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HomeMy WebLinkAbout9/2/2009 - STAFF REPORTS - 5.C. RECORDING REQUESTED BY: Stewart Title of California, Inc AND WHEN RECORDED MAIL TO: Jackson I DeMarco I Tidus I Peckenpaugh 2030 Main Street, 12th Floor Irvine, CA 92614 Attn: Michele A. Staples, Esq, SPACE A80vE THIS LINE FOR RECORDER'S USE DEED OF TRUST WITH ASSIGNMENT OF RENTS This DEED OF TRUST WITH ASSIGNMENT OF RENTS (this "Deed of Trust") is made effective as of July J, 2009, and is executed by P.S. VENTURE INDIAN CANYON/SAN RAFAEL, LLC, a Delaware limited liability company ("'Trustor"), as truster, whose address is 710 W Oakdale, Chicago, IL 60657, to STEWART TITLE. OF CALIFORNIA, INC. ("Trustee"), as trustee, for the benefit of the CITY OF PALM SPRINGS, a municipal corporation of the State of California("Beneficiaiy"), as the beneficiary. WITNESSETH: That Trustor grants to Trustee in Trust,with Power of Salo,that certain real property(the"Property") located in the City of Palm Springs, County of Riverside, State of California, described as follows: SEE EXHIBIT "I" ATTACHED HERETO together with the rents, issues and profits thereof, subject, however, to the right,power and authority hereinafter given to and conferted upon Beneficiary to collect and apply such rents, issues and profits, for the purpose of securing the performance of TEUStOr'S covenants, duties and obligations under that certain Subdivision Improvement Agreement by and between Trustor and Beneficiary dated as of May 22, 2006 (the "Improvement Agreement"), including without limitation, (1) Trustor's obligations to construct and install, or to cause constt-Liction and installation of, certain roadway improvements, sewer infrastructure and laterals, curbs and gutters, and sidewalks (as more particularly defined in the Improvement Agreement, the"Works of Improvement") identified in the materials attached hereto as Exhibit"2"prior to its obtaining certificates of occupancy for, or sale of,residential condominium units in Phase 6 through 10 of Tract No, 33561 that are served thereby; and (2)payment of compensation to City for all of City's costs reasonably incurred in performing usual and customary inspections of the Works of Improvement. All initially capitalized terms used herein and not otherwise defined shall have the meanings ascribed to those terns in the Improvement Agreement. This Deed of Trust shall be subordinate to all enctunbrances of record, including that certain deed of trust from Trustor, as truster, to Stewart Title of California, Inc., as trustee for the benefit of New Century Bank, as beneficiary, dated August 28, 2006, and recorded on September 19, 2006 as Instrument No. 2006-690377, until payment in full of all amounts secured thereby. 5297.37600\AGRM9189C 182 9 A. To protect the security of this Deed of Trust, Truster agrees: (1) To keep said Property in good condition and repair; to complete or restore promptly and in good and worlananlike manner any building, structure or improvement that may be constricted, damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor; to comply with all laws affecting said Property or requiring any alterations or improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said Property in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said Property may be reasonably necessary, the specific enumerations herein not excluding the general. (2) If vertical or above-grade improvements are constructed on said Property, to provide, maintain and deliver to Beneficiary evidence that Trustor maintains insurance satisfactory to Beneficiary, and naming Beneficiary as an additional insured and/or loss payable (as the case may be). The amount collected under any casualty insurance policy may be