Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
00294C - ZACHARY FRANKS MARLY STONE CHILLERS RESTAURANT
FREE RECORDING REQUESTED BY Ir g N AND WHEN RECORDED RETURN TO: It 9 m c 'THE COMMUNITY REDEVELOPMENT AGENCY $ CQ w j OF THE CITY OF PALM SPRINGS U / 3200 East Tahquitz-Canyon Way .� � (,n �Palm Springs, CA 92262 v a Attn: CITy--CLERK -._---(Space Above Th.i-s 'Line For Recorder ' s Office Use Only) CERTIFICATE OF COMPLETION WHEREAS, by an Owner Participation Agreement (hereinafter referred to as the "Agreement" ) dated &D , 199A, by and between THE COMMUNITY REDEVELOPMENT �ENCY OF THE CITY OF PALM SPRINGS (hereinafter referred to as "Agency" ) , and ZACHARY FRANKS and MARLY STONE, husband and wife (hereinafter referred to as "Participant" ) , Participant has redeveloped the real property ( the "Site" ) , legally described on Exhibit 1 attached hereto and incorporated herein by reference, according to the terms and conditions of said Agreement ; and WHEREAS, pursuant to Section 3 .7 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 WHEREAS, the Agreement provided for certain covenants to run with the land, which covenants were incorporated in a Regulatory Agreement and Declaration , of Covenants and Restrictions ( the "Regulatory Agreement" ) ; NOW, THEREFORE: 1 . As provided in the Agreement, Agency does hereby certify that redevelopment of the Site has been fully and 2/383/014084-0006/53a 9/16/92 0 39686E CERTIFICATE OF COMPLETION satisfactorily performed and completed, and that such redevelopment is in full compliance with said Agreement. 2. This Certificate shall not constitute evidence of Participant ' s compliance with the Regulatory Agreement, 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,L,r THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corpor po ' ' c By Ex cu ive Dire for JUDITH SUMICH, being duly sworn, says: That she is the City Clerk of the aforesaid City of Palm Springs, California, the corporation that executed the foregoing notice; that she makes this verification on behalf of said corporation; that she has read the foregoing notice of completion, and knows the contenst thereof, and that the facts stated therein are true; that as said City Clerk, she makes this verification on behalf of said municipal corporation. City Clerk -2- . . 39G8G5 Exhibit 1 LEGAL DESCRIPTION OF SITE The real property referred to is situated in the State of California, County of Riverside and is described as follows : LOTS 8 AND 17 IN BLOCK 28 OF PALM SPRINGS TRACT, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 9, PAGE 432 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. Exhibit 1 TO CERTIFICATE OF COMPLETION AGREEMENT #294C Part 1 of 5 Owner Participation Agr RE: Chiller' s Restaurant Zachary Franks & Marly Stone R836, 12-18-91 OWNER PARTICIPATION AGREEMENT - CHILLER' S RESTAURANT THIS OWN ER PAR TICIPATION AG EEMENT ( "Agreement" ) is entered into this � day of , 1992 by and between THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic, whose offices are located at 3200 East Tahquitz Canyon Way, Palm Springs , California 92262 ( "Agency" ) and ZACHARY FRANKS and MARLY STONE, husband and wife, whose offices are located at c/o Arthur Ralston, Esq. , 11355 Olympic Boulevard, Suite 500; Los Angeles, California 90064 ( "Participant" ) . The Agency and the Participant hereby agree as follows : 1. 0 DEFINITIONS. 1 .1 Certificate of Completion. The term "Certificate of Completion" shall mean that certain Certifi- cate of Completion attached hereto as Exhibit "H" and incorporated herein by reference. 1. 2 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 . 3 Deed of Trust. The term "Deed of Trust" shall mean that certain Deed of Trust and Assignment of Rents attached hereto as Exhibit "G" and incorporated herein by reference . 1 . 4 Indemnity Agreement. The term "Indemnity Agreement" shall mean that certain Indemnity Agreement attached hereto as Exhibit "F" and incorporated herein by reference. 1 . 5 Project. The term "Project" shall mean the project to be performed by the Participant upon the Site more particularly described on Exhibit "B" attached hereto and incorporated herein by reference. 1. 6 Redevelopment Plan. The term "Redevelopment Plan" shall mean the Redevelopment Plan for the Palm Springs Central District Redevelopment Project Area ( "Project Area" ) which was adopted by Ordinance Number 952 of the City Council of City on July 11, 1973 , as amended from time to time. A copy of the Redevelopment Plan is on file in the office of 2/383/014084-0006/50 3/3/92 the City Clerk of the City. The Redevelopment Plan is incorporated herein by this reference and made a part hereof as though fully set forth herein. 1 . 7 Regulatory Agreement . The term "Regulatory Agreement" shall mean that certain Regulatory Agreement and Declaration of Covenants and Restrictions attached hereto as Exhibit "D" and incorporated herein by reference. 1.8 Schedule of Performance. The term "Schedule of Performance" shall mean that certain Schedule attached hereto as Exhibit "C" and incorporated herein by reference. 1. 9 Security Agreement. The term "Security Agreement" shall mean that certain Security Agreement attached hereto as Exhibit "E" and incorporated herein by reference. 1.10 Site. The term "Site" shall mean that certain real property to be purchased by Participant located in the City of Palm Springs, State of California, more particularly described on Exhibit "A" attached hereto and incorporated herein by reference. 2 . 0 PURPOSE OF AGREEMENT. The purpose of this Agreement is to effectuate the Redevelopment Plan for the Project Area by rehabilitating the Site within the Project Area. The rehabilitation of the Site within the Project Area and the fulfillment generally of this Agreement are in the best interests of the City and the welfare of its residents and are in accordance with the public purposes and provisions of applicable federal, state, and local laws and regulations, under which the Project has been undertaken and is being assisted. 3.0 CONSTRUCTION OF THE PROJECT. 3.1 Plans and Specifications. The Participant shall construct the Project upon the Site in accordance with construction drawings, working specifications and related documents submitted to and approved by the Agency in advance and in writing. The construction drawings , working specifications and related documents shall show that the Project is in accordance with the conceptual plans approved by the Planning Commission on December 18, 1991 in Planning Department Case No. 5. 0532. - -2- • 0 3 . 2 Permits. Before commencement of the con- struction of the Project, Participant shall obtain any and all permits and approvals which may be required by the City or any other governmental agency with jurisdiction. 3 . 3 Costs of Construction. The cost of constructing the Project shall be borne by the Participant. 3 . 4 Construction Schedule. Participant shall submit the construction drawings, working specifications and related documents for approval by the Agency on or before the date set forth in the Schedule of Performance. Construction of the Project shall commence on or before the date set forth in the Schedule of Performance and shall be completed within the time set forth in the Schedule of Performance except as mutually agreed in writing by Participant and Agency. The Project shall be deemed complete upon the issuance of a Certificate of Completion as provided in Section 3 . 7 . 3. 5 Right of Access . Representatives of Agency and City shall have the reasonable right of access to the Site during the period of construction for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed. 3 . 6 Nondiscrimination During Construction. Participant, 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, ancestry or national origin. 3.7 Certificate of Completion. Provided that Participant is not in breach of this Agreement, Agency shall issue to Participant a Certificate of Completion upon the issuance of a Certificate of Occupancy by the City. The Certificate of Completion shall be, and shall so state, a conclusive determination of satisfactory completion of the Project required by this Agreement, and a full compliance with the terms of this Agreement relating to commencement and completion of the Project. After the date Participant is entitled to issuance of the Certificate of Completion, and notwithstanding any other provision of this Agreement to the contrary, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the 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 -3- Completion, as set forth in the Regulatory Agreement. The Certificate of Completion is not a notice of completion as referred to in California Civil Code Section 3093. 3 . 8 Governmental Approvals . Notwithstanding anything herein contained to the contrary, it is expressly understood by the parties hereto that the Agency makes no representations or warranties with respect to the approvals required by any other governmental entity or with respect to approvals hereinafter required from the City or the Agency. The Agency reserves full police power authority over the Project and the Participant acknowledges that the City retains such full police power as well . Nothing in this Agreement shall be deemed to be a prejudgment or commitment with respect to such items nor to guaranty that such approvals or permits will be issued within any particular time or with or without any particular conditions. 3 . 9 Insurance and Indemnification. 3 . 9 .1 Insurance. Prior to the commencement of any construction by Participant of the Project, Participant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to Agency, during the entire term of construction, the following policies of insurance: (a) Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than either ( i) a combined single limit of ONE MILLION DOLLARS ($1,000,000. 00 ) or ( ii) bodily injury limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000 . 00) per person, ONE MILLION DOLLARS ( $1,000 ,000 . 00) per occurrence and ONE MILLION DOLLARS ($1, 000,000 . 00) products and completed operations and property damage limits of FIVE HUNDRED THOUSAND DOLLARS ( $500,000 . 00) per occurrence and ONE MILLION DOLLARS ($1,000,000 . 00 ) in the aggregate. (b) 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 -4- Participant in the course of carrying out the work or services contemplated in this Agreement. (c) Automotive Insurance . A policy of compre- hensive automobile liability insurance written on a per occurrence basis in an amount not less than either ( i ) bodily injury liability limits of $250 , 000 . 00 per person and $500,000 . 00 per occurrence and property damage liability limits of $100 , 000 . 00 per occurrence and $250,000. 00 in the aggregate or ( ii ) combined single limit liability of $500, 000 . 00 . Said policy shall include coverage for owned, non-owned, leased and hired cars. (d) Builder ' s Risk Insurance. A policy of "builder ' s risk" insurance covering the full replacement value of all of the improvements to be constructed by Participant pursuant to this Agreement. All of the above policies of insurance shall be primary insurance and shall name Agency, City, and their 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 3 . 9 . 1 to the Executive Director . No work or services under this Agreement shall commence until the Participant has provided Agency with Certificates of Insurance or appropriate insur- ance 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 Kev 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 -5- contractor, subcontractor or engineer shall maintain the same policies of insurance required to be maintained by Parti- cipant pursuant to this Section 3 .9 .1. The Participant agrees that the provisions of this Section 3 . 9 . 1 shall not be construed as limiting in any way the extent to which the Participant may be held responsible for the payment of damages to any persons or property resulting from the Participant ' s activities or the activities of any person or persons for which the Participant is otherwise responsible. 3 .9 . 2 Indemnification. During the period of construction of any of the improvements pursuant to this Agreement and until such time as is issued a Certificate of Completion for the Project, Participant agrees to and shall indemnify and hold the Agency and the City harmless from and against all liability, loss, damage, cost or expenses ( including reasonable attorneys ' fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss, or damage whatsoever caused to any person or to the property of any person which shall occur on the 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 contrac- tors. Participant shall not be responsible for (and such indemnity shall not apply to) any acts, errors or omissions of the Agency or the City or their respective agents, servants, employees or contractors. Agency and City shall not be responsible for any acts , errors or omissions of any person or entity except Agency and City and their respective agents, servants, employees or contractors, subject to any and all statutory and other immunities. The provisions of this Section 3 . 9 shall survive the termination of this Agreement. 3 .10 Execution of Security Agreement, Indemnity Agreement and Deed of Trust. Concurrently with the execution of this Agreement, Participant and the Agency shall execute the Indemnity Agreement and the Security Agreement and Participant shall execute and acknowledge the Deed of Trust and cause Bank of America to execute the Security Agreement; provided- that the Agency shall not be obligated to execute said documents if ( i) the loan from Bank of America to Participant referred to in the Security Agreement and Indemnity Agreement are not in a form satisfactory to Agency or ( ii) said loan documents do not provide that the loan shall be amortized over not more than a ten ( 10 ) year period and that the loan must be fully repaid in five ( 5 ) years . -6- 3 . 11 Title Insurance. Participant shall procure from a title insurer acceptable to Agency a 1990 ALTA Lender ' s Policy of Title Insurance ( "Title Policy" ) with any endorsements Agency may require, insuring Lender in the amount of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250, 000 . 00 ) of the validity and priority of the lien of the Deed of Trust upon the Site, subject only to matters approved by Agency in writing. 4. 0 USE OF THE SITE. 4 .1 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, the Loan Agreement or the Regulatory Agreement . 4. 2 Regulatory Agreement. Concurrently with the execution of this Agreement, Participant shall execute the Regulatory Agreement and have the Regulatory Agreement recorded against the Site. The Regulatory Agreement shall be signed and acknowledged by all parties having record title interest in the Site, shall make the Agency and City parties thereto and shall be enforceable by the Agency and the City. 5 .0 ENFORCEMENT. 5 . 1 Events of Default . In the event either party defaults in the performance or observance of any covenant, agreement or obligation set forth in this Agree- ment, and if such default remains uncured for a period of thirty ( 30) days after written notice thereof shall have been given by the non-defaulting party, or , in the event said default cannot be cured within said time period, the default- ing party has failed to commence to cure such default within said thirty ( 30) days and diligently prosecute said cure to completion, then the non-defaulting party shall declare an event of default to have occurred hereunder. 5. 2 Remedies . In addition to any other rights or remedies that may be available and subject to the require- ments of Section 5.1 above, either party to this Agreement may institute a legal or equitable action to cure, correct or remedy any default, to recover damages for any default or to obtain any other remedy consistent with the purposes of this Agreement. If 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 -7- specific performance, and each party agrees (subject to its reserve 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 Participant Property and not for the purpose of enabling Participant to speculate with land. 5. 3 No Waiver . 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 performing 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 other default or of any rights or remedies or to deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies . 5 . 4 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by any party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by another party. 5. 5 Attornevs ' Fees. In the event of litigation between the parties arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys ' fees and other costs and expenses incurred in addition to whatever other relief to which it may be entitled. 6.0 MISCELLANEOUS. 6.1 Governing Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 6 . 2 Notices . Formal notices, demands , and communications between Agency, City and Participant shall be sufficiently given if personally delivered or dispatched by registered or certified mail, postage prepaid, return receipt -8- requested, to the addresses set forth above. All notices shall be deemed to be received as of the earlier of actual receipt by the addressee thereof or the expiration of forty- eight ( 48) hours after depositing in the United States Postal System in the manner described in this Section. 6 . 3 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 corporation, partnership, or association in which he is, directly or indirectly, interested. 6. 4 Nonliability of Agency Officials and Employ- ees. 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. 6. 5 Books and Records. 6 . 5 . 1 Maintenance of Books and Records. Participant shall prepare and maintain all books, records and reports necessary to substantiate Participant ' s compliance with the terms of this Agreement or reasonably required by the Agency. 6. 