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Agenda - Agenda Packets - Regular Meeting 5/17/2001
AGENDA ITEM / TO: The Redevelopment Agency Board of Directors FROM: Tim Hults, Planning Director4,I0 DATE: May 17, 2001 SUBJECT: San Jacinto Entry Monument RECOMMENDATION: Adopt the revised bid specifications and authorize City Clerk to start bid advertisement for the San Jacinto Entry Monument. BACKGROUND: The Redevelopment Agency Board of Directors approved the original plans and specifications for in September 2000. The City Clerk subsequently solicited for construction proposals. Two proposals were submitted; both proposals were nearly double the budget estimate for the project. As a result, the Agency Board rejected the proposals, directed Staff to work with the designer to revise the project design in order to lower the project cost. The designer revised the project scope to reduce the estimated cost. The revisions include removing grading from the contractor responsibility, replacing the natural stone masonry on the monument with a stone veneer, reducing the size of the palms from 20' minimum to 10' minimum, downsizing the remaining plant material by one container size, replacing the high voltage lighting fixtures with lower cost low voltage fixtures, and reducing the contractors maintenance responsibility from 6 months to 60 days. The revisions noted above should result in approximately $40,000 in savings based upon quantified bid items enumerated in the rejected proposals. A full size copy of the plans and specifications is available at the City Clerk's office for Council's review and comment. In the event the Council authorizes bid advertisement, bid opening will occur on June 21, 2001. JUSTIFICATION: The installation of the San Jacinto Entry Monument will enhance the appearance of the City's Gateway and help promote economic development activities. This activity is identified as a Council priority in the Implementation Plan. BUDGETARY IMPACT: The source of funds will be Redevelopment in the amount of $25,000. This amount is currently included in the FY 2000/2001 Redevelopment Budget. ATTACHMENTS: 1- Construction Drawings prepared by Gaudet Design Group oh SA\ AC MONUMENT SIGN (South East Corner: Romona Expressway & Sanderson Ave.) J'1!.,1.I'1J,UJ'YY,UJIA11,11' UJIMA. SHEET INDEX: L1.0 CONSTRUCTION PLAN Li 1 LAYOUT PLAN L1.2 GRADING PLAN L1.3 CONSTRUCTION DETAILS & SIGNAGE L1 4 CONSTRUCTION NOTES L2 0 PLANTING PLAN L2.1 PLANTING DETAILS & SPECIFICATIONS L3.0 IRRIGATION PLAN L3.1 IRRIGATION DETAILS & SPECIFICATIONS L4 0 LIGHTING LAYOUT & SPECIFICATIONS II VAAL I 1 L I)JU \TO lia LO .0 ona Expresswa Existing Concrete Paving Y To Remain Existing Signal Lights To A Course Stone emain Ground Cover •.� tl.� �1 i ' 1 11 PLAN VIEW CONSTRUCTION LEGEND mu mpnnato� TRul." nemnoi Iml R� wem eoc�m� as>— Reno —Irar ihmma U LI.0 FG 1461.75 • 61.35 9" NDS ATRIUM GRATE AND BASIN PART #981 81 #916 (BOW 146113) (TC 1460.95) Join Existing Top of Curb (TC 1462.79) (BOW 1462.89) TP 1469.76 Join Existing Top of Curb TW 1463.2 ROCK AND DRAIN LINE DAYLIGHT , 3'1/44' AREA PER DETAIL'D' L1.3 DAYLIGHT DRAIN LINE AND RETENTION BASIN GRADING LEGEND NOTE: 1 wb Sal JWle1C I t nu 1N[M2J ..0ta.9I aPm" DO a,meaee Mw.,rrenl pea.• so." 2 Conn=raFHNnbk 1u al Ire peagb a-0' I+ P P • > O i P r T h r F P P P P P i 1111 LP IN 11 011 q2 Irir 1141 S off" ito �R� ! " iii g " pi1llokx 1;11 12011011;11 p9 rip NNil pit; i!; i 191 1; 9 ���4 at3t2 �1411� q� 55" !i �y aid# A my P P f P P. A m D y P P >� f] U P a� rt� • � i�� 9, s a 1• � 1 �I r d i aq E rtl @ m pI 0 q E o p F } p p ? ra F.P; Y M pia s ,10 4 i o oula� o Fa q� ; a !g j � 8�q �� 1 le a j 9 „11 1411411 11%3 12110 iV2 11 E e Irer�l $ �� 6� a �� a �a�a,x° 9� l :9 q% as $ N 01 1 • ,� i S 4 K p p p p t M p rpoi� a� SEE 50, Yrip1E11�i lip r gin gh si AO Pi: 1:g " 1 iI"EEh ?� •r. . CINTO lINI CITY OF SAN JACINT P h � all CONSTRUCTIONx CONSTRUCTION NOTES MONUMENT SIGN ,;.• 'um , r r.-.. 1 r 1 i,^- �i� TmMOL..6...WGWM.Y.�.P Precst City Logo Design by "Pineapple Grow Designs" Level Pad Area 0; ELEVATION: MONUMENT SIGN WALL mirriLaair "magi esnotrat evr mum am Wow eirszi NM Nu a treat ale NI= w my 1e STACKED STONE VENEER COLUM Wearilimit Pm -cast City Logo Design by Pineapple Grove Designs 8001771d505 (Digital Art Work Mal from City Planning Dept( Matthews Inter Corp., Helvetica Med. Font (e') {}MONUMENT LETTERING & LOGO Matthews Inter. Cap., HHelvetiica Font (10') Radial Smooth Plaster Monument Wall Stucco By Le Habra Stucco, X.17 Misty 3' Wide Sacked Stone Wiener Cohan 2"• 8" Da. Slone Ground -Cover Of Local River Rock Type UMW mR S r imp _ a, sea eigattear oQ lratl"er er+r— et It. Y AIL ee OMR Y tsar e mom 110 as ales M'il "LE'Ael :..Aa esisuourywrsa_aa.a1m ar sr imar ®Q i�r nr rr �4 L waa. 9iala REM In Mani M 4411 ©PLASTERED SIGN WALL WITH CAP & UGHTING YELL �Fa a+ae All Lenore To Be Matthews Inter. Corp. Cast Iron Formed 'Project Mounted' WI "Annodized Satin Black" Finish (1300}828.8438 `m1A Matthews Inter. Corp., Palotino Simi -Bold Font (20'7 lee!rlrr i�N�s atoms ♦ r art CONC. CURB AND RIVER ROCK CROUNDCOVER WPM law lb aesilr PROJECT MOUNT DETAIL Wr SPACERS AND THREADED STUDS SET IN ADHESIVE -dear T7e'.r's' 0 0 n n • S u • • p 3 M 6 a irg igia?fi ^ib::O ITY OF SAN JACINT P T in �NI 1 1 � 1 c PLANTING PLAN MONUMENT SIGN ' ^� r i' ,_ r ;.� �. �. ,�. Cdi TYPICAL SHRUB AND VINE PLANTING lit W rot to grtai •rite RAT moo I Oa4—Ws STANDARD & MULTI —TRUNK SPECIMEN TREE LANDSCAPE PLANTING SPECIFICATIONS • GENERAL A Tne Landscape Contractor mall linden al labor puumen, mve0MS and Brv0e0 for complete ...elation as dnaMebbythe Weape MYfi 0 e nd Impetson drewings are n alese sp0o edbon0 B Any devllUon from the plan orspeuhcadxp ram nave a Meow.en eppervel by the CnRepen0zbv C MI Mattingly and workmanship shall be anapest surety Nock shame01 the naulemeMs 01.11 Oeveming codes o.n.o.. lawsetc rektro to Mewed( D NMI all work is completed and inane d byes. City ode LeMsape Contractor snail assume all nsks and hearse blsesbl. MOM. and *Mignon E Dunng me course el the contract (inclsde.mmtanme SYMMSme Landscape Clnlmclol Shall pavk a enemndal p.Oic lat.y erg property damagemmnnC0 The marmot envoy lMtly ens unto. shall be as required by the Cly(nnen Jacinto TM maanun ▪ Bunt al pmoany demapnnsurance ter also be es racy.. by Ma Cray of San .Nato F The Lan. Cape :anlred0r shereperwwkdwnagd hylvnV*M4 payment for each repair Should Me Lamm. CYO0Ua'Mve On wwk d amaged by anal.. Contractor he Is tomeka ernoNemans loth the .ar Contractor ler the CDMradaf5 repair pule C010.d0'S payment kf0Y repair G Otranto.. amen tor platen mwenels sparkled brOnkielor(0 C) spacing ens shown ter convenience only eel are AMOremNe tomeaeaa peas camre0ter Is I0 supply a re0tlanl 0a0n111y010Ya1 to WY the eppaa requrema6 2 WEED COMaOL A One Landscape Contractor e toremwe ed weeds amber unyoked praseee (Including Inc roots] en0T9 as te le1sape erns 6 All landscape areas era to name tee NeamwgarIMre.de'Su an' per menuleCuere instructions Apmlabns a le. MMO. snot be done by personnel licensed to nerd. epmainlcenGES 0 SOIL CO NOITIONING AND GRADNG A fleupn grading other then Met noted who landscape cemesn byes. Crly Emile grading is the lasp0t6Uyol Na Landscape Contractor Faksn grading /Flnal•A 1110-)wd corms/ of name el manta smooth grade mmApnplhe soil le a depth of B' m0 comm., el ace M clods oft diameter ar larger Removal ofmnor4marb oIcons:4 6nw.ee .included Flnilh grads is lab. 2' below tap otpeceMMl and Sideway B Alilandscape areas are to receive an even ..:Non al 00 0011N wood bark Iste0111zed whin nitrogen erg m0leael, 20 panda 010 20 20 tenthsfir 10 pounds at sod sulfur for ear11 W0 swore feel . The .bore amendments are the he Incorporated uwbmfy hid ma top rot sac C AN reek or unbroken10llelode overt" n Dane.,eroup De surface are to he removed troy the 5a O Remove a0tsting Phase l rock mum. se .assay terpw0a beds z PLANTING A Ail p ants are to have a plant rag p112 ernes Nehw1Wral Me m09M and equal la as depth The plant pa la to LO beck0Md(fiber Cos0GOgof plant) with Si meluro es rated en1n CY16a MOOS D Watenn, of plan.. 10 lake place snmeifseelta0erplvtrp E Mulch all shrub and Minter areas with N speedo. took lop resaq F Planting tablets As 1Mlala0 by the deleas Fb1YYe0 shah be Ogoknlf (ranting tablets They Snell he Nhizse emvaym 0Mmlwme There ()) laolels per O0.(1)g.'n carom. Frye (5)Oblate per Five 15)90anadnr Ten(10)leblels per Flamm (157 palm embener Fourteen I le) tablets persd'.24' Pm cMWeleil Eighteen IONlabials pare.' a:starer G suppoNng or treesle Meer ONE. ® Mime — W MUMS, o®MID Ka BM CO x,IXI„m ® Win 1161123111 • Ewa owe ® roma ®room war ® lxADA rot ® F.�.� DIM.30T. 1� N NOM ALL MODAL TO ER WATER JETTED WWII PUNTING FOR SApxxl rcy. _QPALM TREE PLANTING DETNL IYt 11) Ware 5 •.IEMI UP A At the romp non cis plant-n0 open110ns. Ms prefer. N M.O.heel and Neon All, urplusm atones nursery*. mslPee. &eb harem." h0m tn. Ste 0 MAINTENANCE :I IB' ice ender days from Imo date of omlWten 0Wb'ened by Me weeds unwanted grasses end bests PAM lospecod 0 An epp0cebpn of lenilmer:le Bel. la ha media 0020,0ov..es amp the Mantenance parted and el Ilse = VVet= el am mmeele» .peas. C Maintenance Is to Include control and treenail of N Nara camas. end plant pests encountered duns/ this paned Pl1GiaMrle Olchemgh am be penarmea by a Li.ne.Clemial 1109 00 D The spnnxler system is m be (Amok.d kr caverns el each w0req Mellundwns such es dirty ne.0. edlupnentolM.L et am Mbe corrected on the spot More serwus defects web be rep0Ldmmaa000y to the Owner ter carrecoln by me Sprf0rCpwedw creeds/dad Immediately by the Landscape Centrecbre cared M... swssar InetelegMI i GUARANTEE A All plant melanin see than N' bon Once( be Wa0N0d Soda prod of(4lmonths All N'boy melon. 004 lrper l4VW0 Penns] anal be guaranteed for penes of 0n year Glnmbe pond commences from the Ins of anal m1p0Gan endecrepmnee byO0 Cry Rep Dads used ler replacement shall be the same kind and sae n MyWypreed Tay went 0e planted following the ormnel flans end Wa01Com5 End of Spectlwre 1 L2.1 a Expressway sTA: Al VALVE: t• G.P.M: 8 Sk A2 VALVE: 1- G.P.M: to STk A3 VALVE r G.P.M: l4 482 (1459) ( 4.0 (1461) PLAN VIEW SCALE 1/8' = 1-0' • • STATION LEEN) •�s NOTE: Wneiee«.e tomn.rt.ve=xa'a eMnter .enteezasa tlamekud dw..sl me W d San Joar,lo.rM{ne,weer to to!m_.tea ryv to unasen. JACINTO GiIRRIATION DETAILS S SPECIFICATIONS :1! CITY OF SAN JACINT MONUMENT SIGN 1071111ilefi ■ Sanderson Ave. 1 1 1 1 1 7 M� M • 1 11 R i r ;. 'fit "N NN„TO CITY OF SAN JACINT Di[ c. i .,1 L� Tl & SPECIFICATIONS 'yen 1 1. 1 t'--- ZTi�%.ro=„,.,,,.,, ,,..,,,, Sanderson Ave. Ramona Expressway (lb (i48) fuse) I, CONTRACTOR'S COPISTRIJCTIOTI WORK. RESPONSIBILITIES: pl. A. SOME Of POMP'. 1FE (Gfr1K1GR <HLLI PPCM0C N1 0)000, 444f@v.S 1 r,AMPOPTA11011 N10 S(FMCES 0ICLC55A0 i0 FUPtt15F1 Ain H Art L NSIRlIIfptl (ROMP(ROMPAS IGN'M 011 110E L0AWi5GS AA YCOSPEWED H(K(11. P AGNI Pr ICCABLE 011150 ll CLM +lv 0MINOR11 SSOA C C EIS, PCCD1A+Ka0 on MULES. C, IN:1450Ell POPP DIME LC PENEOPN(D 01 A U.IrOF1✓T LKCu5Y0 COInag401 O MOMS 0+b It6F(ng0S It1( CODIMC.1*R SHALLI: 00». MODLA V.IL Apr Eon C m +9 A NMNL Metros. FEES A10 MEMO 115FECTg115 K F£[UR0. Ir5VBN2[ 1P[ CC'NINACIO1 Mom CMl00 ALL P081.WlS O uPEI1AI4YC PIMP iloPtiI1 NID R110111 O EYMAGC f5L.PN{£ AS FC0)1400 BY ALL AFFEll SaO COTLS. N10 IRE (lir OF yq 4001111p F. i0C KEE(ll1YI PPIGP 10 COMMCICCY11(1 Of W0F✓, II,I CODIEENN015 SKY, Or+A1NC1 DIEM O CC1r 0 COCONDEMNSOP N:C 110E 'SHALL D OCSCN M INC 40 0 arr W9F 5, ulv 110CF(%NC'CS SPELL OE FCPBFIFCr f51 II¢ GWN(N (Kltl 9JE{RINIFI IYIIII IMYC[NF1CL'F b. LVELC RIR 0OCPCJRNRC1'l: 4NC (ON1R+C10R SNN1 BE P.CSIC11500 C(V MP CIC4R(M0114F11 LNI10 .1164(CIN f'POf'CR1Y, RwN1-or-k41S u0LML1nc E Lgaf05 00 Nv ml4P L104: PS0PEP1v RE51FClwlu C1141 MM✓(0 OR o N eReED H. LLg04(0(01, Gr AC1591105: 111E CCI+IRK1OF SIU11 eV PCSKIrsOE IMP [OMA:I0OI00 Of Hu AC11vr,L5 pm AM 0f11CP TRAMS 1NR0JC4 9u( OPIICR (!OB SDFEW111CNGCIFI) • 4 MELD SINRIG. MAD 10 IFIDIAMATICIE. lot OIIIPNIM< cr,aLL LOCE1C 0r STEMS. OF OVER MINK. All f0Ns1PL^4Cv: CL(ML1115 'S C011LE1CD Ct1 1HL PLANS FOR EFFNp44 Br 101E CPT 1 FP1!lll1ET0JC RIB U105CAF£ AFCVRCCT, y mill(tin1G/1 C( DXREPAMIES: All DRCRCPNIC,CS BLMflN E Merl L01 U'0l5 AND rK CUC%ER DIX'Lr1AEI0S Ar10/IX1 +1 DESEGEl 01100 EMI CIiOL RIE .LICE S:FUL C0M1Yr10011 N:0 COSI Or THE PP5:CC L K Fr0UlI(D TO MC Cm EAJFInli Ell w0F✓PFC0F D ILO 1H MT00U CMA 51ECI 041E CEASE UMII% 11+[ 011001EPN ES umt L¢N PI5040 Nr : (PURR We FIPRESCVl1II00 54 1N05CFPE 4FCHRECi N' HF11 +G AIM1' COI+NIILL-T(III Of 0CPK PFgll'O lNE FCSCIU0KE: or CT PErmeriCS 00 Al1 C0MINACIOP's Non RED [MEMO. F. WPM (OP m*KC. 110E COl0PK1CR Y4LL EL LIm4E !CB 1M1u(L 40 41 VIIIm0S. CN151P'W. MAC11CV_ 1Rn1C'Ar0YI 51IN1D PUIOPG {I[U(VtS, 0R0G 0P r(FM(0 DP Vr1YAR111D. AND SHALL Wore oP EMME Air, DEPAGEP luargiu[t+15 + TO E C0Tr R(PPCSEIBAIIF L IVRC UP LOSS: INL LCIIIRACIOP Ore DE SESPOD5,01E AND LUOLE F00 140 Loos 1O ru' tfoirw 1f1. PODS POD 0M1t0r15 PM PPR0LCi MP,t folAn101+ ANDMC4PIN+CC Cr H4 U00 m mama Gv 901E Cr, OEPPMEIPA1NC N. rrir,Ell CNAPF111(C. Art 'HMf1 [R441 DC CAW/AMU/ IN n COIRF4000 5 rD 144E AMORAL MO WORMP)MSHP PIP I FEFIW or WCLAF FCC.Dw4r 4FC MR Or n,A4 4CCECt41¢C ft' PROCl, LERIiM 1r{5 CAP AT11EL EMIR PPP i CN l+C our Or 1HC Se{1M0 ra4i N. PARII rI CLFI11KAMIOi. 1{E (04000CIOP SNI.LL PFCMC( A tiff TAu9 110E CglUELOV1011 0C4Prr' S P15lrtLL0 1N LULL ((RUN." will 111E C0111RK1 CUVu4M5. ▪ :l A'FMTSL SPOSTPN01R OP DeALEM5 FFGN 1100E KAMS OP Eccc((llg(s MEAL' BE OMER 1{l6 CEPTEEKA1KN 51VL1 (R 011 1NC C0N1PAC1CryE IFnCPnfnG 0110 N5 500Alu0C Ale C)L,FCNI,. CWrrmccoN'S LICCIIS( IY.IAOE0. 11, OWNER'S CONSTRUCTION WORK RESPONSIDILITlES; A CONS1PlC1Kil FLA1'OlIS:StRICS, 110E C01,1FAC10F *IL DE LLFCPLY RLSLYMFJq,C (ON ALL ASPC(IS K COMIPLOlgM 15(010'410 ALL CCr1S1RUCi4V M5110(1 I5 u1 (NEED MCC11145 `FWD 05 MIMEO (401K CCIYIR410R 4110 EIMPLA49C ^ 1.tippKO THE CPI DEPFC 11 RA1I E 10 1 lE IMEIRCAPL FCHim- 1HE LlmsclK0 4110N0IC1 (041 0( O t SUFPoT CESCP+4104 FCIC 10 LIE C11Y FCP015001A1405 F01A1(IIC II+1LFFFCINE AVOCE OILY IN MCOPDN+CC w11H Ill{ 0041NA1IUl1 SCHLPMC AS // MLP 0. DCICPM,544 L(041 Y4G PM4CK FLO.CI:15: Cott (IILe1CCR111L S1gf $n4L A5551 0 OC'CFM114110 FPBIL 1Y 10005 0 [ TN4CI 13W0LWAC5. MOMS, [ SC CIRZ 000TH ECO i015 (1*0/L 400 MVP CF50C) Nry Crl0(P LEGAL OP PrNSfµ ELL 11(N15. E5 Md}PLD, 1CP 1I1. SUCCESSFUL COMPLETION 0E 11+C POMP, CO:RRA(0LA ROLL HOT GC F0FS/(ILD re innate W(N Arm TARPP. IYNI1034 attRra4L0r1 OF DM MOM ImOP0ATEME. 140 C0111RAC0DR Stull BE RCSPONSCLC FOR orpm Ci CC ROHE, EA - fi Ar0 DF+NIYt: Cr ALL CGI+SRV(1Cr1 ELLM(1115 nl 5P(Prn(D 0RAMM SIS PS000'14C+ES. ALL LIMPER/RIES rN SPE PLOPOKK1. (WREAKS OA SPECIONADOOS RPM EE SPOMP9 ▪ D ILE A7101,01 01 ME. (01 P10E5C1 TES AND µ1USC4PC 0RCH1(Cl' 1H(1A'[LY, R51K C!9r EFEIIIEIMS IRSKAr5P.0Rr 10 CONSki KEFFVI[ :llDSCAPC AP(1111C41 MAW ell MP Fr5MTHLH WERE (: TW.1 AMA . 01000(P1ED DISCR 044101 AND CUIFE U(D WCFP m1N0n 001n(H AU1NL*IZAI10 IKO4e 1HE (IT, RLf0C50NE1M AND n00a00 M Al0N:MM 110E (MUFFS -PPE M1x R4D ivov00. r REOUIP:ED FIELD OBSERVATION WORK: n. PCWIP(D 1:040 BOSCW4110N POPE: 1NESC FLANS wen ',MEWED Pr1N ENE 1p+DCP5141G11t 1NV 11C 0Y1:(8 Of SOD MOP mil. + ME MEEDEE 4 M 105O GIREAN 1O PPOPPE CGIOPAGI SCO+KESROAMS IX(MNG MARTS0CI1011 MIMES 10 US( CRUCt, CL51G11 CRotS 10 MORE' 4 fOoPESE11L MALT 0l1 -(R i '+ l..1LC5 SET room MM. FILL MGM RAPTLY orromou Tort PIMP Of 1055 FL5UL1E1L, APLI L 011.CP CAUSES, IFGM M PITEPPF1?AI,OI+ (A ▪ Cpurr OP 110E MRCP. ulw1MP 2(O MIX1(K DOi15 EPE ° Aral C mM 1 w401 EPFC 5 N D MESSIODS r1 I( PIAI15 AND SHC1 KATKAS 0C10FC 1 EY RCMP EMMLY IRFAc.ES 9_IRr ) foP 01ECt (NCFCCONCN ((. 0, 110E CS?I CC1M111'1000 104ML1DBS OCR.414011 5[FS.tE(155 L5CL�UF104060EIN. 110E CAMP. CF SL4SCCICMT OR11CP IIIG'110AM15 CF CCFPOP O0( 5 MID OAK MEMPA5CD NESE PIM51MH 110E PRNECI). AL8[rs To imS0 µNU55 LE. nErne V- Arm M (NC M.FOI'1' MALLET ormENN • C 0011-SUL141145 (MOM PM 4Ci<N51 goer A+10 ALL CAMS IV. LANDSCAPE ARCHITECT'S CONSTRUCTION FIELD OBSERVATION SCHEDULE: (C LOLL MOO/ LK0L1ilKIN THE FD P 1,1 A'. CD5CFVAl(15 MAT PE limo -DC or - NF C,f P :1011 A115 COMPACTOR 5104E NOWT INE «004 PC FCS(.041NC l0 1.410if1FL 41CNIFFil BPI 405; .1iFAI 1OFir-EGNI (RR WnPOOPS NEra(OM 25ERr4KLEM11G11 05' ION11044S(5 Of CWOW PAT150111NO COtf10C10F'S RS+0, POP µv M01aMM CNAt0C OP *011f KA.1D. 5 11 C. 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MEN SGLE 1 - 1 —[Y Ramona Expressway ueu among Expressway 1460 Ramona Expressway PalmlTree Locations 1460 Ramona Expressway AGENDA ITEM NO. y TO: The Redevelopment Agency Board of Directors FROM: Tim Hults, Planning Director4(• DATE: May 17, 2001 SUBJECT: First Amendment to the Disposition and Development Agreement (DDA) for Fun Properties, LLC RECOMMENDATION Staff recommends that the Agency Board approve the First Amendment to the Disposition and Development Agreement - Fun Properties LLC ("First Amendment') and authorize the Agency Executive Director (with the concurrence of Agency Counsel) to: (i) execute the First Amendment on behalf of the Agency, together with such non -substantive changes and amendments as may be necessary or convenient in its administration; and (ii) execute and deliver on behalf of the Agency such other documents and instruments as may be necessary or convenient in its administration. BACKGROUND On February 9, 1995, the Redevelopment Agency approved a Disposition and Development Agreement with Fun Properties, a California Limited Partnership for the purpose of developing a Skate and Family Fun Center. Pursuant to the terms of the agreement, the land was given to Fun Properties as well as a $300,000.00 secured construction loan and a $27,484.00 unsecured loan for fees. The $327,484.00 was established via a note calling for a two-year deferral with interest accruing, followed by 10 years of principal and interest payments. The interest rate was set at 6% and one payment in the amount of $37,988 has been made. In return, Fun Properties was to build a Skate Center and pay to the Agency an admission tax of 10¢ per admission for the first year, 15¢ admission fee for the second year and 25¢ admission fee in the subsequent years, for an indefinite period. In 1997, Fun Properties notified the City that the partners involved in the San Jacinto Center as well as several of the other centers they operated desired to leave the partnership and be paid off. On November 19, 1997, the Council approved the health club facility as an alternate use for the property and initiated negotiations to amend the terms of the DDA. The terms of the amended DDA memorialize the conversion of the skate center to the fitness center, provide for an increase in the interest rate of the Agency loan from 6% to 8% (as compensation due to the elimination of the admissions tax), and provides for the Agency to lease 42 parking stalls and their related drive aisles for 25 years also for $25.00. A subsequent action will follow providing for the City to lease the outdoor rink for 25 years at the total sum of $25.00. In addition, the amended DDA provides for a new amortization schedule based upon the new rate of interest and an increased loan amount of $342,742 (due to the unpaid principal and accrued interest). As a result of the agreed upon amortization schedule, Fun Properties will be making annual payments of $40,152.22 until June 3, 2013. At the time of this agenda report, the amended DDA had not been executed by the principals of Fun Properties. The counsel for Fun Properties has reviewed the amended DDA and has indicated that he will recommend that his client execute the amended DDA. It is hoped that the executed amended DDA will be in the Agency's possession by May 17, 2001. However, the recommendation is structured to allow for the Agency to authorize the Executive Director to execute the amended DDA provided there are no substantive modifications to the agreement. JUSTIFICATION Approval of the first amendment to the DDA will memorialize the terms already agreed upon and allow for annual payment to be recommenced. Additionally, approval of the first amendment to the DDA will also allow for the City to offer the outdoor skate rink as an additional recreational amenity for the community. BUDGETARY IMPACT None. The loan funds enumerated in the agreement have already been disbursed to Fun Properties, and Fun Properties made the first of the required installment payments in March 1999. Fun Properties has withheld payment of subsequent installments until such time as the first amendment to the DDA is approved and executed. However, as a result of the first amendment to the DDA, the Agency loan will be amortized at a higher interest rate resulting in a greater amount being repaid to the Agency than originally contemplated. ATTACHMENTS 1- Chronology 1- RDA Resolution 1- Agreement CHRONOLOGY To follow is a chronological summary of the major activities and history of the project: February 9, 1995, the Redevelopment Agency approved the DDA with Fun Properties for the development of a Skate and Family Fun Center. Terms (Agency Responsibilities): • Three acres deeded