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Home My WebLink AboutSR - Disposition and Development Agreement/Res 06-37A/Res 522A/33433 Report/DDACITY OF PALM DESERT/PALM DESERT REDEVELOPMENT AGENCY STAFF REPORT REQUEST: APPROVAL OF DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE PALM DESERT REDEVELOPMENT AGENCY AND GREGORY & GREGORY, LLC AND SUMMARY REPORT SUBMITTED BY: LAURI AYLAIAN, REDEVELOPMENT MANAGER DEVELOPER: GREGORY & GREGORY, LLC 74-020 ALESSANDRO, NO. E PALM DESERT, CA 92260 DATE: APRIL 13, 2006 CONTENTS: CITY RESOLUTION NO. 06-37A AGENCY RESOLUTION NO. 522A REASCO SECTION 33433 REPORT DATED 16 FEBRUARY 2006 DISPOSITION AND DEVELOPMENT AGREEMENT Recommendation: That the City Council and the Agency Board open the joint public hearing and following testimony take the following actions: 1. That the City Council adopt Resolution No. 06-374z resolution of the City of Palm Desert approving the sale by the Palm Desert Redevelopment Agency to Gregory & Gregory, LLC, of approximately 0.14 acres of real property on a parcel located on San Marino Circle in Palm Desert, California. 2. That the Agency Board adopt Resolution No. 522Q.a resolution of the Palm Desert Redevelopment Agency approving the sale to Gregory & Gregory, LLC of approximately 0.14 acres of real property on a parcel located on San Marino Circle in Palm Desert, California. Executive Summarv: This item was acted upon at the 23 March 2006 City Council/Agency Board meeting. However, reconsideration is required due to technicalities involving the public hearing notification requirements. Staff Report Approval of DDA between Agency and Gregory & Gregory, LLC Page 2 of 3 April 13, 2006 Discussion: This report summarizes the terms and conditions of that certain Disposition and Development Agreement (the "DDA") between the Palm Desert Redevelopment Agency (the "Agency") and Gregory & Gregory, LLC (the "Developer') concerning the proposed sale of certain real property by the Agency to Gregory & Gregory, LLC. The report is created to comply with requirements of California Health and Safety Code Section 33433. A. Summary of the DDA The Agency is the owner of certain real property in the City of Palm Desert on the south side of San Marino Circle at 74-039 San Marino Circle (APN No. 625-082-004- 5). The Agency also owns the adjoining property at 74-047 San Marino Circle on which a single-family home is being redeveloped for the purposes of affordable housing. The subject parcel formerly had a blighted single-family home that has been demolished leaving a vacant lot with miscellaneous landscaping. The subject parcel is bounded on the south by a parking lot and commercial businesses, and on the west by an office professional building owned by the Developer. The development of the subject property described below will provide public parking and will eliminate blight conditions. B. The Subiect Proiect The Agency proposes to sell to Gregory & Gregory, LLC approximately 0.14 acres at 74-039 San Marino Circle, also known as APN No. 625-082-004-5. Gregory & Gregory, LLC proposes to develop a landscaped parking lot on the 6,000 s.f. parcel to provide a net increase of eleven parking stalls over the number of spaces currently provided on the adjacent parcel. The real property contained in this description is referred to as the "Subject Property". 1. Purchase of the Subiect Propertv. The Purchase Price for the Subject Property shall be $47,000 or $20.50 per square foot. The Terms shall be all cash due upon close of escrow with a $2,000 deposit upon opening of escrow. 2. Obligations of Agency. The Agency will be obligated to pay one half of all escrow fees and charges, and will deliver the property in "as -is" condition to the Developer. 3. Obligations of Developer. The Developer will design and construct eleven surface parking spaces with lighting, striping, landscape improvements, and decorative masonry walls on the north and east sides of the parking lot. The GARDAWaria Hunt\WPDATAWYLAIAN\STFRPTS\041306gregorydda.doc Staff Report Approval of DDA between Agency and Gregory & Gregory, LLC Page 3 of 3 April 13, 2006 Developer will be obligated to obtain at its own expense all entitlements, permits, reviews, and approvals associated with the development. Developer will also be required to covenant that parking shall be made available to the general public without charge or fee of any kind without prior express written consent by the Agency. Developer will be required to complete all construction of the project within one year of the closing of escrow. 4. Financial Analvsis of the DDA. Attached hereto as Exhibit 1 is the financial analysis of this transaction performed by Real Estate Analysis Services Company (REASCO). Such analysis is hereby incorporated by reference. Submitted by: ri Aylaiah Redevelopment Manager mh Approval: G Ju cCarthy, ACM ev lopment Carlos L: OrteAK, City Manager/Exec. Dir. Department Head: Dave Yrigoye ` 1 '� Director of Redevelopment/Housing Paul S. 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Q � �Nd ci In e� �� H • nd g T � r V � O cj" P O co ssst 6 i HdV RESOLUTION NO. 06-37A A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT APPROVING THE SALE BY THE PALM DESERT REDEVELOPMENT AGENCY OF CERTAIN REAL PROPERTY IN THE CITY OF PALM DESERT CONSISTING OF APPROXIMATELY 0.14 ACRES ON A PARCEL AT 74-039 SAN MARINO CIRCLE NORTH OF ALESSANDRO DRIVE AND EAST OF PORTOLA AVENUE PURSUANT TO A DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE PALM DESERT REDEVELOPMENT AGENCY AND GREGORY & GREGORY, LLC The City Council of the City of Palm Desert hereby finds, determines, resolves and orders as follows: Section 1. On April 13, 2006, the City Council of the City of Palm Desert (the "City") and the Palm Desert Redevelopment Agency (the "Agency") held a duly noticed joint public hearing on the approval of the Agency's proposed sale of certain real property consisting of approximately 0.14 acres located in the Agency's Project Area No. 1 (the "Property"), as described in that certain Disposition and Development Agreement (the "Agreement") by and between Gregory & Gregory, LLC, a California limited liability corporation (the "Developer") and the Agency, at which time all persons desiring to comment on or ask questions concerning the Agreement and the sale of the Property to the Developer were given the opportunity to do so. Commencing on or before March 9, 2006, information concerning the Agency's proposed sale of the Property to Developer, a copy of the Agreement, and the Summary Report prepared pursuant to California Health and Safety Code Section 33433 were made available for public inspection and copying in the offices of the Palm Desert Redevelopment Agency at 73-510 Fred Waring Drive, Palm Desert, California 92260 between the hours of 8 a.m. and 5 p.m., Monday through Friday. Notice of the public hearing was published in the Desert Sun on Thursday, March 30, 2006 and Thursday, April 6, 2006. Section 2. Pursuant to the Agreement, the Developer covenants to construct certain improvements on the Property within a certain time period as therein described, including but not limited to, a public parking area consisting of 11 parking stalls and landscaping with walls. Section 3. The City Council reviewed and considered all written and oral comments, questions and concerns regarding the Agency's proposed sale of the Property to Developer received prior to and at the public hearing on April 13, 2006. Section 4. The Property contains approximately 0.14 acres, and pursuant to the Agreement will be sold to the Developer for a purchase price of $47,000. Agency staff obtained a report prepared by a real estate analysis services company, which evaluated the fair market value of the Property at its highest and best use, and the reuse value of this property with the covenants, codes, and development cost authorized by the sale and found the fair reuse value to be $47,000. The Summary Report prepared pursuant to California Health and Safety Code Section 33433 is attached hereto as Exhibit A. RESOLUTION NO. 06- 37A Section 5. Project Area No. 1 is an area which has been previously identified in the Redevelopment Plan for Project Area No. 1, originally approved and adopted by the City Council of the City pursuant to Ordinance No. 80 on July 16, 1975, as may be amended from time to time, as a blighted area. The area has previously been determined to create a social and economic burden on the community, which cannot reasonably be expected to be reversed or alleviated by private enterprise or governmental action, or both, without redevelopment. In addition, Project Area No. 1 contains vacant and underutilized properties, and properties that suffer from economic dislocation, deterioration or disuse including depreciated or stagnant property values and impaired investments. Project Area No. 1 is characterized by the existence of inadequate public improvements, public facilities and open spaces, which cannot be remedied by private or governmental action without redevelopment. Section 6. The City Council hereby finds that the sale of the Property pursuant to the Agreement will assist in the elimination of blight; providing for Developer's construction of certain improvements, and use described in the Agreement on previously vacant underutilized land will remedy the lack of adequate public improvements, assist in the revitalization of Project Area No. 1, encourage private sector investment, and create job opportunities all for the health, safety and welfare of the residents and taxpayers of the City. Section 7. The City Council hereby finds that the proposed sale of the property is consistent with the Agency's Implementation Plan adopted pursuant to California Health and Safety Code Section 33490. Section 8. The City Council hereby finds that the consideration to be paid by Developer pursuant to the Agreement is not less than the fair reuse value at the use and with the covenants and development costs authorized by the sale. Section 9. The City Council hereby approves the Agreement and the Agency's sale of the property to Developer in accordance with the terms and conditions of the Agreement pursuant to the requirements of California Health and Safety Code Section 33433 (b) and authorizes the Agency's Executive Director and/or any other authorized officers of the Agency to take such actions, perform such deeds, and execute, acknowledge and deliver such instruments and documents as the Agency deems necessary in connection therewith. The City Council hereby authorizes the Agency's Executive Director, and/or any other authorized officers of the Agency, to enter into the Agreement in substantially the form now on file with the City Clerk with G \RDA\Maria Hunt\WPDATA\AYLAIAMSan Manno Cirde\ccreso doc 2 RESOLUTION NO. 06- 37A such changes therein as may be necessary and as the authorized officer executing the Agreement may approve in his discretion as being in the best interest of the City, such approval to be conclusively evidenced by the execution and delivery thereof. to wit: PASSED, APPROVED AND ADOPTED this 13th day of April 2006 by the following vote AYES: NOES: ABSTAIN: ABSENT: ATTEST: Rachelle D. Klassen, City Clerk City of Palm Desert, California Jim Ferguson, Mayor GARDA\Mana HuntOPDATAVAYLAIAMSan Manno Grde\ccresadoc RESOLUTION NO. 06- 37A EXHIBIT A G \RDA\Mana Hunt\WPDATAIAVLAIAN\San Marino Circle\ccreso doc RESOLUTION NO. 522A A RESOLUTION OF THE PALM DESERT REDEVELOPMENT AGENCY APPROVING THE SALE BY THE PALM DESERT REDEVELOPMENT AGENCY OF CERTAIN REAL PROPERTY IN THE CITY OF PALM DESERT CONSISTING OF APPROXIMATELY 0.14 ACRES ON A PARCEL at 74-039 SAN MARINO CIRCLE NORTH OF ALESSANDRO DRIVE AND EAST OF PORTOLA AVENUE PURSUANT TO A DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE PALM DESERT REDEVELOPMENT AGENCY AND GREGORY & GREGORY, LLC The Palm Desert Redevelopment Agency hereby finds, determines, resolves and orders as follows: Section 1. On April 13, 2006, the City Council of the City of Palm Desert (the "City") and the Palm Desert Redevelopment Agency (the "Agency") held a duly noticed joint public hearing on the approval of the Agency's proposed sale of certain real property consisting of approximately 0.14 acres located in the Agency's Project Area No. 1 (the "Property"), as described in that certain Disposition and Development Agreement (the "Agreement") by and between Gregory & Gregory, LLC, a California limited liability corporation (the "Developer") and the Agency, at which time all persons desiring to comment on or ask questions concerning the Agreement and the sale of the Property to the Developer were given the opportunity to do so. Commencing on or before March 9, 2006, information concerning the Agency's proposed sale of the Property to Developer, a copy of the Agreement, and the Summary Report prepared pursuant to California Health and Safety Code Section 33433 were made available for public inspection and copying in the offices of the Palm Desert Redevelopment Agency at 73-510 Fred Waring Drive, Palm Desert, California 92260 between the hours of 8 a.m. and 5 p.m., Monday