5.2 Right to Inspect. The Agency shall have the right, upon not less than seventy-two (72) hours notice, at all reasonable times, to inspect the books and records of the Participant pertaining to the Public Improve- ments as pertinent to the purposes of this Agreement. Said right of inspection shall not extend to documents privileged under attorney-client or other such privileges. 6.6 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made by written instrument or endorsement thereon and in each such instance executed on behalf of each party hereto. 6 . 7 Merger of Prior Agreements and Understand- ings. This Agreement and all documents incorporated herein contain the entire understanding among the parties hereto relating to the transactions contemplated herein and all -9- prior or contemporaneous agreements, understandings, repre- sentations, and statements, oral or written, are merged herein and shall be of no further force or effect. 6 .8 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 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. 6 . 9 Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If, however , any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement . IN WITNESS WHEREOF the Agency and Participant have executed this Agreement as of the date first written above. "AGENCY" ATTEST: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFOR a pug body, corporate and po itic a By: •�- - — � By: 5ec�etary Exe v irector ( APPROVED AS TO FORM: RUTAN & TUCKER David J les ire,- Esq. Agency Counsel [Signatures continued on next page. ] -10- i ICIPANT"PR KS i S , E APPROVES BY THE C06vuMUNiTY REMV. r:.GENcy cy om moo -u- EXHIBIT "A" LEGAL DESCRIPTION OF THE SITE The real property referred to is situated in the State of California, County of Riverside and is described as follows: LOTS 8 AND 17 IN BLOCK 28 OF PALM SPRINGS TRACT, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 9 , PAGE 432 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. EXHIBIT "A" TO OWNER PARTICIPATION AGREEMENT EXHIBIT "B" DESCRIPTION OF PROJECT The Project shall consist of the rehabilitation of the improvements located on the Site in accordance with the conceptual plans approved by the Planning Commission of the City of Palm Springs on December 18, 1991 pursuant to Planning Department Case No. 5 .0532. EXHIBIT "B" TO OWNER PARTICIPATION AGREEMENT EXHIBIT "C" SCHEDULE OF PERFORMANCE 1 . Participant submits final building plans Final to Agency and City for approval . Building Plans Ap- proved Prior to Execution 2 . Participant submits Certificates of Construc- Insurance and commences construction of tion com- the Project on the Site. menced Prior to Execution 3 . Participant completes construction of June 1, Project on the Site. 1992 EXHIBIT "C" TO OWNER PARTICIPATION AGREEMENT EXHIBIT "D" FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: The Community Redevelopment Agency of the City of Palm Springs 3200 East Tahquitz-McCallum Way Palm Springs , CA 92262 Attn: Executive Director (For Recorder ' s Use Only) REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND RESTRICTIONS THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND RESTRICTIONS ( "Regulatory Agreement" ) is made this 3- day of '`� , 1992 by and among ZACHARY FRANKS and MARLY STONE, husband and wife ( "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. Declarant is the owner of that certain real property located in the City of Palm Springs, County of Riverside, State of California more particularly described on Exhibit "1" attached hereto and incorporated herein by reference ( "Property" ) . B. The Agency or 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_ and/or City' s interests in real property most directly affected by this Regulatory Agreement is depicted in Exhibit "2" attached hereto and incorporated herein by reference ( "Public Parcel" ) . C. The Property is within the Palm Springs Central District Redevelopment Project Area ( "Project Area" ) EXHIBIT "D" TO OWNER PARTICIPATION AGREEMENT 2/383/014084-0006/52 3/26/92 specifically described in the Redevelopment Plan for the Project Area which was approved and adopted by the City Council of the City of Palm Springs by Ordinance No. 952 on July 11, 1973 and as subsequently amended by means of ordinances of the City Council. D. The purpose of the Redevelopment Plan is to remedy and alleviate blighted conditions associated with undeveloped and unproductive land, inadequate street and circulation systems, unsuitable land mixes, inadequate or total lack of public street improvements, and the existence of substandard and incompatible uses and structures . The redevelopment and restriction of the Property in accordance with the Redevelopment Plan will promote the utility and value of the Property and of the Project Area, for the benefit of its future owners and the entire city. E. Pursuant to the Redevelopment Plan, Declarant has entered into an Owner Participation Agreement with the Agency which Agreement places certain restrictions on the Property. Pursuant to the City' s development requirements, the City has approved or will approve a site plan for the development of the Property ( "Site Plan" ) , which plan places certain restrictions on the Property. Said Redevelopment Plan, Owner Participation Agreement and Site Plan ( i) are on file and may be reviewed in the office of the executive director of the Agency ( "Executive Director" ) , in the Palm Springs City Hall and ( ii ) are each incorporated herein by this reference and made a part hereof as though fully set forth herein. _ 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 Property subject to the covenants, conditions, restrictions, and reservations set forth in this Regulatory Agreement 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 Property and effectuating the Redevelopment Plan. Such covenants, conditions and restrictions shall run to the benefit of the Public Parcel and bind the Property, the Declarant and its successors and assigns . -2- 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 Property shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied subject to the covenants and restrictions hereinafter set forth, which covenants are established expressly and exclusively for the use and benefit of the Agency and City. TERMS AND CONDITIONS ARTICLE I COVENANTS, CONDITIONS AND RESTRICTIONS 1. 1 General. The Property shall be developed and used only as permitted by the restrictions contained in this Regulatory Agreement, the Site Plan, Redevelopment Plan and Owner Participation Agreement. 1. 2 Continuous Operation. Declarant shall continuously use the Property as a restaurant and bar providing live entertainment as described in Section 1. 3 below at a minimum during the hours of 6: 00 p.m. to midnight, Sunday through Thursday excluding Mondays (other than Mondays that are a legal holiday) , and 6:00 p.m. to 2 :00 a.m. , Friday and Saturday, except while the Property is untenantable by reason of fire or other casualty or while a reasonable person would determine that it would be impractical to open the Property for business due to other calamities, such as flooding or an earthquake that make use of the public streets burdensome. Subject to the prior approval of the Agency, which approval shall not be unreasonably withheld, Declarant may close the Property for up to sixty (60) days for the purpose of refurbishing or redecorating the Property. Declarant further agrees to have its window displays, exterior signs and exterior lights adequately illuminated during said times . Declarant shall maintain an adequate stock of supplies and trade fixtures necessary to operate the Property for the purposes specified herein and shall maintain adequate personnel for the efficient serving of its customers. Declarant shall not lower the quality of its food or change the quality of its business without the consent of the Agency. 1.3 Live Entertainment. So long as either ( i ) the Property is operated as Chillers or is leased to Dirk, Hill and Gary' s Five, Inc. and not sublet to a -third party or ( ii ) the Security Agreement, as such term is defined in the OPA, -3- remains in effect, whichever is longer, Declarant shall provide live entertainment at the Property which is consistent with the use of the Property as a restaurant and bar for a minimum of three ( 3) hours each evening that the Property is open for business. Live entertainment may include live music', dancing, comedy acts, live theater , bathing suit contests or the broadcasting of sporting events (provided that said broadcasting shall not exceed two nights per week) . The following activities shall be prohibited: mud or oil wrestling, wet t-shirt contests, nude or topless dancing or any other use which the Agency may reasonably consider to be pornographic, sexually explicit, lewd, obscene, licentious or contrary to public morals and/or decency. 1. 4 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 Property and all related on-site improvements and landscaping thereon at its sole cost and expense, including, without limitation, buildings, parking areas, lighting, signs . and walls, in a first class condition and repair, free of rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction over the Property. Such maintenance and repair shall include, but not be limited to, the following: ( i) sweeping and trash removal; ( ii) the care and replacement of all shrubbery, plantings, and other landscaping in a healthy condition; 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 Property in such a manner as to avoid the reasonable determination of a duly authorized official of the Agency or City that a public nuisance has been created by the absence of adequate maintenance such as to be detrimental to the public health, safety or general welfare or that such a condition of deterioration or disrepair causes appreciable harm or,- is materially detrimental to property or improvements within one thousand (1,000) feet of such portion of the Property. 1.5 Parking and Driveways . The driveways and traffic aisles on the Property shall be kept clear and unobstructed at all times except as is necessary for ( i) construction or excavation on the Property and ( ii) activities to prevent a public dedication of the Property or, the accrual of prescriptive rights over the Property. No vehicles or other -4- obstruction shall project into any of such driveways or traffic aisles. Declarant shall use its best efforts to insure that delivery and service vehicles with business on the Property will park solely on the Property and not park on public streets or adjacent property. 1 . 6 Compliance With Ordinances. 1. 6.1 Declarant shall comply with all ordinances, regulations and standards of the City and Agency applicable to the Property. 1 . 6 . 2 Declarant shall provide any proposed tenants of any portion of the Property with a copy of the conditions to approval of the Site Plan and this Regulatory Agreement. All lease agreements shall be in writing and shall contain provisions which make compliance with the conditions of the Site Plan and this Regulatory Agreement and the requirements of the City relating to signs, permits and business licenses express covenants of the Lease. 1 . 6 . 3 Declarant shall comply with all rules and regulations of any assessment district of the City with jurisdiction over the Property. 1.7 Nondiscrimination. 1 .7.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof, nor shall Declarant, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, or any part thereof. 1.7 .2 Declarant shall not restrict the rental, sale or lease of any portion of the Property on the basis of race, color, creed, religion, sex, marital status, ancestry or national origin of any person. Any and all agreements relating to the rental, sale or lease of the Site, or any portion thereof, and shall contain the following nondiscrimination and nonsegregation clauses (or clauses substantially similar thereto) : 1.7. 2 .1 Clause for Deeds. The following language shall appear in deeds: -5- "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color , creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself, or any persons claiming under or through him or her, establish or permit any such practice or prac- tices 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. " 1.7 . 2 .2 Clause for Leases . The following language shall appear in leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her , and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her , establish or permit any such practice or prac- tices 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. " 1.7 . 2.3 Clause for Contracts. The following language shall appear in contracts: -6- "There shall be no discrimination against or segregation of any persons or group of persons on account of race, color , creed, religion, sex, marital status, ancestry or national origin in the sale, lease, transfer , use, occupancy, tenure or enjoyment of land, nor shall the transferee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number , use or occupancy of tenants, lessees, subtenants, sublessees or vendees of land. " 1 .8 Outside Storage. No storage of any kind shall be permitted outside the building(s) located on the Property except for trash or other storage in any outside storage areas approved by the Agency or as required by law. Adequate trash enclosures shall be provided and screened. Locations of such areas and types of screening must be approved by the Executive Director . Gates for trash storage area shall be kept closed at all times except when in actual use. 1 . 9 Buildings and Equipment. Any construction, repair , modification or alteration of any buildings, equipment, structures or improvements on the Property shall be subject to the following restrictions: 1.9.1 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. 1.9 . 2 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. 1.9. 3 No sirens, outside paging, or any type of signalization shall be permitted, except approved alarm systems. 1.9. 4 Signs on the Property shall conform to the standards and ordinances of the City and to a uniform design theme approved by the Agency. Any signs installed on the Property shall conform to said design scheme and shall be approved by the Executive Director prior tb installation. -7- 1.9 . 5 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 Property. No light stand on any portion of the Property shall be higher than fifteen ( 15 ) feet. The design and location of any lights shall be subject to the approval of the Executive Director . 1 . 9 . 6 No fences, signs, gas pumps, or any other similar facilities shall be constructed or provided on the Property without the prior approval of the Executive Director . 1 . 10 Public Agency Rights of Access. Declarant hereby grants to the Agency, the City and other public agencies the right, at their sole risk and expense, to enter the 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 . 11 Sale or Transfer of the Property. The Declarant covenants that Declarant shall not transfer the Property or any interest therein except as provided in this Section 1 . 11. 1 . 1 . 1 Transfer Defined. As used in this Section, the term "Transfer" shall include any assignment, conveyance, transfer or lease (excluding the leasing of the Property to Chillers Corporation) of the Property, any interest therein, or the improvements thereon. A Transfer shall also include the transfer to any person or group of persons acting in concert of more than fifty percent ( 50%) ( in the aggregate) of the present ownership and/or control of any person or entity constituting Declarant or its general partners, taking all transfers into account on a cumulative basis, except transfers of such ownership or controlling 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 Declarant or its general partners or their respective shareholders . In the event any entity constituting Declarant, its successor or the constituent partners of Declarant or any successor of Declarant, is a corporation or trust, such transfer shall refer to the transfer of the issued and outstanding capital stock of such corporation or beneficial interests of such -8- trust; in the event that any entity constituting Declarant, its successor or the constituent partners of Declarant or any successor of Declarant 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 Declarant , its successor or the constituent partners of Declarant or any successor of Declarant 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 trans- fers into account on a cumulative basis . 1.11 . 2 Agency Approval of Transfer Required. During the term of this Regulatory Agreement , Declarant shall not Transfer any interest in the Site or in the improvements thereon, or consent to the assigning of a lease of the Property, or any part thereof, or consent to a subletting of the Property, directly or indirectly, voluntarily or by operation of law, without the prior written approval of Agency, which approval shall 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 Declarant, which Transfer requires Agency approval, Agency shall consider factors such as ( i) whether the completion of the Project is jeopardized; ( ii) the financial strength and capability of the proposed transferee to perform Declarant ' s obligations hereunder ; ( iii) the proposed transferee ' s experience and expertise in the rehabilitation, financing, and operating of similar projects; and ( iv) whether the proposed transferee ' s intended use of the Property fits the Agency ' s business plan of promoting tourism and quality nighttime entertainment in the downtown area of the City of Palm Springs. The parties hereto agree that the failure of the Declarant to approve a transfer for one of the reasons set forth abpve shall be Z/ deemed rea cnable 1% rment 1�8a1✓�- 9d ��-y- � sR.�.�4�-q�i..