applied by Beneficiary toward restoration of the subject improvements suffering such casualty or, at option of Beneficiary, the entire arnount so collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice- (3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorneys' fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed of Trust- (4) To pay, when due and payable and before delinquency, all of the following: (a) all real property taxes and assessments affecting said Property, including assessments on appurtenant water stock, (b) all encumbrances, charges and liens, with interest, on said Property or any part thereof, which appear to be prior or senior to the lien of this Deed of Trust; and (c) all costs, fees and expenses that may arise relating to this Deed of Trust. Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor fiom any obligation hereof, may: make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said Property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encmnbrance, charge or lien which in the judgment of either appears to be prior or senior hereto; and, in exercising any such powers, pay necessary expenses, employ comnsel and pay his reasonable fees. 2 5297-376001AGRM7\990182.9 (5) To pay immediately and without demand all sums so expended by Beneficiary or "Trustee, and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded. B. It is mutually agreed: (1) That any award of damages in connection with any condemnation for public use of or injury to said Property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in the same manner and with the wine effect as above provided for disposition of proceeds of fire or other insurance; provided, however, that no such assignment shall be effective to the extent that Beneficiary, or any of its department or agencies, (a) is the taking authority in any condemnation action, or (b) causes the damages for which a damages award is made, in which case, any such condemnation or damages award shall be paid to Trustor. (2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive its right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay. (3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed of Trust, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee may(a) reconvcy any part of said Property, (b) consent to the making of any map or plat thereof, (c)join in granting any easement thereon, or (d)join in any extension agreement or any agreement subordinating the lien or charge hereof. (4) That upon delivery to Beneficiary of a bond, letter of credit or other Security Instrument (as defined in the Improvement Agreement) satisfying the requirements of Sections 4.1 and 4.2 of the Improvement Agreement and in an amount set forth on Exhibit"2" (or such lesser amount representing the items thereon that remain uncompleted), together with the written request from Trustor requesting reconveyance of this Deed of Trust,Beneficiary shall cause Trustee to reconvey, without warranty, all liens upon and interests in the Property then held hereunder. The Grantee in such reconveyance may be described as "the person or persons legally entitled thereto." (5) Property development and improvement activities, including the installation and construction of the Works of Improvement serving the Property, have been suspended at the election of Trustor due to adverse economic and market conditions affecting residential development. When construction and development activities re-commence on the Property, Beneficiary shall have the absolute right to demand that Truster deliver to Beneficiary a bond or letter of credit satisfying the requirements of Sections 4.1 and 4.2 of the hnpiovement Agreement and in an amount set forth on Exhibit"2" (or such lesser amount representing the items thereon that remain uncompleted) in the place and stead of this Deed of Trust as the operative Security Instrument securing performance under the Improvement Agreement. 