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HomeMy WebLinkAboutR19820-A American Investment Palms to Pines East LLC PALM DESERT REDEVELOPMENT AGENCY STAFF REPORT REQUEST: APPROVE THE OWNER PARTICIPATION AGREEMENT WITH AMERICAN INVESTMENT PALMS TO PINES EAST LLC FROM: DAVE YRIGOYEN. DIRECTOR OF REDEVELOPMENT DATE: MARCH 25, 2004 CONTENTS: OWNER PARTICIPATION AGREEMENT Recommendation: By Minute Motion, that the Agency Board approve the Owner Participation Agreement between the Agency Board and American Investment Palms to Pines East LLC, and authorize the Chairman to execute said Agreement. Executive Summary: The Owner Participation Agreement will provide that American Investment Palms to Pines East LLC improve the facade and common areas of Palms to Pines East with a completion date of December 31, 2004. Discussion: On February 28, 2002, the Agency Board approved an Owner Participation Agreement ("Agreement") that would provide assistance to American Investment Palms to Pines East LLC in the renovation of the Palms to Pines East Shopping Center. The Agreement provided for the Agency to purchase a parking easement for an amount of $1,200,000. Additionally, the Agreement acknowledged that the Developer may seek to participate in the City's Facade Enhancement Program. It was contemplated that the Developer could apply for the additional $225,000 requested under the Facade Enhancement Program, since he was proceeding through that course initially. The monies to be paid by the Agency for the parking easement and the monies to be received from the Facade Enhancement Program were required by the Developer to make the project feasible. The total project cost of the prior agreement was estimated to be $4,700,000. The difficulty experienced that brought the project to a stall was the multiple owners of the overall center. A requirement of the Agreement was that each owner and tenant would be obligated to sign the public parking easement agreement. Negotiations with each tenant and owner took a substantial amount of time. However, all signatures required for the public parking easement have now been received. Due to the long delay, the Developer is asking that the completion date for the development be pushed back to December 31, 2004 from February 28, 2004. Staff Report Approve Owner Participation Agreement with American Investment Palms to Pines East LLC Page 2 of 2 March 25. 2004 The Agreement allowed the Developer to seek assistance through the Façade Enhancement Program, as originally contemplated up to the amount of $225,000. Pursuant to the Program, this is the amount that the Developer would qualify for in the entire center. Prior to requesting Agency participation, the Developer had begun discussion with the Façade Enhancement Program staff to initiate participation. Agency participation was for enhanced improvements to landscape, parking and façade areas over and above minimum improvements. The Owner Participation Agreement brings both the facade amount and previous commitment of $1,200,000 together for a total amount of $1,425,000. The Owner Participation Agreement provides for the Developer to improve the balance of the Center with a total estimated cost of $2,011,000. The provision that the Developer repaints the Staples building at his own expense has been included in the Owner Participation Agreement. The color palette and elevation color scheme have also been included in the Owner Participation Agreement. We have made it a condition that the Developer shall repaint the building within 60 days from Agency approval of the Owner Participation Agreement. While the Developer has indicated that it would be more feasible to paint the building when the entire facade is done, he is aware of Agency Board's concerns regarding the urgency of repainting the building. Planning staff indicates that the color scheme has been approved by the Architectural Review Commission. Also, the Retail Committee has reviewed and approved the color scheme for the Staples repainting and the proposed funding amount by the Agency. Due to the above-referenced changes in the terms of the Agreement, it is recommended that the prior Agreement be terminated and that the Agency and American Investment Palms to Pines East LLC enter into the Owner Participation Agreement which incorporates the new terms and thereby facilitate the completion of the project. Submitted by: Ap royal: ave Yrigo J tin McCarthy Director evelopment M Redevelopment mh Approval: Carlos L. Ortega Executive Director G:\RDA\Maria Hunt\WPDATA\YRIGOYEN\STFRPTS\032504plmspineseastopa..doc OWNER PARTICIPATION AGREEMENT THIS OWNER PARTICIPATION AGREEMENT (this "Agreement"), dated as of March , 2004 (the "Effective Date"), is entered into by and between the PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency") and AMERICAN INVESTMENT PALMS TO PINES EAST, LLC, a California limited liability company(the "Owner"). RECITALS This Agreement is entered into with reference to the following facts: A. Owner is owner in fee simple of certain parcels of real property that are located between Highway 111 and El Paseo in the City of Palm Desert, California (the "City") and which are more particularly described on Exhibit A attached hereto and made a part hereof(the "Owner Parcel"). The Owner Parcel is part of a shopping center development known as the Palms to Pines East Shopping Center (the "Shopping Center"). A site plan of the existing Shopping Center is attached as Exhibit B. B. The Agency is a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under the Community Redevelopment Law of the State of California. C. HWS Palm Desert ("HWS") is owner in fee simple of another parcel of real property that is also a part of the Shopping Center and that is currently leased to Staples and Big 5 Sporting Goods, and which is more particularly described on Exhibit C attached hereto and made a part hereof(the "HWS Parcel"). D. Quinto Corporation ("Quinto") is owner in fee simple of another parcel of real property that is also a part of the Shopping Center and that is currently leased to Rite Aid, and which more particularly described on Exhibit D attached hereto and made a part hereof (the "Quinto Parcel"). E. Owner must obtain the consent and agreement of HWS and Quinto to construct: facade improvements on the existing Shopping Center structures at elevations as described on Exhibit E attached hereto and made a part hereof(the "Facade Improvements"); a new entry/exit from Highway 111 on the north side of the Shopping Center, as described on Exhibit F attached hereto and made a part hereof (the "Access Improvements"); and, upgrades to the Shopping Center common areas and parking lots as shown on Exhibit G attached hereto and made a part hereof (the "Common Area Improvements"). The Common Area Improvements shall be constructed on the Owner Parcel, the HWS Parcel, and the Quinto Parcel, which collectively are referred to as the "Shopping Center Property." F. Owner has designed and obtained the necessary permits and approvals for the Access Improvements; the Facade Improvements; and, the Common Area Improvements P6402/0459/764893.5 (collectively, all referred to as the "Improvements") at the estimated cost of Two Million Eleven Thousand Dollars ($2,011,000.00) (the "Improvements Cost"). Owner has entered into separate agreements with HWS and Quinto to construct the Improvements and pay the Improvements Cost (the "Shopping Center Agreements"). In addition to the Shopping Center Agreements, Owner requires financial assistance from Agency in order to complete the Improvements. G. City is in need of public parking. Agency desires that the Common Area Improvements be made so that Agency may obtain certain parking rights in the parking lots located thereon and is willing to assist Owner in accordance with this Agreement. H. Owner is willing to make the Common Area Improvements as part of the Project and to cause a parking easement to be conveyed to Agency by Owner, HWS, and Quinto over and upon the Shopping Center Property. I. The purpose of this Agreement is to effectuate the Redevelopment Plan for Project Area No. One (the "Redevelopment Plan") in the City, by providing for the redevelopment of the Shopping Center. Completion of the Improvements constituting the Project pursuant to this Agreement is in the best interests of the City and Agency, and the health, safety and welfare of residents and taxpayers of the Project Area and the City, and is in accord with the public purposes and provisions of applicable state and local laws. J. Construction of the Improvements will assist in the elimination of blight in the Project Area and will improve the economic and physical conditions in accordance with the purposes and goals of the Redevelopment Plan. K. The Redevelopment Plan has been approved and adopted by Ordinance No. 80 of the City adopted July 15, 1975. L. Agency has determined that the land uses specified in this Agreement and the provisions relating to construction of the Improvements specified in this Agreement are consistent with the provisions of the Redevelopment Plan and each of its applicable elements. NOW, THEREFORE, the parties hereto agree as follows: ARTICLE 1. DEFINITIONS. Section 1.1. Definitions. The following terms as used in this Agreement shall have the meanings given unless expressly provided to the contrary: 1.1.1. Agency means the Palm Desert Redevelopment Agency, a public body, corporate and politic. 1.1.2. Agency Consideration means the funds to be delivered by Agency to Owner upon the satisfactory completion of the Improvements. P6402/0459/764893.5 - 2 - 1.1.3. Agreement means this Owner Participation Agreement. 1.1.4. City means the City of Palm Desert, a municipal corporation. 1.1.5 Final Construction Drawings means the construction drawings for the Improvements approved by all applicable governmental agencies. 1.1.6. Improvements means the previously designed, approved and permitted improvements described on Exhibits E, F & G, collectively referred to as the "Scope of Development". 1.1.7 Parking Easement means the non-exclusive public parking easements described in Section 2.2.2 to be granted by Owner, HWS, and Quinto, to Agency, in the form of agreement attached hereto as Exhibit H and made a part hereof. 1.1.7. Project means the construction of the Improvements upon the Owner Parcel. 1.1.8. Project Area means Redevelopment Project Area No. One of Agency. 1.1.9. Redevelopment Plan means the Redevelopment Plan for the Redevelopment Project Area No. One approved by the City Council of City by Ordinance No. 80 on July 15, 1975. 1.1.10. Shopping Center Agreements mean the agreements entered into between Owner, HWS, and Quinto, to provide for the construction and payment of the Improvements, and the granting of the Parking Easement to Agency. 1.1.11. Shopping Center Property means all of the real property constituting the Shopping Center, as are more fully described in Exhibits A, C & D, attached hereto and incorporated herein by this reference. ARTICLE 2. DEVELOPMENT OF THE OWNER PARCEL. Section 2.1. Title to the Owner Parcel. Owner represents and warrants that it possesses a fee simple interest in the Owner Parcel as of the date of the execution of this Agreement. Owner further represents that HWS and Quinto are the owners in fee simple of the HWS and Quinto Parcels, respectively. Section 2.2. Development of the Owner Parcel. 2.2.1. Scope of Development. Owner has entered into the Shopping Center Agreements with Quinto and HWS in order to construct the Improvements on the Owner Parcel and the Shopping Center Property in accordance with and within the limitations established in P6402/0459/764893.5 - 3 - the Scope of Development, it being agreed that construction of the Improvements is of the essence of this Agreement in view of the need for the Improvements and the resulting parking within the City. In connection with such construction, Owner shall comply with the Final Construction Drawings and such plans and specifications as may be approved by the City. Agency's obligation to deliver to Owner the Agency Consideration is expressly contingent upon Owner having entered into the Shopping Center Agreements, the satisfactory completion by Owner of the Common Area Improvements in accordance with the previously approved plans and specifications, and the recordation of the Parking Easement in accordance with Section 2.2.2 below. 2.2.2. Parking Easement. In addition to completing the Improvements, Owner agrees to cause to be delivered to Agency, prior to the payment of the Agency Consideration, a non-exclusive easement for public parking purposes, including ingress and egress to and from public roadways, and covering the Common Area Improvements in the parking surface of the Shopping Center (the "Parking Easement"), and being the area more particularly described on Exhibit I attached hereto and made a part hereof(the "Easement Area"). The Parking Easement shall provide for a term of 55 years, with insurance and maintenance provided by the owners of the Shopping Center Property, and shall be in the form attached hereto as Exhibit H. 2.2.3 Schedule of Performance. Owner shall commence construction of the Improvements on or before June 1, 2004 (the "Commencement Date") and shall complete construction of the Improvements by December 31, 2004 (the "Completion Date"). For the purposes of this Agreement, the completion of construction of the Improvements shall be evidenced by an engineer's and architect's certificate to be provided by Owner, and reasonably acceptable to the Agency as to form and content, and certifying that the construction of the Improvements has been completed in substantial compliance with the Final Construction Drawings and the plans and specifications approved by the City, except for specified "punch-list" items that do not impair the function or use of the Improvements (the "Certificate of Completion"). If Owner has not commenced construction of the Improvements by the Commencement Date, then Agency may, in its sole and arbitrary discretion, terminate this Agreement upon notice to Owner. If the Improvements are not completely constructed by the Completion Date, then Owner shall be deemed in default and Agency shall have all rights and remedies provided herein. Section 2.3. Cost of Construction and Development. The cost of developing and constructing the Improvements, including without limitation, any environmental studies, permit fees and entitlement costs, shall be borne solely by Owner and the other Shopping Center owners, and shall not be an obligation of Agency. 