� ` ��'writt n agr by Age Y. no Transfer by Declarant of all or any portion of its interest in the Property shall be deemed to relieve Declarant or any successor party from any obligations under Declarant. In addition, no attempted Transfer 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 the obligations contained herein. -9- ARTICLE II ENFORCEMENT 2.1 Termination. No breach of this Regulatory Agreement shall entitle any party to cancel, rescind or otherwise terminate this Regulatory Agreement, 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 Regulatory Agreement, then in addition to, but not in lieu of, any of the rights or remedies the Agency and City may have to enforce the provisions hereof, the Agency and City shall have the right (i) to enforce the provisions hereof as a party hereto and as an owner of the Public Parcel, and ( ii) to withhold or revoke, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the Property or any part thereof or interests therein as to the violating person or one threatening violation. 2 .4 Failure to Perform; Lien. If any owner of the Property defaults on the performance of any of its obligations under Sections 1.4, 1 .8 or 1. 9 of this Regulatory Agreement, the Agency or City, their employees, contractors and agents may, at their sole option, and after making reasonable demand of the owner of the Property that it cure said default, enter onto the Property for the purpose of curing the default. In making an entry, the Agency or City shall -,give the owners of the Property or their representative, reasonable notice of the time and manner of said entry and said entry shall only be at such times and in such manners as is reasonably necessary to carry out this Agreement. In such event, the owner of the Property shall reimburse the Agency or City for all costs and expenses related to the curing of said default. If the Agency or City is not reimbursed for such costs by the owner of the Property within 30 days after giving notice thereof, the same shall be -10- 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 Property as well as a lien and charge, with power of sale, upon the Property. The Agency may bring an action at law against the owner of the Property to pay any such sums. In addition, the parties hereto agree that the provisions of Section 1. 2 and 1. 3 are material provisions of this Regulatory Agreement and that the Agency would not have entered into the OPA or any of the documents referred to therein without Declarant agreeing to abide by said Sections. The determination of actual damages suffered by the Agency as a result of Declarant ' s breach of Sections 1. 2 or 1. 3 would be extremely difficult or impractical to determine. In light of this fact, Declarant hereby covenants and agrees to pay Agency, as liquidated damages, an amount equal to FIVE HUNDRED DOLLARS ($500 . 00 ) for each day Declarant fails to observe the provisions of Sections 1 . 2 and/or 1. 3 commencing , ten (10) days after receipt of written notice of such breach. - If the Agency is not paid said liquidated damages within thirty ( 30) days after receipt of written notice from Agency, Declarant shall be deemed to be delinquent. Any and all delinquent amounts, together with costs and reasonable attorneys ' fees shall be a personal obligation of the owner of the Property as well as a lien and charge, with power of sale, upon the Property. The liens provided for in this Section 2 .4 may be recorded by the Agency as a Notice of Lien against the Property in the Office of the County Recorder, County of Riverside, signed and acknowledged, which Notice of Lien shall contain a statement of the unpaid amount of costs and expenses. The priority of such lien when so established against the Property shall date from the date such notice is filed of record and shall be prior and superior to any right, title, interest, lien or claim which may be or has been acquired or attached to such real property at the time of recording of such lien, but shall be junior and subordinate to matters having a priority prior to the date such notice is recorded; provided that, however, said lien shall be subordinate to any bona fide mortgage or deed of trust and any purchaser at any foreclosure or trustee' s sale under any such bona fide mortgage or deed of trust as provided in Section 3.3 below. Such lien shall be for the use and benefit of the person filing the same, and may be enforced and foreclosed in a suit or action brought in any court of competent jurisdiction. Any such lien may be enforced by the -11- Agency or City by taking either or both of the following actions concurrently or separately (and by exercising either of the remedies set forth below shall not prejudice or waive its rights to exercise the remedy) : ( i ) bring an action at law against the defaulting party personally obligated to pay such lien or ( ii) foreclose such lien in accordance with the provisions of Section 2924 of the California Civil Code applicable to the exercise of powers of sale or mortgages and deeds of trust, or any other manner permitted by California law. Upon the timely curing of any default for which such lien was recorded, the City or Agency shall record an appropriate release of such lien, and sign any other documents reasonably necessary to satisfy title insurance requirements, upon payment by the owner of the Property of a reasonable fee to cover the costs of preparing and recording such release, together with the payment of such other costs, including without limitation, reasonable attorneys fees, court costs, interest or other fees which have been incurred. ARTICLE III ENCUMBRANCES, MORTGAGE PROTECTION AND TAXES 3.1 Declarant ' s Breach Not to Default Mortgage Lien. Declarant ' s breach of any of the covenants or restrictions contained in this Regulatory Agreement or the Owner Participation Agreement shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to the Property or any part thereof or interest therein, whether or not said mortgage or deed of trust is subordinate to this Regulatory Agreement or the Owner Participation Agreement; but, unless otherwise herein provided, the terms, conditions, covenants, restrictions and reservations of this Regulatory Agreement and the Owner Participation Agreement shall be binding and effective against the holder of any such mortgage or deed of trust and any owner of any of the Property or any part thereof whose title thereto is acquired by foreclosure, trustee' s sale, or otherwise. 3. 2 Amendments or Modifications to Regulatory ,Agreement. No purported rule, regulation, modification, amendment and/or termination of this Regulatory Agreement or the Owner Participation Agreement shall be binding upon or affect the rights of any mortgagee holding a mortgage or deed of trust upon the Property that is recorded in the Office of the Riverside County Recorder prior to -the date any such rule, regulation, modification, amendment or termination is -12- recorded in such office, without the prior written consent of such mortgagee. 3 . 3 Liens Subordinate. Any monetary lien provided for herein shall be subordinate to any bona fide mortgage or deed of trust covering an ownership interest or leasehold or subleasehold estate in and to the Property and any purchaser at any foreclosure or trustee ' sale (as well as any by deed or assignment in lieu of foreclosure or trustee ' s sale) under any such mortgage or deed of trust shall take title free from any such monetary lien, but otherwise subject to the provisions hereof; provided that, after the foreclosure of any such mortgage and/or deed of trust, all other assessments provided for herein to the extent they relate to the expenses incurred subsequent to such foreclosure, assessed hereunder to the purchaser at the foreclosure sale, as owner of the Property after the date of such foreclosure sale, shall become a lien upon the Property and may be perfected and foreclosed as provided in Section 2. 4. 3 . 4 Payment of Taxes and Assessments . Declarant shall pay, when due, all real estate taxes and assessments assessed or levied against the Property. Nothing herein contained shall be deemed or prohibit Declarant from contesting the validity or amounts of any tax or assessments nor to limit the remedies available to Declarant with respect thereto. ARTICLE IV COVENANTS TO RUN WITH THE LAND 4 . 1 Covenants Running With the Land. This Regulatory Agreement is designed to create equitable servitudes and covenants appurtenant to the Public Parcel and running with the Property. Declarant hereby declares that all of the Property shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the covenants, conditions, restrictions and equitable servitudes, all of which are for the purposes of uniformly enhancing or protecting the value, attractiveness and desirability of the Property and effectuating the Redevelopment Plan. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth herein shall run with the Property and shall be binding upon all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns; shall inure to the benefit of every portion of the Public Parcel and any interest therein; shall inure to the benefit of the Agency, the City and their successors and -13- assigns and successors in interest; shall be binding upon Declarant, its successors and assigns and successors in interest; and may be enforced by the Agency and City. Agency and Declarant hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that Declarant ' s legal interest in the Property is rendered less valuable thereby. Agency and Declarant hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Property by the citizens of the City and by furthering the public purposes for which the Agency was formed. 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 Property subject to the covenants, conditions, restrictions and reservations of this Regulatory Agreement . Declarant also grants to the Agency and City the right and power to enforce the covenants, conditions, restrictions and reservations contained in this Regulatory Agreement against the Declarant and all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns. ARTICLE V TERM The covenants, conditions and restrictions contained in this Regulatory Agreement shall remain in effect for a period of ten ( 10 ) years; provided that , however , the covenants contained in Section 1. 5 shall remain in effect in perpetuity. ARTICLE VI MISCELLANEOUS 6.1 Modification. This Regulatory Agreement 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. -14- 6 . 2 Governing Law. This Regulatory Agreement 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 Regulatory Agreement 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 Regulatory Agreement 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: Zachary Franks and Marly Stone 6504 S.W. Barnes Road Portland, OR 97225 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 Regulatory Agreement 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. -15- IN WITNESS WHEREOF, the undersigned have executed this Agreement was executed as of the date first written above. d Z ARY F A K RLY NE "Declarant" ATTEST: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic By: Secretary Executive Director "Agency" ATTEST: CITY OF PALM SPRINGS, a municipal corporation By: City Clerk City Manager "City" APPROVED AS TO FORM: RUTAN & TUCKER David J. Aleshire, Agency Counsel and City Attorney -16- STATE OF CALIFORNIA ) ss . COUNTY OF ) On the °� day of Mo-rdn 1992, before me, the undersigned, a Notary Public, in and for said State and County, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as the on behalf of the CITY OF PALM SPRINGS, the municipal corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors . WITNESS my hand and official seal . Notary Public (SEAL) STATE OF C-ALI-- -R IA ) s s. COUNTY OF t�)Ut 04 YW) ) On the aj�'L_ day of MCA1rOn , 1992, before me, the undersigned, a Notary Public, in and for said State and County, personally appeared ZrACjfwyv� °2vv x {VTip�y �4)�n2 , personally known to me (or proved to' me on the ba, is of satisfactory evidence) to be the person who executed the within instrument as the Executive Director on behalf of THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, the municipal corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors. WITNESS my hand and official seal . p all , � Jk I 1IIU� Notary b` is' (SEAL) - u'�I l .' TARP Pus, COMMISSION RE *r4 •.MYt,OMMIS��.pIRE$ 0.013143a -17 STATE OF CALIFORNIA ) ss . COUNTY OF ) On the day of , 1992, before me, the undersigned, a Notary Public in and for said State and County, personally appeared ZACHARY FRANKS, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument and acknowledged to me that he executed the same. WITNESS my hand and official seal . Notary Public (SEAL) STATE OF CALIFORNIA ) ss. COUNTY OF ) On the day of , 1992, before me, the undersigned, a Notary Public in and for said State and County, personally appeared MARLY STONE, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument and acknowledged to me that she executed the same. WITNESS my hand and official seal. Notary Public (SEAL) -18- EXHIBIT "1" LEGAL DESCRIPTION OF THE PROPERTY The real property referred to is situated in the State of California, County of Riverside and is described as follows : LOTS 8 AND 17 IN BLOCK 28 OF PALM SPRINGS TRACT, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 9 , PAGE 432 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. EXHIBIT "1" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS EXHIBIT "E" SECURITY AGREEMENT As security for any and all Indebtedness (as hereinafter defined) of ZACHARY FRANKS, an individual ( "Borrower" ) , THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic, ( "Pledgor" ) hereby irrevocably and unconditionally grants to BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ( "BofA" ) a security interest in the following time deposit account and renewals or roll-overs thereof (except as limited herein) (collectively, the "Time Deposit Account" ) maintained on behalf or in the name of Pledgor by BofA' s Palm Springs Main Office #950 : Deposit Account Open or Current Maturity Number Issue Date Principal Amount Date For purposes of this Agreement, "Indebtedness" shall mean the principal amount outstanding from time to time under that certain Business Loan Agreement dated as of , 1992, executed by Borrower in favor of BofA ( "Loan" ) . Pledgor hereby represents and warrants to BofA that it owns the Time Deposit Account free and clear of any and all liens, encumbrances, or interests of any third parties other than the security interest of BofA. Prior to the maturity of the Time Deposit Account, Pledgor may, in its discretion, contact BofA' s Palm Springs Main Branch and agree upon the term for renewing or rolling- over the Time Deposit Account upon maturity; provided, however, that the term of such renewal or roll-over shall not be shorter than sixty ( 60) days unless the Indebtedness is due and payable in less time. If for any reason Pledgor and BofA do not agree to the terms of renewing or rolling-over the Time Deposit Account prior to its maturity, then Pledgor hereby instructs and authorizes BofA, upon notice to Pledgor and without affecting Pledgor ' s liability hereunder or Borrower ' s liability for the Indebtedness and for other obligations under the Business Loan Agreement to renew or roll-over upon maturity the Time Deposit Account described above at BofA' s then prevailing rate of interest for deposits in substantially similar amounts and terms ( subject to the EXHIBIT "E" TO OWNER PARTICIPATION AGREEMENT 2/383/014084-0006/58 2/4/92 r limitations hereinafter described) , for additional sixty ( 60 ) day period with the last such sixty ( 60 ) day period expiring no later than sixty ( 60) days after the due date of the Indebtedness . The foregoing authorization shall be deemed coupled with an interest of BofA and shall not be revoked without BofA' s written consent . On the maturity of each of the Time Deposit Account or on any renewal thereof , BofA shall withdraw a portion of the principal amount thereof and all interest accrued thereon and remit said amounts to Pledgor , so that the remaining principal amount does not exceed the then outstanding principal balance of the Indebtedness. Except as provided in the preceding sentence, Pledgor shall not withdraw any funds from the Time Deposit Account without BofA' s prior written consent . Upon the happening of any event constituting an event of default under the Indebtedness , BofA may, upon providing five (5) days advance written notice to Pledgor , exercise all its rights, powers and remedies over the pledged Time Deposit Account, whether matured or at any time prior to maturity, and apply the proceeds or part thereof as may be determined by BofA, against the Indebtedness then outstanding (which shall not include any amounts added to principal or unpaid interest) . Any prepayment penalty incurred as a result of any BofA action hereunder shall be charged against the funds in the Time Deposit Account prior to said funds being applied against the Indebtedness. Pledgor waives any right to require BofA to (a) proceed against any person, (b) proceed against or exhaust any collateral, or (c) pursue any other remedy in BofA' s power to obtain payment of any part of the Indebtedness; and waives any defense arising by reason of any disability or other defense of Borrower or any other person, or by reason of the cessation from any cause whatsoever of the liability of Borrower or any other person. Until all Indebtedness shall have been paid in full, Pledgor shall have no right of subrogation and waives any right to enforce any remedy which BofA now has or may hereafter have against Borrower or against any other person and waives any benefit of and any right to participate in any collateral or security whatsoever now or hereafter held by BofA. Pledgor authorizes BofA without notice or demand and without affecting Pledgor ' s liability hereunder or Borrower ' s liability under the Indebtedness, from time to time to (a) accelerate the Indebtedness upon the occurrence of a default under the Loan, (b) change the terms of the Loan, including increases or decreases in the rate of interest, subject to the -2- restrictions of the following paragraph, or (c) take and hold security, other than the Time Deposit Account , for the payment of the Indebtedness or any part thereof, and exchange, enforce, waive and release the Time Deposit Account or any such other security. BofA shall not, without the prior written consent of Pledgor renew, extend, or otherwise change the time for payment of the Indebtedness or any part thereof . Any forbearance or failure or delay by BofA in exercising any right, power or remedy hereunder shall not be deemed to be a waiver of such right , power or remedy, and any single or partial exercise thereof shall not preclude any further exercise of such rights , powers or remedies; and every right, power and remedy of BofA shall continue in full force and power and remedy of BofA shall continue in full force and effect until such right, power or remedy is specifically waived by an instrument in writing executed by BofA. In the event of any action by BofA, whether administrative, legal or otherwise, to enforce this Agreement , Pledgor agrees to pay any out-of-pocket costs and attorneys ' fees actually incurred by BofA, including the allocated fees for in-house legal services not related to monitoring services of outside counsel. This Security Agreement shall be governed by and construed under the laws of the State of California . Pledgor agrees that any legal action or proceeding with respect to this Security Agreement may be brought in the courts of the County of Riverside, State of California or in the courts of the United States for the Central District of California as BofA may elect, and hereby irrevocably submits to the personal non-exclusive jurisdiction of such courts . IN WITNESS WHEREOF, BofA and Pledgor have executed this Agreement this day of , 1992 . ZACH Y FRAN S, a individual "Borrower" [ Signatures continued on next page. ] -3- ATTEST: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic By: By: Assistant Secretary Chairman "Pledgor" APPROVED AS TO FORM RUTAN & TUCKER By: David J. Aleshire, Esq. Agency Counsel BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION By: Its: "BofA" -4- EXHIBIT "F" INDEMNITY AGREEMENT THIS INDEMNITY AGREEMENT ( "Agreement" ) is entered into this day of , 1992, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic ( "Agency" ) , and ZACHARY FRANKS and MARLY STONE, husband and wife ( "Indemnitor" ) . R E C I T A L S• A. Concurrently with the execution of this Agreement, the parties hereto entered into an Owner Participation Agreement ( "OPA" ) . Pursuant to the terms of the OPA, the Agency has agreed to deposit the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250 , 000 . 