3 5297.376WAGRMn 890182 9 (6) That upon written request as may be delivered, from time to time, from Truster to Beneficiary (a "Request for Partial Reconveyance"), and subject to the completion of one or more items of the Works of Improvement described on Exhibit "2" in accordance With the covenants, duties and obligations under the Improvement Agreement, Beneficiary shall partially reconvey the lien of this Deed of Trust (each, a "Partial Reconveyance") respecting such portion of the 88 condominium units that collectively constitute the Property identified on Exhibit"l" attached hereto having an aggregate "release value" equal to or less than the scheduled cost assigned to the completed portion of the Work of Improvement (as shown on Exhibit "T' provided that Trustor satisfies, or causes satisfaction of, each of the following terms and conditions: (a) Trustor shall have delivered to Beneficiary satisfactory evidence (in Beneficiary's reasonable judgment) of the completion, and acceptance by all relevant governmental agencies, of the subject Work o C Improvement; (b) Trustor shall have delivered to Beneficiary a Request for Partial Rcconveyance, which shall describe the portion of the Property for which the lien of the Deed of Trust is to be reconveyed; (c)upon Beneficiary's request, Trustor shall provide to Beneficiary (at Trustor's sole cost and expense) an endorsement to Beneficiary's title policy assuring the continued lien priority of this Deed of Trust on the remaining portion of the Property remaining subject to this Deed of Trust; (d)Trustor shall reimburse Beneficiary for all fees and costs reasonably incurred by Beneficiary in connection with preparing, executing and delivering such Partial Reconveyance; and (e) there shall exist no event of default by Trustor under the Improvement Agreement or this heed of Trust. For purposes hereof and solely with respect to delivery of a Partial Reconveyance, the term "release value" as respecting a condominium unit fortrijug part of the Property shall be $14,137,50 ($1,244,100/88 units); provided, However, at no time shall the remaining condominium units subject to the lien of the Deed of Trust have an aggregate value that is less than the estimated cost to complete the Works of Improvement under the Improvement Agreement, as reasonably determined by Beneficiary. (7) That upon written request of Beneficiary stating that all covenants, duties and obligations of Trustor under the Improvement Agreement have been duly performed, 'Trustee shall reconvey, without warranty, all liens upon and interests in the Property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyancc may be described as "the person or persons legally entitled thereto." (8) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said Property, reserving unto Trustor the right, prior to any default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said Property or any part thereof, in his own name suc for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Beneficiary may detenninc. The entering upon and taking possession of said Property, the collection of such rents, issues and profits and the application thereof as aforesaid, shall not cure 4 5297-37600b1CRMn 890182 9 or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. (9) That upon default by Trustor in payment or performance under any agreement secured hereby, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sate and of written notice of default and of election to cause to be sold said Property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed of Trust