agency shall each pay one-half (1/2) of the escrow fees; Participant shall pay for documentary tax stamps for recording the deed, and for a California Land Title Association standard form owner' s coverage policy of title insurance in the amount of the Repurchase Price showing title to the Property vested in Agency, free and clear of all liens, encumbrances or other title exceptions other than those set forth in this Agreement. Any other costs or expenses shall be allocated between the parties in the manner customary in Riverside County, California. 1.6 Other Defaults. Should Participant at any time prior to expiration of this Option commit any act of bankruptcy, or be adjudicated a bankrupt or insolvent, whether voluntarily or involuntarily, or transfer the Property or any portion thereof by operation of law under legal process pursuant to receivership or bankruptcy, or make an assignment for benefit of creditors, then Agency in its sole discretion may, in addition to any other rights or remedies available to it, exercise the Option at any time prior to expiration or termination of this Option, in the manner provided for herein. 1.7 Termination of Option. If the Option Trigger Date has occurred but the Agency has not exercised the Option during the Option Exercise Period as set forth hereinabove, the Option shall 053/014094-000612172916.6 a06/17/97 -3- 344914 terminate and, upon written request by Participant delivered to the Agency, Agency shall promptly execute and acknowledge a document evidencing such termination and deliver same to Participant . Upon completion of the Project pursuant to the terms of the OPA, Participant is entitled to obtain a "Certificate of Completion and Termination of Option to Purchase Agreement" in the form attached to the OPA duly executed and acknowledged by the Agency ( "Certificate of Completion" ) . If not theretofore terminated -or exercised, the Option shall terminate on the date of issuance by Agency of the Certificate of Completion. 1.8 Transfer Restrictions. Section 4.10 of the OPA sets forth certain Transfer restrictions respecting the Property and said Section 4 . 10 and all of said restrictions on Transfer are incorporated herein by reference, and shall terminate upon issuance by the Agency of the Certificate of Completion. 2 . GENERAL PROVISIONS. 2 .1 Estoppel Certificate. Within fifteen (15) days following a written request by either of the parties, the other party to this Agreement shall execute and deliver to the requesting party a statement certifying that: (i) this Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modifications; (ii) there are no current uncured defaults under this Agreement or specifying the date and nature of any such default; and (iii) any other reasonable information requested. The failure to deliver such a statement within such time shall constitute a conclusive presumption against the party which fails to deliver such statement that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. 2.2 No Commissions Due. Agency and Participant each hereby warrant to the other that no person or entity can properly claim a right to a real estate brokerage commission, finder' s fee or other compensation based upon contracts or understandings between such claimant and Participant or Agency with respect to the transaction contemplated by this Agreement. Agency and Participant agree to indemnify, defend and hold the other party harmless from any claim, action, liability or expense arising out of any real estate brokerage commission, finder' s fee or other compensation based upon this Agreement. 2 .3 Execution of Documents. In addition to any documents expressly referred to in this Agreement to be executed by any or all parties, all parties agree to execute any and all documents which might be required to implement the provisions of this Agreement. 053/014084-0006/2172916.6 a06117197 -4- 344914 2 .4 No Partnership Created. The relationship of Agency and Participant hereunder is that of seller and buyer and vice versa, and none of the provisions of this Agreement is intended to or does create a partnership or joint venture or relationship other than seller and buyer. 