00) in a time deposit, together with renewals and rollovers thereof ( "Time Deposit" ) with Bank of America ( "Bank" ) pursuant to the terms of a Security Agreement to be executed by Agency, Bank and Indemnitor, subject to the terms, conditions and limitations described therein, which Security Agreement provides that in the event Indemnitor defaults under the terms of that certain Business Loan Agreement ( "Loan Agreement" ) by and between Indemnitor and Bank, Bank may take funds from the Time Deposit to satisfy the unpaid principal amount of the loan. B. Indemnitor desires to indemnify Agency from and against any loss Agency may suffer in the event the Bank collects any funds from the Time Deposit pursuant to the terms of the Security Agreement, all as more particularly provided herein. NOW, THEREFORE, the parties hereto agree as follows: 1.0 REPRESENTATIONS AND WARRANTIES. Indemnitor makes the following representations and warranties for the benefit of Agency as of the date this Agreement was executed: 1.1 No Violation. Indemnitor ' s undertakings pursuant to this Agreement and under the Loan Agreement do not violate any federal, state or local statute, law, regulation or ordinance or order or ruling of any court or governmental EXHIBIT "F" TO OWNER PARTICIPATION AGREEMENT 2/383/014084-0006/54 2/19/92 entity, or conflict with, or constitute a breach or default under any agreement by which Indemnitor is bound or regulated. To Indemnitor ' s knowledge, there are no claims, actions or proceedings pending or to Indemnitor ' s knowledge, threatened against Indemnitor other than those disclosed to Agency in writing . 1. 2 Financial Information. All financial information delivered to the Agency and/or the Bank fairly and accurately represents such financial condition and has been prepared in a form reasonably acceptable to the Agency and/or the Bank with accounting principles consistently applied unless otherwise noted in such information. Since the date of such statements, there has been no material adverse changes to the financial condition reflected therein. 1. 3 Accuracy. All reports, documents, instruments, information and forms of evidence delivered to the Agency and/or the Bank concerning this Agreement and the Loan Agreement, to the best of Indemnitor ' s knowledge, are accurate, correct and sufficiently complete to give the Agency and the Bank true and accurate knowledge of their subject matter , and do not contain any material misrepresentation or material omission. 1.4 Validity. This Agreement, the Loan, the Loan Agreement and the Deed of Trust (which term is hereinafter defined) are legal, valid and binding obligations of Indemnitor enforceable against Indemnitor in accordance with their respective terms. 1.5 Sufficient Proceeds. The principal amount of the loan to be made to Indemnitor pursuant to the terms of the Loan Agreement is sufficient to construct the Project, as such term is defined in the OPA. 2 .0 DEFAULT. For purposes of this Agreement, the term "Default" shall mean any of the following: (a) A default under the Loan Agreement not cured within the time period provided therein; (b) The failure of Indemnitor to remit cash to Agency in an amount equal to any funds taken by Bank from the Time Deposit within ten (10) days of written demand therefor by Agency; - -2- (c) The Bank exercises any of its rights under the Security Agreement; (d) A breach of any of the representations or warranties contained herein; and (e) Any other default under this Agreement not cured within thirty ( 30 ) days of receipt of written notice of said default by Agency. 3 . 0 INDEMNITY. Indemnitor hereby absolutely and unconditionally agrees to indemnify, protect and defend (with counsel approved by Agency) the Agency against and will hold and save the Agency harmless from any loss, claim, damage, cost, obligation or liability arising out of or in connection with a Default including, without limitation, attorneys ' fees and costs incurred or payable by Agency in connection with this Agreement or Security Agreement. Indemnitor further agrees to pay any and all expenses incurred by Agency in enforcing its rights under this Agreement. Indemnitor shall pay immediately upon Agency' s demand any amounts owing under this Agreement, together with interest from the date the indebtedness arises until paid at the rate of ten percent ( 10%) per annum. 4 . 0 DEED OF TRUST. This Agreement is secured by that certain Deed of Trust with Assignment of Rents ( "Deed of Trust" ) executed by Indemnitor of even date herewith. The amount of funds in the Time Deposit at the time of an event of Default shall be deemed to be the principal amount secured by the Deed of Trust as well as all interest and costs provided for herein. 5.0 MISCELLANEOUS. 5.1 Further Assurances. The parties hereto shall execute, acknowledge and deliver any other instruments and perform any other acts necessary, desirable or proper to carry out the purposes of this Agreement. 5 . 2 No Third Parties Benefited. No person other than Agency and Indemnitor and their permitted successors and assigns shall have any right of action under this Agreement. -3- 5 . 3 California Law. This Agreement shall be construed and interpreted both as to validity and to performance by the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Indemnitor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 5. 4 Attorneys ' Fees . If either party to this Agreement is required to initiate or defend or be made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys ' fees. Attorneys ' fees shall include attorneys ' fees on any appeal, and in addition, a party entitled to attorneys ' 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. 5 . 5 Rights and Remedies are Cumulative. The rights and remedies of the parties under this Agreement are cumulative and the exercise of either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 5.6 Nonliability of Agency officers and Employees. No officer or employee of the Agency shall be personally liable to Indemnitor, or any successor-in-interest, in the event of any default or breach by the Agency or for any amount which may become due to Indemnitor or to its successors or for breach of any obligation of the terms of this Agreement. 5.7 Conflict of Interest. No officer or employee of the Agency shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects his or her financial interest or the financial interest of any corporation, partnership or association in which he or she is directly or indirectly -4- interested in violation of any state statute or regulation. Indemnitor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement . 5.8 Notices. Any notice, demand, requesting, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, to the following: If to City: Community Redevelopment Agency of the City of Palm Springs, California P.O. Box 2743 Palm Springs, CA 92263 Attn: Executive Director With copy to: Rutan & Tucker P.O. Box 1950 Costa Mesa, CA 92628-1950 Attn: David J. Aleshire, Esq. If to Indemnitor : Zachary Franks c/o Arthur Rolston, Esq. 11355 West Olympic Blvd. , Suite 500 Los Angeles, CA 90064 Either party may change its address by notifying the other party of the change of address in writing. Notice shall be communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this section. 5.9 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 authorship of this Agreement or any other rule of construction which might otherwise apply. 5.10 Integration; Amendment . It is understood that there are no agreements, other than the Owner Participation Agreement, between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by mutual consent of the parties by an instrument in writing. 5.11 Severability. In the event that any one or more -5- of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless . 5 .12 Assignment. Indemnitor shall not assign Indemnitor ' s interest under this Agreement without the Agency' s prior written consent. Any assignment made without Agency' s consent shall be void. 5.13 Heirs, Successors and Assigns . The terms of this Agreement shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties . IN WITNESS WHEREOF, this Agreement was executed as of the day and year first written above. 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, Esq. "Agency" ZAC RY F NKS MARLY STOA - "Indemnitor" -6- OrderEscrol Wan No. WHEN RECORDED MAIL TO: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA 2. 0. BOX 2743 PALM SPRINGS, CALI70RNIA 92263 SPACE ABOVE THIS LINE FOR RECORDER'S USE DEED OF TRUST WITH ASSIGNMENT OF RENTS (This Deed of Trust contains an acceleration clause) This DEED OF TRUST, made this day of 1992 ,between ZACHARY FRANKS and MARLY STONE, hUSband and wife, herein called TRUSTOR, whose address is (Number and Street) (City) (State) FIRST AMERICAN TITLE INSURANCE COMPANY,a California corporation,herein called TRUSTEE, and THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic herein called BENEFICIARY, WITNESSEfH:That Trustor grants to Trustee in Trust,with Power of Sale,that property in the city of Palm springs County of Riverside State of California,described as: SEE EXHIBIT "A" ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE *sums, with interest thereon, set forth in that certain Indemnity Agreement of even date herewith between TrustO and camp£ n m•mamr strX aY,pora'eVa Trusty, arfi�,�r�,raYrb imvahadan,prshYatlrv•Yaddhu ptl•avwudven tlurenin--o Pl IwMW by s deder's «imduX ity,vnNM iM vrtm•n mna•M d nw h s of s 1 me nni had ub adinQ harnhYy anY iur nY rqM.u N ogpn,.xcepi of porn Mobs W Ire,b a•dre anY H^�dness a odlW W,a svurM hveeY.srr•Padhs d tlY maGitf•dal zpen5ad m emy nab witle„onp dw sva,immMubry au•erd PaY•tH• 700viarn ma rams,woes and Wait,Mersa(.K rea hvarver,m ma rHW,Wasrad SWady rermosnv gm m and m ed upon aw,YaW to colon and apary sucn r•m•,wuesW cafe. � Fa tM PvPoea d S•nxiM Itl paylram d nn ,Wdarmoa«nnmW nmmM,a„tl 121 the pxbn^enaol••ch a9re•medol Trvsmr Inc«porated by rafx•rtl♦a Carxama0 mama To«oE•m m•e•cunry d eih Deed d Tnat,arm bM reso•d ro ba IxoaM•bws ds•vY,atl.Tlesb mro,••W makes•ach W Y d des agrexamz,aM atlopis and a9ress ro padam std a fraud W•ad,alq r d tlw 1•ma artl pouno,a sat mM m sumivoxm A W n u muhWty raese eW sam nd Y oils term•calf Ixovoionz sal ION in suaMaion B d des fmtltda desd dwt t•atM m Qabs Couxy Aupue 1],t9as,vd in Y Mar courdes AupY te,198a,In e,e tack a,d a15,•age dot5md Recartls m m•otrw d M•county mcortles d ma Maass uava sae ptopedY n IanW.,M•tl hemw pF Wel•,e,ume d sum atom,.,unMy: COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE Abmsds 1220 SSe Klnp aye 713 placer I= RE Slam 3e le] Alpine 3 ln0TI lase 437 110 Plumes iN 1307 Slabyou 50e Tat Amaay in as Wren 1st W Rhnnlde 3T7e 347 Solsno 12V •21 Buse 1330 513 Lae Angeles 1PNT0 oa Saervnardo Safe 124 Son. 2N7 e27 Calaverae iN 336 Nissan, all in ssn Banco 300 405 Stanislaw 1970 N Coluy m 3e/ Main last in San Bemssilnu M13 IN Suit" SN Sa3 Cabo Caw ease 1 Merlposs N 443 San Fmcisw AiOe SN Tehams e57 in Del Nab 101 549 Mandoehm NT N can 3oastn 2056 2N Trimly 1N Sa5 El Daedo TOe an Merced less TN San Luis Oblepo 1311 1T Tuhn 25N 1N Psalm SOE•L 523 Madx let N swidaas ant 175 Tirobmm IT 160 Gym ass N Nab N 302 Saab Nbala 20114 Nl VeYun 250] "I Humbobt N1 N Madan, 357 23e Sarin Clan NN afe Yob TN 15 14M list 101 NW, 704 Tat !cast Crru men NT YN 3111111 503 Inye IN M Hewes 393 as Shasta N0 533 Kam 370 ass Or-W 710 1s san Us" 5911IEt a Beek 1afe,Paps 1NTTI dW cue b rd er,d the Fa„asa h•rYp,xM rwad m ei•popaN et11se desrnb•tl.S•d evarnve•,1•nr,eW paA•aa owanq In••d eWim•an A end 0,Idmnrr m Y mfaares aod prated an er raw••z,tle Hredl ve W ea xstl,b rYx•ma m•r•ro,Itmp«Y•d hvvn and n,ada•p•n d mh Desa d TnY M Y Purpaes es hsh a n M fast Y ka,paf israY,.aid a•r,e5duv mry duty br•w•n,vs npvdb9 Sr abapYm•arYtl h•nby.Pra�ld•d tle dtv9a Nweb rtua M•xu•tl m•Mau mum alb,M byy TIY ubarb'"lhabn neuKe dW.apy d any rmlka of deftaA e,d vry noble d•w nvvabv b m•esd m ism Y,s address helNnb•lpre zu fad, I Signature of Trustor STATE OF CALIFORNIA Is+. COUNTY OF _ I On bemre me, ZACHARY FRANKS t•ARLY STONE Personsay Wpu d ZACHARY FRANKS and MARLY SOW pensaWy knovm b rM(a proved to me on the bash of sa0sbcts" av,denN)b be dal Wson(a)vmow name(s)is/are subscnFed to the wMHn instrument and adafowlad0ad to me that helaheMey executed the same in haTtsrMesauUbrl capsaryCes)ande,albyhis/herthe,rspnatum(s)on _ the Instrument the pxsonLs)or the entry upon behalf olwhKh the pelson(s) acted,executed the somument. WITNESS my hand and aleaal seal. Signal re_ rtms aua mr onnm noiv.at scan 1192(Rev 1 91) EXHIBIT 11G1r TO OWNER PARTICIPATION AGREEMENT EXHIBIT "A" Legal Description of Property All that certain real property located in the City of Palm Springs, County of Riverside, State of California, and more particularly described as follows : LOTS 8 AND 17 IN BLOCK 28 OF PALM SPRINGS TRACT, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 9 , PAGE 432 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. 2/383/014084-0006/56 3/4/92 EXHIBIT "H" FREE RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS 3200 East Tahquitz-Canyon Way Palm Springs , CA 92262 Attn: Executive Director _,,,(°,r),-�, ;`, ;,;. , (Space Above This Line For Recorder ' s Office Use Only) CERTIFICATE OF COMPLETION WHEREAS, by an Owner Participation Agreement (hereinafter referred to as the "Agreement" ) dated , 199 , by and between THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS (hereinafter referred to as "Agency" ) , and ZACHARY FRANKS and MARLY STONE, husband and wife (hereinafter referred to as "Participant" ) , Participant has redeveloped the real property ( the "Site" ) , legally described on Exhibit 1 attached hereto and incorporated herein by reference, according to the terms and conditions of said Agreement; and WHEREAS, pursuant to Section 3 .7 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 WHEREAS, the Agreement provided for certain covenants to run with the land, which covenants were- incorporated in a EXHIBIT "H" TO OWNER PARTICIPATION AGREEMENT 2/383/014084-0006/53 3/3/92 Regulatory Agreement and Declaration of Covenants and Restrictions (the "Regulatory Agreement" ) ; 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 shall not constitute evidence of Participant ' s compliance with the Regulatory Agreement, 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_. THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic By Executive Director -2- M Exhibit 1 LEGAL DESCRIPTION OF SITE The real property referred to is situated in the State of California, County of Riverside and is described as follows : LOTS 8 AND 17 IN BLOCK 28 OF PALM SPRINGS TRACT, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 9, PAGE 432 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. Exhibit 1 TO CERTIFICATE OF COMPLETION AGREEMENT #294C Part 2 of Declar of Covenants & Restri RE: Chiller's Restaurant Zachary Franks & Marly Stone G R836, 12-18-91 T IFREE RECORDING REQUESTED BY N AND GWHEN RECORDED MAIL TO: M The Community Redevelopment G 8 Agency of the City of Palm Springs N a. 3200 East Tahquitz-McCallum way a Q s Palm Springs , CA 92262 �y Attn: Executive Director ^V� (For Recorder ' s Use Onlvl � REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND RESTRICTIONS THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND RESTRICTIONS ( "Regulatory Agreement" ) is made this day of , 1992 by and among ZACHARY FRANKS and MARLY STONE, husband and wife ( "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. Declarant is the owner of that certain real property located in the City of Palm Springs, County of Riverside, State of California more particularly described on Exhibit "1" attached hereto and incorporated herein by reference ( "Property" ) . B. The Agency or 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 and/or City ' s interests in real property most directly affected by this Regulatory Agreement is depicted in Exhibit "2" attached hereto and incorporated herein by reference ( "Public Parcel" ) . C. The Property is within the Palm Springs Central District Redevelopment Project Area ( "Project Area" ) 2/383/014084-0006/52 3/26/92 Y^ 4 ' } 0 120098 specifically described in the Redevelopment Plan for the Project Area which was approved and adopted by the City Council of the City of Palm Springs by Ordinance No. 952 on July 11, 1973 and as subsequently amended by means of ordinances of the City Council . D. The purpose of the Redevelopment Plan is to remedy and alleviate blighted conditions associated with undeveloped and unproductive land, inadequate street and circulation systems, unsuitable land mixes, inadequate or total lack of public street improvements, and the existence of substandard and incompatible uses and structures . The redevelopment and restriction of the Property in accordance with the Redevelopment Plan will promote the utility and value of the Property and of the Project Area, for the benefit of its future owners and the entire city. E. Pursuant to the Redevelopment Plan, Declarant has entered into an Owner Participation Agreement with the Agency which Agreement places certain restrictions on the Property. Pursuant to the City ' s development requirements, the City has approved or will approve a site plan for the development of the Property ( "Site Plan" ) , which plan places certain restrictions on the Property. Said Redevelopment Plan, Owner Participation Agreement and Site Plan ( i ) are on file and may be reviewed in the office of the executive director of the Agency ( "Executive Director" ) , in the Palm Springs City Hall and ( ii ) are each incorporated herein by this reference and made a part hereof as though fully set forth herein. 