Fun Properties • Secured construction loan in the amount of $300,000 • Unsecured loan in the amount of $27,484.00 for payment of fees • Note in the amount of $327,484 deferred for 2 years with interest in the amount of 6% • 10-year amortization schedule established Terms (Developer Responsibilities): • Fun Properties to build a Skate Center • Pay the Agency an admission tax of 10¢ per admission for the first year, 15¢ for the second year and 25¢ in subsequent years, for an indefinite period November 19, 1997 - Redevelopment Agency authorizes the alternate use of Skate 'N Fun Properties to a health club facility, pursuant to the DDA, and subject to negotiation of modified terms of the DDA. February 5, 1998 — Redevelopment Agency, in closed session, discussed proposed alternatives submitted by Fun Properties DDA. The alternatives discussed, but rejected include: • Interest only payments for the first year • 26,000 sq. ft. of parking to be deeded back to the Agency and subtracted from the note • Agency to lease parking back to Fun Properties at a preferred rate • Admission tax to be eliminated • Add $225,000 to the Agency Note • Raise Interest Rate to 10% and add 7 years to amortization schedule February 23, 1998 - Redevelopment Agency, in closed session, responds with the following terms: • Agency to lease outdoor rink for $1.00/year • Agency to lease 26,000 square feet parking lot for $1.00/year, with option to purchase Original note to remain in place Interest rate increased to 8% to compensate for elimination of admissions tax Amortization schedule extended by five years March 11, 1998 - Fun Properties accepts modified terms indicated above, but asks that the Agency consider a six month deferral of the first payment to December 1998. March 19, 1998 - Agency agrees to defer the first payment an additional six months. April 8, 1998 - Agency Staff forwards modified terms to City Attorney David Aleshire in order for the development of an amended DDA. September 15, 1998 - City Attorney Aleshire submits a memorandum to City Manager Mike Hanavan updating him on the status of Family Fitness Center Amended DDA. Amended DDA still being drafted. Health Club completed and occupancy granted. January 7, 1999 - Amended DDA still not complete, first payment not made and City Attorney Aleshire conveys to Agency that Fun Properties requests that the first payment be deferred to March 3, 1999, or six -months after the opening of the Health Club. City Attorney indicates that amended DDA will be finalized pending the approval by the Agency of payment deferral. March 3, 1999 - Fun Properties makes first payment in the amount of $37,988.14. January 2000 - Best Best and Krieger retained as City Attorney. Previous City Attorney did not complete amended DDA. March 3, 2000 - Second payment not made by Fun Properties because amended DDA not complete. April 20, 2000 -Amended DDA developed by previous City Attorney forwarded to City Staff and subsequently forwarded to new City Attorney. June 23, 2000 - City Attorney completes review of amended DDA and recommends substantial modifications. July 25, 2000 - City Attorney forwards amended DDA to Fun Properties counsel. September 29, 2000 - Fun Properties Counsel provides comments on amended DDA to City Attorney. October 19, 2000 - City Attorney responds to Fun Properties counsel comments on amended DDA. November 28, 2000 - City Attorney completes amended DDA and forwards to City Staff and subsequently forwarded to Fun Properties for execution. January 8, 2001 - Fun Properties counsel provides additional comments on amended DDA. March 3, 2001 - Payment again skipped. April 27, 2001 - All hands meeting held at City Attorney's office to finalize amended DDA. In attendance were City Manager, Planning Director, Robert Osborne, Fun Properties Counsel William Hanley, City Attorney Dorine Hughes and City Attorney Paralegal Debbie Gilson. May 7, 2001 - Amended DDA with all comments incorporated therein and applicable attachments included forwarded to Fun Properties counsel for authorization to execute. RESOLUTION NO. A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO, CALIFORNIA, APPROVING THE FIRST AMENDMENT TO THE DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE AGENCY AND FUN PROPERTIES, LLC WHEREAS, the Redevelopment Agency of the City of San Jacinto ("Agency") is a public body, corporate and politic, organized and existing under the California Community Redevelopment Law (Heath & Safety Code d33000 et seq.) ('CRL"); and WHEREAS, by previous action of the Agency, and by the City Council of the City of San Jacinto (the "City Council" or "City", as appropriate), the Redevelopment Plan for the San Jacinto Project Area was established; and WHEREAS, the Agency entered into a Disposition and Development Agreement dated February 7, 1995, ("DDA") by and between the Agency and Fun Properties LLC., a California limited liability Company ("Developer") to provide for the development of a commercial, retail, and entertainment project on a site located within the San Jacinto Redevelopment Project Area ("Site"); and WHEREAS, the Site was conveyed to Redeveloper on December 29, 1995, pursuant to the DDA, and the Developer subsequently constructed an entertainment center, an indoor skating rink, an outdoor skating rink, and a parking lot on the Site; and WHEREAS, the DDA provided for a loan from the Agency to the Developer in the amount of $327,484.00 for construction and deferred mitigation fees ("Agency Loan"); and WHEREAS, on November 19, 1997, the Agency authorized the conversion of the entertainment center to a health club facility, pursuant to the negotiation of an amendment to the terms of the DDA; and WHEREAS, the Agency and the Developer have negotiated the First Amendment to the approved DDA to provide for the development of the fitness center, the lease of a portion of the parking lot, and a modification of the terms of the Agency loan to the Developer. NOW, THEREFORE, THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The Agreement is consistent with the Agency's adopted Implementation Plan for Project Area Section 2. The Agency Chairman and Executive Director are authorized and directed to take such actions and execute such documents as may be necessary to implement and effect this Resolution and the Agreement on behalf of the Agency. Section 3. The Executive Director shall certify to the passage and adoption hereof. PASSED, APPROVED, AND ADOPTED at a regular meeting of the Redevelopment Agency this day of , 2001. Executive Director ATTEST: Agency Secretary STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF SAN JACINTO ) I, Susan Matthew, Agency Secretary of the San Jacinto Redevelopment Agency of the City of San Jacinto, California, do hereby certify that Resolution No. was adopted by the Redevelopment Agency of the City of San Jacinto at a regular meeting held on the day of , 2001, and that the same was adopted by the following vote: AYES: NOES: ABSENT: ABSTAIN: Agency Secretary FIRST AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT Fun Properties, LLC THIS FIRST AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT ("First Amendment") is entered into by and between THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO, a public agency, corporate and politic ("Agency"), and FUN PROPERTIES, LLC, a California limited liability Company ("Redeveloper"). This First Amendment is dated May 17, 2001, for reference purposes only. RECITALS A. Agency and Redeveloper entered into that certain Disposition and Development Agreement dated February 7, 1995 ("DDA") to provide for conveyance by Agency to Redeveloper of certain real property more fully described in the DDA and Grant Deed described herein (the "Property") and for the development of a skating rink and entertainment center with outdoor skating area with required parking, landscaping and other improvements on the Property. Pursuant to the DDA, the Property was conveyed to Redeveloper on or about December 29,1995, by that certain Grant Deed recorded December 29, 1995, as Instrument No. 43426 in Official Records, County of Riverside, California, and Redeveloper constructed an entertainment center, an indoor skating rink, an outdoor skating rink, and a parking lot on the Property. B. The DDA provided for a loan from the Agency to the Redeveloper for construction and deferred mitigation fees ("Agency Loan"). Pursuant to the DDA and to evidence the Agency Loan, Redeveloper executed in favor of Agency that certain Straight Note dated December 27, 1995, in the principal amount of $327,484.00, which provided for, among other things, interest at the rate of six percent (6%) per annum from June 29, 1996, and repayment in ten (10) annual installments commencing June 29, 1998 ("Original Note"). As of June 3, 2001, the total unpaid principal and accrued interest due and owing by Redeveloper to Agency under the Original Note is $342,742.46. The Original Note is secured by that certain Deed of Trust with Assignment ofRents made December 27, 1995, and recorded December 29, 1995, as Instrument No. 434267 in Official Records, County of Riverside, California ("Original Deed of Trust"). C. Agency and Redeveloper now desire to amend the DDA to provide for the following: (i) the conversion by Redeveloper of the entertainment center and indoor skating rink on the Property to a fitness center ; (ii) modification of the principal amount, interest rate and repayment terms of the Original Note by an amended note secured by a new deed of trust and personal guaranties of the partners/principals of Redeveloper; and (iii) the lease by Redeveloper to Agency of a portion of a parking lot situated on the Property. RVPUB1DLFi\612)4d -1- D. Agency and Redeveloper understand and acknowledge that under a separate lease agreement, Redeveloper shall lease to the City of San Jacinto ("City") a portion of the existing outdoor skating rink situated on the Property for the purpose of facilitating City -run recreation activities. NOW THEREFORE, in consideration of the promises and covenants contained herein, the above recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: AGREEMENT 1. Survival of Provisions. Except as specifically modified or amended herein, each and every term and provision of the DDA shall remain in full force and effect. 2. Definitions. Except as otherwise expressly provided herein, the terms used in this First Amendment shall have the same meanings ascribed to such terms in the DDA. 3. Amendment to Section 8.lof the DDA - Notices, Demands and Communications Between the Parties. The parties' names and addresses listed in Section 8.1 of the DDA are hereby amended to the following: Agency: The Redevelopment Agency of the City of San Jacinto 201 E. Main Street San Jacinto, CA 92583 Copy to: Best Best & Krieger LLP 3750 University Avenue Suite 400 Riverside, CA 92502-1028 Redeveloper: Fun Properties, LLC c/o Osborne Development Corp 30001 Comercio Rancho Santa Margarita, CA 92688 Attn: Robert E. Osborne Copy to: R VPUB16LH1612344 William B. Hanley Attorney at Law 2030 Main Street, Suite 1630 Irvine, California 92614 -2- 4. First Amendment to DDA Exhibit C - Undertakings of Redeveloper. In addition to the undertakings to be performed by Redeveloper set forth in the Undertakings of Redeveloper attached as Exhibit C to the DDA, Redeveloper shall also perform the additional undertakings, without implied limitation, set forth in the First Amendment to Undertakings of Redeveloper attached hereto as Attachment No. 1 and incorporated herein by reference. In the event there is any conflict between the provisions of Exhibit C to the DDA and Attachment No. 1 to this First Amendment, the provisions of Attachment No. 1 shall control. 5. First Amendment to DDA Exhibit D - Undertakings of Agency. In addition to the undertakings to be performed by Agency listed in the Undertakings of Agency attached as Exhibit D to the DDA, Agency shall also perform the additional undertakings, without implied limitation, set forth in the First Amendment to Undertakings of Agency attached hereto as Attachment No. 2 and incorporated herein by reference. In the event there is any conflict between the provisions of Exhibit D to the DDA and Attachment No. 2 to this First Amendment, the provisions of Attachment No. 2 shall control. 6. Amended Promissory Note and Deed of Trust. Agency and Redeveloper hereby agree that the Original Note shall be cancelled, replaced and superseded with an Amended Promissory Note Secured by Deed of Trust ("Amended Note") in substantially the same form as attached hereto as Attachment No. 3 and incorporated herein by reference. The Amended Note shall be secured by a new Deed of Trust and Assignment of Rents ("Deed of Trust") upon the Property, in substantially the same form as attached hereto as Attachment No. 4 and incorporated herein by reference. Within fifteen (15) days after the Effective Date (defined below), Redeveloper shall execute and deliver to Agency the Amended Note and Deed of Trust, together with all subordination agreements required pursuant to Section 7 herein. The Deed of Trust and subordination agreements shall promptly thereafter be duly recorded in Official Records, County of Riverside, California; and concurrently therewith Agency shall cause to be recorded a full reconveyance of the Original Deed of Trust. 7. Subordination of and to the Deed of Trust. The Deed of Trust shall be subordinate only to other duly recorded deeds of trust upon the Property which secure Redeveloper's construction and permanent financing. Upon request, Agency will execute a subordination agreement in substantially the same form as Attachment 7 hereto, incorporated herein by reference, with respect to deeds of trust upon the Property which secure Redeveloper's construction and permanent financing. With respect to all existing deeds of trust upon the Property which secure obligations other than Redeveloper's construction and permanent financing, Redeveloper shall obtain and deliver to Agency with the executed Deed of Trust, fully -executed subordination agreements, as necessary and in a form reasonably acceptable to Agency, whereby each such deed of trust is made subordinate to the Deed of Trust. In particular, but without limitation, Redeveloper shall obtain and deliver to Agency with the Amended Note and Deed of Trust, a subordination agreement, in a form reasonably acceptable to Agency, whereby that certain deed of trust recorded November 18,1999, as Instrument No. 1999-502826, in Official Records, County of Riverside, California, wherein Herebert H. and Donna P. Boyton are beneficary ("Boynton Deed of Trust"), is made subordinate to the Deed of Trust. RVPUB\DLH'612344 8. Agency's Lease of Portion of Parking Lot and Option to Purchase. Within thirty (30) days after the Effective Date, Agency and Redeveloper shall execute a written lease in substantially the same form as the Parking Lot Lease and Option to Purchase attached hereto as Attachment No. 5 and incorporated herein by reference ("Parking Lot Lease"), whereby Redeveloper leases to Agency a portion of the existing parking lot located on the Property. The portion of the parking lot to be so leased is generally described as the easterly triangle thereof and is more fully described in Attachment No. 8 hereto incorporated herein by reference. 9. Guaranty. As and for additional security for the obligations of Redeveloper pursuant to the Amended Note and Deed of Trust, each partner/principal of Redeveloper shall execute a "Guaranty" in substantially the same form attached hereto as Attachment No. 6 and incorporated herein by reference, whereby that partner/principal personally guarantees repayment of any and all sums due and payable under the Amended Note and Deed of Trust. The partners/principal to execute a Guaranty include, without limitation, Robert Osborne and Jay McNabney, Richard Anthony and Marie Anthony. A Guaranty shall be duly executed by each such partner/principal within ten (10) days after the Effective Date. 10. Substantially in the Same Form. The term "substantially in the same form" as used in this First Amendment does not include changes and revisions that the parties mutually agree to in good faith. 11. Cross -Default. It is the intention ofthe parties hereto that any default by Redeveloper of the DDA, this First Amendment, the Amended Note, the Deed of Trust, or the Parking Lot Lease (collectively, "Applicable Agreements") shall constitute a default under each and all of the Applicable Agreements. 12. Entire Agreement. This First Amendment, together with the other Applicable Agreements, constitutes the entire understanding and agreement of the parties with respect to the subject matter set forth herein and therein, integrates all ofthe terms and conditions mentioned herein or therein, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof or thereof. 13. Severability. If any provisions of this First Amendment or the DDA as amended hereby shall be deemed to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 14. Interpretation. The Agency and Redeveloper acknowledge that this First Amendment is the product of mutual arms -length negotiation and drafting and that both the Agency and Redeveloper have been represented by legal counsel in the negotiation and drafting of this First Amendment. Accordingly, the rule of construction which provides the ambiguities in a document shall be construed against the drafter of that document shall have no application to the interpretation and enforcement of the DDA or this First Amendment. In any action or proceeding to interpret or enforce the DDA or this First Amendment, the finder of fact may refer to any extrinsic evidence not RVPUB\DLH1612344 -4- in direct conflict with any specific provision of the DDA or this First Amendment to determine and five effect to the intention of the Agency or the Redeveloper. IN WITNESS WHEREOF, this First Amendment has been executed by the parties and shall be effective as of the date it has been approved by the Agency's governing board/legislative body and executed by the appropriate authorities of the Agency and the Redeveloper (the "Effective Date"). "AGENCY" THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO, a public body, corporate and politic Date Chairperson ATTEST: Agency Secretary APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP John E. Brown Agency Counsel [ADDITIONAL SIGNATURES ON FOLLOWING PAGE] RVPUBIDLM612344 R VPUB\DLH\612344 SIGNATURE PAGE TO FIRST AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT "REDEVELOPER" FUN PROPERTIES, LLC, a California limited liability company Robert E. Osborne Jay McNabney [END OF SIGNATURES] -6- ATTACHMENT NO. 1 TO FIRST AMENDMENT FIRST AMENDMENT TO EXHIBIT C TO DDA - UNDERTAKINGS OF REDEVELOPER A. Pursuant to Article 5 of the DDA, Redeveloper shall convert the existing entertainment center and indoor skating rink situated on the Property to a fitness center in accordance with plans to be approved by the Agencyand City including without limitation all required parking and landscaping. B. Redeveloper shall enter into a Parking Lot Lease and Option to Purchase with Agency as required pursuant to this First Amendment. C. Redeveloper shall provide to Agency such subordination agreements as required pursuant to this First Amendment with respect to the Deed of Trust, including without limitation a subordination agreement for the Boynton Deed of Trust. D. Redeveloper shall execute and deliver to the Agency the Amended Note and the Deed of Trust required pursuant to this First Amendment and Redeveloper shall repay all sums due under the Amended Note pursuant to the terms thereof. E. Redeveloper's partners/principals shall each execute a Guaranty as required pursuant to this First Amendment. Redeveloper's partners/principals shall repay the all sums due under the Amended Note pursuant to the terms of each Guaranty. RVPUB\DLH\612344 ATTACHMENT NO. 1 ATTACHMENT NO. 2 TO FIRST AMENDMENT First Amendment to Exhibit D to DDA - Uundertakings of Agency A. Agency shall enter into a Parking Lot Lease and Option to Purchase with Redeveloper as required pursuant to this First Amendment. R VPUB\DLH\612344 ATTACHMENT NO. 2 ATTACHMENT NO. 3 TO FIRST AMENDMENT Amended Promissory Note Secured by Deed of Trust $342,742.46 June 3, 2001 San Jacinto, California FOR VALUE RECEIVED, the undersigned, FUN PROPERTIES, LLC, a California limited liability company ("Maker"), promises to pay to THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO ("Holder"), a California public agency, or order, at 201 East Main Street, San Jacinto, California 92583 (or at such other place as Holder may specify from time to time in writing), the principal sum of Three Hundred Forty -Two Thousand Seven Hundred Forty -Two Dollars and Forty -Six Cents ($342,742.46), together with interest as provided herein. This Amended Note is made with reference to the following: a. The Disposition and Development Agreement by and between Maker and Holder, dated February 7, 1995 ("DDA"). b. The First Amendment to the DDA by and between Maker and Holder, dated May 17, 2001 for reference purposes ("First Amendment"). c. That certain Straight Note dated December 27, 1995, in the principal amount of $327,484.00, more fully described as the "Original Note" in the First Amendment. This Amended Promissory Note Secured by a Deed of Trust ("Amended Note") supersedes and replaces the Original Note in its entirety. d. That certain Deed of Trust and Assignment of Rents of even date herewith ("Deed of Trust") in favor of the Holder which constitutes security for repayment under this Amended Note. e. Each Guaranty as described in the First Amendment, which also constitute security for repayment under the Amended Note. f. That certain Parking Lot Lease and Option to Purchase entered into between Maker and Holder pursuant to the First Amendment ("Parking Lot Lease"). RVPUBIDLH1612344 ATTACHMENT NO. 3 - 1 1. Maker shall pay to Holder the principal sum of this Amended Note, together with interest from June 3, 2001, on unpaid principal at the rate of eight percent (8%) per annum, as follows: Thirteen (13) equal installments of Forty Thousand One Hundred and Fifty -Two Dollars and Twenty -Two Cents ($40,152.22) on the third (3rd) day of each June, beginning June 3, 2001, and continuing each June thereafter through June 3, 2013, at which time the then -outstanding balance of all principal and interest shall be paid in full. 2. In the Event of Default (defined below), all principal and interest due and payable under this Amended Note shall become immediately due and payable. 