through Friday. Notice of the public hearing was published in the Desert Sun on Thursday, March 30, 2006 and Thursday, April 6, 2006. Section 2. Pursuant to the Agreement, the Developer covenants to construct certain improvements on the Property within a certain time period as therein described, including but not limited to, a public parking area consisting of 11 parking stalls and landscaping with walls. Section 3. The Agency Board reviewed and considered all written and oral comments, questions and concerns regarding the Agency's proposed sale of the Property to Developer received prior to and at the public hearing on April 13, 2006. Section 4. The Property contains approximately 0.14 acres, and pursuant to the Agreement will be sold to the Developer for a purchase price of $47,000. Agency staff obtained a report prepared by a real estate analysis services company, which evaluated the fair market value of the Property at its highest and best use, and the reuse value of this property with the covenants, codes and development cost authorized by the sale and found the fair reuse value to be $47,000. The Summary Report prepared pursuant to California Health and Safety Code Section 33433 is attached hereto as Exhibit A. RESOLUTION NO. 522A Section 5. Project Area No. 1 is an area which has been previously identified in the Redevelopment Plan for Project Area No. 1, originally approved and adopted by the City Council of the City pursuant to Ordinance No. 80 on July 16, 1975, as may be amended from time to time, as a blighted area. The area has previously been determined to create a social and economic burden on the community, which cannot reasonably be expected to be reversed or alleviated by private enterprise or governmental action, or both, without redevelopment. In addition, Project Area No. 1 contains vacant and underutilized properties, and properties that suffer from economic dislocation, deterioration or disuse including depreciated or stagnant property values and impaired investments. Project Area No. 1 is characterized by the existence of inadequate public improvements, public facilities and open spaces, which cannot be remedied by private or governmental action without redevelopment. Section 6. The Agency Board hereby finds that the sale of the Property pursuant to the Agreement will assist in the elimination of blight; providing for Developer's construction of certain improvements and use described in the Agreement on previously vacant underutilized land will remedy the lack of adequate public improvements, assist in the revitalization of Project Area No. 1, encourage private sector investment, and create job opportunities all for the health, safety and welfare of the residents and taxpayers of the City. Section 7. The Agency Board hereby finds that the proposed sale of the property is consistent with the Agency's Implementation Plan adopted pursuant to California Health and Safety Code Section 33490. Section 8. The Agency Board hereby finds that the consideration to be paid by Developer pursuant to the Agreement is not less than the fair reuse value of the property at its highest and best use in accordance with the Redevelopment Plan for the Agency's Project Area No. 1. Section 9. The Agency Board hereby approves the Agreement and the Agency's sale of the property to Developer in accordance with the terms and conditions of the Agreement pursuant to the requirements of California Health and Safety Code Section 33433 (b) and authorizes the Agency's Executive Director, and/or any other authorized officers of the Agency, to take such actions, perform such deeds, and execute, acknowledge and deliver such instruments and documents as the Agency deems necessary in connection therewith. The Agency Board hereby authorizes the Agency's Executive Director, and/or any other authorized officers of the Agency, to enter into the Agreement in substantially the form now on file with the City Clerk with such changes therein as may be necessary and as the authorized officer executing the Agreement may approve in his discretion as being in the best interest of the Agency. Such approval to be conclusively evidenced by the execution and delivery thereof. G \RDA\Mana Hunt\WPDATA\AYLAIAMSan Marino Grde\rdareso doc 2 RESOLUTION NO. 522A PASSED, APPROVED AND ADOPTED this 13th day of April 2006 by the following vote to wit: AYES: NOES: ABSTAIN: ABSENT: ATTEST: Rachelle D. Klassen, Secretary Palm Desert Redevelopment Agency Jim Ferguson, Chairman G1RDA\Maria Hunt\WPDATA\AVLAIAMSan Manno Circle\rdareso.doc 3 RESOLUTION NO. 522A EXHIBIT A G \RDA\Maria Hun l',WPDATAAVLAIAN\San Marino Grcle\rdareso doc REASCO I REAL ESTATE ANALYSIS SERVICES CO. POST OFFICE BOX 2809, PALM DESERT, CALIFORNIA 92261 TEL: (760) 340-1429; FAX: (760) 340-2041 EMAIL: LRWREASCO@,AOL.COM February 16, 2006 Ms Lauri Aylaian CODies to: Mr. Justin McCarthy Development Manager Mr. David Yrigoyen PALM DESERT REDEVELOPMENT AGENCY 73-510 Fred Waring Drive Palm Desert, California 92260 REFERENCE: Proposed Sale of Aaencv Propertv to Gre4ory & Greaory SUBJECT: Report Pursuant To Section 33433 Of The California Health And Safetv Code NOTE 1: This report is based on the terms and conditions of the Disposition and Development Agreement ("Agreement") Dated , 2006 between the Palm Desert Redevelopment Agency ("Agency") and Gregory & Gregory ("Developer"). Dear Ms Aylaian, Section 33433 of the California Health and Safety Code stipulates that before any property of a redevelopment agency, acquired directly or indirectly with tax increment funds, is sold or leased (or otherwise conveyed) for development purposes pursuant to the Redevelopment Plan, the conveyance shall first be approved by the legislative body by resolution after public hearing. The property the Agency proposes to convey to Gregory & Gregory falls into the category covered by Section 33433. MY 33433 REPORTSP-33433 FOR G & G (1)" 17-Feb-06 01:59 PM REAL ESTATE ANALYSIS SERVICES COMPANY - PAGE 2- February 16, 2006 LETTER TO: Ms Lauri Avlaian SUBJECT: Report Pursuant To Section 33433 Of The California Health And Safetv Code We have prepared a comprehensive report, beginning on page three of this letter, which is required in order to comply with Section 33433. Pursuant to the report, we have concluded that the following findings can be included in the resolution approving the conveyance: FINDING #1: The Sale of the Property will assist in the elimination of blight in the Project Area. FINDING #2: The Sale of the Property is consistent with the implementation plan adopted pursuant to Section 33490 of the California Health and Safety Code. FINDING #3: The consideration is not less than the Fair Reuse Value determined at the use and with the conditions, covenants and development costs authorized by the Sale. The rationale for these findings can be found in the report. Sincerely, Leonard R. Wolk Leonard R. Wolk, President Real Estate Analysis Services Company (REASCO) MY 33433 REPORTS/"33433 FOR G & G (1)" 17-Feb-06 01:59 PM REAL ESTATE ANALYSIS SERVICES COMPANY - PAGE 3 - Followina are the detailed Sections of the report:, SECTION 1 - A summary of the major business points of the Agreement between the Agency and the Developer concerning the sale of the Subject Property owned by the Agency to the Developer: Reference is made to the Agreement for full particulars of any provision described herein. In the event of any inconsistency between the provisions herein and the Agreement, the Agreement shall control. A. The Subject Property: 1. The Agency owns fee title to certain unimproved real property (the 'Property") The Property is located at 74-039 San Marino Circle in the City of Palm Desert ("City"), and is legally described in Exhibit A of the Agreement. The Property size is approximately 0.14 acres, or 6,000 square feet. B. Purchase and Sale of the Propertv: 1. Subject to the terms and conditions of the Agreement, the Agency agrees to sell to the Developer, and the Developer agrees to purchase from the Agency, fee simple title to the Property at an agreed to price of $47,000, or $7.83 per square foot. * Refer to Article 3 of the Agreement for further details about the Purchase and Sale of the Property. C. Construction and Financing of the Proiect: 1. Developer shall develop, or cause to be developed, the improvements (11 surface parking spaces) on the Property in accordance with the Schedule of Performance and the Scope of Development (Exhibits F and B of the Agreement, respectively). The cost for developing and constructing the improvements shall be borne solely by Developer. Further details about Construction and Financing of the Project may be found in Article 4 of the Ageement. MY 33433 REPORTSP-33433 FOR G & G (1)" 17-Feb-06 01:59 PM REAL ESTATE ANALYSIS SERVICES COMPANY - PAGE 4- SECTION 1 - A summary of the major business points of the proposed Agreement (continued): D. Use of the Property: 1. Commencing upon completion of the Project, and in perpituity thereafter, the Property and the Project shall be used only for parking which shall be made availablE to the general public without fee or charge of any kind. * Further details about Use of the Property may be found in Article 5 of the Ageement. E. Restrictions on Transfers: 1. Prior to the issuance of a Certificate of Completion for the Project, no transfer may occur with respect to any portion of the Project or the Property without the Agency's prior written consent. * Further details about Restrictions on Transfers may be found in Article 5 of the Ageement. F. Events of Default and Remedies: 1. Subject to the provisions of Articles 7 of the Agreement regarding Developer's appeal rights, the occurances which constitute a Default are described in Article 7.1. of the Agreement. * Further details about Default and Remedies may be found in Article 7 of the Agreement. SECTION 2 - Cost of the Agreement to the Agency: The cost of the Agreement to the Agency is comprised of the following three components: (1). the cost of any improvements to be provided by the Agency; (2). the projected interest on the source of funds used to finance the land acquisition cost and the improvement cost; and (3). the difference between the Sales price to the Developer and Agency's acquisition cost. MY 33433 REPORTSP'33433 FOR G & G (1)" 17-Feb-06 01:59 PM REAL ESTATE ANALYSIS SERVICES COMPANY - PAGE 5- SECTION 2 - Cost of the Agreement to the Agency (continued): A. The Agencv's Propertv acquisition cost: NOTE: The Agency's purchase was funded with tax increment funds. 1. The Agency purchased the Property on 2/28/2003 at a purchase price of $123,000. Therefore, the acquisition cost for the Propertv can be expressed as follows: ACRES SQ. FT. a. Amount of land 0.14 6,000 b. Cost per acre; per sq. ft. $892,980 $20.50 c. Total cost $123,000 $123,000 B. Aaencv's net cost of the Agreement: COST ELEMENT 1. Agency will not be providing any improvements 2. The Agency will lose one year of investment income that could have been earned on the $123,000 of tax increment funds to pay for the Property, because in the following year, the funds would be used to fund another project. At the average annual LAIF rate for 2003 (1.742%), the Agency will lose 3. Difference between the Sales price and the acquisition cost: a. Sales price $47,000 b. Acquisition cost ($123,000) c. Difference ($76,000) 4. Agency's net cost of the Agreement COST $0 ($2,143) ($76,000) ($78,143) MY 33433 REPORTSP'33433 FOR G & G (1)" 17-Feb-06 01:59 PM REAL ESTATE ANALYSIS SERVICES COMPANY - PAGE 6 - SECTION 3 - The estimated value of the interest to be conveyed (the unimproved Property) determined at the highest and best uses permitted under the Redevelopment Plan (the "Fair Market Value"). A. Highest and best use for the interest to be conveved: 1. Pursuant to its current zoning and a recent Appraisal, the highest and best use for the interest to be conveyed is for development of a single-family residence. B. Estimated value at the highest and best use of the interest to be conveved: Pursuant the most recent comparable sales, the current estimated value at the highest and best use of the interest to be conveyed is $10.00 Der so. ft. Section 4 - The estimated value of the interest to be conveyed determined at the use and with the conditions, covenents and development costs required by the Agreement (the "Reuse "Value): 1. Pursuant to the recent Appraisal, the purchase price ($47,000) represents the reuse valu( of the Site at the use, and with the conditions, covenants and development costs authorized by the Sale. Section 5 - Findings to be included in the resolution approving the transaction: FINDING #1: The Sale of the Property will assist in the elimination of blight in the Project Area. FINDING #2: The Sale of the Property is consistent with the implementation plan adopted pursuant to Section 33490 of the California Health and Safety Code. FINDING #3: The consideration is not less that the Fair Reuse Value at the use and with the covenants and development costs authorized by the Sale. MY 33433 REPORTSP'33433 FOR G & G (1)" 17-Feb-06 01:59 PM DISPOSITION AND DEVELOPMENT AGREEMENT THIS DISPOSITION