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 Property subject to the covenants, conditions, restrictions, and reservations set forth in this Regulatory Agreement 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 Property and effectuating the Redevelopment Plan. Such covenants, conditions and restrictions shall run to the benefit of the Public Parcel and bind the Property, the Declarant and its successors and assigns . -2- 120098 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 Property shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied subject to the covenants and restrictions hereinafter set forth, which covenants are established expressly and exclusively for the use and benefit of the Agency and City. TERMS AND CONDITIONS ARTICLE I COVENANTS, CONDITIONS AND RESTRICTIONS 1 . 1 General . The Property shall be developed and used only as permitted by the restrictions contained in this Regulatory Agreement, the Site Plan, Redevelopment Plan and Owner Participation Agreement . 1 . 2 Continuous Operation. Declarant shall continuously use the Property as a restaurant and bar providing live entertainment as described in Section 1. 3 below at a minimum during the hours of 6 :00 p.m. to midnight, Sunday through Thursday excluding Mondays (other than Mondays that are a legal holiday) , and 6:00 p.m. to 2 : 00 a.m. , Friday and Saturday, except while the Property is untenantable by reason of fire or other casualty or while a reasonable person would determine that it would be impractical to open the Property for business due to other calamities, such as flooding or an earthquake that make use of the public streets burdensome . Subject to the prior approval of the Agency, which approval shall not be unreasonably withheld, Declarant may close the Property for up to sixty (60) days for the purpose of refurbishing or redecorating the Property. Declarant further agrees to have its window displays, exterior signs and exterior lights adequately illuminated during said times . Declarant shall maintain an adequate stock of supplies and trade fixtures necessary to operate the Property for the purposes specified herein and shall maintain adequate personnel for the efficient serving of its customers . Declarant shall not lower the quality of its food or change the quality of its business without the consent of the Agency. 1 . 3 Live Entertainment. So long as either ( i ) the Property is operated as Chillers or is leased to Dirk, Sill and Gary' s Five, Inc. and not sublet to a -third party or ( ii ) the Security Agreement, as such term is defined in the OPA, -3- 120098 remains in effect, whichever is longer , Declarant shall provide live entertainment at the Property which is consistent with the use of the Property as a restaurant and bar for a minimum of three ( 3) hours each evening that the Property is open for business . Live entertainment may include live music, dancing, comedy acts, live theater, bathing suit contests or the broadcasting of sporting events (provided that said broadcasting shall not exceed two nights per week) . The following activities shall be prohibited: mud or oil wrestling, wet t-shirt contests, nude or topless dancing or any other use which the Agency may reasonably consider to be pornographic, sexually explicit , lewd, obscene, licentious or contrary to public morals and/or decency. 1. 4 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 Property and all related on-site improvements and landscaping thereon at its sole cost and expense, including, without limitation, buildings, parking areas, lighting, signs and walls, in a first class condition and repair, free of rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction over the Property. Such maintenance and repair shall include, but not be limited to, the following: (i) sweeping and trash removal; (ii ) the care and replacement of all shrubbery, plantings, and other landscaping in a healthy condition; 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 Property in such a manner as to avoid the reasonable determination of a duly authorized official of the Agency or City that a public nuisance has been created by the absence of adequate maintenance such as to be detrimental to the public health, safety or general welfare or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within one thousand (1,000) feet of such portion of the Property. 1. 5 Parking and Driveways . The driveways and traffic aisles on the Property shall be kept clear and unobstructed at all times except as is necessary for ( i) construction or excavation on the Property and (ii ) activities to prevent a public dedication of the Property or the accrual of prescriptive rights over the Property. No vehicles or other -4- 12�09g obstruction shall project into any of such driveways or traffic aisles . Declarant shall use its best efforts to insure that delivery and service vehicles with business on the Property will park solely on the Property and not park on public streets or adjacent property. 1 . 6 Compliance With Ordinances . 1 . 6 .1 Declarant shall comply with all ordinances, regulations and standards of the City and Agency applicable to the Property. 1 . 6 . 2 Declarant shall provide any proposed tenants of any portion of the Property with a copy of the conditions to approval of the Site Plan and this Regulatory Agreement. All lease agreements shall be in writing and shall contain provisions which make compliance with the conditions of the Site Plan and this Regulatory Agreement and the requirements of the City relating to signs, permits and business licenses express covenants of the Lease. 1 . 6 . 3 Declarant shall comply with all rules and regulations of any assessment district of the City with jurisdiction over the Property. 1 . 7 Nondiscrimination. 1 .7.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer , use, occupancy, tenure or enjoyment of the Property, or any part thereof, nor shall Declarant, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number , use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, or any part thereof. 1.7 . 2 Declarant shall not restrict the rental, sale or lease of any portion of the Property on the basis of race, color, creed, religion, sex, marital status, ancestry or national origin of any person. Any and all agreements relating to the rental, sale or lease of the Site, or any portion thereof, and shall contain the following nondiscrimination and nonsegregation clauses (or clauses substantially similar thereto) : 1.7 . 2 . 1 Clause for Deeds . The following language shall appear in deeds: -5- "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself, or any persons claiming under or through him or her, establish or permit any such practice or prac- tices 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. " 1 . 7 . 2 . 2 Clause for Leases . The following language shall appear in leases : "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her , and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her , establish or permit any such practice or prac- tices 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. " 1 .7 . 2 . 3 Clause for Contracts . The following language shall appear in contracts : -6- 0 120098 "There shall be no discrimination against or segregation of any persons or group of persons on account of race, color , creed, religion, sex, marital status, ancestry or national origin in the sale, lease, transfer , use, occupancy, tenure or enjoyment of land, nor shall the transferee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number , use or occupancy of tenants, lessees, subtenants, sublessees or vendees of land. " 1 .8 Outside Storage. No storage of any kind shall be permitted outside the building(s) located on the Property except for trash or other storage in any outside storage areas approved by the Agency or as required by law. Adequate trash enclosures shall be provided and screened. Locations of such areas and types of screening must be approved by the Executive Director . Gates for trash storage area shall be kept closed at all times except when in actual use. 1 . 9 Buildings and Equipment. Any construction, repair, modification or alteration of any buildings, equipment, structures or improvements on the Property shall be subject to the following restrictions: 1 . 9 . 1 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. 1.9 . 2 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. 1. 9 . 3 No sirens, outside paging, or any type of signalization shall be permitted, except approved alarm systems. 1 . 9 . 4 Signs on the Property shall conform to the standards and ordinances of the City and to a uniform design theme approved by the Agency. Any signs installed on the Property shall conform to said design scheme and shall be approved by the Executive Director prior to installation. -7- 120098 1 . 9 . 5 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 Property. No light stand on any portion of the Property shall be higher than fifteen ( 15 ) feet . The design and location of any lights shall be subject to the approval of the Executive Director . 1 . 9 . 6 No fences, signs , gas pumps, or any other similar facilities shall be constructed or provided on the Property without the prior approval of the Executive Director . 1 . 10 Public Agency Rights of Access . Declarant hereby grants to the Agency, the City and other public agencies the right, at their sole risk and expense, to enter the 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 . 11 Sale or Transfer of the Property. The Declarant covenants that Declarant shall not transfer the Property or any interest therein except as provided in this Section 1 .11 . 1 .1. 1 Transfer Defined. As used in this Section, the term "Transfer" shall include any assignment, conveyance, transfer or lease (excluding the leasing of the Property to Chillers Corporation) of the Property, any interest therein, or the improvements thereon. A Transfer shall also include the transfer to any person or group of persons acting in concert of more than fifty percent ( 50% ) ( in the aggregate) of the present ownership and/or control of any person or entity constituting Declarant or its general partners, taking all transfers into account on a cumulative basis , except transfers of such ownership or controlling 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 Declarant or its general partners or their respective shareholders . In the event any entity constituting Declarant, its successor or the constituent partners of Declarant or any successor of Declarant, is a corporation or trust, such transfer shall refer to the transfer of the issued and outstanding capital stock of such corporation or beneficial interests of such -8- 0 0 120098 trust; in the event that any entity constituting Declarant, its successor or the constituent partners of Declarant or any successor of Declarant 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 Declarant, its successor or the constituent partners of Declarant or any successor of Declarant 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 trans- fers into account on a cumulative basis. 1 .11 . 2 Agency Approval of Transfer Required. During the term of this Regulatory Agreement, Declarant shall not Transfer any interest in the Site or in the improvements thereon, or consent to the assigning of a lease of the Property, or any part thereof, or consent to a subletting of the Property, directly or indirectly, voluntarily or by operation of law, without the prior written approval of Agency, which approval shall 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 Declarant, which Transfer requires Agency approval, Agency shall consider factors such as ( i ) whether the completion of the Project is jeopardized; ( ii) the financial strength and capability of the proposed transferee to perform Declarant ' s obligations hereunder ; ( iii) the proposed transferee ' s experience and expertise in the rehabilitation, financing, and operating of similar projects; and ( iv) whether the proposed transferee ' s intended use of the Property fits the Agency ' s business plan of promoting tourism and quality nighttime entertainment in the downtown area of the City of Palm Springs . The parties hereto agree that the failure of the Declarant to approve a Ztransfer for one of the reasons set forth above sha 1 be d eme eea soncalbl n`Ehe aAence 6 spe if c w itten agreement b Agency,� no Transfer by Declarant of all or any portion of its interest in the Property shall be deemed to relieve Declarant or any successor party from any obligations under Declarant . In addition, no attempted Transfer 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 the obligations contained herein. -9- 120098 ARTICLE II ENFORCEMENT 2 . 1 Termination. No breach of this Regulatory Agreement shall entitle any party to cancel, rescind or otherwise terminate this Regulatory Agreement, 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 Regulatory Agreement, then in addition to., but not in lieu of, any of the rights or remedies the Agency and City may have to enforce the provisions hereof, the Agency and City shall have the right ( i) to enforce the provisions hereof as a party hereto and as an owner of the Public Parcel, and ( ii) to withhold or revoke, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the Property or any part thereof or interests therein as to the violating person or one threatening violation. 2 . 4 Failure to Perform; Lien. If any owner of the Property defaults on the performance of any of its obligations under Sections 1.4, 1.8 or 1.9 of this Regulatory Agreement, the Agency or City, their employees, contractors and agents may, at their sole option, and after making reasonable demand of the owner of the Property that it cure said default, enter onto the Property for the purpose of curing the default. In making an entry, the Agency or City shall give the owners of the Property or their representative, reasonable notice of the time and manner of said entry and said entry shall only be at such times and in such manners as is reasonably necessary to carry out this Agreement. In such event, the owner of the Property shall reimburse the Agency or City for all costs and expenses related to the curing of said default. If the Agency or City is not reimbursed for such costs by the owner of the Property within 30 days after giving notice thereof, the same shall be -10- 120098 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 Property as well as a lien and charge, with power of sale, upon the Property. The Agency may bring an action at law against the owner of the Property to pay any such sums . In addition, the parties hereto agree that the provisions of Section 1 . 2 and 1.3 are material provisions of this Regulatory Agreement and that the Agency would not have entered into the OPA or any of the documents referred to therein without Declarant agreeing to abide by said Sections . The determination of actual damages suffered by the Agency as a result of Declarant ' s breach of Sections 1. 2 or 1. 3 would be extremely difficult or impractical to determine. In light of this fact, Declarant hereby covenants and agrees to pay Agency, as liquidated damages , an amount equal to FIVE HUNDRED DOLLARS ($500 . 00 ) for each day Declarant fails to observe the provisions of Sections 1 . 2 and/or 1 . 3 commencing ten (10) days after receipt of written notice of such breach. If the Agency is not paid said liquidated damages within thirty ( 30 ) days after receipt of written notice from Agency, Declarant shall be deemed to be delinquent. Any and all delinquent amounts, together with costs and reasonable attorneys ' fees shall be a personal obligation of the owner of the Property as well as a lien and charge, with power of sale, upon the Property. The liens provided for in this Section 2. 