and all documents evidencing expenditures secured hereby. After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell said Property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the Property so sold,but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined,may purchase at such sale. After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any,to the person or persons legally entitled thereto. (10) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where said Property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed of Trust is recorded and the name and address of the new Trustee. (11) That this Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the obligations secured hereby, whether or not named as Beneficiary herein. In this Deed of Trust,whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. 5 5297-376004AGRMn 990792 9 (12) That Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other deed of trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee. (13) 1f Truster voluntarily or involuntarily sells, conveys, transfers, disposes of the Property or any part thereof or any interest therein (whether it is a legal or equitable interest), or enters into a contract to do any of the above, then Beneficiary shall have the right, at its option, to (a) declare, without notice, all outstanding monetary indebtedness secured hereby to be immediately due and payable, and (b) require that any successor to Trustor's interest in the Property deliver to Beneficiary a bond or letter of credit in the amount and form required under Sections 4.1 and 4.2 of the Improvement Agreement as a replacement Security Instrument to this Deed of Trust. If Beneficiary elects not to exercise its rights hereunder, this Deed of Trust shall nonetlieless remain a lien and encumbrance against the Property, and such successor in title shall be deemed to have assumed all obligations of Trustor under the Improvement Agreement. (14) All exhibits and schedules attached hereto and referred to herein are incorporated by reference with the same effect as if fully set forth herein. (15) This Deed of Trust may be executed in one or more counterparts, each of which counterpart shall, for all pm-poses, be deemed an original and all such counterparts, taken together, shall constitute one and the same instrument. [SIGNATURES APPEAR ON NEX'rPAGE.] 6 5297-37600WGktMT1890182 9 IN WITNESS WHEREOF,the undersigned Trostor executes this Deed of Trust as of the date first above written. TRUSTOR: P S. VENTURE INDIAN CANYON/SAN RAFAEL, LLC, a Delaware limited liability company By: California Development Enterprise, Inc., a California corporation By: Name: Its:: By: Name: Its:: BENEFICIARY: CITY OF PALM SPRINGS, a ebarter city and municipal corporation By: David H. Ready, City Manager APPROVED as to form and content this^day of July, 2009. Douglas C. Holland, Esq.,Woodruff Spradlin& Smart City Attorney of the City of Palm Springs By: Diego Santana, Esq.,Assistant City Attorney 5297-37600wcTWn 890182 9 7 ACKNOWLEDGMENTS STATE.OF CALIFORNIA ) COUNTY OF ) On ,20,before me, a Notary Public,personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/6be executed the same in his/her authorized capacity,and that by his/her signature on the instrument the person,or the entity upon behalf of which the person acted,executed the Instrument. 