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HomeMy WebLinkAboutA8971 - ANZA PS, LLCV RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Engineer City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 APN: 2021-0608037 10/14/2021 12:25 PM Fee: $ 0.00 Page 1 of 8 Recorded in Official Records County of Riverside Peter Aldana Assessor -County Clerk -Recorder INI � LGffi"In'hlil�':kll 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 1st day of September, 2021, by and between the CITY OF PALM SPRINGS, a California municipal corporation and charter city ("Covenantee" or "City") and Anza PS, LLC, 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, 3573 N. Anza Rd., Palm Springs, California 92262, more particularly described on Exhibit "A" attached hereto and incorporated herein by reference (APN 669-452-068) ("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. 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] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above. Page 4of7 ATTEST: CITY OF PALM SPRINGS, a municipal corporation By. By: A ony J. Meji , M Justin fton, ICMA- M City of Palm Sp ng / City Clerk City o alm Springs / City Manager "City" APPROVED AS TO FORM: RECOMMENDED BY: By: By: Jeff lin e City of Palm Springs / City Attorney Jo:I Montalvo City of Palm Springs / City Engineer APPRO ED AS TO OWNERSHIP & Aw i LEGA ESCRIPTION By: Rick Mi ares City of aim Springs / E gi eering "COVENANTOR" A//7za- P-5 LZ- Signature I Title / 0 [Covenantor Signature to be Notarized] Page 5 of 7 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 A ) r � 1►" t v1r 1^ d � n., �n �a r,•, i rr n� 3 . � � ( ti f,..,.... , V "F� ,VA C . 1., It &t�. � V `� h� mA (;, (ins,drt name and title of the officer) personally appeared Q U'F1% who proved to me on the basis of satisfactory evidence to be the person(} whose name() is/aire subscribed to the within instrument and acknowledged to me that he/sheAhey executed the same in his/herftbeir authorized capacity(iee), and that by his/heftheif signature() on the instrument the person(), or the entity upon behalf of which the person() 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 *MY VIRGINIA C. ENRIQUE2 Notary Public - California Los Angeles County Commission of2356278 Comm. Expires May 3, 2025 (Seal) EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY All that certain real property situated in the County of Riverside, State of California, described as follows: LOTS 29 AND 30 OF WRIGHT AND LEONARD TRACT, IN THE CITY OF PALM SPRINGS COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 23 PAGE 83 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO KNOWN AS: BEING A PARCEL OF LAND OVER LOTS 29 AND 30 OF THE WRIGHT AND LEONARD TRACT, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 23, PAGE 83 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. MORE PARTICULARY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 29; THENCE NORTHERLY ALONG THE EAST LINE OF LOTS 29 AND 30, NORTH 00° 08' 20" EAST A DISTANCE OF 150.00 FEET TO THE NORTHEAST CORNER OF SAID LOT 30; THENCE WESTERLY ALONG THE NORTH LINE OF SAID LOT 30, NORTH 89° 40' 00" WEST A THENCE SOUTHERLY, ALONG THE WEST LINE OF SAID LOTS 29 DISTANCE OF 100.00 FEET TO THE NORTHWEST CORNER OF SAID LOT 30; AND 30, SOUTH 00° 08' 20" WEST, A DISTANCE OF 150.00 FEET TO THE SOUTHWEST CORNER OF SAID LOT 29; THENCE EASTERLY ALONG THE SOUTH LINCE OF SAID LOT 29, SOUTH 890 40' 00" EAST A DISTANCE OF 100.00 FEET TO THE TRUE POINT OF BEGINNING. Page 7 of 7 F0 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: 669-452-068 Dated: September 1, 2021 From, Anza PS, 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 13th 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 13t" day of October 2021. � Aft() , LOMELI, CIVIC CHIEF PUTY CITY CLERK FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF PALM SPRINGS PO Box 2743 Palm Springs, CA 92263-2743 Attn: City Clerk Filing Fee Exempt Per Government Code 6103 P 2021-0608038 10/14/2021 12:25 PM Fee: $ 0.00 Page 1 of 9 Recorded in Official Records County of Riverside Peter Aldana Assessor -County Clerk -Recorder (For Recorder's Use Only) DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO PARTICIPATE IN DISTRICT FOR UTILITY UNDERGROUNDING UPON NOTICE (COMMERCIAL BUILDING) THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO PARTICIPATE IN DISTRICT FOR UTILITY UNDE GROUNDI G UPON NOTICE ("Declaration") is entered into this day of . , 2021, by and between Anza PS, LLC, a California Limited Liability Co any ("Declarants"), whose address is 201 Wilshire Blvd, 2"d floor, Santa Monica, CA 90401, and the CITY OF PALM SPRINGS, a municipal corporation ("City"), whose address is PO Box 2743, 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92263, Attn: City Clerk. A. Declarants are the owners of that certain real property located in the City of Palm Springs, County of Riverside, State of California, commonly known as 3573 Anza Road, Palm Springs, California 92264, more particularly described on Exhibit "A" attached hereto and incorporated herein by