4 may be recorded by the Agency as a Notice of Lien against the Property in the Office of the County Recorder, County of Riverside, signed and acknowledged, which Notice of Lien shall contain a statement of the unpaid amount of costs and expenses. The priority of such lien when so established against the Property shall date from the date such notice is filed of record and shall be prior and superior to any right, title, interest, lien or claim which may be or has been acquired or attached to such real property at the time of recording of such lien, but shall be junior and subordinate to matters having a priority prior to the date such notice is recorded; provided that, however , said lien shall be subordinate to any bona fide mortgage or deed of trust and any purchaser at any foreclosure or trustee ' s sale under any such bona fide mortgage or deed of trust as provided in Section 3.3 below. Such lien shall be for the use and benefit of the person filing the same, and may be enforced and foreclosed in a suit or action brought in any court of competent jurisdiction. Any such lien may be enforced by the -11- 120098 Agency or City by taking either or both of the following actions concurrently or separately (and by exercising either of the remedies set forth below shall not prejudice or waive its rights to exercise the remedy) : ( i) bring an action at law against the defaulting party personally obligated to pay such lien or ( ii) foreclose such lien in accordance with the provisions of Section 2924 of the California Civil Code applicable to the exercise of powers of sale or mortgages and deeds of trust, or any other manner permitted by California law. Upon the timely curing of any default for which such lien was recorded, the City or Agency shall record an appropriate release of such lien, and sign any other documents reasonably necessary to satisfy title insurance requirements, upon payment by the owner of the Property of a reasonable fee to cover the costs of preparing and recording such release, together with the payment of such other costs, including without limitation, reasonable attorneys fees , court costs, interest or other fees which have been incurred. ARTICLE III ENCUMBRANCES, MORTGAGE PROTECTION AND TAXES 3 .1 Declarant ' s Breach Not to Default Mortgage Lien. Declarant ' s breach of any of the covenants or restrictions contained in this Regulatory Agreement or the Owner Participation Agreement shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to the Property or any part thereof or interest therein, whether or not said mortgage or deed of trust is subordinate to this Regulatory Agreement or the Owner Participation Agreement; but, unless otherwise herein provided, the terms, conditions, covenants, restrictions and reservations of this Regulatory Agreement and the Owner Participation Agreement shall be binding and effective against the holder of any such mortgage or deed of trust and any owner of any of the Property or any part thereof whose title thereto is acquired by foreclosure, trustee ' s sale, or otherwise. 3 .2 Amendments or Modifications to Regulatory Agreement. No purported rule, regulation, modification, amendment and/or termination of this Regulatory Agreement or the Owner Participation Agreement shall be binding upon or affect the rights of any mortgagee holding a mortgage or deed of trust upon the Property that is recorded in the Office of the Riverside County Recorder prior to -the date any such rule, regulation, modification, amendment or termination is -12- 120098 recorded in such office, without the prior written consent of such mortgagee. 3 . 3 Liens Subordinate . Any monetary lien provided for herein shall be subordinate to any bona fide mortgage or deed of trust covering an ownership interest or leasehold or subleasehold estate in and to the Property and any purchaser at any foreclosure or trustee ' sale (as well as any by deed or assignment in lieu of foreclosure or trustee ' s sale) under any such mortgage or deed of trust shall take title free from any such monetary lien, but otherwise subject to the provisions hereof; provided that, after the foreclosure of any such mortgage and/or deed of trust, all other assessments provided for herein to the extent they relate to the expenses incurred subsequent to such foreclosure, assessed hereunder to the purchaser at the foreclosure sale, as owner of the Property after the date of such foreclosure sale, shall become a lien upon the Property and may be perfected and foreclosed as provided in Section 2. 4 . 3 . 4 Payment of Taxes and Assessments . Declarant shall pay, when due, all real estate taxes and assessments assessed or levied against the Property. Nothing herein contained shall be deemed or prohibit Declarant from contesting the validity or amounts of any tax or assessments nor to limit the remedies available to Declarant with respect thereto. ARTICLE IV COVENANTS TO RUN WITH THE LAND 4.1 Covenants Running With the Land. This Regulatory Agreement is designed to create equitable servitudes and covenants appurtenant to the Public Parcel and running with the Property. Declarant hereby declares that all of the Property shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the covenants, conditions, restrictions and equitable servitudes, all of which are for the purposes of uniformly enhancing or protecting the value, attractiveness and desirability of the Property and effectuating the Redevelopment Plan. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth herein shall run with the Property and shall be binding upon all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns; shall inure to the benefit of every portion of the Public Parcel and any interest therein; shall inure to the benefit of the Agency, the City and their successors and -13- 120098 assigns and successors in interest; shall be binding upon Declarant, its successors and assigns and successors in interest; and may be enforced by the Agency and City. Agency and Declarant hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that Declarant ' s legal interest in the Property is rendered less valuable thereby. Agency and Declarant hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Property by the citizens of the City and by furthering the public purposes for which the Agency was formed. 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 Property subject to the covenants, conditions, restrictions and reservations of this Regulatory Agreement . Declarant also grants to the Agency and City the right and power to enforce the covenants, conditions, restrictions and reservations contained in this Regulatory Agreement against the Declarant and all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns . ARTICLE V TERM The covenants , conditions and restrictions contained in this Regulatory Agreement shall remain in effect for a period of ten ( 10 ) years; provided that, however, the covenants contained in Section 1 . 5 shall remain in effect in perpetuity. ARTICLE VI MISCELLANEOUS 6 .1 Modification. This Regulatory Agreement 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. -14- 12�?Q9� 6 . 2 Governing Law. This Regulatory Agreement 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 Regulatory Agreement 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 Regulatory Agreement 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. Sox 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: Zachary Franks and Marly Stone 6504 S.W. Barnes Road Portland, OR 97225 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 Regulatory Agreement 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 . -15- 120098 IN WITNESS WHEREOF, the undersigned have executed this Agreement was executed as of the date first written above. ZAC ARY F KS MARLY ST "Declarant" ATTEST: THE COMMUNITY REDEVELOPMENT AGENCY OF PALM SPRINGS CALIFORNIA, p is body, rp ate and o ' �c By S e c r e Execut ' ve Direc or "Agency" ATTEST: CITY GS, a mun' cipal corpo do A By: City C k C y Manager "City" APPROVED AS TO FORM: RUTAN & TUCKER APPROVED BY THE COMMUNITY REDEV. AGENCY BY RES. NO. David Aleshire, Agency ounsel and City Attorney -16- State of Californ 0 , SS. F 1200198 County of Riverside On this 1st day of April, 1992 , before me, ELAINE L. SCHWARTZ, the undersigned Notary Public, personally appeared *** JUDITH SUMICH***, personally known to me to be the person who executed the within instrument as CITY CLERK on behalf of the City of Palm Springs, a municipal corporation, and acknowledged to me that the corporation executed it. q OFFICIAL.NOTARY SEAL qB6 p rt\QD WITNESS my hand and official seal. ELAINE L.SCHWARTZNolary Public—California �/J 'O RIVERSIDE COUNTY L�c_Pi .rf My Comm Expires FEB 03,1995 Notary Public w- State of California SS. County of Riverside 120098 On this 1st day of April, 1992 , before me, ELAINE L. SCHWARTZ, the undersigned Notary Public, personally appeared ***JUDITH SUMICH***, personally known to me to be the person who executed the within instrument as Assistant Secretary or on behalf of the Community Redevelopment Agency of the City of Palm Springs, and acknowledged to me that the corporation executed it. OFFICIAL NOTARY SEAL WITNESS my hand and official seal. ELAINEL SCHWARTZ Notary Public—California RIVERSIDE COUI\lTy ' My Comm E%plres FEB 03 1995 b Notary Public � e 120098 STATE OF CALIFORNIA ) j ss . COUNTY OF On the /'-day of A� , 1992 , before me, the undersigned, a Notary 'Publlr in an r said State and County, personally appeared t4l/ 12J f personally known to me a a —� sue} sfactor v �cz demce) to , be the person wh�lo—executed^ the within instrument as the on behalf of the CITY OF PALM SPRINGS, ,�Ihe munigfpal corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors . WITNESS my hand and official seal. j !: OFFICIAL NOTARY SEAL J n• _ ELAINE L.SCHWARTZ Notary Pll M III ; p Notary Public—California (SEAL) RIVERSIDE COUNTY My Comm Expires FEB 03,1995 STATE OF CALIFORNIA ) ' ) ss. COUNTY OF �"� On the _��—day of u� 1992, before - me, the undersigned, a Notary Publc, in &d for said State and County, personally appeared G lJ 72ni�c�J personally known to me •��-���cu ` ,atis-f- to be the person who executed the within instrument as the Executive Director on behalf of THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, the municipal corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors . WITNESS my hand and official seal . OFFICIAL NOTARY SEAL Pi ELAINE L.SCHWARTZN tary Pub Notary Public—California (SEAL) RIVERSIDE COUNTY My Comm.Expires FEB 03,1995 -17- b r� 120098 STATE OF CAL7F6R-N4A ) 1__I,,,,,, I,� ) s s. COUNTY OF Mkd-FIcOY`u� 1 ) On the �& day of 1992, before me, the undersigned, a Notary Public in and for said State and County, personally appeared ZACHARY FRANKS, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument and acknowledged to me that he executed the same. WITNESS my hand and official seal. OFFICIAILSE"'L N SNERYLE OREOON Notar tic ( SE Nyp OOMM SSION Np.013143 MYCOMM15S1pN EXPIRES FEB.11' STATE OF 'eAtIT@RTSA ) COUNTY OF Mw\f,► ) On the % day of , 1992, before ; me, the undersigned, a Notary Public in and for said State and County, personally appeared MARLY STONE, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument and acknowledged to me that she executed the same. WITNESS my hand and official seal . L. SEAL SkER OFFI LMARTIN Notar ll NpTARYPU blic (SEA a 8LIO-OREGON COMMISSION NOA1314 i,AW MY COMMISSION EXPIRES FEB. -18- 120098 EXHIBIT "1" LEGAL DESCRIPTION OF THE PROPERTY The real property referred to is situated in the State of California, County of Riverside and is described as follows : LOTS 8 AND 17 IN BLOCK 28 OF PALM SPRINGS TRACT, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN HOOK 9, PAGE 432 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. EXHIBIT "1" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS c: 0 -� 573 - /sy 1 T T 1 I — —}— ARENAS— — — ROAD — —I- - — — Y--SS /4575-1/7Y+ —S0 31ifJO¢s9y0.0;�546 s o©=>O:3.�C.fEro8aXA`5-c3 6tiCN^-�. .Fief/�II lrI°,2IXaM.a.♦-rr8++rz4YY-/.ss;s--5�b O63/.' ' e a�9 Q aIX.,Zr-2 3 I z+ 5 2 230//-008 cc `K rts.:r r+.7f F 3-_mNmti. � 4. -II s _ SioT I� 50086 Q s.o1 r 22 rt: — — 24 /52 7 P /53 2 3l 4 7 / 23 Z.9795 20 mOI y rn7 _ 3 22 -9 0 3p�/ � 3ou3� "X ':- - -I 13.a45� 4. /8 _ 2/ /0 b .. :7.00Act 7It 0.98A=Nl. - f I I , " 3.O t 73 F_UDV.FOLKcZS 20 11-K 8 37/¢ /7 J Q . J.0L 7S c J .3.0 '78 c Q IM71111 ,Ysdf' 19 /2 /4 O � _ � q 3.888 �OPP�,CSlJU.9.eE � - J 03/f ry O Par. ! /6' 9 $/b7 c ©4 O./7Ac.- ; Q 508 Q Q O AIo83 ._ 2{+6:y .eNCA 5 iz — — — I'— J' ® 3at37 °0•/8 /7 I I6 /5 I /4 /3 e F /q //o9LJ IM73/SY !'/[.](' V Q V _ UA _ (./BAt.� Q Parl 7,0J119574 K 6/4Ac.NL ao> j RZZ7 w fJ{U.2Gb/ C �cc o 3 $ ASTP_f/' 0.9/Ac.� - v e 3•04 i9 _ yam. .. •.v.,/ rxq l Ic L -.7�[6s��1 s.BF -A- _r..r7_ s o ter— LaTA —- �✓n s so _ — �— BAR /STO— - - +_ - —ROAD— �- - — — . :— - — �'50 s . AGREEMENT #294C Part 3 of 5 ��=n�� �,�i<< Security Agreement RE: Chillers Restauarnt BofA P.S. Main Office #950 R836, 12-18-91 SECURITY AGREEMENT As security for any and all Indebtedness ( as hereinafter defined) of ZACHARY FRANKS, an individual ( "Borrower" ) , THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic, ( "Pledgor" ) hereby irrevocably and unconditionally grants to BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ( "BofA" ) a security interest in the following time deposit account and renewals or roll-overs thereof (except as limited herein) (collectively, the "Time Deposit Account" ) maintained on behalf or in the name of Pledgor by BofA' s Palm Springs Main Office #950 : Deposit Account Open or Current Maturity Number Issue Date Principal Amount Date 09506-02144 April 3, 1992 $250,000.00 April 5, 1993 For purposes of this Agreement, "Indebtedness" shall mean the principal amount outstanding from time to time under that certain Business Loan Agreement dated as of 3-30-92 , 1992, executed by Borrower in favor of BoEA ( "Loan" ) . Pledgor hereby represents and warrants to BofA that it owns the Time Deposit Account free and clear of any and all liens, encumbrances , or interests of any third parties other than the security interest of BofA. Prior to the maturity of the Time Deposit Account, Pledgor may, in its discretion, contact BofA' s Palm Springs Main Branch and agree upon the term for renewing or rolling- over the Time Deposit Account upon maturity; provided, however, that the term of such renewal or roll-over shall not be shorter than sixty ( 60 ) days unless the Indebtedness is due and payable in less time . If for any reason Pledgor and BofA do not agree to the terms of renewing or rolling-over the Time Deposit Account prior to its maturity, then Pledgor hereby instructs and authorizes BofA, upon notice to Pledgor and without affecting Pledgor ' s liability hereunder or Borrower ' s liability for the Indebtedness and for other obligations under the Business Loan Agreement to renew or roll-over upon maturity the Time Deposit Account described above at Bo W s then prevailing rate of interest for deposits in substantially similar amounts and terms (subject to the 2/383/014084-0006/58 2/4/92 • • limitations hereinafter described) , for additional sixty ( 60 ) day period with the last such sixty ( 60 ) day period expiring no later than sixty ( 60) days after the due date of the Indebtedness . The foregoing authorization shall be deemed coupled with an interest of BcfA and shall not be revoked without BofA' s written consent . On the maturity of each of the Time Deposit Account or on any renewal thereof, BofA shall withdraw a portion of the principal amount thereof and all interest accrued thereon and remit said amounts to Pledgor , so that the remaining principal amount does not exceed the then outstanding principal balance of the Indebtedness . Except as provided in the preceding sentence, Pledgor shall not withdraw any funds from the Time Deposit Account without BofA' s prior written consent. Upon the happening of any event constituting an event of default under the Indebtedness, BofA may, upon providing five (5) days advance written notice to Pledgor , exercise all its rights, powers and remedies over the pledged Time Deposit Account , whether matured or at any time prior to maturity, and apply the proceeds or part thereof as may be determined by BofA, against the Indebtedness then outstanding (which shall not include any amounts added to principal or unpaid interest) . Any prepayment penalty incurred as a result of any BofA action hereunder shall be charged against the funds in the Time Deposit Account prior to said funds being applied against the Indebtedness . Pledgor waives any right to require BofA to (a) proceed against any person, (b) proceed against or exhaust any collateral , or (c) pursue any other remedy in BofA' s power to obtain payment of any part of the Indebtedness; and waives any defense arising by reason of any disability or other defense of Borrower or any other person, or by reason of the cessation from any cause whatsoever of the liability of Borrower or any other person. Until all Indebtedness shall have been paid in full, Pledgor shall have no right of subrogation and waives any right to enforce any remedy which BofA now has or may hereafter have against Borrower or against any other person and waives any benefit of and any right to participate in any collateral or security whatsoever now or hereafter held by BofA. Pledgor authorizes BofA without notice or demand and without affecting Pledgor ' s liability hereunder or Borrower ' s liability under the Indebtedness, from time to time to (a) accelerate the Indebtedness upon the occurrence of a default under the Loan, (b) change the terms of the Loan, including increases or decreases in the rate of interest, subject to the -2- restrictions of the following paragraph, or (c) take and hold security, other than the Time Deposit Account , for the payment of the Indebtedness or any part thereof, and exchange, enforce, waive and release the Time Deposit Account or any such other security. BofA shall not, without the prior written consent of Pledgor renew, extend, or otherwise change the time for payment of the Indebtedness or any part thereof . Any forbearance or failure or delay by BofA in exercising any right, power or remedy hereunder shall not be deemed to be a waiver of such right , power or remedy, and any single or partial exercise thereof shall not preclude any further exercise of such rights , powers or remedies; and every right, power and remedy of BofA shall continue in full force and power and remedy of BofA shall continue in full force and effect until such right , power or remedy is specifically waived by an instrument in writing executed by BofA. In the event of any action by BofA, whether administrative, legal or otherwise, to enforce this Agreement , Pledgor agrees to pay any out-of-pocket costs and attorneys ' fees actually incurred by BofA, including the allocated fees for in-house legal services not related to monitoring services of outside counsel. This Security Agreement shall be governed by and construed under the laws of the State of California . Pledgor agrees that any legal action or proceeding with respect to this Security Agreement may be brought in the courts of the County of Riverside, State of California or in the courts of the United States for the Central District of California as BofA may elect, and hereby irrevocably submits to the personal non-exclusive jurisdiction of such courts . IN WITNESS WHEREOF, BofA and Pledgor have executed this Agreement this , day of �� t 1992 . ZAC RY FR KS, an individual "Borrower" [Signatures continued on next page. ] -3- ATTEST: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic BY�� r� By: �-1 ���1 Ass-istant Secretary Chairman L "Pledgor" APPROVED AS TO FORM RUTAN & TUCKER By: David J,.L les ire, Esq. Agency Counsel BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION 1 By: J Its: Assistant Vice President "BofA" «L> Jo MMUT tic- -4- ' AGREEMENT #204C Part 4 of 5 Indemnity Agreement R[: Chi]ler/s Restaurant Zachary Franks & M3r7y 3tVoo R836, 12~18~41 INDEMNITY AGREEMENT THIS INDEMNITY AGREEMENT ( "Agreement" ) is entered into this day 1902, by and between the COMMUNITY REDEVELOPMENT F THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic ( "Agency" ) , and OACBABy FRANKS and MABLY STONE, husband and wife ( °Iodemoitnr» ) " R E C I T A L S: A. Concurrently with the execution of this Agreement, the parties hereto entered into an Owner Participation Agreement ( oOP&" ) ^ Pursuant to the terms of the 0PA, the Agency has agreed to deposit the auou of TWO HUNDRED FIFTY THOUSAND DOLLARS ( $250 , 000 . 