HomeMy WebLinkAboutA8975 - PINNACLE VIEW LLCRECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, CA 92262
Lo
—
2021 0639335
10/28/2021 12:59 PM Fee: $ 0.00
Page 1 of 8
CountofRiverside
Records
Recorded
Peter Aldana Clerk -Recorder
Assessor-CountIir NUN
_
Space Above This Line For Recorder's Use
PERFORMANCE AGREEMENT
ESA-SP Zone
This Performance Agreement ("Agreement") is entered into this - ` tl� day of
52 , • L by and between Pinnacle View LLC, as amended ("Owner") and the
Ci of Palm Springs, a California charter city ("City").
RECITALS
A. Owner is the fee title owner of that certain real property located at 2277 Morning
Vista 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)
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 the re -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
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 of the 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.
Pinnacle View LLC
71
By:
�L
Name:_ r �� { Ajk,
By:_
Name:
[Signature of Owner(s) must be
properly acknowledged and
notarized]
ACCEPTED BY:
City of Palm Springs, a California charter city
A 817 5
Justi Clifton
City Manager
APPROVED AS TO FORM:
By: (:�:)
Jeff allinger
City of Palm Springs / City Attorney
A ST: Other:
Signer Is Representing:
Clerk
4
1174787.1
ACKNOWLEDGMENT
STATE OF OREGON
COUNTY OF MULTNOMAH
Before me, a Notary Public in and for said County and State, personally appeared
Ed Freeman, who acknowledged that he did sign the foregoing instrument in his authorized
capacity and that the same is his free act and deed.
In Testimony Whereof I have hereunto set my hand and official seal, at Portland Oregon, this
29th day of September, 2021.
l � OFFICIAL STAMP
U vl,� BONNIE ESTOK
I (C I NOTARY PUBLIC - OREG0N
Signature of Notary Public COMMISSION NO.989731
MY COMMISSION EXPIRES JULY 24, 2023--.I
Fl,---
My commission expires on:
ACKNOWLEDGMENT OF INSTRUMENT
(Cal. Civil Code Section 1181)
State of California )
County of Riverside ) SS.
City of Palm Springs )
On ONVft, � , 20V, before me, MONIQUE M. LOMELI, CMC,
CHIEF 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
o day of D MU?% , 20,21
� �PpLMSA4
i2
V to
# NCO �490 ri
p�OgA7Ea'
Signature: cqt 1poaN`P
Monique . omeli, CMC
Chief Deputy City Clerk
City of Palm Springs, California
EXHIBIT "A"
Legal Description of Property
LOT 37 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.
3
1174787.1
I���FORN�
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: 504-390-037
Dated: September 29, 2021
From,
PINNACLE VIEW LLC
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 28th day of October,
2021, 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 28th day of October 2021.
u�
d`THONY J. MC
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
APN: 504-390-030
L
2021.-0639337
10/28/2021 12:59 PM Fee: $ 0.00
Page 1 of 9
Recorded inofficialRecords
County of
Peter Aldana Clerk -Recorder
Assessor -Count y''�kWK1111L 11.'I III
'III 0, IN ���Ii 1'N'iI�I►Ky
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 Indemnification and Covenant Running With the
Land ("Agreement") is made on this ]L41ay ofk��i , 2021, by and
between the CITY OF PALM SPRINGS, a California municipal corporation and charter
city ("Covenantee" or "City") and Pinnacle View LLC, any amendments thereto, the
undersigned property owner ("Covenantor").
RECITALS
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, 2277
Morning Vista Dr, Palm Springs, California, more particularly described on Exhibit "A"
attached hereto and incorporated herein by reference (APN 504-390-037) ("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 Citv 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. Rights and Obligations 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.
5. 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
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]
Page 4 of 7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
ATTEST: CITY OF PALM SPRINGS
ark
APPROVED AS TO FORM:
By:
Jeff Ballirf6er
City of Palm Springs / City Attorney
Page 5 of 7
a municipal corporation
By:
Justin Clifk6n, ICMA-
City of Palm Springs / ity Manager
"City"
RECOMMENDED BY:
By:
Joel Montalvo
City of Palm Springs / City Engineer
APPROYqD AS TO OW ERSHIP &
LEGALSCRIPTIONT
BY:�1 W
Rictofalm
es
City Springs / Ong,eering
Associate
"COVENANTOR"
'�'k.-1'� \j •�!^i �LG
vG •'V^
Signature
Title
[Covenantor Signatures to be Notarized]
ACKNOWLEDGMENT OF INSTRUMENT
(Cal. Civil Code Section 1181)
State of California )
County of Riverside ) SS.
City of Palm Springs )
On ontee A, 2001 before me, MONIQUE M. LOMELI, CMC,
CHIEF 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
day of V �m , 2091
� �QpLMsp�
iZ
# tiC0 4'o i
plORATEa
C'QI/POR��P
Signature: UrA
Monique M. LomelLtVC
Chief Deputy City Clerk
City of Palm Springs, California
ACKNOWLEDGMENT
STATE OF OREGON
COUNTY OF MULTNOMAH
Before me, a Notary Public in and for said County and State, personally appeared
Ed Freeman, who acknowledged that he did sign the foregoing instrument in his authorized
capacity and that the same is his free act and deed.
In Testimony Whereof I have hereunto set my hand and official seal, at Portland Oregon, this
29th day of September, 2021.
OFFICIAL STAMP
BONNIE ESTOK
(, h` NOTARY PUBLIC - OREGON
COMMISSION NO.OB9731
Signature of Notary Public MY COMMISSION EXPIRES JULY 24, 2023
(:)
My commission expires on: )-
20 �-3
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
All that certain real property situated in the County of Riverside, State of California,
described as follows:
LOT 37 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
ppLM sA'
,y^^
i Y•
V N
t���xoeN�
CITY OF PALM SPRINGS
OFFICE OF THE Cl TY 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: 508-390-037
Dated: September 29, 2021
From,
PINNACLE VIEW LLC
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 28th day of October,
2021, 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 28th day of October 2021.
ANITHONY J. C
CITY CLERK "I