AND DEVELOPMENT AGREEMENT (the "Agreement"), dated as of , 2006, and is entered into by and between the PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency") and Gregory & Gregory, LLC, a Limited Liability Company (the "Developer"). RECITALS 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 �f California. The purpose of this Agreement is to effectuate the Redevelopment Plan for Project Area No. 1, as amended, of Agency (the "Project Area") in the City of Palm Desert, California, by facilitating the development of real property within the Project Area. B. Developer desires to acquire from Agency certain property owned by Agency that is described on Exhibit "A" attached hereto (the "Property") and develop, construct and operate thereon the project ("ProjecY'), as described on Exhibit "B" attached hereto (the "Scope of DevelopmenY'). C. The Project will assist in the elimination of blight in the Project Area and will substantially improve the economic and physical conditions in the Project Area in accordance with the purposes and goals of the Redevelopment Plan. NOW, THEREFORE, the parties hereto agree as follows: ARTICLE 1. DEFINITIONS The following capitalized terms as used in this Agreement shall have the respective meanings set forth below: Section 1.1 Certificate of Completion means a certificate substantially in the form attached hereto as Exhibit "E", to be provided by the Agency upon satisfaction of certain conditions as set forth herein. Section 1.2 Citv means the City of Palm Desert, a municipal corporation. Section 1.3 Completion means all aspects of the Project (or a portion thereof, as applicable) are substantially complete and the Developer has recorded a Notice of Completion (as defined in California Civil Code Section 3093) for the Project or such portion, as applicable. Section 1.4 Develoner means Gregory & Gregory, LLC. The principal address of the Developer is 74-020 Alessandro, Suite #E, Palm Desert, California 92260. Section 1.5 Escrow Holder and Title Companv shall mean Foresite Escrow, Inc. (Jacquie Romero, Escrow Officer). The principal office of the Escrow Holder for purposes of P6402\0001 \877884.2 this Agreement is 41-995 Boardwalk, Suite G-2, Palm Desert, CA 92211-5110; Telephone 760.773.5333; Fax: 760.773.9289. Section 1.6 Event of Default shall have the meaning ascribed to such term in Section 7.1. Section 1.7 Force Maieure has the meaning ascribed to such term in Section 8.19. Section 1.8 Governmental Requirements means all applicable laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State of California, the County of Riverside, the City of Palm Desert, or any other political subdivision in which the Property is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over the Agency, the Developer or the Property, including, without limitation, all applicable prevailing wage laws and all applicable federal, state and local occupation, safety and health laws, rules, regulations and standards, applicable state labor standards, the City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the City of Palm Desert Municipal Code, and all applicable disabled and handicapped access requirements. Section 1.9 Grant Deed shall mean the Grant Deed in the form attached hereto as Exhibit "C" attached hereto. Section 1.10 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.C. §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 (collectively, "Hazardous Materials Laws"). Section 1.11 Holder has the meaning ascribed to such term in Section 7.5. Section 1.12 Memorandum of DDA shall mean a Memorandum of DDA in the form attached hereto as Exhibit "D". Section 1.13 Project means the project described in the Scope of Development. Section 1.14 Schedule of Performance means the Project timetable attached hereto as Exhibit "F" and incorporated herein by this reference. Section 1.15 Scope of Development means the description of the Project attached hereto as Exhibit "B" and incorporated herein by this reference. P6402\0001 \877884.2 -2- Section 1.16 Transfer shall mean any transfer, conveyance or encumbrance by Developer, voluntarily or involuntarily, of the Property or any portion thereof or interest therein; except for any partial assignment in compliance with Section 8.15 below, any encumbrance of the Property permitted in this Agreement, and the granting of reasonable easernents necessary for the Project. ARTICLE 2. BASIC STRUCTURE: SALE OF LAND AND MAKING OF LOAN. In consideration for the Developer's performance of the Developer's obligations hereunder to construct the Project in accordance with the terms hereof, the Agency agrees to sell the Property to the Developer subject to the terms and conditions herein. ARTICLE 3. AGENCY SALE OF THE PROPERTY TO DEVELOPER . Section 3.1 Sale of the Propertv bv the Aeencv to the Developer. The Agency hereby agrees to sell the Property to Developer, and Developer hereby agrees to buy the Property, subject to the terms and conditions hereinafter set forth. Section 3.2 Purchase Price. The purchase price for the Property to be paid by Developer (the "Purchase Price") shall be the sum of Forty Seven Thousand Dollars ($47,000.00). The Purchase Price shall be payable in cash or by wire transfer of immediately available funds. Within five (5) business days after the full execution of this Agreement by both Agency and Developer, Developer shall deposit with Escrow Holder the sum of Two Thousand Dollars ($2,000.00) as earnest money ("Deposit"). Developer shall deposit the balance of the Purchase Price with Escrow Holder prior to the Close of Escrow. All funds held by Escrow Holder on Deposit, or otherwise, shall be held in an interest bearing account with all interest credited to Developer, invested as directed by Developer, and applied to the Purchase Price; provided, however, if escrow does not close by 1 August 2006, due to Developer's default, then the Agency shall receive the Deposit and all accrued interest on such Deposit, and Developer shall pay all escrow cancellation fees. IF DEVELOPER FAILS TO PURCHASE THE PROPERTY WHEN DEVELOPER IS OBLIGATED TO DO SO UNDER THE TERMS OF THIS AGREEMENT, AND ALL CONDITIONS PRECEDENT TO DEVELOPER'S OBLIGATIONS TO CLOSE ESCROW HAVE BEEN SATISFIED OR EXPRESSLY WAIVED, ESCROW HOLDER MAY BE INSTRUCTED BY THE AGENCY TO CANCEL THE ESCROW AND THE AGENCY SHALL THEREUPON BE RELEASED FROM ITS OBLIGATIONS HEREUNDER. IN SUCH EVENT, THE AGENCY SHALL BE RELIEVED FROM ALL LIABILITY HEREUNDER, AND, PROMPTLY FOLLOWING ESCROW HOLDER'S RECEIPT OF SUCH 1NSTRUCTION, AND NOTWITHSTANDING ANY CONFLICTING 1NSTRUCTION RECEIVED BY ESCROW HOLDER FROM DEVELOPER OR ANY AGENT OF DEVELOPER, ESCROW HOLDER SHALL (i) CANCEL THE ESCROW, (ii) PAY ALL OF ESCROW HOLDER'S CHARGES FROM ADDITIONAL FUNDS DEPOSITED BY DEVELOPER, AND (iii) DISBURSE TO THE AGENCY (TO THE EXTENT NOT PREVIOUSLY RELEASED 1N ACCORDANCE WITH THIS AGREEMENT) THE DEPOSIT PLUS ALL ACCRUED INTEREST THEREON. DEVELOPER AND THE AGENCY AGREE P6402\0001 \877884.2 -3- THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH THE AGENCY'S DAMAGES BY REASON OF DEVELOPER'S DEFAULT. ACCORDINGLY, DEVELOPER AND THE AGENCY AGREE THAT IN THE EVENT OF DEFAULT BY DEVELOPER UNDER THIS AGREEMENT, 1T WOULD BE REASONABLE AT SUCH TIME TO AWARD THE AGENCY "LIQUIDATED DAMAGES" EQUAL TO THE DEPOSIT PLUS ALL ACCRUED INTEREST THEREON. Agency's Initials Developer's Initials Section 3.3 Closin� Date. The latest date for a Close of Escrow for the Property is August 1, 2006. Section 3.4 Conditions for Sale. The following events are conditions precedent to the Agency's sale of the Property to the Developer, and the date upon which such conditions are fully satisfied or waived in writing by the Agency is referred to herein as the "Close of Escrow": (i) the Developer's inspection of the Property, and Developer's approval of the physical condition and all other aspects of the Property within the time periods set forth herein; (ii) The Agency's receipt of the Purchase Price; (iii) the execution, acknowledgment and recordation of the Memorandum of DDA; (iv) The Developer's receipt of a building permit for construction of the parking lot improvements; (iv) approval by the Agency and City of this Agreement; and (vi) the absence of an Event of Default. Section 3.5 Title. Within ten (10) days after its approval and execution of this Agreement, Agency shall deliver to Developer a title report for the Property with copies of the documents listed as title exceptions therein. Developer shall have fifteen (15) days after such delivery to object to such exceptions to title. If Developer does not object in writing to an exception within said fifteen (15) day period, Developer shall be deemed to have approved such exception. If Developer timely objects in writing to any exception, Agency may either terminate this Agreement by written notice given within ten (10) days after receipt of Developer's written notice, or Agency may attempt in good faith to remove such exception prior to Close of Escrow, and if Agency is unable to remove the exception prior to the Close of Escrow, then either party may terminate this Agreement (and shall not be obligated to purchase or sell the Property). In no event shall Agency be obligated to expend any material sum or sums attempting to remove any title exception. The Memorandum of DDA shall be an exception to title and is hereby approved by Developer as exceptions to title. P6402\0001 \8778 84.2 -4- Escrow Holder shall, following the recording of the Grant Deed, provide Developer with a CLTA (or at the option of Developer, an ALTA) Standard Coverage Policy of Title Insurance in the amount of the Purchase Price, issued by the Title Company, showing the title to the Property vested in Developer, subject to the applicable title exceptions (the "Developer Title Policy"). Section 3.6 Escrow and Escrow Instructions. Promptly following the execution of this Agreement, Developer and Agency shall deliver a copy of this Agreement to Escrow Holder and shall open an escrow for the transactions described herein. This Agreement constitutes the joint escrow instructions of Developer and Agency to Escrow Holder in connection with the transactions described herein. Developer and Agency may supplement such escrow instructions and agree to execute such reasonable supplemental escrow instructions as may be required by Escrow Holder. Section 3.7 Denosit of Documents and Funds in Escrow. Agency and Developer, as applicable, hereby covenant and agree to deliver at least one (1) day prior to the Close of Escrow the following instruments, documents, and funds, the delivery of each of which shall be a condition of the Close of Escrow. Section 3.7.1 Agency shall deliver to Escrow: (i) a Grant Deed duly executed and acknowledged by Agency; (ii) such funds as are required to pay for costs and expenses payable by Agency hereunder; (iii) a counterpart of the Memorandum of DDA duly executed and acknowledged by Agency; (iv) a FIRPTA affidavit and a California form 593-W; and (v) such proof of Agency's authority and authorization to enter into this transaction as the Title Company may reasonably require in order to issue the Developer Title Policy. Section 3.7.2 Developer shall deliver to Escrow: (i) a counterpart of the Memorandum of DDA, duly executed and acknowledged; (ii) the balance of the Purchase Price and such additional funds as are required to pay for costs and expenses payable by Developer hereunder; and (iii) such proof of Developer's authority and authorization to enter into this transaction as the Title Company may reasonably require to issue the Title Policy. P6402\0001 \877884.2 -5- (iv) evidence of receipt of a building permit for the parking lot and landscape improvements. Section 3.8 Authorization to Record Documents and Disburse Funds. Escrow Holder is hereby authorized to record the documents and disburse the funds and distribute the documents called for hereunder upon the Close of Escrow, provided each of the following conditions has then been fulfilled: Section 3.8.1 The Title Company is irrevocably committed to issue in favor of Developer the Developer Title Policy, with a liability amount equal to the Purchase Price, showing fee title to the Property vested in Developer, subject only to the applicable title exceptions; Section 3.8.2 Section 3.8.3 close; [Reserved]; Escrow Holder shall have received Agency's authorization to Section 3.8.4 Agency and Developer shall have deposited in Escrow the documents and funds required to be deposited in Escrow pursuant to Section 3.7.1 and 3.7.2. Unless otherwise instructed in writing, Escrow Holder is authorized to record at the Close of Escrow any instrument delivered to Escrow Holder if necessary or proper for the issuance of the Developer Title Policy. Section 3.9 Escrow Charees and Prorations. Section 3.9.1 Section 3.9.2 f Reserved.] Developer shall pay: (i) one half (1 /2) of all of the escrow fees and charges of Escrow Holder; (ii) the cost of the premium for the Developer Title Policy; (iii) the cost of all endorsements to the Developer Title Policy; (iv) all documentary or other local transfer taxes payable upon the