HomeMy WebLinkAbout00358C - LINSU DEVELOPMENT OPA INDIAN VISTA CHINO PROPERTY SALE 1.93 ACRES O. 2S5532
FREE RECORDING REQUESTED BY RECEIVED FOR RECORD
AND WHEN RECORDED RETURN TO:
AT 8:00 O'CLOCK
COMMUNITY REDEVELOPMENT AGENCY AUG 1 21997
OF THE CITY OF PALM SPRINGS
P.O. Box 2743 RecwdeC in OlLaal Ramrds
Palm Springs , California 9226d- of Rnerside co"nM.Oebfarnla
Attn: Assistant Secretary Recomer
Fees$_
(Space Above Line for Recorder' s Use Only)_,
CERTIFICATE OF COMPLETION
WHEREAS, by a Owner Participation Agreement (hereinafter
referred to as the "Agreement") dated {(? / 1995 , by and
between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS, CALIFORNIA, a public body, corporate and politic
( "Agency" ) , and LINSU DEVELOPMENT COMPANY, L_L. C. , a California
limited liability company ( "Participant" ) , Participant has
redeveloped the real property (the "Site" ) , legally described and
depicted in Attachment No. 1 attached hereto and incorporated
herein by reference, according to the terms and conditions of said
Agreement; and
WHEREAS t
pursuant to Section J of the Agreement, promptly
after completion of all construction work to be completed by
Participant upon the Site, 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; and
WHEREAS, 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 Site; and
WHEREAS, Participant has requested that Agency furnish
Participant with the Certificate of Completion; and
WHEREAS, Agency has conclusively determined that the
redevelopment of the Site has been satisfactorily completed as
required by the Agreement; and
F521383W14084-009412157467.3 49123M
WHEREAS, the Agreement provided for certain covenants to run
with the land, which covenants were incorporated in the grant deed
conveying the Site to Participant (the "Deed") and a Declaration of
Covenants, Conditions and Restrictions (the "Declaration" ) ;
NOW, THEREFORE:
1 . As provided in the Agreement, Agency does hereby certify
that redevelopment of the Site has been fully and satisfactorily
performed and completed, and that such redevelopment is in full
compliance with said Agreement.
2 . This Certificate of Completion shall not constitute
evidence of Participant' s compliance with the Deed and the
Declaration, the provisions of which shall continue to run with the
land.
3 . 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
Site, or any part thereof. Nothing contained herein shall modify
in any way any other provision of said Agreement .
4 . This Certificate is not a Notice of Completion as
referred to in California Civil Code Section 3093 .
S . 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 as of
this day of Q-&-61q 1997.
r
COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, CALIFORNIA, a
public cc rate and politic
3y:
Exec ve Director
FS2\383\0140840094\2157467.3 409/23/95
2IS5a32
STATE OF CALIFOR�,TIA )
ss.
COUNTY OF
On cc � � before me„ -/��rti�t1 �1. 67f fCeM`J)
personaily/appedred
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personally known to me (,c-r—p-r-0v-ed—t=o—me—an---the--bay�s X' --of satisfac-
--tory- evidence) to be the pe-i. A whose name (,d) Cis ,are ubscribed
to the within instrumegtand acknowledged to me tha he-%she/they
executed the same in<his/.her/their authorized capacitykies+, and
that by Jiffs/her/their signatures) on the instrument the person(,d)
or the entity upon behalf of which the person(,$) acted, executed
the instrument.
Witness my hand and official seal .
_ ;Cam"/Ce.�-F c��. �/-i l�',•��.�'��,c �L
Notary Public'
[SEAL) 'T ��. ..;�-.��..`.,,a�c�x��
":=�:`•3 ELAINE L.WEDEKIND y
COMM.;, i043857
Nc1oN Public—California
RIVERSOC COUNTY
'ru my Comm.F�;piros FEB 3,i949 �)
F5213831014084-009412157467.3 a09/23/95
ATTACHMENT NO. 1
DESCRIPTION OF SITE
That certain real property located in the City of Palm
Springs, County of Riverside, State of California described as
follows:
PARCEL 1:
THE NORTHERLY 264 FEET OF THE NORTHWEST QUARTER OF THE NORTHWEST
QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 11, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE
AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.
SAID PROPERTY IS ALSO SHOWN ON RECORD) OF SURVEY ON FILE IN BOOK
5 PAGE 42, OF RECORDS OF SURVEY, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ANY DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES AND WATER UNDERLYING SAID LAND, AS
RESERVED IN DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES TO ZORA WITKIN, RECORDED DECEMBER 12, 1935 IN BOOK 262
PAGE 178 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA
HOWEVER, SUCH RESERVATION SHALL NOT BE DEEMED TO GIVE THE
GRANTOR, ITS SUCCESSORS OR ASSIGNS, ANY RIGHT TO ENTER UPON SAID
PREMISES FOR THE DEVELOPMENT OF ANY SUCH WATER, OIL, GAS OR
OTHER HYDROCARBON SUBSTANCES.
PARCEL 2:
LOT 7 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ALL DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON, MINERAL OR KINDRED SUBSTANCES, AND ALL WATER
UNDERLYING SAID LAND, PROVIDED, HOWEVER, THAT -THE_GRANTOR, ITS --- --
SUCCESSORS OR ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON SAID
PREMISES FOR THE PURPOSES OF DEVELOPING ANY WATER, GAS, OIL,
HYDROCARBON, MINERAL AND/OR KINDRED SUBSTANCES, AS RESERVED IN
DEED FROM SECURITY FIRST NATIONAL BANK OF LOS ANGELES, RECORDED
DECEMBER 23, 1936 IN BOOK 308 PAGE 24 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
PARCEL 3:
LOT 8 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING ANY AND ALL DEPOSITS OF OIL, GAS OR OTHER HYDROCARBON,
MINERAL OR KINDRED SUBSTANCES UNDERLYING SAID LAND, PROVIDED,
HOWEVER, THAT THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL
HAVE NO RIGHT TO ENTER UPON SAID PREMISES FOR THE PURPOSE OF
DEVELOPING ANY GAS, OIL, HYDROCARBON, MINERAL OR KINDRED
SUBSTANCES, AS RESERVED IN DEED FROM SECURITY FIRST NATIONAL
BANK OF LOS ANGELES, RECORDED DECEMBER 23, 1936 IN BOOK 308 PAGE
24 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
ATTACHMENT NO. 1
OWNER PARTICIPATION AGREEMENT
By and Between
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA
and
LINSU DEVELOPMENT COMPANY, L.L.C.
FS2\3M0140F4-0094\2157467.3 a09/23195
TABLE OF CONTENTS
1 . DEFINITIONS . . . . . . . . . . . . . . . . . . 1
1. 1 Agency Acquisition Costs . . . . . . . . . . . 1
1 .2 Agreement . . . . . . . . . . . . . . . . . . 1
1. 3 Certificate of Completion . . . . . . . . . . 1
1.4 City . . . . . . . . . . . . . . . . . . . . . 1
1.5 Closing . . . . . . . . . . . . . . . . . . . 1
1. 6 Days . . . . . . . . . . . . . . . . . . . . . 1
1 . 7 Declaration . . . . . . . . . . . . . . . . . 1
1. 8 Deed . . . . . . . . . . . . . . . . . . . . . 2
1.9 Deposit Fund . . . . . . . . . . . . . . . . . 2
1 . 10 Effective Date . . . . . . . . . . . . . . . . 2
1 .11 Enforced Delay . . . . . . . . . . . . . . . . 2
1. 12 Escrow . . . . . . . . . . . . . . . . . . . . 2
1. 13 Participant Property . . . . . . . . . . . . . 2
1 . 14 Project . . . . . . . . . . . . . . . . . 2
1 . 15 Redevelopment Plan . . . . . . . . . . . . . . 2
1 . 16 Schedule of Performance . . . . . . . . . . . 2
1 .17 Site . . . . . . . . . . . . . . . . . . . . . 2
1 . 18 Title Company . . . . . . . . . . . . . . . . 3
2 . PURPOSE OF AGREEMENT . . . . . . . . . . . . . . . 3
3 . REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 3
3 . 1 Participant Representations and Warranties . . 3
3 .2 Agency Representations and Warranties . . . . 4
4 . ASSEMBLY AND DISPOSITION OF THE SITE . . . . . . . 5
4 . 1 Participant Deposit of Acquisition Fund . . . 5
4 .2 Agency Acquisition of the Site . . . . . . . . 6
4 .3 Participant' s Purchase Price for the Site;
Conveyance of the Site to Participant . . . . 7
4 . 4 Escrow . . . . . . . . . . . . . . . . . . . . 8
4 . 5 Conditions to Closing . . . . . . . . . . . . 9
4 . 6 Tax Reporting and Miscellaneous Matters . . . 10
4 . 7 Conveyance of the Site . . . . . . . . . . . . 11
4 . 8 Title Matters . . . . . . . . . . . . . . . . 12
4 . 9 Participant Financing . . . . . . . . . . . . 12
4 . 10 Condition of Site . . . . . . . . . . . . . . 13
4 . 11 Indemnification . . . . . . . . . . . . . . . 17
4 . 12 Costs of Escrow . . . . . . . . . . . . . . . 18
4 . 13 Termination of Escrow . . . . . . . . . . . . 18
4 . 14 Responsibilities of Escrow Agent . . . . . . . 20
4 . 15 Brokerage Commissions . . . . . . . . . . . . 20
5 . CONSTRUCTION OF THE PROJECT . . . . . . . . . . . . 20
5 . 1 Construction of the Project. . . . . . . . 21
5 .2 Sale or Transfer of the Project . . . . . . . 23
5 . 3 Insurance and Indemnification . . . . . . . . 25
5 .4 Rights of Access . . . . . . . . . . . . . . . 27
5 . 5 Taxes and Assessments and Liens . . . . . . . 27
5 . 6 Antidiscrimination During Construction . . . . 27
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I
5 . 7 Easements . . . . . . . . . . . . . . . . . . 27
5 . 8 Certificate of Completion . . . . . . . . . . 27
5 .9 Rights of Holders of Approved Security
Interests in Site . . . . . . . . . . . . . . 28
5 . 10 Agency Financial Assistance . . . . . . . . . 33
6 . USE OF THE SITE . . . . . . . . . . . . . . . . . . 34
6 . 1 Use of the Site . . . . . . . . . . . . . . . 34
6.2 No Inconsistent Uses . . . . . . . . . . . . . 34
6 . 3 Obligation to Refrain from Discrimination . . 35
6 .4 Effect of Covenants . . . . . . . . . . . . . 35
7. ENFORCEMENT . . . . . . . . . . . . . . . . . . . . 35
7. 1 Defaults, Right to Cure and Waivers . . . . . 35
7 .2 Legal Actions . . . . . . . . . . . . . . . . 36
7 .3 Rights and Remedies are Cumulative . . . . . . 36
7.4 Specific Performance . . . . . . . . . . . . . 37
7 . 5 Attorney' s Fees . . . . . . . . . . . . . . . 37
8 . MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 37
8 . 1 Notices . . . . . . . . . . . . . . . . . . . 37
8 .2 Conflicts of Interest . . . . . . . . . . . . 38
8 .3 Nonliability of Agency Officials and Employees 38
8 .4 Enforced Delay: Extension of Times of
Performance . . . . . . . . . . . . . . . . . 38
8 . 5 Books and Records . . . . . . . . . . . . . . 39
8 . 6 Modifications . . . . . . . . . . . . . . . . 39
8 . 7 Merger of Prior Agreements and Understandings 39
8 . 8 Binding Effect of Agreement . . . . . . . . . 39
8 . 9 Assurances to Act in Good Faith . . . . . . . 39
8 . 10 Severability . . . . . . . . . . . . . . . . . 40
8 . 11 Interpretation . . . . . . . . . . . . . . . . 40
8 . 12 Entire Agreement, Waivers and Amendments . . . 40
8 . 13 Time for Acceptance of Agreement by Agency . . 40
8 . 14 Counterparts . . . . . . . . . . . . . . . . . 40
8 . 15 Integration . . . . . . . . . . . . . . . . . 40
8 . 16 Exhibits . . . . . . . . . . . . . . . . . . . 41
FS2\383\014084-0094\2157467.3 ul0/06/95
I Linsu Development Co. , L.L.C.
OPA - Sale 1.93 Acres - SE
Corner Vista Chino & No India
AGREEMENT #358C
OWNER PARTICIPATION AGREEMENT Res 988, 10-18-95
THIS OWNER PARTICIPATION
�� AGREEMENT ( "Agreement" ) is entered
into this day of gncr U�J 1995 (the "Effective Date" ) by
and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS, CALIFORNIA, a public body, corporate and politic
( "Agency" ) , and LINSU DEVELOPMENT COMPANY, L. L. C. , a California
limited liability company ( "Participant" ) .
1 . DEFINITIONS .
1. 1 Agency Acquisition Costs . The term "Agency
Acquisition Costs" shall mean all of the costs as determined by
Agency for the performance by Agency of the duties and obligations
of Agency under this Agreement, including, but not limited to, the
reasonable and necessary legal fees and costs incurred by Agency
for the drafting, negotiation and implementation of this Agreement
and the transactions contemplated herein, the costs incurred by
Agency to acquire the Site (whether through condemnation or
otherwise) , appraisers' fees, any costs incurred in defending the
Project and similar reasonable and necessary fees and costs
incurred by Agency in order for it to complete its obligations
hereunder.
1 .2 Agreement. The term "Agreement" shall mean this
entire Owner Participation Agreement, including all exhibits, which
exhibits are a part hereof and incorporated herein in their
entirety, and all other documents attached hereto which are
incorporated herein by reference as if set forth in full .
1 . 3 Certificate of Completion. The term "Certificate of
Completion" shall mean that certain Certificate of Completion
attached hereto as Exhibit "D" .
1 . 4 City. The term "City" shall mean the CITY OF PALM
SPRINGS, a municipal corporation, having its offices at 3200 East
Tahquitz Canyon Way, Palm Springs, California 92262 .
1 . 5 Closing. The term "Closing" or "Closing Date" shall
mean the date on which the Deed and Declaration are filed for
record in the Office of the County Recorder of Riverside County,
California, which Closing shall occur on or before the date
established therefor in the Schedule of Performance.
1 . 6 Days . The term "days" shall mean calendar days and
the statement of any time period herein shall be calendar days, and
not working days, unless otherwise specified.
1 . 7 Declaration. The term "Declaration" shall mean that
certain Declaration of ,Covenants, Conditions and Restrictions in
the form attached hereto as Exhibit "E" .
FS2\383\014084-0094\2157467.3 a09/23/95
1 . 8 Deed. The term "Deed" shall mean that certain Grant
Deed in substantially the form attached hereto as Exhibit "C" by
which Agency as grantor will convey fee title to the Site to
Participant as grantee.
1 . 9 Deposit Fund. The term "Deposit Fund" shall mean
the monies to be deposited by Participant with Agency to be held by
Agency for the payment of costs hereinafter provided, which monies
shall be equal to the Agency Acquisition Costs .
1 . 10 Effective Date . The Effective Date of this
Agreement shall occur after public hearing and approval hereof by
the Agency, and shall mean the date this Agreement is executed on
behalf of Agency.
1 . 11 Enforced Delay. The term "Enforced Delay" shall
have the meaning set forth in Section 8 . 4 below.
1. 12 Escrow. The term "Escrow" shall mean the escrow
opened with Spring Mountain Escrow ( "Escrow Agent" ) located at
559 South Palm Canyon Drive, Suite B-101, Palm Springs, CA 92264,
or such other escrow company satisfactory to Agency and Participant
for the conveyance of title to the Site from Agency to Participant .
1. 13 Participant Property. The term "Participant
Property" shall mean that certain real property located adjacent to
the Property at 1533 Chaparral Road, Palm Springs, California,
which is improved with a condominium development .
1 . 14 Protect . The term "Project" shall mean all of the
construction, improvements, modifications, and rehabilitation to be
performed by Participant on the Site pursuant to this Agreement .
The Project is more particularly described in the Scope of
Development attached hereto as Exhibit "F" . Upon completion, the
Project will consist of a thirty-eight (38) unit expansion of the
condominium development located on the Participant Property.
1 . 15 Redevelopment Plan. The term "Redevelopment Plan"
shall mean the Redevelopment Plan for the North Palm Canyon
Redevelopment Project Area ( "Project Area" ) which was adopted by
Ordinance Number 1227 of the City Council of City on October 19 ,
1984 . 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 as though fully set forth herein.
1 . 16 Schedule of Performance. The term "Schedule of
Performance" shall mean that certain Schedule attached hereto as
Exhibit "B" .
1 . 17 Site. The term "Site" shall mean that certain
unimproved real property located within the Project Area and in the
City of Palm Springs, County of Riverside, State of California,
consisting of approximately ninety-six thousand five hundred
FS213831014084-009412157467.3 a09/23195 -2-
seventy-seven (96, 577) gross square feet, more particularly
described and shown on Exhibit "A" attached hereto.
1 . 18 Title Company. The term "Title Company" shall mean
Stewart Title Company located at 2002 North Iowa Avenue, Suite 100 ,
Riverside, CA 92507, or such other title company mutually agreeable
to Agency and Participant .
2 . PURPOSE OF AGREEMENT.
This Agreement and the Exhibits attached hereto are intended
to effectuate the Redevelopment Plan for the Project Area by
providing for the development of the Project on the Site.
Participant has agreed to participate in the redevelopment of the
Site by entering into this Agreement with Agency. The development
of the Site pursuant to this Agreement, 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 requirements under which the Project has been
undertaken and is being assisted.
This Agreement is entered into by the Agency pursuant to its
authority under the Community Redevelopment Law of the State of
California, Health and Safety Code Sections 33000 et seq. (all
statutory references herein are to the Health and Safety Code
unless otherwise provided) ; which authorizes the Agency to make
agreements with owners, purchasers and lessees of property in the
Redevelopment Project Area providing for the development of
property in conformity with the Redevelopment Plan, and providing
that the Agency retain controls and establish restrictions or
covenants running with the land so that the property will be
developed, operated, and used in conformity with this Agreement and
the Redevelopment Plan (see Sections 33380 , 33381, 33437-33439 and
33339) . By its ownership of the Participant Property, Participant
qualifies as an "Owner Participant" within the meaning of the
Redevelopment Plan and the California Community Redevelopment Law
(California Health and Safety Code Section 33000 et seq. ) .
3 . REPRESENTATIONS AND WARRANTIES .
3 . 1 Participant Representations and Warranties . Par-
ticipant hereby makes the following representations, covenants, and
warranties for the benefit of Agency, and Agency' s successors and
assigns, and acknowledges that the execution of this Agreement by
Agency has been made, in MATERIAL reliance by Agency on such
representations and warranties:
(a) Participant Ownership of the Site. As of the
Effective Date, Participant is owner of fee title to the
Participant Property.
(b) No Default. The execution and delivery of this
Agreement will not constitute or result in any default or
FS2\383\014084-0094\2157467.3 a09/23195 -3-
event that with notice or the lapse of time, or both, would be
a default, breach, or violation of any lease, mortgage, deed
of trust, or other agreement, instrument or arrangement by
which Participant is bound or any event which would permit any
party to terminate an agreement or accelerate the maturity of
any indebtedness or other obligation affecting Participant .
(c) No violation. The execution and delivery of
this Agreement and the consummation of the transactions
contemplated herein will not violate any provision of, or
require any consent, authorization, or approval under any law
or administrative regulation or any other order, award, judg-
ment, writ, injunction or decree applicable to, or any govern-
mental permit or license issued to, Participant or relating to
the Participant Parcel .
(d) No Bankruptcy. Neither Participant nor the
entities constituting Participant, if any, have filed or been
the persons or subject of any filing of a petition under the
Federal Bankruptcy Law or any insolvency laws, or any laws for
the discharge of indebtedness or for the reorganization of
debtors .
(e) No Misrepresentation. No representation,
warranty, or covenant of Participant in this Agreement, or in
any document or certificate furnished or to be furnished to
Agency pursuant to this Agreement, contains or will contain
any untrue statement of a material fact or omits or will omit
to state a material fact necessary to make the statements
contained herein or therein not misleading.
(f) Disclosure. Participant has disclosed all
information concerning the Site of which Participant is aware
which may materially affect the value of the Site and/or
Participant' s ability to develop and utilize the Site as
provided in this Agreement.
(g) Due Execution. This Agreement has been duly
executed by Participant and constitutes a valid, binding, and
enforceable obligation of Participant. Participant is
qualified to do business in and is in good standing with the
State of California, has full power and authority to enter
this Agreement and all authorizations required to make this
Agreement binding upon Participant have been obtained.
(h) No Extraneous Consideration. Participant has
not paid or given to, and will not pay or give to, the Agency
or City or any official or agent of the Agency or City any
money or other consideration for obtaining this Agreement,
except as expressly provided herein.
3 .2 Agency Representations and Warranties . Agency
hereby represents and warrants for the benefit of Participant and
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Participant' s successors and assigns, that the following facts are
true as of the execution of this Agreement :
(a) No Approvals . No approvals or consents not
heretofore obtained by Agency are necessary in connection with
the execution of this Agreement by Agency or with the
performance by Agency of Agency' s obligations hereunder.
(b) Due Execution. This Agreement has been duly
executed by Agency or its duly authorized officers or agents
and constitutes a valid, binding, and enforceable obligation
of Agency.
(c) Governmental Approvals . Notwithstanding any-
thing contained herein to the contrary, 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 authority over the
Project and 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 . ASSEMBLY AND DISPOSITION OF THE SITE.
Participant hereby agrees to acquire the Site, upon the terms
and conditions hereinafter set forth.
4 . 1 Partici ant Deposit of Accruisition Fund. Agency
acknowledges that prior to the execution of this Agreement,
Participant has deposited Ten Thousand Dollars ($10, 000 . 00) into
the Acquisition Fund to pay for the Agency Acquisition Costs . As
of September 15 , 1995 , Agency has incurred Sixteen Thousand One
Hundred Fifty Dollars ($16, 150 . 00) of Agency Acquisition Costs . On
or before the Effective Date, Participant shall deposit the
difference between the amount previously deposited and the amount
expended by Agency on Agency Acquisition Costs into the Acquisition
Fund. Within thirty (30) days after the Effective Date,
Participant shall deposit an additional Fifteen Thousand Dollars
($15 , 000 . 00) into the Acquisition Fund to pay for the Agency
Acquisition Costs . Agency estimates that said additional Fifteen
Thousand Dollar ($15 , 000 . 00) deposit should be sufficient to pay
for the costs of preparing an offer letter with respect to the Site
and preparing, processing and considering the adoption of a
Resolution of Necessity with respect to the Site. Should the
Agency reach a negotiated agreement with Renaissance (as
hereinafter defined) to acquire the Site, Participant shall deposit
with Agency the purchase price for the site contained in the
purchase agreement for the Site upon the execution of the purchase
agreement by the Agency. Should the Agency adopt a Resolution of
Necessity as provided below, prior to filing the complaint for
F52\383\014084-0094\2157467.3 a09/23/95 -5-
condemnation, Participant shall deposit into the Acquisition Fund
the sum of Thirty Thousand Dollars ($30, 000 . 00) plus the appraised
value of the Site as determined by the appraiser retained by the
Agency in connection with the condemnation of the Site. In
addition, Agency may call for additional supplemental deposits into
the Acquisition Fund to cover its actual and reasonable expenses
incurred hereunder, which Participant shall make within ten (10)
days of the call therefor. After acquisition of the Site and
payment of all Agency Acquisition Costs, any excess funds in the
Acquisition Fund shall be returned to Participant .
4 .2 Agency Acquisition of the Site.
(a) Renaissance Agreement. Participant acknowledges
that Agency previously entered into an Owner Participation
Agreement Dated July 31, 1985 ( "Renaissance Agreement" ) with
Renaissance Hotel Partnership ( "Renaissance" ) pursuant to
which Renaissance was to construct a 105 room hotel upon the
Site. Renaissance has defaulted on its obligations under the
Renaissance Agreement and the Agency has served a termination
notice on Renaissance to terminate the Renaissance Agreement
and demanding that Renaissance reimburse the Agency for
certain out-of-pocket costs incurred by Agency under the
Renaissance Agreement in the approximate amount of Two Hundred
Six Thousand Seven Hundred Twenty-Six and 21/100ths Dollars
($206, 726 .21) ( "Termination Notice!' ) . Renaissance has not
responded to the Agency' s Termination Notice and demand for
reimbursement .
(b) Negotiated Purchase. From and after the date
of this Agreement, Agency shall attempt to acquire the Site
from Renaissance and/or the current owner of the Site by
negotiated purchase; provided, however, that nothing in this
Agreement shall obligate Agency to pay more than the amount
Agency has determined to be the fair market value of the Site
as determined by an appraisal obtained by the Agency nor to
agree to any other non-standard terms or conditions except as
may be acceptable to Agency in its sole and absolute
discretion and provided Participant indemnifies Agency
regarding same in a form satisfactory to Agency. Participant
acknowledges that Agency has obtained an appraisal valuing the
Site at Three Hundred Ninety-Nine Thousand Dollars
($399 , 000 . 00) .
(c) Condemnation. If, after and despite its best
efforts to do so, Agency is unable to acquire the Site by
negotiated purchase, Agency shall conduct the necessary
analysis in order to determine in its sole discretion whether
to attempt to acquire the Site by exercise of its power of
eminent domain. Agency shall have the right to obtain a bona
fide appraisal from an appraiser satisfactory to Agency. The
Agency has informed Participant that in connection with
condemnation proceedings, a hearing is held to adopt a
Resolution of Necessity. The Agency cannot legally commit
F52\383\014084-0094\2157467.3 u09/23/95 -6-
itself to condemnation of property until after this hearing is
held and the testimony given at the hearing has been
considered. Accordingly, the Participant understands that the
Agency is not obligated by this Agreement to actually acquire
the Site, and the members of the Agency Board are free to
exercise their discretion in any manner they see fit in the
event the Agency considers condemnation. Nothing in this
Agreement shall be deemed a prejudgment or commitment with
respect to condemnation, or a guarantee that such condemnation
will be undertaken. In the event Agency exercises its power
of eminent domain to acquire the Site, Agency shall, subject
to delays outside Agency' s control, exercise reasonable
diligence to complete the acquisition of the Site as soon as
practicable after commencement of eminent domain proceedings .
In the event Agency elects not to condemn a parcel , Agency
shall not have any liability of any kind to Participant
despite the effect of such election on the Project .
(d) Reimbursement Action. Participant has informed
the Agency that the Project could support a property
acquisition cost of up to Six Dollars ($6 . 00) per square foot .