3. All payments due under this Amended Note are payable in lawful money of the United States of America in same day funds. All payments shall be applied first to accrued interest and thereafter to reduction of principal. This Amended Note may be prepaid in full at any time without penalty. 4. Interest shall be computed on the basis of a year of 365 days and actual days elapsed and shall be payable on the unpaid principal balance hereof outstanding from time to time from the date hereof until payment in full. 5. In the event Maker fails to make any required payment of principal and/or interest under this Amended Note within ten (10) days after such payment becomes due and payable, a late charge of ten percent (10%) of the overdue payment of principal and/or interest (or of principal only if by the laws of the State of California a late charge may not be charged on overdue interest) may be charged by Holder, unless applicable law requires a lesser such charge, in which event the maximum rate permitted by such law may be charged by Holder. The parties agree that this late charge represents a reasonable sum considering all of the circumstances existing on the date of this Amended Note and represents a fair and reasonable estimate of the costs and damages that Holder will incur by reason of the late payment. The parties further agree that proof of actual damages would be costly or inconvenient. Acceptance of any late charge shall not constitute a waiver of the default with respect to the overdue amount, and shall not prevent Holder from exercising any of the other rights and remedies available to Holder. The foregoing shall not be construed as obligating the Holder to accept any payment after its due date. 6. Upon the occurrence of any of the following, an "Event of Default" shall be deemed to have occurred and the Holder may, at Holder's option, without prior notice, declare the unpaid balance ofthis Amended Note, including interest thereon, to be immediately due and payable, and the same shall immediately become due and payable: 6.1 Maker shall fail to make any payment under this Amended Note when due or within ten (10) days following written notice of such failure from Holder, or 6.2 Maker shall (i) become insolvent or unable to pay Maker's debts generally as they mature, (ii) make a general assignment for the benefit of creditors, (iii) admit in writing Maker's R VPUB\DLH\612344 ATTACHMENT NO. 3 - 2 inability to pay Maker's debts generally as they mature, (iv) file or have filed against it a petition in bankruptcy or a petition or answer seeking a reorganization, arrangement with creditors or other similar relief under the Federal bankruptcy laws or under any other applicable law of the United States of America or any state thereof, or (v) consent to the appointment of a trustee or receiver for it or for a substantial part of Maker's property; or 6.3 Any order, judgment or decree shall be entered appointing, without Maker's consent, a trustee or receiver for it or for a substantial part of Maker's property that is not removed within sixty (60) days from such entry; or 6.4 A judgment against Maker for the payment of money totaling in excess of Five Hundred Thousand Dollars ($500,000) shall be outstanding for a period of sixty (60) days without a stay of execution thereof. 6.5 Upon Maker's failure to obtain written approval of the Beneficiary prior to transferring, selling or alienating the Property or any portion thereof. 6.6 Maker shall be in material default of any of the terms of the following: a. the DDA; b. the First Amendment; c. this Amended Note; and d. the Parking Lot Lease. Notwithstanding the above, in the event of an actual or deemed entry of an order for relief with respect to Maker under the Federal Bankruptcy Code, this Amended Note and all interest and other amounts due hereon shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by Maker. The Holder may exercise Holder's option to accelerate after any Event of Default, regardless of any prior forbearance. 7. It is the intention of Maker and Holder to conform strictly to the usury laws now or hereafter enforced in the State of California, and any interest payable under this Amended Note or any of the other documents to be executed by Maker in connection with the loan made or to be made hereunder, shall be subject to reduction to the amount not in excess of the maximum nonusurious amount allowed under the usury laws of California as now or hereafter construed by the courts having jurisdiction over such matters. In the event the maturity of this Amended Note is accelerated by reason of any provision of this Amended Note or by reason of an election by holder resulting from any default (or an event permitting acceleration), under this Amended Note or any other instrument given to secure the payment hereof, or otherwise, then earned interest may never include more than RVPU61DLH1612344 ATTACHMENT NO. 3 - 3 the maximum amount permitted by law, computed from the date hereof until payment, and any interest in excess of the maximum amount permitted by law shall be canceled automatically and, if theretofore paid, shall at the option of the Holder either be rebated to Maker or be credited on the principal amount of this Amended Note or if all principal has been repaid then the excess shall be rebated to Maker. The aggregate of all interest (whether designated as interest, service charges, points, or otherwise) contracted for, chargeable, or receivable under this Amended Note or any other document executed in connection herewith shall under no circumstances exceed the maximum legal rate upon the unpaid principal balance of this Amended Note remaining unpaid from time to time. In the event such interest does exceed the maximum legal rate, such excess shall be canceled automatically and if theretofore paid, rebated to the undersigned or credited on the principal amount of this Amended Note, or if the Amended Note has been repaid, then such excess shall be rebated to Maker. 8. The unenforceability or invalidity of any provision or provisions of this Amended Note as to any persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other person or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable. 9. This Amended Note shall bind Maker and Maker's successors and assigns and the benefits hereof shall inure to Holder and Holder's successors and assigns. 10. The validity, interpretation and performance of this Amended Note shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of laws principles. 11. Time is of the essence of this Amended Note. 12. Maker and all other persons liable or to become liable for all or part of this indebtedness, jointly and severally waive demand, presentment for payment, notice of nonpayment, protest and notice of protest hereon, and agree to pay, in the Event of Default hereunder, all costs of collection, including attorneys fees, whether or not suit is commenced. 13. The Holder and the Maker acknowledge and stipulate that the obligation hereunder was entered into in the City of San Jacinto, Riverside County, California. Any legal action or proceeding to interpret, enforce, or which in any way arises out of this Amended Note shall be instituted and prosecuted in the appropriate court in Riverside County, California. Maker expressly waives, to the maximum legal extent, any legal right it may have to have such action or proceeding transferred to or prosecuted in any other court or jurisdiction. RVPUBIDLH\612344 [SIGNATURES ON FOLLOWING PAGE] ATTACHMENT NO. 3 - 4 SIGNATURE PAGE TO AMENDED PROMISSORY NOTE SECURED BY DEED OF TRUST R VPUB\DLH\612344 MAKER: FUN PROPERTIES, LLC a limited liability company Its: Robert E. Osborne Its: William Carlson [ 1 Its: ATTACHMENT NO. 3 - 5 ATTACHMENT NO. 4 TO FIRST AMENDMENT Deed of Trust and Assignment of Rents RECORDING REQUESTED BY: WHEN RECORDED MAIL TO: The Redevelopment Agency of the City of San Jacinto 201 East Main Street San Jacinto, CA 92583 Attn: Executive Director IFecEempt•Gov't Code p 273131 (Spa above for Naookr s Gse) DEED OF TRUST AND ASSIGNMENT OF RENTS THIS DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust" or "Trust Deed"), dated June 3, 2001, is made by the FUN PROPERTIES, LLC, a California limited liability company, whose address is 30001 Comerico, Rancho Santa Margarita, California 92688 ("Trustor"), in favor of First American Title Insurance Company ("Trustee"), and THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO, a California public agency, whose address is 201 East Main Street, San Jacinto, California 92583 ("Beneficiary"), and is executed to secure that certain Amended Promissory Note Secured by Deed of Trust of even date herewith ("Amended Note") executed by Trustor in favor of Beneficiary in the principal amount of $342,742.46, along with interest thereon according to the terms of the Amended Note. The Deed of Trust is made with respect to: (i) that certain Disposition and Development Agreement between Trustor and Beneficiary dated February 7, 1995 ("DDA"); (ii) that certain First Amendment to Disposition and Development Agreement dated May 17, 2001 for reference purposes ("First Amendment"); and (iii) that certain Amended Note as described above. All initially capitalized terms used herein and not otherwise defined in this Deed of Trust shall have the meanings given to them in the DDA. Section 1. Grant in Trust and Security Agreement. For valuable consideration, Trustor irrevocably grants, transfers and assigns to Trustee, in trust, with power of sale, for the benefit of Beneficiary, the following property (the "Trust Estate"): RVPUB\DLH\612344 ATTACHMENT NO.4 - 1 (a) the real property described in Exhibit A attached to this Trust Deed and incorporated in this Trust Deed by reference (the "Land"); and (b) all buildings, structures and other improvements now or in the future located or to be constructed on the Land (the "Improvements"); and (c) all tenements, hereditaments, appurtenances, privileges and other rights and interests now or in the future benefitting or otherwise relating to the Land or the Improve- ments, including easements, rights -of -way, development rights, mineral rights, water rights and water stock (the "Appurtenances," and together with the Land and the Improvements, the "Real Property"). Section 2. Obligations Secured. This Trust Deed is given for the purpose of securing payment and performance of the following (the "Secured Obligations"): (a) all present and future indebtedness evidenced by the Amended Note, including principal, interest and all other amounts payable under the terms of the Amended Note, DDA and the First Amendment; (b) all present and future obligations of Trustor to Beneficiary under this Trust Deed; and (c) all additional present and future obligations of Trustor to Beneficiary under any other agreement or instrument (whether existing now or in the future) which states that it is, or such obligations are, secured by this Trust Deed; in each case as such indebtedness and other obligations may from time to time be supplemented, modified, amended, renewed and extended, whether evidenced by new or additional documents or resulting in a change in the interest rate on any indebtedness or otherwise. Section 3. follows: Trustor's Covenants. To protect the security of this Trust Deed, Trustor agrees as 3.01 Payment and Performance of Secured Obligations; Purchase Agreement. Trustor shall pay and perform all Secured Obligations in accordance with the respective terms of such Secured Obligations, whether evidenced by or arising under this Trust Deed, the Amended Note, the DDA or the First Amendment. 3.02 Maintenance of Trust Estate. Unless Beneficiary otherwise consents in writing, Trustor shall (i) keep the Property in good condition and repair, and promptly and in a good and workmanlike manner (and with new materials of good quality) complete any Improvements to be constructed on the Land, repair or restore any part of the Real Property that may be injured, damaged or destroyed, and repair, restore or replace any goods that may be injured, damaged, destroyed or lost or that may be or become obsolete, defective or worn out (except that Trustor shall not be required to repair, restore or replace any such goods of insignificant value which are not reasonably necessary or appropriate to the efficient operation of the Property), and in each case pay when due all valid claims for labor, service, equipment and material and any other costs incurred in connection with any such action, (ii) not remove, demolish or materially alter any Improvements, (iii) not commit or permit any waste of any part of the Property, (iv) comply in all material respects with all laws and other requirements, and not commit or permit any material violation of any laws or other R VPUB\DLH\612344 ATTACHMENT NO. 4 - 2 requirements, which affect any part of the Trust Estate or require any alterations or improvements to be made to any part of the Property, (v) take such action from time to time as may be reasonably necessary or appropriate, or as Beneficiary may reasonably require, to protect the physical security of the Property, (vi) except as otherwise permitted by the Agreement, not part with possession of or abandon any part of the Trust Estate or cause or permit any interest in any part of the Trust Estate to be sold, transferred, leased, encumbered, released, relinquished, terminated or otherwise disposed of (whether voluntarily, by operation of law or otherwise), and (vii) take all other action which may be reasonably necessary or appropriate to preserve, maintain and protect the Trust Estate, including the enforcement or performance of any rights or obligations of Trustor or any conditions with respect to any rights of others in the Trust Estate. 3.03 Self -Insurance, Condemnation and Damage Claims. Trustor shall maintain "all risk" insurance covering the Improvements and Real Property in such forms and amounts and with such insurance companies as shall be approved by Beneficiary. All proceeds of any claim, demand, award, settlement or other payment arising or resulting from or otherwise relating to any loss or destruction of, injury or damage to, trespass on or taking, condemnation (or conveyance in lieu of condemnation) or public use of any of the Property ("Damage Claim") are assigned and shall be payable and delivered to Beneficiary (any such proceeds of any Damage Claim being referred to in this Deed of Trust as "Damage Proceeds"). Trustor shall take all action reasonably necessary or required by Beneficiary in order to protect Trustor's and Beneficiary's rights and interests with respect to any Damage Claim, including the commencement of, appearance in and prosecution of any appropriate action or other proceeding, and Beneficiary may in its discretion participate in any such action or proceeding at the expense of Trustor. So long as no Event of Default, as defined in Section 3.08 of this Deed of Trust, has occurred and is continuing, Trustor may settle, compromise or adjust any Damage Claim with the prior written consent of Beneficiary (which shall not be unreasonably withheld). Upon the occurrence and during the continuance of any Event of Default, Beneficiary shall have the sole right to settle, compromise or adjust any Damage Claim in such manner as Beneficiary may determine, and for this purpose Beneficiary may, in its own name or in the name of Trustor, take such action as Beneficiary deems appropriate to realize on any such Damage Claim. In either case, all Damage Proceeds payable in connection with any such Damage Claim shall be delivered directly to Beneficiary as provided in the preceding paragraph. Any Damage Proceeds received by Beneficiary may be applied by Beneficiary in payment of the Secured Obligations in such order and manner as Beneficiary may determine, provided that so long as no Event of Default has occurred and is continuing, Beneficiary shall release such Damage Proceeds to Trustor for the restoration of the Property in the Beneficiary's sole discretion, except that Beneficiary shall not be required to release such Damage Proceeds (and may apply such Damage Proceeds to the Secured Obligations as set forth above) to the extent that such Damage Proceeds relate to any condemnation, seizure or other appropriation by any governmental agency of all or any portion of the Property (including Damage Proceeds payable in lieu of any such action), or RVPUB\DLH1612344 ATTACHMENT NO. 4 - 3 if Beneficiary has reasonably determined that the security of this Deed of Trust has been impaired, or will be impaired upon the release of Damage Proceeds to Trustor. 3.04 Liens and Taxes. Subject to the right of Trustor to contest any such payments in accordance with the terms of the Agreement, (i) Trustor shall pay, prior to delinquency, all taxes, if any, which are or may become a lien affecting any part of the Trust Estate (including assessments on appurtenant water stock) and (ii) Trustor shall pay and perform when due all other obligations secured by or constituting a lien affecting any part of the Trust Estate. 3.05 Actions. Trustor shall appear in and defend any claim or any action or other proceeding purporting to affect title or other interests relating to any part of the Trust Estate, the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee, and give Beneficiary prompt written notice of any such claim, action or proceeding. Beneficiary and Trustee may, at the expense of Trustor, appear in and defend any such claim, action or proceeding and any claim, action or other proceeding asserted or brought against Beneficiary or Trustee in connection with or relating to any part of the Trust Estate or this Deed of Trust. 3.06 Action By Beneficiary or Trustee. If Trustor fails to perform any of its obligations under this Trust Deed, Beneficiary or Trustee may, but without any obligation to do so and without notice to or demand upon Trustor and without releasing Trustor from any obligations under this Trust Deed, and at the expense of Trustor: (a) perform such obligations in such manner and to such extent and make such payments and take such other action as either may deem necessary in order to protect the security of this Trust Deed, Beneficiary or Trustee being authorized to enter upon the Real Property for such purposes, (b) appear in and defend any claim or any action or other proceeding purporting to affect title or other interests relating to any part of the Trust Estate, the security of this Trust Deed or the rights or powers of Beneficiary of Trustee, and (c) pay, purchase, contest or compromise any lien or right of others which in the reasonable judgment of either is or appears to be or may for any reason become prior or superior to this Trust Deed. If Beneficiary or Trustee shall elect to pay any such lien or right of others or any taxes which are or may become a lien affecting any part of the Trust Estate or make any other payments to protect the security of this Trust Deed, Beneficiary or Trustee may do so without inquiring into the validity or enforceability of any apparent or threatened lien, right of others or taxes, and may pay any such taxes in reliance on information from the appropriate taxing authority or public office without further inquiry. 