2.3.1 Environmental Investigations. Owner will obtain and submit, at the Owner's cost and expense, for approval by Agency, a soils report from a qualified soils engineer which will include appropriate laboratory compaction tests and field density tests. Owner shall also cause to be prepared a Phase I environmental report of the Owner Parcel and the Easement Area and (if recommended by the Phase I environmental report) a Phase II environmental report, P6402/0459/764893.5 - 4 - and deliver same to Agency for its approval. If Agency determines that there is a material risk of liability for abatement of hazardous materials, then Owner shall cause such Hazardous Materials, as hereinafter defined, to be abated in the manner prescribed by law prior to the Agency's delivery of the Agency Consideration for and the acceptance of the Parking Easement. 2.3.2 Offsite Improvements and City Fees. Owner shall be responsible for obtaining City review to determine if an EIR is necessary to permit the Improvements; however, a negative declaration with potential mitigation measures depending on the results of a traffic study may be required. If, in connection with the processing of any such entitlements, project- specific offsite traffic improvements are required as a condition to the Improvements, Owner shall be solely responsible for the cost thereof to the City (although Owner, HWS and Quinto shall have the right among themselves to determine how to equitably allocate the cost and responsibility for the same in the Shopping Center Agreements). Notwithstanding the foregoing, before completing the Improvements, Owner shall cause, at its own expense to secure or cause to be secured, any and all land use and other entitlements, permits and approvals which may be required by the City or by any other governmental agency affected by such construction or work, for the Improvements. Owner shall, without limitation, apply for and secure, and pay all costs, charges and fees associated with, all permits and fees required by the City, the County of Riverside, and other governmental agencies with jurisdiction over the Shopping Center. Section 2.4. Changes in Construction Drawings. Owner shall submit Final Construction Drawings to Agency on or before April 2, 2004. If Owner desires to make any changes in the Final Construction Drawings and related documents after their approval by Agency, Owner shall obtain all necessary City approvals and shall submit evidence of the same to Agency along with the proposed changes for Agency approval. If approved, Agency shall notify Owner of such approval in writing within 30 days after submission to Agency. Such change shall, in any event, be deemed disapproved by Agency unless approved, in whole or in part, by written notice thereof by Agency to Owner within such 30 day period. Owner, upon disapproval shall revise such portions as are rejected and resubmit them to Agency after receipt of the disapproval within thirty days and such re-submittal shall be deemed a new change for review. Section 2.5. Local, State and Federal Laws. Owner shall carry out the construction of the Improvements in conformity with all applicable laws and regulations, including, without limitation, all applicable federal and state occupation, labor, public contract, public works, safety and health standards, rules and regulations, and Owner shall hold Agency harmless from any cost, expense, claim or charge related to the same. Without limiting the foregoing, Owner shall comply with all applicable provisions of Section 33426.7 of the California Health and Safety Code and the state, federal and local prevailing wage laws and public bidding requirements and all rules and regulations promulgated pursuant thereto, including, without limitation, the prevailing wage laws of the State of California set forth in the California Labor Code, Division 2, Part 7 and California Code of Regulations, Title 8 (the "Prevailing Wage Laws"). The Agency hereby notifies Owner, and Owner hereby acknowledges, that the construction of the Improvements constitute a "public work" within the meaning of Section 1781 of the California P6402/0459/764893.5 - 5 - Labor Code, and Owner agrees to post a payment (labor and materials) bond in the amount and form and at such time as required by the Prevailing Wage Laws. Owner agrees to indemnify, defend and hold Agency harmless from and against any cost, expense, claim, charge or liability relating to or arising directly or indirectly from any breach by or failure of Owner or its contractor(s) or agents to comply with such laws, rules or regulations. Prior to the commencement of construction of the Improvements and during the construction of the Improvements, upon written request of Agency, Owner shall furnish or cause its contractor(s) or agents to furnish to the Agency certified payroll records in conformance with Section 1776(c) of the California Labor Code. Section 2.6. Non-discrimination During Construction. Owner shall not discriminate against any employee or applicant for employment because of age, sex, marital status, race, handicap, color, religion, creed, ancestry, or national origin in the construction of the Improvements. Section 2.7. Taxes, Assessments, Encumbrances and Liens. Owner shall pay when due all real property taxes and assessments assessed or levied on the Owner Parcel and any improvements thereon. Nothing herein contained shall be deemed to prohibit Owner from contesting the validity or amounts of any tax assessment, encumbrance or lien, or to limit the remedies available to them in respect thereto. Section 2.8. Agency Sign Rights. Throughout the course of construction of the Improvements, Owner shall place a temporary sign on the Owner Parcel, in a form approved by Agency, indicating Agency's participation in the rehabilitation of the Owner Parcel. Section 2.9. Hazardous Materials. 2.9.1 Indemnification. Owner agrees to indemnify, protect, defend and hold Agency harmless, from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous Materials by any party owning or having an interest in the Owner Parcel or Shopping Center on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Shopping Center or Owner Parcel (including, without limitation, the Easement Area), or (ii) any violation, or alleged violation, or compliance with the requirements of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Shopping Center or the Owner Parcel by any party owning or having an interest in the Shopping Center or the Owner Parcel. This indemnity shall include, without limitation, any damage, liability, fine, penalty, or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, relocation expenses, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect P6402/0459/764893.5 -6 - on the environment, and the cost of clean-up of the Shopping Center or Owner Parcel, or any portion of the Shopping Center or Owner Parcel, or any improvements thereon, caused by or resulting from any Hazardous Material, or toxic substances or waste released onto the real property underlying the Shopping Center or Owner Parcel by the Owner, its lessees, sublessees, successors or assigns. 2.9.2 Definition. The term "Hazardous Materials" shall include, but not be limited to, substances defined as "hazardous substances," "hazardous materials," "pollutant or contaminant," "imminently hazardous chemical substance or mixture," "hazardous air pollutant," "toxic pollutant," "hazardous waste," "extremely hazardous waste" or "toxic substances" in any of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq.; The Resource Conservation and Recovery Act, 42 U.S.0 §6901, et seq.; and those substances defined as "hazardous substances" in §25316 of the California Health & Safety Code; and in the regulations adopted and publications promulgated pursuant to said laws. 2.9.3 Covenant. The foregoing indemnity shall be included in the Parking Easement described in Section 2.2.2 hereof. 2.10 Agency Rights of Access to the Parking Easement for Construction, Repair and Maintenance. The Parking Easement shall provide that Agency, City and other public agencies, shall have the right to enter the Easement Area from time to time and at any time, for the purposes of inspecting the Easement Area for compliance with this Agreement and the terms of the Parking Easement. 2.11 Maintenance of the Easement Area. The Parking Easement shall provide that throughout the term of the Parking Easement, Owner, HWS, Quinto, and their successors in interest shall maintain or cause to be maintained the applicable Easement Area in a clean and safe condition, free from graffiti and in the manner of parking facilities in a first class strip shopping center in the City. This maintenance obligation shall be included in any agreements among Owner, HWS and Quinto and shall be enforceable by Agency as a third party beneficiary. Owner shall maintain, or cause to be maintained, the Easement Area and the Common Area Improvements at the Shopping Center, and landscaping in the Shopping Center, in accordance with the "Maintenance Standards," as hereinafter defined. The City shall be a third party beneficiary thereof. Such Maintenance Standards shall apply to all buildings, signage, lighting, landscaping, irrigation of landscaping, architectural elements identifying the Shopping Center and any and all other Common Area Improvements in the Shopping Center. To accomplish the maintenance, Owner shall provide staff or contract with and hire licensed, qualified personnel to perform the maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Agreement. Owner, and its successors and assigns, shall comply with the following standards ("Maintenance Standards"): P6402/0459/764893.5 - 7 - 2.11.1. Owner shall maintain, or cause to be maintained, the Common Area Improvements at the Shopping Center (including the Easement Area) in conformance and in compliance with the designs approved by the City, and reasonable commercial development maintenance standards imposed by the City for first class strip shopping centers, and generally in a safe condition and in accordance with all applicable laws and regulations. 2.11.2. Landscape maintenance shall include, but not be limited to: watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance and safe road conditions and visibility, and irrigation coverage; replacement, as needed, of all plant and vegetation materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees. 2.11.3. Clean-up maintenance shall include, but not be limited to: maintenance of all sidewalks, paths and other paved areas in clean and weed-free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers. Agency agrees to notify Owner in writing if the condition of the Common Area Improvements at the Shopping Center (including the Easement Area) does not meet with the Maintenance Standards and to specify the deficiencies and the actions required to be taken by Owner to cure the deficiencies. Upon the existence of any maintenance deficiency and receipt of notification thereof, Owner shall have 30 days within which to correct, remedy or cure the deficiency. If the written notification reasonably states the problem is urgent relating to public health and safety, then Owner shall have 24 hours to rectify the problem. In either case, if the deficiency or problem cannot be corrected, remedied, cured or rectified within the time period specified, then such failure shall not be a default if Owner commences a cure within such period and diligently prosecute such cure to completion. In the event Owner does not maintain the Common Area Improvements at the Shopping Center in the manner set forth in this Agreement and in accordance with the Maintenance Standards after notice to Owner and the expiration of the applicable cure period stated in this Agreement, then either Agency or City shall have, in addition to any other rights and remedies under this Agreement, the right to maintain such Common Area Improvements, or to contract for the correction of such deficiencies, after written notice to Owner, and Owner shall be responsible for the payment of all such costs incurred by Agency or City. ARTICLE 3. AGENCY CONSIDERATION AND CONDITIONS Section 3.1. Agency Consideration. In consideration for Owner's entering into the Shopping Center Agreements with HWS and Quinto that include the conveyance and delivery to P6402/0459/764893.5 - 8 - Agency of the Parking Easement, construction of the Improvements, and payment of the Improvements Cost, and upon the satisfaction of the conditions precedent set forth in Section 3.2 and recordation of the Parking Easement in accordance with this Agreement, Agency shall pay or deliver to Owner an amount not to exceed One Million Four Hundred Twenty Five Thousand Dollars ($1,425,000.00) (the "Agency Consideration"). Partial payments of the Agency Consideration shall be made upon Owner's submission of payment requests to Agency for completed Improvements' work. The payment request submittals shall be in such form and substance as Agency may reasonably require, including appropriate lien waivers, and contractor and architect certifications, and shall show that the completed Improvements work for which payment is requested is limited to only hard construction costs, and does not include management fees, architect's fees, engineer's fees, or any similar "soft costs". Within thirty (30) days of Owner's submittal of payment requests, the Agency shall pay to Owner ninety percent (90%) of the amount of such approved payment request; the remaining ten percent (10%) of such amount shall be retained by the Agency and are hereinafter referred to as the "Retainage Amount". Except as hereinafter provided in this Article 3, the Retainage Amount shall be paid by the Agency following the Agency's receipt of the Certificate of Completion, and the completion of the exterior painting described in Section 3.2.9, and upon the Agency's receipt of the final approved payment request. Owner shall request final payment of the balance of the Agency Consideration on or before the date that is one hundred eighty (180) days after the Completion Date or shall be deemed to have waived, released, and relinquished any and all rights to the same. Section 3.2 Agency's Conditions Precedent. Agency's obligation to pay all or any portion of the Agency Consideration to purchase the Parking Easement is subject to the following conditions precedent: 3.2.1 Commencement of Construction of Improvements. Construction of the Improvements shall have commenced by the Commencement Date. Prior to commencing construction of the Improvements, Owner shall provide to Agency: copies of the executed Shopping Center Agreements pertaining to the Improvements to be constructed; and, any other evidence reasonably required by Agency showing the commitment and availability of sufficient funds to pay for the Improvements Costs. 