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HomeMy WebLinkAbout2007 - 2007-0545158 - 8/6/2007 DOC # 2007-05-451-58 - 08/24/2007 08MA Fee:NC Page 1 of 9 FREE RECORDING REQUESTED BY Recorded in Official Records County of Riverside AND WHEN RECORDED MAIL TO: Larry W. Ward Assessor, County Clerk & Recorder CITY OF PALM SPRINGS II II I I II I I II I I II III I III PO Box 2743 Palm Springs, CA 92263 2743 Attn: City Clerk S R U PAGE SIZE DA MISC LONG RFD COPY I M A L 465 426 PCOR NCOR SMF NCH 4Mf Filing Fee Exempt Per Government Code 6103 (For Recorder's Use Only) 1 �� L(( i DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO INSTALL STREET IMPROVEMENTS UPON NOTICE THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO INSTALL STREET IMPROVEMENTS UPON NOTICE. ("Declaration") is entered into this &W day of Aueios —_ , 2007, by and between Pacifica Colony Palms, LLC, a California Limited Liability company ("Declarants"'), 5220 Pacific Concourse Drive, Suite 190, Los Angeles, Ca, 90045, 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. RECITALS: 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 572 North Indian Canyon Drive, Palm Springs, California 92262, more particularly described on Exhibit "A" attached hereto and incorporated herein by reference (APN 507-195-018) ("Property").The 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 a portion of the following streets Via Colusa, Via Chica, Granvia Valmonte, Via Altamira, Valmonte Del Norte and Valmonte Del Sur ("Public Parcel"). B. Declarants' desire to obtain building permit(s) and other City approvals to renovate, expand and operate a hotel facility upon the Property ("City Approval")- In I accordance with the City Approval, Declarants' have requested deferral to construct certain street, or other improvements on the Property or the Public Parcel, which street improvements are more particularly described on Exhibit "B" attached hereto and incorporated herein by reference ("Improvements"). Declarants' desire to defer the construction of the Improvements and 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 Covenants, Conditions and Restrictions. 1.1 Construction of Improvements. At any time after this Declaration is executed by Declarants and construction of the Improvements has commenced, the City shall notify Declarants in writing that Declarants shall pay their fair share cost of the Improvements, estimated at $109,000.00, unless portions of the Improvements have been previously constructed by Declarants, the cost of which shall be credited against Declarants' fair share cost of the Improvements. Any credit against Declarants' fair share cost shall be subject to review and approval by the City Engineer. Payment to the City of Declarants' fair share cost of the Improvements shall be made within 30 days notice from the City. 2.0 Enforcement. 2.1 Rights of City. 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 such violation or threatened violation. 22 Failure to Perform: Lien. If any owner of the Property defaults on the performance of any of their obligations hereunder, the City, its employees, contractors and agents may, at their sole option, and after making reasonable demand 2 ��� R£¢9°aR82s �R1111111111111 of the owners of the Property that it cure said default, cure the default. In making a cure, the City shall give the owners of the Property or their representative, reasonable notice of the time and manner of said action and said action shall only be at such times and in such manners as reasonably necessary to carry out this Agreement. In such event, the owners of the Property shall reimburse the City for all costs and expenses related to the curing of said default plus interest at a rate of ten percent (10%) per annum commencing on the date that is thirty (30) days after the date notice thereof is given and ending on the date said sum is fully repaid. Any and all delinquent amounts, together with said interest, costs and reasonable attorneys fees shall be a personal obligation of the owners of the Property as well as a lien and charge, with power of