3.07 Obligations With Respect to Trust Estate. Neither Beneficiary nor Trustee shall be under any obligation to preserve, maintain or protect the Trust Estate or any of Trustor's rights or interests in the Trust Estate, or make or give any presentments, demands for performance, protests, notices of nonperformance, protest or dishonor or other notices of any kind in connection with any Rights, or take any other action with respect to any other matters relating to the Trust Estate. Beneficiary and Trustee do not assume and shall have no liability for, and shall not be obligated to perform, any of Trustor's obligations with respect to any Rights or any other matters relating to the Trust Estate, and nothing contained in this Trust Deed shall release Trustor from any such obligations. RVPUBIDLH1612344 ATTACHMENT NO. 4 - 4 3.08 Default. An "Event of Default" shall be deemed to occur if Trustor is in material breach of any of its obligations under any of the following: (i) the Amended Note; (ii) this Trust Deed; (iii) the DDA; or (iv) the First Amendment and such breach is not cured within ten (10) days after Trustor receives initial notice of such breach. Upon the occurrence of any Event of Default: (i) Trustor shall be in default under this Deed of Trust, and upon acceleration of the Maturity Date of any Secured Obligations in accordance with the terms of the Amended Note, all Secured Obligations shall immediately become due and payable without further notice to Trustor; (ii) upon demand by Beneficiary, Trustor shall pay to Beneficiary, in addition to all other payments specifically required under the Amended Note, at the times and in the amounts required by Beneficiary from time to time, sums which when cumulated will be sufficient to pay one month prior to the time the same become delinquent, all Taxes which are or may become a Lien affecting the Trust Estate and the premiums for any policies of insurance to be obtained hereunder (all such payments to be held in a cash collateral account as additional security for the Secured Obligations over which Beneficiary shall have sole and exclusive control and right of withdrawal); and (iii) Beneficiary may, without notice to or demand upon Trustor, which are expressly waived by Trustor (except for notices or demands otherwise required by applicable Laws to the extent not effectively waived by Trustor and any notices or demands specified below), and without releasing Trustor from any of its Obligations, exercise any one or more of the following Remedies as Beneficiary may determine: R VPUBIDLH1612344 (a) Beneficiary may, either directly or through an agent or court -appointed receiver, and without regard to the adequacy of any security for the Secured Obligations: (i) enter, take possession of, manage, operate, protect, preserve and maintain, and exercise any other rights of an owner of the Trust Estate, and use any other properties or facilities of Trustor relating to the Trust Estate, all without payment of rent or other compensation to Trustor; (ii) enter into such contracts and take such other action as Beneficiary deems appropriate to complete all or any part of any construction which may have commenced on the Land, subject to such modifications and other changes in the plan of development as Beneficiary may deem appropriate; (iii) make, cancel, enforce or modify leases, obtain and evict tenants, fix or modify rents and, in its own name or in the name of Trustor, otherwise conduct any business of Trustor in relation to the Trust Estate and deal with Trustor's creditors, debtors, tenants, agents and employees and any other persons having any relationship with Trustor in relation to the Trust Estate, and amend any contracts between them, in any manner Beneficiary may determine; ATTACHMENT NO. 4 - 5 (iv) endorse, in the name of Trustor, all checks, drafts and other evidences of payment relating to the Trust Estate, and receive, open and dispose of all mail addressed to Trustor and notify the postal authorities to change the address for delivery of such mail to such address as Beneficiary may designate; and (v) take such other action as Beneficiary deems appropriate to protect the security of this Deed of Trust. Beneficiary's agent or court -appointed receiver shall hold all monies and proceeds, including, without limitation, proceeds from the sale of the Property or any portion thereof, for the benefit of the Trustor and shall not disburse the monies or proceeds for the satisfaction of the Secured Obligations without the prior written consent of Beneficiary. The Beneficiary's agent or court - appointed receiver may, but without any obligation to do so and without notice to or demand upon Trustor and without releasing Trustor from any Obligations under this Deed of Trust, and at the expense of Trustor, follow the written instruction of Beneficiary under this Section 3.08. RVPUB\DLH1612344 (b) Beneficiary may execute and deliver to Trustee written declaration of default and demand for sale and written notice of default and of election to cause all or any part of the Trust Estate to be sold, which notice Trustee shall cause to be filed for record; and after the lapse of such time as may then be required by law following the recordation of such notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell such Property at the time and place fixed by it in such notice of sale, either as a whole or in separate parcels and in such order as Beneficiary may direct (Trustor waiving any right to direct the order of sale), at public auction to the highest bidder for cash in lawful money of the United States (or cash equivalents acceptable to Trustee to the extent permitted by applicable law), payable at the time of sale. Trustee may postpone the sale of all or any part of the Trust Estate by public announcement at such time and place of sale, and from time to time after any such postponement may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to the purchaser at such sale its deed conveying the Property so sold, but without any covenant or warranty, express or implied, and the recitals in such deed of any matters or facts shall be conclusive proof ofthe truthfulness thereof. Any person, including Trustee or Beneficiary, may purchase at such sale, and any bid by Beneficiary may be, in whole or in part, in the form of cancellation of all or any part of the Secured Obligations. Any such sale shall be free and clear of any interest of Trustor and any lease, encumbrance or other matter affecting the Property so sold which is subject or subordinate to this Deed of Trust, except that any such sale shall not result in the termination of any such lease (i) if and to the extent otherwise provided in any estoppel or other agreement executed by the tenant ATTACHMENT NO. 4 - 6 and Beneficiary (or executed by the tenant in favor of, and accepted by, Beneficiary), or (ii) if the purchaser at such sale gives written notice to the tenant, within 30 days after date of sale, that the lease will continue in effect. (c) Beneficiary may proceed to protect, exercise and enforce any and all other remedies provided under the Amended Note or Deed of Trust or by applicable laws. All proceeds of collection, sale or other liquidation of the Trust Estate shall be applied first to all costs, fees, expenses and other amounts (including interest) payable by Trustor under this Deed of Trust and to all other Secured Obligations not otherwise repaid in such order and manner as Beneficiary may determine, and the remainder, if any, to the person or persons legally entitled thereto. Each of the remedies provided in this Deed of Trust is cumulative and not exclusive of, and shall not prejudice, any other Remedy provided in this Deed of Trust or by applicable laws. Each remedy may be exercised from time to time as often as deemed necessary by Trustee and Beneficiary, and in such order and manner as Beneficiary may determine. This Deed of Trust is independent of any other security for the Secured Obligations, and upon the occurrence of an Event of Default, Trustee or Beneficiary may proceed in the enforcement of this Deed of Trust independently of any other remedy that Trustee or Beneficiary may at any time hold with respect to the Trust Estate or the Secured Obligations or any other security. Trustor, for itself and for any other person claiming by or through Trustor, waives, to the fullest extent permitted by applicable laws, all rights to require a marshaling of assets by Trustee or Beneficiary or to require Trustee or Beneficiary to first resort to any particular portion of the Trust Estate or any other security (whether such portion shall have been retained or conveyed by Trustor) before resorting to any other portion, and all rights of redemption, stay and appraisal. Upon the occurrence of a transfer of the Trust Estate or any part of it or interest in it is transferred, sold, or alienated without obtaining the prior written approval of the Beneficiary, except as may be provided in the Amended Note or Declaration, Trustor shall be in default under this Trust Deed and the Amended Note shall become due and payable without further notice to Trustor at the option of the Beneficiary. 3.09 Costs, Fees and Expenses. Trustor shall pay, on demand, all costs, fees, expenses, advances, charges, losses and liabilities of Trustee and Beneficiary under or in connection with this Trust Deed or the enforcement of, or the exercise of any remedy or any other action taken by Trustee or Beneficiary under, this Trust Deed or the collection of the Secured Obligations, in each case including (a) reconveyance and foreclosure fees of Trustee, (b) costs and expenses of Beneficiary or Trustee or any receiver appointed under this Trust Deed in connection with the operation, maintenance, management, protection, preservation, collection, sale or other liquidation of the Trust Estate or foreclosure of this Trust Deed, (c) advances made by Beneficiary to complete or partially construct all or any part of any construction which may have commenced on the Land or otherwise RVPUB\DLH\612344 ATTACHMENT NO. 4 - 7 to protect the security of this Trust Deed, (d) cost of evidence of title, and (e) the reasonable fees and disbursements of Trustee's and Beneficiary' s legal counsel and other out-of-pocket expenses, and the reasonable charges of Beneficiary's internal legal counsel. 3.10 Assignment of Rents and Profits. Trustor irrevocably grants, transfers and assigns to Beneficiary, during the continuance of this Trust Deed, all of Trustor's right, title and interest in and to the rents, issues, income, revenues, royalties and profits from any lease of the Real Property ("Rents"). Notwithstanding such assignment, so long as no Event of Default has occurred and is continuing, Trustor shall have the right to collect, receive, hold and dispose of the Rents as the same become due and payable, provided that unless Beneficiary otherwise consents in writing: (i) any such Rents paid more than 30 days in advance of the date when due except for usual security deposits and rent for the last month of the term, shall upon demand, be delivered to Beneficiary and held by Beneficiary in a cash collateral account (over which Beneficiary shall have sole and exclusive control and right of withdrawal), to be released and applied on the date when due (or, if an Event of Default has occurred and is continuing, at such other time or times and in such manner as Beneficiary may determine), and (ii) if an Event of Default has occurred and is continuing, Trustor's right to collect and receive the Rents shall cease and Beneficiary shall have the sole right, with or without taking possession ofthe Property, to collect all Rents, including those past due and unpaid. Any such collection of Rents by Beneficiary shall not cure or waive any Event of Default or notice of default or invalidate any act done pursuant to such notice. Failure or discontinuance of Beneficiary at any time, or from time to time, to collect the Rents shall not in any manner affect the subsequent enforcement by Beneficiary of the right to collect the same. Nothing contained in this Trust Deed, nor the exercise of the right by Beneficiary to collect the Rents, shall be deemed to make Beneficiary a "mortgagee in possession" or shall be, or be construed to be, an affirmation by Beneficiary of, or an assumption of liability by Beneficiary under, or a subordination of the lien of this Trust Deed to any tenancy, lease or option. 3.11 Late Payments. By accepting payment of any part of the Secured Obligations after its due date, Beneficiary does not waive its right either to require prompt payment when due of all other Secured Obligations or to declare a default for failure to so pay. 3.12 Action by Trustee. At any time and from time to time upon written request of Beneficiary and presentation of this Trust Deed for endorsement, and without affecting the personal liability of any person for payment of the Secured Obligations or the security of this Trust Deed for the full amount of the Secured Obligations on all property remaining subject to this Trust Deed, Trustee may, without notice and without liability for such action, and notwithstanding the absence of any payment on the Secured Obligations or any other consideration: (a) reconvey all or any part of the Trust Estate, (b) consent to the making and recording, or either, of any map or plat of the Land, (c) join in granting any easement affecting the Land, or (d) join in or consent to any extension agreement or any agreement subordinating the Lien of this Trust Deed. Trustee is not obligated to notify Trustor or Beneficiary of any pending sale under any other deed of trust or of any action or other proceeding in which Trustor, Beneficiary or Trustee is a party unless brought by Trustee. R VPUB\DLH1612344 ATTACHMENT NO. 4 - 8 3.13 Reconveyance. Upon written request of Beneficiary and surrender of this Trust Deed and the Amended Note to Trustee for cancellation or endorsement, and upon payment of its fees and charges, Trustee shall reconvey, without warranty, all or any part of the property then subject to this Trust Deed. Any reconveyance, whether full or partial, may be made in terms to "the person or persons legally entitled thereto," and the recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. Beneficiary shall not be required to cause any property to be released from this Trust Deed until final payment and performance in full of all Secured Obligations and termination of all obligations of Beneficiary under or in connection with the Amended Note or until the Secured Obligations are forgiven. 3.14 Substitution of Trustee. Beneficiary may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named in or acting under this Trust Deed, which instrument, when executed by Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where the Land is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees who shall, without conveyance from the predecessor Trustee, succeed to all of its title, estate, rights, powers and duties. Such instrument must contain the name of the original Trustor, Trustee and Beneficiary, the book and page where this Trust Deed is recorded (or the date of recording and instrument number) and the name and address of the new Trustee. 3.15 Attorney -in -Fact. Trustor appoints Beneficiary as Trustor's attorney -in -fact, with full authority in the place of Trustor and in the name of Trustor or Beneficiary, to take such action and execute such Documents as Beneficiary may reasonably deem necessary or advisable in connection with the exercise of any Remedies or any other action taken by Beneficiary or Trustee under this Trust Deed. 3.16 Successors and Assigns. This Trust Deed applies to and shall be binding on and inure to the benefit of all parties to this Trust Deed and their respective successors and assigns. 3.17 Acceptance. Notice of acceptance of this Trust Deed by Beneficiary or Trustee is waived by Trustor. Trustee accepts this Trust Deed when this Trust Deed, duly executed and acknowledged, is made a public record as provided by law. 3.18 Beneficiary's Statements. For any statement regarding the Secured Obligations, Beneficiary may charge the maximum amount permitted by law at the time of the request for such statement. 3.19 Governing Law. This Trust Deed shall be governed by, and construed and enforced in accordance with, the Laws of California. 3.20 Request for Notice. Trustor requests that a copy of any notice of default and a copy of any notice of sale be mailed to Trustor at Trustor's address set forth above. R V PUB\PLH'.612344 ATTACHMENT NO. 4 - 9 R VPUBIDLH1612344 SIGNATURE PAGE TO DEED OF TRUST AND ASSIGNMENT OF RENTS "TRUSTOR" FUN PROPERTIES, LLC a California limited liability company By: Its: By: Its: ATTACHMENT NO. 4 - 10 SIGNATURE PAGE TO DEED OF TRUST AND ASSIGNMENT OF RENTS ATTEST: Agency Secretary APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP Agency Counsel RVPUBIDLH1612344 "BENEFICIARY" THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO, a California public agency By: Executive Director ATTACHMENT NO. 4 - 11 STATE OF CALIFORNIA } } COUNTY OF } On , 2001, before me, the undersigned 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/she executed the same in his/her authorized capacity, and that by his/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 of Notary (SEAL) RVPUB`.DLH 612344 ATTACHMENT NO. 4 - 12 CAPACITY CLAIMED BY SIGNER: ❑ Indn,dual(s) Corporate Ofinr(s) ❑ PaHrfi(s) ❑.Atlmrcs*Fad ❑ Trusitls) Suluu6vgWitnss ❑ GuardianCor may r air ECECUIIVEDIRECTOR OF AGENCY SIGNER IS REPRESENTING NAME OF PERSON(S)OR ENTITY(IFS) THE REDEVELOPMENT AGENCY OF THE CDl' (CAN JAC I NTO STATE OF CALIFORNIA COUNTY OF } } } On , 2001, before me, the undersigned notary public, personally appeared , El 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/she executed the same in his/her authorized capacity, and that by his/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 of Notary SEAL) RVPUEi1DLM612344 ATTACHMENT NO. 4 - 13 CAPACITY CLAIMED BY SIGNER: Eurrorak Officer(s) ❑ Pillar(,) .Mar yi Fact ❑ Msai* Witness GuardianCasanla ❑ Odia SIGNER IS REPRESENTING NAME OFPERSON(S)ORENEMIES) NM STATE OF CALIFORNIA COUNTY OF } } } On , 2001, before me, the undersigned 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/she executed the same in his/her authorized capacity, and that by his/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 of Notary RVPUBIDLM61?344 ATTACHMENT NO. 4 - 14 CAPACITY CLAIMED BY SIGNER: Indalual(s) ❑ Capoau Officer(s) ❑ Paint) tarneiithc1 ❑Tr ssals) ❑ Sobsobul Wines ❑ Goardw'Caemuor ❑ ana SIGNER IS REPRESENTING NR.SIE OF PERSONS) OR ENTIi1'IIES) NIA EXHIBIT A TO DEED OF TRUST AND ASSIGNMENT OF RENTS PARCEL 1: THAT PORTION OF THE NORTHERLY RECTANGULAR ONE HALF OF FARM LOT 78 OF THE LANDS OF THE SAN JACINTO LAND ASSOCIATION, IN THE CITY OF SAN JACINTO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 8, PAGE 357 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF PARCEL 2 OF PARCEL MAP NO. 19362, RECORDED IN BOOK 122, PAGES 57 AND 58 OF THE COUNTY RECORDER, SAID POINT ALSO BEING NORTHEAST CORNER OF SAID FARM LOT 78; THENCE SOUTH 89° 59' 04" WEST 188.56 FEET ALONG THE SOUTH LINE OF PARCEL 2 OF SAID PARCEL MAP NO. 19362 TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 89° 59' 04" WEST 325.73 FEET TO THE INTERSECTION OF THE EASTERLY LINE OF PARCEL "B" PER DEED RECORDED JUNE 26, 1992, AS INSTRUMENT NO. 237111, OF OFFICIAL RECORDS, WITH THE SOUTH LINE OF SAID PARCEL 2 OF SAID PARCEL MAP; THENCE SOUTH 00° 01' 21" EAST; 29.00 FEET; THENCE SOUTH 88° 04' 31" WEST, 155.59 FEET; THENCE SOUTH 00° 00' 56" EAST, 116.98 FEET; THENCE NORTH 89° 59' 04" EAST, 270.00 FEET; THENCE SOUTH 00° 00' 56" EAST 178.73 FEET TO THE SOUTH LINE OF THE NORTHERLY RECTANGULAR ONE HALF OF SAID FARM LOT 78; THENCE NORTH 89° 59' 10" EAST, 400.00 FEET ALONG SAID SOUTH LINE TO THE EASTERLY LINE OF SAID FARM LOT 78; THENCE NORTH 00° 03' 08" WEST, 21.11 FEET ALONG SAID EASTERLY LINE; THENCE NORTH 31° 27' 08" WEST, 361.92 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION CONVEYED TO SAN JACINTO VALLEY WATER COMPANY, A CORPORATION, BY DEED RECORDED AUGUST 1, 1903 IN BOOK 170, PAGE 210, OF DEEDS, SAID WATER COMPANY BEING DEFUNCT AND FEE TITLE BELONGING TO THE EASTERN MUNICIPAL WATER DISTRICT. SAID EXCEPTION CONTAINING 3648.38 SQUARE FEET OR 0.0838 ACRES. PARCEL 2: THAT PORTION OF THE NORTHERLY RECTANGULAR ONE HALF OF FARM LOT 78 OF THE LANDS OF THE SAN JACINTO LAND ASSOCIATION, IN THE CITY OF SAN JACINTO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 8, PAGE 357 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: R VPUBIDLH1612344 ATTACHMENT NO. 4 - 15 BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 2 OF PARCEL MAP NO. 19362, RECORDED IN BOOK 122, PAGES 57 AND 58 OF THE COUNTY RECORDER, SAID POINT ALSO BEING NORTHEAST CORNER OF SAID FARM LOT 78; THENCE SOUTH 89° 59' 04" WEST 188.56 FEET ALONG THE SOUTH LINE OF PARCEL 2 OF SAID PARCEL MAP NO. 19362; THENCE SOUTH 31° 27' 08" EAST, 361.92 FEET TO THE EAST LINE OF THE NORTHERLY RECTANGULAR ONE HALF OF SAID FARM LOT 78, SAID POINT BEING DISTANT NORTH 00° 03' 08" WEST, 21.11 FEET FROM THE SOUTH LINE OF THE NORTHERLY RECTANGULAR ONE HALF