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HomeMy WebLinkAboutA8977 - E-4593 GREG AND NANCY HICKEY (APN 504-390-005) PERFORMANCE AGREEMENT AND WQMP2022-0107108 03/04/2022 08:47 AM Fee: $ 0.00 RECORDING REQUESTED BY AND WHEN,RECORDED MAIL TO: City Clerk City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Page 1 of 8 Recorded in Official Records County of Riverside Peter Aldana Assessor -County Clerk -Recorder Space PERFORMANCE AGREEMENT ESA-SP Zone This Performance Agreement ("Agreement") is entered into this 4 day of j�CCrr-)b i •O o2 y and between Gregory P. Hickey and Nancy S. Hickey, Trustees of the Hickey Family Trust Dated June 23, 2005, as amended ("Owner") and the City of Palm Springs, a California charter city ("City"). RECITALS A. Owner is the fee title owner of that certain real property located at 2274 Winter Sun Drive, in the City of Palm Springs, County of Riverside, State of California, more particularly described on Exhibit "A" — Legal Description, attached hereto and incorporated herein by reference ('Property") B. On May 12, 2021, the City Planning Commission approved a Major Architectural Application for the development of a single-family residence on the Property, subject to certain conditions ("Project"). C. The Property is located in the Environmentally Sensitive Area — Specific Plan ("ESA-SP") zone. Pursuant to Section 92.21.1.05(J) of the Palm Springs Zoning Code, prior to the issuance of any permit for grading or construction of any improvement on any property within the ESA-SP zone, the property owner shall enter into an agreement with the City ensuring that should the improvement not be completed as permitted, that the land will be re -naturalized. D. City and Owner desire by this Agreement to meet the requirements imposed by Section 92.21.1.05(J) of the Palm Springs Zoning Code. DECLARATION OF CONDITIONS, COVENANTS, AND RESTRICTIONS 1. Recordation. This Agreement shall be recorded and Owner shall provide a copy of the recorded Agreement to City.. 2. Continuous Work. After commencement of grading or construction of any improvement on the Property, Owner shall cause such work to be diligently pursued to completion of the Project, and shall not abandon the work for a consecutive period of more than one. hundred eighty (180) 1174787.1 days, events of force majeure excepted. Erosion and storm water quality measures shall be kept in working order at all times. 3. Force Majeure. Owner shall not be deemed to have abandoned work on the Project under Section 2, where a delay in work is caused by circumstances beyond the control and without the fault of Owner, including to the extent applicable adverse weather conditions, flood, earthquakes, strikes, lockouts, acts or failures to act of a public agency (including City); required changes to the Project by City, and similar causes; provided, however, that the period of any enforced delay hereunder shall not include any period longer than thirty (30) days prior to City's receipt of a written notice from Owner or its contractor detailing the grounds for Owner's claim to a right to extend its time for performance hereunder. 4. Security to Guarantee Performance. Prior to the issuance of any permit for grading or construction of any improvement on the Property, Owner shall furnish to City a bond, cash deposit, irrevocable letter of credit, assignment of a certificate of deposit, or similar form of security acceptable to City in its sole and absolute discretion in a total amount of Fifty Thousand Dollars ($50,000.00). The Security Instrument will remain in place until released in accordance with the conditions set forth in this Section. In the event that the Security Instrument expires by its terms prior to the satisfaction of the release conditions, then Owner will provide a renewal of the Security Instrument prior to the expiration date. If the City has not received a renewal of the Security Instrument at least ten (10) days prior to the expiration date, then the City will have the right to draw on the entire amount of the Security Instrument and to retain such funds as security until the release conditions have been satisfied. The City will release the Security Instrument upon Owner's written request, provided that either the Project has been completed, or if a default has occurred, that the re -naturalization of the Property has been completed pursuant to the requirements of Section 5. 