In the event Agency elects to exercise its power of eminent
domain to acquire the Site, Agency agrees to file a complaint
against Renaissance for reimbursement of the out-of-pocket
expenses demanded in the Termination Notice ( "Reimbursement
Action" ) . All costs and expenses, including, but not limited
to, attorneys' fees incurred by Agency in connection with the
Reimbursement Action shall be a part of the Agency Acquisition
Cost. Participant understands that there are significant
impediments to the Agency' s obtaining damages against
Renaissance and the Agency makes no representations as to the
likelihood of success in recovering damages from Renaissance.
After commencing the Reimbursement Action, all acts taken by
Agency in prosecuting said action shall be in Agency' s sole
and absolute discretion. Agency does not covenant that it
will vigorously prosecute the Reimbursement Action. Any sums
actually received by Agency from the Reimbursement Action will
be applied by Agency towards the following costs : (i) the
costs and expenses incurred by Agency in prosecuting the
Reimbursement Action; (ii) the payment of the acquisition
price for the Site in excess of Six Dollars ($6 . 00) per square
(but not in excess of Seven Dollars ($7 . 00) per square foot) ;
and (iii) the payment of the other Agency Acquisition Costs .
Agency shall have the right to apply the sums recovered from
the Reimbursement Action among the foregoing costs in any
manner Agency reasonably deems proper.
4 . 3 Participant' s Purchase Price for the Site;
Conveyance of the Site to Participant.
(a) Purchase Price. In the event Agency acquires
the Site either through negotiated purchase or through
exercise of its power of eminent domain, Agency shall convey
the Site to Participant and Participant shall acquire the Site
MU83\014084-0094\2I57467.3 .09/23/95 -`J-
from Agency for an amount equal to the Agency Acquisition
Cost, including but not limited to, all closing costs, legal
costs, soils consultants, appraiser costs, relocation
consultants, etc. incurred by Agency. The Agency Acquisition
Cost shall include all costs and fees of escrow described in
Section 4 . 12 .
(b) Order of Prejudgment Possession. In the event
that Agency exercises its power of eminent domain to acquire
the Site and provided Participant has approved in writing
title pursuant to Section 4 . 8 below, Agency shall, upon
Participant' s written request (which written request shall
specifically state that Participant is prepared to take
possession of the Site within sixty (60) days) and delivery of
the sums referenced above, exercise its reasonable diligence
to obtain a judicial order or orders -authorizing Agency to
take possession of the Site prior to the formal order of
condemnation (hereinafter "Order of Prejudgment Possession" ) .
(c) Close of Escrow. Notwithstanding any other
provision of this Agreement to the contrary, if at any time
prior to Agency' s acquisition of the Site, Agency (i) deposits
the Deed and a copy of the Order of Prejudgment Possession for
the Site into Escrow; , and (ii) Agency tenders possession of
the Site to Participant; (iii) Agency is diligently proceeding
with the eminent domain action seeking the rendering of a
final judgment authorizing the taking; and (iv) the Title
Company commits to issuing title insurance as provided herein;
then, subject to the satisfaction or waiver of all the
conditions specified in Section 4 . 5 (a) , Participant shall
accept such right of possession and proceed with development
of the Site. The date of such transfer of possession from
Agency to Participant shall be treated as the "Close of
Escrow" for all purposes herein. In such event, Agency shall
exercise reasonable diligence to conclude the eminent domain
proceedings and obtain a final order of condemnation
terminating all interests in the Site, and finalizing Agency' s
cost to acquire the Site, including all closing costs incurred
by Agency relating thereto as soon as possible after the Close
of Escrow for the Site.
(d) Termination. If Agency elects not to exercise
its power of eminent domain to acquire all or any portion of
the Site, Participant may elect either (a) to terminate this
Agreement pursuant to Section 4 . 13 , or (b) to amend the Site
Plan and to proceed with the development of the Site without
such portion of the Site, if and only if Agency and City
approve such amended site plan. If such amended site plan is
not approved by the Agency and City, Participant shall not
proceed with the development of the Site and this Agreement
shall terminate.
4 .4 Escrow. Escrow shall be opened as soon as possible
after the execution of this Agreement by Participant and Agency.
FS2\383\014084-0094\2157467.3 n09/23/95 -8-
This Agreement shall constitute the joint escrow instructions of
the Agency and the Participant, and a duplicate original of this
Agreement shall be delivered to the Escrow Agent upon the opening
of Escrow. Escrow Agent is empowered to act under these
instructions . Agency and Participant shall promptly prepare,
execute, and deliver to the Escrow Agent 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 .
4 . 5 Conditions to Closing.
(a) 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 conditional and contingent upon the satisfaction, or
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 :
(i) 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;
(ii) Title or possession pursuant to an Order
of Prejudgment Possession shall be conveyed subject to
the conditions and exceptions recited in the Deed and the
Declaration and those exceptions specified in Section
4 . 8;
(iii) Agency shall have deposited into Escrow
the executed Deed and/or the Order of Prejudgment
Possession, Declaration and all other funds and documents
required under this Agreement.
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 4 . 13 , subject to any cure
rights provided therein.
(b) Acxencv' s Conditions to Closing. Agency' s
obligation to sell the Site 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
FS2\3831014084-009412157467.3 a09/23/95 -9-
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:
(i) Participant shall have obtained such
preliminary commitments as necessary to finance the
acquisition of the Site and development of the Project or
otherwise provided Agency with financial statements or
loan commitments documenting Participant' s capability to
acquire the Site and develop the Project .
(ii) Participant shall not have made or
attempted to make a Transfer in violation of Section 5 .2 ;
(iii) Participant shall have timely paid the
Agency Acquisition Costs into the Acquisition Fund and
deposited all moneys, documents, fees, charges, costs and
items required to be deposited therein by Participant and
complied with all other requirements hereunder;
(iv) Participant shall have timely performed
each and every obligation of Participant hereunder;
(v) Agency has approved the final building
plans for the Project as provided in Section 5 . 1 (d)
below;
(vi) Participant has obtained all governmental
permits and approvals necessary to commence construction
of the Project as more particularly set forth in Section
5 . 1 (c) below;
(v) Participant is not in default of this
Agreement and this Agreement has not been terminated for
any reason; and
(vi) Agency shall have timely acquired the Site
with title in the condition required for conveyance to
Participant hereunder.
Any waiver of the foregoing conditions must be
express and in writing. In the event that Participant fails
to satisfy Agency' s foregoing conditions, or defaults in the
performance of its obligations hereunder, Agency may terminate
this Agreement by delivering a written notice in accordance
with Section 4 . 13 , subject to any cure rights provided
therein.
4 . 6 Tax Reporting and Miscellaneous Matters . Prior to
the Closing Date, Participant 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,
F82\3 M140&1-0094\2157467.3 a09/23/95 -1 0-
• •
certifying as to the description of the Site, 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 Agent such other items, instruments
and documents, and the parties shall take such further actions, as
may be necessary or desirable in order to complete the Close of
Escrow.
4 . 7 Conveyance of the Site.
(a) Time for Conveyance. The Closing shall occur
upon satisfaction of all conditions to the Closing contained
herein, but not later than the Closing Date, unless extended
by the mutual written agreement of the parties .
(b) Escrow Accent to Advise of Costs . On or before
the date set forth in the Schedule of Performance, the Escrow
Agent shall advise the Agency 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.
(c) Deposits By Acrencv 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 Deed and/or Order of Prejudgment
Possession; (ii) the Declaration; (iii) the FIRPTA
Certificate; (iv) the Residency Certificate; and (v) payment
to Escrow Agent of Agency' s share of costs as determined by
the Escrow Agent pursuant to Section 4 . 12 .
(d) 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 Deed; (iii) the
deed of trust or other security of a lender approved by Agency
pursuant to Section 4 . 6, if any; (iv) the Declaration; and (v)
payment to Escrow Agent of Participant' s share of costs as
determined by the Escrow Agent pursuant to Section 4 . 12 .
(e) Recordation and Disbursement of Funds . Upon
the completion by the Agency and Participant of the deliveries
and actions specified in these escrow instructions precedent
to Closing, the Escrow Agent shall be authorized to pay any
documentary transfer taxes and recording fees, if required by
law, and thereafter cause to be recorded in the appropriate
records of Riverside County, California, the Deed and/or Order
of Prejudgment Possession, the Declaration and any other
appropriate instruments delivered through this Escrow.
Concurrent with recordation, Escrow Agent shall deliver the
Title Policy to Participant . Following recordation, the
Escrow Agent shall deliver copies of said instruments to
Participant and Agency. In addition, after deducting any sums
FS2\383\014084-0094\2157467.3 a09123/95 -1 1-
specified in this Agreement, the Escrow Agent shall disburse
funds to the party entitled thereto.
4 . 8 Title Matters .
(a) Condition of Title. Upon the Closing, Agency
shall convey fee title to the Site to Participant subject only
to: (i) the Redevelopment Plan; (ii) this Agreement; (iii)
the covenants, conditions and restrictions set forth in the
Deed; (iv) the Declaration; (v) nondelinquent real property
taxes and assessments; (vi) necessary public and quasi-public
utility easements; (vii) public street easements; and (viii)
covenants, conditions, and restrictions, easements, and other
encumbrances and title exceptions approved by Participant
under subsection (b) or otherwise created or consented to by
Participant (collectively, the "Permitted Encumbrances" ) .
(b) Approval of Title Exceptions . Prior to the
execution of this Agreement, Agency delivered to Participant
a preliminary title report issued by Title Company. Prior to
the date set forth in the Schedule of Performance, Participant
shall deliver to Agency written notice specifying in detail
any exception (other than those exceptions specifically listed
in subsection (a) ) disapproved and the reason therefor. Prior
to the date set forth in the Schedule of Performance, Agency
shall deliver written notice to Participant 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, Participant may terminate this Agreement without
any liability of Agency to Participant by providing written
notice of termination within five (5) days of receiving
Agency' s notice. The failure of Participant to provide said
notice within the time specified shall be deemed Participant' s
irrevocable election to proceed with the acquisition of the
Site subject to said matters . If Agency so elects to cure the
disapproved exceptions, Agency shall do so on or before the
Closing Date.
(c) Title Policv. Upon the Closing, the Title
Company shall furnish Participant with a CLTA owner' s policy
of title insurance insuring Participant' s fee interest in the
Site subject only to the Permitted Encumbrances (the "Title
Policy" ) . Participant shall be responsible for any title
policy insuring the interest of any lender of funds for the
Project .
4 . 9 Participant Financing. Within the time set forth in
this Schedule of Performance, Participant shall submit to Agency' s
Executive Director for approval evidence reasonably satisfactory to
the Executive Director that Participant has the financial
capability necessary for the acquisition of the Site and
development of the Project thereon pursuant to this Agreement .
FS2\383\014084-0094\2157467.3 a09/23/95 -12-
Such evidence of financial capability shall include all of the
following:
(a) Costs . Reliable cost estimates for Partici-
pant' s total cost of acquiring the Site and developing the
Project (including both "hard" and "soft" costs) .
(b) Financials . A financial statement and/or other
documentation reasonably satisfactory to the Executive
Director sufficient to demonstrate that Participant has
adequate funds available and committed to cover the difference
between the total acquisition costs of the Site and develop-
ment costs of the Project (subparagraph (a) above) .
(c) Construction Contract. A copy of the proposed
contract between Participant and his general contractor for
all of the improvements required to be constructed by
Participant hereunder, certified by Participant to be a true
and correct copy thereof . The Executive Director shall also
have the right to review and approve any revisions that are
made to the proposed contract after its approval by the
Executive Director.
4 . 10 Condition of Site.
(a) Participant Approval of Site. Prior to the
execution of this Agreement, Participant has approved the
physical condition of the Site, including its seismic, soil
and environmental condition, based upon Participant' s
inspection of the Site and the records of Agency. Participant
has determined, from its inspection and investigation of the
Site, and its investigation of all records and reports
concerning the physical condition of the Site, that the soils,
environmental, geotechnical and other physical conditions of
the Site are in accordance with the standards contained in
this Agreement and suitable for the development and
construction of the Project on the Site .
(b) Disclaimer of Warranties . Participant shall
take the Site in its "AS-IS" condition and shall be
responsible for any defects in the Site, whether patent or
latent, including, without limitation, the physical, seismic,
environmental and geotechnical condition of the Site, and the
existence of any contamination, Hazardous Materials, vaults,
debris, pipelines, abandoned wells or other structures located
on, under or about the Site. Agency makes no representation
or warranty concerning the physical, environmental ,
geotechnical or other condition of the Site, the suitability
of the Site for the Project, or the present use of the Site,
and specifically disclaims all representations or warranties
of any nature concerning the Site made by it, the City and
their employees, agents and representatives . The foregoing
disclaimer includes, without limitation, topography, climate
air, water rights, utilities, present and future zoning, soil ,
FS2\383\014084-0094\2157467.3 a09/23/95 -1 3 -
subsoil, existence of Hazardous Materials or similar
substances, the purpose for which the Site is suited, or
drainage. The Agency shall not be responsible for grading the
Site and makes no representation nor warranty concerning the
compaction of soil upon the Site, nor of the suitability of
the soil for construction.
(c) Release. Participant, from and after the
Effective Date, hereby waives, releases, premises, acquits and
forever discharges Agency, City, their directors, officers,
employees, and agents, and their respective heirs, successors,
personal representatives and assigns, of and from any and all
Environmental Claims, Environmental Cleanup Liability and
Environmental Compliance Costs, as those terms are defined
below, and from any and all actions, suits, legal or
administrative orders or proceedings, demands, actual damages,
punitive damages, loss, costs, liabilities and expenses, which
concern or in any way relate to the physical or environmental
conditions of the Site, the existence of any Hazardous
Material thereon, or the release or threatened release of
Hazardous Materials therefrom, whether existing prior to, at
or after the Effective Date. It is the intention of the
parties pursuant to this release that any and all
responsibilities and obligations of Agency and City, and any
and all rights, claims, rights of action, causes of action,
demands or legal rights of any kind of Participant, its
successors, assigns or any affiliated entity of Participant,
arising by virtue of the physical or environmental condition
of the Site, the existence of any Hazardous Materials thereon,
or any release or threatened release of Hazardous Material
therefrom, whether existing prior to, at or after the
Effective Date, are by this release provision declared null
and void and of no present or future force and effect as to
the parties . In connection therewith, Participant expressly,
knowingly, and voluntarily agrees to waive any and all rights
which Participant may have under Section 1542 of the
California Civil Code which provides as follows :
"A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing
the release, which if known by him must have
materially affected his settlement with the
debtor. "
Participant' s Initials :
(d) Hazardous Materials Indemnity. Participant
shall, from and after the Effective Date, defend, indemnify
and hold harmless Agency, City and their officers, officials,
employees, agents and representatives (collectively, the
"Indemnified Parties" ) from and against any and all
Environmental Claims, Environmental Cleanup Liability,
Environmental Compliance Costs, and any other claims, actions,
FS2\383\014084-0094\2157467.3 a09/23/95 -1 4-
• •
suits, legal or administrative orders or proceedings, demands
or other liabilities resulting at any time from the physical
and/or environmental conditions of the Site whether before or
after the Effective Date or from the existence of any
Hazardous Materials or the release or threatened release of
any Hazardous Materials of any kind whatsoever, in, on or
under the Site occurring at any time whether before or after
the Effective Date, including but not limited to, all
foreseeable and unforeseeable damages, fees, costs, losses and
expenses, including any and all attorneys' fees and
environmental consultant fees and investigation costs and
expenses, directly or indirectly arising therefrom, and
including fines and penalties of any nature whatsoever,
assessed, levied or asserted against any Indemnified Parties
to the extent that the fines and/or penalties are the result
of a violation or an alleged violation of any Environmental
Law.
(e) Definitions . For purposes of this Section, the
following terms shall have the following meanings:
(i) "Environmental Claim" means any claim
for personal injury, death and/or property damage made,
asserted or prosecuted by or on behalf of any third
party, including, without limitation, any governmental
entity, relating to the Site or its operations and
arising or alleged to arise under any Environmental Law.
(ii) "Environmental Cleanup Liability" means
any cost or expense of any nature whatsoever incurred to
contain, remove, remedy, clean up, or abate any
contamination or any Hazardous Material on or under all
or any part of the Site, including the ground water
thereunder and asbestos thereon, including, without
limitation, (i) any direct costs or expenses for
investigation, study, assessment, legal representation,
cost recovery by governmental agencies, or ongoing
monitoring in connection therewith and (ii) any cost,
expense, loss or damage incurred with respect to the Site
or its operation as a result of actions or measures
necessary to implement or effectuate any such
containment, removal, remediation, treatment, cleanup or
abatement .
(iii) "Environmental Compliance Cost" means
any cost or expense of any nature whatsoever necessary to
enable the Site to comply with all applicable
Environmental Laws in effect . "Environmental Compliance
Cost" shall include all costs necessary to demonstrate
that the Site is capable of such compliance.
(iv) "Environmental Law" means any federal,
state or local statute, ordinance, rule, regulation,
order, consent decree, judgment or common-law doctrine,
FS2\383\014084-0094\2157467 3 a09/23/95 -is-
and provisions and conditions of permits, licenses and
other operating authorizations relating to (i) pollution
or protection of the environment, including natural
resources, (ii) exposure of persons, including employees,
to Hazardous Materials or other products, raw materials,
chemicals or other substances, (iii) protection of the
public health or welfare from the effects of by-products ,
wastes, emissions, discharges or releases of chemical
substances from industrial or commercial activities, or
(iv) regulation of the manufacture, use or introduction
into commerce of chemical substances, including, without
limitation, their manufacture, formulation, labeling,
distribution, transportation, handling, storage and
disposal .
(v) "Hazardous Material" is defined to
include any hazardous or toxic substance, material or
waste which is or becomes regulated by any local
governmental authority, the State of California, or the
United States Government . The term "Hazardous Material'
includes, without limitation, any material or substance
which is : (i) petroleum or oil or gas or any direct or
derivate product or byproduct thereof; (ii) defined as a
"hazardous waste, " "extremely hazardous waste" or
"restricted hazardous waste" under Sections 25115, 25117
or 25122 . 7, or listed pursuant to Section 25140 , of the
California Health and Safety Code, Division 20 , Chapter
6 . 5 (Hazardous Waste Control Law) ; (iii) defined as a
"hazardous substance" under Section 25316 of the
California Health and Safety Code, Division 20 , Chapter
6 . 8 (Carpenter-Presley-Tanner Hazardous Substance Account
Act) ; (iv) defined as a "hazardous material, " "hazardous
substance, " or "hazardous waste" under Sections 25501 (j )
and (k) and 25501 . 1 of the California Health and Safety
Code, Division 20, Chapter 6 .95 (Hazardous Materials
Release Response Plans and Inventory) ; (v) defined as a
"hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter
6 . 7 (Underground Storage of Hazardous Substances) ; (vi)
"used oil" as defined under Section 25250 . 1 of the
California Health and Safety Code; (vii) asbestos; (viii)
listed under Chapter it of Division 4 . 5 of Title 22 of
the California Code of Regulations, or defined as
hazardous or extremely hazardous pursuant to Chapter 10
of Division 4 . 5 of Title 22 of the California Code of
Regulations; (ix) defined as waste or a hazardous
substance pursuant to the Porter-Cologne Act, Section
13050 of the California Water Code; (x) designated as a
"toxic pollutant" pursuant to the Federal Water Pollution
Control Act, 33 U.S .C. § 1317; (xi) defined as a
"hazardous waste" pursuant to the Federal Resource
Conservation and Recovery Act, 42 U.S . C. § 6901 et seq.
(42 U.S .C. § 6903) ; (xii) defined as a "hazardous
substance" pursuant to the Comprehensive Environmental
PS2\383\014084-0094\2157467.3 a09/23/95 -1 6-
Response, Compensation and Liability Act, 42 U. S . C.
§ 9601 et seq. (42 U.S . C. § 9601) (xiii) defined as
"Hazardous Material,, pursuant to the Hazardous Materials
Transportation Act, 49 U.S . C. § 5101 et seq. ; or (xiv)
defined as such or regulated by any "Superfund" or
"Superlien" law, or any other federal, state or local
law, statute, ordinance, code, rule, regulation, order or
decree regulating, relating to, or imposing liability or
standards of conduct concerning Hazardous Materials
and/or oil wells and/or underground storage tanks and/or
pipelines, as now, or at any time hereafter, in effect .
(f) Survival . Notwithstanding any other provision
of this Agreement, Participant' s release and indemnification
as set forth in the provisions of this Section, as well as all
provisions of this Section shall survive the termination of
this Agreement, shall not merge with the Deed, and shall
continue in perpetuity.
4 . 11 Indemnification.
(a) Title Indemnity. In the event Agency conveys
possession to an Site to Participant prior to transfer of
actual legal title of an Site to Agency, Agency agrees to
execute an indemnification agreement in form satisfactory to
the Title Company and reasonably satisfactory to Agency by
which Agency shall agree to indemnify the Title Company for
any losses, damages, and expenses incurred by the Title
Company in the event of Agency' s abandonment of the eminent
domain proceedings . Nothing herein shall be deemed to
obligate Agency to pay for any additional premium or other
charge necessary for the issuance of the Title Policy. In the
event that the Title Company declines to issue a title
insurance policy under such circumstances and Participant does
not agree in its sole and absolute discretion to satisfy
whatever other requirements the Title Company may impose as a
condition to its issuance of the policy prior to Agency' s
acquisition and conveyance of actual legal title to the Site,
Participant' s obligations to take possession of the Site and
to commence and complete construction of the improvements on
the Site shall not commence to run until legal title to the
Site is conveyed to Agency.
(b) Participant Indemnity. Participant shall
defend, indemnify and hold harmless the Agency, City and all
of its agents, officers and employees from any claim, action
or proceeding against the Agency, City or any of its agents,
officers and employees in any fashion (including but not
limited to attorney' s fees) relating to the adoption or
implementation of this Agreement, either independently or in
conjunction with the Redevelopment Plan for the Site,
including, but not limited to, proceedings to void, attack,
annul, or set aside this Agreement, any claims for money or
damages against the City and/or Agency as a result of
FS2\383\014084-0094\2157467.3 a09/23/95 -1 7-
development restrictions placed upon the Site such as those
for inverse condemnation, substantive due process violations,
the taking of property, the failure or delay respecting the
taking of property and the like. The City and Agency will
promptly notify the Participant of any such claim, action or
proceeding, and will cooperate fully in the defense of that
action. The City and Agency shall, however, have the sole
discretion as to whether and in what manner to settle any such
litigation.
4 . 12 Costs of Escrow.
(a) Allocation of Costs . Upon the Closing, the
Escrow Agent is authorized to allocate costs as follows :
Agency shall pay the documentary transfer tax for the Deed,
the premium for a CLTA coverage Title Policy and one-half of
the Escrow fee. Participant shall pay the recording charges
for the Deed, the Declaration and any financing documents, the
difference between CLTA coverage and ALTA coverage for the
Title Policy, including the cost of the ALTA survey, the costs
of any endorsements to the Title Policy requested by
Participant and one-half of the Escrow fee.
(b) Prorations and Adjustments . Ad valorem taxes
and assessments on the Site and insurance for the current year
shall be prorated by the Escrow Agent as of the date of
Closing with the Agency responsible for those levied, assessed
or imposed prior to Closing and 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 days thereafter, prorate the taxes in cash between the
parties .
4 . 13 Termination of Escrow.
(a) Termination. This Agreement and the Escrow may
be terminated by demand of either party who then shall have
fully performed its obligations hereunder if: (i) the
Participant' s Conditions or Agency' 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) either
party is in breach of the terms and conditions of this
Agreement . In the event of the foregoing, the terminating
party may demand, in writing, return of its money, papers, or
documents from the Escrow Agent if Escrow has been opened, and
shall deliver a copy of such demand to the non-terminating
party. No demand shall be recognized until fifteen (15) days
after such demand has been delivered to the non-terminating
FS2\383\014084-0094\2157467.3 .09/23/95
party, and no objections are raised in writing to the
terminating party and the Escrow Agent by the non-terminating
party 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 Agent is authorized to hold all money, papers, and
documents until instructed in writing by both Participant 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.
(b) Opportunity to Cure. In the event any of the
Participant' s Conditions or Agency' 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 party 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 party has made
demand as stated in subsection (a) , then upon the non-
performing party' s delivering its objection to Escrow Agent
and the performing party 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 8 .2 .
(c) Agency' s Costs . Participant shall reimburse
Agency for all costs incurred by Agency respecting the
acquisition of an Site whether or not Participant ultimately
acquires the Site. Said costs shall include but not be
limited to attorneys fees, appraisers fees, soil consultants,
etc. In the event escrow is terminated for any reason, Escrow
Holder shall not return any funds it holds until Agency has
given written notice to Escrow summarizing the amounts due to
Agency hereunder. Thereafter, Escrow Holder shall terminate
the Escrow, and without further instructions deliver the costs
demanded by Agency to Agency from the Acquisition Fund and the
balance, if any, shall be returned to Participant. In the
event this Agreement is terminated for any reason, Agency may
elect to terminate any condemnation proceeding and Agency
shall retain such costs as Agency determines is required to
terminate the proceeding and to reimburse Agency for its costs
and shall be returned the balance, if any, of the Acquisition
Fund to Participant and in the event additional sums are
needed to fully compensate the owner of the Site as well as to
reimburse Agency' s costs, Participant shall deliver same to
Agency within five (5) days of receipt of written notice.
F82\383\014084-0094\2157467.3 a09/23/95 -1 9-
4 . 14 Responsibilities of Escrow Agent .
(a) Deposit of Funds . All funds received in Escrow
shall be deposited by the Escrow Agent in an escrow account
with any state or national bank doing business in the State of
California.
(b) Notices . All communications from the Escrow
Agent shall be directed to the addresses and in the manner
provided in Section 8 . 1 of this Agreement for notices ,
demands and communications between Agency and Participant .
(c) Sufficiency of Documents . The Escrow Agent 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 Agent is to accept such documents and follow
Participant' s and Agency' s instructions for their use .
(d) Exculpation of Escrow Agent . The Escrow Agent
shall in no case or event 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 Agent .
(e) Responsibilities in the Event of Controversies .
If any controversy documented in writing arises between
Participant and Agency or with any third party with respect to
the subject matter of the Escrow or its terms or conditions ,
the Escrow Agent shall not be required to determine the same,
to return any money, papers or documents, or take any action
regarding the Site 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 Agent shall be responsible for timely notifying
Participant and Agency of the controversy. In the event of
such a controversy, the Escrow Agent 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 Agent
to perform its responsibilities hereunder.