recordation of the Grant Deed; (v) Developer's share of other charges prorated under the terms of this Agreement; and (vi) the cost of an ALTA survey, if required by Developer. Agency shall pay one half (1 /2) of all of the escrow fees and charges. Section 3.9.3 The following shall be apportioned with respect to the Property as of 12:01 a.m., on the day on which the Close of Escrow occurs, as if Developer were vested with title during the entire day upon which the Close of Escrow occurs: (i) (ii) P6402\0001 \877884.2 taxes and assessments levied against the Property; and any other operating expenses or other items pertaining to the Property. -6- Section 3.9.4 Notwithstanding anything contained in Section 3.9.3, any installment of taxes or assessments for the current year paid at or prior to the Close of Escrow for the Property shall be prorated based upon the amounts actually paid. If taxes and assessments for the current year have not been paid before the Close of Escrow, Agency shall be charged at the Close of Escrow an amount equal to that portion of such taxes and assessments which relates to the period before the Close of Escrow and Developer shall pay the taxes and assessments prior to their becoming delinquent. Any such apportionment made with respect to a tax year for which the tax rate or assessed valuation, or both, have not yet been fixed shall be based upon the tax rate and/or assessed valuation last fixed. To the extent that the actual taxes and assessments for the current year differ from the amount apportioned at the Close of Escrow, the parties shall make all necessary adjustments by appropriate payments between themselves following the Close of Escrow. All delinquent taxes and assessments (and any penalties therein) for periods prior to the Close of Escrow, if any, affecting the Property shall be paid by Agency. Section 3.9.5 All prorations shall be determined on the basis of a 360-day year. The provisions of Section 3.9 shall survive the Close of Escrow. Section 3.10 Survev. Developer, at its sole cost and expense, may obtain an ALTA survey of the Property prepared by a registered land surveyor licensed by the State of California. Section 3.11 Preliminary Soil Testing and Phvsical Condition Inspections. It is understood and agreed upon and between the parties hereto that Developer's acquisition of the Property is subject to and conditioned upon its inspection of the Property, including, without limitation, soils conditions and the absence from the Property of Hazardous Substance. Promptly after the execution of this Agreement, Agency will deliver to Developer copies of material documents, reports, and correspondence in the Agency's possession that relate to the physical condition of the Property. Until the date that is thirty (30) days after the date of this Agreement (the "Inspection Deadline"), Developer and its agents may enter upon the Property upon twenty-four (24) hour prior written notice sent to the Agency in order to investigate the physical condition of the entire Property; provided, however, that Agency's agent may request to be present during such inspections, and Developer shall reasonably accommodate Agency in arranging a mutually convenient inspection time so that Agency or Agency's agents may be present. It is understood and agreed that the right of Developer and Developer's agents to enter onto the Property is being given solely to Developer, and Developer shall be solely responsible for its agents and that such inspections and actions are being done to determine the condition of the Property and not with the intent to affect the Property's value. Such inspections shall include, but not be limited to, the condition of soils, storm drainage, utility hookups and archaeological testing. Developer shall indemnify, defend and hold Agency harmless from and against any claims whether by Developer, Developer's agents and employees, or by third parties resulting from Developer's entry upon or the conduction of any tests of the Property. If this Agreement is terminated or if escrow fails to close for any reason, Developer shall promptly restore the Property not yet acquired by Developer to the same condition as existed prior to Developer's undertaking of any testing thereon. All studies and reports prepared in connection with Developer's inspection of the Property are to be done at the expense of Developer; provided, that Developer shall provide Agency with a copy of all of the reports without cost promptly upon receipt by Developer. Developer's obligations and duties hereunder shall survive P6402\0001 \877884.2 -7- and remain upon the completion of the closing or upon the termination of this Agreement for any reason. Developer, in its sole discretion, may elect to terminate this Agreement and cancel Escrow in the event any physical conditions are not reasonably acceptable to Developer by giving written notice of such termination to Agency on or before the Inspection Deadline (as defined above), in which event Agency shall return the Deposit to Developer, and Developer and Agency shall each pay one half (1/2) of the escrow cancellation fees. Section 3.12 "AS-IS" Condition of the Propertv. Developer agrees that it will purchase the Property in its "AS-IS" condition, with all faults, and without representation or warranty, express or implied. Section 3.13 Brokers' Commissions. Developer represents and warrants to Agency that Developer has used no broker, agent, finder or other person in connection with the transaction contemplated hereby to whom a brokerage or other commission or fee may be payable. Agency represents and warrants to Developer that Agency has used no broker, agent, finder or other person in connection with the transaction contemplated hereby to whom a brokerage or other commission or fee may be payable. Each party indemnifies and agrees to defend and hold the other harmless from any claims, liabilities, costs, expenses and damages resulting from any breach by the indemnifying party of the warranties, representations and covenants in this Section. ARTICLE 4. CONSTRUCTION AND FINANCING OF THE PROJECT. Section 4.1 Proiect Improvements. The Developer agrees to construct the Project in accordance with and within the limitations established in this Ageement and the Scope of Development, and within the time periods set forth in the Schedule of Performance. Section 4.2 Proiect Costs. The cost of the Project shall be borne solely by the Developer. Section 4.3 Land Use Annrovals. Before commencement of the Project, the Developer shall, at its own expense, secure any and all land use and other entitlements, subdivisions, zone changes, lot line adjustments, conditional use permits, grading permits, building permits and other permits, environmental reviews and approvals and any other approvals which may be required for the Project by the City or any other governmental agency affected by such construction or work, including the City's Community Development Department (the "Land Use Approvals"). The Developer shall carry out the Project in conformity with all applicable Governmental Requirements including, without limitation, any applicable prevailing wage laws. The Developer shall, without limitation, comply with all normal City planning and building requirements and conditions, and shall apply for and secure the following, and pay all costs, charges and fees associated therewith: Section 4.3.1 All permits and fees required by the City and other governmental agencies with jurisdiction over the Project; and Section 4.3.2 Any environmental studies, documents and approvals required pursuant to the California Environmental Quality Act. P6402\0001 \877884.2 : The Agency staff will work cooperatively with the Developer to assist in coordinating the expeditious processing, consideration, and securing of all Land Use Approvals. However, the execution of this Agreement does not constitute the granting of or a commitment to obtain any Land Use Approvals required by the Agency or the City. Section 4.4 Securitv Financing; Ri�ht of Holders. Section 4.4.1 No Encumbrances Except Mortgages, Deeds of Trust, Convevances or Other Convevance for Financin� For Development. 4.4.1.1 Notwithstanding the provisions of Section 5.2 hereof to the contrary, mortgages, deeds of trust, sales and leaseback, or any other form of encumbrance or conveyance required for any reasonable method of construction and permanent financing are permitted, but only with the prior written consent and approval of the Agency (which consent and approval shall not unreasonably be withheld), and only for the purpose of securing loans of funds to be used for financing the direct and indirect costs of the Project (including reasonable and customary loan fees and costs, and other normal and customary project costs, as approved in each case by the Agency), and shall in no event include operating expenses or the financing of equity. 4.4.1.2 The words "mortgage" and "deed of trust" as used herein include all other appropriate modes of financing commonly used in real estate acquisition, construction and land development. 4.4.1.3 The provisions of this Agreement do not liinit the right of Holders to foreclose or otherwise enforce any mortgage, deed of trust, or other security instrument encumbering the Project, or the right of Holders to pursue any remedies for the enforcement of any pledge or lien encumbering the Project; however, that in the event of a foreclosure sale under any such mortgage, deed of trust or other lien or encumbrance, or sale pursuant to any power of sale contained in any such mortgage or deed of trust, the purchaser or purchasers and their successors and assigns, and the Project, shall be, and shall continue to be, subject to all of the conditions, restrictions and covenants of this Agreement and all documents and instruments recorded pursuant hereto. Section 4.5 Construction Contract and Bonds. Developer shall deliver to the Agency a copy of all construction contracts for the Project. The construction contracts shall obligate a reputable and financially responsible general contractor reasonably acceptable to the Agency, licensed in California, and experienced in completing the type of Project herein contemplated, to commence and complete the applicable portion of the Project in accordance with this Agreement and all applicable federal, state and local laws, rules and regulations. The construction contract shall provide for the customary and reasonable retentions, but at least ten percent (10%) from each progress payment (except there shall be no retention for any items excused from retention when approved by the Agency in writing in a separate document) until the final payment. The construction contract and any other contracts shall also provide for a warranty satisfactory to the Agency that the applicable portion of the Project shall be free from defects for a period of at least one (1) year from and after the date of filing of the Notice of Completion, and all fixtures and P6402\0001\8778R4.2 �� other personal property installed in connection with the applicable portion of the Project shall be free from defects for the term provided by their manufacturer. Section 4.6 Mechanic's Liens. In the event of the recording of a mechanic's lien pursuant to Title 15, Part 4, Division 3 of the Civil Code of the State of California relating to works of improvement upon the Property, the Developer's failure to cause such mechanic's lien to be released, or failure to furnish the Agency with a bond causing such lien to be released, within thirty (30) days of the earlier of the Developer's receipt or knowledge of same shall constitute an Event of Default under this A�eement. Section 4.7 Deadlines for Completion of the Proiect. The Developer shall commence and complete the Project as provided in the Schedule of Performance, and shall otherwise timely comply in all respects with the Schedule of Performance, and failure to do so shall be an Event of Default and shall entitle the Agency, in the Agency's sole, exclusive and absolute discretion, to terminate this Agreement and to exercise all of its rights and remedies provided in this Agreement and the Grant Deed. Section 4.8 Pro�ress of Proiect. During construction of the Project, and upon request by the Agency, the Developer shall submit to the Agency a written report reasonably detailing the progress of the Project in accordance with the Schedule of Performance. The report shall be in such form and detail as is required reasonably to inform the Agency of the status of the Project, and shall include a reasonable number of photographs (if so requested). Section 4.9 Ri�hts of Access. In addition to those rights of access to and across the Property to which the Agency and the City may be entitled by law, designated representatives of the staffs of the Agency and the City shall have the right of access to the Project, without charge or fee, with forty-eight (48) hours prior notice to inspect the work being performed at the Property. Section 4.10 Local, State and Federal Laws. The Developer shall carry out the construction of the Project in conformity