5. Re -naturalization of Property. If the City finds or determines that a default has occurred in the performance of the work under Section 2, written notice thereof shall be given to the Owner and; when applicable, to the surety on the bond or other security. Such notice shall specify the work to be done in order to re -naturalize the Property (which work may include the removal of any improvements and the restoration of the natural terrain, rock features, and vegetation on the Property to the condition that existed as of the Effective Date), the estimated cost thereof, and the period of time deemed by the City Engineer to be reasonably necessary for the completion. After receipt of such notice, the Owner and, if applicable, the surety, shall within the time specified, cause or require the work to be performed. If the work is not performed, the estimated cost of performing the work shall be demanded from the surety or, if there is no surety, obtained from the security, and the City Engineer shall cause such work to be performed and completed. In the event that the Owner or, if applicable, the surety do not cause or require there -naturalization work to be performed and completed, the City and its agents shall have an exclusive right to entry onto the Property for purposes of completing the work. 6. Remedies Not Exclusive. In any case where this Agreement provides a specific remedy to City for a default by Owner hereunder, such remedy shall be in addition to, and not exclusive of, City's right to pursue any other administrative, legal or equitable remedy to which it may be entitled. 2 1174787.1 L<E .. p .•rim•: � .. : �,! _ �_ :1'• :G';g li iai (_:,:rid- fe :�} .i .r _ :!i! 7: _: i _ .1:3' ,A • ' `aril 7. Amendment or Termination. This Agreement and the conditions, covenants, and restrictions contained herein shall not be amended in any manner or terminated without the prior written approval of City or without the recordation of any such approval by City. 8. Binding Effect. This Agreement and the conditions, covenants, and restrictions contained herein are and shall be deemed to be covenants running with the land and shall bind and inure to the benefit of the respective heirs, successors and assigns of the parties hereto. 9. City Enforcement. The City shall have the right -to enforce this Agreement by any legal or equitable means against Owner or any person in actual possession of the Property who directly or through any agent violates the terms hereof. All obligations of Owner under this Agreement shall inure solely: to the benefit of City and there are no third party beneficiaries of said obligations. 10. Captions. Captions in this Agreement are inserted for convenience and reference only and do not define, describe or limit the scope of the intent of this Agreement or any ofthe terms hereof. 11. Draft Terms and Conditions. All drafts will contain the following statement: "The undersigned, an authorized officer of the City of Palm Springs ("City"), hereby certifies that the Borrower has failed to perform its contractual obligations with City and requests a draw in the amount of $50,000.00." Other than the copy of this Letter of Credit and any Permitted Transferee documentation, no additional documentation or verification is required to be provided with the draft and all drafts are payable to the City on demand. 3 1174787.1 IN WITNESS WHEREOF, the parties hereto have executed this Performance Agreement as of the Effective Date. Gregory P. Hickey and Nancy Hickey, Trustees of the Hickey Family Trust, Dated June 23, 2005, As Amended ' By:.� Name: r 14 � ck 1 Trustee By. I-bduq— Name: N Trustee [Signature of Owner(s) must be properly acknowledged and notarized] ACCEPTED BY: City of Palm Springs, a California charter city By: A 8aa3 Justin Tifton City Manager APPROVED AS TO FORM: By: �2 Jelin er City of Palm Springs / City Attorney Other: Signer Is Representing: Ell 1174787.1 ACKNOWLEDGMENT 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 County of Los Angeles On 0/ ?, y — %o2 + before me, Abraham Kanaan "A Notary Public" (insert name and title of the officer) personally appeared ✓ rClL ' AJ101 who proved to me on the base of satisfacto evidence to be tbA person(s) whose name(s).Vlare subscribeL4o the within instrument and acknowledged to me that he/sh�eeUxecuted the same in his/heft uthorized capacity(ies), and that by his/he eir gnature(s on the instrument the persons , or the entity upon behalf of which the persons acted, executed the instrument. 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 ABRAHAM NANAAN Notary Public - California 2 = t Los Angeles County t _ Commission Y 2371613 My Comm. Expires Aug 19. 