3.2.2 Recordation of Parking Easement. The concurrent recordation of the Parking Easement from Owner, HWS, Quinto, and all current tenants of the Shopping Center Property. 3.2.3 Recordation of Subordination Agreements. The concurrent recordation of subordination agreements from all persons and entities holding monetary liens encumbering the Parking Easement (including all trust deeds and mortgages) with respect to such monetary liens. 3.2.4 Title Insurance. Owner's delivery to Agency of a CLTA Owner's policy of title insurance, in the amount of the Agency Consideration, evidencing Agency's ownership of the Parking Easement, free and clear of all monetary liens and encumbrances that are not P6402/0459/764893.5 - 9 - subordinated to the Parking Easement, other than those specifically approved by Agency in writing. 3.2.5 Default. No Default(as defined herein) on the part of Owner shall exist, nor shall there be any condition or circumstance that would, with notice or the passage of time, or both, constitute a Default on the part of Owner. 3.2.6 Building Permits. With respect to the Improvements, the issuance of building permits required for construction and associated common areas. 3.2.7 Proof of Insurance. Owner shall have provided proof of insurance conforming to this Agreement. 3.2.8 Good Standing. Owner shall have delivered to Agency reasonable evidence that Owner is then in good standing and qualified to do business in the State of California. 3.2.9 Exterior Painting. On or before 60 days from the date of execution of this Agreement by the Agency, Owner shall have painted, or shall have caused to be painted, that portion of Building 5 presently occupied by Staples The Office Superstores, Inc. (as depicted in Exhibit J attached hereto and made a part hereof) in the manner and in the colors depicted in Exhibit J. Such painting shall be at Owner's sole cost and expense and shall not be paid from the proceeds of the Agency Consideration. If all of the foregoing conditions precedent are not completed to Agency's satisfaction on or before August 28, 2004 (or such earlier date as hereinabove expressly provided), then Agency may, in its sole and arbitrary discretion, terminate this Agreement upon notice to Owner. ARTICLE 4. TRANSFERS AND SECURITY INTERESTS Section 4.1. Limitation As To Transfer of the Owner Parcel and Assignment of Agreement. 4.1.1. If Owner desires to assign, transfer or encumber the Owner Parcel or any of Owner's rights in this Agreement to or in favor of any person or entity, no such assignment or transfer by Owner shall be attempted without the prior written approval of Agency. Agency agrees to consider transfers, assignments or encumbrances proposed by Owner to assist in the development of the Improvements in accordance with this Agreement, provided that Owner shall remain fully liable to Agency as provided in this Agreement, and further provided, in the case of a transfer of the Owner Parcel, that such transferee, by instrument in writing satisfactory to Agency, and in a form recordable for itself and its successors and assigns and for the benefit of Agency, shall expressly assume all of the obligations of Owner under this Agreement, and shall agree to be subject to all the conditions and restrictions to which Owner is subject hereunder. P6402/0459/764893.5 - 10 - Such assumption shall not eliminate or reduce any of the obligations of Owner under this Agreement. 4.1.2. The prohibitions of this Section 4.1 shall not apply to the Owner Parcel subsequent to the completion of construction of the Improvements, nor to a sale of the Owner Parcel at foreclosure (or to a conveyance thereof in lieu of a foreclosure). The provisions of this Section 4.1 shall not be deemed to prevent the granting of easements or permits to facilitate the development and construction of the Improvements, provided the same do not interfere with the use and enjoyment of the Parking Easement. ARTICLE 5. USE OF THE OWNER PARCEL Section 5.1. Uses. Owner covenants and agrees for itself, and its successors and its assigns, that during construction and thereafter, Owner, such successors, and such assignees shall use the Owner Parcel in accordance with all applicable laws. Owner is expressly prohibited from using the Owner Parcel for any uses prohibited by applicable City zoning ordinances or regulations, or the Redevelopment Plan for the Project Area existing as of the date of this Agreement. Section 5.2. Obligation to Refrain from Discrimination. There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, age, handicap, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Owner Parcel, and Owner (itself or any person claiming under or through Owner) shall not 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, assignees, or vendees thereof or any portion thereof. Section 5.3. Form of Nondiscrimination and Nonsegregation Clauses. Owner shall refrain from restricting the rental, sale or lease of the Owner Parcel or any portion thereof, on the basis of sex, age, handicap, marital status, race, color, religion, creed, ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 1. In deeds: "The grantee herein covenants by and for himself, his 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 sex, marital status, race, age, handicaps color, religion, creed, national origin or ancestry in the sale, lese, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or any person claiming under or through him, 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, assignees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." P6402/0459/764893.5 - 11 - 2. In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, 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 sex, marital status, race, age, handicap, color, religion, creed, national origin or ancestry, in the leasing, subleasing, transferring, use, or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, 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, assignees, subtenants or vendees in the land herein leased." 3. In contracts relating to the sale or transfer of the Owner Parcel or any interest therein: "There shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, age, handicap, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him, 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, assignees or vendees of the land." Section 5.4. Effect and Duration of Covenants. After the completion of construction of the Improvements, all of the terms, covenants, agreements or conditions set forth in this Agreement pertaining thereto shall cease and terminate excepting only the following provisions which shall survive as follows in accordance with their provisions: 1. Section 5.1 (relating to uses) shall remain in effect until the termination date of the Redevelopment Plan. 2. Sections 5.2 and 5.3 (relating to nondiscrimination) shall remain in effect in perpetuity. 3. Such easements of ingress and egress as are granted between the City or Agency and Owner shall remain in effect for the term specified in each such grant. 4. Section 7.1.6 (relating to certain indemnification obligations of the Owner) shall survive the completion of construction of the Improvements, and the termination or expiration of this Agreement. P6402/0459/764893.5 - 12 ARTICLE 6. DEFAULTS, REMEDIES AND TERMINATION Section 6.1. Defaults - General. 6.1.1. Subject to the extensions of time set forth in Section 7.7, failure or delay by either party to perform any term or provision of this Agreement constitutes a "Default" under this Agreement. The party who so fails or delays must immediately commence to cure, correct, or remedy such failure or delay, and shall complete such cure, correction or remedy with reasonable diligence and during any period of curing shall not be in default. 6.1.2. The non-defaulting party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. If the default is not commenced to be cured within ten (10) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement thereof, then the defaulting party shall be liable to the non-defaulting party for any damages caused by such default. 6.1.3. Except as otherwise expressly provided in this Agreement, any failure or delay by either party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies or deprive either 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. Section 6.2. Legal Actions. 6.2.1. Institution of Legal Actions. In addition to any other rights or remedies provided in Section 6.5, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in either the Superior Court of the County of Riverside, State of California, or in an appropriate municipal court in that County. 6.2.2. Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 6.2.3. Acceptance of Service of Process. If any legal action is commenced by Owner against Agency, service of process on Agency shall be made by personal service upon the executive director or secretary of Agency, or in such other manner as may be provided by law. If any legal action is commenced by Agency against Owner, service of process on Owner shall be made by personal service upon either party P6402/0459/764893.5 - 13 - identified as Owner, or in such other manner as may be provided by law, whether made within or without the State of California. Section 6.3. Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same default or any other default by the other party. Section 6.4. Inaction Not a Waiver of Default. Except as expressly provided in this Agreement to the contrary, any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either such party of its rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. Section 6.5. Remedies. 6.5.1. Owner's Remedies. Owner's sole remedies for Agency's breach of this Agreement shall be (a) to institute an action at law for damages or to commence an action in equity to seek mandamus or specific performance of the terms of this Agreement, or (b) to terminate this Agreement. 6.5.2 Agency's Remedies Prior to Purchase of Parking Rights Easement. If any Default by Owner occurs prior to Agency's payment of any of the Agency Consideration, then Agency's sole remedy shall be to terminate this Agreement, in which case Agency shall be released from any and all further obligations to Owner. 6.5.3 Agency's Remedies After Purchase of Parking Easement. In the event of any Default by Owner after payment of any of the Agency Consideration for the Parking Easement, Agency shall be entitled to all damages proximately caused by such breach and all remedies available at law or in equity, including an injunction and/or specific performance, and a refund of the Agency Consideration. 6.5.4. If Owner shall assign or attempt to assign this Agreement, or shall sell, transfer, convey, assign, or lease the Owner Parcel, in violation of this Agreement, then Agency, at its option and upon 30 days written notice to Owner, may terminate this Agreement and seek such remedies provided above. P6402/0459/764893.5 - 14 - ARTICLE 7. GENERAL PROVISIONS Section 7.1. Insurance and Indemnity. Section 7.1.1. Throughout construction of the Improvements and during the term of the Parking Easement, Owner shall take out and maintain, at no cost or expense to Agency, with a reputable and financially responsible insurance company reasonably acceptable to Agency, comprehensive broad form general public liability insurance, insuring Owner against claims and liability for personal injury, death, or property damage arising from the use, occupancy, condition, or operation of the Owner Parcel and the Improvements thereon, including without limitation, use of the Parking Easement, which insurance shall provide combined single limit protection, including contractual liability, of at least S1,000,000 per occurrence and $2,000,000 aggregate coverage. Such insurance shall name City and Agency and their officers, employees, and servants (collectively"Representatives"), as additional insureds. Section 7.1.2. Before commencement of any demolition or construction work on the Owner Parcel during the term of this Agreement, or the Easement Area during the term of the Parking Easement, or any portion thereof, Owner shall also procure or cause to be procured, and shall maintain in force until completion of said work (i) "all risk" builder's risk insurance, including coverage for vandalism and malicious mischief, in a form and amount and with a company reasonably acceptable to Agency, and (ii) workers' compensation insurance covering all persons employed in connection with work on the Owner Parcel, or any portion thereof. Said builder's risk insurance shall cover improvements in place and all material and equipment at the job site furnished under contract, but shall exclude contractors', subcontractors', and construction managers' tools and equipment and property owned by contractors' and subcontractors' employees. Section 7.1.3. Owner shall also furnish or cause to be furnished to Agency evidence satisfactory to Agency that any contractor with whom it has contracted for the performance of work on Owner Parcel or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. Section 7.1.4. With respect to each policy of insurance required above, Owner shall furnish