OF SAID FARM LOT 78; THENCE NORTH 00° 03' 08" WEST, 308.80 FEET ALONG SAID EAST LINE TO THE POINT OF BEGINNING. PARCEL 3: THAT PORTION OF THE NORTHERLY RECTANGULAR ONE-HALF OF FARM LOT 78 OF THE LANDS OF THE SAN JACINTO LAND ASSOCIATION, IN THE CITY OF SAN JACINTO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 8, PAGE 357 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE WESTERLY 26.00 FEET OF SAID PORTION OF FARM LOT 78, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF SAN JACINTO STREET, 60 FEET WIDE, AS SHOWN ON SAID MAP OF THE LANDS OF THE SAN JACINTO LAND ASSOCIATION WITH THE NORTHERLY LINE OF SAID FARM LOT 78; THENCE NORTH 89° 59' 04" EAST, 26.00 FEET TO A POINT ON A LINE THAT IS 56.00 FEET EASTERLY OF AND PARALLEL WITH THE CENTERLINE OF SAID SAN JACINTO STREET; THENCE SOUTH 00° 01' 16" EAST, 329.87 FEET TO THE SOUTH LINE OF SAID NORTHERLY RECTANGULAR ONE HALF OF FARM LOT 78; THENCE NORTH 89° 59' 10" EAST, 26.00 FEET TO SAID PARALLEL LINE; THENCE NORTH 00° 01' 16" WEST, 329.87 FEET ALONG SAID PARALLEL LINE TO THE POINT OF BEGINNING. PARCEL 4: THAT PORTION OF THE NORTHERLY RECTANGULAR ONE-HALF OF FARM LOT 78 OF THE LANDS OF THE SAN JACINTO LAND ASSOCIATION, IN THE CITY OF SAN JACINTO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 8, PAGE 357 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF PARCEL 2 OF PARCEL MAP NO. 19362, RECORDED IN BOOK 122, PAGES 57 AND 58 OF THE COUNTY RECORDER, SAID POINT ALSO BEING THE NORTHEAST CORNER OF SAID FARM LOT 78; THENCE SOUTH 89° 59' 04" WEST, 514.29 FEET ALONG THE SOUTH LINE OF SAID PARCEL 2 TO THE TRUE RVPUB\DLH\612344 ATTACHMENT NO. 4 - 16 POINT OF BEGINNING; THENCE CONTINUING SOUTH 89° 59' 04" WEST, 752.00 FEET TO THE INTERSECTION OF A LINE THAT IS PARALLEL WITH AND 56.00 FEET EASTERLY OF THE CENTERLINE OF SAN JACINTO STREET AS SHOWN ON SAID MAP OF THE LANDS OF THE SAN JACINTO LAND ASSOCIATION AND THE NORTH LINE OF FARM LOT 78; THENCE SOUTH 00° 01' 16" EAST, 79.00 FEET ALONG SAID PARALLEL LINE; THENCE NORTH 89° 58' 44" EAST, 11.00 FEET; THENCE NORTH 40° 24' 29" EAST, 35.47 FEET; THENCE NORTH 00° 00' 56" WEST, 7.00 FEET; THENCE NORTH 89° 59' 04" EAST, 49.99 FEET TO THE BEGINNING OF 364.00 FOOT TANGENT CURVE, CONCAVE TO THE NORTH; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 07° 37' 41", AN ARC DISTANCE OF 48.46 FEET, TO THE BEGINNING OF A 314.00 FOOT REVERSE CURVE, CONCAVE TO THE SOUTH, A RADIAL TO SAID BEGINNING BEARS NORTH 07° 38' 37" WEST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 07° 37' 41", AN ARC DISTANCE OF 41.80 FEET; THENCE TANGENT TO SAID CURVE, NORTH 89° 59' 04" EAST, 278.01 FEET; THENCE NORTH 88° 04' 31" EAST, 300.16 FEET; THENCE NORTH 00° 01' 21 " WEST, 29.00 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 5: A STRIP OF LAND OF THE UNIFORM WIDTH OF 16-1/2 FEET, BEING 13 FEET ON THE NORTHWESTERLY SIDE AND 3-1/2 FEET ON THE SOUTHEASTERLY SIDE MEASURED AT RIGHT ANGLES TO THE FOLLOWING DESCRIBED LINE: BEGINNING AT A POINT ON THE SOUTH BOUNDARY LINES OF FARM LOT 78 OF THE LANDS OF THE SAN JACINTO LAND ASSOCIATION, AS SHOWN BY MAP ON FILE IN BOOK 8, PAGE 357 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA, 130.6 FEET EAST FROM THE SOUTHWEST CORNER OF SAID LOT 78; THENCE NORTH 57" 25' EAST, 462 FEET; THENCE NORTH 46" 52' EAST, 602.6 FEET, MORE OR LESS, TO THE NORTH LINE OF SAID LOT 78. THAT PARTICULAR PORTION OF THE 16.5 FOOT WIDE STRIP OF LAND WHICH WAS CONVEYED TO THE SAN JACINTO VALLEY WATER COMPANY BY THE INDENTURE WHICH WAS RECORDED AUGUST 1, 1903, IN BOOK 170, PAGE 210, OF DEEDS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, WHICH IS LOCATED WITHIN THE PORTION OF THE WESTERLY RECTANGULAR HALF OF THE SOUTHERLY RECTANGULAR HALF OF FARM LOT 78 OF THE SAN JACINTO LAND ASSOCIATION AS SHOWN ON THE MAP THEREOF WHICH IS ON FILE IN BOOK 8, PAGE 357, OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA, WHICH IS LOCATED WESTERLY OF THE WESTERLY BOUNDARY LINE OF THE EASTERLY 330 FEET OF SAID WESTERLY RECTANGULAR HALF OF THE SOUTHERLY RECTANGULAR HALF OF FARM LOT 78. R VPLBIDLH'.612344 ATTACHMENT NO. 4 - 17 RVPUB\DLH16I2344 ATTACHMENT NO. 5 [see attached] ATTACHMENT NO. 4 - 18 ATTACHMENT NO. 5 Recording Requested by and When Recorded Return to: The Redevelopment Agency of the City of San Jacinto 201 East Main Street San Jacinto, CA 92583 Attn: Executive Director PARKING LOT LEASE WITH OPTION TO PURCHASE I. Parties and Effective Date This Parking Lot Lease ("Lease") is entered into between (i) THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO, a public agency, corporate and politic ("Agency") and (ii) FUN PROPERTIES, LLC ("Redeveloper"), a California limited liability company. This Lease will become effective on the date ("Effective Date") on which (i) it has been approved by the Agency's governing board and (ii) it has been executed by the appropriate authorities of the Agency and the Redeveloper. II. Recitals 1. Agency and Redeveloper entered into that certain Disposition and Development Agreement dated February 7,1995, ("DDA") to provide for the development of a commercial, retail, and entertainment project (the "Project") on a site located within the Agency's Redevelopment Project Area (the "Site"). 2. Agency and Redeveloper entered into that certain First Amendment to the Disposition and Development Agreement, dated May 17, 2001 (the "First Amendment"), pursuant to which Redeveloper agreed to convert the building used for an indoor skating rink and entertainment center to a fitness center (the "Fitness Center Building"). The Fitness Center Building is not subject to this Lease. As used herein, the term DDA means the DDA as amended by the First Amendment. 3. Pursuant to the First Amendment, Redeveloper agrees to lease the easterly triangle of the existing parking lot adjacent to the Fitness Center Building (the "Premises") to Agency on the terms and conditions contained herein. 4. In addition to the lease of the Premises, Redeveloper also grants to Agency an option to acquire the Premises subject to all of the terms, conditions and provisions contained herein. R VPU 8`.DLIi1612344 ATTACHMENT NO. 5 - 1 ATTACHMENT NO. 5 Recording Requested by and When Recorded Return to: The Redevelopment Agency of the City of San Jacinto 201 East Main Street San Jacinto, CA 92583 Attn: Executive Director PARKING LOT LEASE WITH OPTION TO PURCHASE I. Parties and Effective Date This Parking Lot Lease ("Lease") is entered into between (i) THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO, a public agency, corporate and politic ("Agency") and (ii) FUN PROPERTIES, LLC ("Redeveloper"), a California limited liability company. This Lease will become effective on the date ("Effective Date") on which (i) it has been approved by the Agency's governing board and (ii) it has been executed by the appropriate authorities of the Agency and the Redeveloper. II. Recitals 1. Agency and Redeveloper entered into that certain Disposition and Development Agreement dated February 7, 1995, ("DDA") to provide for the development of a commercial, retail, and entertainment project (the "Project") on a site located within the Agency's Redevelopment Project Area (the "Site"). 2. Agency and Redeveloper entered into that certain First Amendment to the Disposition and Development Agreement, dated May 17, 2001 (the "First Amendment"), pursuant to which Redeveloper agreed to convert the building used for an indoor skating rink and entertainment center to a fitness center (the "Fitness Center Building"). The Fitness Center Building is not subject to this Lease. As used herein, the term DDA means the DDA as amended by the First Amendment. 3. Pursuant to the First Amendment, Redeveloper agrees to lease the easterly triangle of the existing parking lot adjacent to the Fitness Center Building (the "Premises") to Agency on the terms and conditions contained herein. 4. In addition to the lease of the Premises, Redeveloper also grants to Agency an option to acquire the Premises subject to all of the terms, conditions and provisions contained herein. R V PU B DLI-11612344 ATTACHMENT NO. 5 - 1 any other business which may be located upon the Site. The public shall be entitled to use the Premises without limitation as to time of day or day of the week; provided, however, that the foregoing provision shall not prevent or impair the City of San Jacinto from enforcing all applicable laws relative to the Premises, including, without limitation, those laws which may limit the right of the public to use the Premises at certain times or which prohibit loitering in the Premises. 5. Term of Lease. The term of this Lease shall commence on the Lease Commencement Date and shall expire twenty-five (25) years from the Lease Commencement Date unless terminated sooner pursuant to Section 7 of this Lease. 6. Rental Payments. The Agency agrees to pay to Redeveloper, as rental for the Premises, TWENTY -FIVE DOLLARS ($25.00), payable in advance of the Lease Commencement Date, or within thirty (30) days thereafter. Such rental payment shall constitute full and adequate consideration for this Lease. 7. Termination for Cause. 7.1 Without limiting its ability to seek other remedies which may be available to it pursuant to statute or judicial decision, the Agency may terminate this Lease and all of its obligations hereunder upon the occurrence of any of the following: (i) The Redeveloper's breach of any of its obligations under this Lease and failure to cure such breach within thirty (30) days after receipt of written notice from the Agency or, if such cure cannot be completed within thirty (30) days, the Redeveloper's failure to commence such cure within thirty (30) days after its receipt of written notice and thereafter diligently prosecute such cure to completion; or (ii) The Redeveloper's breach of any of its obligations under the DDA and failure to cure such breach as provided in the DDA. The Agency's election to terminate this Lease and its obligations hereunder shall not limit, modify, abridge or affect in any way whatsoever any rights or remedies which the Agency may otherwise have under the DDA with respect to the same or other breaches. 7.2 As its sole and exclusive remedy under this Lease, the Redeveloper may terminate this Lease upon any of the following: (i) The Agency's breach of any of its obligations under this Lease (excepting the obligation to pay rent) and the Agency's failure to cure such breach within thirty (30) days after receipt of written notice from the Redeveloper or, if such cure cannot be completed within thirty (30) days, the Agency's failure to commence such cure within thirty (30) days after its receipt of written notice and thereafter diligently prosecute such cure to completion; or RVPUB\DLH1612344 ATTACHMENT NO. 5 - 3 (ii) The Agency's breach of any of its obligations under the DDA and failure to cure such breach as provided in the DDA. The Redeveloper's election to terminate this Lease shall not limit, modify, abridge or affect in any way whatsoever any rights or remedies which the Redeveloper may have under the DDA with respect to the same or other breaches. Redeveloper hereby expressly waives any rights which it may have pursuant to statute or judicial decision to different remedies or measures of damages. 8. Quiet Enjoyment of Premises. Subject to all rights reserved to Redeveloper under this Lease, and upon Agency paying the rent and observing and performing all of the terms, covenants and conditions on Agency's part to be observed and performed, Redeveloper hereby warrants, represents and covenants that Agency may peaceably and quietly have, hold, occupy and enjoy the Premises and all of the appurtenances thereto without hindrance or molestation from Redeveloper or those lawfully claiming an interest in or to the Premises through or under Redeveloper. Redeveloper represents that this Lease, upon recordation, shall have record priority senior to any deed oftrust or mortgage encumbering the Premises. Upon request of Redeveloper, Agency may, in writing, subordinate its rights hereunder to the lien of any first mortgage or first deed of trust hereafter in force against the Premises, and to all advances made or hereafter to be made upon the security thereof so long as such security devices neither expand nor increase Agency's obligations nor restrict Agency's rights under this Lease (provided that requirements for giving notice to the beneficiary of such security devices shall not be construed as increasing Agency's obligations pursuant to the foregoing). In the event any proceedings are brought for foreclosure or in the event of any exercise of the power of sale under any mortgage or deed of trust covering the Premises, Agency shall attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as the Redeveloper under this Lease so long as Agency has been provided with an executed commercially reasonable nondisturbance agreement consistent with the provisions of this Section below. Notwithstanding anything to the contrary contained herein, Agency's obligation to subordinate its rights hereunder to the lien of any first mortgage or first deed of trust shall be conditioned upon Agency receiving from any party seeking such superior position a non -disturbance agreement to the effect that as long as Agency performs its obligation under this Lease, no foreclosure of, or deed given in lieu of foreclosure of, or sale under lien or encumbrance, and no steps or procedures taken under such lien or encumbrance shall affect Agency's rights under this Lease, or disturb or interfere with the quiet enjoyment and possession, on the part of Agency or persons holding under or by permitted assignment or sublease from Agency, of the Premises, and this Lease shall, under such circumstances, remain in full force and effect as a direct lease from the holder of such lien or encumbrance to Agency under the terms and conditions of this Lease for the full unexpired term hereof, as the same may be extended under the provisions of this Lease: provided that the holder of such lien or encumbrance shall not be (i) liable for any act or omission of a prior landlord (including Redeveloper), (ii) subject to any offsets or defenses which Agency might have against any prior landlord (including Redeveloper), (iii) bound by any rent or additional rent which Agency might have paid in advance to R V PUB DLH\612344 ATTACHMENT NO. 5 - 4 any prior landlord (including Redeveloper) in excess of one (1) month, or (iv) bound by any amendment or modification of this Lease made without the prior written consent ofthe holder of such mortgage or deed of trust. Agency, upon request, will join in executing any such non -disturbance agreement to confirm its agreement to attorn to any such holder or other party acquiring the Redeveloper's interests hereunder through judicial or trustee sale proceedings or by deed in lieu of foreclosure under any such mortgage or deed of trust. 9. Maintenance; Proration of Costs. Throughout the term of this Lease, Redeveloper shall, at its sole cost, expense and liability, maintain or cause to be maintained the Premises and shall promptly and diligently repair, restore and replace the improvements (other than the Agency's, if any) as required, on the Premises. The Redeveloper shall also take such measures as may be necessary to maintain the unimproved portion of the Premises by controlling and/or disposing of, among other things, weeds, blowing dirt and sand, and trash. Redeveloper agrees to notify the Agency promptly of any defects or damages on the Premises which could give rise to third -party injury or damage, even though the Agency retains the right to make periodic inspections of its own. Any landscaping, maintenance or repairs performed by Redeveloper shall be carried out in compliance with the laws, permits, licenses or other governmental authorizations, rules, ordinances, orders, decrees and regulations now or hereafter enacted, issued or promulgated by any federal, state, county, municipal or other governmental agency, bodies and courts having or claiming jurisdiction and all insurance companies ensuring all or any part of the Premises. Redeveloper shall indemnify and hold the Premises and Agency harmless against all actions, claims and damages by reason of: (i) Redeveloper's failure to perform the terms hereof; or (ii) Redeveloper's non -observance or non-performance of any statute, ordinance, order, law, rule, regulation and/or governmental requirement related to Redeveloper's use and occupancy of the Premises or the condition thereof. Redeveloper shall provide the Agency with written notice at least 48 hours prior to any repair or maintenance which would interfere with the use of the Premises, except in cases of emergency. The Agency shall reimburse the Redeveloper for the Agency's prorated share ("Prorated Share") of maintenance costs within thirty (30) days after the Agency's receipt from the Redeveloper of any bills, invoices, vouchers, statements, and any other documents requested by the Agency evidencing the Redeveloper's maintenance costs. The Agency's Prorated Share shall be equal to the total expenditure multiplied by a fraction, the numerator of which is 42 and the denominator of which is equal to the total number of spaces on the Premises. Redeveloper acknowledges and agrees that the requirements of California Labor Code Section 1770 et seq. ("Prevailing Wage Laws") which require the payment of prevailing wage rates and the performance of other requirements on "public works contracts" may apply to this Lease and any maintenance undertaken by Redeveloper pursuant to this Section 9. Redeveloper agrees to fully comply with Prevailing Wage Laws. 10. Alterations. In the event that either prior to or during the term hereof any alteration, addition, or change to the Premises, or any portion thereof, is required by law or regulation or rule, the same shall be made by Agency, at Agency's sole cost and expense. Any alterations, additions or improvements made by Agency shall be diligently constructed, at no cost or expense to Redeveloper, RVPUB\DLH1612344 ATTACHMENT NO. 5 - 5 in a good and workmanlike manner according to and in conformity with any laws, rules and regulations of all governmental bodies and agencies. Any alterations, additions, or improvements made by Agency shall be constructed so as not to adversely affect Redeveloper's access to the Fitness Center Building, property, or driveway. Any damage caused to the Fitness Center Building, property, driveway, or utility connections by Agency's construction shall be repaired by Agency at Agency's expense. Temporary repairs shall be made as necessary to allow the continued operation ofthe Fitness Center, provided that permanent repairs shall be made within a reasonable time thereafter. 11. Mechanics Liens. Agency agrees that it will pay or cause to be paid all costs for work done by it or caused to be done by it on the Premises of a character that may result in liens on Redeveloper's estate therein, and Agency will keep the Premises free and clear of all mechanic's liens or other liens on account of work done or alleged to have been done by or for Agency or persons claiming under it. All construction to be performed by Agency or performed by or under Agency shall be performed without cost or expense to Redeveloper. Notwithstanding the above, Agency may contest the validity of any such mechanic's lien claim filed against the Premises or Redeveloper's estate therein. 12. Restrictions on Use. The Agency and the Redeveloper agree, in using the Premises, not to use or permit or suffer the Premises to be used in any manner which would violate a license, permit or other governmental authorization which is required for the lawful use of all or any portion of the Premises. If any license, permit or other governmental authorizations are required for the lawful use of the Premises, Redeveloper shall procure and maintain the same throughout the term of this Lease. 13. Utilities. Agency shall, at Agency's own expense, pay as additional rent for all telephone, gas, power, electric current and all other utilities used by or supplied to Agency or the Premises during the term of this Lease. Redeveloper shall pay for all water supplied to the Premises during the term of this Lease [PLEASE CONFIRM], unless Agency constructs an alteration or improvement on the Premises that requires a modification to the water system. In that event, Agency shall construct such alteration or improvement at Agency's expense and shall thereafter pay for all water supplied to the Premises. Agency shall also be responsible for the payment of all applicable City, county, or district water connection charges required in connection with the connection of the Premises or any improvements thereon to the City's water system. The Premises and the Fitness Center Building property are currently served by a single electricity meter. The cost of electricity shall be apportioned between the Premises and the Fitness Center Building property according to electric current use, as estimated by the utility company. Alternatively, Agency may, at Agency's option and expense, have a separate electricity meter installed to service the Premises independently. 