2 .5 Notices. All notices and communications desired or required to be sent or delivered hereunder shall be in writing and may be served personally, or shall be mailed, by certified mail, return receipt requested, as follows : Agency: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS P.O. Box 2743 Palm Springs, CA 92263 Attn: Executive Director With Copy to: RUTAN & TUCKER, LLP 611 Anton Blvd. , Suite 1400 Costa Mesa, CA 92623-9990 Attn: David J. Aleshire, Esq. Lori Sarner Smith, Esq. Declarant : RICHARD M. SERVICE, JR. 222 S . Palm Canyon Drive Palm Springs, CA 92262 With copy to: SCHLECHT, SHEVLIN & SHOENBERGER 801 East Tahquitz Canyon Way Suite 100 Palm Springs, CA 92663-2744 Attn: James M. Schlecht, Esq. or at such other address or addresses as any such Agency and Participant may designate, from time to time, by giving notice to each other in the form of a recorded change of address memorandum with respect to this Agreement. 2.6 Singular & Plural. As used herein, the singular shall include the plural and the plural the singular unless the context otherwise requires, and words of gender may signify the masculine, feminine or neuter gender, as the context may require. 2 .7 No Third Party Beneficiary. No provision of this Agreement or any transaction within its purview is intended nor shall in any way be construed to benefit any third party not specifically referenced herein as having such right. 2 . 8 Severability/Governing Law. The provisions herein shall be deemed independent and severable, and the invalidity or partial invalidity or unenforceability of any of the provisions hereof shall not affect the validity of the remaining provisions . This Agreement shall be governed by and construed in accordance with the laws of the State of California. 0531014084-000612172916.6 a06/17/97 —55— 344914 2 .9 Time of the Essence. Time is of the essence of each of the terms, covenants and conditions of this Agreement. 2 .10 No Waiver. No waiver of any breach of any of the obligations in this Agreement shall constitute a waiver of any succeeding or preceding breach of the same, or any other covenant or restriction contained herein. 2.11 Successors and Assigns. The successors and assigns of the Agency and Participant, shall be bound, burdened or benefitted hereby. 2 .12 Governing Law. This Agreement shall be governed by and construed under California law. 2 .13 No Violation of Law. Nothing contained herein shall be construed so as to require the commission of any act contrary to law and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance, or regulation contrary to which the parties have no legal right to contract, the latter shall prevail but the provisions of this Agreement which is affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law without invalidating or affecting the remaining provisions of this Agreement. 2 .14 Entire Agreement. This Agreement contains the entire agreement of the parties hereto with respect to the matters covered hereby, and all negotiations and agreements, statements or promises between the parties hereto or their agents with respect to this transaction are merged in this Agreement, which alone expresses the parties' rights and obligations and if not contained herein shall not be binding or valid against either of the parties hereto. 2 .15 Modification. Any amendments or modifications to this Agreement must be in writing and executed by all the parties to this Agreement. [THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK. ] 0531014084-0006/2172916.6 a06117/97 -6- 344914 2 .16 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, but all of which, when taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned has executed this Option to Repurchase Agreement as of the date first above wri,tIn. "PARTICIPANT" t� 61 Dated: 1 RICHARD M. SE V1f'CCE,,,IJR. C/ Dated G 3 f �l. 60 PATRICIA D. SERVICE "AGENCY" THE CO EDE PMENT AGENCY OF CITY OF PAL P INGS Dated: �` , �/ 7 -7 By: Its : Executive D-irector ATTEST: Age y Secretary c APPROVED AS TO FORM: RUTAN & TUCKER, LLP By: David J. eshire, Esq. Agency Counsel 053/014084-0006/2172916.6 a06/17/97 -7- 344914 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 R IVE7ts1u6 ) On '37014E 300 1197 before me, 1- LOl - A eAr �• �Oce personally appeared µ�gp M E—yd1 6 AND PATd.1 cr A epe-I (GE personally known to me (^r t^T-^ ; a �) to be the person (s) whose name (s) iiWare subscribed to the within instrument and acknowledged to me that he,lrh /they executedy,'t,h, e� same in h�/their authorized capacity (ies) , and that by 1"s4 e-L-/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 — — FLORENCE L ROSS ■ Comriulon#11 7742Nofaypdak1 111 +avoibb Caty I 10mv Comm.60aMay2L20M 053/014094-0006/2172916.6 AM17/97 -8- 344914 State of California SS . County of Riverside Oe�so o2 before me, ELAINE L. WEDEKIND, Notary Public, p o 1 y ppeared *** ROB W. PARKINS and J. SUMICH *** p nally known to me to bet e persons w ose 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 Publ ' ELAINE 4 WEDEKIND COMM.