1 certify under PENALTY OF PERJURY undei the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official soul. Signature STATE OF CALIFORNIA ) COUNTY OP ) On 20,r,before me, ,a Notary Public,personally appeared I who proved to me on the basis of satsfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,and rhat by his/her signature on the instrument the person,or the entity upon behalf of which the person acted,executed the instrrmrent. I certify under PENALTY OF PERJURY under the haws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature STATE OF CALIFORNIA ) COUNTY Or ) On 20_ before me, a Notary Public,personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to ire that he/she executed the same in his/her authorized capacity,and that by his/her signature on the instrument the person,or the entity upon belialf of which the person acted,executed the instmmcnt. I terrify under PENALTY OF PEIZ-fURY under the laws of the Stale of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal Signature 5297-3760MAGkM'T\890182 9 EXHIBIT "I„ DESCRIPTION OF REAL PROPERTY All that certain real property located in the City of Patin Springs, County of Riverside, State of California, described as follows: Lot I of Tract No. 33561, in the City of Palm Springs, County of Riverside, State of California, as shown on a Map ("Map"), in Boole 402, Pages 9 through 12, inclusive, of Maps, in the office of the Riverside County Recorder. Excepting therefromu the portion thereof lying within the boundaries of the "Condominium Plan for Phase 1 through 5 of a portion of Lot 1, Tract No. 33561"recorded June 15,2006 as Instrument No. 2006-0432610 of Official Records of Riverside County, California. Further excepting therefrom, the portion thereof described on Exhibit"A" (Tract No, 33561 Recreation Area) and depicted on Exhibit"B" attached hereto. 529737600\AORMT\890182.9 EXHIBIT "A ' TRACT NO, 33561 RECREATION AREA ALL THAT PORTION OF LOT 1 OF TRACT NO. 33581 AS FILED IN MAP BOOK 402 AT PAGES 9 THROUGH 12 INCLUSIVE, RECORDS OF RIVERSIDE COUNTY CALIFORNIA, DESCRIBED AS FOLLOWS; COMMENCING AT THE NORTH WEST CORNER OF LOT 2 OF SAID TRACT NO, 33551, ALSO BEING THE SOUTHWEST CORNER OF SAID LOT 1, THENCE NORTH 000-15'-34" EAST ALONG THE WEST LINE OF SAID LOT 1 A DISTANCE OF 432.64 FEET; THENCE SOUTH 890-44'-26" EAST A DISTANCE OF 130 38 FEET; THENCE SOUTH 000-15'-35"WEST A DISTANCE. OF 76.91 FEET, THENCE SOUTH 890-44'-26" EAST A DISTANCE OF 12 03 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 590-44'-26" EAST A DISTANCE OF 28 65 FEET; THENCE SOUTH 790-58'-02" EAST A DISTANCE OF 22 91 FEET, THENCE SOUTH 10°-00'-02"WEST DISTANCE OF 3.65 FEET, THENCE SOUTH 790-44'-56" EAST A DISTANCE OF 35 18 FEET; THENCE SOUTH 690-44'-26" EAST A DISTANCE OF 40.79 FEET; THENCE NORTH 000-15'-34" EAST A DISTANCE OF 11.07 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 11 50 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 320-12'-49"AND A LENGTH OF 5.46 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 27.50 FEET, THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 1800-13'-15"AND A LENGTH OF 86.50 FEET; THENCE NORTH 41°-41'-59" EAST A DISTANCE OF 24,13 FEET; THENCE SOUTH 890-44'-26" EAST A DISTANCE OF 72.64 FEET; THENCE NORTH 510-54'-36" EAST DISTANCE OF 24.79 FEET TO A POINT ON A NON-TANGENT CURVE CONCVAE SOUTHERLY AND HAVING A RADIUS OF 172,50, A RADIAL BEARING PASSES THROUGH SAID CURVE BEARS NORTH 520-34'-28" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 520-18'-54"AND A LENGTH OF 157.50 FEET; THENCE NORTH 890-44'-26"WEST A DISTANCE OF 31.17 FEET TO,THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 67.50 FEET; PAGE 2 EXHIBIT"A" RECREATION AREA THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 586-21'-50"AND A LENGTH OF 68,76 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 77,50 FEET, THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 390-06'-00"AND A LENGTH OF 52.89 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 19.50 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 700-44'-15"AND A LENGTH OF 24.07 FEET, THENCE SOUTH 00°-15'-34"WEST A DISTANCE OF 33.20 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 