a certificate of insurance countersigned by an authorized agent of the insurance carrier on the insurance carrier's form setting forth the general provisions of the insurance coverage. These countersigned certificates shall name Agency and City and their Representatives as additional insureds under those policies. The required certificate shall be furnished by Owner prior to commencement of construction of the Improvements. Section 7.1.5. All such policies required by this Section shall contain language to the effect that (i) the policies are primary and noncontributing with any insurance that may be carried by Agency or City, (ii) the policies cannot be cancelled or materially changed except after thirty (30) days written notice by the insurer to Agency and City, and (iii) neither Agency nor City shall be liable for any premiums or assessments. All such insurance shall have P6402/0459/764893.5 - 15 - deductibility limits reasonably satisfactory to Agency and shall contain cross liability endorsements. Section 7.1.6. Owner shall indemnify, hold harmless and defend Agency and its officers and employees, from and against all claims, damages, losses, proceedings, damages, causes of action, liability, costs and expenses, including but not limited to attorneys fees, arising out of, in connection with, caused by, or resulting from (i) construction of the Improvements and use of the Parking Easement, regardless of whether or not such claim, damage, loss or expense is caused in part by Agency; (ii) any act, omission or negligence of Owner or any lessee of the Owner, or their respective contractors, licensees, invitees, agents, sublessees, servants or employees, wheresoever on or adjacent to the Owner Parcel that the same may occur; (iii) any use of the Shopping Center or Easement Area, or any accident, injury, death or damage to any person or property occurring in, on or about the Shopping Center or Easement Area, or any part of the Shopping Center or Easement Area, or from the conduct of Owner's business or from any activity, work or thing done, permitted or suffered by Owner or its lessees, sublessees, contractors, employees, or invitees, in or about the Shopping Center or Easement Area (other than to the extent arising as a result of the Agency's sole active negligence or to the extent of any willful misconduct of Agency, but excluding any matter with respect to which Agency has or enjoys the benefit of sovereign immunity); (iv) any breach or default of the Owner hereunder or under any other agreement between the Owner and the Agency which pertained to the Shopping Center and which existed prior to the date of this Agreement; and (v) any other fact, circumstance or event related to Owner's ownership, use, improvement, construction, operation or disposition of the Improvements, the Shopping Center and the Shopping Center Property (other than to the extent arising as a result of the Agency's sole active negligence or the extent of any willful misconduct of Agency, but excluding any matter with respect to which the Agency enjoys the benefit of sovereign immunity), regardless of whether such damages, losses or liabilities shall accrue or are discovered before or after the Effective Date or the termination or expiration of this Agreement; and in case any action or proceeding be brought against Agency by reason of any such claim, Owner, upon notice from Agency, shall defend the same at Owner's expense by counsel reasonably satisfactory to Agency. These provisions are in addition to, and not in lieu of, the insurance required above. In claims against Agency by any employee or subcontractor of Owner, the indemnification obligation under this Section 7.1.6 shall not be limited by a limitation upon amount or type of damages, compensation or benefits payable by or for Owner under worker's compensation, disability or other benefits laws. The Owner's indemnity obligations set forth in this Section 7.1.6 shall survive the termination or expiration of this Agreement. Section 7.2. Notices, Demands and Communications Between the Parties. Notices, demands and communications between Agency and Owner shall be deemed sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of Agency and Owner. Such written notices, demands and communications P6402/0459/764893.5 - 16 - may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section. Section 7.3. Conflicts of Interest. No member, official or employee of Agency shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. Section 7.4. Warranty Against Payment of Consideration for Agreement. Owner warrants that it has not paid or given, and will not pay or give, to any third person, any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers and attorneys. Section 7.5. Nonliability of Agency and City Officials. No member, official or employee of Agency or City shall personally be liable to Owner, or any successor in interest of Owner, in the event of any default or breach by Agency or for any amount which may become due to Owner or successor or on any obligation under the terms of this Agreement. Section 7.6. Memorandum of Agreement. At the Agency's request, a memorandum of this Agreement shall be executed by Owner and recorded with the County Recorder of the County of Riverside. Section 7.7. Enforced Delay: Extension of Times of Performance. In addition to specific provisions of this Agreement, delay in performance by either party hereunder shall not be a default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; unusually severe weather; or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall only be for the period of the enforced delay, which period shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty (30) days after the commencement of the cause, the period shall commence to run only thirty (30) days prior to the giving of such notice. Section 7.8. Approvals by Agency and Owner. Wherever this Agreement requires Agency and Owner to approve any contract, document, plan, proposal, specification, drawing or other matter, such approval shall not unreasonably be withheld. Section 7.9. Plans and Data. Where Owner does not proceed with the construction of the Improvements, and when this Agreement is terminated with respect thereto for any reason, Agency shall be entitled to retain any and all plans and data pertaining thereto which are in the possession of Agency to the extent such plans and data are not confidential or contain proprietary information. P6402/0459/764893.5 - 17 - Section 7.10 Challenge to Validity. In the event of any challenge to the validity of this Agreement or any agreement entered into pursuant to this Agreement, then, at the option of the Agency, either (i) Owner shall either defend such challenge at the cost and expense of the Owner, with counsel reasonably satisfactory to Agency, or (ii) Owner shall reimburse Agency, upon demand, for the reasonable costs and expenses incurred by Agency in defending same, including reasonable attorneys fees. Section 7.11 Release of Agency Officials. No member, official, agent, employee, or attorney of Agency shall be personally liable to Owner, or any successor in interest of the Owner, in the event of any default or breach by Agency or for any amount which may become due to Owner or its successors, or on any obligations under the terms of this Agreement. Owner hereby waives and releases any claim it may have personally against the members, officials, agents, employees, consultants, or attorneys of Agency with respect to any default or breach by Agency or for any amount which may become due to Owner or its successors, or on any obligations under the terms of this Agreement. Owner makes such release with full knowledge of Civil Code Section 1542, and hereby waives any and all rights thereunder to the extent of this release, if such Section 1542 is applicable. California Civil Code Section 1542 provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Section 7.12 Authority to Execute. The persons executing this Agreement on behalf of Owner warrant and represent that they have the authority to execute this Agreement on behalf of their corporation, partnership or business entity and warrant and represent that they have the authority to bind Owner to the performance of its obligations hereunder. Section 7.13 Successors and Assigns. The provisions of this Agreement shall be binding upon, and inure to the benefit of, Agency and Owner, and their respective successors and assigns, as the case or context may require. Section 7.14 No Joint Venture. Nothing contained in this Agreement shall be construed to render Agency in any way or for any purpose a partner, joint venturer, or associated in any relationship with Owner, nor shall this Agreement be construed to authorize any party to act as agent for the other. Section 7.15. Entire Agreement, Waivers and Amendments. This Agreement, together with all attachments and exhibits hereto, constitutes the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. Any waiver or modification of any provision of this Agreement must be in writing and signed by the party to be charged. P6402/0459/764893.5 - 18 - Section 7.16 Execution in Counterparts. This Agreement, may be executed in two or more counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. Section 7.17 Severability. Each and every provision of this Agreement is, and shall be construed to be, a separate and independent covenant and agreement. If any term or provision of this Agreement or the application of such term or provision shall to any extent be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is invalid or unenforceable, shall not be affected hereby, and each term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law. Section 7.18 Exhibits. All Exhibits attached hereto are incorporated herein as if set forth fully in this Agreement. P6402/0459/764893.5 - 19 - IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the day and year first above written. AGENCY: PALM DESERT REDEVELOPMENT AGENCY By Title: ATTEST: Secretary APPROVED AS TO FORM: RICHARDS WATSON & GERSHON, AGENCY COUNSEL (Signatures continued on next page) P6402/0459/764893.5 - 20 - OWNER: AMERICAN INVESTMENT PALMS TO PINES EAST, LLC, a California limited liability company By Title: By Title: P6402/0459/764893.5 - 21 - EXHIBIT A LEGAL DESCRIPTION OF THE OWNER PARCEL P6402/0459/764893.3 .N litti fNIW{WAo> VM mixiatiel1t6W 1 • - • Contract No. R19820 ` cr) • tlf) WEQQ EHGIHEEflIHQ,IIIC, LEGAL In SCRIPTION • Juno 16, 1971 • PARCEL 2 (roc) That portion of the Southeast quarter of Section 19, Township S South, Range 6 East, San Bernardino Meridian, according to official Plat of said lend approved by the Surveyor General on July IS, 1156, doscribod as follows: Commencing at the intersection of the center line of that certain 100 foot strip of land commonly known os State Highway 14 , as conveyed to the County of Riverside by Deed recorded February 9, 1932, in Book 64, Page 353 of Official Records, with the center lino of that certain 100 foot parcel of land commonly known as El Paseo Road, conveyed to the County of Riversldo by Deed recorded • t August 6, 1961, as instrument No. 73929; THENCE South 19'30'40" West on the center line of E1 Paseo Road, a distance of 1059.46 feet; • THENCE' North 0.29'10" West to 'he North line of El Paseo Road; THENCE continuing North 0'29'20" West, a distance of 25.00 feet to the TRUE POINT OF BEGINNING. . THENCE North 0'29'10" Nest, a distance of 251.21 feet; THENCE North 119'30'40" East, a distance of 232 .00 feet; THENCE South 0'29'20" East, a distance of 166.00 feet; THENCE North 19'30'40" I t. a distance of 161.00 feet to a point in the Easterly line of Jeed granted to Safeway Stores , Inc. ; THENCE on a Southerly prolongation of said Easterly line, South O'29'20" East, a distance of 111.21 feet to a point in the Northerly right-of-way line of said El Paseo Road; THENCE along said right-of-way line South 119'39'40" Nest , a distance of 376.00 feet; THENCE North 44'19'11" West, a distance of 34 .66 feet to the TRUE POINT OF BEGINNING. LZIIIr1T "A" Palm I1ea.rt bon tazation St111t A MI11./...Il.al JAPI Au 6/22/11 IONN t.I1h101N.Vete h.t11.a1 1 C I M.aq" ANIMA N.IIMI • page S of 10 CIVIL INOIHIIINNI I] C] III LAST SUNNY OUNLS ROAD 0 0 PALM SPRINGS,CALIFORNIA 52262 0 0'MINK 11141 I2S•2 g • Contract No. R19820 • IA PARCEL 2 (cont'd) 0) Excepting therefrom the Northerly 5.00 feet as measured at right angaee end adjacent to the South tine of that said certain parcel co.iveyed to the State of California. • • • • • • • • I • LXIue1T "A" Fain b -2- Ilaclacatlon JAFI jl.0 6/22/ 71 pos• 6 of 10 • '. . ._ . - . . ...�.._w ------ _ Contract No. R19820.._... c • • TIMM cn 1�I100 [IIGIII(E01110,IIIC. LEGAL DESCRIPTION PARCEL 4 Mc) That portion of the Southeast one-quarter of Section 19, T. S S. R. E. , S.0.0.• 4, U. , in the County of Riverside, State of California, according to the Official Plot thereof, tescrlbed as follows{ COMMENCING at the Intersection of the centerline of that certain 100 foot strip of lend commonly known as State IlLghway 74, es conveyed to the County of Riverside by Deod recorded February 9 1932 in Book 61 Page 373 of Official Records with the center- line of that certain 100 foot parcel of lend commonly known as' E1 Paseo Road, conveyed to the County of Riverside by Ueed recorded August 6, 1962, as Instrument No. 73924; THENCE South 69'30'40" West, along the centerline of said El Paseo Road, a distance of 6S9.46 feet to the intersection of the Southerly prolongation of the East line of the land described In the Deed to Sierra Shopping Centers, Inc. , a California Corpor- • ation, recorded August 6, 1970 as Instrument No. 77366 of Official • Records; THENCE North (0'29'20" West, a dl-tenee of S0.00 feet on said prolongation to • point on the Norther 'y right-of-way line of said El Paseo Road; THENCE North 69'30'40" East, along said Northerly right-of-way line of El Paseo Road, a distance of 134. 11 foot, said point being the TRUE POINT OF BEGINNING; • THENCE North 0'29'20" West, a distance of 300.00 feet; THENCE North 69'39'40" East:, a distance of 41 . 5) feet; • THENCE North 0'29'20" West, • distance of 212. 