with all applicable laws, including all applicable federal, state and local occupation, and safety and health laws, and all related rules, regulations and standards. Developer agrees to indemnify, defend and hold Agency harmless from and against any cost, expense, claim, charge or liability (including, without limitation, attorneys' fees and costs) relating to or arising directly or indirectly from any breach by or failure of Developer or its contractor(s) or agents to comply with such laws, rules or regulations. The Developer's indemnity obligations set forth in this Section 4.10 shall survive the termination or expiration of this Agreement. Pursuant to California Labor Code Section 1781, the Agency hereby states and Developer hereby acknowledges that the construction work to be undertaken by the Developer with respect to the Project is "public work" (as defined in California Labor Code Section 1720) to which California Labor Code Section 1771 applies, and the Developer hereby agrees it shall cause all Project construction work to be performed as "public work" as required by California Labor Code Sections 1720 and 1771. Prior to the commencement of such Project construction work Developer shall obtain and cause to be in full force and effect and filed with the Agency a P6402\0001 \877884.2 -10- payment bond for any construction contract to which Developer is a party providing for all or any portion or portions of said Project construction work (including without limitation work of any subcontractors on the Project) in a form reasonably acceptable to the Agency, the payment provisions of which bond shall be in conformity with the applicable requirements of California Civil Code Section 3247 and 3248. The aggregate amount of such bond shall be the amount of the corresponding Project construction contract. Section 4.11 Anti-discrimination In Proiect Performance. The Developer 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 connection with the construction or operation of the Project. Section 4.12 Certificate of Completion. Upon Completion of each applicable portion of thc Project (except for minor punch-list items that do not interfere with the use, operation or leasing thereo�, the Agency shall, promptly following receipt of written request by the Dcveloper therefor, furnish to the Developer a Certificate of Completion for such applicable portion. The Certificate of Completion shall be in the form of Exhibit "E" attached hereto, and shall be recorded in the County Recorder's Office of Riverside County. The Certificate of Completion shall be, and shall so state, a conclusive determination of satisfactory Completion of the Project or applicable portion thereof as required by this Agreement. The Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, trust deed or other security instrument (other than Agency). Such Certificate of Completion shall not be construed as a notice of completion as described in California Civil Code Section 3093. Section 4.13 Hazardous Materials. Section 4.13.1 The Agency makes no representations or warranties, express or implied, whatsoever to the Developer as to the condition of any portion of the Property, including but not limited to whether the Property contains any Hazardous Materials, or the suitability of the Property for the purposes for which it is acquired by Developer. If the Property is not in a condition suitable for the use or uses to which they shall be put, then it is the sole responsibility and obligation of the Developer to take such action as may be necessary to place the Property in a condition suitable for the Project. The Developer acknowledges and agrees specifically that the Agency shall have no responsibility or obligation with respect to the suitability of the Property for the purposes for which it is acquired by the Developer or the existence of any Hazardous Materials on, under, in or about the Property. Section 4.13.2 The Developer, on behalf of itself and its successors, affiliates, partners, and assigns, agrees to indemnify, protect, defend and hold harmless the Agency and the City (as a third-party beneficiary hereo fl, including, but not limited to, the City's and the Agency's servants, employees, agents, representatives, successors, administrators, assigns, and attorneys, and of each of them alone, from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees and costs), resulting from, arising out of, or based upon the past, present and future (i) the presence, release, use, generation, discharge, storage or disposal of any P6402\0001 \877884.2 -11- Hazardous Materials on, under, in or about, the Property or the transportation of any such Hazardous Materials to or from the Property, as a result of the Project or otherwise, or (ii) violation, or alleged violation, of compliance with the requirements of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal of Hazardous Materials on, in or about the Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, or expense, including without limitation, attorney fees, 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, 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 Property, or any portion thereof, or any improvements thereon, caused by or resulting from any Hazardous Material, or toxic substances or waste existing on, under, about or adjacent to the Property. The provisions of this Section 4.13.2 shall survive the Close of Escrow or the termination of this Agreement, as applicable. Section 4.13.3 THE DEVELOPER, ON BEHALF OF ITSELF AND ITS SUCCESSORS, AFFILIATES, MEMBERS, PARTNERS, AND ASSIGNS, HEREBY FULLY AND ENTIRELY RELEASES AND DISCHARGES THE CITY (AS A THIRD PARTY BENEFICIARY HEREOF) AND THE AGENCY (INCLUDING, BUT NOT LIMITED TO, THE CITY'S AND THE AGENCY'S SERVANTS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, ADMINISTRATORS, ASSIGNS, AND ATTORNEYS), AND OF EACH OF THEM, OF AND FROM ANY AND ALL CLAIMS, CAUSES OF ACTION, DEMANDS, LIABILITIES, DAMAGES, AND LOSSES, OF WHATEVER NATURE, ANTICIPATED OR UNANTICIPATED, KNOWN OR UNKNOWN, ON ACCOUNT OF THE PHYSICAL CONDITION OF THE PROPERTY, THE SUITABILITY OF THE PROPERTY FOR THE PURPOSES FOR WHICH IT IS ACQUIRED BY THE DEVELOPER, OR THE PRESENCE OF ANY HAZARDOUS MATERIALS IN, ON, UNDER, OR ABOUT THE PROPERTY OR 1N CONNECTION WITH, OR IN ANY WAY RELATED TO THE PROPERTY. THIS RELEASE CONSTITUTES AN EXPLICIT WAIVER BY THE DEVELOPER, AND ITS SUCCESSORS AND ASSIGNS, OF EACH AND ALL OF THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES 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." Developer's Initials: Section 4.13.4 The Developer hereby declares and represents that it is effecting and executing this release of the City and the Agency after having read all of this release and with full understanding of its meaning and effect and after having received full legai advice as to its rights from an attorney. P6402\0001 \877884.2 -12- ARTICLE 5. USE OF THE PROPERTY; RESTRICTION ON TRANSFERS Section 5.1 Use Covenant. Coininencing upon the completion of the Project, and in perpetuity thereafter, the Property and the Project shall only be used for parking which shall be made available to the general public without charge or fee of any kind, and for no other purposes without the prior, express written consent of the Agency, which consent may be granted or withheld in the Agency's sole and absolute discretion. Section 5.2 Restrictions on Transfers. Prior to the issuance of a Certificate of Completion with respect thereto, no Transfer may occur with respect to any portion of the Project or the Property without the Agency's prior written consent, which consent may be granted or withheld in the sole and absolute discretion of the Agency. Any transfer or attempted transfer in violation of the provisions of this Section 5.2 shall be void ab initio. Section 5.3 fReserved.] Section 5.4 Obli�ation to Refrain from Discrimination. The Developer shall not restrict the rental, sale or lease of the Property or any portion thereof on the basis of sex, age, handicap, marital status, race, color, religion, creed, ancestry or national origin of any person. The covenants contained in this Section 5.4 shall remain in effect in perpetuity. Section 5.5 Form of Nondiscrimination and Nonse�re�ation Clauses. All deeds, leases and contracts relating to the sale, transfer or leasing of the Property or any interest therein shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: A. 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, handicap, color, religion, creed, national origin or ancestry in the sale, lease, 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, sublessees 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 himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, that 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, sublessees, subtenants or vendees in the land herein leased." P6402\0001 \877884.2 -13- C. In contracts: "Each party hereto 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 race, color, creed, religion, sex, sexual orientation, marital status, ancestry, national origin, age, physical handicap in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoy�nent of the land, nor shall the transferee itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." ARTICLE 6. INDEMNITY Section 6.1 From and after the execution of this Agreement, Developer hereby agrees to indemnify, defend, protect, and hold harmless the Agency and the City (as a third party beneficiary) and any and all agents, employees and representatives of the Agency and the City, from and against all losses, liabilities, claims, damages (including foreseeable or unforeseeable consequential damages), penalties, fines, forfeitures, costs and expenses (including all reasonable out-of-pocket litigation costs and reasonable attorney's fees) and demands of any nature whatsoever, related directly or indirectly to, or arising out of or in connection with: (i) relocation activities in connection with the Project, (ii) any breach or default by Developer under this Agreement, (iii) any of Developer's activities on the Property (or the activities of Developer's agents, employees, lessees, representatives, licensees, guests, invitees, contractors, subcontractors, or independent contractors on the Property), and (iv) any other acts, occurrences, omissions or other matters that take place or exist prior to the Close of Escrow, in each case, regardless of whether such losses, liabilities, claims, damages, fines, forfeitures, costs, expenses and demands shall accrue or are discovered before or after termination or expiration of this A�-eement. Developer shall defend, at its expense, including attorneys' fees and costs, the Agency and the City, and the Agency's and the City's council members, board members, officers, agents, attorneys, consultants, independent contractors, servants and employees in any legal action based upon items (i) through (iv) above or any of them. The Agency and the City may in their discretion, and at their own cost, participate in the defense of any such legal action. The provisions of this Section shall survive the Close of Escrow or the termination of this Agreement as applicable. ARTICLE 7. EVENTS OF DEFAULT AND REMEDIES Section 7.1 Events of Default. The occurrence of any of the following shall constitute an Event of Default under this Agreement: P6402\0001 \877884.2 -14- Section 7.1.1 Any breach of this Agreement not described below in this Section 7.1 which is not cured within thirty (30) days after written notice from Agency provided, however, if such cure cannot reasonably be effected with such 30-day period, such f'ailure shall not be an Event of Default so long as the developer promptly (in any event, within thirty (30) days after such notice is given) commences a cure, and thereafter diligently prosecutes such cure to completion. Section 7.1.2 The Developer's neglect, failure or refusal to keep in force and effect any permit or approva) necessary for the Project. Section 7.1.3 The filing of a petition in bankruptcy by or against the Developer, or its general partner, or appointment of a receiver or trustee of any property of the Developer, or an assignment by the Developer for the benefit of creditors, or adjudication that the Developer is insolvent by a court (provided that in the case of bankruptcy filing a� Developer or the appointment of a receiver or trustee at the request of a third party, an Event of Default by the Developer shall not be deemed to have occurred unless Developer fails to cause such filing or appointment to be removed or discharged within sixty (60) days). Performance. Section 7.1.4 The Developer's failure to comply with the Schedule of Section 7.1.5 Abandonment or substantial suspension of construction of the Project by the Developer for a period of thirty (30) days after written notice of such abandonment or suspension from the Agency. Section 7.1.6 Failure to cause a mechanic's lien to be released (by statutory release bond, payment or otherwise) within thirty (30) days after the earlier of Developer's receipt or knowledge of the same. Section 7.2 Develoner's Remedies. The Developer's