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HomeMy WebLinkAboutA6164B - ACTION PARK ALLIANCE2 Original: Amendment No. 1 to Contract Services Contract (CA CONTRACT ABSTRACT reement No. 6461 (A6461 Action Action Park Alliance Operation of Palm Springs Skate Park Retail/Pro Shop and Concession Year 3: $80,000 (reduction of $80,000) Year 4: $98,000 (reduction of $62,000) Year 5: $98,000 + CPI (reduction of $62,000) 001-2512-43200 is June 30, 2023 (5 years) 000 annually, Year 4-5: $160,000 plus CPI adjustment nt: Parks & Recreation Contract Administrator: Cynthia Alvarado City Council Approval: July 18, 2018 Amendment No. 1: November 23, 2020 Agreement Number: A6461 Contract Compliance Exhibits: Attached Signatures: Attached Insurance: Attached Bonds: N/A Prepared by: Cynthia Alvarado & BBK Submitted on: 11/23/20 By: Tabitha Richards AMENDMENT NO. 1 TO AGREEMENT NO.6164 FOR OPERATION OF PALM SPRINGS SKATE PARK RETAIL/PRO SHOP AND CONCESSION This Amendment No. 1 to Agreement No. 6164 (A6461) for the Operation of Palm Springs Skate Park Retail/Pro Shop and Concession, ("Amendment No. 1"), is made and entered into as of this 1st day of July, 2020, by and between the City of Palm Springs, a California charter city and municipal corporation, ("City") and Action Park Alliance, Inc., a California Corporation ("APA"). City and APA are sometimes herein referred to individually as "Party" and collectively as the "Parties". RECITALS WHEREAS, the City is the owner of that certain real property located at 405 South Pavilion Way, Palm Springs, CA 92262 on which is located the City's Skate Park; and WHEREAS, Parties entered into an A6164 on August 15, 2018, under which APA agreed to operate and manage the Skate Park in exchange for management fees paid by the City to APA; and WHEREAS, on March 19, 2020, the City Council ratified the City Manager's declaration of the existence of a local emergency related to the increasing spread of the Novel Coronavirus (COVID-19), and the City Manager's issuance of a "shelter in place" order; and WHEREAS, on March 19, 2020, Governor Newsom issued an Executive Order imposing a "shelter in place" order throughout the entire state of California; and WHEREAS, as a result of the City's and Governor's "shelter in place" orders, and other precautions undertaken nationally to limit the spread of COVID-19, operations at the Palm Springs Skate Park have significantly declined; and WHEREAS, Parties did not anticipate during the term of the Agreement that a significant decrease in skating activities would occur due to a global pandemic such as COVID-19; and WHEREAS, the Parties wish to enter into this Amendment No. 1 to provide for reduced services and management fees for the operation and management of the Skate Park. NOW, THEREFORE, in consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows: 55575.18240W33385104.1 -1- AGREEMENT SECTION 1. The true and correct recitals above are incorporated by this reference herein as the basis for this Amendment No. 1. SECTION 2. Section 4.1.1 Management Fee of the Agreement is hereby amended to read as follows: "Year 1: (2018-2019) — $168,000 per year (5% increase). Year 2: (2019-2020) — 3% increase or CPI-U, whichever is greater. Year 3: (2020-2021) — $80,000. Year 4: (2021-2022) — $98,000. Year 5: (2022-2023) — $98,000, plus CPI-U from 2021/2022 fiscal year. *CPI-U is the Consumer Price Index for All Urban Consumers, All Items, for the Riverside -San Bernardino -Ontario for the Year ending in December. Payments shall be invoiced thirty (30) days prior to each quarter, and the City shall have thirty (30) days following its receipt of an invoice from APA to pay. Notwithstanding the foregoing, following the first quarter's payment, the City shall not be required to make a payment to APA until the City is in receipt of APA's quarterly financial report, as described herein, for the quarter. SECTION 3. ADD Section 4.1.4 Changes In the event any change or changes in the Operations and Management for the Skate Park is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into: A. To provide for revisions or modifications to documents, work product, or work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor's profession. SECTION 4. Exhibit °B" to the Agreement (Hours of Operation; Pricing; Staffing) is hereby amended to read as set forth below: Hours of Operation: Weekdays 2:00 PM 10:00 PM Weekends 2:00 PM 10:00 PM Holidays 2:00 PM 10:00 PM 55575.1824OW33385104.1 -2- Fees: Weekdays. Weekends. and Holiday Sessions: Session Start End Block #1 2:00 PM 3:45 PM Sanitizing Break 3:45 PM 4:00 PM Block #2 4:00 PM 5:45 PM Sanitizing