2025 (Seal) ACKNOWLEDGMENT OF INSTRUMENT (Cal. Civil Code Section 1181) State of California County of Riverside ) SS. City of Palm Springs ) On f ch'fukA,C�,I �a , 202; before me, BRENT RASI, DEPUTY CITY CLERK, CITY OF PALM SPRINGS, CALIFORNIA, personally appeared JUSTIN CLIFTON, who I personally know is the CITY MANAGER of the CITY OF PALM SPRINGS whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his official and authorized capacity on behalf of the City of Palm Springs, a California Charter City. 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 the official seal of the City of Palm Springs, California, this L day of re bra 2029 Signature: Brent Rasi, Deputy City Clerk City of Palm Springs, California Legal Description of Property LOT 5 OF TRACT MAP 35540, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 443, PAGE 65 THROUGH 78 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. 3 uraE:iA1 0 fP � �q_<IFORNV� CITY OF PALM SPRINGS OFFICE OF THE CITY CLERK 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 (760) 323-8204 CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by PERFORMANCE AGREEMENT ESA-SP ZONE Real property in the City of Palm Springs, County of Riverside, State of California, as described: Land described in Exhibit "A" APN: 504-390-005 Dated: December 4, 2021 From, GREGORY P. HICKEY AND NANCY S. HICKEY, TRUSTEES OF THE HICKEY FAMILY TRUST DATED JUNE 23, 2005 Grantor, to the City of Palm Springs, a municipal corporation and charter city, Grantee, is hereby accepted by the City Clerk of said City of Palm Springs, on this 15t day of March, 2022, pursuant to authority granted by the City Council of said City, by Resolution No. 20255 made on the 16th day of January, 2002, and the Grantee consents to recordation thereof by the City Clerk, its duly authorized officer. Dated at Palm Springs, California, this 1st day of March 2022. BRENT RASI, DEPUTY CITY CLERK, RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Engineer City of Palm Springs 3200 East Tahquitz Canyon Way Palm -Springs, California 92262 2022-0107114 03/04/2022 08:47 AM Fee: $ 0.00 Page 1 of 9 Recorded in Official Records County of Riverside Peter Aldana Assessor -County Clerk -Recorder Off+ b APN: 504-390-005 Space Above This Line For Recorder's Use Only COVENANT AND AGREEMENT REGARDING WATER QUALITY MANAGEMENT PLAN BMP, CONSENT TO INSPECT, AND INDEMNIFICATION This Agreement Regarding Water Quality Management Plan Best Management Practices, Consent to Inspect, and Indee nificatio and Covenant Running With the Land ("Agreement") is made on this !!`day of 2i� 2021, by and between the CITY OF PALM SPRINGS, a California municipal corporation and charter city ("Covenantee" or "City") and Greaory P. Hickev and Nancv S. Hickev,_ Trustees of owner RECITALS undersigned property A. Covenantor is the owner of that certain real property located in the City of Palm Springs, County of Riverside, State of California, commonly known as, 2274 Winter Sun Drive, Palm Springs, California, more particularly described on Exhibit "A"A" attached hereto and incorporated herein by reference (APN 504-390-005) ("Property"). City has fee or easement interests in various streets, sidewalks and other property within the City and is responsible for the planning and development.of land within the City in such a manner as to provide for the health, safety and welfare of the residents of the City. B. The City is the owner of interests in that certain real property within the City of Palm Springs, County of Riverside, State of California, containing storm drains, pipelines, and related appurtenances constituting the City's municipal separate storm sewer system (the City's "Storm Drain System"). C. Covenantor intends to develop, improve, and/or use the Property in such a way that approval of the City for such development, improvement, and/or use is required pursuant to the applicable laws. D. As a condition for said approval by the City, City required Covenantor, and Covenantor desires to, restrict the use of Property according to the conditions, covenants, equitable servitudes, and restrictions contained herein for the express benefit of the City's Storm Drain System. NOW, THEREFORE, incorporating the foregoing Recitals and in consideration thereof, in consideration of the covenants and conditions contained herein, and for other good and valuable consideration, the receipt . and sufficiency of which is hereby acknowledged, and