sole remedies for the Agency's breach of this Agreement shall be: (a) to institute an action in equity to seek mandamus or specific performance of the terms of this Agreement, or (b) to terminate this Agreement. In no event shall the Agency be liable for damages. Section 7.3 A�encv's Remedies. If any Event of Default by Developer occurs, then the Agency shall be entitled to all remedies available at law or in equity, including, without limitation, specific performance and, to the extent applicable, the exercise of the Agency's right of reversion contained in Section 7.7. Section 7.4 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. P6402\0001 \877884.2 -15- Section 7.5 Notice of Default to Mortr�a�e, Deed of Trust or Other Securitv Interest Holders; Ri�ht to Cure. Whenever the Agency shall deliver any notice or demand to the Developer with respect to any Event of Default by the Developer, the Agency shall at the same time deliver a copy of such notice or demand to each holder of a loan secured by the Property ("Holder") from whom the Agency has received a written request for notice. Each such Holder shall (insofar as the rights of the Agency are concerned) have the right (at such Holder's option), but not the obligation, within ninety (90) days after the receipt of the notice to cure or remedy any such Event of Default and to add the cost thereof to the debt secured by its lien on the Property; provided that in the case of an Event of Default which can only be remedied or cured by such Holder upon obtaining possession, provided that the Holder diligently seeks to obtain possession of the Property, the Holder shall have a reasonable period of time, not to exceed one hundred and twenty (120) days after obtaining possession, to cure the Event of Default. This Section 7.5 does not apply to a failure by the Developer to complete the Project by the date provided in the Schedule of Performance; the consequences of such failure are addressed in Section 7.7 below. This Section 7.5 is for the sole benefit of Holders, and the Agency's failure to comply with same shall not excuse the Developer's performance hereunder. Section 7.6 Assumption of DDA. No Holder of any security interest in the Property or any portion thereof, or its successors, �-antees or assigns, shall undertake or continue the construction or completion of any improvements on the Property (beyond the extent necessary to conserve or protect construction already made) without first having expressly assumed the Developer's obligations to the Agency under this Agreement by written agreement reasonably satisfactory to the Agency. Any such Holder properly completing the Project or applicable portion thereof shall be entitled, upon written request made to the Agency, to a Certificate of Completion from the Agency with respect thereto. Section 7.7 A�encv Reversion Ri�hts. If the Developer fails to complete the Project by the date provided in the Schedule of Performance, or shall fail to comply with the use covenant contained in Section 5.1, then title to the Property (including all improvements thereon) shall revert to the Agency as provided in the Grant Deed and Agency shall have all of Developer's rights to possession of the Property; provided, however: a. Such reversion right shall be subject and subordinate to the lien and rights of any Holder, but each Holder must agree to forbear from exercising its rights and remedies with respect to defaults by Developer under its loan from such Holder for a period of at least nine (9) months after reversion of title to the Property to the Agency; the foregoing will not, however, prohibit the Holder from: (i) sending, recording or publishing notices of default, notices of sale and other notices required by law as prerequisites to a valid foreclosure sale; (ii) proceeding with any or all of its rights or remedies with respect to the Property if, after the reversion, Agency has received written notice from the Holder that Agency has failed to pay property taxes or assessments payable on the Property and arising after the reversion, maintain insurance after the reversion or maintain the Property after the reversion, in each case as required by the loan documents for the loan, and such failure has continued for more than sixty (60) days after such written notice; or (iii) proceeding against guarantors of the loan. P6402\0001 \877884.2 -16- b. Upon the revesting in the Agency of title to the Property, the Agency shall, pursuant to its responsibilities under state law, use reasonable efforts to resell the Property as soon and in such manner as the Agency shall find feasible and consistent with the objectives of the Community Redevelopment Law and the Redevelopment Plan to a qualified and responsible party or parties (as determined by the Agency), who will assume the obligation of making or completing the improvements for the Property required by this Agreement, or such other improvements in their stead as shall be satisfactory to the Agency and in accordance with the uses specified for the Project, or any part thereof, in the Redevelopment Plan. Upon such resale of the Project, or any part thereof, the net proceeds thereof shall be applied: Holder's loan; (1) First, to repayment in full of the outstanding balance of the (2) next, to reimburse the Agency on its own behalf or on behalf of the City of all costs and expenses incurred by the Agency or City, including salaries of personnel engaged in such action, in connection with the management and resale of the Property (but less any income derived by the Agency from the sale of the Property, or any part thereof, in connection with such management); all taxes, assessments, and water and sewer and other utility charges, insurance costs, security costs, and other carrying costs with respect to the Property or any part thereof; any payments made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the agreed improvements or any part thereof on the Property, or any part thereof; and any amounts otherwise owing to the Agency by the Developer and its successor or transferees. c. Any balance remaining after such reimbursements shall be retained by the Agency as its property. d. The rights established in this Section 7.7 are to be interpreted in light of the fact that the Agency will convey the Property to the Developer solely for development and use in accordance with this Agreement. e. If the Property is not sold by Agency within nine (9) months after reversion to the Agency, or the proceeds of the sale are not sufficient to pay all sums due the Holder, then the Agency shall have thirty (30) days to purchase the Holder's loan for a sum equal to all principal and accrued interest due thereunder (excluding penalties and excluding interest at a rate in excess of the rate of interest in effect prior to the Developer's default). If Agency does not so purchase the Holder's loan, the Holder may proceed with its rights and remedies under its loan documents, including, without limitation, foreclosure. f. In the event of a default or breach by the Developer of a Holder's loan that is cured by the Agency, or payment of sums by Agency to a Holder in excess of the net proceeds of a sale of the Property by the Agency after obtaining title by reversion, the Agency shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency P6402\0001 \877884.2 -17- in curing the loan default, the sum of payments by Agency to such Holder, and, all costs and expenses incurred by the Agency in reselling the Property. ARTICLE 8. GENERAL PROVISIONS Section 8.1 Construction. The parties agree that each party and its counsel have reviewed and revised this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this A��reement or any amendments or exhibits hereto. Section 8.2 Police Power. Nothing contained herein shall be deemed to limit, restrict, amend or modify, or to constitute a waiver or release of, any ordinances, notices, orders, rules, regulations or requirements (now or hereafter enacted or adopted and/or as amended from time to time) of the City or the Agency, or their departments, commissions, agencies and boards and the officers thereof, including, without limitation, any redevelopment or general plan or any zoning ordinances, or any of the City's or the Agency's duties, obligations, rights or remedies thereunder or pursuant thereto or the general police powers, rights, privileges and discretion of the City or the Agency in the furtherance of the public health, welfare and safety of the inhabitants thereof; provided, however, that the Agency and the City agree not to take any action to frustrate or hinder the intent or effect of this Agreement. Section 8.3 Internretation. In this Agreement the neuter gender includes the feminine and masculine, and singular number includes the plural, and the words "person " and "party " include corporation, partnership, firm, trust, or association where the context so requires. Section 8.4 Time of the Essence. Time is of the essence of this Agreement and all Parties' obligations hereunder. Section 8.5 Notices, Demands and Communications Between the Parties. Notices, demands and communications between the Agency or the City and the Developer shall be deemed sufficiently given if (i) delivered personally, (ii) dispatched by registered or certified mail, postage prepaid, return receipt requested, or (iii) sent by nationally-recognized reputable overnight delivery service to the principal offices of the City or the Agency and the Developer as set forth below. Such written notices, demands and communications may be sent in the same manner to such other addresses or to such other address as any Party may from time to time designate by mail as provided in this Section, and shall be deemed received upon delivery or refusal of delivery, if delivered personally, within three (3) business days after deposit of same in the United States mail, if mailed, or one (1) business day after deposit of same with a nationally recognized reputable overnight delivery service if sent by such a delivery service. To the Developer: Gregory & Gregory, LLC 74-020 Alessandro, Suite #E Palm Desert, CA 02260 Attention: Ron Gregory Phone: 760.568.3624 P 6402\0001 \877884.2 : Facsimile: 760.773.5615 To the Agency: Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260 Attn: Lauri Aylaian Telephone: (760) 776-6412 Facsimile: (760) 341-6372 Required Copy To: Richards, Watson & Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071-3101 Attn: Jim G. Grayson Telephone: (213) 626-8484 Facsimile: (213) 626-0078 Section 8.6 Renresentations and Warranties. Section 8.6.1 Developer's Renresentations and Warranties. The Developer makes the following representations and warranties as of the date of this Agreement and agrees that such representations and warranties shall survive and continue thereafter but shall not be remade after the date of this Agreement, and further agrees that, until the Closing, upon learning of any fact or condition which would cause any of the warranties and representations in this Section not to be true, the Developer shall promptly give notice of such fact or condition to the Agency. Such representations and warranties shall extend for the term of the Loan Agreement. 8.6.1.1 [Reserved.] 8.6.1.2 No Liti�ation. There is no litigation, action, suit, or other proceeding pending or threatened against the Developer, or to the Developer's knowledge, against the Property, or the Project which may in any manner whatsoever materially adversely affect the validity, priority, or enforceability of this Agreement or the construction, use, occupancy or operation of the Project by or on behalf of the Developer. 8.6.1.3 Authoritv. The Developer has the right and power to own and develop the Project as contemplated in this Agreement and to perform all of its obligations hereunder. 8.6.1.4 Enforceabilitv. All agreements executed pursuant hereto constitute valid and binding obligations of the Developer which are legally enforceable in accordance with their terms, subject to the application and effect of all Governmental Requirements including, without limitation, the laws of bankruptcy, creditor's rights exceptions, and equity. 8.6.1.5 No Breach. None of the undertakings of the Developer contained in this Agreement or any agreements executed pursuant hereto violates any applicable P6402\0001 \877884.2 -19- Governmental Requirements, or conflicts with, or constitutes a breach or default under, any agreement by which the Developer or the Project are bound or regulated. 8.6.1.6 Financial Information. All financial information prepared by the Developer and delivered to the Agency by the Developer, including, without limitation, information relating to the Developer and the Project, fairly and accurately represents such financial condition in all material respects as of the date such financial information was prepared. No material adverse change in such financial condition has occurred as of the date of this Agreement from that disclosed in such financial information. 