Break 5:45 PM 6:00 PM Block #3 6:00 PM 7:45 PM Sanitizing Break 7:45 PM 8:00 PM Block #4 8:00 PM 9:45 PM Shop and Park Sanitizing 9:45 PM 10:00 PM Annual Memberships: Resident Membership -- $15.00 Non -Resident Membership -- $25.00 Palm Springs residents will continue to be able to use the park for free during normal operations; events will be fee -for -service All other park users will pay a $2 per session park usage fee. Programming (as permitted by COVID regulations/orders) Camps — 5 weeks during the summer Lessons & clinics — scheduled throughout the year Contests — such as Concrete Showdown, Valentines Game of skate, Nude Bowl contest, etc. Special events — Go Skate Day, Skate or Rock, etc. No more than 12 per calendar year Staffing APA shall provide no fewer than two (2) trained staff members at the Skate Park to monitor and regulate skate activity at the Skate Park during all operating hours. Of these two staff members, at least one shall be a management level staff member. SECTION 5. Full Force and Effect. All terms, conditions, and provisions of the Operation Agreement, unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this Amendment No. 1 and any provisions of the Operation Agreement, the provisions of this Amendment No. 1 shall in all respects govern and control. From and after the date of this Amendment No. 1, whenever the term "Agreement" or "Contract' appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1. 55575.18240W33385104.1 -3- SECTION 6. The persons executing this Amendment No. 1 on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 1 on behalf of said party, (iii) by so executing this Amendment No. 1, such party is formally bound to the provisions of this Amendment No. 1, and (iv) the entering into this Amendment No. 1 does not violate any provision of any other agreement to which said Party is bound. [SIGNATURES ON FOLLOWING PAGE] 55575.18240W33385104.1 -4- IN WITNESS WHEREOF, the Parties have executed this Amendment No.1 on the dates stated below. "CITY" City ofjPalm Springs Date: Vwr .boy 6f PArICS cArrAVec+ 0A APPROVED AS TO FORM: ATTEST: By: By: Jeffrey S. Ballinger Anthony J Mejia, MMC Date: 11 /20120 Date: 11 /20/20 Action ParJc- lance, 9., a California corporation Signature Aaron Spohn, President r. Kirsten Dermer, CEO/ CFO Printed Name/Title Corporations require two notarized signatures: One signature must be from Chairman of Board, President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. Si:, ohs APPROV9" 55575.18240W33385104.1-5- IN WITNESS WHEREOF, the Parties have executed this Amendment No.1 on the dates stated below. Date: APPROVED AS TO FORM: By: Jeffrey S. Ballinger City Attorney Date: 11 /20/20 Date: 11 /20/20 "CITY" City of Palm Springs VAr'640 6� 37ArICS GrA�9-ZCM410VA ATTEST: By• Anthony J t!!a, M City Clerk Action Pa ., a California corporation Signature Aaron Spohn, President �- Kirsten Dermer, CEO/ CFO Printed Name/Title Corporations require two notarized signatures: One signature must be from Chairman of Board, President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. Sty otlt 6 55575.18240W33385104.1 -5- CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California l County of S J} On _�IDWV l �'l� �, fitlLy before me, 1f Itit fr I ' �liY/It�/ , Date H re Insert Name and T't a of the Othicer personally appeared KIrStW VWt-tr 4 VO %kArW Name(s) of Signer(s) who 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. y�•� °�+,y� VICTORIA ST, CLAIR RAM-13 Notary Public • California - Los Angeles County m ` ° Commission # 2306833 �•� �,."� My Comm. Expires Sep 26, 2023 Place Notary Seal and/or Stamp Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature �A gnoture f taty Public Vr 1 IVIVAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: 02018 National Notary Association Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: ACOR" 16� CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDDIYYYY) 1 10/13/2020 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEENTHE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsements . PRODUCER Athos Insurance Services, LLC P.O. Box 61102 Pasadena, CA 91116 CONTACT NAME: Any Representative A/c No Ext : 626-716-9800 A/C No : 626 701-5047 E-MAIL ADDRESS: service@athosinsurance.com INSURER(S) AFFORDING COVERAGE NAIC # INSURERA: Atlantic Specialty Insurance Company 27154 INSURED INSURERB: United States Fire Insurance Company 21113 INSURERC: Alliance Skate Park of Palm Springs INSURERD: 6824 S. Centinela Ave. Culver City, CA 90230 INSURERE: INSURERF: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOT WITH STANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BYTHE