312.50 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 030-08'-37"AND A LENGTH OF 17.15 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 24,239 SQ.FT, ONp,L LgNO SL S! ED BY - w J.L,SANBDRN �i ' NA/ I C, a m PR � Nv.L541gG � N Exprrve 0.30-rp yI HN L. SANBORN; PLS 4146 v� �r �aF/09/09 WO 09-136 F D� A_�LQ E=TB P)B sp_fT IlVDIAN CANYON DR. N 00-615'U 4.32 54L 7_­ P p 0.0 . \A(3 N.W. COR. LOT 2 TRACT NO. JJ551 .zt LOT] ........... TRACT NO. 33561 2 o Q % 'Tji L r 17 .L SANBORN A/E, Inc, 5H�ET 71-780 SAN JACINT�,DR 714� 60 30 0 60 1 E3LD G. _1� & = — own ii2�� SANBORN RANCHO MIRAGE, CA_ 22270 --L TEL (760) 423 0800 SCALE 1=60' of FAX (760) 42,3-0603 do$ No. GRAPHIC SCALE NUA001 G=:7 EXHIBIT 1117 11 DATA Q OELTA/6EAR1Nc RA011J$ [EN./01sr TANGENT O7 N 00°15',34"E 76.91' �2 N 89°44'26"W 12,03' Q N 89°44'26"W 2B.65' ® N B9°44'26"W 40,66' © N 79°58'02"W 22.91' © N 10000'02"E 3.65' Q N 79°44'55"W 35.16' ® N 89°44 26"W 40,79' 9 N 000 15'347 11.07' 1� 32Q12'49" 11,50' 6.46' 3.32' 77 180°13'15'" _ 27.50' 86,50, -- T© N 41°41'59"E 24.13' N 6904426"W 72,54' N 51°54'36'E 24,79' 1 52°18'54" 172.50' 157.50' 84.72' Q� N 8904426"W 31.17' 1Q 5502151" 67.50' 68.75' 37,V 39006'00" 77.50' 52.B9' 27.52' 1® 7004475" 19.50' 24,07' 13.84' 2� N 00°15'34 E 33,20' Q 03°08'37" 312.50' 17.15' 8.58' ® SAN60RN A/E, Inc, SHEET -=_- 71-780 SAN JACINTO DR. 2 F1LDC, "E-1" SANBORN RANCHOS IRAC6 ,2 A. 92270 OF2 SFIL•[TS FAX RD) 423-0603 JM NO. U-17G EXHIBIT "2" REMAINING SUBDIVISION IMPROVEMENT ITEMS [See Attached ] 5297-37600 AGRM'I\890182.9 OF PALM Ste\ N, City of Palm Springs Department of Public Works and Engineering 3200 8.Xaliq=z Canyon Way • Palm Sixings,California 92262 r-141 Png1t-0' Tel.(760)323-8253 • Fax;(760)322-8360 • Web.wwwxi palm-springs,ca.us August 26, 2008 International Fidelity Insurance c/o Gallagher Construction Service 1 Market Street, Spear Tower 4200 San Francisco, CA 94105 Attn: Richard Adair Re:Tract Map 33561 (P-S.Venture Indian Canyon/San Rafael, LLC): Please consider this letter as the City of Palm Springs' notice that the obligations of the Subdivision Improvement Agreement (No. A5246) between the City of Palm Springs and P.S, Venture Indian Canyon/San Rafael, LLC related to Tract Map 33561, have been partially satisfied. The on-site storm drain system has been removed from the Faithful Performance Bond amount currently needed for this project. The remaining Faithful Performance Bond needed has been calculated using 2008 prices for all remaining items of work. The following subdivision security required by the agreement may now be reduced to the following amounts: • Faithful Performance Bond; Bond No. 390258; $1,244,100.00 The Labor/Materials Security can not be released until the City is receipt of copies of recorded Notice(s) of completion, if any, with an updated Title Report for the entire property dated at least 60 days after the recorded Notice(s) of Completion, if any, OR 90 days after acceptance of the work if no Notice(s) of Completion are recorded, to verify existence of any recorded Mechanic's Liens. The Main tenance/Warranty Security can not be released until one year after the acceptance of the work in its entirety by the City of Palm Springs (which has not occurred yet). The Monumentation Security can not be released until the City is in receipt of a letter from A/B Sanborn stating that the monumentation work has been completed and that they have been paid for the work. The following subdivision securities required by the Subdivision Improvement agreement shall remain in full force and effect until further notice: Labor/Materials Bond ; Bond No. 390258; $1,485,250,00 Monumentation Bond; Bond No. 390259; $ 4,000-00 Maintenance/Warranty Bond, Band No. 390258: $ 445,575.00 If you have any.questions, I can be reached at(760)323-8253, extension 8741, S(_,=y, � Carol�TTe�mpleton Engineering Associate i Cc• Vuty Cortaddguoz of Csrcie lnsurencn,inc.vis fax of p60)320-1116;Hruco Huahor°°!