55 feet to a point on the Southerly right-of-way line of State Highway Ill , es described In the Deed to the State of California, recorded December 24, 1964 as Instrument Ho. 152692 of Official Records ; THENCE South 65.57'07" East along said Southerly right-of-way line, a distance of 66.21 feet; THENCE leaving said Southerly right-of-way line !,outh 0'29' 20" East, a distance of S07. 1S feet, to a point in the Northerly right- of-way line of said El Paseo Road; THENCE along sold right-of-way line South 89'30'40" West, a distance of 111 .0 foot to the TIWE POINT OFF IIEGINNINI;. Rent A MK tilt• .l LXIIIIIT "A" rala D...rt Meal MOM.Vito MINIM l 61an1 Shams Declaration IMOUSM.Met IIISHoff JArlihu 6/11/)1. pp CIY{l LNOINILIIINO 00 its IASI WNW DIMS ROAD 0 0 PALM SPAIHDS,CAlilt 'NIA 92262 0 0 IIILPH5hht 119914rJ2$224S _ �J ••• Contract No. R19820 • PARCEL 4 (cont'd.) 41 O Excepting therefrom the Northerly 5.00 feet as measured et right angles and adjacent to the South line of that said certain parcel conveyed to the State of California. • • • • • • • . LA11tai? "A" • rain U....ct __. Uact.r.tten JArtJho 6/22/71 peso 10 of 10 • EXHIBIT B SHOPPING CENTER SITE PLAN P6402/0459/764893.3 • i ‘...... ...."" 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II ,..—...., A • —. . . . - - —•-IfillflU --- . ... . . . .. ..,. ...................... .••••••-• .. .---• /11 A' 7 • -• Ammr•o,.1- -. .... •••••••••••AnAl••••••••••••••••••••••ftemmooree, I • .i I • ... . . • •• i . ... .. . -. . • EXHIBIT C HWS PARCEL P6402/0459/764893.3 • • Contract No. R19820 MOD ENGINEEflINO,INC. • LEGAL DESCRIPTION June 16, 1971 . PARCEL. 1 (Safeway) That portion of the Southeast quarter of Section 19, Township S South, Range 6 East, San Bernardino Meridian, according to Official Plat of said land approved by the Surveyor General on July 1S, 1856, described es followat Commencing at the intersection of the center line of that certain 100 foot strip of land commonly known as State Highway 74 , as conveyed to the County of Riverside by Deed recorded February 9 , 1932, in Book 64, Page 353 of Official Records , with the center tine of that certain 100 foot parcel of lend commonly known as El Paseo Road convried to the County of Riverside by Deed recorded August 6, 1962, us Instrument No. 73929; THENCE South 89'30'40" West on the center line of El Paseo Road, 1059.46 feet; THENCE North 0'29'10" West to the North line of El Paseo Road; THENCE continuing North 0'29'20" West, a distance of 283.21 feet to the TRUE POINT OF BEGINNINq. THENCE continuing North 0'29'20" West, a distance of 105.00 i - feet t a point that bears South 0'29'20" East, a distance of 160.4 ;eet from the South line of that certain parcel conveyed to the - rite of California by Deed recorded December 24, 1964 , as Instru- ment No. 152892; THENCE North 89'30'40" East, a distance of 200.00 feet; THENCE North 0'29' 20" West, a distance of 150.00 feet to thu South line of the parcel conveyed to the State of California above ro f'rred to; THENCE South 87'30'37" East on the South line of said parcel , a distance of 167.41 feet to an angle point in said line; THENCE South 85'57 '07" East on the South line of said pnrcel , 32.93 feet; EXIIl 8II "A" Pala Desert Ueclerstion nutlet A am.h.naal JAP2 jhu 6/22/71 WIN►.MINN.Ta, ?.Weal I Gomel Neagee ANIMA N.VIM.Wooly, , peas 3 of 10 CIVIL LNGINll111N6 0 IJ 611 IASI SUNNY OUNIS ROAD 0 0 PALM SPRINGS,CALIFORNIA 92262 0 D ItLtPIIUNC I/141 32S•224S Contract No. R19820 • In 0 PARCEL 1 (cont'd.) Cr) TIIENCI! South 0'19'10" East, a distance of ,09.7E feet; THENCE South 89'30'40" West, a distance of 161.00 feet; THENCE North 0'29'20" West, a distance of 166.00 feet; THENCE 5buth $9'30'40" West, a distance of 232.00 feet to the TRUE POINT OF BEGINNING. Excepting therefrom the Northerly 5.00 feet as •measured at right angles and adjacent to the South line of that said certain parcel conveyed to the State of California. • • LAIIlalT "A" 'elm Deport b•cl•r•tlon JAft Jhu 6/I2/h1 '1• pose 4 a! 10 EXHIBIT D QUINTO PARCEL P6402/0459/764893.3 d UMMI wasMl. rl • . •. -. •- - • Contract No. R19820 • • • MN Elhalh1IRINO,INC. LEGAL DESCRIPTION June 16, 1971 PARCEL 3(Thrifty) That portion of the Southeast one-quarter of Section 19, Town- ship S South, Range 6 East San Bernardino Meridian, in the County of Riverside, State of California, according to the Official Plat thereof, described as follows) Commencing at the intersection of the centerline of that cer- tain 100 foot strip of land commonly known as State Highway 74, ■s conveyed to the County of Riverside by Deed recorded February 9 1932 , In Book 64 Page 373 of Official Records with the centorline of that certain 100 foot parcel of land commonly known as El Paseo Road, convoyed to the County of Riverside by Deed recorded August 6, 1962 as Instrument No.73924; , THENCE South 119'30'40" West, along the centerline of said E1 Paseo Road, a distance of 659.46 feet to the intersection of the Southerly prolongation of the East line of the land described in • the Deed to Sierra Shopping Centers, Inc. , a California Corporation. recorded August 6, 1970, as Instrument No. 773116 of Official Records; THENCE North O'29'20" West, a distance of S0.00 feet on said prolongation t'+ a point on the Northerly Right-of-Way line of said El Paseo Road, SAID point boing the TRUE POINT OP BEGINNING. THENCE North 89'30'40" East, along said Northerly Right-of-Way Iine of El Paseo Road, a distance of 134.11 feet; THENCE North 0.29'20" West, a distance of 300.00 feet; THENCE North 119'30'40" East, a distance of 41.61 feet; THENCE North O'29'20" West a distance of 212.SS feet to n point on the Southerly Right-of-Way line of State Highway 111 , as described In the Deed to the State of California, recorded December 24 , 1964 es Instrument No; 1S2$92 of Official Records; • THENCE North BS'S7'07" West, along said Southerly Right-of-Way line, a distance of 162.37 feet to the East line of thin land described In said Deed to Sierra Shopping Centers, Inc. ; • • EX111g1T "A" 1'sIni M.•rt PoeI.tstton MINI A MIA In1Il.,I JAPI)Isu 6/22/71 IONN I MOOR,.lint Menial I.town Montle. MINIS MIL I....ln, peso 7 of 10 CIVIL IN61Nt111Nt U 13 111 IASI SUNNY OUNIS AOAO I] 0 PALM S►MINOS.CALI10A111A 72262 0 0 111.1111001 17141 125 2245 • CA\ Contract No. R19820 O) • C) PARCEI. 3 (cont'd.) TIIENCE lesv1ntt sold Southerly right-of-way line South 0.29' 20" East, a distance of S26.99 feet on said East line to the TRUE POINT OF BEGINNING. • • • • • EXHIBIT "A" • relit Deem Declaration • JAP:Jhu 6/Z?/11 -2- p.de 6 of 10 EXHIBIT E FACADE IMPROVEMENTS P6402/0459/764893.3 i 1 ,11.., 1 il 1 se RI 1 Zi.. IL i 11 ,r_ 44 [ --r-: I r''D IV! 11 F;; '_ @@ 1 11 1! n: 11 •j . iv. +I . • Y i- li.i.i) I I P +[ .4011 . 1 - •i t)f_ ■.■ ... _ I 1 I - ;.• si :. ••a ■■ .uU. t raffia !IP Pima 13i.--•i1MMINI 0,00010. Alialimil G7LS�[� w• Oeufta• A. 6oPw1■ I A :. tOGlill OQ ��- ArehM... �. ��- a.� •M C t.e..w•0...�vl«F•A.lulls.0 ■� I ��� PALMS TO PINES EAST CENTER ESTIMATED BUDGET FOR RENOVATION SCENARIO # 2- RENOVATION TO MATERIALLY UPGRADED STATUS CATEGORY ESTIMATED EST. OWNER/TENANT ESTIMATED COST CONTRIBUTION VARIANCE SITE- To Meet Current City Standard Parcels 1, 3 & 4 1,111,000 0 1,111,000 (See Attached Detail) BLDG. FACADES Building 2 350,000 (350,000) 0 72- 815 Hwy 111 By Master Tenant New Tenants and/or Tenant Building 3 350,000 (125,000) 225,000 72- 875 Hwy 111 By Tenant Rite Aid r Building 5 200,000 (111,000) 89,000 72- 820 to 880 By Owner El Paseo Sub-Total Facades 900,000 TOTAL 2,011,000 (586,000) 1,425,000 PD2Doc.30L PALMS TO PINES EAST CENTER ESTIMATED BUDGET FOR RENOVATION COST OF FACADE IMPROVEMENTS BUILDINGS 2, 3 AND 5 CATEGORY PERCENTAGE ESTIMATED COST General Conditions 7.00% 63,000 Demo 6.50% 58,500 Structural(concrete, 38.00% 342,000 framing, steel, etc.) Weather Proofing(sheet 8.50% 76,500 metal, roofing, etc.) Exterior Finishes (stucco, 20.00% 180,000 paint, etc.) Mechanical, Electrical, 7.00% 63,000 Plumbing General Contractor Profit & 6.00% 54,000 Overhead Contingency 7.00% 63,000 Total 100.00% 900,000 pddoc.301 EXHIBIT F ACCESS IMPROVEMENTS P6402/0459/764893.3 • STATE HI&HV4AY til m 4 11, w ••-millit --s .." .. •41 4. ac' i i4%•.• • 's: N . - -,_._ . - --I N t gii�� 74: ‘ vy th. 4, . . . .44 Ilk, 1 trk -Ai or:v.• e/ ,0;14 1► / '�V ilf • .101111111. . ‘A r riiplArioihki, Ie. %. d ‘1 •. - \ 1 . AlOr Oft, 411Prit. Air. iiiih. NI OPplio_ I .01 PR / i_ 0 \ ,„,/ I .03-41,... . 1' diatidt1 ..—J • ii.V:/ Arilmmoor. . .., A irill Ni.... ••• ...••• hi ib. AV'illyk t . 9 0. ..o. -•, I ippppr-',A) Va .. .: -4. A.• 4:5• ,4•:, di, , ...i,-•.! 4.4 �•.ice.,'4,}5 ,� 4 44411111110.6. liv, . EXHIBIT G COMMON AREA IMPROVEMENTS P6402/0459/764893.3 4Y=1 111111 VilitJUJI IVJ ICI J../JU g A 2J31N30 ONIddOHS dfl0J I i' I U 1 all'i ill SaNld 01 StAllVd 1N3INIS3ANI NV012:13WV I I 1 V 1 t § >" a I 1 I I 0 z ' . 16J g g 1 2 ? 1 i to = cn 0 0 1 i 1 P i 1 l 11 VI- , 11 I i 1 2) i 1 i 1 i ! VI !III 1- 11 21 il 1) b 1 1 i I ?t3 0 I I I!- WI e,-.-;0 0€30410 * .., ‘rawriiip • Air".tw ..:.4.740r...Nr.Abours'1,5,4 r •.. ,,...,,, .0 —„,. i 6,.,,,, +. • 4,4,1*,,, 1, A... 1,1 itr%11)*. 4,. . F. ..i, mi* I N a yip :::16blvo 4 s. 4 • .0 ..44,.:....:4*. ,• 0 ip,,,„.. 1, ,..„„4..,.. . , , ook,•._Aw . ..,... ,,,_.*IrA • t' tc,i ,4„,,,... 4 ,.,,,,. lou, •,lo '. sAeli ,.,__ . I ,...t\vo.4, .... ......, __ • z.,.. 4 1.,,,,„. • -,,,A&4 . , P 4 1 1 — 4 A 11 : !Plif .-.- will';'4F41041;0411L i . t 1 Z Am. .4 ''e 0 . .A• _.,,Iv+ Abb...op. 1 4,0„:,„4•%, •, . 1 „.., 11 , • '"... itsii,' ..• A ,f• • .41iN0-4 , ',4•-rAk* . -kvio .......-----. F-- „..).sTy...A.3 , iti 1 • - , N .. i 1 Cl) ........ I I •m. t n I im 1 s ' '6 ,..• , . tto . ;am _ . ji UJ U) II 411 a 4:- ) Art(I 'At . 0 i iia 4 V mo 1 VW = i CL . . 1 A 4 ir Ili iii (4. i a ic.4 1 !I il.. lip -.4;:,_0 . .- -- 10 Ih'..4. I! 1 AW WYM Et CL . .. . . ,„. .. ..... .... .._...., ...... . .- , iv.aurM ; AMth1CAN INVESTMENT-+ 760 340 2041;# 3 Palms to Pines Shopping Center - Palm Desert, CA ES MA E IF P'OB ' _ SITE CONST- CT1ON COSTS Scheme 3 - Partial Parking Lot Repair and Replace C ONFIC;URAI ION C)f= SITE;Fxi;mut parkinct lot cnnfilioi. t)on exc.' t)I fro ncev rir,ln,wrmr„1•; Hilly f I Fctclril-nhy• 5;tap1es Pier Oiu• PAVING '=.TflATFC V I Ir,(1 AC S,all Coil), Rrpt:lre t';t iw i AC. Curl). Add f.,1))ic rout AC L,y.'r r;.' ,.^nlninder 01 p.ukin•t lot (1'Jolr� L,:hm:Ttr rxrfU(lCs Staples poi lion of +;itr) (Reference:Site Plan Dated:August 312001) Estimate Updated: 10/31/01 COST (Prevailing ITEM/DESCRIPTION UNIT Wage) SUBTOTAL EXTENSION I.DeAltIAQZ A. Parking Lot Drainage(Southeast parking quadrant)—improve parking lot drainage 10000 S.F. $1.50/S.F.i $ 16,000.00 Sub-Total , $ 16,000.00 )l.CONCRETE UNIT' COST ' SUBTOTAL ! EXTENSION A. Demolition=Concrete Sidewalks Al. Paving Demolition Site/Parking Lot MC $1.00/6.F. NIC ✓ . 1 • NIC $1,00/S.F., MC AS.Paving:Demoiklon 0 Buildings- Remove all existing pedestrian sidewalk • and dispose of off-site MC $1.00/S.F.1 NIC B. Curb Demolition RI.Curb Demolition Site/Parldng Lot• Remove parkltj lot planter curbs. 2000 L.F. $3.60/LF. $ 7,000.00 750 S.F. $3.50/L.F.1 NIC 83.Curb Demolition 0 Buildings (excluding Staples)-Remove curbs and apcess ramps adjacent to buildings. 1100 L.F. $3.50/L.F,' $ 3,850.00 C.New Paving•Install new sidewalks (standard grade) C1.New Sidewalks•Site/Parking Lot SO entry only) 900 S.F. $3.50/S.F., $ 3,150.00 ^` 4200 S.F. $3.50/S.F. MC 03.New Sidewalks- ® Buildings 10800 S.F. $3.50/S.F.' $ 37,800.00 D.New Curbs Dl.New Curbs Slte/Partcing Lot- Replace all existing parking lot planter curbs,add new parking lot planter curbs. 2000 L.F., $15.00/LFi$ 30,000.00 Scheme-3 David Evans and Associates Page 1 of 8 • i u-: -.50 ;10:31F ; AMERICAN INVESTMENT-, 760 340 2041 ;« L i 750 S.F.I $15,00/L.F. NIC D3.New Curbs ® Buildings-Replace all existing curbs adjacent to the. ! l building. I 1100 L.F.1 $15.00/L.F. $ 18 500.00 DD.;New Gravity Curbs I PD1,51 T- P .AeJ /A$ 1.07' 350 LF.I` $15.00/LF. $ 5,250.00 1 V 400 LF.[ $15.00/L.F. NIC E.Loading Docks-Install new concrete paving ® loading docks(See Architecture) NIC MC F.ADA Access Ramps F1.Access Ramps 0 Parking Lot 21 $760.00 ea. $ 1,500.00 F1.Access Ramps *Staples ( NIC 1 $750.00 ea. MC I • F1.Access Ramps 0 Building I 41 $750.00 ea. $ 3,000.00 1 Sill?-Totall $ 108,050.00 III. OMiT I r IV.PARKING LOT PAVING UNiT COST SUBTOTAL ' EXTBNSIOP A.OMIT B. Paving Demolition-Remove bad portions of parking lot paving and dispose of off-site. _ t I B1.Site Parking Lot 60000 S.F. $1,00WS.F; $ 50,000.00 . MC I $1.00/S,F, NIC C. Paving-Replace bad portions of A.C. paving with new sub-base and asphalt paving V Cl. Site Parking Lot 1 50000 S.F.I $3.50/S.F. $ 175,000.00 ' _ � NIC $3.50/S.F. MC i CC. Paving-Crack Filling;Fabric; and 1 Layer of AC I . V CC1.Site Parking Lot 75000 S.F. $1.10/S.F, $ 82,600.00 NIC $1.10/S.F. MC D. Sealing- Reseai entlreparking lot. D1.Site Parking Lot ,_,__ • , _„V 126000 S.F. $0.40/S.F. $ 50,000.00 55000 S.F.' $0.40/S.F. MC E.Striping-Restripe entire parking lot, / D1.Site ParklnpLot IAltow $ 2,000.00 V Mow I MC - D.Textured Paving Upgrade- Provide ` , Interlocking Concrete Pavers at each entry + dive• I I D1.Site-Primary Entry 0 Hwy. 111 MC $6.00/S.F. MC D2.Site-Secondary Entry 0 El Paseo (east end) NIC $8.00/S.F. NIC . 03.Site•Additional Pedestrian Crosswalks In the Parking Lot _ MC $s.0a/S.F. Mc •• NIC i $8.00/S.F. MC NIC ! $8.00/S.F. NIC Scheme-3 David Evans and Associates Page 2 of 83 mr.ntvnlV iirvtsiMtill-' 700 340 2041 ;# 0 7l MC $8.Q8/S.F. MC Sub-Tote!! $ 359,500.00 V.WALLS&TRASH ENCLOSURES ) UNITI COST SUBTOTAL EXTENSION' • A. Demolish and remove CMU wall and f tooting along Highway 111.(By City as part' of Hwy.111 widening) _ MC MC , B. Demolish and remove existing trash enclosure walls,gates and paving. Allow ; $ 3,000.00 Cl.Trash:Enclosures Site—Construct I new 10'x 40'x 6' high masonry wail I trash enclosures with locldng gates; Wall finish,color and texture to match / the building 1; $10000.00 ea.! $ 10,000.c.: i V _ • i $10000.00 ea. NIC D. New Stucco Finish- Provide stucco finish to both sides of existing block wall i I' along El Paseo • 550 LF. $12.00/L.F. S 8,800,00 { iI Sub-Total! i $ 19,800.00 V VI. FURNriIRS do SIGNAL, UNIT' COST SUBTOTA,. . EXTENSION A..Provide new outdoor furniture to , include: 0 Trash Receptacle— 181 $400.00 ea., $ 7,200.00 _ 0 Cigarette Urn— 9 $250.00 ea. $ 2,250.00 0 Bench— 81 $800.00 ea. $ 4,800.00 0 Bicycle Rack— 3 $500.00 ea. $ 1,500.00 0 Shopping Cart Corral(By Tenant) NiC I MC B. Primary Monument Sign-Remove and i replace the existing monument sign; Replace with 2 new signs 2 $12500.00 ea. $ 25,000.00 C.Secondary Project Sign ® Plaza/Paseo 1 Remove and replace the existing wood sign ' with a new,low profile masonry monument sign _ 1 $5000.00 ea. $ 5,000.00 --i D.Secondary Entry Slgnage 3 $3000.00 sal $ 9,000.00 E.Signago-Provide directional site and handica• stall sl• - •er ADA standards. 