4 . 15 Brokerage Commissions . Each party agrees to
indemnify and hold the other harmless from and against all
liabilities, costs, damages, and expenses, including, without
limitation, attorneys' fees, resulting from any claims or fees or
commissions, based upon agreements by it, if any, to pay a broker' s
commission and/or finder' s fee.
FS2\383\014084-0094\2157467.3 a09/23/95 -2 Q-
5 . CONSTRUCTION OF THE PROJECT.
5 . 1 Construction of the Project .
(a) Development in Accordance with Plans .
Participant shall develop the Project in accordance with this
Agreement, the Scope of Development, the approved Basic
Concept Drawings approved by the Agency prior to or
concurrently with the approval of this Agreement, and the
plans and permits approved by Agency and City pursuant to
subsections (c) and (d) , including any changes thereto as may
be subsequently approved in writing by both Participant and
Agency and, if necessary, City. As completed, the Project :
(a) shall comply with all applicable laws and ordinances of
all governmental authorities, including, without limitation,
all laws and ordinances necessary to permit development of the
Site as permitted by this Agreement; (b) except as expressly
provided herein, will be entirely on the Site and will not
encroach upon the land of others or overbound any easement or
right-of-way; and (c) will be wholly in compliance with any
enforceable building restriction laws, however established,
and will not violate any enforceable use, easement, license,
covenant, condition or other restriction affecting the Site .
(b) Evolution of Development Plan. Prior to or
concurrently with the approval of this Agreement, the Agency
has approved the Participant' s Basic Concept Drawings . On or
before the date set forth in the Schedule of Performance,
Participant shall submit to the City preliminary, and
thereafter final drawings and specifications for development
of the Site in accordance with the Scope of Development, the
Basic Concept Drawings, and in accordance with the City' s
requirements . The term preliminary and final drawings shall
be deemed to include site plans, building plans and
elevations, grading plans, if applicable, landscaping plans,
parking plans, material pallets, a description of structural,
mechanical, and electrical systems, and all other plans,
drawings and specifications . Final drawings will be in
sufficient detail to obtain a building permit. Said plans,
drawings and specifications shall be consistent with the Scope
of Development and the various development approvals
referenced hereinabove, except as such items may be amended by
City (if applicable) and by mutual consent of Agency and
Participant. Plans, (concept, preliminary and construction)
shall be progressively more detailed and will be approved if
a logical evolution of plans, drawings or specifications
previously approved.
(c) Other Governmental Permits . Participant shall,
at its own expense and before commencement of construction,
rehabilitation, restoration, revitalization, or development of
any buildings, structures, or other work of improvement upon
the Site, secure or cause to be secured any and all permits
and approvals which may be required by City or any other
F52\3 M14094-0094\2157467.3 a09/23/95 -Z 1-
governmental agency affected by such construction, development
or work to be performed by Participant pursuant to the Scope
of Development, including but not limited to, necessary
building permits and all approvals required under the
California Environmental Quality Act ( "CEQA" ) . Not by way of
limiting the foregoing, in developing and constructing the
Project, Participant shall comply with all applicable
development standards in City' s Municipal Code and shall
comply with all building code, landscaping, signage and
parking requirements except as may be permitted through
approved variances and modifications . Participant shall not
be obligated to commence construction if any such permit is
not issued despite good faith effort by Participant .
Participant shall pay all normal and customary fees and
charges applicable to such permits and any fees and charges
hereafter imposed by City or Agency which are standard for and
uniformly applied to similar projects in the City.
(d) Approval by Agency. The Agency shall approve
or disapprove any submittal made by the Participant pursuant
to this Agreement within thirty (30) days after such
submittal . All submittals made by Participant will note in
bold type the thirty (30) day time limit and specifically
reference this Agreement and this Section. Any disapproval
shall state in writing the reason for the disapproval and the
changes which the Agency requests to be made . After
Participant resubmits the corrected submittal , Agency shall
have an additional thirty (30) days for the review of the
resubmittal but if the Agency disapproves the resubmittal,
then the cycle shall repeat, until the Agency' s approval has
been obtained. Any approvals made by the City relating to the
design of the Project shall be deemed to also constitute
approval by the Agency.
(e) Agency Assistance. Subject to Participant' s
compliance with (i) applicable City and Agency development
standards for the Site and (ii) all applicable laws and
regulations governing such matters as public hearings, site
plan review and environmental review, Agency agrees to provide
reasonable assistance to Participant, at no cost to Agency, in
the expeditious processing of Participant' s submittals
required under this Agreement in order that Participant may
obtain a final City action on such matters on or before the
date set forth in the Schedule of Performance; provided that
Agency does not warrant or represent that such approval shall
be obtained.
(f) Cost of Construction. Participant shall bear
all costs of preparing and developing the Project and
constructing all improvements thereon, including, but not
limited to, any and all costs for demolition and clearance of
existing surface and subsurface improvements inconsistent with
the Project, architectural and engineering plans, preparation
of the Site, costs associated with meeting applicable seismic
FS2\383\014084-0094\2157467.3 .09123/95 -2 2-
standards, interim and permanent financing, broker' s and
leasing commissions, and fees or charges for development and
building, except for those public improvements expressly set
forth in the Scope of Development to be performed by Agency.
(g) Construction Schedule; Reports . Participant
shall commence and complete construction of the Project within
the times set forth in the Schedule of Performance. Once
construction is commenced, Participant shall diligently pursue
such construction to completion and Participant shall not
abandon such construction for more than thirty (30)
consecutive days. The decision of the Executive Director
shall be final and conclusive upon the parties to this
Agreement . Participant shall keep Agency informed of the
progress of construction and submit to Agency written reports
of the progress of construction when and in the form requested
by Agency, but not less than monthly.
(h) Plans and Specifications . Participant shall
construct the Project upon the Site in accordance with the
construction drawings, working specifications, and related
documents that shall be submitted to and approved by the
Agency in advance and in writing.
(i) Nondiscrimination During Construction. Parti-
cipant, for itself and its successors and assigns, agrees that
during the rehabilitation of the Project, Participant will not
discriminate against any employee or applicant for employment
because of race, color, creed, religion, sex, marital status,
age, physical or mental disability, ancestry, or national
origin.
5 .2 Sale or Transfer of the Protect . The Participant
covenants that during the term of this Agreement and prior to the
recordation of the Certificate of Completion, Participant shall not
assign this Agreement or transfer the Site or any of its interests
therein except as provided in this Section.
(a) Transfer Defined. As used in this Section, the
term "Transfer" shall include any assignment, hypothecation,
mortgage, pledge, conveyance, or encumbrance of this
Agreement, the Site, 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
FS2\383\014084-0094\2157467.3 .09/23/95 -2 3-
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, or
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
(250-8 ) 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 .
(b) Agency Aporoval of Transfer Required. Partici-
pant shall not Transfer this Agreement or any of Participant' s
rights hereunder, or any interest in the Site or in the
improvements thereon, directly or indirectly, voluntarily or
by operation of law, without the prior written approval of
Agency, which approval will not be unreasonably withheld, 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, which Transfer requires Agency
approval, Agency shall consider factors such as (i) whether
the completion of the Project is jeopardized; (ii) the
financial credit, strength and capability of the proposed
transferee to perform Participant' s obligations hereunder;
(iii) the proposed transferee' s experience and expertise in
the planning, financing, rehabilitation, development,
ownership, and operation of similar projects; and (iv) whether
the Transfer is for the purpose of financing the purchase or
development of the Site. A Transfer for financing purposes
shall not be approved by the Agency if the loan documents do
not state that the loan proceeds must be used for the Project.
(c) Release; Assumption. In the absence of
specific written agreement by Agency, no Transfer by
Participant of all or any portion of its interest in the Site
shall be deemed to relieve Participant or any successor party
from the obligation to complete the Project or any other
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 .
FSZ383\O14084-009M2157467.3 .09/23/95 -2 4-
5 .3 Insurance and Indemnification.
(a) Insurance. Prior to the entry by Participant
on the Site pursuant to Section 4 . 10 (c) and prior to the
commencement of any construction by Participant, Participant
and/or any persons entering on the Site to conduct inspections
or to install improvements on the Site shall procure and
maintain, at its sole cost and expense, in a form and content
satisfactory to Agency, during the entire term of such entry
or construction, the following policies of insurance:
(i) 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, 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 FIVE
HUNDRED THOUSAND DOLLARS ($500 , 000 . 00) in the aggregate.
(ii) Worker' s Compensation Insurance. A policy
of worker' s compensation insurance in such amount as will
fully comply with the laws of the State of California and
which shall indemnify, insure and provide legal defense
for both 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 .
(iii) 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 ONE HUNDRED
THOUSAND DOLLARS ($100, 000 . 00) in the aggregate or (ii)
combined single limit liability of FIVE HUNDRED THOUSAND
DOLLARS ($500, 000 . 00) . Said policy shall include cover-
age for owned, non-owned, leased and hired cars .
(iv) 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, except the
Builder' s Risk Insurance, shall be primary insurance and shall
FS2\383\014084-0094\2157467.3 a09128/95 -2 5-
name Agency, City, and their 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 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.
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 con-
tractors, subcontractors, architects, and engineers that said
contractor, subcontractor, architect, or engineer shall
maintain the same policies of insurance required to be
maintained by Participant pursuant to this Section, unless
waived by the Risk Manager of Agency.
The Participant agrees that the provisions of this
Section 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.
(b) Indemnification. During the period of any
construction 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 expense (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 Site 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
F82\383\014084-0094\2157467.3 .09/23/95 -2 6-
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 shall
survive the termination of this Agreement .
5 .4 Rights of Access . Representatives of the Agency
shall have the reasonable right of access to the Site without
charges or fees, at any time during normal construction hours
during the period of construction, for the purpose of assuring
compliance with this Agreement, including but not limited to the
inspection of the construction work being performed by or on behalf
of Participant . Such representatives of Agency shall be those who
are so identified in writing by the Executive Director of Agency.
Each such representative of Agency shall identify himself or
herself at the job site office upon his or her entrance to the
Site, and shall provide Participant, or the construction
superintendent or similar person in charge on the Site, a
reasonable opportunity to have a representative accompany him or
her during the inspection. Agency shall indemnify, defend, and
hold Participant harmless from any injury or property damage caused
or liability arising out of Agency' s exercise of this right of
access .
5 . 5 Taxes and Assessments and Liens . Participant shall
pay, when due, all real estate taxes and assessments assessed or
levied subsequent to conveyance of title. Participant shall remove
or have removed any levy or attachment made on the Site, or assure
the satisfaction thereof, within a reasonable time, but in any
event prior to a sale thereunder. Nothing herein contained shall
be deemed to prohibit Participant from contesting the validity or
amounts of any tax, assessment, encumbrance or lien, nor to limit
the remedies available to Participant in respect thereto.
5 . 6 Antidiscrimination During Construction .
Participant, for himself and his successors and assigns , agrees
that in the construction of the improvements to be constructed by
Participant, it shall not discriminate against any employee or
applicant for employment because of race, color, creed, religion,
sex, marital status, ancestry or national origin.
5 . 7 Easements . Participant shall grant to Agency and
City all necessary and appropriate easements for development of
public improvements consistent with the approved Project plans,
including but not limited to streets, rights of vehicular access,
sidewalks, sewers, storm drains, and water improvements .
5 . 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
FS2\383\014084-0094\2157467.3 a09/23/95 -2 7-
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 Site 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 Declaration. The Certificate of Completion is not a
notice of completion as referred to in California Civil Code
section 3093 .
If Agency refuses or fails to furnish a Certificate of
Completion after written request from Participant, Agency shall,
within ten (10) days of the written request, provide the
Participant a written statement of the reasons Agency refused or
failed to furnish a Certificate of Completion. The statement shall
also contain the Agency' s opinion of the action Participant must
take to obtain a Certificate of Completion. If the Agency shall
have failed to provide such written statement within said ten (10)
day period, Participant shall be deemed entitled to the Certificate
of Completion. If Agency refuses or fails to furnish the
Certificate of Completion for the reason that specific items or
materials are not available or landscaping is not complete and the
cost thereof is less than ten percent (100) of the cost of total
consideration, Agency shall issue the Certificate of Completion
upon the posting by Participant with Agency of a cash deposit, bond
or irrevocable letter of credit (in a form acceptable to Agency) in
an amount representing one hundred fifty percent (15096) of the fair
value of the work not yet completed.
5 . 9 Rights of Holders of Approved Security Interests in
Site.
(a) Definitions . As used in this Section, the term
"mortgage" shall include any mortgage, whether a leasehold
mortgage or otherwise, deed of trust, or other security
interest, or sale and lease-back, or any other form of
conveyance for financing. The term "holder" shall include the
holder of any such mortgage, deed of trust, or other security
interest, or the lessor under a lease-back, or the grantee
under any other conveyance for financing.
(b) Limitation on Encumbrances . Notwithstanding
anything to the contrary contained in this Agreement,
Participant shall not mortgage the Site or the Project or any
portion thereof or any interest therein, or enter into any
other form of conveyance for financing prior to the date that
Participant has acquired fee title to the entire Site.
Subsequent to or concurrently with Participant' s acquisition
FS2\383\014084-0094\2157467.3 .09/23/95 -2 8-
of fee title to the entire Site, mortgages required for any
reasonable method of financing of the construction of the
improvements or acquisition of the Site are permitted before
issuance of a Certificate of Completion but only for the
purpose of securing loans of funds used or to be used for
financing the acquisition of the Site, for the construction of
improvements thereon, and for any other expenditures necessary
and appropriate to develop the Site under this Agreement, or
for restructuring or refinancing any of same, so long as the
refinancing does not exceed the then outstanding balance of
the existing financing, including any additional costs for
completion of construction, whether direct or indirect, based
upon the estimates of architects and/or contractors . The
Participant shall notify the Agency in advance of any
mortgage, if the Participant or such entity proposes to enter
into the same before issuance of the Certificate of
Completion. The Participant or such entity shall not enter
into any such conveyance for financing without the prior
written approval of the Agency as provided in Section 5 . 2 .
Any lender approved by the Agency pursuant to Section 5 .2
shall not be bound by any material amendment, implementation,
or modification to this Agreement subsequent to the
recordation of its mortgage without such lender giving its
prior written consent thereto. In any event, the Participant
shall promptly notify the Agency of any mortgage, encumbrance,
or lien that has been created or attached thereto prior to
issuance of a Certificate of Completion, whether by voluntary
act of the Participant or otherwise.
(c) Participant' s Breach Not Defeat Mortgage Lien.
Participant' s breach of any of the covenants or restrictions
contained in this Agreement shall not defeat or render invalid
the lien of any mortgage permitted pursuant to subsection (b)
above and made in good faith and for value as to the Site, or
any part thereof or interest therein, but unless otherwise
provided herein, the terms, conditions, covenants, restric-
tions, easements, and reservations of this Agreement shall be
binding and effective against the holder of any such mortgage
of the Site whose interest is acquired by foreclosure,
trustee' s sale or otherwise.
(d) Holder Not Obligated to Construct or Complete
Improvements . The holder of any mortgage shall in no way be
obligated by the provisions of this Agreement to construct or
complete the improvements or to guarantee such construction or
completion. Nothing in this Agreement shall be deemed or con-
strued to permit or authorize any such holder to devote the
Site or any portion thereof to any uses, or to construct any
improvements thereon, other than those uses or improvements
provided for or authorized by this Agreement.
(e) Notice of Default to Mortgagee Deed of Trust
or Other Security Interest Holders . Whenever Agency shall
deliver any notice or demand to Participant with respect to
FS2\393\014084-0094\21574673 a09/23/95 -2 9-
any breach or default by Participant hereunder, Agency shall
at the same time deliver a copy of such notice or demand to
each holder of record of any mortgage who has previously made
a written request to Agency therefor, or to the representative
of such lender as may be identified in such a written request
by the lender. No notice of default shall be effective as to
the holder unless such notice is given.
(f) Right to Cure. Each holder (insofar as the
rights of Agency are concerned) shall have the right, at its
option, within ninety (90) days after the receipt of the
notice, to:
(i) Obtain possession, if necessary, and to
commence and diligently pursue said cure until the same
is completed, and
(ii) Add the cost of said cure to the security
interest debt and the lien or obligation on its security
interest; provided that in the case of a default which
cannot with diligence be remedied or cured within such
ninety (90) day period, such holder shall have additional
time as reasonably necessary to remedy or cure such
default .
In the event there is more than one such holder, the
right to cure or remedy a breach or default of Participant
under this Section shall be exercised by the holder first in
priority or as the holders may otherwise agree among
themselves, but there shall be only one exercise of such right
to cure and remedy a breach or default of Participant under
this Section.
No holder shall undertake or continue the construction or
completion of the improvements (beyond the extent necessary to
preserve or protect the improvements or construction already
made) without first having expressly assumed Participant' s
obligations to Agency by written agreement satisfactory to
Agency with respect to the Site or any portion thereof in
which the holder has an interest . The holder must agree to
complete, in the manner required by this Agreement, the
improvements to which the lien or title of such holder
relates, and submit evidence satisfactory to the Agency that
it has the qualifications and financial responsibility
necessary to perform such obligations . Any holder properly
completing such improvements shall be entitled, upon written
request made to Agency, to a Certificate of Completion from
Agency.
(g) Aaencv' s Rights upon Failure of Holder to
Complete Improvements . In any case where one hundred eighty
(180) days after default by Participant in completion of
construction of improvements under this Agreement, the holder
of any mortgage creating a lien or encumbrance upon the Site
FS2\383\014084-0094\2157467.3 a09/23195 -3 0-
or improvements thereon has not exercised the option to con-
struct afforded in this Section or if it has exercised such
option and has not proceeded diligently with construction,
Agency may, after ninety (90) days' notice to such holder and
if such holder has not exercised such option to construct
within said ninety (90) day period, purchase the mortgage (or
the fee interest if the holder has foreclosed) , upon payment
to the holder of an amount equal to the sum of the following:
(i) The unpaid mortgage, debt plus any accrued
and unpaid interest (less all appropriate credits,
including those resulting from collection and application
of rentals and other income received during foreclosure
proceedings, if any) ;
(ii) All expenses, incurred by the holder with
respect to foreclosure, if any;
(iii) The net expenses (exclusive of general
overhead) , incurred by the holder as a direct result of
the ownership or management of the Site, such as
insurance premiums or real estate taxes, if any;
(iv) The costs of any improvements made by such
holder, if any; and
(v) An amount equivalent to the interest that
would have accrued on the aggregate of such amounts had
all such amounts become part of the mortgage debt and
such debt had continued in existence to the date of
payment by the Agency.
In the event that the holder does not exercise its option
to construct afforded in this Section, and Agency elects not
to purchase the mortgage of holder, upon written request by
the holder to Agency, Agency agrees to use reasonable efforts
to assist the holder selling the holder' s interest to a
qualified and responsible party or parties (as determined by
Agency) , who shall assume the obligations of making or
completing the improvements required to be constructed by
Participant, or such other improvements in their stead as
shall be satisfactory to Agency. The proceeds of such a sale
shall be applied first to the holder of those items specified
in subparagraphs (a) through (e) hereinabove, and any balance
remaining thereafter shall be applied as follows :
(i) First, to reimburse Agency, on its own
behalf and on behalf of the City, for all costs and
expenses actually and reasonably incurred by Agency,
including but not limited to payroll expenses, management
expenses, legal expenses, and others .
(ii) Second, to reimburse Agency, on its own
behalf and on behalf of the City, for all payments made
FS2\383\014084-0094\2157467.3 n09/23/95 -3 1
by Agency to discharge any other encumbrances or liens on
the Site or to discharge or prevent from attaching or
being made any subsequent encumbrances or liens due to
obligations, defaults, or acts of Participant, its
successors or transferees .
(iii) Third, to reimburse Agency, on its own
behalf and on behalf of the City, for all costs and
expenses actually and reasonably incurred by Agency, in
connection with its efforts assisting the holder in
selling the holder' s interest in accordance with this
Section.
(iv) Fourth, any balance remaining thereafter
shall be paid to Participant .
(h) Right of Agency to Cure Mortcrage Deed of Trust
or Other Security Interest Default . In the event of a default
or breach by Participant (or entity permitted to acquire title
under this Section) of a mortgage prior to the issuance by
Agency of a Certificate of Completion for the Site or portions
thereof covered by said mortgage, and the holder of any such
mortgage has not exercised its option to complete the
development, Agency may cure the default prior to completion
of any foreclosure. In such event, Agency shall be entitled
to reimbursement from Participant or other entity of all costs
and expenses incurred by Agency in curing the default, to the
extent permitted by law, as if such holder initiated such
claim for reimbursement, including legal costs and attorneys'
fees, which right of reimbursement shall be secured by a lien
upon the Site, with power of sale, to the extent of such costs
and disbursements . Any such lien shall be subject to:
(i) Any mortgage for financing permitted by
this Agreement; and
(ii) Any rights or interests provided in this
Agreement for the protection of the holders of such
mortgages for financing; provided that nothing herein
shall be deemed to impose upon Agency any affirmative
obligations (by the payment of money, construction or
otherwise) with respect to the Site in the event of its
enforcement of its lien. Agency may enforce its lien
pursuant to the provisions of Section 2924 et seq. of the
California Civil Code.
(i) Right of the Agency to Satisfy Other Liens on
the Property After Conveyance of Title. After the conveyance
of title and prior to the recordation of a Certificate of
Completion for construction and development, and after the
Participant has had a reasonable time to challenge, cure, or
satisfy any liens or encumbrances on the Site or any portion
thereof, the Agency shall have the right to satisfy any such
liens or encumbrances; provided, however, that nothing in this
F52\3831014094-0094\2157467.3 a09/23/95 -3 2-
Agreement shall require the Participant to pay or make
provision for the payment of any tax, assessment, lien or
charge so long as the Participant in good faith shall contest
the validity or amount thereof, and so long as such delay in
payment shall not subject the Site or any portion thereof to
forfeiture or sale. Agency shall have the right to
reimbursement from Participant for any amount expended
pursuant to this Section, which right of reimbursement shall
be secured by a lien on the Site, with power of sale, as
provided in the Declaration.
5 . 10 Agency Financial Assistance. In consideration of
Participant' s performance of its obligations hereunder and provided
that Participant has not defaulted in any of the terms, conditions,
covenants and obligations of Participant under this Agreement, the
Grant Deed, the Declaration or any other document incorporated
herein by reference, Agency agrees to pay to Participant in annual
installments the Agency Acquisition Costs, less the sum of (i) the
purchase price of the Site (whether paid pursuant to a negotiated
purchase or through eminent domain) ; and (ii) less any funds
received from the Reimbursement Action and applied by Agency to
Agency Acquisition Costs pursuant to Section 4 .2 (d) ( "Agency
Financial Assistance") upon the following terms and conditions :
(a) Net Property Tax Increment. The Agency
Financial Assistance shall not be a general obligation of the
Agency and shall be payable solely from the "Net Property Tax
Increment" generated by the Site which is allocated and paid
to Agency. As used herein, the term "Net Property Tax
Increment" shall mean the portion of the property taxes
allocated to Agency pursuant to California Health and Safety
Code Section 33670 (b) attributable to the Site and actually
paid to the Agency (provided, however, that the base year
assessed value for which the Net Property Tax Increment will
be calculated shall be the assessed value of the Site as of
the date the Site is conveyed to Participant [as determined by
the Riverside County Assessor based upon the change in
ownership of the Site from Renaissance to Participant] , rather
than the assessed value of the Site upon the adoption of the
Redevelopment Plan) , less the sum of (i) twenty percent (200)
of the foregoing amount, which the Agency is required to set
aside for affordable housing purposes pursuant to California
Health and Safety Code Section 33334 . 2 et seq. ; (ii) the
percentage of Agency property tax increment revenues
attributable to the Project Area payable to other taxing
entities under applicable "pass through" agreements; (iii) the
percentage of Agency property tax increment revenues
attributable to the Project Area which the Agency is required
to set aside, pay or transfer to or for the benefit of any
other taxing entity or purpose pursuant to any existing or
future requirement of law, including, but not limited to,
payments to the Educational Revenue Augmentation Fund, if
payments were required to be made, and to the County of
Riverside for administrative fees or charges .
FS2\383\014084-0094\2157467.3 a09/23/95 -3 3-
(b) Payment Date. Payments of Net Property Tax
Increment shall be made annually on or before June 30 of each
year after the recordation of the Certificate of Completion.
(c) Conditions to Disbursement. Disbursement of
Net Property Tax Increment to Developer shall be expressly
conditioned upon the following:
(i) Participant shall not be in default of
any term, condition, covenant or obligation to be
performed by Participant under this Agreement, the Grant
Deed, the Declaration or any other document incorporated
herein or therein by reference and no event shall have
occurred which with the passage of time, the giving of
notice or both would constitute a default hereunder or
thereunder;
(ii) Participant has provided evidence
satisfactory to Agency that Participant has timely paid
the property taxes owing with respect to the Site for all
previous fiscal years, which evidence may include a copy
of Participant' s tax bill and cancelled check (s) ;
(iii) Developer has not appealed the assessed
value of the Site for the tax year in which the payment
is to be made or any previous tax year;
(iv) The Certificate of Completion has been
recorded by Agency;
(v) An unpermitted Transfer has occurred
under Section 5 .2 .
(d) Termination. If the Agency financial
assistance has not been fully paid on or before the expiration
date of the Redevelopment Plan for the Redevelopment Project
Area (as the same may be extended from time to time) , any
remaining balance of the Agency Financial Assistance as of
that date shall be deemed forgiven and discharged.
6 . USE OF THE SITE.
6. 1 Use of the Site. Participant hereby covenants and
agrees, for itself and its successors and assigns, to use and
maintain the Site pursuant to the terms of the Deed, the
Declaration and the Redevelopment Plan. Participant shall have
sole and exclusive responsibility and financial liability for any
and all construction or works of improvement on the Site as may be
necessary in order to use the Site for the Project.
6 .2 No Inconsistent Uses . Participant covenants and
agrees that it shall not devote the Site to uses inconsistent with
the Redevelopment Plan, the applicable zoning restrictions , this
Agreement, or the Declaration.
FS2\383\014084-0094\2157467.3 .09123195 -3 4-
6 . 3 Obligation to Refrain from Discrimination. Except
as specifically provided in the Declaration with respect to renting
the units within the Project to Senior Citizens, as such term is
defined therein, 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, age, physical or
mental disability, ancestry, or national origin in the rental,
sale, lease, sublease, transfer, use, occupancy, or enjoyment of
the Site, or any portion thereof, nor shall Participant, or any
person claiming under or through Participant, 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 Site or any portion thereof. The nondiscrimination and
nonsegregation covenants contained herein and in the Deed shall
remain in effect in perpetuity.