POLICIES DESCRIBED HERE IN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPEOFINSURANCE ADDL INSR SUBR WVO pOLICYNUMBER POLICY EFF MM/DD/YYYV POLICY EXP MMIDDIYYYY LIMITS GENERALLIABILITY GENERAL AGGREGATE $3,000,000 PRODUCTS - COMP/OP AGG $3,000,000 X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE a occuR PERSONAL & ADV INJURY $1,000,000 B X SRPGAPML-101-0719/ USP318167 4/22/2020 12:01 AM 4/22/2021 12:01 AM EACH OCCURRENCE $1,000,000 FIRE DAMAGE (Any one fire) $300.000 GEN'L AGGREGATE LIMIT APPLIES PER: MED EXP (Any one person) $5,000 $ POLICY PRO LOC X 'EC` AUTOMOBILELIABILITY COMBINED SINGLE LIMIT Ea accident $1,000,000 BODILY INJURY (Per person) $ ANY AUTO B ALL OWNED SCHEDULED AUTOS AUTOS NON -OWNED HIRED AUTO X AUTOS X SRPGAPML-101-0719/ U S P 318167 4/22/2020 12:01 AM 4/22/2021 12:01 AM BODILY INJURY (Per accident) $ X PROPERTY DAMAGE (Per accident) $ UMBRELLALIAB OCCUR EACH OCCURRENCE S AGGREGATE $ EXCESSLIAB CLAIMS -MADE DED I I RETENTION s $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN WCSTATu- oTH- TORY LIMITS ER $ E.L. EACH ACC IDENT $ ANYPROPRIETORIPARTNER;EXECUTIVE OFFICERIMEMBER EXCLUDED? ❑ N / A - E.L. DISEASE - EA EMPLOYEE $ (Mandatory In NH) If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ A Inland Marine Coverage 790011744-0007-54371 4/22/2020 12:01 AM 4/22/2021 12:01 AM Limit Description Deductible / Options Supplement $500 / Supp. B Accident Medical US1311718 4/22/2020 12:01 AM 4/22/2021 12:01 AM Med Expense / AD&D Deductible $10,000 / $10,000 $250 DESCRIPTION OF OPERATION SILOCATIONSfVEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) Skate park Certificate Holder is named as Additional Insured and Loss Payee CERTIFICATE HOLDER CANCELLATION City of Palm Springs PO Box 2 743 Palm Springs, CA 92 2 6 2 Attn: City Clerk SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THERE OF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988-2010 ACORD25(2010105) The ACORD name and logo are registered marks of ACORD TION. All rights reserved. 4 Commonwealth Land Title Insurance Company P Y GUARANTEE NO.: CA-SFXFC-IMP-81021-1-18-09202612 LITIGATION GUARANTEE SUBJECT TO THE LIMITATIONS CONTAINED HEREIN, THE EXCLUSIONS FROM COVERAGE, THE LIMITS OF LIABILITY AND OTHER PROVISIONS OF THE CONDITIONS AND STIPULATIONS HERETO ANNEXED AND MADE A PART OF THIS GUARANTEE COMMONWEALTH LAND TITLE INSURANCE COMPANY a corporation, herein called the Company GUARANTEES the Assured named in Schedule A against loss not exceeding the liability amount stated in Schedule A which the Assured shall sustain by reason of any incorrectness in the assurance which the Company hereby gives that, according to the public records, as of Date of Guarantee shown in Schedule A: 1. The title to the herein described estate or interest is vested in the vestee named in Schedule A. 2. Except for the matters shown in Schedule B, there are no defects, liens, encumbrances or other matters affecting title to the estate or interest in the land shown in Schedule A, which matters are not necessarily shown in the order of their priority. 3. (a) The current interest holders claiming some right, title or interest by reason of the matters shown in Part II of Schedule B are shown therein. The vestee named in Schedule A and parties claiming to have some right, title or interest by reason of the matters shown in Part II of Schedule B may be necessary parties defendant in an action, the nature of which is referred to in Schedule A. (b) The current interest holders claiming some right, title or interest by reason of the matters shown in Part I of Schedule B may also be necessary parties defendant in an action, the nature of which is referred to in Schedule A. However, no assurance is given hereby as to those current interest holders. 4. The return address for mailing after recording, if any, as shown on each and every document referred to in Part II of Schedule B by specific recording information, and as shown on the document(s) vesting title as shown in Schedule A are as shown in Schedule C. THIS LITIGATION GUARANTEE IS FURNISHED SOLELY FOR THE PURPOSE OF FACILITATING THE FILING OF THE ACTION REFERRED TO IN SCHEDULE A. IT SHALL NOT BE USED OR RELIED UPON FOR ANY OTHER PURPOSE. IN WITNESS WHEREOF, COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused this Guarantee to be signed and sealed as of the date of policy shown in Schedule A, the Guarantee to become valid when countersigned by an authorized signatory. Countersigned: By: Authorized Officer or Agent all aao�,p,ma�`�ks+4 0 *=PA. Ifff a ATIM �"`�1fIA�f/' P-'&- CLTA Guarantee Face Page (06-05-14) Page I © California Land Title Association. All rights reserved. The use of this Form is restricted to CLTA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Order No. 09202612-920-CMM-CM8 Guarantee No. CA-SFXFC-IMP-81021-1-18-09202612 GUARANTEE EXCLUSIONS AND CONDITIONS (06-05-14) EXCLUSIONS FROM COVERAGE Except as expressly provided by the assurances in Schedule A, the Company assumes no liability for loss or damage by reason of the following: (a) Defects, liens, encumbrances, adverse claims or other matters affecting the title to any property beyond the lines of the Land. (b) Defects, liens, encumbrances, adverse claims or other matters, whether or not shown by the Public Records (1) that are created, suffered, assumed or agreed to by one or more of the Assureds; or (2) that result in no loss to the Assured. (c) Defects, liens, encumbrances, adverse claims or other matters not shown by the Public Records. (d) The identity of any party shown or referred to in any of the schedules of this Guarantee. (e) The validity, legal effector priority of any matter shown or referred to in any of the schedules of this Guarantee. (f) (1) Taxes or assessments of any taxing authority that levies taxes or assessments on real property; or, (2) proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not the matters excluded under (1) or (2) are shown by the records of the taxing authority or by the Public Records. (g) (1) Unpatented mining claims; (2) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (3) water rights, claims or title to water, whether or not the matters excluded under (1), (2) or (3) are shown by the Public Records. GUARANTEE CONDITIONS 1. Definition of Terms. The following terms when used in the Guarantee mean: (a) the "Assured": the party or parties named as the Assured in Schedule A, or on a supplemental writing executed by the Company. (b) "Land": the Land described or referred to in Schedule A, and improvements affixed thereto which by law constitute real property. The term "Land" does not include any property beyond the lines of the area described or referred to in Schedule A, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways. (c) "Mortgage": mortgage, deed of trust, trust deed, or other security instrument. (d) "Public Records": those records established under California statutes at Date of Guarantee for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge. (e) "Date of Guarantee": the Date of Guarantee set forth in Schedule A. (f) "Amount of Liability": the Amount of Liability as stated in Schedule A. 2. Notice of Claim to be Given by Assured. The Assured shall notify the Company promptly in writing in case knowledge shall come to the Assured of any assertion of facts, or claim of title or interest that is contrary to the assurances set forth in Schedule A and that might cause loss or damage for which the Company may be liable under this Guarantee. If prompt notice shall not be given to the Company, then all liability of the Company shall terminate with regard to the matter or matters for which prompt notice is required; provided, however, that failure to notify the Company shall in no case prejudice the rights of the Assured under this Guarantee unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. 3. No Duty to Defend or Prosecute. The Company shall have no duty to defend or prosecute any action or proceeding to which the Assured is a party, notwithstanding the nature of any allegation in such action or proceeding. 4. Company's Option to Defend or Prosecute Actions; Duty of Assured to Cooperate. Even though the Company has no duty to defend or prosecute as set forth in Paragraph 3 above: (a) The Company shall have the right, at its sole option and cost, to institute and prosecute any action or proceeding, interpose a defense, as limited in Paragraph 4 (b), or to do any other act which in its opinion may be necessary or desirable to establish the correctness of the assurances set forth in Schedule A or to prevent or reduce loss or damage to the Assured. The Company may take any appropriate action under the terms of this Guarantee, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this Guarantee. If the Company shall exercise its rights under this paragraph, it shall do so diligently. (b) If the Company elects to exercise its options as stated in Paragraph 4(a) the Company shall have the right to select counsel of its choice (subject to the right of the Assured to object for reasonable cause) to represent the Assured and shall not be liable for and will not pay the fees of any other counsel, nor will the Company pay any fees, costs or expenses incurred by an