14. Casualty Damage. In the event the whole or part of the Premises or any improvements constructed thereon from time to time shall be damaged or destroyed by fire or other casualty, Agency shall not be obligated to restore any improvements constructed on the Premises before or after the Lease Commencement Date. R VPUBIDLH1612344 ATTACHMENT NO. 5 - 6 15. Right of Entry. Agency and the Redeveloper shall permit the other or its employees, agents or contractors to enter upon the Premises at any reasonable time to inspect the same and to carry on all maintenance as required under this Lease. 16. Taxes and Assessments. Redeveloper shall pay or cause to be paid all real or personal property taxes, general or special assessments, excises, impositions, levies and other charges of every description now or hereafter levied on, assessed against or otherwise imposed with respect to the Premises, this Lease, the Redeveloper's improvements located on the Premises, or the Redeveloper's personal property located on or in the Premises. The Agency shall pay all taxes (if any) associated with improvements placed upon the Premises by the Agency. 17. Assignments and Subletting. Subject to the Use Restrictions set forth in this Lease, in Sections III.3 and III.4, the Agency may transfer, assign or sublet voluntarily, involuntarily, directly or indirectly, Agency's interest under this Lease without the prior written consent of the Redeveloper. The foregoing notwithstanding, an assignment of the Agency's rights under this Lease shall be automatically permitted if the assignee is a governmental agency with general authority over public parking within the City of San Jacinto. Following any assignment, the Agency shall not be released from any of its obligations hereunder, except as expressly agreed to in writing by the Redeveloper, which shall not be unreasonably withheld. 18. Insurance. Agency will, at all times during the term of this Lease, take out and keep in force at its own expense: (i) Public liability insurance in the aggregate amount of not less than TWO MILLION DOLLARS ($2,000,000) to protect the Agency and the Redeveloper, their officers, agents and employees against any liability to the public incident to the use of, or resulting from the installation, maintenance or use of the Premises, except for liability attributable to the negligence or wilful misconduct of the Redeveloper or its officers, employees, invitees, tenants, agents and contractors. (ii) Property damage liability insurance in the amount of not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000) to protect the Agency and the Redeveloper and their officers, agents and employees against any liability for damage to property, including property of the Redeveloper, caused by or resulting from the installation, maintenance, or use of the Premises, except for liability attributable to the negligence or wilful misconduct of the Redeveloper, or its officers, employees, invitees, tenants, agents and contractors. In lieu of maintaining the insurances policies described above, the Agency may maintain self- insurance or a combination of self-insurance and insurance policies, provided that the amount of self- insurance, or combined self-insurance and policies, meet the requirements of (i) and (ii) of this Section 18. RVPUB'DLH\612344 ATTACHMENT NO. 5 - 7 19. Indemnity 19.1 Agency agrees to indemnify, defend and hold Redeveloper and its officers, employees, agents and contractors harmless from any claims, judgments, damages, penalties, fines, costs, liabilities (including sums paid in settlement of claims), or loss including attorney's fees, consultant's fees and expert's fees which arises or results from any negligent acts or omissions or wilful misconduct of the Agency in connection with the exercise of its rights under this Lease; provided, however, that such indemnification, defense and hold harmless obligations shall not apply to any of the foregoing which are the direct or indirect result of the negligence or wilful misconduct of the Redeveloper or its officers, employees, invitees, tenants agents, and contractors. 19.2 The Redeveloper agrees to indemnify, defend and hold the Agency and its elected officials, officers, employees, agents and contractors harmless from any claims, judgment, damages, penalties, fines, costs, liabilities (including sums paid in settlement of claims), or losses including attorney's fees, consultant's fees and expert's fees which arises as a result of the Redeveloper's breach of any of its obligations under this Lease; provided, however, that such defense, indemnification and hold harmless obligations shall not apply to any of the foregoing which are the direct or indirect result of the passive or active negligence or willful misconduct of the Agency or its officers, agents, employees or contractors. The Agency's and the Redeveloper's respective indemnification, defense and hold harmless obligations under this Section 19 shall survive the expiration or earlier termination of this Lease as to acts or omissions occurring prior to expiration or termination. IV. Option to Acquire Premises 1. General Terms of Option. 1.1 Definitions. For the purposes of this Section IV, the term "Optionor" shall mean the same as "Redeveloper" used elsewhere in this Lease. The term "Optionee" shall mean the same as "Agency" used elsewhere in this Lease. 1.2 Grant of Option. Optionor hereby grants Optionee an option to acquire the Premises ("Option") for the purchase price of ONE DOLLAR ($1.00) ("Purchase Price"), upon all of the terms, covenants, and conditions contained herein and pursuant to a commercially reasonable purchase and sale agreement and escrow instructions to be agreed upon by the parties in the event the Option is exercised. 1.3 Option Period. This Option shall commence upon payment in full (by maturity, refinancing or other) of the following: (1) obligation evidenced by certain promissory note dated on or about October 1, 1996, in the principal amount of $571,961.00, and secured by that certain Deed of Trust recorded October 28, 1996, as Instrument No. 412790, in Official Records, County of Riverside, California, wherein Valley Merchants Bank, N.A. is named Beneficiary, and a certain RVPUBIDLH16 12344 ATTACHMENT NO. 5 - 8 Assignment of Deed of Trust recorded April 18, 1997, as Instrument No. 132942, in Official Records, County of Riverside, California, wherein the rights, title, and interest of Valley Merchants Bank, N.A. in and to said Deed of Trust are assigned to Zions First National Bank ("Valley/Zion Loan"); and (2) obligation evidenced by certain promissory note dated on or about December 3, 1996, in the principal amount of $541,000.00, and secured by that Deed of Trust and Assignment of Rents recorded January 21, 1997, as Instrument No. 019153, in Official Records, County of Riverside, California, wherein CDC Small Business Finance Corp. is named Beneficiary ("CDC Loan"). The Valley/Zion Loan and the CDC Loan are referred to collectively herein as the SBA Loan. Redeveloper shall provide Agency with written notice within five days of the Redeveloper's payment in full (by maturity, refinancing or other) of the SBA Loan. The notice shall contain Redeveloper's acknowledgment that the Option Period has commenced in accordance with the provisions of this Lease. This Option shall continue until the expiration or termination of the Lease Term pursuant to Section 5 and Section 7 of this Lease. (the "Option Period"). 1.4 Consideration for Option. Concurrent with the execution of this Lease and the payment of the rent hereunder, Optionee shall pay to Optionor the amount of $1.00 for the first twelve (12) months of the Option Period, and Optionee shall pay Optionor, not later than each annual anniversary date of this Option, the amount of ONE DOLLAR ($1.00) for each succeeding twelve (12) month period during the Option Period. Any payments made to Optionor pursuant to this Section 1.4 shall be non-refundable and shall not be credited to the Purchase Price. 1.5 Expiration of Option Period. This Option shall automatically expire upon Optionee's failure to exercise the Option to acquire the Premises on or before 5:00 p.m. on the date the Option Period expires pursuant to Section III.1.3 above. Provided the DDA or Lease is terminated for any reason, the Option may also be terminated by Optionor by giving Optionee ten (10) days' advance notice. 2. Exercise of Option. In the event Optionee desires to exercise this Option and has performed all acts in the time and manner as required by the terms hereof, Optionee may exercise this Option by delivering written notice of election to Optionor on or before 5:00 p.m. on the day in which the Option Period would otherwise expire. 3. Termination of Option. This Option may be terminated by Optionor pursuant to Section IV.1.5 above. Notwithstanding the foregoing, at any time during the term of this Lease, Optionee may, at its sole discretion, elect to terminate this Option by delivering written notice of such election to Optionor, and upon Optionor's receipt of same, this Option shall terminate. Such termination shall not release Optionee from (i) Optionee's obligations to pay sums due and owing pursuant to the terms hereof up to and including the date of such termination, or (ii) Optionee's obligations under the DDA or the Lease. Provided the DDA or this Lease is terminated for any reason, the Option may also be terminated by Optionor by giving Optionee ten (10) days' advance written notice. 4. Document to Remove Cloud. Although the Option granted hereby and all extensions thereof shall automatically terminate with respect to the Premises unless exercised and/or extended RVPUB\DLIi\612344 ATTACHMENT NO. 5 - 9 within the times provided for herein, or shall otherwise terminate as provided in Section IV.1.5 above, Optionee nonetheless in all events agrees to execute, acknowledge and deliver to Optionor within ten (10) days after Optionor's written request therefor, any quitclaim deed or other documents required by a reputable title company of Optionor's choice, which said title company might require to remove any cloud from the title of Optionor to the Premises that might arise as a result of the Option herein granted if such Option is not exercised prior to expiration or termination, or if Optionee defaults hereunder. If Optionee fails to deliver such quitclaim deed or other documents as herein required, Optionor shall have all rights and remedies granted by law or equity, including without limitation, filing suit against Optionee seeking consequential and incidental damages arising from Optionee's breach of this covenant, which covenant shall survive termination of this Agreement for any reason. 5. Entry and Investigation of Premises. 5.1 License to Enter. Because Optionee is also the Agency under this Lease, Optionee shall have possession of the Premises in accordance with the terms of the Lease and therefore has the right to be on the Premises. Optionor also hereby grants Optionee a license and to perform such engineering surveys, investigations, soils tests and other studies (collectively, hereinafter, "tests') as deemed necessary by Optionee. 5.2 Indemnity. Optionee hereby agrees to indemnify, and hold Optionor free and harmless from and against any and all losses, damages, liabilities, claims, causes of action, judgments, court costs and legal or other expenses (including attorneys' fees) which Optionor may suffer or incur as a direct or indirect consequence of Optionee's exercise of the license granted pursuant to this Section 15.5. Optionee's duty to indemnify Optionor shall survive the exercise of the Option or the termination or lapse thereof. 6. Condition of Property. 6.1. Disclaimer of Representations or Warranties. Should Optionee elect to exercise the Option to acquire the Premises, Optionee shall, upon the close of escrow, be deemed to have waived any and all objections to the physical characteristics and conditions of the Premises which would have been disclosed by reasonable inspection and inquiry. Optionee acknowledges that neither Optionor nor any of its of officers, officials, employees, agents, or representatives has made any representations, warranties, or agreements to or with Optionee on behalf of Optionor as to any matters concerning the Premises, the present use thereof, or the suitability of Optionee's intended or contemplated use of the Premises, except as expressly set forth in this Lease. The foregoing disclaimer includes, without limitation, topography, climate, air, water rights, utilities, present and future zoning, soil, subsoil, the purpose to which the Premises is suited, drainage, access to public roads, proposed routes of roads or extensions thereof or the availability of governmental permits or approvals of any kind. Optionee represents and warrants to Optionor that it and its representatives and employees have made or shall make their own independent inspection and investigation of the Premises. Optionee further acknowledges and agrees that except for any representations and/or warranties made in this Option, the Premises is to be purchased, conveyed, and accepted by Optionee RVPUB\DLH\612344 ATTACHMENT NO. 5 - 10 in its present condition, "AS -IS", "WHERE -IS," and that no patent or latent physical condition of the Premises, whether or not known or discovered, shall affect the rights of either party hereto. Optionee has investigated and has knowledge of operative or imposed governmental laws and regulations (including, but not limited to, zoning, environmental, hazardous waste, and land use laws and regulations) to which the Premises may be subject, and is acquiring the Premises on the basis of its review and determination of the application and effect of such laws and regulations. Optionee has neither received nor relied upon any representations concerning such laws and regulations made by Optionor, Optionor's officers, officials, employees, agents, or any other person acting on the behalf of Optionor except as set forth in this Option. Any agreements, warranties or representations not expressly contained in this Option shall in no way bind Optionor. 6.2 Cooperation by Optionor. Optionee understands that at the time this Option may be exercised, the Premises shall have been in the possession of Optionee pursuant to the Lease. However, Optionor agrees to cooperate with Optionee during the term of this Option by providing Optionee, at Optionee's request, with copies of all public records known by Optionee to be in the possession of Optionee relating to the Premises. 6.3 Condition of Title. Notwithstanding any other provision in this Lease to the contrary, it shall be a condition to the close of escrow for the Premises that title to the Premises be conveyed to Optionee for Optionor subject only to those exceptions to title approved by the Agency in writing pursuant to the applicable purchase and sale agreement and escrow instructions. The Optionor shall convey the Premises to Optionee free and clear of all monetary liens or encumbrances. 7. Broker's Fee. Each party represents and warrants to the other that it has not employed any broker or finder with respect to this Option. Each party agrees to indemnify, defend, and hold the other harmless from and against all liabilities, costs, damages and expenses, including, without limitation, attorneys' fees and expert witness fees and court costs, resulting from any claims or fees or commissions resulting from any acts or omissions of the indemnifying party. 8. Assignment. Optionee shall have no right to assign the Option herein granted or any right or privilege Optionee might have in the Option or extension thereof, if any, by operation of law or otherwise, without the prior written consent of Optionor, which consent shall not be unreasonably withheld. Any attempt by Optionee to make an assignment other than with the prior written consent of Optionor shall be null and void and shall automatically terminate the Option. Optionor's consent to an assignment by Optionee shall not relieve Optionee from its obligations under this Lease. 9. No Withholding Because Non -Foreign Seller. Optionor represents and warrants to Optionee that it is not, and as of the close of escrow will not be, a foreign person within the meaning of Internal Revenue Code Section 1445 and that it will deliver to Optionee on or before the close of escrow a non -foreign affidavit on escrow holder's standard form pursuant to Internal Revenue Code Section 1445(b)(2) and the Regulations promulgated thereunder. RVPUB\DLH16 12344 ATTACHMENT NO. 5 - 11 10. Covenant Against Discrimination. Optionee covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Option. 11. No Partnership Created. The relationship of Optionor and Optionee hereunder is that of Optionor and Optionee only, and none of the provisions of this Option are intended to or do create a partnership or joint venture or relationship other than as Optionor and Optionee. V. Miscellaneous Provisions 1. Surrender of Premises Lot. At the expiration of the term of this Lease or any sooner termination of this Lease, the Agency shall quit and surrender possession of the Premises and its appurtenances in as good an order and condition as the Premises was delivered to the Agency, reasonable wear and tear by use and damage by the elements excepted. 2. [Reserved]. 3. Waiver. No waiver of any default on any one or more occasions shall constitute a waiver of any other breach or default, whether of the same or of any other covenant or condition. No waiver, benefit, privilege or service voluntarily given or performed by any party shall give any other party any contractual right by custom, estoppel or otherwise. 4. Notices. All notices required or allowed under this Lease shall be given in writing to the following addresses or such other addresses as the parties may designate by written notice: To Agency: Copy To: To Redeveloper: R VPUB\DLH\612344 The Redevelopment Agency of the City of San Jacinto Attn: Development Director 201 East Main Street San Jacinto, CA 92583 Best Best & Krieger LLP Attn: Kevin K. Randolph 3750 University Avenue, Suite 400 Riverside, CA 92501 Fun Properties, LLC c/o Osborne Development Corp. 30001 Comerico Rancho Santa Margarita, CA 92688 Attn: Robert E. Osborne ATTACHMENT NO. 5 - 12 Copy To: William B. Hanley 2030 Main Street, Suite 1630 Irvine, California 92614 Notice shall be deemed received as follows, depending upon the method of transmittal: by facsimile, as of the date and time sent; by messenger, as of the date delivered; and by United States mail, certified return receipt requested, as of seventy-two (72) hours after deposit in United States mail. 5. Severability. If any portion of this Lease is declared by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Lease shall continue in full force and effect. 6. Time is of the Essence. Time is of the essence in this Lease and both parties agree to execute all documents and to proceed with due diligence to complete all covenants and conditions set forth herein. 7. Attorney's Fees and Costs. If any legal action or other proceeding is brought for the enforcement or defense of this Lease, or because of any alleged dispute, breach, default or misrepresentation in connection with any provision ofthis Lease, the prevailing party shall be entitled to recover its reasonable attorney's fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled. Fees and costs recoverable pursuant to this Section include reasonable attorney's fees, fees of consultants, experts, para-professionals and others reasonably necessary to the prosecution or defense of such action, including costs and fees incurred during the enforcement of any judgment or on appeal. Fees and costs recoverable pursuant to this section shall survive entry of judgment in the action and may be recovered as an element of costs in the action or in a separate recovery action. 8. Governing Law and Venue. This Lease shall be construed in accordance with and governed by the laws of the State of California. Any action or proceeding brought to interpret or enforce this Lease shall be brought in the appropriate court in Riverside County, State of California. Each party to this Lease hereby waives the benefit of any provision of law providing for a change of venue to any other court due to the fact that the Agency or City is or may be a party to such action or proceeding. Without limiting the generality of the foregoing, the Redeveloper expressly waives the provisions of California Code of Civil Procedure section 394 and all other similar statutes or judicial decisions. 