6 .4 Effect of Covenants . Agency is deemed a beneficiary
of the terms and provisions of this Agreement and of the
restrictions and covenants running with the land, whether or not
appearing in the Deed or the Declaration for and in its own right
and for the purposes of protecting the interests of the community
in whose favor and for whose benefit the covenants running with the
land have been provided. The covenants in favor of the Agency
shall run without regard to whether Agency has been, remains or is
an owner of any land or interest therein in the Site, or in the
Redevelopment Project Area, and shall be effective as both
covenants and equitable servitudes against the Site. Agency shall
have the right, if any of the covenants set forth in this Agreement
which are provided for its benefit are breached, to exercise all
rights and remedies and to maintain any actions or suits at law or
in equity or other proper proceedings to enforce the curing of such
breaches to which it may be entitled. With the exception of the
City, no other person or entity shall have any right to enforce the
terms of this Agreement under a theory of third-party beneficiary
or otherwise. The covenants running with the land and their
duration are set forth in the Deed and the Declaration.
7. ENFORCEMENT.
7 . 1 Defaults . Right to Cure and Waivers . Subject to any
Enforced Delay, failure or delay by either party to timely perform
any covenant of this Agreement constitutes a default under this
Agreement, but only if the party who so fails or delays does not
commence to cure, correct or remedy such failure or delay within
thirty (30) days after receipt of a written notice specifying such
failure or delay, and does not thereafter prosecute such cure,
correction or remedy with diligence to completion.
The injured party shall give written notice of default to the
party in default, specifying the default complained of by the
injured party. Except as required to protect against further
damages, the injured party may not institute proceedings against
the party in default until thirty (30) days after giving such
F52\383\014084-0094\2157467.3 a09/23195 -3 5-
notice. Failure or delay in giving such notice shall not
constitute a waiver of any default, nor shall it change the time of
default .
Except as otherwise provided in this Agreement, waiver by
either 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 either party of the time for performing any act shall not
constitute a waiver of time for preforming any other act or an
identical act required to be performed at a later time. The delay
or forbearance by either party in exercising any remedy or right as
to any default shall not operate as a waiver of any 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 .
7 .2 Legal Actions .
(a) Institution of Legal Actions . In addition to
any other rights or remedies, and subject to the requirements
of Section 7 . 1, either party may institute 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 purpose of this Agreement. Actions must
be instituted and maintained in the Superior Court of the
County of Riverside, State of California, in any other
appropriate court in that county, or in the Federal District
Court in the Central District of California.
(b) Applicable Law and Forum. The laws of the
State of California shall govern the interpretation and
enforcement of this Agreement.
(c) Acceptance of Service of Process . In the event
that any legal action is commenced by Participant against
Agency, service of process on Agency shall be made by personal
service upon the Executive Director or Secretary of Agency, or
in such other manner as may be provided by law. In the event
that any legal action is commenced by Agency against
Participant, service of process on Participant shall be made
in such manner as may be provided by law and shall be valid
whether made within or without the State of California.
7 . 3 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 either
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 the
other party.
F52\383\014084-0094M57467.3 a09/23/95 -3(-
7 . 4 Specific Performance. In addition to any other
remedies permitted by this Agreement, if either party defaults
hereunder by failing to perform any of its obligations herein, each
party agrees that the other shall be entitled to the judicial
remedy of specific performance, and each party agrees (subject to
its reserved right to contest whether in fact a default does exist)
not to challenge or contest the appropriateness of such remedy. In
this regard, Participant specifically acknowledges that Agency is
entering into this Agreement for the purpose of assisting in the
redevelopment of the Site and not for the purpose of enabling
Participant to speculate with land.
7 . 5 Attornev' s Fees . If either party to this Agreement
is required to initiate or defend any action or proceeding in any
way arising out of the parties' agreement to, or performance of,
this Agreement, or is made a party to any such action or proceeding
by the Escrow Agent or other third party, such that the parties
hereto are adversarial, the prevailing party, as between the
Participant and Agency only, in such action or proceeding, in addi-
tion to any other relief which may be granted, whether legal or
equitable, shall be entitled to reasonable attorney' s fees from the
other. As used herein, the "prevailing party" shall be the party
determined as such by a court of law, pursuant to the definition
Code of Civil Procedure Section 1032 (a) (4) , as it may be
subsequently amended. Attorney' s fees shall include attorney' s
fees on any appeal, and in addition a party entitled to attorney' s
fees shall be entitled to all other reasonable costs for
investigating such action, taking depositions and discovery and all
other necessary costs the court allows which are incurred in such
litigation. All such fees shall be deemed to have accrued on
commencement of such action and shall be enforceable whether or not
such action is prosecuted to judgment .
8 . MISCELLANEOUS .
8 . 1 Notices . Formal notices, demands, and communica-
tions between Agency and Participant shall be sufficiently given if
(i) personally delivered; (ii) dispatched by registered or
certified mail, postage prepaid, return receipt requested; or (iii)
by Federal Express or another reputable overnight delivery service,
to the following addresses :
If to Agency: Community Redevelopment Agency of the
City of Palm Springs, California
P.O. Box 2743
Palm Springs, California 92263
3200 Tahquitz Canyon Way
Palm Springs, California 92262
Attn: Executive Director
With a copy to: Rutan & Tucker
P.O. Box 1950
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92628-1950
F52\383\014084-0094M57467.3 n09/23/95 -3 7-
Attn: David J. Aleshire, Esq.
If to Participant: Linsu Development Company, L.L. C.
1533 Chaparral Road
Palm Springs, California 92262
Attn: Stephen Payne
With a copy to: Roemer & Harnik
45025 Manitu Dr.
Indian Wells, CA 92210
Attn: Richard I. Roemer, Esq.
All notices shall be deemed to be received as of the earlier
of actual receipt by the addressee thereof; the expiration of
forty-eight (48) hours after depositing in the United States Postal
System in the manner described in this Section; or twenty-four (24)
hours after delivery to Federal Express or another overnight
delivery service. Such written notices, demands, and
communications may be sent in the same manner to such other
addresses as a party may from time to time designate by mail .
8 .2 Conflicts of Interest . No member, official, or
employee of Agency shall have any personal interest, direct or
indirect, in this Agreement nor shall any such member, official, or
employee participate in any decision relating to this Agreement
which affects his personal interests or the interests of any cor-
poration, partnership, or association in which he is, directly or
indirectly, interested.
8 . 3 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
for any amount which may become due to Participant or to its
successor, or on any obligations under the terms of this Agreement.
8 .4 Enforced Delay: Extension of Times of Performance.
Time is of the essence in the performance of this Agreement.
Notwithstanding the foregoing, in addition to specific provisions
of this Agreement, performance by either party hereunder shall not
be deemed to be in default where delays or defaults are due to war;
insurrection; strikes; lock-outs; riots; floods; earthquakes;
fires; casualties; supernatural causes; acts of the public enemy;
epidemics; quarantine restrictions; freight embargoes; lack of
transportation; governmental restrictions or priority litigation;
unusually severe weather; inability to secure necessary labor,
materials or tools; acts of the other party; acts or the failure to
act of a public or governmental agency or entity (except that acts
or the failure to act of City or Agency shall not excuse
performance by Agency unless the act or failure is caused by the
acts or omissions of Participant) ; or any other causes beyond the
reasonable control or without the fault of the party claiming an
extension of time to perform. In the event of such a delay (herein
"Enforced Delay" ) , the party delayed shall continue to exercise
FS2\383\014084-0094\2157467.3 a09/23195 -3 8-
reasonable diligence to minimize the period of the delay. An
extension of time for any such cause shall be limited to the period
of the enforced delay, and shall commence to run from the time of
the commencement of the cause, provided notice by the party
claiming such extension is sent to the other party within ten (10)
days of the commencement of the cause. The following shall not be
considered as events or causes beyond the control of Participant,
and shall not entitle Participant to an extension of time to
perform: (i) Participant' s failure to obtain financing for the
Project, and (ii) Participant' s failure to negotiate agreements
with prospective users for the Project or the alleged absence of
favorable market conditions for such uses . Times of performance
under this Agreement may also be extended by mutual written
agreement by Agency and Participant. The Executive Director of
Agency shall have the authority on behalf of Agency to approve
extensions of time not to exceed a cumulative total of one hundred
eighty (180) days with respect to the development of the Site.
8 . 5 Books and Records .
(a) 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.
(b) 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 .
8 . 6 Modifications . Any alteration, change or modifica-
tion 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.
8 . 7 Merger of Prior Agreements and Understandings . 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 .
8 . 8 Binding Effect of Agreement . This Agreement shall
be binding upon and shall inure to the benefit of the parties
hereto, their legal representatives, successors, and assigns . This
Agreement shall likewise be binding upon and obligate the Site and
the successors in interest, owner or owners thereof, and all of the
tenants, lessees, sublessees, and occupants of such Site.
8 . 9 Assurances to Act in Good Faith. Agency and
Participant agree to execute all documents and instruments and to
take all action and shall use their best efforts to accomplish the
FS2\383\014084-0094\2157467.3 .09/23/95 -3 9-
purposes of this Agreement . Agency and Participant shall each
diligently and in good faith pursue the satisfaction of any
conditions or contingencies subject to their approval .
8 . 10 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 .
8 . 11 Interpretation. The terms of this Agreement shall
be construed in accordance with the meaning of the language used
and shall not be construed for or against either party by reason of
the authorship of this Agreement or any other rule of construction
which might otherwise apply. The Section headings are for purposes
of convenience only, and shall not be construed to limit or extend
the meaning of this Agreement. This Agreement includes all
attachments attached hereto, which are by this reference
incorporated in this Agreement in their entirety. This Agreement
also includes the Redevelopment Plan and any other documents
incorporated herein by reference, as though fully set forth herein.
8 . 12 Entire Agreement . Waivers and Amendments . This
Agreement integrates all of the terms and conditions mentioned
herein, or incidental hereto, and this Agreement supersedes all
negotiations and previous agreements between the parties with
respect to all or any part of the subject matter hereof . All
waivers of the provisions of this Agreement, unless specified
otherwise herein, must be in writing and signed by the appropriate
authorities of Agency or Participant, as applicable, and all
amendments hereto must be in writing and signed by the appropriate
authorities of Agency and Participant.
8 . 13 Time for Acceptance of Agreement by Agency. This
Agreement, when executed by Participant and delivered to Agency,
must be authorized, executed and delivered by Agency, not later
than the time set forth in the Schedule of Performance or this
instrument shall be void, except to the extent that Participant
shall consent in writing to further extensions of time for the
authorization, execution, and delivery of this Agreement . After
execution by Participant, this Agreement shall be considered an
irrevocable offer until such time as such offer shall become void
due to the failure of the Agency to authorize, execute and deliver
the Agreement in accordance with this Section.
8 . 14 Counterparts . This Agreement may be executed in
counterparts, each of which shall be deemed to be an original , and
such counterparts shall constitute one and the same instrument .
8 . 15 Integration. This Agreement and other documents
expressly incorporated herein by reference contain the entire and
FS2\MM14084-009M2157467.3 a09/23/95 -4 0-
exclusive 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 herein and shall be of no
further force or effect.
8 . 16 Exhibits . Exhibits "A" through "F" , inclusive,
attached hereto, are incorporated herein as if set forth in full .
FS2\383\014084-0094\2157467.3 a09/23/95 -4 1-
IN WITNESS WHEREOF the Agency and Participant have executed
this Agreement as of the date first written above.
ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, CALIFORNIA, a
public body, corporate
�and
� politic
qsski�stantSecretary Chairman
"Agencyll
APPROVED AS TO FORM:
RUTAN & TUCKER
David J?_P/eshire,Esq.
Agency Counsel
LINSU DE�VELOPSI NT COMPANY, L. L. C. , a
Califorfnia 1 ' ted 17i bil ' ty company
By:
Its :
By:
Its -
"Participant"
,n
FS2\383\014084-0094\2157467.3 a09/23/95 -4 Z-
EXHIBIT "A"
LEGAL DESCRIPTION OF THE SITE
That certain real property located in the City of Palm
Springs, County of Riverside, State of California described as
follows:
PARCEL 1:
THE NORTHERLY 264 FEET OF THE NORTHWEST QUARTER OF THE NORTHWEST
QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 11, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE
AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.
SAID PROPERTY IS ALSO SHOWN ON RECORD OF SURVEY ON FILE IN BOOK
5 PAGE 42, OF RECORDS OF SURVEY, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ANY DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES AND WATER UNDERLYING SAID LAND, AS
RESERVED IN DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES TO ZORA WITKIN, RECORDED DECEMBER 12, 1935 IN BOOK 262
PAGE 178 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA
HOWEVER, SUCH RESERVATION SHALL NOT BE DEEMED TO GIVE THE
GRANTOR, ITS SUCCESSORS OR ASSIGNS, ANY RIGHT TO ENTER UPON SAID
PREMISES FOR THE DEVELOPMENT OF ANY SUCH WATER, OIL, GAS OR
OTHER HYDROCARBON SUBSTANCES.
PARCEL 2:
LOT 7 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ALL DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON, MINERAL OR KINDRED SUBSTANCES, AND ALL WATER
UNDERLYING SAID LAND, PROVIDED, HOWEVER, THAT THE GRANTOR, ITS
SUCCESSORS OR ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON SAID
PREMISES FOR THE PURPOSES OF DEVELOPING ANY WATER, GAS, OIL,
HYDROCARBON, MINERAL AND/OR KINDRED SUBSTANCES, AS RESERVED IN
DEED FROM SECURITY FIRST NATIONAL BANK OF LOS ANGELES, RECORDED
DECEMBER 23, 1936 IN BOOK 308 PAGE 24 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
PARCEL 3:
LOT 8 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING ANY AND ALL DEPOSITS OF OIL, GAS OR OTHER HYDROCARBON,
MINERAL OR KINDRED SUBSTANCES UNDERLYING SAID LAND, PROVIDED,
HOWEVER, THAT THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL
HAVE NO RIGHT TO ENTER UPON SAID PREMISES FOR THE PURPOSE OF
DEVELOPING ANY GAS, OIL, HYDROCARBON, MINERAL OR KINDRED
SUBSTANCES, AS RESERVED IN DEED FROM SECURITY FIRST NATIONAL
BANK OF LOS ANGELES, RECORDED DECEMBER 23, 1936 IN BOOK 308 PAGE
24 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
EXHIBIT "A"
TO OWNER PARTICIPATION AGREEMENT
FS2\363\014084-0094\2157467.2 •09/19/95
EXHIBIT "B"
SCHEDULE OF PERFORMANCE
ITEM OF PERFORMANCE TIME FOR PERFORMANCE REFERENC
E
1. Participant executes and September 28, 1995
delivers Agreement to Agency
2 . Agency holds public hearing on October 18, 1995
Agreement and Basic Concept
Drawings
3 . Agency to make offer to Within 30 days of 4 .2 (b)
Renaissance to purchase Site approval of Agreement
4. Agency to negotiate in good 30 days from making offer 4 .2 (b)
faith with Renaissance to
acquire the Site by negotiated
purchase
5. If unable to reach a Within 30 days from the 4.2 (c)
negotiated purchase, Agency to expiration of the good
hold hearing for adoption of faith negotiation period
Resolution of Necessity. referenced above
6. If Resolution of Necessity is Within 15 days from 4 .2 (c)
adopted, Agency to file adoption of Resolution of &(d)
condemnation action and Necessity
Reimbursement Action
7. Agency and Participant to open Within 10 days of 4 .4
Escrow execution of purchase
agreement with
Renaissance or commencing
condemnation action
8. Agency to seek order of Within 15 days of 4.3 (b)
Prejudgment Possession Participant depositing
funds referenced in
Section 4.1 and providing
the notice referenced in
Section 4 .3 (b)
9 . Agency to obtain Order of Within 30 days seeking 4 .3 (b)
Prejudgment Possession Order
10. Agency to obtain physical Within 30 days of 4 .3 (b)
possession of the Site obtaining Order, or such
other time as may be set
by the court
11. Participant to disapprove Within 20 days of Opening 4 .8
title exceptions. of Escrow.
12. Agency to notify Participant Within 10 days of 4 .8
of election to cure receiving Participant's
disapproved exceptions. notice.
r13 . Participant to submit evidence Within 30 days of Opening 4 .9
of financial capability to of Escrow.
Executive Director.
EXHIBIT "B"
TO OWNER PARTICIPATION AGREEMENT
FS2\383\014084-0094\2157467.3 a09/23/95 PAGE 1 OF 3 PAGES
Ah
14. Agency CO notify Participant Within 30 days of 4.9
of approval of evidence of submission.
financial capability,
15. Escrow Agent to advise of Within 5 business days of 4.7
fees, costs and required the Closing Date.
documents.
16. Delivery by Agency and On or before 1:00 p.m. on 4 .12
Participant of notice of the last business day
failure of conditions to , preceding Closing Date.
Closing.
17. Agency and Developer to submit on or before 1!00 p.m. on 4.7
closing documents and funds the last business day
into Escrow. preceding Closing Uate.
18. Agency and Participant may Within 30 days of receipt 4.13
cure any condition to Closing of notice.
disapproved or may cure
default.
19. Closing Date. Within 60 days of the 4.7
Opening of Escrow, if by
negotiated purchase, or
within 30 days of
obtaining possession
under an Order of
Prejudgment Possession.
20. Participant prepares and Within 60 days of the 5.1
submits to City working approval by Agency of
drawings, grading plan and this Agreement.
landscaping plan and City and
Agency commence approval
process.
21_ City and Agency to approve In accordance with 5.1
drawings and plans Section 5.1 (d)
22. Planning Commission to hold October 25, 1995 5.1
hearing on approval of Planned
Development District for the
Project
23. City Council to hold hearing November 1, 1995 5.1
on approval of Planned
Development District for the
Project
24. Participant to submit proof of Prior to commencing any
insurance. inspections and work on 5.3
the Project.
25. Participant to commence On or before the date 5.1
construction of Project. that is 90 days after the
Closing Date, but not
earlier than 180 days
after the approval of
this Agreement by Agency.
26. Participant to complete Within 18 months of 5.1
construction of the Project commencement of
construction.
EXETBIT "B"
TO OWNER PARTICIPATION AGREEMENT
A92U93W14084JM%2157467.3 R10112 s PAGE 2 OF 3 PAGES
27. Obtain judgment in Within 730 days of 4 .2 (c)
condemnation action and commencement of action. and (d)
Reimbursement Action.
28. Participant to record recip- Prior to the issuance of Exhibit
rocal easement agreement the Certificate of 'IF"
referenced in Scope of Completion
Development against the Site
and Participant Property
29 . Agency to issue Certificate of In accordance with 5.8
Completion Section 5.8
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
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 shall have the authority to approve
extensions of time without action of the Board of Directors of Agency not to
exceed a cumulative total of 180 days.
EXHIBIT "B"
TO OWNER PARTICIPATION AGREEMENT
F52\3M014084-0094\2157467.3 ao9i23i95 PAGE 3 OF 3 PAGES
EXHIBIT "C"
FREE RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO.-
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
P.O. Box 2743
Palm Springs, California 2262
Attn: Assistant Secretary
(Space Above Line for Recorder' s Use Only)
GRANT DEED
FOR A VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
PALM SPRINGS, CALIFORNIA, a public body, corporate and politic,
herein called "Grantor, " acting under the Community Redevelopment
Law of the State of California, hereby grants to
herein called "Grantee, " the real
property, hereinafter referred to as the "Site, " in the City of
Palm Springs, County of Riverside, State of California, more
particularly described in Attachment No. 1 attached hereto and
incorporated herein by this reference.
As conditions of this conveyance, the Grantee covenants by and
for itself and any successors-in-interest for the benefit of
Grantor and the City of Palm Springs, a municipal corporation, as
follows :
1. Governing Documents . The Site is being conveyed (i)
pursuant to a Owner Participation Agreement (the "OPA" ) entered
into by and among Grantor and Grantee and dated , 1995
and (ii) subject to the terms of the OPA, this Deed, and the
Declaration of Covenants, Conditions and Restrictions
( "Declaration" ) by and between Grantor and Grantee, executed and
recorded concurrently herewith. The OPA and the Declaration are
public records on file in the office of the City Clerk of the City
of Palm Springs, located at 3200 East Tahquitz Canyon Way, Palm
Springs, California 92263 , and are incorporated herein by this
reference. Any capitalized terms not defined herein shall have the
meanings ascribed to them in the OPA. Grantee covenants and agrees
for itself and its successors and assigns to develop the Site in
accordance with the OPA and thereafter to use, operate and maintain
the Site in accordance with the Redevelopment Plan, the
Declaration, and this Deed. The Site is also conveyed subject to
easements and rights-of-way of record and other matters of record.
EXHIBIT "C"
TO OWNER PARTICIPATION AGREEMENT
FSM83\0I4084-0094\2157467.3 a09123/95 PAGE 1 of 10 PAGES
In the event of any conflict between this Deed and the OPA, the
provisions of the OPA shall control .
2 . Term of Restriction. Pursuant to the OPA and the
Declaration, Grantee hereby covenants and agrees for itself, its
successors, its assigns, and every successor in interest to the
Site that Grantee, such successors and such assigns, shall not
develop, operate, maintain or use the Site in violation of the
terms and conditions of this Deed and the Declaration (unless
expressly waived in writing by Grantor) for the term of the
Redevelop Plan; provided that, however, the covenants contained in
Sections 7 and 8 shall remain in effect in perpetuity.
3 . Right of Re-Entry Prior to Completion. The Grantee
covenants by and for itself and any successors in interest that the
Grantor shall have the additional right, at its option, to reenter
and take possession of the Site hereby conveyed, with all
improvements thereon, and revest in the Grantor the estate conveyed
to the Grantee, if after conveyance of title and prior to issuance
of a Certificate of Completion of construction of the Project upon
the Site, the Grantee or successor-in-interest shall :
(a) Fail to proceed with the construction of the Project
as required by the OPA within the time period for cure as
provided in the OPA; or
(b) Abandon or substantially suspend construction of the
Project as required by the OPA, and fail to proceed within the
time period for cure as provided in the OPA; or
(c) Transfer, or suffer any involuntary transfer of the
Site, or any part thereof, in violation of the OPA.
Such right to reenter, repossess and revest shall be
subordinate and subject to and be limited by and shall not defeat,
render invalid or limit :
(d) Any mortgage, deed of trust or other security
instrument for the benefit of any lender approved by the
Agency pursuant to the OPA and/or Section 6 below;
(e) Any rights or interests provided in the OPA for the
protection of the holder of such mortgages, deeds of trust or
other security instruments .
Within five (5) days after Grantor gives Grantee written
notice that Grantor intends to exercise its right to reenter and
take possession of the Site, Grantee shall deliver grant deed (s)
reconveying the Site to Grantor.
4 . Reservation of Existing Streets . Grantor excepts and
reserves any existing street, proposed street, or portion of any
EXHIBIT "C"
TO OWNER PARTICIPATION AGREEMENT
F52\383\014084-0094\21574673 a09/23/95 PAGE 2 of 10 PAGES
street or proposed street lying outside the boundaries of the Site
which might otherwise pass with a conveyance of the Site .
5 . Transfer Restrictions . The Grantee covenants prior to
the recordation of the Certificate of Completion against the Site,
Grantee shall not Transfer (as hereinafter defined) the OPA, the
Site or any of its interests therein except as provided in this
Section.
(a) Transfer Defined. As used in this Section, the term
"Transfer" shall include any assignment, hypothecation,
mortgage, pledge, conveyance, or encumbrance of this
Agreement, the Site, 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 Grantee 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 Grantee
or its general partners or their respective shareholders . In
the event any entity constituting Grantee, its successor or
the constituent partners of Grantee or any successor of
Grantee, is a corporation or trust, such transfer shall refer
to the transfer of the issued and outstanding capital stock of
such corporation, or of beneficial interests of such trust; in
the event that any entity constituting Grantee, its successor
or the constituent partners of Grantee or any successor of
Grantee is a limited or general partnership, such transfer
shall refer to the transfer of more than twenty-five percent
(25e) of such limited or general partnership interest; in the
event that any entity constituting Grantee, its successor or
the constituent partners of Grantee or any successor of
Grantee 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 .
(b) Grantor Approval of Transfer Required. During the
term of the Declaration, Grantee shall not Transfer this
Agreement or any of Grantee' s rights hereunder, or any
interest in the Site or in the improvements thereon, directly
or indirectly, voluntarily or by operation of law without the
prior written approval of Grantor, which approval may not be
unreasonably withheld, and any such purported Transfer without
such approval shall be null and void. In considering whether
it will grant approval to any Transfer by Grantee, which
Transfer requires Grantor approval, Grantor shall consider
factors such as (i) whether the completion of the Project is
jeopardized; (ii) the financial credit, strength and
EXHIBIT "C"
TO OWNER PARTICIPATION AGREEMENT
F52\383\014084-0094\2157467.3 a09/23/95 PAGE 3 of 10 PAGES
capability of the proposed transferee to perform Grantee' s
obligations hereunder; (iii) the proposed transferee' s
experience and expertise in the planning, financing,
rehabilitation, development, ownership, and operation of
similar projects; and (iv) whether the Transfer is for the
purpose of financing the purchase or rehabilitation of the
Site. A Transfer for financing purposes shall not be approved
by the Grantor if the loan documents do not state that the
loan proceeds must be used for the Project.
(c) Release : Assumption. In the absence of specific
written agreement by Grantor no Transfer by Grantee of all or
any portion of its interest in the Site shall be deemed to
relieve Grantee or any successor party from the obligation to
complete the Project or any other obligations under this Deed.
In addition, no attempted Transfer of any of Grantee' s
obligations hereunder shall be effective unless and until the
successor party executes and delivers to Grantor an assumption
agreement in a form approved by the Grantor assuming such
obligations .
6 . Non-Discrimination. Grantee covenants that 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, age, physical or mental disability, ancestry, or
national origin in the rental, sale, lease, sublease, transfer,
use, occupancy, or enjoyment of the Site, or any portion thereof,
nor shall Grantee, or any person claiming under or through Grantee,
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 Site or any portion
thereof . The nondiscrimination and nonsegregation covenants
contained herein shall remain in effect in perpetuity.