8.6.1.7 Proceedings. To the best of the Developer's knowledge, the Developer is not in violation of any statute, law, regulation or ordinance, or of any order of any court or governmental entity the effect of which would prohibit the Developer from performing its obligations hereunder with respect to the Project. 8.6.1.8 �Reserved.] 8.6.1.9 Accuracv. To the best of the Developer's knowledge, all documents, reports, instruments, papers, data, information and forms of evidence delivered to the Agency by the Developer with respect to this Agreement and all agreements executed by the Developer pursuant hereto are accurate and correct in all material respects, and do not contain any material misrepresentation or omission by the Developer. The Agency may rely on such reports, documents, instruments, papers, data, information and forms of evidence without any investigation or inquiry. 8.6.1.10 Condition and Investi�ation of Propertv. Developer will conduct its own due diligence regarding the Property as provided for in this Agreement, and Developer acknowledges that Developer is purchasing the Property in reliance on Developer's own due diligence and investigation and understands that Agency has made no representations and warranties expressly set forth in this Agreement, and no representations or warranties express or implied, have been made by Agency or by Agency's agents. Developer further acknowledges that the Property shall be accepted by Developer "AS IS, WHERE IS, WITH ALL FAULTS", without representation or warranty and with no right of setoff or reduction in the applicable purchase price. Developer is experienced in the purchase of commercial pieces of real property, and Developer has the ability either itself or with the advice of its agents to evaluate the risks associated with the purchase of the Property and at the time of the closing, Developer shall have had adequate time to properly and completely review and analyze the condition of the Property to the extent it deems necessary or appropriate. Section 8.6.2 A�encv's Representations and Warranties. 8.6.2.1 Authoritv. This Agreement has been duly authorized by the Agency. 8.b.2.2 No Violation of Law or Contracts. The Agency's execution of this Agreement will not violate any Governmental Requirements applicable to Agency or any contracts to which Agency is a party. P6402\0001 \877884.2 -20- Section 8.7 f Reserved.) Section 8.8 Warrantv Against Pavment of Consideration for A�-eement. The Developer 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 8.9 Release of Agency and Citv Officials. No member, official, agent, employee, or attorney of the Agency or the City shall be personally liable to the Developer, or any successor in interest of the Developer, in the event of any default or breach by the Agency or the City or for any amount which may become due to the Developer or its successors, or on any obligations under the terms of this Agreement. The Developer hereby waives and releases any claim it may have personally against the members, officials, agents, employees, consultants, or attorneys of the Agency or the City with respect to any default or breach by the Agency or the City or for any amount which may become due to the Developer or its successors, or on any obligations under the terms of this Agreement. The Developer 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 1N HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." Developer's Initials: Section 8.10 Proiect Compliance. The Developer agrees that the Project shall be completed in substantial compliance i.e., full compliance except for minor defects and incomplete items which do not, individually or in the aggregate, materially and adversely affect the value or use of the Project) with all plans and specifications approved pursuant to this Agreement, including but not limited to the Scope of Development, and that the Project will comply with all applicable Governmental Requirements and covenants, conditions, restrictions and easements of record. Inspection by the City or the Agency of the Project thereon is for the sole purpose of protecting the Agency and the City and is not to be construed as an acknowledgment, acceptance or representation by the Agency or the City that there has been compliance with any plans approved pursuant to this Ageement, or that the Project will be free of faulty materials or workmanship. Any mortgagee or beneficiary of any encumbrance on the Property shall make such other independent inspections as permitted by this Agreement and as it deems necessary for its own protection, and nothing contained herein shall be construed as requiring the Agency or the City to construct or supervise construction of the Project or any public improvements. P6402\0001 \877884.2 -21 - Section 8.11 Attornevs' Fees. If any Party brings an action to enforce the terms hereof or declare its rights hereunder, the prevailing Party in any such action shall be entitled to its reasonable attorneys' fees to be paid by the losing Party as fixed by the court. If the Agency or the City, without fault, is made a party to any litigation instituted by or against the Developer, then the Developer shall defend the Agency and the City against and save the Agency and the City harmless from all costs and expenses including attorney's fees incurred in connection with such litigation. Section 8. ] 2 Citv as Third Partv Beneficiarv. The City is deemed to be a third party beneficiary of all provisions hereof wherein the City is specifically identified as having rights hereunder. Section 8.13 Venue. In the event of any litigation hereunder, all such actions shall be instituted in the Superior Court of the County of Riverside, State of California, or in an appropriate municipal court in the County of Riverside, State of California or an appropriate District Court in the Southern District of California. Section 8.14 Annlicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. Section 8.15 Successors and Assi�ns. Subject to the restrictions on transfers set forth in this Agreement, the provisions hereof shall be binding upon, and shall inure to the benefit of, the Agency and the Developer and their successors and assigns. Section 8.16 No Joint Venture. Nothing contained herein shall be construed to render the Agency in any way or for any purpose a partner, joint venturer, or associated in any relationship with the Developer, nor shall this Agreement be construed to authorize either party to act as agent for the other. Section 8.17 Records. The Agency or any representative or designee thereof may at any time during normal business hours, upon reasonable prior notice, examine the books and records of the Developer, or of any officer, employee, agent, contractor, affiliate, related person, assignee or franchisee, to the extent that such books and records relate, directly or indirectly, to the acquisition, development and operation of the Project. The Developer shall keep the originals or true and correct copies, at the Developer's choice, of all such records at its address for notices described in Section 8.5 above, or at another location in Riverside County, California reasonably approved by the Agency. Section 8.18 Waiver. The waiver by the Agency or the Developer of any breach by the other party of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition or any subsequent breach of the same or any other term, covenant, or condition herein contained. Either party's acceptance of any performance by the other party after the due date of such performance shall not be deemed to be a waiver by either party of any preceding breach by the other party of any term, covenant, or condition of this Agreement, regardless of such party's knowledge of such preceding breach at the time of acceptance of such performance. P6402\0001 \877884.2 -22- Section 8.19 Force Maieure; Extension of Times of Performance. Delay in performance by any party hereunder shall not constitute an Event of Default wliere the delay is due to war; insurrection; strikes; other labor disputes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; shortages of transportation or materials; unusually severe weather; acts of civil disobedience; delays affirmatively imposed by any governmental authority or any court of competent jurisdiction provided that the delay is not based on any violation of law or breach of this Agreement by Developer or its permitted assignees or by Developer's (or any such assignee's) failure to comply with the regulations, orders or requirements of such governmental authority or court; or any other causes (other than Developer's or its lender's financial inability) beyond the reasonable control and without the fault of the party claiming an extension of time to perform (collectively, "Force Majeure"). The current condition of the Property, which is subject to inspection by Developer under Section 3.1 l, shall not constitute, or be the basis for, any Force Majeure Delay (Developer's rights being limited to termination of this Agreement under Section 3.11). An extension of time for any such cause shall only be for the period of the delay, which period shall commence to run from the time of the commencement of the cause, and shall only extend time for performance if written notice by the party claiming such extension is delivered to the other party within fifteen (15) days after commencement of the cause. Section 8.20 Entire A�reement, Waivers and Amendments. This Agreement, together with all attachments and exhibits hereto and all documents to be executed and delivered pursuant to this Agreement, constitutes the entire understanding and agreement of the Parties hereto. 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 paR of the subject matter hereof. Any waiver, amendment, or modification of any provision of this Agreement must be in writing and signed by both parties. Section 8.21 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 8.22 Severabilitv. 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 thereof 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 8.23 Joint and Several Obli�ation. If the Developer is comprised of more than one individual or entity, the obligations and liabilities of such individuals or entities under this Agreement shall be joint and several. P6402\0001 \877884.2 - 23 - 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, a public body, corporate and politic By: N ame: Title Attest: Approved as to Form: Richards, Watson & Gershon, a professional corporation : Agency Counsel P6402\0001 \877 884.2 Developer: GREGORY & GREGORY, LLC, a Limited Liability Co�npany By: N ame: Title: -24- List of Exhibits Exhibit "A" Legal Description of Property Exhibit "B" Scope of Development Exhibit "C" Form of Grant Deed Exhibit "D" Form of Memorandum of Disposition and Development Agreement Exhibit "E" Form of Certificate of Completion Exhibit "F" Schedule of Performance P6402\0001\877884.2 EXHIBIT `�A" LEGAL DESCRIPTION OF THE PROPERTY Lot 17 of Block 1 in Palma Village Unit No. 1 in the City of Palm Desert, County of Riverside, State of California, as per map filed in Book 19, Page 68 and 69, of Maps in the office of the County Recorder of said county. P6402\0001 \877884.2 A-1 EXHIBIT "B" SCOPE OF DEVELOPMENT Construction of eleven (11) surface parking spaces with lighting, striping, landscape iinprovements, and decorative masonry walls on the north and east sides of the parking lot (as shown on the diagram attached hereto). P6402\000 I \877884.2 B-1 Attachment to Exhibit "B" �To show location of parking spaces and landscaping improvements.) P6402\0001 \877884.2 B-2 EXHIBIT "C" RECORDING REQUESTED BY, AND WHEN RECORDED RETURN TO AND MAIL TAX STATEMENTS TO: PALM DESERT REDEVELOPMENT AGENCY 73-510 Fred Waring Drive Palm Desert, California 92260 Attn.: Ms. Lauri Aylaian [Space Above For Recorder's Use Only] Grantor declares that this Grant Deed is exempt from Recording Fees pursuant to California Government Code Sections 6103 and 27383. Documentary Transfer Tax is $ computed on the full value of the property conveyed. GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the PALM DESERT REDEVELOPMENT AGENCY, a public body corporate and politic ("Grantor"), hereby GRANTS to Gregory & Gregory, a Limited Liability Company, (the "Grantee"), that certain real property located in the City of Palm Desert, County of Riverside, State of California, more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the "Property"); provided, however, that if the conditions contained in Article 4 and Section 5.1 of that certain Disposition and Development Agreement ("DDA") dated , 2006 between Grantee and Grantor are not satisfied in the manner and at the time set forth therein, then the Property and all improvements thereon shall automatically revert to Grantor, and in addition, Grantee hereby assigns to Grantor all of its right, title and interest in, under and to any leases affecting the Property (or any existing or future improvements thereon) heretofore on hereafter executed by Grantee that have been approved in writing by Grantor, such assignment to be effective as of the date (if any) on which Grantor acquires title to the Property by virtue of the foregoing reversion. SUBJECT TO, a