16 $350.00 ea.,$ 5,250.00 • Sub-Total , $ 00,000.00 • i GHTING1 UNIT COST SUBTOTAL 1 EXTENSION A.Lighting New Primary Monument Signs— 1 Assume channel lighting by stgnage II i manufacturer NIC ! MC j Scheme-3 David Evans and Associates Page 3 of 6 .- „ i nm6.NlvANI ,rvvt�i MrNT-+ 760 340 2041;>r 7 . • B.Lighting Secondary Monument Sign— Assume channel lighting by signage manufacturer MC MC C. New Parking Lot Lighting , 7 $5200.00 ea., MC ! C2. Site-New Parking Lot Ughting- y New pole, base and fixture(assumes I some new lights will be necessary--3 0 i entry&8 on site) ' 9 $5200,00 ea. $ 46,800.00 i C3. Reuse existing base and refirbleh i fixture(Assumes 2-3 are unusable) y I 8 $2825.00 ea.: $ 22,800.00 D.New Conduit and Power Allow $ 25,000.00 1 E.Thematic Landscape Lighting I NIC NIC I F.Controller-Assume Photocell I Included 1 . Included I G.Lighting-Thematic Lighting at Date Palms ® Entries I MC $ 1,800.00,� MC H.Gonting�ncy for miscellaneous repair ( ' and tempoary lighting Mow I $_ 5,000.00 I Sub-Total 1 ` S 99,400.00 VIII:IRGATION UNIT COST, SUBTOTAL I EXTENSION A.All new Irrigation system Including; backflow prevention,automatic controllers, pipes and sleeves under pavement,spray and:bubbler sprinkler heads. N 9450 S.F.1 $2.00/S.F., NIC A2-Pler One I 3500 S.F. sc.00/c.r. $ Z000.0o I 43-New Entry/Hwy 111 Edge 12500 S.F., $2.00/S.F. $ 25,000.00 I ' A4-Remalning Site 4600 S.F. $2.00/S.F4 $ 9,200.00 I B.Additional Trench 0 AC-Trench, Patch 'and.Repair 750 L.F.I $2.751L.F. $ 2,062.50 I Sub-Totall I $ 43,282.50 IX.PLANTING UNIT COST SUBTOTAL ; EXTENSION A.36`Box Accent Trees at Primary Entry 1 only(No Date Palms at entry) k' I 12 $ 850.00 $ 10,200.00 I B.Trees , t B1.Trees 0 Staples—Provide new 24" f Box trees. Double stake the tree for I support. 32 $ 350.00 i MC 1 B2.Trees ® Site—Provide new 24" I Box trees. Double stake the tree for support 19 $ 350.00 1 $ 8,850.00 1 83. 18"Root barrier at box trees 1 { (Assume 18 trees 0 20 LF/tree) 380 LF. $5.o01LF. $ 1,eoo.00 I C.Fan Palms•Provide 16-20' (BTH) I 1 I ' Washingtonla robusta palms to match f existing palm trees 1 MC Ls 1,200.00 , MC Scheme-3 David Evans and A■soelates Page 4 of 8 _ - .. , ,,,..,crm , Am: LLAN iNUtIMNI-+ 760 340 2041 ;# 6 D.Palms•Adjust/Relocate existing palms on site as necessary to avoid conflict with 1 planter curbs. 151 $ 500.00 , $ 7,500.00 E.Existing Palms-Prune all of the existing 1 palms to remove dead palm fronds. Also, skin the trunks (remove the ends of the exposed petioles)so;net the trunk surface is smooth. 33 $160.00 ea 1$ 4,950.00 F.OMIT _ G.Shrubs(0 reduced standard,similar to ; . Staples-4 per 100 SF) _ _ _ NIC $ 22.00 i NIC G2. Pier One (3500 SF) 140 $ 22.00 ,' $ 3,080.00 G3.New Entry/Hwy 111 Edge(12,500 + I y • SF) 5001 $ 22.00 $ 11,000.00 G4. Remaining Site 4600 SP 185 $ 22.00 $ 4,070.00 1 J.Vines—Provide 15 gal.vines at all vine pockets;attach to structure with wire fasteners 40 $ 76.00 i$ 3,000.00 K. C.,rd e,'iv r(i/7 ut all planiUig die0t) I MC $0.50/S.F., NIC K2. Pier One 1760 S.F. $0.60/S.F.{ $ 876.00 ' , K3.New Entry/Hwy 1'1 Edge 8250 S.F. $0,50/S.F., $ 3,125.00 K4. Remaining Site 2300 S.F. $0.50/S.F.' $ 1,150.00 L. Pruning-Prune existing trees to shape, remove dead wood,and stimulate growth 7 $ 200.00 $ 1,400.00 M.Mulch-Planting Areas in Parking Lot- • Provide 3"layer of tan decomposed granite / over weed barrier/shade cloth NIC $0.75/S.F. MC 1 M2. Pier One 3500 S.F.I $0.75/S.F.: $ 2,625.00 1 _ H Ma. New Entry/Hwy 111 Edge 12500 3.F. $0.75/S.F. $ 9,375.00 1 M4. Remaining Site 4800 S.F., $0.75/S.F. $ 3,450.00 j N.Turf-Provide turf from sod at entry drive corners. 4400 S.F. $1.00/S,F.; $ 4,400.00 O. 90 Day Maintenance for Plant i Establishment - t - . Vi 9450 S.F; $o.06/S.F. NIC i_ 02-Pier One ' 3500 S.F. $0.06/S.F.1 $ 210.00 03-New Entry/Hwy 111 Edge 12500 S.F. $0.06/S.F. $ 760.00 I . 04-Remaining Site 4800 S.F. $0.08/S.F. $ 276.00 .. 1 Sub-Totall I _$ 79,986.00 r I 1 1 i Scheme-3 David Evans and Associates Page 5 of 6 ivv mem.» 760 340 2041400 SUMMARY of PROBABLECOSTS SUH•TOTAL Landscape Rennovation: {$ 704,798.50 20%Contingency: I S 168,959.70 Construction Coat Sub-Total: IS 941,756.201 Construction Management 110%Site Work): S 94,176.82 Professional Design Fees(8%Site Work): I $ 76,340.88 TOTAL S 1,111,274.68 This estimate specifically excludes any Items which are not listed L herein Including all Items which are connected to,within,or appurtenant to the buildings. All underground utilities are also excluded with the exception I of underground service for Irrigation and parking lot lighting. [ l , • Scheme-3 David Evans and Associates Page 8 of 8 EXHIBIT H PARKING EASEMENT AGREEMENT P6402/0459/764893.3 Contract No. R19820 EXHIBIT I Recording requested by and when recorded return to: Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, CA 92260 Attention: Secretary Free Recording In Accordance with Government Code Section 6103 EASEMENT AGREEMENT This Easement Agreement is made and entered into as of the _ day of , 2002 (the "Effective Date"), by and between the PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"); AMERICAN INVESTMENT PALMS TO PINES EAST, a California limited liability company ("Al"); HWS PALM DESERT, a ("HWS"); QUINTO CORPORATION, a corporation ("Quinto"); RITE-AID CORPORATION, a corporation ("Rite-Aid"); PROPERTY DEVELOPMENT ASSOCIATES, a ("PDA"); STAPLES CORPORATION, a corporation ("Staples"); BIG FIVE SPORTING GOODS, a corporation ("Big 5"); and, PIER ONE IMPORTS, a ("Pier One"). (AI, HWS, Quinto, Rite-Aid, PDA, Staples, Big 5 and Pier One are hereinafter collectively referred to as the "Grantors," and from time to time individually referred to as a "Grantor"). RECITALS This Agreement is entered into with reference to the following facts: A. Agency is a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under the Community Redevelopment Law of the State of California. B. AI is owner in fee simple of certain parcels of real property that are located between Highway 111 and El Paseo in the City of Palm Desert, California (the "City") and which are more particularly described on Exhibit A attached hereto and made a part hereof(the "AI Parcel"). The AI Parcel is part of a shopping center development known as the Palms to Pines East Shopping Center (the "Shopping Center"). A site plan of the existing Shopping Center is attached as Exhibit B. C. HWS is owner in fee simple of another parcel of real property that is also a part of the Shopping Center and that is currently leased to Staples and Big 5, and which is more particularly described on Exhibit C attached hereto and made a part hereof(the "1-IWS Parcel"). OPA_Parking Easement_2.5 ver. - 1 - Contract No. R19820 D. Quinto is owner in fee simple of another parcel of real property that is also a part of the Shopping Center and that is currently leased to Rite Aid, and which more particularly described on Exhibit D attached hereto and made a part hereof(the "Quinto Parcel"). E. Grantors are redeveloping the Shopping Center by constructing: a new 23,000 square foot building in place of the three existing vacant buildings; constructing a 4,000 square foot expansion of an existing building; constructing facade improvements on the existing Shopping Center structures; constructing a new entry/exit from Highway 111 on the north side of the Shopping Center; and, constructing upgrades to the Shopping Center common areas and parking lots as shown on Exhibit E attached hereto and made a part hereof (the "Common Area Improvements"). The Common Area Improvements shall be constructed on the AI Parcel, the HWS Parcel, and the Quinto Parcel, which collectively are referred to as the "Shopping Center Property." The property described in Exhibits A, C, and D are collectively referred to herein as the "Grantors'Parcels." F. The Shopping Center Property and Grantors' Parcels are located in Project Area No. One (the "Project Area"), in the City of Palm Desert, California, and redevelopment of the Shopping Center is in accordance with the Redevelopment Plan for the Project Area. City is in need of public parking. Agency desires that the Common Area Improvements be made so that Agency may obtain certain parking rights in the parking lots located on the Shopping Center Property. G. Agency and AI entered into an Owner Participation Agreement, dated , 2002 ("the Owner Participation Agreement"), regarding, among other things, AI entering into separate agreements with the other Grantors to complete the Shopping Center redevelopment, including without limitation, the construction and use of a parking lot on a portion of the Grantors' Parcels, which portion is described in Exhibit F(the "Easement Area"). H. Pursuant to the Owner Participation Agreement, Grantors desire to convey an easement in perpetuity to the Agency for the use thereof by the public generally, including but not limited to visitors to and customers of the businesses operated by the Grantors on each of the Grantors' Parcels. NOW THEREFORE, in consideration of the mutual covenants and easements contained herein, the parties hereto agree as follows: 1. Definition of Terms. "Agency" means the Palm Desert Redevelopment Agency and any assignee of, or successor to, its rights, powers and responsibilities. The Agency is a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under Chapter 2 of the California Community Redevelopment Law. "City" means the City of Palm Desert, County of Riverside, State of California. "Easement" means the Easement described in Section 2 of this Easement Agreement. "Easement Area" means those portions of the Grantors' Parcels subject to the Easement, as described in Exhibit F(the "Easement Area"). - 2 - Contract No. R19820 "General Public" means the public generally, including but not limited to visitors to and customers of the businesses operated by the Grantors on each of the Grantors' Parcels "Grantors" means those entities owning in fee or holding leasehold interests in the Grantors' Parcels, including the successors and assigns of such entities. "Grantors' Parcels" means the real property described in Exhibits A, C, and D hereto. "OPA" means the Owner Participation Agreement dated as of , 2002, by and between the Agency and AI. "Parking Lot" means the public parking lot to be developed and operated on the Easement Area pursuant to the OPA and as further specified herein. "Parking Lot Site" means the Easement Area on which the Parking Lot is to be located, as shown on Exhibit F, attached hereto and incorporated by reference herein. "Project Area" means Project Area No. 1 of the City subject to the Redevelopment Plan. The exact boundaries of the Project Area are specifically described in the Redevelopment Plan. "Redevelopment Plan" means the Redevelopment Plan for Redevelopment Project No. 1 approved and adopted by the City Council of the City by Ordinance No. 80 on July 15, 1975. "Site Map" means the map attached hereto as Exhibit B and incorporated herein by this reference. 2. Easement. Grantors hereby establish and grant to Agency a non-exclusive easement, for a period of fifty-five (55) years from the Effective Date, in, to, over and across the Easement Area, for allowing the use of the Parking Lot by the General Public for the purpose of the pedestrian and vehicular ingress, egress, and parking of passenger vehicles, as described in further detail below. 3. Reservation of Rights. a. Grantors hereby reserve the right to temporarily close all or any portion of the Parking Lot: (i) during customary non-business hours; (ii) as Grantors deem legally necessary and sufficient in order to prevent the dedication thereof or an accrual of any rights in any particular person or the public generally; or (iii) as reasonably necessary to perform maintenance or repairs. Any such temporary closing by Grantors shall be subject to the prior written consent of Agency, which consent shall not unreasonably be withheld or delayed. b. Grantors hereby reserve the right to institute reasonable, non-discriminatory rules and regulations for the use of the Parking Lot Site and operation of the Parking Lot in order to insure the free flow of traffic throughout the Parking Lot. Grantors shall not permit the Parking Lot Site to be used in a manner which would interfere with the free flow of vehicular and pedestrian traffic throughout the OPA_Parking Easement_2.5 ver. - 3 - Contract No. R19820 Parking Lot. Any such rules or regulations shall be subject to the prior written consent of Agency, which consent shall not unreasonably be withheld or delayed. 