Assured in the defense of those causes of action which allege matters not covered by this Guarantee. (c) Whenever the Company shall have brought an action or interposed a defense as permitted by the provisions of this Guarantee, the Company may pursue any litigation to final determination by a court of competent jurisdiction and expressly reserves the right, in its sole discretion, to appeal from an adverse judgment or order. (d) In all cases where this Guarantee permits the Company to prosecute or provide for the defense of any action or proceeding, the Assured shall secure to the Company the right to so prosecute or provide for the defense of any action or proceeding, and all appeals therein, and permit the Company to use, at its option, the name of the Assured for this purpose. Whenever requested by the Company, the Assured, at the Company's expense, shall give the Company all reasonable aid in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or lawful act which in the opinion of the Company may be necessary or desirable to establish the correctness of the assurances set forth in Schedule A or to prevent or reduce loss or damage to the Assured. If the Company is prejudiced by the failure of the Assured to furnish the required cooperation, the Company's obligations to the Assured under the Guarantee shall terminate. 5. Proof of Loss or Damage. (a) In the event the Company is unable to determine the amount of loss or damage, the Company may, at its option, require as a condition of payment that the Assured furnish a signed proof of loss. The proof of loss must describe the defect, lien, encumbrance, or other matter that constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. (b) In addition, the Assured may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reasonable times and places as may be designated by any authorized representative of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Guarantee, which reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the Assured shall grant its permission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All information designated as confidential by the Assured provided to the Company pursuant to this paragraph shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the Assured to submit for examination under oath, produce other reasonably requested information or grant permission to secure reasonably necessary information from third parties as required in the above paragraph, unless prohibited by law or governmental regulation, shall terminate any liability of the Company under this Guarantee to the Assured for that claim. 6. Options to Pay or Otherwise Settle Claims: Termination of Liability. In case of a claim under this Guarantee, the Company shall have the following additional options: CLTA Guarantee Exclusions and Conditions (06-05-14) Page 2 © California Land Title Association. All rights reserved. The use of this Form is restricted to CLTA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Order No. 09202612-920-CMM-CM8 (a) To pay or tender payment of the Amount of Liability together with any costs, attorneys' fees, and expenses incurred by the Assured that were authorized by the Company up to the time of payment or tender of payment and that the Company is obligated to pay. (b) To pay or otherwise settle with the Assured any claim assured against under this Guarantee. In addition, the Company will pay any costs, attorneys' fees, and expenses incurred by the Assured that were authorized by the Company up to the time of payment or tender of payment and that that the Company is obligated to pay; or (c) To pay or otherwise settle with other parties for the loss or damage provided for under this Guarantee, together with any costs, attorneys' fees, and expenses incurred by the Assured that were authorized by the Company up to the time of payment and that the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in 6 (a), (b) or (c) of this paragraph the Company's obligations to the Assured under this Guarantee for the claimed loss or damage, other than the payments required to be made, shall terminate, including any duty to continue any and all litigation initiated by the Company pursuant to Paragraph 4. 