lien to secure payment of general and special real property taxes and assessments, not delinquent; the lien of supplemental taxes assessed pursuant to Chapter 3.5 commencing with California Revenue and Taxation Code Section 75; and FURTHER SUBJECT TO, any and all existing building and use restrictions, easements, licenses, rights-of-way, conditions, covenants, restrictions, reservations, liens, encumbrances, exceptions, the covenants and conditions contained in the DDA, and other matters of record; and FURTHER SUBJECT TO, all matters apparent from an inspection of the Property or which a current, accurate survey of the Property would disclose (including encroachments, overlaps, boundary line disputes, drains, streams or watercourses). P6402\0001 \877884.2 A-1 BY ACCEPTANCE HEREOF, Grantee covenants, for itself and its successors and assigns, to refrain from restricting the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property on the basis of race, color, creed, religion, ancestry, sex, marital status, national origin or age of any person, nor shall Grantee establish or pertnit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property. All deeds, leases or contracts entered into with respect to the Property shall contain or be subject to substantially the following nondiscrimination/nonsegregation clauses: IN DEEDS: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, national origin, sex, marital status, age or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." IN LEASES: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: That there be no discrimination against or segregation of any person or group of persons, on account of age, race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use or occupancy, tenure or enjoyrnent of the land herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." IN CONTRACTS: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, age, national origin, sex, marital status or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." All covenants contained in this Grant Deed shall run with the land for the benefit of, and shall only be enforceable by, Grantor and its successors and assigns, without regard to whether Grantor is or remains an owner of any land or interest therein to which such covenants relate. In the event of a breach of any covenant contained in this Grant Deed, Grantor shall have the right P6402\0001\877884.2 A-2 to exercise any right or remedy provided herein or otherwise available at law or in equity, to enforce the curing of such breach. IN WITNESS WHEREOF, the undersigned has executed this Grant Deed as of tllc date set forth below. Dated as of: , 2006 GRANTOR: ATTEST: : PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic By: Name: Title: P6402\0001 \8778R4.2 A-3 State of California County of Riverside On , 2006, 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 whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature (seal) P6402\0001 \877884.2 A-4 Exhibit A To Grant Deed Le�al Descrintion THE LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF RIVERSIDE, CITY OF PALM DESERT, DESCRIBED AS FOLLOWS: Lot 17 of Block 1 in Palma Village Unit No. 1 in the City of Palm Desert, County of Riverside, State of Califomia, as per map filed in Book 19, Page 68 and 69, of Maps in the office of the County Recorder of said county. P6402\0001 \877884.2 A-5 EXHIBIT "D" RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO PALM DESERT REDEVELOPMENT AGENCY 73-510 Fred Waring Drive Palm Desert, California 92260 Attn.: Ms. Lauri Aylaian (Space Above This Line for Recorder's Use) Exempt from recording fees pz�rsi�ant to Gov. Code Sec. 6103 MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT THIS MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT (this "Memorandum") is dated as of , 2006, and is entered into between the PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency") and Gregory & Gregory, LLC, a Limited Liability Company, (the "Developer"). RECITALS A. Agency and Developer entered into a Disposition and Development Agreement dated , 2006, pursuant to which Agency conveyed to Developer the property more described in Exhibit "A" attached hereto and incorporated herein by reference (the "Property„). B. The Disposition and Development Agreement, as amended, is hereinafter referred to as the "DDA." C. The DDA contains provisions which specify and restrict the development and use of the Property and impose certain obligations on Developer and its successors and assigns with respect to the development and use of the Property. D. Agency and Developer desire to execute this Memorandum to provide constructive notice to all third parties of the DDA. NOW, THEREFORE, Agency and Developer mutually agree as follows: DDA. The terms of the DDA are incorporated herein by reference. P6402\0001 \877884.2 D-1 2. Assi�nment. Except as expressly provided in the unrecorded DDA to the contrary, neither the Property nor Developer's rights and obligations under the DDA shall be transferred, assigned or conveyed without Agency's prior written consent, which consent may be granted or withheld in Agency's sole and absolute discretion. 3. Successors and Assi�ns. Subject to Section 2 above, this Memorandum and the DDA shall bind and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns. 4. Governing Law. This Memorandum is governed by California law. S. Execution in Counterparts. This Memorandum 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. IN WITNESS WHEREOF, the undersigned have executed this Memorandum at Palm Desert, California, as of the date first written above. AGENCY: PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic By: Name: Title Attest: DEVELOPER: GREGORY & GREGORY, LLC, a Limited Liability Company By: Name: Title: P6402\0001\877884.2 D-2 State of California County of Riverside On , 2006, 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 whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature (seal) P6402\0001 \877884.2 D-3 State of California County of Riverside On , 2006, 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 whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authori�ed capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature (seal) State of California County of Riverside On , 2006, 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 whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature (seal) P6402\0001 \877884.2 D-4 Exhibit A to Memorandum of DDA Le�al Descrintion THE LAND SITUATED 1N THE STATE OF CALIFORNIA, COUNTY OF RIVERSIDE, CITY OF PALM DESERT, DESCRIBED AS FOLLOWS: Lot 17 of Block 1 in Palma Village Unit No. 1 in the City of Palm Desert, County of Riverside, State of California, as per map filed in Book 19, Page 68 and 69, of Maps in the office of the County Recorder of said county. P6402\0001 \877884.2 D-5 EXHIBIT "E" RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: PALM DESERT REDEVELOPMENT AGENCY 73-510 Fred Waring Drive Palm Desert, California 92260 Attn.: Ms. Lauri Aylaian (Space Above This Line for Recorder's Use) CERTIFICATE OF COMPLETION The Palm Desert Redevelopment Agency hereby certifies as follows: Section 1. The Project required to be constructed in accordance with that certain Disposition and Development Agreement (the "AgreemenY') dated as of , 2006, by and between the PALM DESERT REDEVELOPMENT AGENCY (the "Agency") and Gregory & Gregory LLC, a Limited Liability Company, (the "Developer") has/have been satisfactorily completed in accordance with the provisions of said Agreement. Section 2. This Certificate of Completion shall constitute a conclusive determination of satisfaction of the agreements and covenants contained in the Agreement with respect to the obligations of the Developer, and its successors and assigns, to construct and develop the real property described in Exhibit A attached hereto in accordance therewith; except that this Certificate of Completion shall not constitute evidence of compliance with or satisfaction of the Developer's covenant to operate and maintain the Project as provided in the A��reement. Section 3. This Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage or any insurer of a mortgage, securing money loaned to finance the Project or any part thereof. Section 4. This Certificate is not a Notice of Completion as referred to in California Civil Code Section 3093. Section 5. Except as stated herein, nothing contained in this instrument shall modify in any way any other provisions of the Agreement or any other provisions of the documents incorporated herein. P6402\0001 \8778842 E-1 IN WITNESS THEREOF the Agency has executed this Certificate of Completion this day of , 2006. ATTEST: PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic By: Name: Title: P6402\0001 \877884.2 E-2 State of California County of Riverside On , 2006, 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 whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature (seal) P6402\0001\R77884.2 E-3 Exhibit A to Certificate of Comnletion Le�al Description THE LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF RIVERSIDE, CITY OF PALM DESERT, DESCRIBED AS FOLLOWS: Lot 17 of Block 1 in Palma Village Unit No. I in the City of Palm Desert, County of Riverside, State of California, as per map filed in Book 19, Page 68 and 69, of Maps in the office of the County Recorder of said county. P6402\0001 \877884.2 E-4 EXHIBIT "F" SCHEDULE OF PERFORMANCE The Developer agrees to comply with the deadlines with regard to the Project that are set forth below. All planning and design documents pertaining to the Project to be completed, and all required governmental permits issued for the construction of the Project. At the Close of Escrow. Completion of construction of the Project. P6402\0001 \877884.2 Within 365 days from the Closing Date. F-1 CITY OF PALM DESERT AND PALM DESERT REDEVELOPMENT AGENCY NOTICE OF JOINT PUBLIC HEARING Notice is hereby given that the City Council of the City of Palm Desert and the Palm Desert Redevelopment Agency will hold a public hearing on the disposition of certain real property by the PALM DESERT REDEVELOPMENT AGENCY to GREGORY & GREGORY, LLC. Said hearing is being held pursuant to Section 33433 of the Health and Safety Code. Such real property consists of approximately 0.14 acres of land and is located at 74-039 San Marino Circle in Palm Desert, California. A copy of the proposed Disposition and Development Agreement regarding such disposition and a summary of the cost thereof to the Agency, the estimated value of the interest to be conveyed determined at the highest and best uses permitted under the Redevelopment Plan for Project Area No. 1, the estimated value of the interest to be conveyed or leased, determined at the use and with the conditions, covenants, and development costs required by the proposed Disposition and Development Agreement, the purchase price thereof, and an explanation of why the sale of the property will assist in the elimination of blight, are available for the public inspection and copying at a cost not to exceed the cost of the duplication at the office of the City Clerk of the City of Palm Desert, 73-510 Fred Waring Drive, Palm Desert, California 92260. The time, date and place of such hearing shall be as follows: Time: 4:00 P.M. Date: 13 April 2006 Place: City Council Chambers City Hall 73-510 Fred Waring Drive Palm Desert, California 92260 (760) 346-0611 Any person wishing to be heard regarding this matter may appear at the above time, date and place. Date: March 27, 2006 RA ELLE D. KLASSEN, CIrtY CLERK SECRETARY, CALIFORNIA G:�CIIyCkklGbria MaNnezLLEGAL NOTICESIPH 0�1306 • 74089 San Marirw.doc Legal Notice - Public Hearing 4/13/06 - DDA 74-039 San Marino Circle Page 1 of 1 Martinez, Gioria From: Moeller, Charlene [CMOELLER@palmspri.gannett.comj Sent: Monday, March 27, 2006 10:08 AM To: Martinez, Gloria Subject: RE: Legal Notice - Public Hearing 4/13/06 - DDA 74-039 San Marino Circle Ad recieved and will publish on date(s) requested. CharCene 9KoeQer 4'u6Gc Notice CustomerService 4eyp. (760) 778-4578, Fax (760) 778-4731 My hours aze Mon-Fri 8:00-5:00 pm. �Desert .Sun lettals�thedesertsun.rnm csZ �Desert �Post `G1�ee�Cy dpwlegaLSC�thedesertsun.mm The Valley's #1 Source in News & Advertising! -----0riginal Message----- From: gmartinez@ci.palm-desert.ca.us [mailto:gmartinez@ci.palm-desert.ca.us] Sent: Monday, March 27, 2006 10:02 AM To: charlene.moeller@desertsun.com Cc: mhunt@ci.palm-desert.ca.us; laylaian@ci.palm-desert.ca.us; cjaime@a.palm-desert.ca.us Subject: Legal Notice - Public Hearing 4/13/06 - DDA 74-039 San Marino Circle PLEASE PUBLISH THE FOLLOWING: PUBLIC HEARING Disposition of Certain Real Property by the PD Redevelopment Agency to Gregory � Gregory, LLC - Real Property Consists of Approximately 0.14 Acres of Land and is Located at 74-039 San Marino Circle in Palm Desert TWO TIMES IN THE DESERT SUN Thursday, March 30, 2006 and Thursday, April 6, 2006 «PH 041306 - 74069 San Marino.doc» Thank you, Charlenelllll 9K. GCoria 9Kartinez 73-510 Fred Waring Drive Palm Desert, Califomia 92260 (760) 346-0611 Ext. 354 gmartinez@ci. palm-desert.ca. us 3/27/2006