00) in a time deposit , together with renewals and rollovers thereof ( "Time Deposit" ) with Bank of America ( "Bank" ) pursuant to the tersuo of a Security Agreement to be executed by Agency, Bank and Indeouoitor, subject to the terms, conditions and limitations described therein, which Security Agreement provides that in the event Iudemoitor defaults under the tezouo of that certain Business Loan Agreement ( "Loan Agreement" ) by and between Iodemoitor and Bank, Bank may take funds from the Time Deposit to satisfy the unpaid principal amount of the loan. B. Izldennoitor desires to indemnify Agency from and against any loss Agency may suffer in the event the Bank collects any funds from the Time Deposit pursuant to the terms of the Secnritl, Agreement , all as more particularly provided herein. NOW, THEREFORE, the parties hereto agree as follows : 1.0 REPRESENTATIO S AND WARRANTIES. IndenuoitUc makes the following representations and warranties for the benefit of Agency as of the date this Agreement was executed: l^l No Violation. Iude000itoc ' s undertakings pursuant to this Agreement and under the Loan Agreement do not violate any federal, state or local statute, law, regulation or ordinance or order or ruling of any court or governmental 2/383/014084~0006/54 2/19/92 r~ entity, or conflict with, or constitute a breach or default under any agreement by which Indemnitor is bound or regulated. To Indemnitor ' s knowledge, there are no claims, actions or proceedings pending or to Indemnitor ' s knowledge, threatened against Indemnitor other than those disclosed to Agency in writing . 1 . 2 Financial Information. All financial information delivered to the Agency and/or the Bank fairly and accurately represents such financial condition and has been prepared in a form reasonably acceptable to the Agency and/or the Bank with accounting principles consistently applied unless otherwise noted in such information. Since the date of such statements, there has been no material adverse changes to the financial condition reflected therein. 1.3 Accuracy. All reports, documents, instruments, information and forms of evidence delivered to the Agency and/or the Bank concerning this Agreement and the Loan Agreement, to the best of Indemnitor ' s knowledge, are accurate, correct and sufficiently complete to give the Agency and the Bank true and accurate knowledge of their subject matter , and do not contain any material misrepresentation or material omission. 1. 4 Validity. This Agreement, the Loan, the Loan Agreement and the Deed of Trust (which term is hereinafter defined) are legal, valid and binding obligations of Indemnitor enforceable against Indemnitor in accordance with their respective terms. 1. 5 Sufficient Proceeds. The principal amount of the loan to be made to Indemnitor pursuant to the terms of the Loan Agreement is sufficient to construct the Project, as such term is defined in the OPA. 2 . 0 DEFAULT. For purposes of this Agreement, the term "Default" shall mean any of the following: (a) A default under the Loan Agreement not cured within the time period provided therein; (b) The failure of Indemnitor to remit cash to Agency in an amount equal to any funds taken by Bank from the Time Deposit within ten ( 10) days of written demand therefor by Agency; - -2- (c) The Bank exercises any of its rights under the Security Agreement; (d) A breach of any of the representations or warranties contained herein; and (e) Any other default under this Agreement not cured within thirty ( 30 ) days of receipt of written notice of said default by Agency. 3 . 0 INDEMNITY. Indemnitor hereby absolutely and unconditionally agrees to indemnify, protect and defend (with counsel approved by Agency) the Agency against and will hold and save the Agency harmless from any loss, claim, damage, cost, obligation or liability arising out of or in connection with a Default including, without limitation, attorneys ' fees and costs incurred or payable by Agency in connection with this Agreement or Security Agreement . Indemnitor further agrees to pay any and all expenses incurred by Agency in enforcing its rights under this Agreement . Indemnitor shall pay immediately upon Agency' s demand any amounts owing under this Agreement, together with interest from the date the indebtedness arises until paid at the rate of ten percent ( 10% ) per annum. 4. 0 DEED OF TRUST. This Agreement is secured by that certain Deed of Trust with Assignment of Rents ( "Deed of Trust" ) executed by Indemnitor of even date herewith. The amount of funds in the Time Deposit at the time of an event of Default shall be deemed to be the principal amount secured by the Deed of Trust as well as all interest and costs provided for herein. 5 . 0 MISCELLANEOUS. 5 .1 Further Assurances. The parties hereto shall execute, acknowledge and deliver any other instruments and perform any other acts necessary, desirable or proper to carry out the purposes of this Agreement. 5 .2 No Third Parties Benefited. No person other than Agency and Indemnitor and their permitted successors and assigns shall have any right of action under this Agreement. -3- 5. 3 California Law. This Agreement shall be construed and interpreted both as to validity and to performance by the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Indemnitor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 5 . 4 Attorneys ' Fees. If either party to this Agreement is required to initiate or defend or be made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys ' fees . Attorneys ' fees shall include attorneys ' fees on any appeal, and in addition, a party entitled to attorneys ' 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 . 5 . 5 Rights and Remedies are Cumulative. The rights and remedies of the parties under this Agreement are cumulative and the exercise of either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 5.6 Nonliability of Agency officers and Employees . No officer or employee of the Agency shall be personally liable to Indemnitor, or any successor-in-interest, in the event of any default or breach by the Agency or for any amount which may become due to Indemnitor or to its successors or for breach of any obligation of the terms of this Agreement. 5 .7 Conflict of Interest . No officer or employee of the Agency shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects his or her financial interest or the financial interest of any corporation, partnership or association in which he or she is directly or indirectly -4- interested in violation of any state statute or regulation. Indemnitor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement . 5 .8 Notices . Any notice, demand, requesting, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, to the following : If to City: Community Redevelopment Agency of the City of Palm Springs, California P.O. Box 2743 Palm Springs, CA 92263 Attn: Executive Director With copy to: Rutan & Tucker P.O. Box 1950 Costa Mesa, CA 92628-1950 Attn: David J. Aleshire, Esq. If to Indemnitor : Zachary Franks c/o Arthur Rolston, Esq. 11355 West Olympic Blvd. , Suite 500 Los Angeles, CA 90064 Either party may change its address by notifying the other party of the change of address in writing . Notice shall be communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this section. 5. 9 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 authorship of this Agreement or any other rule of construction which might otherwise apply. 5.10 Integration; Amendment. It is understood that there are no agreements, other than the Owner Participation Agreement, between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements , agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by mutual consent of the parties by an instrument in writing. 5. 11 Severability. In the event that any one or more -5- of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 5 .12 Assignment . Indemnitor shall not assign Indemnitor ' s interest under this Agreement without the Agency' s prior written consent . Any assignment made without Agency' s consent shall be void. 5 .13 Heirs , Successors and Assigns . The terms of this Agreement shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties. IN WITNESS WHEREOF, this Agreement was executed as of the day and year first written above. ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS CALIFORNIA, a public body, corporate and politic By: By: Assi-stant Secretary Chairman APPROVED AS TO FORM: RUTAN & TUCKER By: David aT� Aleshire, Esq. "Agency" �4111u,X—1 Z- ZAC R RAN .S AP?rnv ESN) gy MAALALS E "Indemnitor" t�4`C -6- a RECORDING REQUESTED BY a) AND WHEN RECORT ED MAIL TO: c�a The 9mmunity Redevelopment Agency of G $ the City of Palm Springs, California a P.O. Box 2743 ¢ 4 75 Palm Springs , CA 92263 Attn: Executive Director Agreement #294C Part 5 of 5 Subord to Deed of Trust (For Recoi RE: Chiller's Restaurant Franks-Dirk, Bill & Gary's R836, 12-18-91 Five Inc, SUBORDINATION. ATTORNMENT AND NONDISTURBANCE AGREEMENTf THIS SUBORDINATION, ATTORNMENT AND NONDISTURBANCE AGREEMENT ( "Agreement" ) , made as of the day of , 1992 , by and between ZACHARY FRANKS (hereinafter "Landlord" ) , DIRK, BILL AND GARY ' S FIVE, INC. , a Georgia corporation (hereinafter "Tenant" ) , THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic (hereinafter "Agency" ) , and THE CITY OF PALM SPRINGS, a municipal corporation (hereinafter "City" ) . R E C I T A L S: A. Landlord and Marly Stone ( "Stone" ) have conveyed certain real property described in Exhibit "A" attached hereto and by reference incorporated herein ( the "Premises" ) by a certain Deed of Trust and Assignment of Rents of even date herewith' ( the "Deed of Trust" ) to the Agency to secure the payment of an Indemnity Agreement of even date herewith executed by Landlord, Stone and Agency ( the "Indemnity" ) upon terms and conditions as more fully set forth in the Indemnity and Deed of Trust and has entered into that certain Regulatory Agreement and Declaration of Covenants and Restrictions with Agency and City ( "Regulatory Agreement" ) . B. Landlord and Tenant have executed or will execute a certain lease ( "Lease" ) by and between Landlord and Tenant, pursuant to which Tenant has leased the Premises for a term of years commencing on the lease commencement date as more fully defined in the Lease . C. The Lease creates and recognizes certain rights , duties , obligations and covenants of Landlord and Tenant in the use of the Premises . 2/383/014084-0006/56 3/4/92 120099 D. Landlord, Tenant, City and Agency are willing to agree and covenant that the Lease shall be subject and subordinate to the Deed of Trust and Regulatory Agreement but shall remain in full force and effect in the event that any proceedings are brought involving foreclosure of the Deed of Trust made by the Landlord covering, or in the event Agency or City otherwise succeeds as Landlord ' s interest with respect to, any part of the Premises . NOW THEREFORE, in consideration of the mutual covenants , conditions and agreements hereinabove and hereinafter contained, Landlord, Tenant, City and Agency agree as follows : 1. Landlord and Tenant certify that the Lease has been fully executed and is in full force and effect, and has not been modified or amended except as expressly set forth in the Recitals above. Tenant further certifies that, to the best of Tenant ' s knowledge, Landlord is not in default under any of the terms of the Lease. 2. The Lease shall be and is hereby made subject and subordinate to the Deed of Trust and the Regulatory Agreement and to all the terms, conditions and provisions thereof, and to all advances made or to be made thereunder , and all amounts assured thereby, and to any extensions, modifications, amendments or supplements thereto, all with the same force and effect as if the Deed of Trust and the Regulatory Agreement ( including all extensions, modifications, amendments or supplements thereto) had been executed, delivered and recorded prior to the execution and delivery of the Lease. 3 . In the event Agency becomes a mortgagee in possession of the Premises or a receiver for the Premises is appointed by any court of competent jurisdiction, then Tenant agrees to pay Agency or receiver , as the case may be, all rents subsequently payable under the Lease. Notice of the exercise of the Agency' s or receiver ' s rights under this paragraph shall be provided in accordance with the provisions of paragraph 8 hereof. Further, in the event any proceedings are brought by Agency and/or City (a) to foreclose the Deed of Trust or any renewal, modification, consolidation, replacement or extension thereof, for any reason whatsoever, or (b) to succeed to the interests of Landlord by foreclosure, deed in lieu thereof or otherwise, or (c) to enforce a breach of the Regulatory Agreement by Landlord, and provided the Tenant is not then in default in the payment of rent or in the performance of any of the terms, conditions or covenants of the Lease or the Regulatory Agreement, Tenant, -2- Landlord, City and Agency agree, that the Lease and any extension thereof shall, in accordance with its terms, remain in full force and effect as a direct indenture of lease between Agency and Tenant, with the same force and effect as if originally entered into with Agency or City; and Tenant ' s possession of the Premises and Tenant ' s rights and privileges under the Lease and any extension or extensions thereof shall not be diminished, interfered with or disturbed by Agency or City by such foreclosure under the Deed of Trust or by any such attempt to foreclose or to succeed to the interests of Landlord by foreclosure, deed in lieu thereof or otherwise or by Landlord' s default under the Regulatory Agreement; provided, however, that Agency or City shall not ( i ) be liable for any previous breach, act or omission of Landlord under the Lease, ( ii ) be subject to any offset, defense or counterclaim which may have accrued or may thereafter accrue to Tenant against Landlord (but not against Agency or City) , ( iii ) be bound by any prepayment of more than one month ' s rent, ( iv) be bound by any amendment or modification of the Lease made without City or Agency' s written consent, (v) be bound by any notice given by Tenant to Landlord, but not the Agency and City, whether or not such notice is given pursuant ' to the terms of the Lease, (vi ) be liable to refund to Tenant or credit Tenant with the amount of any security or other payment or deposit (other than rent paid to Landlord for not more than the current month) , unless such amount shall have been paid over by Landlord to Agency or City and shall have been specifically identified and accepted by Agency or City as a security or deposit fund, (vii) be liable for payment of any of the Tenant Improvement Advance, as such term is defined in the Lease, unless and until Agency or City has full and complete access to the bank account referred to in Section 7 . 5 of the Lease and only to the extent of the funds actually in said bank account, (viii) be liable for the payment of increased real property taxes caused by Agency or City obtaining fee title to the Premises by foreclosure, deed in lieu thereof or otherwise and Tenant shall pay all such increased real property taxes, including any possessory interest taxes, or ( ix) be bound by any provision of the Lease limiting City or Agency' s right to pursue an unlawful detainer proceeding upon a breach of the Lease by Tenant. 