reference (APN 669-452-068) ("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. That portion of the City's interest in real property most directly affected by this Agreement is the public utility easement along the West property line ("Public Parcel"). B. Declarants desire to obtain building permit(s) and other City approvals to construct a commercial building upon the Property ("City Approval"). Section 8.04.402 of the Municipal Code of the City requires, as a condition precedent to the approval of the City Approval, that Declarants underground the utilities abutting or transecting the Property ("Improvements"). Declarants desire to defer the construction of the Improvements and, pursuant to Section 8.04.402 of the Municipal Code of the City, the Director, Department of Public Works/City Engineer has determined that the construction of the Improvements can be deferred on the terms more particularly set forth herein. NOW THEREFORE, the Declarants declare, covenant and agree, by and for themselves, their heirs, executors and assigns, and all persons claiming under or through it that the Property shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied subject to the covenants and restrictions hereinafter set forth, which covenants are established expressly and exclusively for the use and benefit of the City and the Public Parcel. 1.0 Right of City to Establish District to Construct Improvements. The City may, at its sole discretion, elect to construct the Improvements, either alone or as part of a larger project, through the establishment of an improvement district, assessment district, benefit area, or any other lawful plan or procedure for the construction and financing of public improvements ("District"). If the City elects to establish a District, Declarants hereby agree to join the District and pay its proportionate share of the cost of constructing the Improvements. Further, Declarants hereby waive their right to protest the formation of the District or the imposition of an assessment under the Special Assessment Investigation, Limitation and Majority Protest Act of 1931, California Streets and Highways Code Sections 2800 et seg. or any other procedure for the establishment of a District and/or the implementation of an assessment. 2.0 Enforcement. In the event of any violation or threatened violation of any of the provisions of this Agreement, then in addition to, but not in lieu of, any of the rights or remedies the City may have to enforce the provisions hereof, the City shall have the right (i) to enforce the provisions hereof as a party hereto and as an owner of the Public Parcel, (ii) to withhold or revoke, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the Property or any part thereof or interests therein as to the violating person or one threatening violation and (iii) to obtain from a court of competent jurisdiction an injunction against said violation or threatened violation. 3.0 Covenants to Run With the Land. 3.1 Covenants Running With the Land. This Declaration is designed to create equitable servitudes and covenants appurtenant to the Public Parcel and running with the Property. Declarants hereby declare that all of the Property shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the covenants, conditions, restrictions and equitable servitudes "set forth herein", all of which are for the purposes of uniformly enhancing or protecting the value, attractiveness and desirability of the Property and the Public Parcel. The covenants, conditions, restrictions, reservations, and equitable servitudes "set forth herein" shall run with the Property and shall be binding upon all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns; shall inure to the benefit of every portion of the Public Parcel and any interest therein; shall inure to the benefit of the City and its successors and assigns and successors in interest; shall be binding upon the Declarants, its successors and assigns and successors in interest; and may be enforced by the City. 3.2 Agreement Among Declarants, and City. In exchange for granting of the City Approval by the City, the Declarants hereby agree to hold, sell and convey the Property subject to the covenants, conditions, restrictions and reservations of this Declaration. Declarants also grant to the City the right and power to enforce the covenants, conditions, restrictions and reservations "set forth herein" against the Declarants and all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns. 4.0 Miscellaneous. 4.1 Term. The covenants, conditions and restrictions contained in this Declaration shall remain in effect until the Improvements are constructed. 4.2 Modification. This Declaration may not be modified, terminated or rescinded, in whole or in part, except by a written instrument duly executed and acknowledged by the parties hereto, their successors or assigns and duly recorded in the Office of the County Recorder, County of Riverside. 4.3 Governing Law. This Declaration shall be governed by and construed in accordance with the laws of the State of California. 