7 . Form of Nondiscrimination Clauses in Agreements . Except
as specifically provided in the Declaration with respect to renting
the units within the Project to Senior Citizens, as such term is
defined therein, Grantee shall refrain from restricting the rental,
sale, or lease of any portion of the Site on the basis of race,
color, creed, religion, sex, marital status, age, physical or
mental disability, ancestry, or national origin of any person. All
such deeds, leases, or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation
clauses :
(a) Deeds : In deeds the following language shall
appear: "Except as specifically provided in the Declaration
with respect to renting the units within the Project to Senior
Citizens, as such term is defined therein, the grantee herein
covenants by and for itself, its heirs, executors ,
administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or
EXHIBIT "C"
TO OWNER PARTICIPATION AGREEMENT
F52083WI4084-009M2157467.3 u09/23/95 PAGE 4 of 10 PAGES
segregation of any person or group of persons on account of
race, color, creed, religion, sex, marital status, age,
physical or mental disability, ancestry, or national origin in
the sale, lease, rental, sublease, transfer, use, occupancy,
tenure, or enjoyment of the land herein conveyed, nor shall
the grantee itself, or any persons claiming under or through
it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees ,
subtenants, sublessees, or vendees in the land herein
conveyed. The foregoing covenants shall run with the land. "
(b) Leases : In leases the following language shall
appear: "The lessee herein covenants by and for itself, its
heirs, executors, administrators, successors, and assigns, and
all persons claiming under or through them, and this lease is
made and accepted upon and subject to the following
conditions :
"Except as specifically provided in the Declaration with
respect to renting the units within the Project to Senior
Citizens, as such term is defined therein, 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, age, physical or mental disability,
ancestry, or national origin in the leasing, subleasing,
renting, transferring, use, occupancy, tenure, or enjoyment of
the land herein leased nor shall the lessee itself, or any
person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation
with reference to the selection, location, number, use, or
occupancy of tenants, lessees, sublessees, subtenants, or
vendees in the land herein leased. "
(c) Contracts : In contracts the following language
shall appear: "Except as specifically provided in the
Declaration with respect to renting the units within the
Project to Senior Citizens, as such term is defined therein,
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, age, physical or mental
disability, ancestry, or national origin in the sale, lease,
rental, sublease, transfer, use, occupancy, tenure, or
enjoyment of the land, nor shall the transferee itself, or any
person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation
with reference to the selection, location, number, use, or
occupancy of tenants, lessees, subtenants, sublessees, or
vendees of the land. ,,
The foregoing covenants shall remain in effect in perpetuity.
EXHIBIT "C"
TO OWNER PARTICIPATION AGREEMENT
FS2\383\0I4084-0094M57467.3 .09/23/95 PAGE 5 of 10 PAGES
8 . Mortgage Protection. No violation or breach of the
covenants, conditions, restrictions, provisions or limitations
contained in this Deed shall defeat or render invalid or in any way
impair the lien or charge of any mortgage, deed of trust or other
financing or security instrument permitted by and approved by
Grantor pursuant to the OPA; provided, however, that any successor
of Grantee to the Site shall be bound by such remaining covenants,
conditions , restrictions, limitations and provisions, whether such
successor' s title was acquired by foreclosure, deed in lieu of
foreclosure, trustee' s sale or otherwise.
9 . Covenants to Run With the Land. The covenants contained
in this Deed shall be construed as covenants running with the land
and not as conditions which might result in forfeiture of title,
and shall be binding upon Grantee, its heirs, successors and
assigns to the Site, whether their interest shall be fee, easement,
leasehold, beneficial or otherwise.
10 . Rights Upon Default.
(a) Rights of Holder of Mortgage to Cure. Whenever
Grantor shall deliver any notice or demand to the Grantee with
respect to any breach or default by the Grantee under the OPA
or the Declaration, Grantor shall at the same time deliver to
each holder of record of any mortgage, deed of trust or other
security interest and the lessor under a lease-back or grantee
under any other conveyance for financing authorized by and
approved by Grantor pursuant to the OPA, a copy of such notice
or demand. Each such holder (insofar as the rights of the
Grantor are concerned) has the right at its option within
ninety (90) days after the receipt of the notice, to cure or
remedy, or to commence to cure or remedy, any such default and
to add the cost thereof to the security interest debt and the
lien on its security interest, or to the obligations of the
lessee under any lease-back, or of the grantor under any other
conveyance for financing. If such default shall be a default
which can only be remedied or cured by such holder upon
obtaining possession, such holder shall seek to obtain
possession with diligence or continuity through a receiver or
otherwise, and shall remedy or cure such default within ninety
(90) days after obtaining possession; provided that in the
case of a default which cannot with diligence be remedied or
cured, or the remedy or cure of which cannot be commenced,
within such 90-day period, such holder shall have such
additional time as reasonably necessary to remedy or cure such
default with diligence and continuity; and provided further
that such holder shall not be required to remedy or cure any
noncurable default of the Grantee. Nothing contained in the
OPA or this Deed shall be deemed to permit or authorize such
holder or other entity to undertake or continue the
construction or completion of the improvements (beyond the
extent necessary to conserve or protect the improvements or
construction already made) without first having expressly
EXHIBIT "C"
TO OWNER PARTICIPATION AGREEMENT
FSZ383\014084-009M2157467.3 .09/23195 PAGE 6 of 10 PAGES
assumed the Grantee' s obligation (with respect to the Site or
any portion thereof on which the holder or other entity has an
interest) to the Grantor by written agreement satisfactory to
Grantor. The holder or other entity in that event must agree
to complete, in the manner provided in the OPA, the
improvements to which the lien or title of such holder
relates, and submit evidence satisfactory to Grantor that it
has the qualifications and financial responsibility necessary
to perform such obligations . Any such holder or other entity
properly completing such improvements shall be entitled, upon
written request made to the Grantor, to a Certificate of
Completion from the Grantor with respect to such improvements .
(b) Grantor' s Right to Purchase Mortgage. In any case
where, six (6) months after default by the Grantee in
completion of construction of improvements under the OPA, the
holder of any mortgage, deed of trust or other security
interest creating a lien or encumbrance upon the Site, or the
lessor under a sale/lease-back, or grantee under any other
conveyance for financing of the Site or any portion thereof
approved by Grantor pursuant to the OPA, has not exercised the
option to construct, or if it has exercised the option but has
not proceeded diligently with construction, Grantor may
either: (1) purchase the mortgage, deed of trust or other
security interest, or the interest of any such lessor or
grantee, by payment to the holder of the amount of the unpaid
debt, plus any accrued and unpaid interest, or, in the case of
such lessor or grantee, by payment to such lessor or grantee
of the purchase price paid for its interest in any of the Site
(or any portion thereof) and the improvements to be
constructed thereon, and any unpaid rent or other charges
payable to it under its applicable agreements with its lessee
or grantor; or (2) if the ownership of the Site (or any
portion thereof) has vested in the holder, purchase from the
holder such interest, upon payment to the holder of an amount
equal to the sum indebtedness secured by such mortgage.
(c) Grantor' s Right to Cure Default. In the event of a
default or breach by the Grantee (or entity permitted to
acquire title under the OPA) of a mortgage, deed of trust or
other security instrument, of a lease-back, or of obligations
of the Grantee under any other conveyance for financing with
respect to the Site, or any portion thereof prior to the
completion of development of improvements thereon, and the
holder has not exercised its option to complete the
development, the Grantor may cure the default prior to
completion of any foreclosure, to termination of the lease, or
to completion of proceedings by which such other security
interest is retained or granted back. In such event, the
Grantor shall be entitled to reimbursement from Grantee (or
such other entity permitted to acquire title under the OPA) of
all costs and expenses incurred by the Grantor in curing the
EXHIBIT "C"
TO OWNER PARTICIPATION AGREEMENT
F52M31014084-0094X2157467.3 .09/23/95 PAGE 7 of 10 PAGES
default, to the extent permitted by law as if such holder
initiated such claim for reimbursement . Grantor shall be
entitled to a lien upon the Site (or any portion thereof)
encumbered by the security instrument with respect to which
Grantee (or such other entity permitted to acquire title under
the OPA) has defaulted to the extent of such costs and
disbursements . Any such lien shall be subject to mortgages,
deeds of trust, or other security instruments and the interest
of lessors under any leases-back and grantees under other
conveyances for financing executed for the sole purpose of
obtaining funds to purchase and/or develop the Site (or any
portion thereof) , to construct the improvements thereon, and
to finance such costs and to pay all costs reasonably related
to the Grantee' s obtaining and performing this Agreement .
(d) Grantor' s Ricrht to SatisfV Liens . After the
conveyance of title and prior to the recordation of a
Certificate of Completion for construction and development,
and after the Grantee had a reasonable time to challenge, cure
or satisfy any liens or encumbrances on the Site or any
portion thereof, the Grantor shall have the right to satisfy
any such liens or encumbrances .
11 . Counterparts . This Deed may be executed in any number of
counterparts, each of which shall be an original and all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, Grantor and Grantee have caused this
instrument to be executed on their behalf by their respective
officers or agents hereunto as of the date first above written.
GRANTOR:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF PALM SPRINGS,
CALIFORNIA, a public body, corporate
and politic
By: By;
Assistant Secretary Chairman
APPROVED AS TO FORM:
RUTAN & TUCKER
By:
David J. Aleshire
Agency Counsel
EXHIBIT "C"
TO OWNER PARTICIPATION AGREEMENT
FSZ383W14094-0094\21574673 a09123/95 PAGE 8 of 10 PAGES
By its acceptance of this Deed, Grantor hereby agrees as
follows :
1. Grantee expressly understands and agrees that the terms
of this Deed shall be deemed to be covenants running with the land
and shall apply to all of the Grantee' s successors and assigns
(except as specifically set forth in the Deed) .
2 . The provisions of this Deed are hereby approved and
accepted.
GRANTEE:
By:
Its :
By:
Its :
EXHIBIT "C"
TO OWNER PARTICIPATION AGREEMENT
F52\383\014084-0094\2157467.3 a09/23/95 PAGE 9 Of 10 PAGES
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
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 signatures) 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]
EXHIBIT "C"
TO OWNER PARTICIPATION AGREEMENT
FS2\383\014084-0094\2157467.3 .09/23/95 PAGE 10 of 10 PAGES
ATTACHMENT NO. 1
DESCRIPTION OF SITE
That certain real property located in the City of Palm
Springs, County of Riverside, State of California described as
follows :
PARCEL 1:
THE NORTHERLY 264 FEET OF THE NORTHWEST QUARTER OF THE NORTHWEST
QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 11, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE
AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.
SAID PROPERTY IS ALSO SHOWN ON RECORD OF SURVEY ON FILE IN BOOK
5 PAGE 42, OF RECORDS OF SURVEY, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ANY DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES AND WATER UNDERLYING SAID LAND, AS
RESERVED IN DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES TO ZORA WITKIN, RECORDED DECEMBER 12, 1935 IN BOOK 262
PAGE 178 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA
HOWEVER, SUCH RESERVATION SHALL NOT BE DEEMED TO GIVE THE
GRANTOR, ITS SUCCESSORS OR ASSIGNS, ANY RIGHT TO ENTER UPON SAID
PREMISES FOR THE DEVELOPMENT OF ANY SUCH WATER, OIL, GAS OR
OTHER HYDROCARBON SUBSTANCES.
PARCEL 2:
LOT 7 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ALL DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON, MINERAL OR KINDRED SUBSTANCES, AND ALL WATER
UNDERLYING SAID LAND, PROVIDED, HOWEVER, THAT THE GRANTOR, ITS
SUCCESSORS OR ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON SAID
PREMISES FOR THE PURPOSES OF DEVELOPING ANY WATER, GAS, OIL,
HYDROCARBON, MINERAL AND/OR KINDRED SUBSTANCES, AS RESERVED IN
DEED FROM SECURITY FIRST NATIONAL BANK OF LOS ANGELES, RECORDED
DECEMBER 23, 1936 IN BOOK 308 PAGE 24 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
PARCEL 3:
LOT 8 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING ANY AND ALL DEPOSITS OF OIL, GAS OR OTHER HYDROCARBON,
MINERAL OR KINDRED SUBSTANCES UNDERLYING SAID LAND, PROVIDED,
HOWEVER, THAT THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL
HAVE NO RIGHT TO ENTER UPON SAID PREMISES FOR THE PURPOSE OF
DEVELOPING ANY GAS, OIL, HYDROCARBON, MINERAL OR KINDRED
SUBSTANCES, AS RESERVED IN DEED FROM SECURITY FIRST NATIONAL
BANK OF LOS ANGELES, RECORDED DECEMBER 23, 1936 IN BOOK 308 PAGE
24 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
ATTACHMENT NO. 1
FS2138M014084-009412157467.2 .09119/95 TO GRANT DEED
EXHIBIT "D"
CERTIFICATE OF COMPLETION
FREE RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
P.O. Box 2743
Palm Springs, California 92262
Attn: Assistant Secretary
(Space Above Line for Recorder' s Use Only)
CERTIFICATE OF COMPLETION
WHEREAS, by a Owner Participation Agreement (hereinafter
referred to as the "Agreement" ) dated , 1995 , by and
between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS, CALIFORNIA, a public body, corporate and politic
( "Agency" ) , and LINSU DEVELOPMENT COMPANY, L.L. C. , a California
limited liability company ( "Participant" ) , Participant has
redeveloped the real property (the "Site" ) , legally described and
depicted in Attachment No. 1 attached hereto and incorporated
herein by reference, according to the terms and conditions of said
Agreement; and
WHEREAS, pursuant to Section of the Agreement, promptly
after completion of all construction work to be completed by
Participant upon the Site, 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; and
WHEREAS, 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 Site; and
WHEREAS, Participant has requested that Agency furnish
Participant with the Certificate of Completion; and
WHEREAS, Agency has conclusively determined that the
redevelopment of the Site has been satisfactorily completed as
required by the Agreement; and
EXHIBIT "D"
TO OWNER PARTICIPATION AGREEMENT
FS2\383\014084-0094\2157467.3 a09/23/95 PAGE 1 of 3 PAGES
WHEREAS, the Agreement provided for certain covenants to run
with the land, which covenants were incorporated in the grant deed
conveying the Site to Participant (the "Deed" ) and a Declaration of
Covenants, Conditions and Restrictions (the "Declaration" ) ;
NOW, THEREFORE:
1. As provided in the Agreement, Agency does hereby certify
that redevelopment of the Site has been fully and satisfactorily
performed and completed, and that such redevelopment is in full
compliance with said Agreement .
2 . This Certificate of Completion shall not constitute
evidence of Participant' s compliance with the Deed and the
Declaration, the provisions of which shall continue to run with the
land.
3 . 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
Site, or any part thereof . Nothing contained herein shall modify
in any way any other provision of said Agreement.
4 . This Certificate is not a Notice of Completion as
referred to in California Civil Code Section 3093 .
5 . 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 as of
this day of , 199
COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, CALIFORNIA, a
public body, corporate and politic
By:
Executive Director
EXHIBIT "D"
TO OWNER PARTICIPATION AGREEMENT
FS2\383\014084-0094\2157467.3 a09/23/95 PAGE 2 of 3 PAGES
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
EXHIBIT "D"
TO OWNER PARTICIPATION AGREEMENT
FS2\393\014094-0094\2157467.3 a09/23/95 PAGE 3 of 3 PAGES
ATTACHMENT NO. 1
DESCRIPTION OF SITE
That certain real property located in the City of Palm
Springs, County of Riverside, State of California described as
follows :
PARCEL 1:
THE NORTHERLY 264 FEET OF THE NORTHWEST QUARTER OF THE NORTHWEST
QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 11, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE
AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.
SAID PROPERTY IS ALSO SHOWN ON RECORD OF SURVEY ON FILE IN BOOK
5 PAGE 42, OF RECORDS OF SURVEY, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ANY DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES AND WATER UNDERLYING SAID LAND, AS
RESERVED IN DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES TO ZORA WITKIN, RECORDED DECEMBER 12, 1935 IN BOOK 262
PAGE 178 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA
HOWEVER, SUCH RESERVATION SHALL NOT BE DEEMED TO GIVE THE
GRANTOR, ITS SUCCESSORS OR ASSIGNS, ANY RIGHT TO ENTER UPON SAID
PREMISES FOR THE DEVELOPMENT OF ANY SUCH WATER, OIL, GAS OR
OTHER HYDROCARBON SUBSTANCES.
PARCEL 2:
LOT 7 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ALL DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON, MINERAL OR KINDRED SUBSTANCES, AND ALL WATER
UNDERLYING SAID LAND, PROVIDED, HOWEVER, THAT THE GRANTOR, ITS
SUCCESSORS OR ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON SAID
PREMISES FOR THE PURPOSES OF DEVELOPING ANY WATER, GAS, OIL,
HYDROCARBON, MINERAL AND/OR KINDRED SUBSTANCES, AS RESERVED IN
DEED FROM SECURITY FIRST NATIONAL BANK OF LOS ANGELES, RECORDED
DECEMBER 23, 1936 IN BOOK 308 PAGE 24 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
PARCEL 3:
LOT 8 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING ANY AND ALL DEPOSITS OF OIL, GAS OR OTHER HYDROCARBON,
MINERAL OR KINDRED SUBSTANCES UNDERLYING SAID LAND, PROVIDED,
HOWEVER, THAT THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL
HAVE NO RIGHT TO ENTER UPON SAID PREMISES FOR THE PURPOSE OF
DEVELOPING ANY GAS, OIL, HYDROCARBON, MINERAL OR KINDRED
SUBSTANCES, AS RESERVED IN DEED FROM SECURITY FIRST NATIONAL
BANK OF LOS ANGELES, RECORDED DECEMBER 23, 1936 IN BOOK 308 PAGE
24 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
ATTACHMENT NO. 1
FS21383101408C009C2157467.2 .09n9195TO CERTIFICATE OF COMPLETION
EXHIBIT "E"
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Community Redevelopment Agency
of the City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: Executive Director
(For Recorder' s Use Only)
DECLARATION OF COVENANTS , CONDITIONS
AND RESTRICTIONS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
( "Declaration" ) is made this day of , 1995 by and
among ( "Declarant" ) ,
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. Concurrently with the execution of this Agreement, Agency
has conveyed fee title to Declarant 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 ( "Site'' ) pursuant to
the terms of that certain Grant Deed recorded concurrently
herewith.
B. The Site is within the North Palm Canyon Redevelopment
Project Area ( "Project Area") specifically described in the
Redevelopment Plan for the Project Area which was approved and
adopted by the City Council of the City of Palm Springs by
Ordinance No. on and as subsequently amended by
means of ordinances of the City Council .
C. The Agency and the City have fee or easement interests in
various streets, sidewalks and other property within the City and
are responsible for the planning and development of land within the
City in such a manner so as to provide for the health, safety and
welfare of the residents of the City. That portion of the Agency' s
or City' s interest in real property most directly affected by this
Agreement is depicted in Exhibit 012" attached hereto and
incorporated herein by reference ( "Public Parcel" ) .
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
FS2\383\014084-0094\2157467.3 .09/23/95 Page 1 of 12 Pages
D. The purpose of the Redevelopment Plan is to remedy and
alleviate blighted conditions associated with undeveloped and
unproductive land, inadequate street and circulation systems,
unsuitable land mixes, inadequate or total lack of public street
improvements, and the existence of substandard and incompatible
uses and structures . The redevelopment and restriction of the Site
in accordance with the Redevelopment Plan will promote the utility
and value of the Site and of the Project Area, for the benefit of
its future owners and the entire city.
E. Pursuant to the Redevelopment Plan, Declarant has entered
into an Owner Participation Agreement with the Agency which
Agreement places certain restrictions on the Site. Pursuant to the
City' s development requirements, the City has approved or will
approve a site plan for the development of the Site ( "Site Plan" ) ,
which plan places certain restrictions on the Site. 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.
F. Declarant, the Agency and City intend, in exchange for
the entering into the Owner Participation Agreement by the Agency
and the approval of the Site Plan by City, that the Declarant hold,
sell, and convey the Site 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.
G. 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 Site and effectuating the
Redevelopment Plan. Such covenants, conditions and restrictions
shall run to the benefit of the Public Parcel and bind the Site,
the Declarant and its successors and assigns .
NOW, THEREFORE, the Developer, 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 Site 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.
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
FS2\383\014084-0094\2157467.3 u09123/95 Page 2 of 12 Pages
TERMS AND CONDITIONS
ARTICLE I
COVENANTS, CONDITIONS AND RESTRICTIONS
1 . 1 General . The Site 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 itself and its
successors and assigns, hereby covenants and agrees to maintain and
repair or cause to be maintained and repaired the Site 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 Site. 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; and (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. In addition, Declarant shall
be required to maintain the Site 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 Site .
1 . 3 Parking. Declarant shall use its best efforts to insure
that vehicles associated with the operation of the Site, including
delivery vehicles, vehicles of customers and employees and vehicles
of persons with business on the Site will park solely on the Site
and not park on public streets or adjacent property.
1.4 Compliance with Ordinances . Declarant shall comply with
all ordinances, regulations and standards of the City and Agency
applicable to the Site. Declarant shall comply with all rules and
regulations of any assessment district of the City with
jurisdiction over the Site.
1.5 Outside Storage. No storage of any kind shall be
permitted outside the building (s) located on the Site 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
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
FS2083\014084-0094\2157467.3 n09/23/95 Page 3 of 12 Pages
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. 6 Buildings and Eaui-oment . Any construction, repair,
modification or alteration of any buildings, equipment, structures
or improvements on the Site shall be subject to the following
restrictions :
(a) All mechanical and electrical fixtures and
equipment to be installed on the roof or on the ground shall
be adequately and decoratively screened. The screening must
blend with the architectural design of the building (s) .
Equipment on the roof must be at least six (6) inches lower
than the parapet line and adequately screened. All details
and materials of said screening shall be approved by the
Executive Director prior to installation.
(b) The texture, materials and colors used on the
buildings, as well as the design, height, texture and color of
fences and walls shall be subject to the approval of the
Executive Director.
(c) Signs on the Site shall conform to the standards
and ordinances of the City and to a uniform design theme
approved by the City. Any signs installed on the Site shall
conform to said design scheme and shall be approved by the
Executive Director prior to installation.
(d) Lights installed on the building shall be a
decorative design. No lights shall be permitted which may
create any glare or have a negative impact on the residential
areas, if any, existing around the Site. No light stand on
any portion of the Site shall be higher than fifteen (15)
feet . The design and location of any lights shall be subject
to the approval of the Executive Director.
(e) No fences, signs, gas pumps, or any other similar
facilities shall be constructed or provided on the Site
without the prior approval of the Executive Director.
(f) Manufacturing plant use may be permitted on the
Site, subject to the limitations provided in the Municipal
Code of the City. Specifically, prior to such use, suitable
evidence must be provided to the Executive Director that no
negative environmental effect shall be caused by reason of
odor, noise, glare, vibration, fumes, smoke, particulate
matter, refuse matter, and that no unsafe or dangerous
conditions are to be created such as the manufacture, use or
storage of explosive, radioactive materials or other similarly
hazardous materials .
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
FS2\383\014084k0094\2157467 3 a09/23/95 Page 4 of 12 Pages
1 . 7 Public Acrency Rights of Access. Participant hereby
grants to the Agency, the City and other public agencies the right,
at their sole risk and expense, to enter the Site 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 Site. Any damage
or injury to the Site 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.
1. 8 Transient Occupancy Tax. Declarant hereby covenants
that all units located on the Site or on properties adjacent to the
Site which are owned or controlled by Declarant shall be subject to
to the payment of transient occupancy tax as set forth in the Palm
Springs Municipal Code.
ARTICLE II
ENFORCEMENT
2 . 1 Termination. No breach of this Declaration shall
entitle any party to cancel, rescind or otherwise terminate this
Declaration, or excuse the performance of such party' s obligations
hereunder; provided that, however, this limitation shall not affect
in any manner any other rights or remedies which the parties may
have by reason of such breach.
2 .2 Injunction. Notwithstanding anything contained herein
to the contrary, in the event of any violation or threatened
violation of any of the terms, covenants, restrictions and
conditions contained herein, in addition to the other remedies
herein provided, the parties hereto shall have the right to enjoin
such violation or threatened violation in a court of competent
jurisdiction.
2 . 3 Other Rights of Agency and City. In the event of any
violation or threatened violation of any of the provisions of this
Declaration, then in addition to, but not in lieu of, any of the
rights or remedies the Agency and City may have to enforce the
provisions hereof, the Agency and City shall have the right (i) to
enforce the provisions hereof as a party hereto and as an owner of
the Public Parcel, and (ii) to withhold or revoke, after giving
written notice of said violation, any building permits, occupancy
permits, certificates of occupancy, business licenses and similar
matters or approvals pertaining to the Site or any part thereof or
interests therein as to the violating person or one threatening
violation.
2 .4 Failure to Perform; Lien. If any owner of the Site
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 Site that it cure said default, enter onto the Site for the
purpose of curing the default. In making an entry, the Agency or
EXHIBIT "E"
TO OWNER P,_ARTICIPATION AGREEMENT
F52\383\014084-0094\2157467.3 all/O8/95 Page 5 of 12 Pages
1 . 7 Public Agency Rights of Access . Participant hereby
grants to the Agency, the City and other public agencies the right,
at their sole risk and expense, to enter the Site 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 Site. Any damage
or injury to the Site 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.
1. 8 Transient Occupancy Tax. Declarant shall only use the
Property for uses which generate transient occupancy tax for the
City of Palm Springs under the Palm Springs Municipal Code .
ARTICLE II
ENFORCEMENT
2 . 1 Termination. No breach of this Declaration shall
entitle any party to cancel, rescind or otherwise terminate this
Declaration, or excuse the performance of such party' s obligations
hereunder; provided that, however, this limitation shall not affect
in any manner any other rights or remedies which the parties may
have by reason of such breach.
2 .2 Injunction. Notwithstanding anything contained herein
to the contrary, in the event of any violation or threatened
violation of any of the terms, covenants, restrictions and
conditions contained herein, in addition to the other remedies
herein provided, the parties hereto shall have the right to enjoin
such violation or threatened violation in a court of competent
jurisdiction.
2 . 3 Other Rights of Agency and City. In the event of any
violation or threatened violation of any of the provisions of this
Declaration, then in addition to, but not in lieu of, any of the
rights or remedies the Agency and City may have to enforce the
provisions hereof, the Agency and City shall have the right (i) to
enforce the provisions hereof as a party hereto and as an owner of
the Public Parcel, and (ii) to withhold or revoke, after giving
written notice of said violation, any building permits, occupancy
permits, certificates of occupancy, business licenses and similar
matters or approvals pertaining to the Site or any part thereof or
interests therein as to the violating person or one threatening
violation.