¥1048857 < Notary Public—COIlfoml0 RIVERSIDECOUN1Y 9 My Comm.E)Plro3 FEB 3,1999 344914 EXHIBIT °A" LEGAL DESCRIPTION OF THE PROPERTY The Property is certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows: PARCEL lA BEING A PORTION OF LOT 3, IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89-50, 00" EAST A DISTANCE OF 114 . 00 FEET; THENCE SOUTH 00008' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3, A DISTANCE OF 30 . 00 FEET; THENCE SOUTH 11000147" WEST A DISTANCE OF 20 . 39 FEET TO THE SOUTH LINE OF SAID LOT 3; THENCE SOUTH 89050100" WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 110 . 06 FEET TO THE SOUTHWEST CORNER OF SAID LOT 3; THENCE NORTH 00008, 00" WEST ALONG THE WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 TO THE TRUE POINT OF BEGINNING. PARCEL 1B BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 OF SAID BLOCK 28, THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89050, 00" EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 00008' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. THENCE SOUTH 11000'47" WEST A DISTANCE OF 20 . 39 FEET TO THE NORTHERLY LINE OF SAID LOT 4 AND THE TRUE POINT OF BEGINNING. THENCE SOUTH 11000' 47" WEST A DISTANCE OF 66 .26 FEET; THENCE SOUTH 00008100" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 5, A DISTANCE OF 35 . 00 FEET TO THE SOUTHERLY LINE OF SAID LOT 5 . EXHIBIT "A" TO OPTION TO REPURCHASE AGREEMENT Page 1 of 2 053/014084-0006/2172916.6 a07/02/97 344914 THENCE SOUTH 89050100" WEST ALONG THE SOUTH LINE OF SAID LOT 5, A DISTANCE OF 2 . 00 FEET, SAID POINT BEING 50.00 WEST OF THE SOUTHEAST CORNER OF SAID LOT 5 . THENCE NORTH 00008' 00" WEST PARALLEL WITH THE WEST LINE OF SAID LOT 4 AND 5 A DISTANCE OF 100. 00 FEET TO THE NORTH LINE OF SAID LOT 4; THENCE NORTH 89-50100" EAST ALONG THE NORTH LINE OF SAID LOT 3, A DISTANCE OF 14 . 81 FEET TO THE TRUE POINT OF BEGINNING. EXHIBIT "A" TO OPTION TO REPURCHASE AGREEMENT Page 2 of 2 053/014094-0006/2172916.6 u06/27197 344914 EXHIBIT "A" LEGAL DESCRIPTION OF' THE PROPERTY The Property is certain real property located in the City of Palm Springs, County of Riverside, State of California, legally described as follows : PARCEL lA BEING A PORTION OF LOT 3 , IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9, PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 , THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89050' 00" EAST A DISTANCE OF 114 . 00 FEET; THENCE SOUTH 00008 ' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30. 00 FEET; THENCE SOUTH 11000'47" WEST A DISTANCE OF 20 . 39 FEET TO THE SOUTH LINE OF SAID LOT 3; THENCE SOUTH 89050' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 3 , A DISTANCE OF 95 .25 FEET TO THE SOUTHWEST CORNER OF SAID LOT 3 ; THENCE NORTH 00008' 00" WEST ALONG THE WEST LINE OF SAID LOT 3 A DISTANCE OF 50 . 00 TO THE TRUE POINT OF BEGINNING. PARCEL 1B BEING A PORTION OF LOTS 4 AND 5 IN BLOCK 28 OF PALM SPRINGS, IN BOOK 9 , PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3 OF SAID BLOCK 28, THENCE ALONG THE NORTHERLY LINE OF SAID LOT 3 , NORTH 89050' 00" EAST A DISTANCE OF 114 . 00 FEET. THENCE SOUTH 00008 ' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 3 , A DISTANCE OF 30 . 00 FEET. THENCE SOUTH 11000' 47" WEST A DISTANCE OF 66.26 FEET; THENCE SOUTH 00008' 00" EAST PARALLEL WITH THE WEST LINE OF SAID LOT 5, A DISTANCE OF 35 . 00 FEET TO THE SOUTHERLY LINE OF SAID LOT 5 . EXHIBIT "A" TO OPTION TO REPURCHASE AGREEMENT Page 1 of 2 053/014094-0006/2172916.6 106/17/97 344914 THENCE SOUTH 89050 ' 00" WEST ALONG THE SOUTH LINE OF SAID LOT 5, A DISTANCE OF 2 . 00 FEET, SAID POINT BEING 50 . 00 WEST OF THE SOUTHEAST CORNER OF SAID LOT 5 . THENCE NORTH 00008' 00" WEST PARALLEL WITH THE WEST LINE OF SAID LOT 4 AND 5 A DISTANCE OF 100 . 00 FEET TO THE NORTH LINE OF SAID LOT 4; THENCE NORTH 89050' 00 " EAST ALONG THE NORTH LINE OF SAID LOT 3 , A DISTANCE OF 14 . 81 FEET TO THE TRUE POINT OF BEGINNING. EXHIBIT "A" TO OPTION TO REPURCHASE AGREEMENT Page 2 of 2 053/0140&4-0006/2172916.6 a06/17/97