4. Permitted Uses. The parties agree that the Parking Lot Site shall be used only for the following purposes and for no other purposes whatsoever, unless all parties hereto agree otherwise in writing: a. Pedestrian and vehicular ingress, egress, and vehicular parking by the General Public. Parking shall be permitted only in designated parking stalls. No portion of the Parking Lot Site shall be used for the repair or storage of vehicles; b. The temporary use (including erection of ladders, scaffolding and building wall barricades) during periods of construction, remodeling or repair, for ingress and egress for vehicles transporting materials and equipment and the use thereof by construction equipment; provided, however, all such construction, remodeling or repair of buildings and building appurtenances shall diligently be performed, and any such ladders, scaffolding and barricades shall promptly be removed upon completion of such work; c. The maintenance and repair (with replacement, if necessary) of parking sites or stalls, sidewalks, ramps, driveways, lanes, curbs, gutters, traffic control areas, signals, traffic islands, traffic and parking lighting facilities, planters, planting boxes, edgers, sprinklers, valves, and landscape shrubbery; d. The installation, maintenance and operation of public utility services and appurtenances necessary for servicing the improvements on the Grantors' Parcels, all of which shall be located below the surface of the finished paving or above ground improvements. Grantors shall not change the number or configuration of parking spaces on the Parking Lot Site, nor the direction or flow of traffic or entry or exit from the Parking Lot Site; provided, however, Grantors may submit a Parking Management Plan to the Agency for the Agency's approval to maximize the safe and efficient use of the Parking Lot for the benefit of the General Public. Notwithstanding the foregoing, at the reasonable request of the Agency, the Grantors shall use commercially reasonable efforts not to permit the employees of the Grantors or their tenants at the Grantors' Parcels from parking their vehicles at the Parking Lot while working at the businesses on the Grantors' Parcels. Grantors, at their own expense, may provide an attendant or valet at the Parking Lot. The term of any agreement between the Grantors, or any of them, and a person or entity providing attendant or valet services, including all renewal options, shall be no longer than 90 days. Any member of the General Public who uses the Parking Lot may or may not, at their sole discretion, use the services of such attendant or valet. In the event that a member of the General Public uses the services of such attendant or valet, payment for such services shall not be required, and any payment shall be at the sole discretion of the visitor or customer. 5. Walls, Fences, and Barriers. Grantors shall not erect any walls, fences, or other barriers on the Parking Lot Site which prevent or impair the use or exercise of the Easement. - 4 - Contract No. R19820 6. Maintenance. a. Grantors shall, at their own cost and expense, at all times perform, or cause to be performed, such maintenance as needed to keep the Parking Lot clean and in good condition and repair. Such maintenance shall include, but not be limited to the following: (1) Maintaining the surfaces in a smooth and evenly covered condition with the type of surfacing material originally installed, or such substitute as shall in all respects be equal or superior to them in quality, use, and durability; (2) Removing all standing water, papers, debris, filth, and refuse, and thoroughly sweeping the paved areas, to the extent reasonably necessary to keep the paved areas in a clean and orderly condition; (3) Maintaining such appropriate parking area entrance, exit, and directional signs, markers and lights in the manner they are currently being maintained; (4) Repainting striping, markers, directional signs, etc., as necessary to maintain them in a first-class condition; (5) Paying all electrical, water, and other utility charges or fees; (6) Maintaining and repairing all storm drains and sewers, and all electrical, water, and other utility lines or systems which are used in whole or in part to provide services to the Parking Lot or which are necessary for the operation of the Parking Lot; (7) Operating, keeping in repair, and replacing when necessary, such parking lot lighting facilities as are reasonably required; (8) Obtaining and maintaining in full force and effect commercial general liability insurance and other insurance in accordance with the provisions of Section 9 of this Easement Agreement; and (9) Maintaining all landscaping in a healthy, first class condition, including weeding, trimming, gardening, replacing shrubs and other landscaping, and watering, including repairing automatic sprinkler systems or water lines. Each Grantor shall be responsible for a pro-rata share of the cost of such maintenance expenses in accordance with the Declaration of Establishment of Protective Covenants, Conditions and Restrictions and Grants of Easements, and recorded on August 16, 1971 as Document Number 92209 of the Official Records of Riverside County, California (the "CC&Rs"). Notwithstanding the foregoing, in the event the Agency determines in the Agency's reasonable discretion that the Parking Lot is not adequately maintained in accordance with the CC&Rs, each Grantor shall be responsible for a pro-rata share of the cost of such maintenance expenses in accordance with the following percentages: OPA_Parking Easement_2.5 ver. - 5 - Contract No. R19820 AI -- 50.13% HWS -- 26.39% Quinto -- 23.48% Grantors may change such allocations with the prior written consent of the Agency's Executive Director. 7. Mechanics' Liens. Grantors shall keep the Parking Lot Site free and clear of all mechanics' liens resulting from construction done by or for the Grantors. Each Grantor shall have the right to contest the correctness or the validity of any such lien if, immediately on demand by the Agency, Grantor procures and records a lien release bond issued by a corporation authorized to issue surety bonds in California. The bond shall meet the requirements of California Civil Code §3143 and shall provide for the payment of any sum that the claimant may recover on the claim (together with costs of suit, if it recovers in the action). Each Grantor shall hold harmless, defend and indemnify Agency and the Parking Lot Site against all liability and loss of any type arising out of work performed by such Grantor on the Parking Lot Site, together with reasonable attorneys' fees and all costs and expenses reasonably incurred by Agency in negotiating, settling, defending or otherwise protecting against such claims. If any of the Grantors do not cause to be recorded the bond described in California Civil Code §3142 or otherwise protect such Grantor's portion of the Parking Lot Site under any alternative or successor statue, and a final judgment has been rendered against such Grantor by a court of competent jurisdiction for the foreclosure of a mechanics' materialman's, contractor's or subcontractor's lien claim, and if such Grantor fails to stay the execution of the judgment by lawful means or to pay the judgment, then Agency shall have the right, but not the duty, to pay or otherwise discharge, stay or prevent the execution of any such judgment or lien or both. Such Grantor shall reimburse Agency for all sums paid by the Agency under this Section, together with all of Agency's reasonable attorneys fees and costs, plus interest on those sums, fees, and costs, at the maximum legal rate that may be charged by non-exempt lenders under the usury laws of the State of California. On completion of any substantial work of improvement, the Grantor performing such work shall file or cause to be filed a notice of completion. Grantors hereby appoint Agency as the Grantors' attorney-in-fact to file the notice of completion upon the applicable Grantors' failure to do so after the work of improvement has been substantially completed. 8. Property Taxes and Possessory Interest Taxes. Each Grantor shall pay, or cause to be paid, directly to the appropriate governmental agencies, prior to delinquency, all -possessory real property taxes and other special taxes and assessments and/or charges, including taxes, assessments or charges levied in lieu of property taxes, which may be levied or assessed against such Grantor's Parcel, including any assessment tax or charge on the portion of the Parking Lot Site on such Parcel. Grantors may change such allocations with the prior written consent of the Agency's Executive Director. 9. Insurance. Grantors shall purchase and maintain as to the Parking Lot Site commercial general liability insurance covering bodily injuries and damages to persons and property occurring within Parking Lot Site, with a combined single limit of at least One Million Dollars ($1,000,000.00) per occurrence and Three Million Dollars ($3,000,000.00) in the aggregate, with a deductible of not more than $10,000.00. Grantors shall cause Agency, its Board members, agents, employees and attorneys, and any successor in interest of Agency, to be named as additional insureds on each policy of such insurance maintained by it with respect to Parking Lot Site. Such insurance policies shall be endorsed to provide that such coverage shall be primary and that any insurance maintained by the Agency shall be - 6 - Contract No. R19820 excess insurance only. Such coverage shall be endorsed to waive the insurer's rights of subrogation against Agency. Grantors shall deliver to Agency certificates of insurance evidencing compliance with these provisions. Such certificates shall also include the agreement of the carrier not to cancel or otherwise terminate such coverage without first giving at least thirty(30) days prior written notice to the Agency (attention: Executive Director) and to each additional insured under any policy carried pursuant to this Section 9. If at any time the amount or coverage of insurance which the Grantors are required to carry under this Section is, in the Agency's reasonable judgment, materially less than the amount or type of insurance coverage typically carried by owners or lessees of comparable properties in the State of California, then Agency shall have the right to require Grantors to increase the amount or change the types of insurance coverage required under this Section. Such requirements shall be designed to assure protection from and against the kind and extent of risks which exist at the time a change in insurance is required. Agency shall notify the Grantors in writing of changes in insurance requirements. All insurance purchased by the Grantors shall be from companies rated no less than A VII in Bests Insurance Guide. The amount of insurance obtained pursuant to this Section shall not limit the liability of the parties under this Agreement. If the Grantors do not deposit certificates evidencing acceptable insurance policies with Agency incorporating such changes within sixty (60) calendar days of receipt of such notice, then Agency may purchase such insurance and Grantors shall immediately reimburse the Agency for such insurance premiums, together with a 15% handling charge, in the following percentages: AI -- 50.13% HWS -- 26.39% Quinto -- 23.48% Grantors may change such allocations with the prior written consent of the Agency's Executive Director. 10. Indemnification. a. Grantors shall indemnify, defend, protect, and hold harmless Agency from and against any and all claims, losses, proceedings, damages, causes of action, liability, costs and expenses, (including attorneys' fees) arising from or in connection with, or caused by (i) any act, omission or negligence of Grantors or any lessee, sublessee, licensee, concessionaire, contractor, licensee, invitee, agent, servant or employee thereof(collectively, "Users"), wheresoever the same may occur; (ii) any use of the Parking Lot, or any accident, injury, death or damage to any person or property occurring in, on or about the Parking Lot, or any part thereof, or from the conduct of Grantors' or their Users' businesses or from any activity, work or thing done, permitted or suffered by Grantors or their Users in or about the Parking Lot Site or elsewhere (other than arising as a result of Agency's gross negligence or intentional misconduct); and (iii) any breach or default in the performance of any obligations on Grantors' part to be performed under the terms of this Easement Agreement, or arising from any negligence of Grantors, or any such claim or any action or proceeding brought thereon; and in case any action or proceeding be brought against Agency by reason of any such claim, Grantors, upon notice from Agency, shall defend the same at the Grantors' expense by counsel reasonably satisfactory to Agency. Grantors, as a material part of the consideration to the Agency, hereby assumes all risk of damage to property or injury to persons in, upon or about the Parking Lot Site arising from any cause other than Agency's gross negligence or intuitional acts, and Grantors hereby waive all claims in respect thereof against Agency. OPA_Parking Easement_2.5 ver. - 7 - (..