7. Limitation of Liability. (a) This Guarantee is a contract of Indemnity against actual monetary loss or damage sustained or incurred by the Assured claimant who has suffered loss or damage by reason of reliance upon the assurances set forth in Schedule A and only to the extent herein described, and subject to the Exclusions From Coverage of this Guarantee. (b) If the Company, or the Assured under the direction of the Company at the Company's expense, removes the alleged defect, lien or, encumbrance or cures any other matter assured against by this Guarantee in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby. (c) In the event of any litigation by the Company or with the Company's consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom. (d) The Company shall not be liable for loss or damage to the Assured for liability voluntarily assumed by the Assured in settling any claim or suit without the prior written consent of the Company. 8. Reduction of Liability or Termination of Liability. All payments under this Guarantee, except payments made for costs, attorneys' fees and expenses pursuant to Paragraph 4 shall reduce the Amount of Liability under this Guarantee pro tanto. 9. Payment of Loss. (a) No payment shall be made without producing this Guarantee for endorsement of the payment unless the Guarantee has been lost or destroyed, in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions, the loss or damage shall be payable within thirty (30) days thereafter. 10. Subrogation Upon Payment or Settlement. Whenever the Company shall have settled and paid a claim under this Guarantee, all right of subrogation shall vest in the Company unaffected by any act of the Assured. The Company shall be subrogated to and be entitled to all rights and remedies which the Assured would have had against any person or property in respect to the claim had this Guarantee not been issued. If requested by the Company, the Assured shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect this right of subrogation. The Assured shall permit the Company to sue, compromise or settle Guarantee No. CA-SFXFC-IMP-81021-1-18-09202612 in the name of the Assured and to use the name of the Assured in any transaction or litigation involving these rights or remedies. If a payment on account of a claim does not fully cover the loss of the Assured the Company shall be subrogated to all rights and remedies of the Assured after the Assured shall have recovered its principal, interest, and costs of collection. 11. Arbitration. Either the Company or the Assured may demand that the claim or controversy shall be submitted to arbitration pursuant to the Title Insurance Arbitration Rules of the American Land Title Association ("Rules"). Except as provided in the Rules, there shall be no joinder or consolidation with claims or controversies of other persons. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Assured arising out of or relating to this Guarantee, any service of the Company in connection with its issuance or the breach of a Guarantee provision, or to any other controversy or claim arising out of the transaction giving rise to this Guarantee. All arbitrable matters when the amount of liability is $2,000,000 or less shall be arbitrated at the option of either the Company or the Assured. All arbitrable matters when the amount of liability is in excess of $2,000,000 shall be arbitrated only when agreed to by both the Company and the Assured. Arbitration pursuant to this Guarantee and under the Rules shall be binding upon the parties. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court of competent jurisdiction. 12. Liability Limited to This Guarantee; Guarantee Entire Contract. (a) This Guarantee together with all endorsements, if any, attached hereto by the Company is the entire Guarantee and contract between the Assured and the Company. In interpreting any provision of this Guarantee, this Guarantee shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, or any action asserting such claim, shall be restricted to this Guarantee. (c) No amendment of or endorsement to this Guarantee can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company. 13. Severability In the event any provision of this Guarantee, in whole or in part, is held invalid or unenforceable under applicable law, the Guarantee shall be deemed not to include that provision or such part held to be invalid, but all other provisions shall remain in full force and effect. 14. Choice of Law; Forum (a) Choice of Law: The Assured acknowledges the Company has underwritten the risks covered by this Guarantee and determined the premium charged therefor in reliance upon the law affecting interests in real property and applicable to the interpretation, rights, remedies, or enforcement of Guaranties of the jurisdiction where the Land is located. Therefore, the court or an arbitrator shall apply the law of the jurisdiction where the Land is located to determine the validity of claims that are adverse to the Assured and to interpret and enforce the terms of this Guarantee. In neither case shall the court or arbitrator apply its conflicts of law principles to determine the applicable law. (b) Choice of Forum: Any litigation or other proceeding brought by the Assured against the Company must be filed only in a state or federal court within the United States of America or its territories having appropriate jurisdiction. 