expressly for the benefit of, and to bind, their successors in interest, the parties hereto agree as follows: AGREEMENT 1. Water Quality Management Plan ('WQMP") for Best Management Practices "BMP" Covenantor, and each successive owner of an interest in all or any part of the Property ("Owner(s)") shall, throughout the period of their respective ownership, implement, and fund implementation of the WQMP required for development of the Property, and shall operate and maintain the BMP described therein including, but not limited to, the methods and standards set forth in Section 8.70.100. of the City's Municipal Code, as that Section may be amended from time to time and which is incorporated herein by this reference. The current WQMP, as it may be amended from time to time according to its terms, which is on file with the City of Palm Springs Engineering Division, is incorporated herein by this reference. 2. Compliance with City of Palm Springs Municipal Code and Consent to Inspect Owners shall use and maintain the Property in full compliance with the provisions of Chapter 8.70 of the Palm Springs Municipal Code, as it may be amended from time to time, which is incorporated herein by this reference. Owners hereby consent to inspection of the Property pursuant to Section 8.70.140 of the City's Municipal Code by an inspector authorized by the City Manager, the City Engineer„ or their designee, for the purpose for verifying compliance with the provisions of this Agreement, the BMP of the WQMP, and the City's Municipal Code. 3. Indemnification Owners agree to indemnify, defend, and hold harmless the City, its elected officers, employees, agents, and contractors from and against any and all liability, expense, including costs and reasonable legal fees, and claims of damage of any nature whatsoever including, but not limited to, death, bodily injury, personal injury, or property damage arising from or connected with the City inspection of the Property except where such liability, expense, or claim for damage results from the sole negligence or willful misconduct of the City. 4. Riahts and Obliqations Run With the Land Unless terminated in accordance with Paragraph 5, below, or by law, the rights and obligations of the parties hereunder shall constitute covenants, benefits, burdens, conditions, equitable servitudes, and restrictions which run with the land in perpetuity and which shall be binding upon, and inure to the benefit of, each Owner during its respective period of ownership of all or any part of the Property. 6. Termination of Agreement Upon Termination of WQMP This Agreement and the conditions, covenants, equitable servitudes, and restrictions set forth herein shall terminate upon termination of the,WQMP applicable to the Property. in accordance with its terms. Upon termination of the WQMP applicable to the Property, the Owner may request that the City execute a recordable document approved by the City approving and acknowledging termination of this Agreement. A recorded document duly executed and acknowledged by the City Engineer of City, or his or her designee, approving termination of this Agreement shall be conclusive evidence of such termination. 6. Enforcement The City may, but shall not be obligated to, enforce this Agreement by a proceeding at -law or in equity against any person or persons violating or attempting to violate any condition, covenant, equitable servitude, or restriction provided for herein, either to restrain such violation or to recover damages. The City may also enforce this Agreement pursuant to Section 8.70.140 of the City's Municipal Code, which enforcement remedies are incorporated herein by this reference. 7. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements and understandings with respect to the subject matter hereof, whether oral or written. Page 3 of 7 CIO' 8. Severability If any part of this Agreement is declared by a final decision of a court of competent jurisdiction to be invalid for any reason, such shall not affect the validity of the rest of the Agreement. The other parts of this Agreement shall remain in effect as if this Agreement had been executed without the invalid part. The parties declare that they intend and desire that the remaining parts of this Agreement continue to be effective without any part or parts that have been declared invalid. 9. Counterparts. This Agreement may be executed in counterparts, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original, and all such counterparts together shall constitute one and the same instrument. 