sale, upon the Property. The City may bring an action at law against the owners of the Property to pay any such sums. The lien provided for in this Section may be recorded by the City as a Notice of Lien against the Property in the Office of the Riverside County Recorder, signed and acknowledged, which Notice of Lien shall contain a statement of the unpaid amount of costs and expenses. Such lien may be enforced and foreclosed in a suit or action brought in any court of competent jurisdiction or in accordance with the provisions of Section 2924 of the California Civil Code applicable to the exercise of powers of sale for mortgages and deeds of trust, or in any other manner permitted by California law. Upon the timely curing of any default for which such lien was recorded, the City shall record an appropriate release of such lien, upon payment by the owner of the Property of a reasonable fee to cover the costs of preparing and recording such release, together with the payment of such other costs, including, without limitation, reasonable attorneys fees, court costs, interest or other fees which have been incurred. 3.0 Covenants to Run With the Land. 3.1 Covenants Running With the hand. 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, 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, equitable servitudes, liens and charges 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', their successors and assigns and successors in interest; and may be enforced by the City. 3.2 Agreement Among Declarants', Agency and City. In exchange for granting of the City Approval by the City, the Declarants' hereby agree to hold, sell 3 I IIIIIIIIIIIIIIIIIIIIIIltI ilill IIIIit R� za 3 a 11EI1111 49�56eA 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 contained in this Declaration 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 and accepted by the City. 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 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 attorney's 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. 4 A64e F �150dR IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. Pacifica Colony Palms, LLC, a California Limited Liability comps y. nn By: � ^J Steve Ohren Managing Member "Declarants" (DECLARANTS" SIGNATURES MUST BE NOTARIZED) ATTEST: CITY OF PALM SPRINGS, _ a municipal corporation es Thompson David H. Ready y Clerk City Manager "City" APPRO E STO FORM: RECOMMENDED BY: By: S� G✓��U By: City Attorn/ y Assistant Public Works Director/ Assistant City Engineer APPROVED AS TO OWNERSHIP & LEG DESC IPTION: By' 0• Rick M njares Engine ring Ass s ant NOTARY FORMS ON NEXT PAGE 5 111 IIII IN e�,�5 Qf s3Jo�A STATE OF CALIFORNIA) SS, COUNTY OF RIVERSIDE) /� On I o rwJ ' ,')U before me, & n*MG �t - ���C��d✓� 1 Vic) j PJbL�c Date Notary Public personally appeared o-peFso .proved to me on the basis of satisfactory evidence to be the persona whose namew is subscribed to the within instrument and acknowledged to me tha he 9hfe/thCy executed the same in his Nr/todr authorized capacity("j, and that b hi r/tWrr signature(} on the instrument the person(�,,j, or the entity upon behalf of which the person(,.acted, executed the instrument. CYMMIA A.IERARDI Comminlon# 1646999 Witness my hand and official seal. Noto"rle CawWlb oungr �} � X2 Rroerdc.c - Mycomm.EX1'wFeb1I,2010 "" Signature of Notary STATE OF CALIFORNIA) SS. COUNTY OF RIVERSIDE) On Before me, Date Notary Public personally appeared ❑ personally known to me OR ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Signature of Notary 6 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII ea a�r6 of49s5eeR EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY Lots 1 through 6 in Block "G" of the Palm Springs Estates, in the City of Palm Springs, County of Riverside, State of California, as shown by map on file in Book 15, Page 43, of Maps, in the office of the County Recorder of said County. Together with that portion of the Northerly half of Via Colusa adjoining Lots 3 and 4 on the South and Southeast as described in Resolution Number 13151 vacating and abandoning a portion of Via Colusa recorded December 3, 1987 as instrument number 342781, Official Records. 