2 .4 Failure to Perform: Lien. If any owner of the Site
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 Site that it cure said default, enter onto the Site for the
purpose of curing the default. In making an entry, the Agency or
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
F52083\014084-0094\2157467.3 .09123/95 Page 5 of 12 Pages
City shall give the owners of the Site 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 Site 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
Site within 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 Site as well as a lien and charge, with power of sale,
upon the Site. The Agency may bring an action at law against the
owner of the Site to pay any such sums .
The lien provided for in this Section may be recorded by the
Agency as a Notice of Lien against the Site 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 Site shall date from the date such notice
is filed of record and shall be prior and superior to any right,
title, interest, lien or claim which may be or has been acquired or
attached to such real property at the time of recording of such
lien, but shall be junior and subordinate to matters having a
priority prior to the date such notice is recorded; provided that,
however, said lien shall be subordinate to any bona fide mortgage
or deed of trust and any purchaser at any foreclosure or trustee' s
sale under any such bona fide mortgage or deed of trust as provided
in Section 3 . 3 below. Such lien shall be for the use and benefit
of the person filing the same, and may be enforced and foreclosed
in a suit or action brought in any court of competent jurisdiction.
Any such lien may be enforced by the Agency or City by taking
either or both of the following actions concurrently or separately
(and by exercising either of the remedies set forth below shall not
prejudice or waive its rights to exercise the remedy) : (i) bring
an action at law against the defaulting party personally obligated
to pay such lien or (ii) foreclose such lien in accordance with the
provisions of Section 2924 of the California Civil Code applicable
to the exercise of powers of sale or mortgages and deeds of trust,
or any other manner permitted by California law.
Upon the timely curing of any default for which such lien was
recorded, the City or Agency shall record an appropriate release of
such lien, and sign any other documents reasonably necessary to
satisfy title insurance requirements, upon payment by the owner of
the Site 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.
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
FS2\383\014084-0094\2157467.3 .09/23195 Page 6 of 12 Pages
ARTICLE III
ENCUMBRANCES, MORTGAGE PROTECTION AND TAXES
3 . 1 Participant' 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 Site 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 Site or any part thereof whose
title thereto is acquired by foreclosure, trustee' s sale, or
otherwise.
3 .2 Amendments or Modifications to Declaration. No
purported rule, regulation, modification, amendment and/or
termination of this Declaration 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 Site that is
recorded in the Office of the Riverside County Recorder prior to
the date any such rule, regulation, modification, amendment or
termination is recorded in such office, without the prior written
consent of such mortgagee.
3 . 3 Liens Subordinate. Any monetary lien provided for
herein shall be subordinate to any bona fide mortgage or deed of
trust covering an ownership interest or leasehold or subleasehold
estate in and to the Site and any purchaser at any foreclosure or
trustee' sale (as well as any by deed or assignment in lieu of
foreclosure or trustee' s sale) under any such mortgage or deed of
trust shall take title free from any such monetary lien, but
otherwise subject to the provisions hereof; provided that, after
the foreclosure of any such mortgage and/or deed of trust, all
other assessments provided for herein to the extent they relate to
the expenses incurred subsequent to such foreclosure, assessed
hereunder to the purchaser at the foreclosure sale, as owner of the
Site after the date of such foreclosure sale, shall become a lien
upon the Site and may be perfected and foreclosed as provided in
Section 2 .4 .
3 .4 Payment of Taxes and Assessments . Declarant shall pay,
when due, all real estate taxes and assessments assessed or levied
against the Site. 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.
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
F52\383\014084-0094\2157467.3 n09/233/95 Page 7 of 12 Pages
ARTICLE IV
COVENANTS TO RUN WITH THE LAND
4 . 1 Covenants Running With the Land. This Declaration is
designed to create equitable servitudes and covenants appurtenant
to the Public Parcel and running with the Site. Declarant hereby
declares that all of the Site 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 Site and effectuating the Redevelopment Plan. The
covenants, conditions, restrictions, reservations, equitable
servitudes, liens and charges set forth herein shall run with the
Site and shall be binding upon all persons having any right, title
or interest in the Site, 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 Site 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 Site by the citizens of the
City and by furthering the public purposes for which the Agency was
formed.
4 .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 Site subject to the
covenants, conditions, restrictions and reservations of this
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 Site, or any part thereof, their heirs, successive owners and
assigns .
ARTICLE V
TERM
The covenants, conditions and restrictions contained in this
Declaration shall remain in effect for the term of the Redevelop-
ment Plan.
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
FS2\393\014064-0094\2157467.3 a09/23/95 Page 8 of 12 Pages
ARTICLE VI
MISCELLANEOUS
6 . 1 Modification. This Declaration may not be modified,
terminated or rescinded, in whole or in part, except by a written
instrument duly executed and acknowledged by the parties hereto,
their successors or assigns and duly recorded in the Office of the
County Recorder, County of Riverside .
6 . 2 Governing Law. This Declaration shall be governed by
and construed in accordance with the laws of the State of
California.
6 . 3 Severability. The invalidity or unenforceability of any
provision of this Declaration with respect to a particular party or
set of circumstances shall not in any way affect the validity and
enforceability of any other provision hereof, or the same provision
when implied to another party or to a different set of
circumstances .
6 . 4 Notices . Any notice to be given under this Declaration
shall be given by personal delivery or by depositing the same in
the United States Mail, certified or registered, postage prepaid,
at the following address :
Agency: The Community Redevelopment
Agency of The
City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: Executive Director
City: City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: City Manager
With Copy to: Rutan & Tucker
611 Anton Blvd. , Suite 1400
Costa Mesa, CA 92623-9990
Attn: David J. Aleshire, Esq.
Declarant:
1533 Chaparral Road
Palm Springs, CA 92262
Attn: Stephen Payne
With Copy to: Roemer & Harnik
45-025 Manitu Dr.
Indian Wells, CA 92210
Attn: Richard I . Roemer, Esq.
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
FS2083\014084-004\21574e7.3 aO9/23/95 Page 9 of 12 Pages
Any notice delivered personally shall be effective upon
delivery. Any notice given by mail as above provided shall be
effective forty-eight (48) hours after deposit in the mails . Any
party may change address for notice by giving written notice of
such change to the other party.
6 . 5 Counterparts . This Declaration may be executed in any
number of counterparts each of which shall be an original but all
of which shall constitute one and the same document.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
was executed as of the date first written above.
By:
Its •
By:
Its -
"Declarant"
ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, CALIFORNIA, a
public body, corporate and politic
By: By:
Assistant Secretary Chairman
"Agency"
ATTEST: CITY OF PALM SPRINGS, a
municipal corporation
By: By:
City Clerk Mayor
"City"
APPROVED AS TO FORM:
RUTAN & TUCKER
David J. Aleshire,
Agency Counsel and
City Attorney
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
FS2\383\014084-0094\2157467.3 u09/23/95 Page 10 of 12 Pages
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
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
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
FS2\3831014084-0094\2157467 3 a09/23/95 Page 11 of 12 Pages
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 persons)
or the entity upon behalf of which the person (s) acted, executed
the instrument .
witness my hand and official seal .
[SEAL] Notary Public
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
F9MW014084.0094\21574673 aO9/23/95 Page 12 of 12 Pages
• EXHIBIT 111"
LEGAL DESCRIPTION OF THE SITE
That certain real property located in the City of Palm Springs,
County of Riverside, State of California described as follows :
PARCEL 1:
THE NORTHERLY 264 FEET OF THE NORTHWEST QUARTER OF THE NORTHWEST
QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 11, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE
AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.
SAID PROPERTY IS ALSO SHOWN ON RECORD OF SURVEY ON FILE IN BOOK
5 PAGE 42, OF RECORDS OF SURVEY, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ANY DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES AND WATER UNDERLYING SAID LAND, AS
RESERVED IN DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES TO ZORA WITKIN, RECORDED DECEMBER 12, 1935 IN BOOK 262
PAGE 17B OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA
HOWEVER, SUCH RESERVATION SHALL NOT BE DEEMED TO GIVE THE
GRANTOR, ITS SUCCESSORS OR ASSIGNS, ANY RIGHT TO ENTER UPON SAID
PREMISES FOR THE DEVELOPMENT OF ANY SUCH WATER, OIL, GAS OR
OTHER HYDROCARBON SUBSTANCES.
PARCEL 2:
LOT 7 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ALL DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON, MINERAL OR KINDRED SUBSTANCES, AND ALL WATER
UNDERLYING SAID LAND, PROVIDED, HOWEVER, THAT THE GRANTOR, ITS
SUCCESSORS OR ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON SAID
PREMISES FOR THE PURPOSES OF DEVELOPING ANY WATER, GAS, OIL,
HYDROCARBON, MINERAL AND/OR KINDRED SUBSTANCES, AS RESERVED IN
DEED FROM SECURITY FIRST NATIONAL BANK OF LOS ANGELES, RECORDED
DECEMBER 23, 1936 IN BOOK 308 PAGE 24 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
PARCEL 3:
LOT 8 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING ANY AND ALL DEPOSITS OF OIL, GAS OR OTHER HYDROCARBON,
MINERAL OR KINDRED SUBSTANCES UNDERLYING SAID LAND, PROVIDED,
HOWEVER, THAT THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL
HAVE NO RIGHT TO ENTER UPON SAID PREMISES FOR THE PURPOSE OF
DEVELOPING ANY GAS, OIL, HYDROCARBON, MINERAL OR KINDRED
SUBSTANCES, AS RESERVED IN DEED FROM SECURITY FIRST NATIONAL
BANK OF LOS ANGELES, RECORDED DECEMBER 23, 1936 IN BOOK 308 PAGE
24 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
EXHIBIT 11111
TO DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
PS2\383\014054-0094U157467.2 .09/19195
EXHIBIT "2 "
DEPICTION OF PUBLIC PARCEL
EXHIBIT "2 "
TO DECLARATION OF COVENANTS,
F52\383\014094-0094\2157467.3 a09/23/95 CONDITIONS AND RESTRICTIONS
EXHIBIT "F"
SCOPE OF DEVELOPMENT
1. SUMMARY DESCRIPTION OF PROJECT:
The Project will consist of the demolition of the existing
improvements on the Site and construction of thirty-eight (38)
condominium units on the Site as an expansion of Participant' s
condominium development located on the Participant Property and
shall be designed in accordance with the Basic Concept Drawings
attached hereto as Exhibit 1 and incorporated herein by this
reference, which are approved by Agency in accordance with Section
5 . 1 (b) of the OPA. The 38 units will be contained in four (4) two
(2) story structures with a maximum height of twenty-four (24)
feet . The Project will be processed as a Planned Development
District under the Zoning Ordinance of the City and Participant
shall be responsible for performing all conditions to approval of
the Project including any off-site improvements. Fifty (50)
parking spaces (covered and uncovered) will be provided on the Site
and an additional nine (9) parking spaces will be constructed on
the Participant Property. Thirty-four (34) of the parking spaces
on the Site will be located within a fenced and gated limited-
access area. A reciprocal easement agreement for ingress, egress
and parking between the Site and the Participant Property will be
required to adequately provide for total resident and visitor
parking needs . The amenity package includes a swimming pool, spa
and meeting room. Total building coverage will not exceed thirty-
four percent (340-. ) , parking and driveway coverage will not exceed
ten percent (100) and open space/ recreation area coverage will be
fifty-six percent (560) . The Project will provide for the required
right-of-way on Vista Chino and Indian Canyon Drive and for
enhanced street improvements on all adjacent streets . The Project
also includes reduced setback from Indian Canyon Drive and Vista
Chino and from the Participant Property.
2 . ARCHITECTURAL AND DESIGN:
The Project shall be designed and developed as an integrated
development with the condominium development located on the
Participant Property in which the buildings will have architectural
excellence. The improvements to be constructed on the Site shall
be of high architectural quality, shall be well landscaped, and
shall be effectively and aesthetically designed. The shape, scale
of volume, exterior design, and exterior finish of each building,
structure, and other improvement must be consonant with, visually
related to, physically related to, and an enhancement to each other
and, to the extent reasonably practicable, to adjacent improvements
existing or planned within the Project Area. The Participant' s
plans, drawings, and proposals submitted to the Agency for approval
shall describe in reasonable detail the architectural character
EXHIBIT "F"
TO OWNER PARTICIPATION AGREEMENT
PAGE 1 OF 4 PAGES
FS2\383\014084-0094\2157467.3 .09/28/95
intended for the Project . The open spaces between buildings where
they exist shall be designed, landscaped and developed with the
same degree of excellence. The total development shall be in
conformity with the Redevelopment Plan for the Project Area.
3 . DEVELOPER' S RESPONSIBILITIES :
A. Private Improvements. The Participant agrees to develop
and construct, or cause the development and construction of the
Project as set forth below, or such additional size, intensity, and
character of improvements as may be permitted and approved under
applicable land use regulations of the City and Agency and in
accordance with the previously approved Basic Concept Drawings, as
the same may be amended from time to time in accordance herewith.
B. Miscellaneous Site Improvements . The Participant shall
provide all landscaping, open areas, drive-ways, and other
incidental on-site improvements required for the Project, in
accordance with the approved plans .
B. Setbacks. Minimum building and parking setbacks shall be
in conformance with the applicable provisions of the Palm Springs
Municipal Code, including any permitted variances .
C. Building Construction. Buildings shall be constructed in
conformance with the applicable provisions of the Palm Springs
Municipal Code and in accordance with the approved final building
plans .
D. Signs . All signs shall be installed by the Participant .
A sign program shall be submitted to the City for approval .
Building and, where necessary, electrical permits shall be obtained
prior to the installation, painting or erection of signs . Signs
shall be designed in a manner consistent with the overall
architectural theme of the Project .
E. Screening. All outdoor storage of materials or equipment
shall be enclosed or screened by walls, landscaping, or enclosure
to the extent and in the manner reasonably required by the
City/Agency staff and the applicable provisions of the Palm Springs
Ordinance Code.
F. Landscaping. The Participant shall provide all
landscaping and irrigation required on the Site, including the
landscaping and irrigation within the public rights-of-ways on or
adjacent to the Site, in accordance with the approved landscape
plans . The Participant shall maintain all landscaping on the Site
outside the public rights-of-way. After satisfactory installation
of the landscaping and irrigation systems within the public rights-
of-way on the Site in connection with the development of the Site,
the Agency shall accept or cause the City to accept such
improvements and maintain or cause the City to maintain the same at
EXHIBIT "F"
TO OWNER PARTICIPATION AGREEMENT
PAGE 2 OF 4 PAGES
FS2\383\014084-0094\2157467 3 a09/29/95
no expense to the Participant, and the Participant shall have no
further responsibility therefor.
G. Utilities . The Participant agrees to extend all utilities
required for the development, use and maintenance of the
improvements on the Site from the locations to which such utilities
will be brought the private improvements to be located on the Site.
All utilities on the Site shall be located underground.
H. Vehicular Access . The number and location of vehicular
driveways and curb breaks shall be in accordance with the approved
plans .
I . Off-Site Improvements/Dedications . The Participant agrees
to construct the following off-site improvements and make the
following dedications as part of the Project in accordance with all
applicable City standards, rules and regulations :
(a) Indian Canyon Drive North.
(i) Dedicate an additional right-of-way of 20
feet along the entire frontage of the Site, together with
a 25 foot radius property line return at the northwest
corner of the Site.
(ii) Construct an 8 inch curb and gutter, 38 feet
east of centerline along the entire frontage of the Site,
with a 35 foot radius curb return at the northwest corner
of the Site.
(iii) Construct a minimum 8 foot wide sidewalk
behind the curb along the entire frontage of the Site.
(iv) Construct a ramp for the physically
handicapped at the northwest corner of the Site in
accordance with State ADA requirements .
(v) Construct road pavement in accordance with
City standards from the edge of the proposed gutter to
the clean sawcut edge of the existing road pavement along
the entire frontage of the Site.
(vi) All broken or off grade curb, gutter and ac
pavement shall be repaired or replaced.
(vii) Relocate the existing traffic signal at the
corner of Indian Canyon Drive North and Vista Chino Road
East and pay its proportionate share for the upgrade to
a 8-phase system or enter into a covenant, prior to the
issuance of a building permit, to contribute to the
upgrade at the request of the City.
EXHIBIT "F"
TO OWNER PARTICIPATION AGREEMENT
PAGE 3 OF 4 PAGES
P52\383\014084-0094\2157467.3 a09/28/95
(b) Vista Chino Road East .
(i) Dedicate an additional right-of-way of 20
feet along the entire frontage of the Site, together with
a 25 foot radius property line return at the northeast
corner of the Site.
(ii) Dedicate easements for portions of the
sidewalk/bicycle path that leave the public right-of-way.
(iii) Construct an 8 inch curb and gutter, 38 feet
south of centerline along the entire frontage of the
Site, with a 35 foot radius curb return at the northeast
corner of the Site.
(iv) Construct the west half of a 14 foot gutter
and spandrel at the intersection of Vista Chino Road East
and Chaparral Road with a flow line parallel to the
centerline of Vista Chino Road East.
(v) Construct a minimum 8 foot wide sidewalk
behind the curb along the entire frontage of the Site.
(vi) Construct a ramp for the physically
handicapped at the northeast corner of the Site in
accordance with State ADA requirements .
(vii) Construct road pavement in accordance with
City standards from the edge of the proposed gutter to
the clean sawcut edge of the existing road pavement along
the entire frontage of the Site.
(viii) Construct a 160 foot long by 12 foot wide
bus turn out lane, together with a bus shelter on Vista
Chino Road East between intersections .
(c) Chaparral Road.
(i) Construct a 6 inch curb and gutter, 18 feet
west of centerline along the entire frontage of the Site,
with a 35 foot radius curb return at the northeast corner
of the Site.
(ii) Construct a minimum 5 foot wide sidewalk
behind the curb along the entire frontage of the Site.
(iii) Construct road pavement in accordance with
City standards from the edge of the proposed gutter to
the centerline of the street along the entire frontage of
the Site.
EXHIBIT "F"
TO OWNER PARTICIPATION AGREEMENT
PAGE 4 OF 4 PAGES
F82\383\014084-0094\2157467.3 a09/28/95
LINSU DEVELOPMENT L.L.C.
PALM SPRINGS
Linsu Development is proposing a 38 unit gated condominium project on a vacant 1.95 net acre site at the
southeast corner of Indian Canyon Avenue and Vista Chino Drive in the City of Palm Springs.
The project will consist of two story townhouse units ranging in size as follows:
A unit (2 bdrm/den) 1250 s.f.
A unit (2 bdrm/den) 1750 st
B unit (2 bdrm) 1037 s.f.
C unit (1 bdrm) 750 s.f.
C unit (I bdrm/den) 950 s.f.
There will be 59 parking spaces with 38 covered.
EXHIBIT "1"
TO EXHIBIT "F"
Page 1 of 3 Pages
I _
u
i
- - - - _0.)
NORTH'\ A 38 UNIT CONDOMINIUM PROJEC T P A L M S P R N G S
side i?O PRELIMINARY 51 TE PL AN f or LINSO DE V EL O P M EN T
CH111IOr ME1 l LI IE �
i'll l InLM C.1M�OX•IYI IE ]]] I♦ xrrllxOl
FiIE OEr nI IMEMr EGII IE4EN r1 E C
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EXHIBIT
TO EXHIBIT "F"
Page 2 of 3 Pages
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LINSU DEVELOPMENT L.L.C.
PALM SPRINGS
Linsu Development is proposing a 38 unit gated condominium project on a vacant 1.95 net acre site at the
southeast corner of Indian Canyon Avenue and Vista Chino Drive in the City of Palm Springs.
The project will consist of two story townhouse units ranging in size as follows:
A unit (2 bdrm/den) 1250 st
A unit (2 bdrm/den) 1750 s.f.
B unit (2 bdrm) 1037 s.f.
C unit (I bdrm) 750 s.f
C unit (I bdrm/den) 950 s.f.
There will be 59 parking spaces with 38 covered.
EXHIBIT "1"
TO EXHIBIT "F"
Page 1 of 3 Pages
VISr• CHINO DRIVE
�w
nucc.vn L�k aoaD
�NGRTHA 38 UNIT CONDOMINIUM PROJECT • PALM SPRINGS
PRELIMINARY SITE PLAN
for L I N S U DEVELOPMENT
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Izl L LeLu cnxrox•Lm rE zv.rnLu vux�L
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EXHIBIT
TO EXHIBIT "F"
Page 2 of 3 Pages
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EXHIBIT
LEGAL DESCRIPTION OF THE SITE
That certain real property located in the City of Palm Springs,
County of Riverside, State of California described as follows :
PARCEL 1:
THE NORTHERLY 264 FEET OF THE NORTHWEST QUARTER OF THE NORTHWEST
QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 11, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE
AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.
SAID PROPERTY IS ALSO SHOWN ON RECORD OF SURVEY ON FILE IN BOOK
5 PAGE 42, OF RECORDS OF SURVEY, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ANY DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES AND WATER UNDERLYING SAID LAND, AS
RESERVED IN DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES TO ZORA WITKIN, RECORDED DECEMBER 12, 1935 IN BOOK 262
PAGE 178 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA
HOWEVER, SUCH RESERVATION SHALL NOT BE DEEMED TO GIVE THE
GRANTOR, ITS SUCCESSORS OR ASSIGNS, ANY RIGHT TO ENTER UPON SAID
PREMISES FOR THE DEVELOPMENT OF ANY SUCH WATER, OIL, GAS OR
OTHER HYDROCARBON SUBSTANCES.
PARCEL 2:
LOT 7 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ALL DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON, MINERAL OR KINDRED SUBSTANCES, AND ALL WATER
UNDERLYING SAID LAND, PROVIDED, HOWEVER, THAT THE GRANTOR, ITS
SUCCESSORS OR ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON SAID
PREMISES FOR THE PURPOSES OF DEVELOPING ANY WATER, GAS, OIL,
HYDROCARBON, MINERAL AND/OR KINDRED SUBSTANCES, AS RESERVED IN
DEED FROM SECURITY FIRST NATIONAL BANK OF LOS ANGELES, RECORDED
DECE14BER 23, 1936 IN BOOK 308 PAGE 24 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
PARCEL 3:
LOT 8 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING ANY AND ALL DEPOSITS OF OIL, GAS OR OTHER HYDROCARBON,
MINERAL OR KINDRED SUBSTANCES UNDERLYING SAID LAND, PROVIDED,
HOWEVER, THAT THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL
HAVE NO RIGHT TO ENTER UPON SAID PREMISES FOR THE PURPOSE OF
DEVELOPING ANY GAS, OIL, HYDROCARBON, MINERAL OR KINDRED
SUBSTANCES, AS RESERVED IN DEED FROM SECURITY FIRST NATIONAL
BANK OF LOS ANGELES, RECORDED DECEMBER 23, 1936 IN BOOK 308 PAGE
24 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
EXHIBIT 111"
TO DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
FS2\383\014084-0094\2157467.2 a09119195
EXHIBIT "1"
LEGAL DESCRIPTION OF THE SITE
That certain real property located in the City of Palm Springs,
County of Riverside, State of California described as follows:
PARCEL 1:
THE NORTHERLY 264 FEET OF THE NORTHWEST QUARTER OF THE NORTHWEST
QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 11, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE
AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.
SAID PROPERTY IS ALSO SHOWN ON RECORD OF SURVEY ON FILE IN BOOK
5 PAGE 42, OF RECORDS OF SURVEY, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ANY DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES AND WATER UNDERLYING SAID LAND, AS
RESERVED IN DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES TO ZORA WITKIN, RECORDED DECEMBER 12, 1935 IN BOOK 262
PAGE 178 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA
HOWEVER, SUCH RESERVATION SHALL NOT BE DEEMED TO GIVE THE
GRANTOR, ITS SUCCESSORS OR ASSIGNS, ANY RIGHT TO ENTER UPON SAID
PREMISES FOR THE DEVELOPMENT OF ANY SUCH WATER, OIL, GAS OR
OTHER HYDROCARBON SUBSTANCES.
PARCEL 2:
LOT 7 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ALL DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON, MINERAL OR KINDRED SUBSTANCES, AND ALL WATER
UNDERLYING SAID LAND, PROVIDED, HOWEVER, THAT THE GRANTOR, ITS
SUCCESSORS OR ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON SAID
PREMISES FOR THE PURPOSES OF DEVELOPING ANY WATER, GAS, OIL,
HYDROCARBON, MINERAL AND/OR KINDRED SUBSTANCES, AS RESERVED IN
DEED FROM SECURITY FIRST NATIONAL BANK OF LOS ANGELES, RECORDED
DECEMBER 23, 1936 IN BOOK 308 PAGE 24 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
PARCEL 3:
LOT 8 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING ANY AND ALL DEPOSITS OF OIL, GAS OR OTHER HYDROCARBON,
MINERAL OR KINDRED SUBSTANCES UNDERLYING SAID LAND, PROVIDED,
HOWEVER, THAT THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL
HAVE NO RIGHT TO ENTER UPON SAID PREMISES FOR THE PURPOSE OF
DEVELOPING ANY GAS, OIL, HYDROCARBON, MINERAL OR KINDRED
SUBSTANCES, AS RESERVED IN DEED FROM SECURITY FIRST NATIONAL
BANK OF LOS ANGELES, RECORDED DECEMBER 23, 1936 IN BOOK 308 PAGE
24 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
EXHIBIT 111"
TO DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
P5213S31014W4-0094\2157467.2 a09/19/95
EXHIBIT "211
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TO DECLARATION OF COVENANTS ,
F82\383\014084-0094\2157467.3 .09/23195 CONDITIONS AND RESTRICTIONS
125445
RECEIVED FOR RECORD
AT 8:00 O'CLOCK
FREE RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO: APR - 81996
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS Pa ,&dmonoy w.•
of R""deC nrf.caidomia
P.O. Box 2743 Linsu Development Co. , L.L.C.
Palm Springs, California 2262 OPA-1.93 ac Vista Chino/Indian
Attn: AGREEMENT #358C
R988, 10-18-95
Grant Deed & Accept Exec Exh C
(Space Above Line for Recorder's Use -only)
GRANT DEED f)�O aCC.EP5 I1C-E
FOR A VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
PALM SPRINGS, CALIFORNIA, a public body, corporate and politic,
herein called "Grantor, " acting under the Community Redevelopment
Law of the State of California, hereby grants to LINSU DEVELOPMENT
COMPANY, LLC, a California limited liability company, herein called
"Grantee, " the real property, hereinafter referred to as the
"Site, " in the City of Palm Springs, County of Riverside, State of
California, more particularly described in Attachment No. 1
attached hereto and incorporated herein by this reference.