\-)1\ Contract No. R19820 These provisions are in addition to, and not in lieu of, the insurance required to be provided by Section 9 hereof. Grantors' respective liabilities to the Agency for the cost of the insurance, and for the indemnity and defense obligations set forth above, shall be contributed by the Grantors in the following percentages: AI -- 50.13% HWS -- 26.39% Quinto -- 23.48% Grantors may change such allocations with the prior written consent of the Agency's Executive Director. Nothing contained herein shall limit any Grantor's rights of contribution from the other Grantors on account of damages arising from the other Grantors' negligence or breach of any other agreement among the Grantors, nor shall it limit any Grantor's rights of contribution from any third parties that cause damages or injuries. b. Hazardous Materials. In addition to the foregoing indemnity, Grantors agree to indemnify, protect, defend and hold Agency harmless, from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous Materials by any party owning or having an interest in the Grantors Parcels or Shopping Center Property on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Shopping Center Property (including, without limitation, the Easement Area), or(ii) any violation, or alleged violation, or compliance with the requirements of any statute, ordinance, order, rule, regulation, permit,judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Shopping Center or the Property by any party owning or having an interest in the Shopping Center or the Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, relocation expenses, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the environment, and the cost of clean-up of the Shopping Center or Property, or any portion of the Shopping Center or Property, or any improvements thereon, caused by or resulting from any Hazardous Material, or toxic substances or waste released onto the real property underlying the Shopping Center or Property by the Owner, its lessees, sublessees, successors or assigns. The term "Hazardous Materials" shall include, but not be limited to, substances defined as "hazardous substances," "hazardous materials," "pollutant or contaminant," "imminently hazardous chemical substance or mixture," "hazardous air pollutant," "toxic pollutant," "hazardous waste," "extremely hazardous waste" or "toxic substances" in any of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq.; The Resource Conservation and Recovery Act, 42 U.S.0 §6901, et seq.; and those substances defined as "hazardous substances" in §25316 of the California Health & Safety Code; and in the regulations adopted and publications promulgated pursuant to said laws. - 8 - Contract No. R19820 c. Exemption of Agency and City from Liability. Grantors hereby assume all risks and liabilities of a landowner in the possession, use or operation of the Parking Lot. Grantors, on behalf of themselves and their lessees, sublessees, licensees, concessionaires or contractors, hereby agree that Agency and City shall not be liable for injury to the Grantors' business or their lessees', sublessees', licensees', concessionaires' or contractors' businesses or any loss of income therefrom or for damage to the goods, wares, merchandise or other property of the Grantors or their Users, or any other person in or about the Parking Lot Site, including any liability arising from the physical condition of the Parking Lot Site or the presence of any hazardous or toxic materials or substances on the Parking Lot Site, nor shall Agency or City'be liable for injury to the person of Grantors, or their Users, whether such damage or injury is caused by or results from hazardous or toxic materials or substances, fire, steam, electricity, gas, water, or rain, or from the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances; plumbing, air conditioning or lighting fixtures, or from any other cause, whether the said damage or injury results from conditions arising upon the Parking Lot Site or from other sources or places and regardless of whether the cause of such damage or injury or the means of repairing the same is inaccessible to Grantors. Nothing contained herein shall be construed as excusing Agency or City, however, from liability for Agency's or City's gross negligence or intentional misconduct. 11. Non-Discrimination Provision. Each Grantor covenants and agrees for itself, its successors, assigns and every successor in interest to the portion of the Grantor's Parcel encumbered by the Easement Area, or any part thereof, that there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, religion, creed, national origin, ancestry, physical handicap, medical condition, age, marital status, or sex in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Parking Lot Site nor shall the Grantor itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Parking Lot Site. 12. Form of Nondiscrimination and Nonsegregation Clauses Each Grantor shall require that all deeds, leases, or contracts pertaining to any portion of the Parking Lot Site encumbered by this Easement owned or controlled by the Grantor contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: a. In deeds: "The grantee herein covenants by and for itself, its successors 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, religion, creed, national origin, ancestry, physical handicap, medical condition, age, marital status, or sex in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees in the land herein conveyed. The foregoing covenants shall run with the land." b. In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, religion, creed, national origin, ancestry, physical OPA_Parking Easement_2.5 ver. - 9 - Contract No. R19820 handicap, medical condition, age, marital status, or sex in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, or occupancy of tenants, lessees, sublessee, tenants, or vendees in the land herein leased." c. In contracts of sale of the Parking Lot Site: "There shall be no discrimination against or segregation of, any person or group of persons on account of race, color, religion, creed, national origin, ancestry, physical handicap, medical condition, age, marital status, or sex in the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees of the land." d. All of the terms, covenants, agreements or conditions set forth in this Agreement shall remain in effect for the term specified in each such grant excepting only the foregoing provisions of this Section 12 which shall survive and remain in effect in perpetuity. 13. Covenants Shall Run With the Land. All the agreements, rights, covenants, and grants of easement contained in this Agreement shall run with the land (as defined in California Civil Code Sections 1460 and 1462); shall inure to the benefit of the Agency and the City, or their heirs, successors, and assigns; and shall be binding upon the Grantors, their respective heirs, successors, and assigns, and all other persons acquiring the Grantors' Parcels or any part thereof, whether by operation of law or in any other manner whatsoever. The Easement shall be an appurtenant easement, and shall burden the Easement Area for the benefit of the Agency and the City. 14. Enforcement. a. In the event of any of the Grantors' default or breach in the performance of any of the obligations or agreements herein, Agency or City, or both of them, shall have the right, but not the obligation, to cure such default for the account and at the expense of the defaulting Grantor, and Agency or City, or both of them, shall have the right to recover from the defaulting Grantor all damages, and all costs and other sums expended in connection therewith, including reasonable attorneys' fees, plus interest thereon at the maximum legal rate permitted to be charged by non-exempt lenders under the laws of the State of California, and Agency or City, as the case may be, may impose a lien upon the defaulting Grantor's Parcel (including the improvements thereon). Such lien may be imposed by (i) serving written notice upon such defaulting Grantor, which notice shall contain a representation of non- compliance with the provisions of this Section, an explanation as to the nature of the particular obligation, and a description of the defaulting Grantor's Parcel, and (ii) by duly recording a copy of such notice in the Official Records of Riverside County, California. The priority of such lien shall be determined as of the date of filing the same of record; provided, however, any such lien shall nevertheless be subject and subordinate to the lien of any mortgage or deed of trust now or hereafter covering any portion of the Grantors' Parcels. Such lien shall continue until fully discharged, but in no event longer than five (5) years from the date of recordation, and may be foreclosed by a judgment at law or by means of a power of sale in accordance with the laws of the State of California pertaining to foreclosure of mortgages with a power of sale. Such lien shall secure not only the amount stated in the Contract No. R19820 aforesaid notice, but also the reasonable costs and expenses of enforcing the same, including interest at the rate provided herein and reasonable attorneys fees. In addition, in the event of a Grantors' default, Agency or City, or both of them, may pursue any other remedies or proceedings available to it at law or in equity against such Grantor. Agency or City may, in any such proceeding, recover damages from or on account of such violation; secure by way of specific performance or otherwise the performance of such covenant, condition, easement or restriction; or obtain any other remedy provided for at law or in equity. 15. Miscellaneous. a. Transferability of Easement. Subject to the foregoing, all terms of this Easement Agreement shall be binding upon and be enforceable against Grantors, their successors and assigns, and all other persons acquiring the real property burdened by the Easement Area, whether by operation of law or in any other manner whatsoever, and shall inure to the benefit of and be enforceable by Agency and City, and their legal representatives, successors and assigns. b. Termination of Liability. Whenever a bona fide transfer of any interest in any of the Grantors' Parcels takes place, the transferor shall not be liable for breach of a covenant occurring thereafter with respect to the transferred interest. In addition, the liability hereunder of any Grantor that is a tenant of the Grantors' Parcels shall terminate upon the expiration or sooner termination of such Grantor's lease. c. Notices. Unless otherwise specifically provided in this Easement Agreement, all notices, demands or other communications given to Agency and City shall be in writing, and shall be sent by certified mail, return receipt requested, postage prepaid and addressed as follows, and shall be deemed received only upon receipt thereof: To Agency or City: Executive Director Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, CA 92260 Phone: (760) 346-0611 / Fax: (760) 341-6372 To Al: To HWS: To Quinto: d. Gender. The use herein of the neuter gender shall include the masculine and the feminine, and the singular number shall include the plural, whenever the context so requires. e. No Third-Party Beneficiaries. No person shall have any enforceable rights under this Easement Agreement other than the parties hereto and their successors and assigns, notwithstanding any provisions hereof which contemplate that other persons may exercise certain privileges, or any references herein to the General Public. OPA_Parking Easement_2.5 ver. - 1 1 - Contract No. R19820 f. No Waiver. No waiver by Agency or City of any default of the Grantors shall be implied from any omission by Agency or City to take any action in respect of such default. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Easement Agreement. The consent or approval by Agency or City to or of any act or request of Grantors requiring consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar acts or requests. The rights and remedies given to Agency or City by this Easement Agreement are cumulative, and none of such rights and remedies shall be exclusive of any of the others, or of any other right or remedy at law or in equity which Agency or City might otherwise have by virtue of a default under this Easement Agreement. g. Estoppel Certificates. Each Grantor covenants that upon receipt of written request from Agency or City, the Grantor shall, within 15 days after receipt of such request, give to Agency or City or other person specified by Agency or City, an estoppel certificate stating: (i) whether the Grantor to whom the request has been directed knows of any default by any of the Grantors under this Easement Agreement, and if there are known defaults, specifying the nature thereof; (ii) whether to its knowledge any provision of this Easement Agreement has been assigned, modified or amended in any way (and if it has, then stating the nature thereof); (iii) that to such Grantor's knowledge, this Easement Agreement, as of the date of the estoppel certificate, is in full force and effect; and (d) any other information reasonably required by Agency or City. h. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of the Easement Area or any portion of any part of the Parking Lot Site to the General Public or for the General Public or for any public purpose whatsoever, it being the intention of the parties to this Easement that the Easement conveyed pursuant to this Easement Agreement shall be strictly limited to and for the purposes herein expressed. i. Amendment. This Easement Agreement may be cancelled, changed, modified in whole or in part only by the written and recorded agreement executed by all of the record owners of the Easement Area at the time of such amendment or termination. j. Negation of Partnership. None of the terms or provisions hereof shall be deemed to create a partnership between or among the parties hereto, nor shall it cause them to be considered joint venturers, or members of any joint enterprise, in the operation of the Parking Lot or otherwise. k. Entire Agreement. This instrument contains the entire agreement of the parties hereto as to the rights herein granted and the obligations herein assumed, and no oral representation shall be of any force or effect. No modification of this Easement Agreement shall be of any force or effect until signed by the party to be charged. L Severability. Invalidation of any covenant, condition, or restriction or any other provision contained herein or the application thereof to any person or entity by judgment or court order - 12 - Contract No. R19820 shall in no way affect any of the other covenants, conditions, restrictions, or provisions hereof, or the application thereof to any other person or entity, and the same shall remain in full force and effect. m. Headings. The caption headings of the various sections and paragraphs of this Easement Agreement are for convenience and identification only and shall not be deemed to limit, expand or define the contents of the respective sections or paragraphs. n. Attorneys' Fees. In the event any party hereto shall commence any action against any other party relating to this Easement Agreement or for the breach of any obligation contained herein, the prevailing party shall be entitled to recover from the losing party reasonable attorneys' fees, expenses, and court costs. IN WITNESS WHEREOF the parties hereto have executed this Easement Agreement as of the date and year first above written. Agency: PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic By: Chairman Attest: Secretary Approved as to form: Richards, Watson & Gershon, a professional corporation By: Al: OPA_Parking Easement_2.5 ver. - 13 - f� Contract No. R19820 DRAFT FOR DISCUSSION PURPOSES By Title: By Title: HWS: • By Title: By Title: Quinto: By Title: By Title: Staples: By Title: By Title: Pier One: By Title: By - 14 - Contract No. R19820 Title: PDA: By Title: By Title: Big 5: By Title: By Title: Rite-Aid: By Title: By Title: - 15 - / State of California } County of } On , , before me, , a Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 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