4.4 Severability. The invalidity of or inability to enforce any provision of this Declaration with respect to a particular party or set of circumstances shall not in any way affect the validity and enforceability of any other provision hereof, or the same provision when implied to another party or to a different set of circumstances. 4.5 Notices. Any notice to be given under this Declaration shall be given by personal delivery or by depositing the same in the United States Mail, certified or registered, postage prepaid, to the address set forth on the first page of this Declaration. Any notice delivered personally shall be effective upon delivery. Any notice given by mail as above provided shall be effective forty-eight (48) hours after deposit in the mails. Any party may change address for notice by giving written notice of such change to the other party. 4.6 Attorneys' Fees. In any action between the parties seeking enforcement of any of the terms and provisions of this Declaration, the prevailing party in such action shall be awarded, in addition to any damages, injunctive or other relief, its reasonable costs and expenses, including attorneys' fees. 4.7 Counterparts. This Declaration may be executed in any number of counterparts each of which shall be an original but all of which shall constitute one and the same document. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. Anza PS, LLC A California Limited Liability Company SIGNED IN COUNii'ERMU Shaoul J Levy, Manager "Declarants" (DECLARANTS' SIGNATURES MUST BE NOTARIZED) ATTEST: By A ony J. Me a, M C City of Palm S rings / City Clerk APPROVED AS TO FORM: By: Q 47D ff a in r City of Palm Springs / City Attorney CITY OF PALM SPRINGS, a municipal corporation By: %"& t* . Justin on, ICMA- M City of Palm Springs / City Manager "City" RECOMMENDED BY: By: J6el Montalvo ,City of Palm Springs / City Engineer APPRO,WD AS TO OWNERSHIP & LEGA4 DESCRIPTION) By• Rick Mihjares City of 'Palm Springsi% E Associate l NOTARY FORMS ON NEXT PAGE ring IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. Anza PS, LLC A California Limited Liability Company By: �J Y - Shaoul J Levy, Manager (DECLARANTS' SIGNATURES MUST BE NOTARIZED) ATTEST: t SIGNr"D IN COUNTERPART By: Anthony J. Mejia, MMC City of Palm Springs / City Clerk APPROVED AS TO FORM. By: SIGNED IN COUN 1PPA Jeff Ballinger City of Palm Springs / City Attorney "Declarants" CITY OF PALM SPRINGS, a municipal corporation - SIGNED IN COUNTERPART By: David H. Ready City of Palm Springs / City Manager "City" RECOMMENDED BY: By: SIGNED IN COUNTERPART Marcus Fuller City of Palm Springs / Assistant City Manager / City Engineer APPROVED AS TO OWNERSHIP & LEGAL DESCRIPTION: • By: SIGNED IN COUNTERPART Rick Minjares City of Palm Springs / Engineering Associate NOTARY FORMS ON NEXT PAGE 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 August 9, 2021 before me, personally appeared Shaoul 1. Levy Virginia C. Enriquez, Notary Public (insert name and title of the officer) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Warn_ _ subscribed to the within instrument and acknowledged to me that he/skyey executed the same in his/hwAheir authorized capacity(ies), and that by his/hef#hc* signature(s) on the instrument the person(o, or the entity upon behalf of which the person* 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 _ (Seal) VIRGINIA C. ENRIQUEZ Notary Public - California Z Los Angeles County 9 Commission k 2356278 Y •�` My Comm. Expires May 3, 2025 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY PARCEL A OF PARCEL MERGER PM 17-06 AS DISCLOSED BY PARCEL MERGER GRANT DEED RECORDED MARCH 7, 2018 AS INSTRUMENT NO. 2018-0086678, OF OFFICIAL RECORDS, MORE FULLY DESCRIBED AS FOLLOWS: BEING A PARCEL OF LAND OVER LOTS 29 AND 30 OF WRIGHT AND LEONARD TRACT, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 23, PAGE 83 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 29; THENCE NORTHERLY ALONG THE EAST LINE OF LOTS 29 AND 30, NORTH 000 08' 20" EAST A DISTANCE OF 150.00 FEET TO THE NORTHEAST CORNER OF SAID LOT 30; THENCE WESTERLY ALONG THE NORTH LINE OF SAID LOT 30, NORTH 890 40, 00" WEST A DISTANCE OF 100.00 FEET TO THE NORTHWEST CORNER OF SAID LOT 30; THENCE SOUTHERLY ALONG THE WEST LINE OF SAID LOTS 29 AND 30, SOUTH 000 08' 20" WEST A DISTANCE OF 150.00 FEET TO THE SOUTHWEST CORNER OF SAID LOT 29; THENCE EASTERLY ALONG THE SOUTH LINE OF SAID LOT 29, SOUTH 890 40' 00" EAST A DISTANCE 100.00 FEET TO THE TRUE POINT OF BEGINNING. A `M * SAT ,y 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 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO PARTICIPATE IN DISTRICT FOR UTILITY UNDERGROUNDING UPON NOTICE (COMMERCIAL BUILDING) Real property in the City of Palm Springs, County of Riverside, State of California, as described: Land described in Exhibit "A" 3573 ANZA ROAD (APN 669-452-068) Dated: August 9, 2021 From, ANZA PS 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 1P 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 13t' day of October 2021. MONIQ1iJE M LOMELI, CMC CHIEF DEPUTY CITY CLERK