As conditions of this conveyance, the Grantee covenants by and
for itself and any successors-in-interest for the benefit of
Grantor and the City of Palm Springs, a municipal corporation, as
follows:
1. Governing Documents. The Site is being conveyed (i)
pursuant to a Owner Participation Agreement (the "OPA") entered
into by and among Grantor and Grantee and dated y&&,JJ—, 1995
and (ii) subject to the terms of the OPA, this Deed, and the
Declaration of Covenants, Conditions and Restrictions
("Declaration") by and between Grantor and Grantee, executed and
recorded concurrently herewith. The OPA and the Declaration are
public records on file in the office of the City Clerk of the City
of Palm Springs, located at 3200 East Tahquitz Canyon Way, Palm
Springs, California 92263 , and are incorporated herein by this
reference. Any capitalized terms not defined herein shall have the
meanings ascribed to them in the OPA. Grantee covenants and agrees
for itself and its successors and assigns to develop the Site in
accordance with the OPA and thereafter to use, operate and maintain
the Site in accordance with the Redevelopment Plan, the
Declaration, and this Deed. The Site is also conveyed subject to
easements and rights-of-way of record and other matters of record.
In the event of any conflict between this Deed and the OPA, the
provisions of the OPA shall control.
FSM83\014084-009 M90990. a0329/96
125445
2 . Term of Restriction. Pursuant to the OPA and the
Declaration, Grantee hereby covenants and agrees for itself, its
successors, its assigns, and every successor in interest to the
Site that Grantee, such successors and such assigns', shall not
develop, operate, maintain or use the Site in violation of the
terms and conditions of this Deed and the Declaration (unless
expressly waived in writing by Grantor) for the term of the
Redevelop Plan; provided that, however, the covenants contained in
Sections 7 and 8 shall remain in effect in perpetuity.
3 . Right of Re-Entry Prior to Completion. The Grantee
covenants by and for itself and any successors in interest that the
Grantor shall have the additional right, at its option, to reenter
and take possession of the Site hereby conveyed, with all
improvements thereon, and revest in the Grantor the estate conveyed
to the Grantee, if after conveyance of title and prior to issuance
of a Certificate of Completion of construction of the Project upon
the Site, the Grantee or successor-in-interest shall:
(a) Fail to proceed with the construction of the Project
as required by the OPA within the time period for cure as
provided in the OPA; or
(b) Abandon or substantially suspend construction of the
Project as required by the OPA, and fail to proceed within the
time period for cure as provided in the OPA; or
(c) Transfer, or suffer any involuntary transfer of the
Site, or any part thereof, in violation of the OPA.
Such right to reenter, repossess and revest shall be
subordinate and subject to and be limited by and shall not defeat,
render invalid or limit:
(d) Any mortgage, deed of trust or other security
instrument for the benefit of any lender approved by the
Agency pursuant to the OPA and/or Section 6 below;
(e) Any rights or interests provided in the OPA for the
protection of the holder of such mortgages, deeds of trust or
other security instruments.
Within five (5) days after Grantor gives Grantee written
notice that Grantor intends to exercise its right to reenter and
take possession of the Site, Grantee shall deliver grant deed(s)
reconveying the Site to Grantor.
4 . Reservation of Existing Streets. Grantor excepts and
reserves any existing street, proposed street, or portion of any
street or proposed street lying outside the boundaries of the Site
which might otherwise pass with a conveyance of the Site.
5. Transfer Restrictions. The Grantee covenants prior to
the recordation of the Certificate of Completion against the Site,
F52U831014084-009412190990. '03/29/96 -2-
125445
Grantee shall not Transfer (as hereinafter defined) the OPA, the
Site or any of its interests therein except as provided in this
Section.
(a) Transfer Defined. As used in this Section, the term
"Transfer" shall include any assignment, hypothecation,
mortgage, pledge, conveyance, or encumbrance of this
Agreement, the Site, 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
(25%) (in the aggregate) of the present ownership and/or
control of any person or entity constituting Grantee 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 Grantee
or its general partners or their respective shareholders. In
the event any entity constituting Grantee, its successor or
the constituent partners of Grantee or any successor of
Grantee, is a corporation or trust, such transfer shall refer
to the transfer of the issued and outstanding capital stock of
such corporation, or of beneficial interests of such trust; in
the event that any entity constituting Grantee, its successor
or the constituent partners of Grantee or any successor of
Grantee is a limited or general partnership, such transfer
shall refer to the transfer of more than twenty-five percent
(25%) of such limited or general partnership interest; in the
event that any entity constituting Grantee, its successor or
the constituent partners of Grantee or any successor of
Grantee is a joint venture, such transfer shall refer to the
transfer of more than twenty-five percent (25%) of the
ownership and/or control of any such joint venture partner,
taking all transfers into account on a cumulative basis.
(b) Grantor Approval of Transfer Required. Prior to the
recordation of the,Certificate of Completion against the Site,
Grantee shall not Transfer this Agreement or any of Grantee's
rights hereunder, or any interest in the Site or in the
improvements thereon, directly or indirectly, voluntarily or
by operation of law without the prior written approval of
Grantor, which approval may not be unreasonably withheld, and
any such purported Transfer without such approval shall be
null and void. In considering whether it will grant approval
to any Transfer by Grantee, which Transfer requires Grantor
approval, Grantor shall consider factors such as (i) whether
the completion of the Project is jeopardized; (ii) the
financial credit, strength and capability of the proposed
transferee to perform Grantee's obligations hereunder; (iii)
the proposed transferee's experience and expertise in the
planning, financing, rehabilitation, development, ownership,
and operation of similar projects; and (iv) whether the
Transfer is for the purpose of financing the purchase or
PS2\3831014084-0094U190990. -03/29196 -3-
125445
rehabilitation of the Site. A Transfer for financing purposes
shall not be approved by the Grantor if the loan documents do
not state that the loan proceeds must be used for the Project.
(c) Release: Assumption. In the absence of specific
written agreement by Grantor no Transfer by Grantee of all or
any portion of its interest in the Site shall be deemed to
relieve Grantee or any successor party from, the obligation to
complete the Project or any other obligations under this Deed.
In addition, no attempted Transfer of any of Grantee's
obligations hereunder shall be effective unless and until the
successor party executes and delivers to Grantor an assumption
agreement in a form approved by the Grantor assuming such
obligations.
6. Non-Discrimination. Grantee covenants that 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, age, physical or mental disability, ancestry, or
national origin in the rental, sale, lease, sublease, transfer,
use, occupancy, or enjoyment of the Site, or any portion thereof,
nor shall Grantee, or any person claiming under or through Grantee,
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 Site or any portion
thereof. The nondiscrimination and nonsegregation covenants
contained herein shall remain in effect in perpetuity.
7. Form of Nondiscrimination Clauses in Agreements. Except
as specifically provided in the Declaration with respect to renting
the units within the Project to Senior Citizens, as such term is
defined therein, Grantee shall refrain from restricting the rental,
sale, or lease of any portion of the Site on the basis of race,
color, creed, religion, sex, marital status, age, physical or
mental disability, ancestry, or national origin of any person. All
such deeds, leases, or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation
clauses:
(a) Deeds: In deeds the following language shall
appear: "Except as specifically provided in the Declaration
with respect to renting the units within the Project to Senior
Citizens, as such term is defined therein, the grantee herein
covenants by and for itself, its heirs, executors,
administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or
segregation of any person or group of persons on account of
race, color, creed, religion, sex, marital status, age,
physical or mental disability, ancestry, or national origin in
the sale, lease, rental, sublease, transfer, use, occupancy,
tenure, or enjoyment of the land herein conveyed, nor shall
the grantee itself, or any persons claiming under or through
it, establish or permit any such practice or practices of
PS2\383\014084-00'M\2190990. a03/29/96 -4-
125445
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. "
(b) Leases: In leases the following language shall
appear: "The lessee herein covenants by and for itself, its
heirs, executors, administrators, successors, and assigns, and
all persons claiming under or through them," and this lease is
made and accepted upon and subject to the following
conditions:
"Except as specifically provided in the Declaration with
respect to renting the units within the Project to Senior
Citizens, as such term is defined therein, 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, age, physical or mental disability,
ancestry, or national origin in the leasing, subleasing,
renting, transferring, use, occupancy, tenure, or enjoyment of
the land herein leased nor shall the lessee itself, or any
person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation
with reference to the selection, location, number, use, or
occupancy of tenants, lessees, sublessees, subtenants, or
vendees in the land herein leased. "
(c) Contracts: In contracts the following language
shall appear: "Except as specifically provided in the
Declaration with respect to renting the units within the
Project to Senior Citizens, as such term is defined therein,
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, age, physical or mental
disability, ancestry, or national origin in the sale, lease,
rental, sublease, transfer, use, occupancy, tenure, or
enjoyment of the land, nor shall the transferee itself, or any
person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation
with reference to the selection, location, number, use, or
occupancy of tenants, lessees, subtenants, sublessees, or
vendees of the land. "
The foregoing covenants shall remain in effect in perpetuity.
S. Mortgage Protection. No violation or breach of the
covenants, conditions, restrictions, provisions or limitations
contained in this Deed shall defeat or render invalid or in any way
impair the lien or charge of any mortgage, deed of trust or other
financing or security instrument permitted by and approved by
Grantor pursuant to the OPA; provided, however, that any successor
of Grantee to the Site shall be bound by such remaining covenants,
conditions, restrictions, limitations and provisions, whether such
PS2138310I4084-0094U190990. 1031291% -5-
125445
successor's title was acquired by foreclosure, deed in lieu of
foreclosure, trustee's sale or otherwise.
9. Covenants to Run With the Land. The covenants contained
in this Deed shall be construed as covenants running with the land
and not as conditions which might result in forfeiture of title,
and shall be binding upon Grantee, its heirs, successors and
assigns to the Site, whether their interest shall, be fee, easement,
leasehold, beneficial or otherwise.
10. Rights Upon Default.
(a) Rights of Holder of Mortaage to Cure. Whenever
Grantor shall deliver any notice or demand to the Grantee with
respect to any breach or default by the Grantee under the OPA
or the Declaration, Grantor shall at the same time deliver to
each holder of record of any mortgage, deed of trust or other
security interest and the lessor under a lease-back or grantee
under any other conveyance for financing authorized by and
approved by Grantor pursuant to the OPA, a copy of such notice
or demand. Each such holder (insofar as the rights of the
Grantor are concerned) has the right at its option within
ninety (90) days after the receipt of the notice, to cure or
remedy, or to commence to cure or remedy, any such default and
to add the cost thereof to the security interest debt and the
lien on its security interest, or to the obligations of the
lessee under any lease-back, or of the grantor under any other
conveyance for financing. If such default shall be a default
which can only be remedied or cured by such holder upon
obtaining possession, such holder shall seek to obtain
possession with diligence or continuity through a receiver or
otherwise, and shall remedy or cure such default within ninety
(90) days after obtaining possession; provided that in the
case of a default which cannot with diligence be remedied or
cured, or the remedy or cure of which cannot be commenced,
within such 90-day period, such holder shall have such
additional time as reasonably necessary to remedy or cure such
default with diligence and continuity; and provided further
that such holder shall not be required to remedy or cure any
noncurable default of the Grantee. Nothing contained in the
OPA or this Deed shall be deemed to permit or authorize such
holder or other entity to undertake or continue the
construction or completion of the improvements (beyond the
extent necessary to conserve or protect the improvements or
construction already made) without first having expressly
assumed the Grantee's obligation (with respect to the Site or
any portion thereof on which the holder or other entity has an
interest) to the Grantor by written agreement satisfactory to
Grantor. .The holder or other entity in that event must agree
to complete, in the manner provided in the OPA, the
improvements to which the lien or title of such holder
relates, and submit evidence satisfactory to Grantor that it
has the qualifications and financial responsibility necessary
to perform such obligations. Any such holder or other entity
PS2\383\014084-0094\2190990. s03129196 —(—
• 125445
properly completing such improvements shall be entitled, upon
written request made to the Grantor, to a Certificate of
Completion from the Grantor with respect to such improvements.
(b) Grantor's Right to Purchase Mortgage. In any case
where, six (6) months after default by the Grantee in
completion of construction of improvements ,;under the OPA, the
holder of any mortgage, deed of trust or other security
interest creating a lien or encumbrance upon the Site, or the
lessor under a sale/lease-back, or grantee under any other
conveyance for financing of the Site or any portion thereof
approved by Grantor pursuant to the OPA, has not exercised the
option to construct, or if it has exercised the option but has
not proceeded diligently with construction, Grantor may
either: (1) purchase the mortgage, deed of trust or other
security interest, or the interest of any such lessor or
grantee, by payment to the holder of the amount of the unpaid
debt, plus any accrued and unpaid interest, or, in the case of
such lessor or grantee, by payment to such lessor or grantee
of the purchase price paid for its interest in any of the Site
(or any portion thereof) and the improvements to be
constructed thereon, and any unpaid rent or other charges
payable to it under its applicable agreements with its lessee
or grantor; or (2) if the ownership of the Site (or any
portion thereof) has vested in the holder, purchase from the
holder such interest, upon payment to the holder of an amount
equal to the sum indebtedness secured by such mortgage.
(c) Grantor's Right to Cure Default. In the event of a
default or breach by the Grantee (or entity permitted to
acquire title under the OPA) of a mortgage, deed of trust or
other security instrument, of a lease-back, or of obligations
of the Grantee under any other conveyance for financing with
respect to the Site, or any portion thereof prior to the
completion of development of improvements thereon, and the
holder has not exercised its option to complete the
development, the ,Grantor may cure the default prior to
completion of any foreclosure, to termination of the lease, or
to completion of proceedings by which such other security
interest is retained or granted back. In such event, the
Grantor shall be entitled to reimbursement from Grantee (or
such other entity permitted to acquire title under the OPA) of
all costs and expenses incurred by the Grantor in curing the
default, to the extent permitted by law as if such holder
initiated such claim for reimbursement. Grantor shall be
entitled to a lien upon the Site (or any portion thereof)
encumbered by the security instrument with respect to which
Grantee (or such other entity permitted to acquire title under
the OPA) has defaulted to the extent of such costs and
disbursements. Any such lien shall be subject to mortgages,
deeds of trust, or other security instruments and the interest
of lessors under any leases-back and grantees under other
conveyances for financing executed for the sole purpose of
PSM831014084-0094UI90990. ORD/% -7-
e
r
• • 125445
obtaining funds to purchase and/or develop the Site (or any
portion thereof) , to construct the improvements thereon, and
to finance such costs and to pay all costs reasonably related
to the Grantee's obtaining and performing this Agreement.
(d) Grantor's Right to Satisfy Liens. After the
conveyance of title and prior to the recordation of a
Certificate of Completion for construction and development,
and after the Grantee had a reasonable time to challenge, cure
or satisfy any liens or encumbrances on the Site or any
portion thereof, the Grantor shall have the right to satisfy
any such liens or encumbrances.
11. Counterparts. This Deed may be executed in any number of
counterparts, each of which shall be an original, and all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, Grantor and Grantee have caused this
instrument to be executed on their behalf by their respective
officers or agents hereunto as of the date first above written.
GRANTOR:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF PALM SPRINGS,
CALIFORNIA, a public body, corporate
_ and polit'Nic�J. ( 1K
B By.s f t Secretary
ista chairma n' " " •i "
APPROVED AS TO FORM:
RUTAN & TUCKER
By:
David J Ales e
Agency gounselF
By its acceptance of this Deed, Grantor hereby agrees as
follows:
1. Grantee expressly understands and agrees that the terms
of this Deed shall be deemed to be covenants running with the land
and shall apply to all of the Grantee's successors and assigns
(except as specifically set forth in the Deed) .
Ps2\393\014094-0094\2190990. .03129i96 -8-
t
125445
2 . The provisions of this Deed are hereby approved and
accepted.
GRANTEE:
LINSU DEVELOPMENT COMPANY, LLC, a
California limited liability company
By: I
Its•
By:
Its:
4
PS213831014084-0094X2190990. A03/29/96 -9-
a
IZ5445
STATE OF CALIFORNIA )
ss.
COUNTY OF ����. )
cl,9L/Ci
On � � before me ((��// ,rl� •� ,
personall appeafe (2 �xJp
personally known to me pa-
to be the person V) whose name(,sr) >_ are ubscribed
to the within instrument and acknowledged to me tha he she/they
executed the same i his her/their authorized capacity(-ies-Y, and
that by: 3 her/their signature on the instrument the person(9)
or the entity upon behalf of which the personis) acted, executed
the instrument.
Witness my hand and official seal.
ELAINE L WEDEKIND o +
Z ? /� E comm.#1048857 Notary Public'
[SEAL]z ' ", Notary Public—CaGfamla a
RIVERSIDE COUNIV
' My Comm.Expires FEB 3,1999
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On , before me,
personally pea d ,
personal l nown to me {er-grove the-bas-is-of-s-atisfac
-ory-L�idence-y to be the person sD whose name(q is/®subscribed
to the within instrument and ac wledged to me that he/sheO ey
executed the same n his/her their uthorized capacity, and
that by his the' signature(P on the instrument the person(,--;)
or the entity upon behalf of which the person(-D acted, executed
the instrument.
Witness my hand and official seal.
"1•• EIAINE L.WEDEKIND &4i�
a. Notary Publi
COMM.#1048857
(SEAL] _ ' n ' -. Notary Public—Colifomia i
RIVERSIDECOUNTY
My Comm.Expires FEB 3,1999
PS21383\0140840M\2190990. a03/29/96 —10—
a
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0
125445
ATTACHMENT NO. 1
DESCRIPTION OF SITE
That certain real property located in the City of Palm
Springs, County of Riverside, State of California described as
follows:
PARCEL 1:
THE NORTHERLY 264 FEET OF THE NORTHWEST QUARTER OF THE NORTHWEST
QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 11, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE
AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.
SAID PROPERTY IS ALSO SHOWN ON RECORD OF SURVEY ON FILE IN HOOK
5 PAGE 42, OF RECORDS OF SURVEY, RECORDS OF RIVERSIDE COUNTY,.
CALIFORNIA;
EXCEPTING THEREFROM ANY DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES AND WATER UNDERLYING SAID LAND, AS
RESERVED IN DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES TO ZORA WITKIN, RECORDED DECEMBER 12, 1935 IN BOOK 262
PAGE 178 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA
HOWEVER, SUCH RESERVATION SHALL NOT BE DEEMED TO GIVE THE
GRANTOR, ITS SUCCESSORS OR ASSIGNS, ANY RIGHT TO ENTER UPON SAID
PREMISES FOR THE DEVELOPMENT OF ANY SUCH WATER, OIL, GAS OR
OTHER HYDROCARBON SUBSTANCES.
PARCEL 2:
LOT 7 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ALL DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON, MINERAL OR KINDRED SUBSTANCES, AND ALL WATER
UNDERLYING SAID LAND, PROVIDED, HOWEVER, THAT THE GRANTOR, ITS
SUCCESSORS OR ASSIGNS, SHALL RAVE NO RIGHT TO ENTER UPON SAID
PREMISES FOR THE PURPOSES OF DEVELOPING ANY WATER, GAS, OIL,
HYDROCARBON, MINERAL AND/OR KINDRED SUBSTANCES, AS RESERVED IN
DEED FROM SECURITY FIRST NATIONAL BANK OF LOS ANGELES, RECORDED
DECEMBER 23, 1936 IN BOOK 308 PAGE 24 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
PARCEL 3:
LOT 8 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING ANY AND ALL DEPOSITS OF OIL, GAS OR OTHER HYDROCARBON,
MINERAL OR KINDRED SUBSTANCES UNDERLYING SAID LAND, PROVIDED,
HOWEVER, THAT THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL
HAVE NO RIGHT TO ENTER UPON SAID PREMISES FOR THE PURPOSE OF
DEVELOPING ANY GAS, OIL, HYDROCARBON, MINERAL OR KINDRED
SUBSTANCES, AS RESERVED IN DEED FROM SECURITY FIRST NATIONAL
BANK OF LOS ANGELES, RECORDED DECEMBER 23, 1936 IN BOOK 308 PAGE
24 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
ATTACHMENT NO. 1
Fs2u831014094-WMA2157467.2 ,09n9195 TO GRANT DEED
t;
125446
RECEIVED FOR RECORD
AT 8:00 O'CLOCK
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO: APR - 819%
Community Redevelopment Agency Recorded in utlioai nel- -
of the City of Palm Springs of Riverside County.California
P.O. BOX 2743 Recorder-ohs
Palm Springs, CA 92263 /
Attn: ERA :, � Qt`O Linsu Development Co. , L.L.C.
r at. OPA-1.93 ac Vista Chino/Indian
AGREEMENT #358C
R988, 10-18-95
or F CC&Rs Exec Exh E
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
("Declaration") is made this roL.J day of April, 1996 by and among
LINSU DEVELOPMENT COMPANY, LLC a California limited liability
company ("Declarant") , 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. Concurrently with the execution of this Agreement, Agency
has conveyed fee title to Declarant that certain real property
located in the City of Palm Springs, County of Riverside, State of
California more particularly described on Exhibit 11111 attached
hereto and incorporated herein by reference ("Site") pursuant to
the terms of that certain Grant Deed recorded concurrently
herewith.
B. The Site is within the North Palm Canyon Redevelopment
Project Area ("Project Area") specifically described in the
Redevelopment Plan for the Project Area which was approved and
adopted by the City Council of the City of Palm Springs by
Ordinance No. 1227 on October 19 , 1984 and as subsequently amended
by means of ordinances of the City Council.
C. The Agency and the City have fee or easement interests in
various streets, sidewalks and other property within the City and
are responsible for the planning and development of land within the
City in such a manner so as to provide for the health, safety and
welfare of the residents of the City. That portion of the Agency's
or City's interest in real property most directly affected by this
Agreement is depicted in Exhibit 11211 attached hereto and
incorporated herein by reference ("Public Parcel") .
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• 125446
D. The purpose of the Redevelopment Plan is to remedy and
alleviate blighted conditions associated with undeveloped and
unproductive land, inadequate street and circulation systems,
unsuitable land mixes, inadequate or total lack of public street
improvements, and the existence of substandard and incompatible
uses and structures. The redevelopment and restriction of the Site
in accordance with the Redevelopment Plan will promote the utility
and value of the Site and of the Project Area, for the benefit of
its future owners and the entire city.
E. Pursuant to the Redevelopment Plan, Declarant has entered
into an Owner Participation Agreement with the Agency which
Agreement places certain restrictions on the Site. Pursuant to the
City's development requirements, the City has approved or will
approve a site plan for the development of the Site ("Site Plan") ,
which plan places certain restrictions on the Site. 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.
F. Declarant, the Agency and City intend, in exchange for
the entering into the Owner Participation Agreement by the Agency
and the approval of the Site Plan by City, that the Declarant hold,
sell, and convey the Site 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.
G. 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 Site and effectuating the
Redevelopment Plan. Such covenants, conditions and restrictions
shall run to the benefit of the Public Parcel and bind the Site,
the Declarant and its successors and assigns.
NOW, THEREFORE, the Developer, 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 Site 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.
F82%383\014084-0094\2190983.1 a01101196 -2
TERMS AND CONDITIONS
ARTICLE I
COVENANTS, CONDITIONS AND RESTRICTIONS
1. 1 General. The Site 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 itself and its
successors and assigns, hereby covenants and agrees to maintain and
repair or cause to be maintained and repaired the Site 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 Site. 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; and (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. In addition, Declarant shall
be required to maintain the Site 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 Site.
1. 3 Parking. Declarant shall use its best efforts to insure
that vehicles associated with the operation of the Site, including
delivery vehicles, vehicles of customers and employees and vehicles
of persons with business on the Site will park solely on the Site
and not park on public streets or adjacent property.
1. 4 Compliance With ordinances. Declarant shall comply with
all ordinances, regulations and standards of the City and Agency
applicable to the Site. Declarant shall comply with all rules and
regulations of any assessment district of the City with
jurisdiction over the Site.
1. 5 Outside Storage. No storage of any kind shall be
permitted outside the building(s) located on the Site 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
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125446
trash storage area shall be kept closed at all times except when in
actual use.
1. 6 Buildings and Equipment. Any construction, repair,
modification or alteration of any buildings, equipment, structures
or improvements on the Site shall be subject to the following
restrictions:
(a) All mechanical and electrical fixtures and
equipment to be installed on the roof or on the ground shall
be adequately and decoratively screened. The screening must
blend with the architectural design of the building(s) .
Equipment on the roof must be at least six (6) inches lower
than the parapet line and adequately. screened. All details
and materials of said screening shall be approved by the
Executive Director prior to installation.
(b) The texture, materials and colors used on the
buildings, as well as the design, height, texture and color of
fences and walls shall be subject to the approval of the
Executive Director.
(c) Signs on the Site shall conform to the standards
and ordinances of the City and to a uniform design theme
approved by the City. Any signs installed on the Site shall
conform to said design scheme and shall be approved by the
Executive Director prior to installation.
(d) Lights installed on the building shall be a
decorative design. No lights shall be permitted which may
create any glare or have a negative impact on the residential
areas, if any, existing around the Site. No light stand on
any portion of the Site shall be higher than fifteen (15)
feet. The design and location of any lights shall be subject
to the approval of the Executive Director.
(e) No fences, signs, gas pumps, or any other similar
facilities shall be constructed or provided on the Site
without the prior approval of the Executive Director.
(f) Manufacturing plant use may be permitted on the
Site, subject to the limitations provided in the Municipal
Code of the City. Specifically, prior to such use, suitable
evidence must be provided to the Executive Director that no
negative environmental effect shall be caused by reason of
odor, noise, glare, vibration, fumes, smoke, particulate
matter, refuse matter, and that no unsafe or dangerous
conditions are to be created such as the manufacture, use or
storage of explosive, radioactive materials or other similarly
hazardous materials.
1.7 Public Agency Rights of Access. Participant hereby
grants to the Agency, the City and other public agencies the right,
at their sole risk and expense, to enter the Site or any part
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• • 125446
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 Site. Any damage
or injury to the Site 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.
1. 8 Transient Occupancy Tax. Declarant hereby covenants
that all units located on the Site or on properties adjacent to the
Site which are owned or controlled by Declarant shall be subject to
the payment of transient occupancy tax as set forth in the Palm
Springs Municipal Code.
ARTICLE II
ENFORCEMENT
2 . 1 Termination. No breach of this Declaration shall
entitle any party to cancel, rescind or otherwise terminate this
Declaration, or excuse the performance of such party's obligations
hereunder; provided that, however, this limitation shall not affect
in any manner any other rights or remedies which the parties may
have by reason of such breach.
2 . 2 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.