9. Entire Agreement; Product of Arms Length Negotiations. This written document contains the entire agreement of the Redeveloper and the Agency and supersedes any prior oral or written statements or agreements between the parties. No supplement, modification or amendment of this Lease shall be binding unless approved by the Agency's governing board and executed by the appropriate authorities of the Agency and the Redeveloper. The foregoing notwithstanding, the RVPUBIDLH1612344 ATTACHMENT NO. 5 - 13 Agency's Executive Director is hereby authorized on behalf of the Agency to make minor, non - substantive amendments to this Lease with the concurrence of the Agency's legal counsel. 10. Binding on Assigns. Subject to the provisions of this Lease with regard to assignment, each and all of the covenants and conditions of this Lease shall be binding upon and shall inure to the benefit of the heirs, successors, executives, administrators, assigns and personal representatives of the respective parties. 11. Counterparts. This Lease may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument. 12. Product of Arms Length Negotiations. This Lease is the product of mutual arms length negotiations in which both the Agency and the Redeveloper have been represented by legal counsel. Accordingly, the rule of judicial construction which provides that ambiguities in a document are to be construed against the drafter of that document shall have no application to the interpretation or enforcement of this Lease. In any action to interpret or enforce this Lease, the finder of fact that may entertain such extrinsic evidence not in direct conflict with any provision of this Lease as necessary to ascertain and give effect to the intent of the parties hereto. 13. Eminent Domain. If any portion of the Premises is taken by eminent domain and a portion remains which is usable by the Agency for the purposes set forth in Section I1I.4, this Lease shall, as to the part taken, terminate without further liability or obligation on the part of the Redeveloper or the Agency as of the date title shall vest in the condemnor, or the date pre judgment possession is obtained through a court of competent jurisdiction, whichever is earlier. However, in such event, the Redeveloper reserves the right to terminate this Lease without further liability or obligation on the part of the Redeveloper or the Agency as of the date when title to the part taken vests in the condemnor or of such date of pre judgment possession, whichever is earlier. If the entire Premises is taken by eminent domain, or such portion is taken so that the Premises is rendered unusable for the purposes set forth in Section 1II.4, this Lease shall automatically terminate without further liability or obligation on the part of either the Agency or the Redeveloper. 14. Force Majeure. If either party is delayed, prevented or hindered from the performance of any covenant or condition of this Lease because of acts of the other party, Acts of God, adverse weather conditions not reasonably anticipated, war, invasion, insurrection, acts of a public enemy, riot, mob violence, civil commotion, sabotage, labor disputes, inability to procure or general shortage of labor, materials, facilities, equipment or supplies on the open market, unusual delay in transportation, laws, rules, regulations or orders of governmental or military authorities, or any other cause beyond the reasonable control of the parties so obligated, whether similar or dissimilar to the foregoing, financial inability excepted, such performance shall be excused for the period of the delay, and the period for such performance shall be extended for a period equivalent to the period of such delay. RVPUB\DLH1612344 ATTACHMENT NO. 5 - 14 15. Cooperation. Redeveloper agrees to join in any application for governmental permits and authorizations required in connection with Agency's construction of improvements including, but not limited to, building permits and certificates of occupancy. Agency agrees that any and all costs incurred in connection therewith shall be paid by Agency. Except when the words "sole" and/or "absolute" are used herein, at any time the consent of Redeveloper or Agency is required, such consent shall not be unreasonably withheld, delayed or conditioned. Wherever the Lease grants to Redeveloper or Agency the right to take action, exercise discretion, establish rules and regulations or make allocations or other determinations, except as otherwise provided herein, Redeveloper and Agency shall act reasonably and in good faith and not take action which might result in the frustration of the other party's reasonable expectations concerning the benefits to be enjoyed under this Lease. 16. Recordation. No later than ten (10) days following the Lease Commencement Date, the Agency shall cause a copy of this Lease, including all attachments hereto, to be recorded with the County Recorder of the County of Riverside. From and after the date of such recordation, the Lease shall impart such notice thereof to all persons as is afforded by the recording laws of California. 17. Authority of Redeveloper. In the event that Agency is a corporation or a partnership, each individual executing this Lease on behalf of said corporation or partnership represents and warrants that he is duly authorized to execute and deliver this Lease on behalf of said corporation, in accordance with the bylaws of said corporation, or said partnership, and that this Lease is binding upon said corporation or partnership. Each individual executing this Lease on behalf of Redeveloper represents and warrants that he is duly authorized to execute and deliver this Lease on behalf of Redeveloper in accordance with the Partnership Agreement of Redeveloper and that this Lease is binding upon Redeveloper. 18. Officers and Employees. 18.1. Non -liability of Officers and Employees. No officer, official, agent, contractor, or employee of Agency shall be personally liable to Redeveloper, or any successor in interest, in the event of any default or breach by Agency or for any amount which may become due to Redeveloper or to its successor, or for breach of any obligation of the terms of this Lease. If the Redeveloper is a corporation or limited liability company, no official, agent, contractor, or employee of Redeveloper shall be personally liable to Agency, or any successor in interest, in the event of any default or breach by Redeveloper or for any amount which may become due to Agency or to its successor, or for breach of any obligation of the terms of this Lease. 18.2 Conflict of Interest. No officer or employee of Agency shall have any financial interest, direct or indirect, in this Lease nor shall any such officer or employee participate in any decision relating to this Lease which affects the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any state statute or regulation. RVPUBIDLH1612344 ATTACHMENT NO. 5 - 15 19. Non -Discrimination. There shall be no discrimination against or segregation of any person or group of persons on account of race, color creed, religion, sex, marital status, handicap, age, ancestry or national original in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the Premises herein leased nor shall the Agency, or any person claiming under or through Agency, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of Agency's, lessees, sublessees, subtenants or vendees of the Premises herein leased. 20. Estoppel Certificate. Lessee shall, at any time upon not less than ten (10) days' prior written notice from Redeveloper, execute, acknowledge and deliver to Redeveloper, or as Redeveloper may direct, a statement in writing in a form reasonably acceptable to Redeveloper and Agency. Any such statement may be conclusively relied upon by any prospective purchaser, assignee or encumbrancer of the interest of Redeveloper in and to the Premises, this Lease and/or the rentals accruing hereunder. 21. No Third Party Beneficiaries. The performance of the Agency's and the Redeveloper's respective obligations under this Lease is not intended to benefit any party other than the Redeveloper and/or the Redeveloper, except as expressly provided otherwise herein. No person or entity not a signatory to this Lease shall have any rights or causes of action against any party to this Lease as a result of that party's performance or non-performance under this Lease except as expressly provided otherwise herein. 22. Interpretation. The Agency and Redeveloper acknowledge that this Lease is the product of mutual arms -length negotiation and drafting and that each party has been represented by legal counsel in the negotiation and drafting of this Lease. Accordingly, the rule, the rule of construction which provides that the ambiguities in a document shall be construed against the drafter of that document shall have no application to the interpretation and enforcement of this Lease. In any action or proceeding to interpret or enforce this Lease, the finder of fact may refer to any extrinsic evidence not in direct conflict with any specific provision of this Lease to determine and give effect to the intention of the Lease and the Redeveloper. 23. Jurisdiction and Venue. Any legal action or proceeding concerning this Lease shall be filed and prosecuted in the appropriate California state court in the County of Riverside, California. Each party irrevocably consents to the personal jurisdiction of that court. R VPLBIDLH1612344 [SIGNATURES ON FOLLOWING PAGES] ATTACHMENT NO. 5 - 16 Date ATTEST: Agency Secretary APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP John E. Brown Agency Counsel R VPUBIDLH1612344 THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO, a public body, corporate and politic Chairperson ATTACHMENT NO. 5 - 17 RVPUB\DLH1612344 FUN PROPERTIES, LLC, a California Limited Liability Company Robert E. Osborne Title: William Carlson Title: [END OF SIGNATURES] ATTACHMENT NO. 5 - 18 EXHIBIT A TO PARKING LOT LEASE LEGAL DESCRIPTION OF PROPERTY Legal Description of Premises [Portion of APN 439-110-092] PARCEL 1: THAT PORTION OF THE NORTHERLY RECTANGULAR 4 OF FARM LOT 78 OF THE LANDS OF SAN JACINTO LAND ASSOCIATION IN THE CITY OF SAN JACINTO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA AS RECORDED IN BOOK 8 OF MAPS AT PAGE 357 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ALSO BEING A PORTION OF THAT CERTAIN PARCEL 1 AS DESCRIBED BY GRANT DEED RECORDED AS INSTRUMENT NUMBER 434266 ON DECEMBER 29, 1995, BOTH ON FILE IN THE RECORDS OF RIVERSIDE COUNTY, CALIFORNIA BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF PARCEL 2 OF PARCEL MAP 19362, AS SHOWN BY MAP ON FILE IN BOOK 122 OF PARCEL MAPS AT PAGES 57 AND 58 IN SAID RIVERSIDE COUNTY RECORDS, SAID POINT ALSO BEING THE NORTHEAST CORNER OF SAID FARM LOT 78; THENCE SOUTH 00°03'08" EAST ALONG THE EAST LINE OF THE NORTHERLY RECTANGULAR 'A OF SAID FARM LOT 78 A DISTANCE OF 329.91 FEET TO THE SOUTHEAST CORNER OF SAID NORTHERLY 'A , BEING THE TRUE POINT OF BEGINNING; THENCE SOUTH 89°59'10" WEST ALONG THE SOUTH LINE OF THE NORTHERLY % OF SAID FARM LOT, 155.50 FEET; THENCE NORTH 00°03'08" WEST, 25.00 FEET; THENCE NORTH 21°45'18" EAST, 13.46 FEET; THENCE NORTH 00°03'08" WEST, 208.96 FEET; THENCE SOUTH 31°27'08" EAST, 288.86 FEET TO THE POINT OF BEGINNING. CONTAINING A COMPUTED NET AREA OF 0.4293 ACRES, MORE OR LESS. R VPUBIDLM612344 ATTACHMENT NO. 5 - 19 PARCEL 2 A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS ACROSS THE FOLLOWING - DESCRIBED PROPERTY: THAT PORTION OF THE NORTHERLY RECTANGULAR '/2 OF FARM LOT 78 OF THE LANDS OF SAN JACINTO LAND ASSOCIATION IN THE CITY OF SAN JACINTO, COUNTY OF RIVERSIDE , STATE OF CALIFORNIA AS RECORDED IN BOOK 8 OF MAPS AT PAGE 357 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ALSO BEING A PORTION OF THAT CERTAIN PARCEL 1 AS DESCRIBED BY GRANT DEED RECORDED AS INSTRUMENT NUMBER 434266 ON DECEMBER 29, 1995, BOTH ON FILE IN THE RECORDS OF RIVERSIDE COUNTY , CALIFORNIA BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF PARCEL 2 OF PARCEL MAP 19362, AS SHOWN BY MAP ON FILE IN BOOK 122 OF PARCEL MAPS AT PAGES 57 AND 58 IN SAID RIVERSIDE COUNTY RECORDS, SAID POINT ALSO BEING THE NORTHEAST CORNER OF SAID FARM LOT 78; THENCE SOUTH 89°59'04" WEST ALONG THE SOUTH LINE OF SAID PARCEL 2 OF PARCEL MAP 19362, A DISTANCE OF 188.56 FEET TO THE NORTHWEST CORNER OF PARCEL 2 OF SAID GRANT DEED RECORDED AS INSTRUMENT NUMBER 434266 ON DECEMBER 29, 1995, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE SOUTH 31°27'08" EAST ALONG THE WESTERLY LINE OF PARCEL 2 OF SAID GRANT DEED, 361.92 FEET TO A POINT ON THE EASTERLY LINE OF SAID NORTHERLY RECTANGULAR'/2 OF FARM LOT 78; THENCE SOUTH 00°03'08" EAST ALONG THE EAST LINE OF THE NORTHERLY RECTANGULAR 1/2 OF SAID FARM LOT 78 A DISTANCE OF 21.11 FEET TO THE SOUTHEAST CORNER OF SAID NORTHERLY Y2; THENCE NORTH 31 °27'08" WEST, 288.86 FEET; THENCE SOUTH 00°03'08" EAST, 17.28 FEET; THENCE NORTH 31°27'08" WEST, 85.23 FEET TO A POINT THAT IS 28.00 FEET SOUTH OF THE SOUTH LINE OF SAID PARCEL 2 OF PARCEL MAP 19362; THENCE SOUTH 89°59'04" WEST ALONG A LINE THAT IS 28.00 FEET SOUTH OF AND PARALLEL WITH THE SOUTH LINE OF PARCEL 2 OF SAID PARCEL MAP, 319.40 FEET; RVPUB\DLH\612344 ATTACHMENT NO. 5 - 20 THENCE NORTH 00°01'21" WEST, 28.00 FEET TO A POINT ON THE SOUTH LINE OF PARCEL 2 OF SAID PARCEL MAP 19362; THENCE NORTH 89°59'04" EASE ALONG THE SOUTH LINE OF PARCEL 2 OF SAID PARCEL MAP 19362 A DISTANCE OF 325.73 FEET TO THE POINT OF BEGINNING; CONTAINING A COMPUTED NET AREA OF 13,791.50 SQUARE FEET OR 0.317 ACRES, MORE OR LESS. RVPUBIDLH1612344 ATTACHMENT NO. 5 - 21 RVPU81DLH1612344 EXHIBIT B TO PARKING LOT LEASE SITE MAP SHOWING LOCATION OF PUBLIC PARKING LOT AND DESIGNATED PARKING SPACES [To be attached] ATTACHMENT NO. 5 - 22 ATTACHMENT NO. 6 GUARANTY THIS GUARANTY is made and entered into this day of , 2001, by and between r 1, an I- 1 ("Guarantor"), and THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO, a public body, corporate and politic ("Lender"), and is based upon the following facts: A. Lender has agreed to make a loan in the principal amount of Three Hundred and Forty Two Thousand Seven Hundred Forty- Two Dollars and Forty -Six Cents ($342,742.67) (the "Agency Loan") to FUN PROPERTIES, LLC, a California limited liability company ("Borrower"), pursuant to that certain Disposition and Development Agreement between Lender and Borrower, dated February 7, 1995, (the "DDA") and amended by that certain First Amendment to Disposition and Development Agreement dated May 17, 2001 (the "First Amendment"). The term "DDA" as used herein shall mean the DDA as amended by the First Amendment. Except as otherwise provided, all defined terms set forth in the DDA that are used in this Guaranty shall have the same meaning as in the DDA. B. The Agency Loan is evidenced by that certain Amended Promissory Note ("Amended Note" executed by Lender and Borrower dated , 2001. The Amended Note is secured by that certain Deed of Trust with Assignment of Rents made , 2001, and duly recorded on 2001, as Instrument No. in Official Records, County of Riverside, California ("Trust Deed or "Deed of Trust"). C. Guarantor hereby agrees to guarantee repayment to Lender of any and all sums due to Lender pursuant to the Amended Note in the event Borrower fails to repay any or all sums due in accordance with the Amended Note, within the times required by the Amended Note. THEREFORE, in consideration of the making of the Loan to Borrower by Lender as forth in the above Recitals, Guarantor hereby agrees with Lender as follows: 1. Guarantor unconditionally and irrevocably guarantees to Lender, upon written notice from Lender, prompt and punctual payment to Lender any and all sums due under the Amended Note on demand, in lawful money of the United Sates in immediately available funds. The term "any and all sums" as used herein also includes, without limitation, the full amount owed to Lender and any trustee including any interest, default interest, costs and fees (including, without limitation, reasonable attorneys' fees) that would have accrued under the Amended Note but for the commencement of a case under the Bankruptcy Code or any other law governing insolvency, bankruptcy, reorganization, liquidation or like proceeding. Guarantor hereby acknowledges the DDA R VPUB\DLH1612344 ATTACHMENT NO. 6 - 1 and its terms and the Amended Note and its terms. Guarantor further acknowledges that Lender and Borrower have entered or may have entered into such other or further agreements pertaining to the DDA, and that Guarantor hereby acknowledges and accepts, and waives notice of and consent to, any of such other or further agreements and/or amendments between Lender and Borrower pertaining to the DDA . 2. Lender need not take any action against Borrower or any other person, firm, or corporation, or resort to any security held by it at any time before proceeding to enforce the obligations of Guarantor pursuant to this Guaranty. Guarantor hereby waives the protection of, and any right to assert, in any action brought on this Guaranty or otherwise, the provisions of California Civil Code 2810, 2819, 2845, 2849, 2850, and any other provisions of law purporting to benefit guarantors or sureties. In addition, Guarantor expressly waives (a) notice of the acceptance of this Guaranty by any person, (b) notice of the amount of indebtedness under the Amended Note now existing or which may hereafter exist, (c) notice of demand for payment, notice of default or nonpayment, presentment, protest, notice of protest, and notice of dishonor on the Amended Note or any obligation covered by this Guaranty, (d) notice of assignment, transfer, or negotiation of the Amended Note, and (e) all other notices to which Guarantor might otherwise be entitled in connection with this Guaranty, the Amended Note, or the Deed of Trust. Upon Guarantor's failure to promptly portion its obligations under this Guaranty, Lender may, pursuant to this Section 2, bring any action at law or in equity or both to compel Guarantor to perform its obligations hereunder, and to collect in any such action compensation for all loss, cost, damages, injury and expenses sustained or incurred by Lender as a direct or indirect consequence of the failure of Guarantor to portion its obligations, together with interest thereon at the rate of interest then applicable to the principal balance of the Amended Note. 3. Guarantor hereby expressly waives (a) any right to require Lender, as a condition precedent to the enforcement of this Guaranty, to exhaust the security for payment of the Amended Note by foreclosure proceedings, or otherwise, or to pursue any other rights or remedies which Lender has or hereafter may have against Borrower, any other guarantor, or any other maker or subsequent endorser of the Amended Note, it being agreed by Guarantor that this Guaranty is an absolute guaranty of payment and not of collection and that the liability of Guarantor hereunder is direct and unconditional, (b) any defense to the enforcement of this Guaranty based upon the fact that the real property described in the Amended Deed of Trust was foreclosed upon by a trustee's foreclosure sale, thereby destroying any subrogation rights of the Guarantor, any right of Guarantor to proceed against Borrower or any other make or subsequent endorser of the Amended Note (California Code of Civil Procedure 580d), and (c) any defense to the enforcement of this Guaranty based upon the fact that the Amended Note and Deed of Trust were given to Lender as the vendor to secure payment of the balance of the purchase price of the real property covered by the Deed of Trust and that real property covered by the Amended Deed of Trust and that Guarantor may not proceed against Borrower or any other maker or subsequent endorser of the Note by subrogation or otherwise due to the anti -deficiency protection of the Borrower provided by California Civil Procedure 580b. R VPUBIDLH16I 2344 ATTACHMENT NO. 6 - 2 4. Until all of the obligations guaranteed hereby have been paid in full, Guarantor shall not have any right of subrogation unless it is expressly given to it in writing by Lender. 5. In the event of an Event of Default of the Borrower under the Amended Note, all existing or future indebtedness of Borrower and any other maker or subsequent endorser of the Amended Note to Guarantor is hereby subordinated to all of the obligations guaranteed hereby, and without the prior written consent of Lender, Guarantor shall not accept payments on such indebtedness. Each payment to Guarantor by Borrower and any other maker or subsequent endorser of the Amended Note in violation of this Section 5 shall be deemed to have been received by Guarantor as trustee for Lender and shall be paid by Guarantor to Lender immediately on account of all indebtedness evidenced by the Amended Note or secured by the Amended Deed of Trust. Guarantor further agrees not to assign all or any part of such indebtedness. 