10. Attorneys' Fees. If any party files an action or brings any proceeding against the other arising from this Agreement, the prevailing. party shall be entitled to recover as an element of its costs of suit, and not as damages, reasonable attorneys' fees and costs to be fixed by the court. A party not entitled to recover its costs shall not recover attorneys' fees. No sum for attorneys' fees shall be included in calculating the amount of a judgment for purposes of deciding whether a party is entitled to its costs or attorneys' fees. 11. Amendment. No modification, amendment, addition to, or alteration of the terms of this Agreement whether written or verbal, shall be valid unless made in writing, formally approved and executed by the City and the current Owner(s) of the Property, and duly recorded. 12. Authority of Signatories to Agreement. Each person executing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement on behalf of the parties for which execution is made. Each party represents and warrants to the other that the execution of this Agreement and the {performance of such party's obligations hereunder have been duly authorized and that the agreement is a valid and legal agreement binding on such_party and enforceable in accordance with its terms. (SIGNATURES ON FOLLOWING PAGE] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above. Page 4 of 7 APPROVED AS TO FORM: By. Jeff B Iling r City of Palm Springs / City Attorney CITY OF PALM SPRINGS, a municipal corporation By: Justin Clifidn, ICMA-C City of Palm Springs / City Manager "City" RECOMMENDED BY: IOW��/fwi��s.'! Joel JfAontalvo City of Palm Springs / City Engineer APPROVED AS TO OWNERSHIP & By: ,.mow i Rick Mint res City of P Im Springs / Associate "COVENANTOR" Gregory P. Hickey Signature Title "COVENANTOR" Nancy Hickey Signature -Frus few Title A = [Covenantor Signature to be Notarized] Page 5 or7 ACKNOWLEDGMENT 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 County of Los Angeles On /1 CF-C 4 — Z' before me, Abraham Kanaan "A Notary Public" y /n� ////,, (insert name and �� title of the officer) personally appeared (fJ� !riG Anv 6 I- Lieq who proved to me on the basi f satisfactory evidence to be fKe person( ose name(s) iWare subscrib to the within instrument and acknowledged to hat helsh hey xecuted the same in his/her their uthonzed capacity(ies), and that by his/h r/their ignature(s on the instrument the person or the entity upon behalf of which the person cted, executed the instrument. 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 (Seal) a" °' •. ABRAHAM NANAAN Notary Public - California �_ ` .•L• 5 Los Angeles County Commission A 23716 r'• •�•'• `my Comm. Expires Aug 19, 2025 ACKNOWLEDGMENT OF INSTRUMENT (Cal. Civil Code Section 1181) State of California ) County of Riverside ) SS. City of Palm Springs ) On D 2022 before me, BRENT' RASI, DEPUTY CITY CLERK, CITY OF PALM SPRINGS, CALIFORNIA, personally appeared JUSTIN CLIFTON, who I personally know is the CITY MANAGER of the CITY OF PALM SPRINGS whose name is subscribed to the within instrument and -acknowledged to me that he executed the same in his official and authorized capacity on behalf of the City of Palm Springs, a California Charter City. 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 the official seal of the City of Palm Springs, California, this Z 2 day of rGlirHa r 20 Lz Signature:/ Brent Rasi, Deputy City Clerk City of Palm Springs, California EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY All that certain real property situated in the County of Riverside, State of California, described as follows: LOT 5 OF TRACT NO.35540, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS FILED IN BOOK 443, PAGES 65 THROUGH 78 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Page 7 of 7 V hpALM O*1 ��4 F010 CITY OF PALM SPRINGS OFFICE OF THE CITY CLERK 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 (760) 323-8204 CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by Water Quality Management Plan BMP Covenant Real property in the City of Palm Springs, County of Riverside, State of California, as described: Land described in Exhibit "A" APN: 504-390-005 Dated: December 4, 2021 From, GREGORY P. HICKEY AND NANCY S. HICKEY, TRUSTEES OF THE HICKEY FAMILY TRUST DATED JUNE 23, 2005 Grantor, to the City of Palm Springs, a municipal corporation and charter city, Grantee, is hereby accepted by the City Clerk of said City of Palm Springs, on this 1st day