7 III II III II I I A II II I III II II II re of RsS Qs.a NeR EXHIBIT "B" DESCRIPTION OF DEFERRED ITEMS The owner shall execute a street improvement covenant agreeing to participate in the construction of the Movie Colony Traffic Calming Program previously submitted to and reviewed by the Movie Colony neighborhood, and subject to future review and approval by the Planning Commission and City Council. The owner shall be bound by the covenant to deposit the fair share cost of implementing the Movie Colony Traffic Calming Program, as approved by City Council, upon the request of the City of Palm Springs City Engineer at such time as deemed necessary in order to facilitate construction of said improvements. Although there is no time frame placed on this covenant, any deposit owner makes is fully refundable if construction of said improvements does not commence within a reasonable time period. The total Engineering Departments estimated cost to construct the Movie Colony Traffic Calming Program is approximately $360,000 (as identified in a Division of Construction Costs distributed at a neighborhood meeting on September 21, 2004), with a fair share cost attributed to the Colony Palms development of $109,000. The covenant shall establish that the owner's maximum contribution to and participation in the Movie Colony Traffic Calming Program, as approved by City Council, is $109,000, even in the event that total costs exceed the preliminary estimate prepared by the Engineering Department. As described above the owner shall be bound by this covenant to.pay a fair share cost of implementing the Movie Colony Traffic Calming Program at the time the Movie Colony Traffic Calming Program is completed by others, upon thirty (30) days written notice from the City Engineer. The original fair share cost is hereby reduced to $ 45,288.00 to reflect construction by Declarants of a portion of the Movie Colony Traffic Calming program adjacent to the Colony Palms Hotel, as reflected on Exhibit'C'. S II I �I II I III► III II II IIII I III III�IIII III I II F)S/4p$07 a850aR 1111111111}ll}}}l 11111 ll}}l}1111111111111111111} ��J2 °?4�58©n , EXHIBIT "C'r -_ = _A [V CMS>.H3TfL_817I�.7 ; :-,;;: -' ==--=_•=' -_.-.._.. _,..,__ __ _ - _ {.'E3L-1�A�Y-.P7-[LM�•H:r:]TEL�T�'11,�14'=.=i=�;,=;--'s 'i'�-.=_:=->:--`_=='=',', �--.=:_�=:_�=,_==�=�=_=x::- -43I �7 . Engineer's Esfimate :CRNBTWQTE➢:-,a Engineer's Estimate BID ITEM DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL DIFFERENCE UNIT PRICE TOTAL 1 Initial Mo bilization 1 LS $2,50000 $2;500.00 - - --x�'3:=_ 0 $2,500.00 $2,500.00 2 Traffic Control i LS $750.00 $750.00 --__-_= 7;;=22c 0 $750.00 $750.00 3 Construct 2"AC Overlay18,214 SF $1.50 $27,321.00 --- 86 i 13826 $1.50 $6,579.00 4 Construct A2-6 Curb & Gutter 2095 LF $16.00 $33,520 00 =-_, „ ;=74i8;-i== "_- 1079 $16.00 $16,256.00 Savrcut and Remove Existing AC 5 2,984 SF $1.00 $2.984A0 _°°__'_'c ,98 ;_ ,% < 0 $1.00 $2.984.00 Paving 6 Remove ExisUng PCC Pavement 162 SF $200 $324.00 6__='=`-P--=30f[='=_=_;, -138 $2.00 $600.00 Sawcut and Remove Existing Curb =-_---= -^ -613 $2.00 $1,226.00 & Gutter -- 8 Construct PCC Driveway Approach 0 SF $500 $000 0 $5.00 $0.0 Construct PCC Handicap Access 9 Ramp 2 EA $1.500.00 $3,000.00 -1 $1.500.00 $4,500.OD 10 Construct Spandrel &Curb Return 684 SF $6 00 $4,104 00 =__,--;-��'124d_; •_' , ' -519 $6.00 $7,218.GO 11 Construct Cross Gutter 120 SF $750 $900Do =_-'_,_;_�- 4t•1 = >', -120 $7.50 $1.800.00 landscaping&Irrigation{Noses& _ _ - 12 1 LS $6,250.00 $61250.00 1 $6,250.00 $0.00 =-__ x'>� t1s=':�-_„__'�= Circles) -- - - -_------ - ------ 13 Ad'ust E)dstin Manhole to Grade i EA $500.00 $500.00 -- -_--=%'"i7�S=z3. _� •-- 1 $500.00 $0.00 14 Si nin &Str! in 1 LS $2,500 00 $2.500.an 1 0 $2,500.00 $2,500.04 subtotal $84,653.00 Constructed Subtotal $46.913.00 Design&Admin $71500 00 Design &Ad min $7.500.00 20%contingency $16.930.60 20%contingency $9,38260 Total $100,083.60 Constructed Total $63.795.60 Origin al Total $109,083.60 New Covenant Amount $46.288.00