15. Notices, Where Sent. All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this Guarantee and shall be addressed to the Company at Commonwealth Land Title Insurance Company, Attn: Claims Department, P.O. Box 45023, Jacksonville, FL 32232- 5023. CLTA Guarantee Exclusions and Conditions (06-05-14) Page 3 © California Land Title Association. All rights reserved. The use of this Form is restricted to CLTA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Order No. 09202612-920-CMM-CM8 Guarantee No. CA-SFXFC-IMP-81021-1-18-09202612 LITIGATION GUARANTEE SCHEDULE A Order No.: 09202612-920-CMM-CM8 Guarantee No.: CA-SFXFC-IMP-81021-1-18-09202612 Date of Guarantee: February 14, 2020 at 07:30 A.M. 1. Name of Assured: City of Palm Springs 2. The estate or interest in the Land that is the subject of this Guarantee is: A FEE Amount of Liability: $7,300.00 Fee: $396.00 3. This Land referred to in this Guarantee is situated in the State of California, County of RIVERSIDE, and is described as follows: See Exhibit A attached hereto and made a part hereof. 4. This Litigation Guarantee is furnished solely for the purpose of facilitating the filing of an action to Condemnation. It shall not be used or relied upon for any other purpose. 5. ASSURANCES: According to the Public Records as of the Date of Guarantee, a. Title to the estate or interest is vested in: 7-11 Development Company, LLC b. Except for the matters shown in Schedule B, there are no defects, liens, encumbrances or other matters affecting title to the estate or interest in the land shown in Schedule A, which matters are not necessarily shown in the order of their priority. C. The current interest holders claiming some right, title or interest by reason of the matters shown in Part II of Schedule B are as shown therein. The vestee named herein and parties claiming to have some right, title or interest by reason of the matters shown in Part II of Schedule B may be necessary parties defendant in an action, the nature of which is referred to above in paragraph 4. d. The current interest holders claiming some right, title or interest by reason of the matters shown in Part I of Schedule B may also be necessary parties defendant in an action, the nature of which is referred to above in paragraph 4. However, no return address for mailing after recording is shown in Schedule C as to those current interest holders. The return address for mailing after recording, if any, as shown on each document referred to in Part II of Schedule B by specific recording information, and as shown on the document(s) vesting title as shown above in paragraph 5(a), are as shown in Schedule C. 81021 CLTA Guarantee Form No. 1 (06-05-14) Page 1 Litigation Guarantee ©California Land Title Association. All rights reserved. The use of this Form is restricted to CLTA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Order No. 09202612-920-CMM-CM8 Guarantee No. CA-SFXFC-IMP-81021-1-18-092026I EXHIBIT A LEGAL DESCRIPTION All that certain real property situated in the County of Riverside, State of California, described as follows: PARCEL 1, IN THE CITY OF CATHEDRAL CITY, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 8, PAGE 64 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. APN: 677-420-022-4 81021 CLTA Guarantee Form No. 1 (06-05-14) Page 2 Litieation Guarantee © California Land Title Association. All rights reserved. The use of this Form is restricted to CLTA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Order No. 09202612-920-CMM-CM8 SCHEDULE B Defects, liens, encumbrances or other matters affecting title: Part I Guarantee No. CA-SFXFC-IMP-81021-1-18-0920261 A. Property taxes, which are a lien not yet due and payable, including any assessments collected with taxes to be levied for the fiscal year 2020-2021. B. Note: Property taxes, including any personal property taxes and any assessments collected with taxes, are paid. For proration purposes the amounts were: Tax Identification No.: 677-420-022 Fiscal Year: 2019-2020 1 st Installment: $915.02 2nd Installment: $915.02 Exemption: none Code Area: 019-008 C. The lien of supplemental or escaped assessments of property taxes, if any, made pursuant to the provisions of Chapter 3.5 (commencing with Section 75) or Part 2, Chapter 3, Articles 3 and 4, respectively, of the Revenue and Taxation Code of the State of California as a result of the transfer of title to the vestee named in Schedule A or as a result of changes in ownership or new construction occurring prior to Date of Policy. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document: Granted to: Nevada-Califomia Electric Corporation Purpose: public utilities Recording Date: January 16, 1940 Recording No: in Book 445, Page 106 of Official Records Affects: a portion of said land and Recording Date: March 8, 1940 and Recording No: in Book 448, Page 405 of Official Records 2. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document: Granted to: City of Cathedral City Purpose: public highway and public utilities Recording Date: February 10, 1987 Recording No: as Instrument No. 1987-36881 of Official Records Affects: a portion of said land The Land described herein is included within a project area of the Redevelopment Agency shown below, and that proceedings for the redevelopment of said project have been instituted under the Redevelopment Law (such redevelopment to proceed only after the adoption of the Redevelopment Plan) as disclosed by a document. Redevelopment Agency: Cathedral City Redevelopment Project No. 3 Recording Date: July 21, 2003 Recording No: as Instrument No. 2003-542987 of Official Records 81021 CLTA Guarantee Form No. 1 (06-05-14) Page 3 Litieation Guarantee © California Land Title Association. All rights reserved. The use of this Form is restricted to CLTA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Order No. 09202612-920-CMM-CM8 Guarantee No. CA-SFXFC-IMP-81021-1-18-09202612 SCHEDULE B — Part I (Continued) and Recording Date: April 26, 2005 and Recording No: as Instrument No. 2005-0326226 of Official Records 4. The Land described herein is included within a project area of the Redevelopment Agency shown below, and that proceedings for the redevelopment of said project have been instituted under the Redevelopment Law (such redevelopment to proceed only after the adoption of the Redevelopment Plan) as disclosed by a document. Redevelopment Agency: The 2006 Cathedral City Merged Redevelopment Project Recording Date: September 10, 2008 Recording No: as Instrument No. 2008-0496702 of Official Records 81021 CLTA Guarantee Form No. 1 (06-05-14) Page 4 Litieation Guarantee © California Land Title Association. All rights reserved. The use of this Form is restricted to CLTA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Order No. 09202612-920-CMM-CM8 SCHEDULE B Part I1 None 81021 CLTA Guarantee Form No. 1 (06-05-14) Guarantee No. CA-SFXFC-IMP-81021-1-18-0920261. Page 5 Litigation Guarantee © California Land Title Association. All rights reserved. The use of this Form is restricted to CLTA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Order No. 09202612-920-CMM-CM8 SCHEDULE C Addresses 7-11 Development Company, LLC C/O Terrence P. Conner, Esq. Thoits Law, A Professional Corporation 400 Main Street, Suite 250 Los Altos, California 94022 (Record Owner) 7-11 Development Company, LLC C/O 7-Eleven, Inc. PO Box 711 Dallas, TX 75221 (Record Owner) Guarantee No. CA-SFXFC-IMP-81021-1-18-0920261: NOTE NO. 1: Any and all parties known to the plaintiff to have or claim any interest in said land, or whose interest could be ascertained by an inspection of said land or by making inquiry of persons in possession thereof, should also be named as parties defendant. 81021 CLTA Guarantee Form No. 1 (06-05-14) Page 6 Litigation Guarantee © California Land Title Association. All rights reserved. The use of this Form is restricted to CLTA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Order No. 09202612-920-CMM-CM8 Guarantee No. CA-SFXFC-IMP-81021-1-18-09202612 11 3 S n 6� 3� t'�Ywis�Y93elW��ApAA���fWrfRWViB��i�'�OBB �80 �✓� 3� � 9i WW pp pp l i l ' I $_.®w.lt.,_we9Y. �SIQpB SWR BBGFW WLtlWOtl�Btlil 1�IIIli1 11 Iliillr� �111� r"� — _ " _ CD HIM � �rrvrrr �®� r �►� rrrrrr . �M ts OV N�c guQ monsoons■ C. r � a z ffi a � ........... g • B °°°°� sp l 9 uo B E WYBa ` m . o . ^ YR a� 3 g. ABA ,rye Bg goy A9.n.,'��---- In This map/plat is being furnished as an aid in locating the herein described Land in relation to adjoining streets, natural boundaries and other land, and is not a survey of the land depicted. Except to the extent a policy of title insurance is expressly modified by endorsement, if any, the Company does not insure dimensions, distances, location of easements, acreage or other matters shown thereon. Order. 9202612 Page 1 of 1 Requested By: Tim Deventer , Printed: 12)28/2016 3:17 PM Doc: 677-42 MAP ASSESSOR