of March, 2022, pursuant to authority granted by the City Council of said City, by Resolution No. 20255 made on the 16th day of January, 2002, and the Grantee consents to recordation thereof by the City Clerk, its duly authorized officer. Dated at Palm Springs, California, this 1 st day of March 2022. &U01 ter, BRENT RASI, DEPUTY CITY CLERK City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263 Memo To: Anthony Mejia, City Clerk From: Rick Minjares, Engineering Associate Date: January 5, 2022 Re: E-4593, 2274 Winter Sun Drive Attached please find the executed WQMP Covenant and Performance Agreement from Greg and Nancy Hickey, (APN 504-390-005) in the City of Palm Springs. Please accept, execute and prepare a Letter of Acceptance to the Riverside County Recorder for recordation. If you have any questions, do not hesitate to call me. Thank you, Rick Minjares, Engineering Associate City of Palm Springs Engineering Dept. (760) 323-8253 X8741. IV FIRST REPUBLIC BANK It's a privilege to serve you' IRREVOCABLE STANDBY LETTER OF CREDIT Letter of Credit No.: 210027863-24654401 Dated: September 15, 2021 City of Palm Springs ("Beneficiary") 3200 Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager - Justin Clifton Ladies and Gentlemen At the request and for the account of Gregory P. Hickey and Nancy S. Hickey ("Applicant"), we hereby establish in your favor our irrevocable standby letter of credit in an aggregate amount not to exceed Fifty Thousand and 00/100 US Dollars (US $50,000.00) available for payment by your draft upon presentation to us of the following: 1. This original letter of credit together with all executed written amendments hereto. 2. An original signed and dated drawing certificate from you addressed to us in the form annexed hereto as Exhibit A (after complying with all instructions in brackets contained therein). Drawing certificates shall be drawn on us and presented to us at the Letter of Credit Office (as hereinafter defined) at or before 5:00 p.m., local time of the Letter of Credit Office, on a Business Day (as hereinafter defined) occurring not later than the Expiration Date (as hereinafter defined). As used herein: "Letter of Credit Office" means our office located at 1888 Century Park East, 2nd Floor, Los Angeles, CA 90067, Attn: Business Banking; and "Business Day" means any day other than a Saturday, Sunday or other day on which the Letter of Credit Office is not open for business or on which commercial banks are authorized or required to dose, or are in fact closed, under the laws of California. All drawing certificates drawn under this letter of credit shall contain the above -referenced letter of credit number. We agree that all drawing certificates drawn on us under and in compliance with the terms of this letter of credit will be duly honored by us not later than three (3) Business Days following presentation to the Letter of Credit Office. Our obligation hereunder is our individual obligation and is not contingent upon reimbursement. We will pay all drawings under this Letter of Credit with our own funds and not with funds derived from Applicant or a subsidiary or affiliate thereof. This standby letter of credit expires on September 15, 2022 (the date on which this standby letter of credit expires is referred to herein as the "Expiration Date"); however, the Expiration Date shall automatically be extended, without the necessity of any amendment to this letter of credit, to September 15th in each succeeding calendar year up to but not beyond December 31, 2023, unless you received from us written notice no later than thirty (30) days before the then existing Expiration Date that we have elected not to renew this letter of credit (the "Non -Renewal Notice"). The Non -Renewal Notice shall be sent to you by a nationally -recognized overnight courier service to the address set forth above or at such other address as you may have noted us in writing. Any Non -Renewal Notice shall be deemed received by you on the date of confirmed delivery to you or confirmed refusal by you to accept delivery. Partial drawings under this letter of credit are not permitted. This letter of credit may be reduced at the written request of the Beneficiary. Upon our receipt of each reduction certificate in the form annexed hereto as Exhibit B (after complying with all instructions in brackets contained therein.) the amount of this letter of credit shall be automatically and permanently reduced, without amendment, by the amount of the reduction