4. In the event of any such foreclosure or succession to the interests of Landlord by foreclosure, deed in lieu thereof or otherwise, and the resulting succession to the interests of Landlord by Agency, City or by any purchaser of said interests through foreclosure sale, Tenant and the Agency, City or the purchaser at foreclosure sale shall attorn to and shall be bound to each other under all of the terms in the Lease for the balance of the term plus any -3- 12�i�99 extension or extensions thereof without the execution of any further instrument on the part of the parties hereto. Notwithstanding anything contained in the Lease to the contrary withstanding, ( i) in the event Agency or the City succeed to the interest of Landlord, Agency or City shall have the right to transfer or assign its interest in the Lease to a third party without the consent of Tenant and upon such transfer or assignment Agency or City shall be relieved of all liability under the Lease and ( ii ) in the event of a default by Agency or City under the Lease, Agency or City shall have thirty ( 30 ) days from receipt of written notice of such default to cure; provided that, if such default is not susceptible of being cured within said thirty ( 30 ) days, Agency or City shall have a reasonable period to cure the default so long as Agency or City commences to cure the default within said thirty ( 30) days and diligently prosecutes said cure to completion. 5 . Tenant agrees that it shall look solely to the Premises and/or any insurance proceeds or condemnation proceeds stemming from the Premises for recovery of any judgment or damages from Agency or City and neither Agency. nor City shall have any personal liability directly or indirectly under or in connection with the Lease or this Agreement or any amendment or amendments to either thereof made at any time or times heretofore or hereafter and Tenant, and any person claiming by, through or under Tenant, hereby forever and irrevocably waives and releases any and all such personal liability. 6. Tenant agrees at any time and from time to time to execute, deliver and acknowledge to Landlord, Agency, City or any third party designated by Landlord, City or Agency within twenty ( 20) days following Landlord, City or Agency' s written request therefor, (a) a statement in writing certifying that the Lease is in full force and effect, that Landlord is not in default thereunder (or specifying any defaults by Landlord which Tenant alleges) , that rent has not been prepaid more than one month in advance, and specifying any further information about the Lease or the Premises which Landlord, City or Agency or said third party may reasonably request, and (b) a statement in writing acknowledging or denying receipt of notice of any conditional or security assignment of the Lease to any third party. Tenant understands that prospective purchasers, mortgagees or lessees of the Premises or any part thereof will rely on such certificates. Tenant ' s obligation to deliver such certificates within twenty ( 20) days as described above is a material obligation of Tenant hereunder and under the Lease. Tenant will be liable to Landlord, City and to Agency for consequential damages they -4- 12�099 may suffer if Tenant fails to deliver such certificates in the manner described above. 7. Tenant agrees that it will give prompt written notice in the manner provided herein to the Agency and City of any casualty damage to the leased Premises and further agrees that it will give written notice to the Agency and City of any default on the part of Landlord under the Lease at substantially the same time as notice is provided to Landlord, and Tenant further agrees that Agency and City shall be provided thirty ( 30 ) days following such notice to cure such default prior to the exercise by Tenant of any of its rights under the Lease (or if the default is of such nature that it cannot be cured within such thirty ( 30) day period, such period shall be the time reasonably required to cure such default, provided that Agency or City commences to remedy such default within such thirty ( 30) day period and proceeds with reasonable diligence thereafter to cure such default) , it being agreed that the correction of any such default by Agency or City shall have the same affect and be treated as a correction by the Landlord. 8. Tenant acknowledges that it has received a copy of the Regulatory Agreement and has thoroughly reviewed same. Agency and City hereby agree to give prompt written notice in the manner provided herein to Tenant of any default under the Regulatory Agreement . 9. No amendment, alteration, modification of or addition to this Agreement or the Lease shall be valid or binding unless expressed in writing, signed by the party or parties to be bound thereby and approved in writing by Agency and City. 10. Whenever and wherever in the Lease, the Deed of Trust or in any proceedings involving the foreclosure or attempt to foreclose pursuant to the Deed of Trust, it shall be required or permitted that notice or demand be given or served by any party, such notice or demand shall be in writing and be deemed to have been given or served three (3) business days after being mailed, postage prepaid, by certified or registered mail or when delivered in person and addressed as follows: To Landlord: Mr. Zachary Franks c/o Arthur Ralston, Esq. 11355 Olympic Boulevard Suite 500 Los Angeles, CA 90064 -5- 120099 To Tenant: Dirk, Bill and Gary' s Five, Inc. 44 Strand Hermosa Beach, CA 90254 Attn: Bill Stern To City: The City of Palm Springs P.O. Box 2743 Palm Springs, CA 92263 Attn: City Manager To Agency: The Community Redevelopment Agency of the City of Palm Springs, California P.O. Box 2743 Palm Springs, CA 92263 Attn: Executive Director With a copy to: Rutan & Tucker 611 Anton Blvd. Costa Mesa, CA 92628 Attn: David J. Aleshire, Esq. or to such other addresses as may hereinafter be designated by any party by proper notice to the others. 11. The obligations and covenants of the parties hereto shall be binding upon and shall inure to the benefit of the parties hereto, their respective heirs, personal and legal representatives, successors and assigns. 12. This Agreement shall remain in full force and effect until such time as the Deed of Trust is released of record. 13. The parties hereto agree that this Agreement shall be recorded in the Official Records of Riverside County, California. 14. This Agreement may be executed in any number of counterparts and by each of the undersigned on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Agreement. -6- 120099 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. Zac Fra ha nk "Landlord" DIRK, BILL AND GARY' S FIVE, INC. a Georgia' corporation By: �3._ /V Its : CC/Gyy/Y By: Its: "Tenant" ATTEST: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, }� corporate and politic istant Seccrretary Chairman "Agency" ATTEST, THE CIT M ING By By: it Clerk City M "City" [Signatures continued on next page. ] AGENCY BY RES. VJ0- S3G, 1� IZ 2-22 -7- � � State of Californ Y S S. �} County of Riversi e- 120699 On this 1st day of April, 1992 , before me, ELAINE L. SCHWARTZ, the undersigned Notary Public, personally appeared ***SONNY BONO and JUDITH SUMICH***, personally known to me to be the persons who executed the within instrument as CHAIRMAN and ASSISTANT SECRETARY a on behalf of the Community Redevelopment Agency of the City of Palm Springs, and acknowledged to me that the corporation executed it. WITNESS my hand and official seal. OFFICIAL NOTARY SEAL ELAINE L.SCHWARTZ Notary Public—California RIVERSIDE COUNTY Notary Public y My Comm.Expires FE603,1995 State of California p� SS. County of Riverside 120099 On this 1st day of April, 1992 , before me, ELAINE L. SCHWARTZ, the undersigned Notary Public, personally appeared *** JUDITH SUMICH***, personally known to me to be the person who executed the within instrument as CITY CLERK on behalf of the City of Palm Springs, a municipal corporation, and acknowledged to me that the corporation executed it. OFFICIAL NOTARY SEAL WITNESS my hand and official Seal. UNTY tiy�,. . ELAINE L.SCHWARTZ J Notary Public—California , MY Comm R Expires SIDE O FEB 0303,1995 Notary Public . l 120099 APPROVED AS TO FORM RUTAN & TUCKER By: David eshire, Esq. Agency Counsel and City Attorney or STATE OFA ) ) ss . COUNTY OF �111A��Y�jy1 ) On the �L day of 1992, before me, the undersigned, a Notary Public in and for said State and County, personally appeared ZACHARY FRANKS, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument and acknowledged to me that he executed the same. WITNESS my hand and official seals.. OFFICIAL SEAL SHERYLE L.MARTIN NOTARY PUBLIC-OREGON Notary (,Public COMMISSION NO.013143 (SEA ) MY COMMISSION EXPIRES FEB.11,19% -8- 120099 STATE OF CALIFORNIA ) ss. COUNTY OF 0N ) On the /2��d ay of 1992, before me, the undersigned, a Notary P blic, an f said State and County, personally appeared me-(or proved to me on the basis of satisfactory evidence) to be he persons who executed the within instrument as the and --, on behalf of DIRK, BILL AND GARY' $ IVE, INC. , the corporation therein named, and acknowled ed to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors. WITNESS my hand and official seal. a'� 0 FFICIAL NOTARY SEALELAINE L.SCHWARTZi� Notary Public-California NOt ry Pll D11C R)VERSIDE COUNTY (SEAL s� My C,romm. ZXP"" FE803,1995 STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On the day of 1992, before me, the undersigned, a Notary Public, in and for said State and County, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as the Chairman on behalf of THE COMMUNITY REDEVLEOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, and that such public body executed the within instrument pursuant to its bylaws or a resolution of its board of directors. WITNESS my hand and official seal. Notary Public (SEAL) A I 120099 EXHIBIT "A" Legal Description of Property All that certain real property located in the City of Palm Springs, County of Riverside, State of California, and more particularly described as follows: LOTS 8 AND 17 IN BLOCK 28 OF PALM SPRINGS TRACT, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 9 , PAGE 432 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. Page 1 of 1 Page EXHIBIT "A" TO SUBORDINATION, ATTORNMENT AND NONDISTURBANCE AGREEMENT Order No. Escrow No. N Loan No. x rn It WHEN RECORDED MAIL TO: b 7 THE COMMUNITY REDEVELOPMENT AGENCY of a OF THE CITY OF PALM SPRINGS, Q L 0 CALIFORNIA P. O. BOX 2743 V� PALM SPRINGS, CALIFORNIA 92263 SPACE ABOVE THIS LINE FOR RECORDER'S USE DEED OF TRUST WITH ASSIGNMENT OF RENTS (This Deed of Trust contains an acceleration clause) This DEED OF TRUST, made this 30 day of Kcti n,- 1992 between ZACHARY FRANKS and MARLY STONE, husband and wife, herein called TRUSTOR, whose address is (Number and Sheet) (City) (State) FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called TRUSTEE, and THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic herein called BENEFICIARY, WITNESSETH: That Trustor grants to Trustee in Trust, with Power of Sale, that property in the city of Palm Springs County of Riverside State of California, described as: SEE EXHIBIT "A" ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE *sums, with interest thereon, set forth in that certain Indemnity Agreement of even date herewith between Trustp� and BeY 4gry y y y If the trustor shall sell,cone or alienate sai property,or an r arty interest(herein,a shall be divested of his title or an (merest therein in an manner or ova. whether voluntarily or involuntarily,without the writer consent of the beneficiary being first had and obtained,beneficiary shall have the right,at its option,except as prohibited by law,to declare any indebtedness or obligations seared hereby,irrespective of the maturity date specified in any rate evidencing the same,immediately due and payable. Together who the rents,issues and profits thereof,subject,however,to the right,power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents,issues and profits. * _ For the Purpose of Se,:urin9 11 i payment of the aa'!ast-S and extensions or renewals thereof,and(2)the performance of each agreement otTrustor incorporated by reference or contained herein ' To protect the security of this Deed of Trust,and wmh respect to the property above described,Trustor expressly makes each and all of the agreements,and adopts and agrees to perform and be bound by each and all of the terns and provisions set forth in subdivision A,and k is mutually agreed that each and all of the terms and provisions set forth in subdivision B of the fictitious deed of trust recorded in Orange County August 17,1964,and in all other counties August 18,1964.in the book and at the page of Official Records in the office of the county recorder of the county where said property is located,noted below opposite the name of such county,namely: COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE Alameda 1288 555 Kings 858 713 Placer 1028 379 Sierra 38 187 Alpine 3 13031 Lake 437 110 Plumes 166 1307 Slsklyou 506 762 Ametlor 133 438 Lassen 192 367 Riverside 3778 347 Solano 1287 621 Butte 1330 513 Loa Angeles T3878 874 Sacramento 5039 124 Sonoma 2067 427 cataveres 185 333 Madera 911 136 San B"Ito 300 405 stanalous 1970 56 Colusa 323 391 Merin 1849 122 San Bernardino 6213 768 Sutter 655 585 Contra Costa 4684 1 Mariposa 90 453 San Francisco A-804 596 Tehema 457 183 Del Norte 101 549 Mendocino 667 99 San Joaquin 2855 283 Thirty 108 595 El Dorado 704 635 Merced 1660 753 San Luis Obispo 1311 137 Tulare 2530 108 Fresno 5052 623 Modoo 191 93 San Mateo 4778 175 Tuolumne 177 160 Glenn 469 76 Mono 69 302 Santa Barbara 2065 881 Ventura 2607 237 Humboldt 1 83 Monterey 704 742 Santa Clfnz 1638 607 Yuba 398 693 Imperial / 8 165 701 Napa Inyo 165 672 Nevada 363 94 Shasu 800 833; Kern 3756 690 Orange 7182 18 San Diego SERIES 5 Book 1961,Page 149774 shall inure to and bind the parties hereto,with respect to the property above described.Said agreements,terms and provisions contained in said subdivisions A and B,(Identical in all counties,and primed on the reverse side hereof)are by the within reference thereto,incorporated herein and made a part of this Deed of Trust for all purposes as fully as d set forth at length herein,and Beneficiary may charge for a statement regarding the obligation secured hereby,provided the charge therefor does not exceed the maximum allowed by law. The undemigned Touter requesrs that a copy of any notice d de-,av<4 szd any Wile*of sale hareundsr be In him at his addnec heinbsr'10 set fMh. rye ) Si hat re of Trustor +ia STATE OF'eftll , }ss. rfi On G1 I� _')0 I l9 2 z7 before me, Z<', R" FR2 �� Y �y personalty appeared ZACHARY FRANKS c ' and MARLY STONE. personally known to me (or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s)is/are subscrired to the within OFFICIAL SEAL " instrument and acknowledged to me that hee.ishe/they executed the same in SHERYLE L.MARTIN NOTARY PUBLIC-OREGON his/her/their authorized capacity(ies) and that by his/herAheir signature(s)on COMMISSION NO.013143 se the instrument the person(s)or the entity upon be halt 4,which the persons; MY COMMISSION EXPIRES FEB.11.19% acted, executed the instrument. WITNESS my hand and official seal. n1 Y Signature _ l 12009'7 EXHIBIT "A" Legal Description of Property All that certain real property located in the City of Palm Springs , County of Riverside, State of California, and more particularly described as follows : LOTS 8 AND 17 IN BLOCK 28 OF PALM SPRINGS TRACT, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 9 , PAGE 432 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. 2/383/014084-0006/56 3/4/92 0.7 . . . . ,: ..::.>:......:::°:3's:c.;;:r:;:>':::`';:>: ::;::::::'::<>a; " :,< ::::>::;;isi:ig:::>k:s«isisk':]{;k;s::<::::"se 'ji?` ::F:.'; ::::;;:':`>?>:::::::::::: ::::::ri'">:::>:i'r'::`i;:::>::;:j ..i:::::........... 1. F AMF...STS NCE .::::.:.:::.:.::.........: .:::: ::::.::::::... .....AND CONFER .. Producer THIS CERTIFICATEIS ISSUED AS A MATTER OF INFORMATION ONLY A S NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMMEND, White Oak Insurance Services EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 21363 Lassen Street #110 Chatsworth, Ca. 91311 COMPANIES AFFORDING COVERAGES (818) 772-0807 Company Letter A Reliance Insurance Company Company Insured CHILL01-SLB Letter B Insurance Company Of The State Of Company Letter C Pennsylvania Dirk, Bill & Gary's, Inc. DBA: Chiller's FLetter 905 Second Street DHermosa Beach, CA 90254 E <a f> »: a'.:zt?la..... i' CC7 7EI2Z...........:::.........::::.::...... .........................:.......:.. TH[S IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN fSSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PER INDICATED, NOTWITHSTANDING ANY REQUIREMENTS, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRISED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSION AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPE OF INSURANCE POLICY NUMBER POLICY EFF DATE POLICY EXP DATE LIMITS LTR (mm/dd/yy) (mm/dd/yy) GENERAL LIABILITY General Aggregate $ 2,000,000 Prod-Comp/Ops Agg $ 1,000,000 A [,/] Commercial Generaj Liab. SI 2534788 07/27/93 07/27/94 Pars & Adv Injury $ 1/000/000 ]Claims Made [✓]Occur Each Occurrence $ 11000,000 ] Owner's & Contractors Fire Damage $ 50,000 Protective (Any one fire) C I Medical Payments $ 5,000 C ] (Any one person) AUTOMOBILE LIABILITY Combined $ Single Limit C I Any Auto [ ] ALL Owned Autos Bodily Injury $ [ 7 Scheduled Autos (Per Person) [ I Hired Autos [ ] Non - Owned Autos Bodily injury E [ 7 Garage Liability (Per Accident) [ ] Property Damage $ EXCESS LIABILITY Each Occurrence $ 3,000,000 B [ 7 Umbrella Form 4293-7713 07/27/93 07/27/94 Aggregate E Umbrella Form ...................................................... .... C/] Other Than WORKER'S COMPENSATION C 7 Statutory AND Each Accident $ EMPLOYER'S LIABILITY Disease-PoL Limit $ Disease-Each EmpL E OTHER Description Of Operations/Locations/Vehicles/Special Items Location: 262 South Palm Cyn. Dr. , Palm Springs, Ca. 92262 i. ...... ..... ;liATZd.$T: >>::"` I;> .> a:C ERT,ZFZGlitE :IFC�3I7ERr..;:::: :: :.;:::;.: »:::::::..:.:...:. S CA.VCIny .........:h,a. Should any oft above described policies be cancelled before the ::t expiration date thereof, the issuing company will endeavor to :: mail 3.0 days written notice to the certificate holder named to the City Of Palm Springs Left, but failure to mail such notice shall impose no obligation or P.O. BOX 2 7 4 3 liability of any kind upon the company, it's agent's or representatives. Palm Springs, Ca. 92263 ADDITIONAL INSURED A t ori zed Re resentati e 8:::: W:SS'i,...APP:;::CnmZl'IX:S1t :c;:;::7.11G