2 .3 Other Rights of Agency and City. In the event of any
violation or threatened violation of any of the provisions of this
Declaration, then in addition to, but not in lieu of, any of the
rights or remedies the Agency and City may have to enforce the
provisions hereof, the Agency and City shall have the right (i) to
enforce the provisions hereof as a party hereto and as an owner of
the Public Parcel, and (ii) to withhold or revoke, after giving
written notice of said violation, any building permits, occupancy
permits, certificates of occupancy, business licenses and similar
matters or approvals pertaining to the Site or any part thereof or
interests therein as to the violating person or one threatening
violation.
2.4 Failure to Perform; Lien. If any owner of the Site
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 Site that it cure said default, enter onto the Site for the
purpose of curing the default. In making an entry, the Agency or
City shall give the owners of the Site or their representative,
reasonable notice of the time and manner of said entry and said
PS2\383\014084-0094\2190983.1 a04/01196 -5-
• 125446
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 Site 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
Site within 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 (10%) 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 Site as well as a lien and charge, with power of sale,
upon the Site. The Agency may bring an action at law against the
owner of the Site to pay any such sums.
The lien provided for in this Section may be recorded by the
Agency as a Notice of Lien against the Site 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 Site shall date from the date such notice
is filed of record and shall be prior and superior to any right,
title, interest, lien or claim which may be or has been acquired or
attached to such real property at the time of recording of such
lien, but shall be junior and subordinate to matters having a
priority prior to the date such notice is recorded; provided that,
however, said lien shall be subordinate to any bona fide mortgage
or deed of trust and any purchaser at any foreclosure or trustee's
sale under any such bona fide mortgage or deed of trust as provided
in Section 3 . 3 below. Such lien shall be for the use and benefit
of the person filing the same, and may be enforced and foreclosed
in a suit or action brought in any court of competent jurisdiction.
Any such lien may be enforced by the Agency or City by taking
either or both of the following actions concurrently or separately
(and by exercising either of the remedies set forth below shall not
prejudice or waive its rights to exercise the remedy) : (i) bring
an action at law against the defaulting party personally obligated
to pay such lien or (ii) foreclose such lien in accordance with the
provisions of Section 2924 of the California Civil Code applicable
to the exercise of powers of sale or mortgages and deeds of trust,
or any other manner permitted by California law.
Upon the timely curing of any default for which such lien was
recorded, the City or Agency shall record an appropriate release of
such lien, and sign any other documents reasonably necessary to
satisfy title insurance requirements, upon payment by the owner of
the Site 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.
FKM31014084-0094\2190983.1 a04101196 -6-
• 12544G
ARTICLE III
ENCUMBRANCES, MORTGAGE PROTECTION AND TAXES
3 . 1 Participant'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 Site 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 Site or any part thereof whose
title thereto is acquired by foreclosure, trustee's sale, or
otherwise.
3 .2 Amendments or Modifications to Declaration. No
purported rule, regulation, modification, amendment and/or
termination of this Declaration 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 Site that is
recorded in the Office of the Riverside County Recorder prior to
the date any such rule, regulation, modification, amendment or
termination is recorded in such office, without the prior written
consent of such mortgagee.
3 . 3 Liens Subordinate. Any monetary lien provided for
herein shall be subordinate to any bona fide mortgage or deed of
trust covering an ownership interest or leasehold or subleasehold
estate in and to the Site and any purchaser at any foreclosure or
trustee' sale (as well as any by deed or assignment in lieu of
foreclosure or trustee's sale) under any such mortgage or deed of
trust shall take title free from any such monetary lien, but
otherwise subject to the provisions hereof; provided that, after
the foreclosure of any such mortgage and/or deed of trust, all
other assessments provided for herein to the extent they relate to
the expenses incurred subsequent to such foreclosure, assessed
hereunder to the purchaser at the foreclosure sale, as owner of the
Site after the date of such foreclosure sale, shall become a lien
upon the Site and may be perfected and foreclosed as provided in
Section 2 .4.
3 .4 Payment of Taxes and Assessments. Declarant shall pay,
when due, all real estate taxes and assessments assessed or levied
against the Site. 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.
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12544G
ARTICLE IV
COVENANTS TO RUN WITH THE LAND
4. 1 Covenants Running With the Land. This Declaration is
designed to create equitable servitudes and covenants appurtenant
to the Public Parcel and running with the Site. Declarant hereby
declares that all of the Site 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 Site and effectuating the Redevelopment Plan. The
covenants, conditions, restrictions, reservations, equitable
servitudes, liens and charges set forth herein shall run with the
Site and shall be binding upon all persons having any right, title
or interest in the Site, 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 Site 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 Site by the citizens of the
City and by furthering the public purposes for which the Agency was
formed.
4 .2 Agreement Amon( 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 Site subject to the
covenants, conditions, restrictions and reservations of this
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 Site, or any part thereof, their heirs, successive owners and
assigns.
ARTICLE V
TERM
The covenants, conditions and restrictions contained in this
Declaration shall remain in effect for the term of the Redevelop-
ment Plan.
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125446
ARTICLE VI
MISCELLANEOUS
6. 1 Modification. This Declaration may not be modified,
terminated or rescinded, in whole or in part, except by a written
instrument duly executed and acknowledged by the parties hereto,
their successors or assigns and duly recorded in the Office of the
County Recorder, County of Riverside.
6. 2 Governing Law. This Declaration shall be governed by
and construed in accordance with the laws of the State of
California.
6. 3 Severability. The invalidity or,unenforceability of any
provision of this Declaration with respect to a particular party or
set of circumstances shall not in any way affect the validity and
enforceability of any other provision hereof, or the same provision
when implied to another party or to a different set of
circumstances.
6.4 Notices. Any notice to be given under this Declaration
shall be given by personal delivery or by depositing the same in
the United States Mail, certified or registered, postage prepaid,
at the following address:
Agency: The Community Redevelopment
Agency of the City of Palm Springs,
California
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
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92623-9990
Attn: David J. Aleshire, Esq.
Declarant: Linsu Development Company, LLC
1533 Chaparral Road
Palm Springs, CA 92262
Attn: Stephen Payne
With Copy to: Roemer & Harnik
45-025 Manitu Dr.
Indian Wells, CA 92210
Attn: Richard I. Roemer, Esq.
Any notice delivered personally shall be effective upon
delivery. Any notice given by mail as above provided shall be
PS2\383\014084-0094\2190983J a04/01196 -9-
i • 125446
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. After the initial sale of the
condominium units to be constructed on the Site, the notices to the
Declarant shall be made to the Desert Shadows Condominium
Association or such other homeowners' association formed for the
Site.
6.5 Counterparts. This Declaration may be executed in any
number of counterparts each of which shall be an original but all
of which shall constitute one and the same document.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
was executed as of the date first written above.
LINSU DEVELOPMENT COMPANY, LLC, a
California limited liability company
-!f
By:
Its fb/i.G%/�(.� �✓ f7?/�.f � fiJ1'
By
Its:
"Declarant"
ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, CALIFORNIA, a
public body, corporate and politic
n
By.� _ � By: u�
As stant Secretary Chairman
"Agency"
ATTEST: CITY OF PALM SPRINGS, a
( municipal corporation
By: �• 5 ?*
City Clerk Mayor
"City"
APPROVED AS TO FORM:
RUTAN & TUCKER -
2 6�ke_-L� K7_
David J. Aleshi e,
Agency Counsel and
City Attorney
FSZ383\014084-0094\2190983.1 a0101196 _1 0—
• • 12544G
STATE OF CALIFORNIA )
ss.
COUNTY OF2i 'f� )
before me On ( �/P.c. -• Gr/�f�/Rfh �d/A /L ,
personally appeared L ,
personally known to me (er—proved.—to me—on--the--basis--of—sat s-fac—
,tory—evidence) to be the person(() whose name(,)sj(j7syare subscribed
to the within instrument and acknowledged to me tha< e/tshe/they
executed the same inCsjher/their authorized capacity(ies-)-, and
that by(his/her/their signatureke) on the instrument the person(,d)
or the entity upon behalf of which the person(si acted, executed
the instrument.
Witness my hand and official seal.
ELAINE L.WEDEKIND
z !�� COMM.i 1048857 z'��-�l?�r✓y t'� /_ .�- ;_ ,✓f GL
z �,�o..,n; NotaryPublic—California Mary Public
[SEAL]� RIVERSIDE COUNTY
My Comn\.Expires FEB 3,1999
t
STATE OF CALIFORNIA )
ss.
COUNTY OF
On /s_�e.� �2/�J� , before me., 16:1tine, !. 1€.F✓ } 'e ,
personally appeor ^r_ .. r"�'_
(j. l/
personally/ nown to me for—proved ._ me_on- the--basis--of--satisfac=
to-r-y—evidence) to be the person y whose namef�s� is are subscr' ed
to the within instrument and acknowledged to me that he/she cth
executed the same__._ijL his/hera�lheir)authorized capacity ies) , and
that by his/her their;.signaturees?Von the instrument the person(4))
or the entity upon behalf of which the persons acted, executed
the instrument.
Witness my hand and official seal.
1_ t
ELAINE L.WEDEKIND otary Public` /
COMM.#1048857 ✓/
(SEAL - Notary Public—California ti
• RIVERSIDE COUNTY
My Comm,Expires FEB 3,1999
PSM383\014084-0094\2190983.1 a04/01/96 —12—
EXHIBIT "1" 12544fi
LEGAL DESCRIPTION OF THE SITE
That certain real property located in the City of Palm Springs,
County of Riverside, State of California described as follows:
PARCEL 1:
THE NORTHERLY 264 FEET OF THE NORTHWEST QUARTER OF THE NORTHWEST
QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 11, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE
AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.
SAID PROPERTY IS ALSO SHOWN ON RECORD OF SURVEY ON FILE IN BOOK
5 PAGE 42, OF RECORDS OF SURVEY, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ANY DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES AND WATER UNDERLYING SAID LAND, AS
RESERVED IN DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES TO ZORA WITKIN, RECORDED DECEMBER 12, 1935 IN BOOK 262
PAGE 178 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA
HOWEVER, SUCH RESERVATION SHALL NOT BE DEEMED TO GIVE THE
GRANTOR, ITS SUCCESSORS OR ASSIGNS, ANY RIGHT TO ENTER UPON SAID
PREMISES FOR THE DEVELOPMENT OF ANY SUCH WATER, OIL, GAS OR
OTHER HYDROCARBON SUBSTANCES.
PARCEL 2:
LOT 7 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ALL DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON, MINERAL OR KINDRED SUBSTANCES, AND ALL WATER
UNDERLYING SAID LAND, PROVIDED, HOWEVER, THAT THE GRANTOR, ITS
SUCCESSORS OR ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON SAID
PREMISES FOR THE PURPOSES OF DEVELOPING ANY WATER, GAS, OIL,
HYDROCARBON, MINERAL AND/OR KINDRED SUBSTANCES, AS RESERVED IN
DEED FROM SECURITY FIRST NATIONAL BANK OF LOS ANGELES, RECORDED
DECEMBER 23, 1936 IN BOOK 308 PAGE 24 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
PARCEL 3:
LOT 8 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING ANY AND ALL DEPOSITS OF OIL, GAS OR OTHER HYDROCARBON,
MINERAL OR KINDRED SUBSTANCES UNDERLYING SAID LAND, PROVIDED,
HOWEVER, THAT THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL
HAVE NO RIGHT TO ENTER UPON SAID PREMISES FOR THE PURPOSE OF
DEVELOPING ANY GAS, OIL, HYDROCARBON, MINERAL OR KINDRED
SUBSTANCES, AS RESERVED IN DEED FROM SECURITY FIRST NATIONAL
BANK OF LOS ANGELES, RECORDED DECEMBER 23, 1936 IN BOOK 308 PAGE
24 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
EXHIBIT "1"
TO DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
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YEAR Nonresident WISholding Exemption CertificS for CALIFORNIA FORM
19_ Real Estate Sales (For use by sellers of Calltomia real estate) 590-RE
File this form with your withholding agent or buyer.
Name The Community Redevelopment Agency of the City of Palm S rin s California
Address(number and street) _ Daytime teleptgne number
3200 East Tahquitz Canyon Way ;619 ) 323-8259
City state ZIP code
Palm Springs, CA 92263
Complete the appropriate line: Individuals-Social security number
Corporations -California corporation number(issued by Secretary of State) or F.E.I.N.
Partnerships, Estates,.Irrevocable Trusts and Tax-Exempt Entities-F.E.I.N. 5 2-1 562287
Limited Liability Company-Secretary of State file number
Note: Failure to provide your identification number will render this certificate void.
To Linsu Development Company, a California limited liability company
(Withholding Agerx w Buyer)
Certificate of Residency — Individuals: under penalties of perjury, I hereby certify that I am a resident of California and that I reside
at the address shown above. See Side 2 for the definition of a resident
Signature Date
Certificate of Principal Residence — Individuals: under penalties of perjury, I hereby certify that the California real property
located at was my principal residence within the meaning of IRC Section 1034.
See Side 2 for the.definition of a principal residence.
Signature Date
Certificate of Residency of Deceased Person — Estates: under penalties of perjury, I hereby certify,as executor of the
above-named person's estate tat the decedent was a California resident at the time of death.
Name of executor (type or pdnQ
Signature Date
Corporations: Under penalties of perjury, I hereby certiy that the above-named corporation has a permanent place of business in California at the
address shown above or is qualified to do business in Cafdomia. See Side 2 for the definition of permanent place of business.
Name and Title (type or print)
Signature Date
Partnerships: Under penalties of perjury, I hereby certify Bat the above-named entity is a partnership and that the recorded title to the property is
in the name of the partnership.
Name and Title (type or prinQ
Signature Date
Limited Liability Companies (LLC): under penalties of perjury, I hereby certify M the above named entity is an LLC and do the
recorded title to the property is in the name of the U.C.
Name and Title (type or print)
Signature Date
Tax-Exempt Entities and Nonprofit Organizations: under penalties of perjury, I hereby certify that the above-named entity is
exempt from tax under California or federal law. I 7
Name and TrIfe-type-wtipdnQ .� AF''� =r' �. lV l�'r�rf�'X
Signature- � t!'d?.`` -t 21 �'✓,!' /1,"�' Plata `a''l-fir i
r r
Irrevocable Trusts: Under penalties of perjury, I hereby certify that at least one trustee of the above-named irrevocable tout is a California
resident.
Name and Title (type or print)
Signature Date
For Privacy Ad Notice, see form FTB 1131 (individuals only).
Form 590-RE C2 (REV. 1994) Side 1
Instructions for Form 590-RE
Nonresident Withholding Exemption Certificate for Real Estate Sales
Reference in these instnwaons are to the Internal Revenue Code(IRC)as of January 1, 1993,and to the California Revenue and Taxation Code(R&TC)
• The seller is a California trust For with- F What is a Princi I Residence
General Information holding purposes,an irrevocable trust is con-
sidered a Califomla trust if at least one Usually,the home in which you live is your princl-
A Purpose Of Form pal residence. If you have more than one home,
trustee is r California resident. Irrevocable only the sale of our main home qualities as a
Use Form 590-RE to obtain an exempYE'reiryom trusts are required to withhold on distributions y y q
withholding for the sale of California red assets. of California source income to their nonresi- sale of a principal residence. If you have two
The completed Form 590-RE should M'pro. dent beneficiaries. homes and live in both of them,the main home
sented to the buyer or other withholding agent--- Note:This applies only to irrevocable non. is the one lived in most of the time. A mobile
and retained in their records for a period of five grantor trusts. Irrevocable trusts cannot be home,houseboat,cooperative apartment, or con-
years following the close of the transaction.The revoked by the grantor.The grantor is the dominium can also be a principal residence.
buyer will be relieved of the withholding require- person(s) who transferred (granted)assets to Property may qualify as your principal residence
ments if the buyer reliefs in good faith on a com- the trust.An irrevocable trust is also called a even If you temporarily rent it out while it is in the
pleted and signed Form 590-RE. non-grantor trust because the trust does not process of being sold,as long as it Is rented out
B Law revoke
a provision to allow the grantor to only as a matter of convenience or for another
revoke the trust.A revocable or grantor trust nonbusiness purpose. IRC Section 1034 does
R&TC Section 18662 requires withholding of does have a provision allowing the grantor to not contain a bright-line test for determining what
income(or franchise) tax when California real revoke the trust and take back the assets. is considered temporary. In federal case law on
estate is sold by a nonresident. The grantor of a grantor trust shall be treated this subject,the Tax Court considered the facts
as the seller of real estate owned by such a and circumstances of each case, Including the
C When Should this Form
trust.Therefore, if the seller is a revocable or intent of the seller, to determine it the property
be Used grantor trust and one or more of the grantors met the definition of principal residence at the
The certifications on Side 1 should be completed is a nonresident,withholding is required. If all time of sale.Generally, 'd the property is rented
when: of the grantors of a revocable or grantor trust out for less than a year while it is on me market,
are residents, no withholding is required. it will still be considered a principal residence for
• The seller Is a California resident on the withholding purposes. You should evaluate your
date escrow closes.Residents of California D Requirem at to File a factual situation, the law, and applicable federal
who have an out-of-state address to which tiallfOnlW Return case law to determine 8 the property qualities as
funds are disbursed will need to complete your principal residence within the meaning of
Form 590-RE to be exempt from withholding. A completed Form 590-RE exempts the seller IRC Section 1034. For more information, get
Form 590-RE will riot become invalid it the from withholding but does not eliminate the Federal Publication 523,Selling Your Home.
seller moves out of California after the close requirement to file a Califomia',tax return and pay
of escrow. the tax due. G What is Not a Principal
• The property meets the definition of prinel-pal residence under IRC section 1034 at E Who is a Resident ResId
the time escrow closes.Form 590-RE can A California resident is every individual who is in The following are not principal residences under
be signed even If you do not plan to pur- California for other than a temporary or transitory IRC Section 1034:
chase a new home or 9 the purchase price of purpose or any individual domiciled in California 1. Rental property.
your new home is less than the sales price of who is absent for a temporary or transitory 2. Part of home used for business.
your old home. Recognition of this gain in the purpose. 3. Vacant land.
year of sale or in subsequent years will be An individual domiciled in California who is 4. Vacation home or second home.
taxable to California and must be reported on absent from California for an uninterrupted period Withholding is required on sales of these types of
a California tax return. of at least 546 consecutive days under an properties unless another withholding exception
• The seller Is a Califomia estate.For with- employment-related contract is considered out- is met or a waiver of withholding is obtained. Get
holding purposes,an estate is considered a side California for other than a temporary or tran- Forth 597-A, Nonresident Withholding Waiver
California estate if the decedent was a Cali- sxory purpose.This does riot apply it an Request for Real Estate Sales,for more
fomia resident at file time of death. Estates individual has income from stacks,bonds, notes information.
are required to withhold on distributions of or other intangible personal property in excess of
California source income to their nonresident $200,000 in any taxable year in which the H What is a Permanent Place
beneficiaries. employment-related contract is in effect - of Business
• The seller is a corporation that hex a per- A spouse who is absent from'Cal'Ifomia for an
manent place of business In California uninterrupted period of at least 546 days to A corporation has a permanent place of business
Immediately after the transfer. in this state it it is organized and existing under
• The seller is a partnership and the accompany a spouse under an employment- the laws of this state or 4 it is a foreign corpora-
related contract is considef4wside of Califor-
recorded title to the property la M the lion qualified to transact intrastate business by
name of the partnership.A partnership may nia for other than a temporary or transitory the California Secretary of State's Office.A cor-
be required to withhold on distributions of purpose. poration which has not qualified to transact intra-
California source income to nonresident Sellers who are uncertain of their residency sta- state business (e.g., a corporation engaged
partners. For more information get FTB tus can get assistance in determining then resi- exclusively in interstate commerce)will be con-
Pub. 1017, Nonresident Withholding—Part- deny status by calling the Franchise Tax Board sidered as having a permanent place of business
nership Guidelines. Information Center at the numbers listed below: in this state only if it maintains a permanent
• The seller is an L.LC and the recorded title From within the United States„ office in this state which is permanently staffed
to the property is In the name of the LLC. call. . . . . . . . . . . . . .l. 1-800-852-5711 by its employees.
An LLC may be required to withhold on dnstri- From outside the United States, For more Information contact:
butions of Califomia source income to non- cap, . . . • , • . . . , , . .,. 1-916-845-6500 Franchise Tax Board
resident members.For more information get For hearing impaired with TOD, Withhold at Source Unit
FTS Pub. 1017. call. . . . . . . . . . . . . .I. 1-800-822-6268 P.O.Box 651
• The seller Is exempt from tax under either Sellers may also get FTB Pub 1031,Guidelines Sacramento,CA 9581241651
California or federal law. For withholding for Determining Resident Status, for more Telephone: (91fi)845-0900
purposes, this includes the insurance compa- information.
nies, IRAs and pension and profit sharing - FAX: (916)845.4831
plans.
Side 2 Form 590-RE Instructions (REV. 1994)
,
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a
transferee of a U.S. real property interest must withhold tax if
the transferor is a foreign person. To inform the transferee that
withholding of tax is not required upon disposition of a U. S. real
property interest by THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY
OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic
("Agency") , the undersigned hereby certifies the following on
behalf of the Agency:
1. The Agency is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined in the Internal Revenue Code and Income Tax Regulations) ;
2 . The Agency's U. S. employer identification number is 52-
1562287; and
3 . The Agency's office address is 3200 East Tahquitz Canyon
Way, Palm Springs, California 92263.
The Agency understands that this certification may be
disclosed to the Internal Revenue Service by the transferee and
that any false statement contained herein could be punished by
fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined
this certification and to the best of my knowledge and belief, it
is true, correct, and complete, and I further declare that I have
authority to sign this document on behalf of the Agency.
Dated: 1996.
ATTEST: SELLER:
THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF PALM SPRINGS, CALIFORNIA,
a public body, corporate and politic
By:
Assittant Secretary Chairman
"Agency"
Address of Property for Sale:
See legal description attached as Exhibit "A"
PS2\383\014084-0094\2191070.1 A04/01196
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
The Property is located in the City of Palm Springs, County of
Riverside, State of California, more particularly described as
follows:
PARCEL 1:
THE NORTHERLY 264 FEET OF THE NORTHWEST QUARTER OF THE NORTHWEST
QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 11, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE
AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.
SAID PROPERTY IS ALSO SHOWN ON RECORD OF SURVEY ON FILE IN BOOK
5 PAGE 42, OF RECORDS OF SURVEY, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ANY DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES AND WATER UNDERLYING SAID LAND, AS
RESERVED IN DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES TO ZORA WITKIN, RECORDED DECEMBER 12, 1935 IN BOOK 262
PAGE 178 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA
HOWEVER, SUCH RESERVATION SHALL NOT BE DEEMED TO GIVE THE.
GRANTOR, ITS SUCCESSORS OR ASSIGNS, ANY RIGHT TO ENTER UPON SAID
PREMISES FOR THE DEVELOPMENT OF ANY SUCH WATER, OIL, GAS OR
OTHER HYDROCARBON SUBSTANCES.
PARCEL 2:
LOT 7 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING THEREFROM ALL DEPOSITS OF OIL, GAS OR OTHER
HYDROCARBON, MINERAL OR KINDRED SUBSTANCES, AND ALL WATER
UNDERLYING SAID LAND, PROVIDED, HOWEVER, THAT THE GRANTOR, ITS
SUCCESSORS OR ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON SAID
PREMISES FOR THE PURPOSES OF DEVELOPING ANY WATER, GAS, OIL,
HYDROCARBON, MINERAL AND/OR KINDRED SUBSTANCES, AS RESERVED IN
DEED FROM SECURITY FIRST NATIONAL BANK OF LOS ANGELES, RECORDED
DECEMBER 23, 1936 IN BOOK 308 PAGE 24 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
PARCEL 3:
LOT 8 OF PALM SPRINGS ESTATES NO. 5, AS SHOWN BY MAP ON FILE IN
BOOK 18 PAGE(S) 91, OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA;
EXCEPTING ANY AND ALL DEPOSITS OF OIL, GAS OR OTHER HYDROCARBON,
MINERAL OR KINDRED SUBSTANCES UNDERLYING SAID LAND, PROVIDED,
HOWEVER, THAT THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL
HAVE NO RIGHT TO ENTER UPON SAID PREMISES FOR THE PURPOSE OF
DEVELOPING ANY GAS, OIL, HYDROCARBON, MINERAL OR KINDRED
SUBSTANCES, AS RESERVED IN DEED FROM SECURITY FIRST NATIONAL
BANK OF LOS ANGELES, RECORDED DECEMBER 23, 1936 IN BOOK 308 PAGE
24 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
EXHIBIT "A"
TO NON-FOREIGN AFFIDAVIT
FS2\383\014084-0094\2191070.1 R04/01196
. 125444
RECEIVED FOR RECORD
FREE RECORDING REQUESTED BY AT8:000C1.00K
AND WHEN RECORDED MAIL TO:
APR - 81996
CITY OF PALM SPRINGS
3200 East Tahquitz Canyon Way Recorded in Odom new'
Palm Springs, California 92262 ai RnersdeCW ,Recorder
Attn: Esq.
Fees$
(For Recorder's Use Only)
RECIPROCAL EASEMENT AGREEMENT
f1 THIS RECIPROCAL EASEMENT AGREEMENT ("Agreement") is made this
day of 1996 by and among the CITY OF PALM
SPRINGS, a mdhiQipal corporation ("Ci.ty") , LINSU DEVELOPMENT
COMPANY, LLC, a California limited liability company ("Linsu'') , and
LINSU CORPORATION, a California corporation ("Adjoining Owner") .
(Linsu and the Adjoining Owner shall hereinafter be referred to
collectively as "Owner") .
R E C I T A I, .:
A. Linsu 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 "All attached
hereto and incorporated herein by reference ("Linsu Property") .
B. Adjoining Owner is the owner of that certain real
property located in the City of Palm Springs, County of Riverside,
State of. California adjacent to the Linsu Property and more
particularly described on Exhibit "B" attached hereto and
incorporated herein by reference ("Adjoining Owner Property") . The
Linsu Property and the Adjoining Owner Property shall. hereinafter
be referred to collectively as the "Property" .
C. The City has fee or easement interests in various
streets, sidewalks and other property within the City and is
responsible for the planning and development of land within the
City in such a manner 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 "C" attached hereto and incorporated herein
by reference ("Public Parcel") .
D. The Owners and the City intend that in exchange for the
granting of a planned development permit by the City for the
development of the Linsu Property ("City Approval") , the Owners
PS2\471\014084-0094\2190492.1 e03/29/96