requested. This letter of credit is not transferable. Standard fees apply for each reduction, transfer, renewal and/or partial draw of this letter of credit (in each of the foregoing circumstances, solely to the extent expressly permitted hereby), which fees are payable by Applicant. Applicant's failure to pay such fees shall not delay or impede any of the above actions. We may accept documents which appear on their face to be in order without responsibility for further investigation (even as regards any purported default by Applicant) regardless of any notice or information to the contrary. San Francisco • Palo Alto • Los Angela • Santa Barbara • Newport Beach • San Diego • Portland • Palm Beach • Boston • Greenwich . New York III PINE STREET, SAN FRANCISCO, CALIFORNIA 94111, TEL (415) 392-1400 OR (800) 392-1400, FAX (415) 392-1413 FIRSTREPUBLIC.COM • MEMBER FDIC AND EQUAL HOUSING LENDER I� This letter of credit is subject to and governed by the International Standby Practices 1998 of the International Chamber of Commerce, Publication 590 or to any subsequent version of such publication as in effect on the date hereof ("ISP98") and, as to matters not covered therein and not inconsistent therewith, the internal laws of California, including, without limitation, the Uniform Commercial Code as from time to time in effect in such jurisdiction. First Repuo"kk By: �/ 1 / . J I - -- Name: Rosetta Cnllinc gtawnct Director Title: Exhibit A to First Republic Bank Irrevocable Standby Letter of Credit No. [EXHIBIT TO BE TYPED ON BENEFICIARY'S LETTERHEAD] IRREVOCABLE STANDBY LETTER OF CREDIT DRAWING CERTIFICATE First Republic Bank 1888 Century Park East, 2"d Floor Los Angeles, CA 90067 Attn: Business Banking Re: Irrevocable Standby Letter of Credit No. [insert Letter of Credit No.], dated [insert date], issued by First Republic Bank (the "Letter of Credit") for the account of [insert name of applicant] ("Applicant') Ladies and Gentlemen: The undersigned, being the beneficiary ("Beneficiary") (or a duly authorized representative thereof] of the Letter of Credit, hereby: (a) demands payment from you in the amount of [insert amount in words] US Dollars (US$[Insert amount in figures]) under the Letter of Credit, and (b) certifies to you that the amount demanded represents funds due and owing from Applicant to Beneficiary under one or more transactions and/or agreements/leases with Applicant. Each capitalized term used but not otherwise defined herein has the meaning ascribed thereto in the Letter of Credit. IN WITNESS WHEREOF, the undersigned has executed and delivered this original certificate as of [insert date]. Very truly yours, [insert name of Beneficiary and date of this Drawing Certificate] By: [insert signature] Name: [insert name] Title: [insert title] Date: [insert date] Exhibit B to First Republic Bank Irrevocable Standby Letter of Credit No. [EXHIBIT TO BE TYPED ON BENEFICIARY'S LETTERHEAD] IRREVOCABLE STANDBY LETTER OF CREDIT REDUCTION CERTIFICATE First Republic Bank 1888 Century Park East, 206 Floor Los Angeles, CA 90067 Attn: Business Banking Re: Irrevocable Standby Letter of Credit No. [insert Letter of Credit No.], dated [insert date], issued by First Republic Bank (the "Letter of Credit") for the account of [insert name of applicant] ("Applicant"), with the current amount available for drawing thereunder being [Insert In words current amount available for drawing under the Letter of Credit] US Dollars (US$[insert in figures current amount available for drawing under the Letter of Credit]). Ladies and Gentlemen: The undersigned, being the beneficiary ('Beneficiary") (or a duly authorized representative thereof) of the Letter of Credit, hereby unconditionally and irrevocably requests that you decrease the amount available for drawing under the Letter of Credit by [insert amount in words] US Dollars (US$[insert amount in figures]), resulting in the amount available for drawing under the Letter of Credit to be reduced to [insert in words reduced amount available for drawing under the Letter of Credit] US Dollars (US$[insert in figures reduced amount available for drawing under the Letter of Credit]). IN WITNESS WHEREOF, the undersigned has executed and delivered this original certificate as of the [insert date]. Very truly yours, [insert name of Beneficiary and date of this Reduction Certificate] By: [insert signature] Name: [Insert name] Title: [insert title] Date: [insert date] Requested reduction hereby acknowledged: FIRST REPUBLIC BANK By: Name: Title: Date.