6. Liability of Guarantor hereunder shall continue notwithstanding, and shall be unaffected by (a) a change of ownership or legal title to the property described in the Amended Deed of Trust, whether effected with or without the consent of Lender, (b) the filing of a bankruptcy, insolvency or similar proceeding by or against Borrower or any other person or entity, or (c) the incapacity, death, disability, dissolution, or termination of Guarantor, Borrower, or any other person or entity. Guarantor may be released from liability hereunder upon the transfer of Guarantor's interest in Borrower, provided that (a) Lender approves such release in writing, and (b) Guarantor's successor -in -interest executes a guaranty assuming all of Guarantor's liabilities under this Guaranty. 7. The failure by Lender to file or enforce a claim against the estate (either in administration, bankruptcy, or other proceedings) of Guarantor, Borrower, or any other persons, shall not affect the liability of Guarantor hereunder if recovery from Borrower or any other person becomes barred by the statute of limitations or is otherwise prevented. If the maturity of any obligation guaranteed hereby is accelerated, by bankruptcy or otherwise, that maturity shall also be accelerated for purposes of this Guaranty, and without demand or notice to Guarantor. 8. Guarantor waives and agrees not to exercise or take advantage of the defense of the statute of limitations in any action hereunder or for the enforcement, collection, or payment of any obligation guaranteed hereby. 9. Guarantor agrees to file all claims against Borrower in any bankruptcy or other proceedings in which the filing of claims is required by law on any indebtedness of Borrower and will assign to Lender all of its rights thereunder. If Guarantor does not file any such claims, Lender, as the attorney -in -fact of Guarantor, is hereby authorized to do so in the name of Guarantor, or, in the discretion of Lender, to assign the claim to, and cause proof of claim to be filed in, the name of Lender's nominee. In all such cases, whether in administration, bankruptcy, or otherwise, the person or persons authorized to pay such claim shall pay to Lender the full amount payable on the claim in the proceeding before making any payment to Guarantor and, to the extent necessary for that purpose, Guarantor assigns to Lender all of its right to any payment or distributions to which Guarantor would otherwise be entitled. If the amount so paid is greater than the obligations of RV PU[31DLFI1612344 ATTACHMENT NO. 6 - 3 Guarantor to Lender pursuant to this Guaranty, Lender will pay the amount of the excess to the party entitled thereto. 10. In the event of a default in the performance of any of the obligations of Borrower guaranteed hereby, Lender may maintain an action upon this Guaranty, whether the Borrower is joined therein or whether or not a separate action is brought against Borrower. The rights of Lender hereunder are cumulative and shall not be exhausted by the exercise of any of its rights hereunder, or otherwise, against Guarantor, or any security given for this Guaranty or by any number of successive actions until and unless all obligations hereby guaranteed have been performed and each of the obligations of guarantor hereunder have been fully performed. 11. If one or more individuals are guarantors, the obligations of each shall be joint and several and may be enforced by action against any one of said persons or entities without the necessity of joining the other of such persons in such action. If the obligations guaranteed hereby are in any manner guaranteed by any other person, expressly or by endorsement of the Amended Note, or otherwise, the obligation of such other person and the obligations guaranteed hereunder shall be deemed to be several, and the release by Lender of any other such person, or settlement with such person, or the revocation or impairment of any other agreement or guaranty providing for the assumption by any other person of the obligations of Borrower shall not operate to prejudice Lender's rights against Guarantor hereunder. 12. In the event that any action, suit, or other proceeding is brought to enforce the obligations of Guarantor under this Guaranty, the Lender shall be entitled to receive for Guarantor all of such party's costs and expenses of suit, including reasonable attorneys' fees, expert witness fees, and costs of investigation and discovery, incurred in each and every such action, suit, or other proceeding, including any and all appeals or petitions therefrom. 13. This Guaranty shall inure to the benefit of Lender and its successors and assigns, and a notice of assignment, transfer, or negotiation of the Amended Note and Amended Deed of Trust is expressly waived by Guarantor. 14. This Guaranty has been made and entered into in the State of California and the laws of said state shall govern the validity and interpretation thereof. Whenever possible, each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, although if any provision of this Guaranty shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such, or the remaining provisions of this Guaranty. Any action brought to enforce or interpret the obligations evidenced by this Guaranty shall be brought in the Superior Court for the County of Riverside, State of California. 15. Guarantor hereby waives (a) notice of the acceptance of this Guaranty by any person or entity, (b) notice of the amount of indebtedness under the Amended Note or any change in said amount, (c) notice of demand for payment, notice of default or nonpayment, presentment, protest, R VPUBIDLI11612344 ATTACHMENT NO. 6 - 4 notice of protest, and notice of dishonor on any obligation, and (d) all other notices to which Guarantor might otherwise be entitled in connection with this Guaranty, the Amended Note, or the Amended Deed of Trust. 16. Formal notices, demands, and communications between Lender and Guarantor shall be given either by (i) personal service, (ii) delivery by reputable document delivery service that provides a receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to: To Lender: Copy to: Guarantor: Copy to: The Redevelopment Agency of the City of San Jacinto 201 East Main Street San Jacinto, CA 92583 Attn: Executive Director Best Best & Krieger LLP 3750 University Avenue, Suite 400 Riverside, CA 92502-1028 Attn: John E. Brown Robert E. Osborne c/o Osborne Development Corp 30001 Comercio Rancho Santa Margarita, CA 92688 William B. Hanley 2030 Main Street, Suite 1630 Irvine, California 92614 Notices delivered by personal delivery or by document delivery service shall be effective upon receipt. Mailed notices shall be effective on the earlier of (i) actual receipt, or (ii) at Noon on the third business day following deposit with the United States Postal Service; provided, however, that refusal to accept delivery after reasonable attempts thereto shall constitute receipt. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may from time to time designate by delivery of notice in accordance with the provisions hereof. 17. This instrument and the agreements contained herein may be amended or modified only by an instrument of equal formality, signed by the parties hereto or their duly authorized agents or representatives. 18. The Guarantor represents and warrants to Lender that: (a) the Guarantor has received and approved a copy of the Amended Note, Amended Deed of Trust and the DDA; (b) no oral promises, assurances, representations or warranties have been made by or on behalf of Lender to induce the Guarantor to execute and deliver this Guaranty; (c) the Guarantor has received reasonably R V PUBIDLH1612344 ATTACHMENT NO. 6 - 5 equivalent value in return for its execution and delivery of this Guaranty; (d) the Guarantor is not insolvent nor will the Guarantor become insolvent as a result of the execution and delivery of this Guaranty; (e) the execution, delivery and performance of this Guaranty does not and will not require any authorization or approval which has not been obtained by official action of Guarantor prior to or concurrently with the acceptance hereof or contravene any applicable laws or other requirements or any agreement or restriction binding on or affecting Guarantor or its properties; (f) this Guaranty, when executed and delivered by Guarantor, will constitute the legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms, except as enforcement may be limited by outstanding bonded indebtedness, bankruptcy, insolvency or other similar laws affecting the rights of creditors generally; (g) except as otherwise disclosed in writing to Lender, no actions or other proceedings are pending or, to the best knowledge of Guarantor, threatened against or affecting Guarantor or any of its properties which, if determined adversely, could materially impair the financial condition, operations, properties or prospects of Guarantor or the ability of Guarantor to perform its obligations under this Guaranty. 19. Enforceability. Guarantor hereby acknowledges that: (a) the obligations undertaken by Guarantor in this Guaranty are complex in nature, and (b) numerous possible defenses to the enforceability of these obligations may presently exist and/or may arise hereafter, and (c) as part of Lender's consideration for entering into this transaction, Lender has specifically bargained for the waiver and relinquishment by Guarantor of all such defenses, and (d) Guarantor has had the opportunity to seek and receive legal advice form skilled legal counsel in the area of financial transactions of the type contemplated herein. Given all of the above, Guarantor does hereby represent and confirm to Lender that Guarantor is fully informed regarding, and that Guarantor does thoroughly understand: (i) the nature of all such possible defenses, and (ii) the circumstances under which such defenses may arise, and (iii) the benefits which such defenses might confer upon Guarantor, and (iv) the legal consequences to Guarantor of waiving such defenses. Guarantor acknowledges that Guarantor makes this Guaranty with the intent that this Guaranty and all of the informed waivers herein shall each and all be fully enforceable by Lender, and that Lender is induced to enter into this transaction in material reliance upon the presumed full enforceability thereof. 20. Interpretation. The Lender and the Guarantor acknowledge that this Guaranty is the product of mutual arms -length negotiation and drafting and that each party has been represented by legal counsel in the negotiation and drafting of this Guaranty. Accordingly, the rule of construction which provides the ambiguities in a document shall be construed against the drafter of that document shall have no application to the interpretation and enforcement of this Guaranty. In any action or proceeding to interpret or enforce this Guaranty, the finder of fact may refer to any extrinsic evidence not in direct conflict with any specific provision of this Guaranty to determine and give effect to the intention of the parties. RVPUB\DLH.612344 ATTACHMENT NO. 6 - 6 IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date and year first above written. R VPUB1DLH1612344 GUARANTOR: [END OF SIGNATURES] ATTACHMENT NO. 6 - 7 STATE OF CALIFORNIA COUNTY OF On , 2001, before me, the undersigned notary public, personally appeared El personally known to me OR ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public RVPUBIDLH1612344 ATTACHMENT NO. 6 - 8 CAPACITY CLAIMED BY SIGNER: ❑ Individual(s) ❑ Corporate Officer(s) ❑ Partner(s) ❑ Attorney -in -Fact ❑ Trustee(s) ❑ Subscribing Witness ❑ Guardian/Conservator ❑ Other SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) ATTACHMENT NO. 7 SUBORDINATION AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: The Redevelopment Agency of the City of San Jacinto 201 East Main Street San Jacinto, California 92583 (Space above for Recorder's Use) [Exempt from fees per Gov't Code §61031 Escrow No:[ SUBORDINATION AGREEMENT Title Order No. 1 1 NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT 1. Parties; Date. This Subordination Agreement ("Agreement") is entered into as of this day of , 2001 between FUN PROPERTIES, LLC., a California Limited Liability Company (the "Owner"), owners of the Property (described below), and THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO ("Agency"), present owner and holder of the Agency Deed of Trust (described below). 2. Recitals. 2.1 Owner executed that certain Deed of Trust dated [ ], 2001, to [ ], ("Trust Deed or "Deed of Trust") as trustee, covering: [INSERT PROPERTY DESCRIPTION] ("Property") to secure that certain Amended Promissory Note ("Amended Note") in the sum of $342,742.46 dated 1 ], 2001, in favor of the Agency, which deed of trust was recorded 1 ] as RVPUBIDLH1612344 ATTACHMENT NO. 7 - 1 Instrument No. ( ] in the Official Records of Riverside County, California. The Agency's Deed of Trust and Amended Note shall be referred to collectively as the "Agency Deed of Trust". 2.2 Owner has executed, or is about to execute, a deed of trust and note in the sum of ( Dollars][($ )] dated , in favor of ("Lender"), payable with interest and upon the terms and conditions described therein (collectively, the "Lender's Deed of Trust"). Lender's Deed of Trust is to be recorded concurrently with this Agreement. 2.3 It is a condition precedent to obtaining the loan from Lender which will be evidenced by the Lender's Deed of Trust ("Loan") that the Lender's Deed of Trust be a lien or charge upon the Property prior and superior to the lien or charge of the Agency's Deed of Trust. 2.4 Lender is willing to make said Loan provided the Lender's Deed of Trust securing the same is a lien or charge upon the Property prior and superior to the lien or charge of the Agency Deed of Trust and provided that Beneficiary will specifically subordinate the lien or change of the Agency Deed of Trust to the lien or charge of the Lender's Deed of Trust. 2.5 The Agency is willing to subordinate the Agency's Deed of Trust to the Lender's Deed of Trust so long as said subordination is consistent with the terms and conditions set forth in this Agreement. 3. Terms 3.1 Subordination. Provided that all of the Owner's and Lender's representations and warranties as set forth in Section 3.2 are true as of the recordation of this Agreement, the Agency agrees that the Lender's Deed of Trust shall be a lien or charge upon the Property prior and superior to the lien or charge of the Agency's Deed of Trust. 3.2 Owner's and Lender's Representations and Warranties. Owner and Lender represent and warrant that the following Loan requirements and/or conditions precedent for the benefit of Agency have been or will be, as applicable, satisfied or waived in writing by the Agency. Owner and Lender acknowledge and agree that Agency is materially relying upon said representations and warranties in entering into this Agreement. RVPUBIDLH1612344 3.2.1 The Lender will not make its Loan without this Agreement 3.2.2 This Agreement shall be the whole and only agreement with regard to the subordination of the lien or charge of the Agency Deed of Trust to the lien or charge of the Lender Deed of Trust and shall supersede and cancel, but only insofar as would affect the priority between the Agency Deed of Trust and the Lender Deed of Trust, any prior agreement as to such subordination including, but not limited, those provisions, if any, contained in the Agency Deed of ATTACHMENT NO. 7 - 2 Trust, which provide for the subordination of the lien or charge thereof to another deed or deeds of trust or to another mortgage or mortgages. 3.2.6 All taxes must be current on the Property and there shall be no contractor liens on the Property prior to the Owner obtaining the Loan from Lender. 3.2.8 Lender shall prepare a Request for Notice for the Agency in order to provide the Agency with notice in the event that the Owner defaults on the Loan. 3.3 Agency's Acknowledgments. Agency intentionally and unconditionally waives, relinquishes and subordinates the lien or charge of the Agency Deed of Trust in favor of the Lender's Deed of Trust and understands that in reliance upon, an in consideration of, this waiver, relinquishment and subordination, specific loans and advances are being and will be made and, as part and parcel thereof, specific monetary and other obligations are being and will be entered into which would not be made or entered into but for said reliance upon this waiver, relinquishment and subordination. 3.4 No renewals, extensions or refinancings. This Agreement shall not apply to any renewals, extensions or refinancings of the Loan. 3.5 Endorsement. The Agency shall place an endorsement on the Agency's Deed of Trust that the Agency's Deed of Trust has been subordinated to the Lender's Deed of Trust as set forth in this Agreement. 3.6 Conflict with Loan Subordination Policy. In the event of a conflict between the terms and conditions of this Agreement and the Loan Subordination Policy, the terms and conditions of the Loan Subordination Policy shall control. 4. General Terms. 4.1 Entire Agreement. This Agreement supersedes and cancels any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof but only insofar as would affect the priority between the Agency's Deed of Trust and the Lender's Deed of Trust. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of either party shall be of any effect unless it is in writing and executed by the party to be bound thereby. 4.2 Amendments to this Agreement. The terms of this Agreement may only be modified or amended by an instrument in writing executed by each of the parties hereto. 4.3 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. RVPUB\DLH\612344 ATTACHMENT NO. 7 - 3 4.4 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. Dated: THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JACINTO ATTEST: By: APPROVED AS TO FORM: BEST BEST & KRIEGER LLP Agency Counsel By: Executive Director OWNER FUN PROPERTIES, LLC, a Califomia limited liability company Dated: By: Dated: By: R VPUB\DLH\612344 ATTACHMENT NO. 7 - 4 STATE OF CALIFORNIA } } COUNTY OF } On , 2001, before me, the undersigned 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/she executed the same in his/her authorized capacity, and that by his/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 of Notary (SEAL) RVPUB\DLH\612344 ATTACHMENT NO. 7 - 5 CAPACITY CLAIMED BY SIGNER: ❑ Irdn,nlK: ❑caaparaa OfK,) ❑ Paruur(u) ❑.Saana urFatl ❑ Inea(e) ❑SuEttribugudness ❑ GuardenCor maba NI Other EXECUTIVE ERECTOR OF AGENCY SIGNER IS REPRESENTING NAIIEOF PERSONIS)OR EN lTY IES) THE REEVELOPMENT AGENCY OF THE CITY OFSANJACINTO STATE OF CALIFORNIA COUNTY OF } } } On , 2001, before me, the undersigned 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/she executed the same in his/her authorized capacity, and that by his/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 of Notary ISEA.i RVPUBIDLH1612344 ATTACHMENT NO. 7 - 6 CAPACITY CLAIMED BY SIGNER: Indiatduays) ❑ Corponk C TK T(S) ❑ PaMe(s) ❑ .Anosr y*Fxi ❑ TmsIee(s) ❑ Sub;<riblecihes ❑ Guadian'Commmaor ❑ Ohtc SIGNER IS REPRESE,VIING NAIEOF PERSONS) OR ENTITYIIES) NIA STATE OF CALIFORNIA COUNTY OF } } } On , 2001, before me, the undersigned 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/she executed the same in his/her authorized capacity, and that by his/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 of Notary (SE1d R VPUB`=.D LFI` 612344 ATTACHMENT NO. 7 - 7 CAPACITY CLAIMED BY SIGNER: ® Ind0106 (s) Correk mat) ❑Pamats) .Adana *Fan ❑ Tnistays) Su6sn6Ngu'nass ❑ GuardeCaaanala ❑Odkr SIGNER IS REPRESENTING. NAVE OE PERSONIS)OR MIMES) NIA MINUTES A' ". A / REGULAR MEETING SAN JACINTO REDEVELOPMENT AGENCY May 3, 2001 San Jacinto Unified School District Board Room 2045 South San Jacinto Avenue, San Jacinto, California 1. ORGANIZATION President Williams called the Regular Meeting of the San Jacinto Redevelopment Agency to order at 9:10 p.m.. Present: Ayres, Carlson-Buydos, Conner, Good, Williams Absent: None There were no special presentations. 2. PUBLIC COMMENTS: None 3. PUBLIC HEARING: None 4. CITY DEPARTMENTS: 4.1 Approval of Facade Improvement Program Agreement with Christine Ann DeCastro Planning Director Tim Hults indicated two modifications to the Promissory Note as recommended by the City Attorney. Corrected copies will be provided the City Clerk. Mr. Hults noted that all improvements are in compliance with City Codes and Ordinances and the owner has received a Certificate of Occupancy. Vice Mayor Ayres noted the owner has done a great job of upgrading the building. M/S/C (Good, Ayres) to authorize the President of the Redevelopment Agency to execute an Agreement Awarding a Forgivable Loan in the Amount of $10,000.00 to Christine Ann DeCastro. Ayes: Ayres, Carlson-Buydos, Conner, Good, Williams Noes: None Absent: None 5. CONSENT CALENDAR - CITY COUNCIL 5.1 Approve Minutes of Regular Meeting of the Redevelopment Agency of April 19, 2001. M/S/C (Ayres, Good) to approve the minutes of the Regular Meeting of the Redevelopment Agency of April 19, 2001, as submitted. Minutes — Redevelopment Agency Meeting May 3, 2001 AYES: Ayres, Carlson-Buydos, Conner, Good, Williams NOES: None 6. PRESIDENT/MEMBER REPORTS/DISCUSSION: None. 7. CLOSED SESSION: None. 8. ADJOURNMENT: President Williams adjourned the meeting at 9:15 p.m. Submitted by, Susan Matthew, Agency Secretary