(hoGnfurori8°Cpmp.�rtloy via°mat;Jsmes Thompson, { Ci /ork,TM37561 Ole i i Post Office Box 2743 • Palm Springs, California 92263-2743 CITY OF PALM SPRINGS PUBLIC&PRIVATE IMPROVEMENTS CONSTRUCTION ESTIMATC SCHEDULE Tract Nc:33661 P.M.No. l=nn.Fllc No, Palermo Tract-south end onIX Computed By: CGT Concrete,Paving,storm Drain Channel,sewer,Water- Date: 8/26/CC FOR PERMIT PURPOSES IMPROVEMENT COST ESTIMATE UnlI Casts From 116106 ITEM OUANTII'Y .UNIT 11NITCOST.. AMOUNT 6"Curb&Culler 807.63 LF S26 00 $20 998,25 8"Curb&Gutter LF 582.00 $0.00 6"Curb 828.10 I.F S15.00 $12,421,50 8"Curb LF $23,00 $0.00 12"Curb LF $27.00 50.00 Wedge Curb 4270.18 LF $27.00 5115�294.73 Ribbon Gutter $58.84 SF $5-DO $3,294.20 4"Rolled Curb&Gutter LF $27.00 0.00 Precast Cono.Curb or Cut Stone LF $2.75 $D.OD Curb Transitlon 38,$8 LF S25.00 $1,005.55 GurblGuilcr Tevnlnatlons LF $15.00 $0.00 4"SldowalklBike oth 6 sack 2S46.13 SF S7.00 $20,622,88 4"Colored Sidewalk 6 sk SF $6,50 $0,00 Handica Ram -T oo A&B EA $1,500.00 $0.00 Handicap Ram -7 oC EA $1.000.00 $0.00 Dwy,Approach 5F $12.00 1,000 4"P.C.C.wlwcldod wire SF $13.00 $C.00 4"P.C.0 wlo welded wire SF $8.00 50.00 6"P.C.0 wl Flbcnnosh SF $15.00 $0 00 6"P.O.C.w/c welded wire SF 12.00 $0.00 3 6"P.C.C.w welded wire SF $16.25 $0.00 6"Colored Concrete SF $12.50 $0.00 6"P C.C.Decorative Concrete 244553 SF S13.0D $31 703.13 spandrel and curb return 1162.07 SF $11.01) $12 782.T p 8"P.C.C.Cross Gutter SF $11 0D SO 00 i e"P.C.0 SF .1t00 $0.00 6.112"P.C.C.Heavy QotV SF $1D.5D $o.DO M 6.112"P.0 C eecaradva SF 513.50 $0.00 Bel and P2Vers SF 510.50 50.00 11"P.C.C.Reinforced' SF 518.00 $0 00 Under Sidewalk Drain EA $2000.00 50.00 Curb Inlet Catch Basin EA .$15 000.c0 $0.00 {� Hood Wall EA $6.500.00 $0.00 Remove PCC Flalwork SF $4.5c $0.00 Remove PCC Curb&Gutter LF $7.00 $0.00 Remove AC Berm LF 56.00 $0.00 Ad use Water Valve 46,69 EA $1.000,00 $49.685.00 Adjust Monument Wells EA 51,000.00 Ad ust Water Meter EA $1 000.00 $0,00 3"Crushed Miscell.Base SF $1 10 $000 3.51'Crushed Miscell Base SF $1.30 tM.00 4"Crushed Miscell.Base 74,315.15 SF $1.50 $111 472.73 45"Crushed Miscell.Base SF $1.70 $0.00 5.5"Crushed Miscell.Base SF $2.00 $0.00 6"Crushed MIScell.Base SF S2 20 $0.00 1"Thick AC Overlay. SF $1.60 $0 00 cold Plane SF 51.00 $0-00 1.112"AC on native SF $225 $c 00 2"AC Pavomenl SF 53.00 $0.00 2112"AC Pavement 74315.15 8F $3.75 2278.681.81 3"AC Pavement SF $4.50 $O.00 3.112'AC Pavement SF $5.25 $0.00 4"AC Pavumoid SF $6.00 $0.00 4.5"AC Pavement SF $6.70 $0.00 5"AC Pavement SF 57.40 S0,00 31$"ARAM ChI Seal 5F S2.85 $0.00 1.1/4"ARHM Overly 5F 1 $10.00 $0.00 1-1/2"ARHM Overly $F 11.40 $0.00 2"ARHM Overlay $F 14,25 $0.00 Slurry Seal SF 0,50 150.00 I 6"A.0 5erm(TyceA-hl hMe LF S20.00 $0.00 8"A.0 Berm LF $25.00 $o.00 Remove AC Pavement SF $2.00 $0.00 On-slto Water System 0.25 LS 462764.50 $115 601-13 Sewer Connection 5475 EA $250,00 $13,587.50 4"San.Sewer Lat SDR35 LF $35.00 S0.00 4"San.Sewer Lat VCP 2 016.38 LF $50.00 $100 818.75 G"San.Sawor Lat. PVC LF $50,00 S0.00 G"San.Sewer Lat. VCP LF $70.00 $0.00 3"San.Sewer Pipe SDR35 LF $55.DD $0,00 8"San,Sewer PI c VCP 1400,00 LF $95.00 $1n.000.00 10"Sanitary Sewer Pie VCP LF $125,0o $0.00 12"SEhIL2ry Sowcr PI c VCP LF $160.00 $0.00 Manhole-48" 8.75 EA $6,500.00 556,875,00 Cleanoul EA $1400.00 $0,00 Adjust Manhcic to Grade 3.64 EA $1,00o.e0 $3,640.00 Sewer Main Encasement LF 45,00 S0.00 1-112"PVC Storm Drain PI e LF $10.00 sD.00 3"PVC Storm Draln Pie LP $20,00 SO.00 4"PVC Storm Draln Pipe LF S30.00 S0.00 4"HDPE Storm Drain Pipe LF 536.00 $0.00 4"x 14"Cast Iron Pie LF $0.00 G'Ductllc Iron PI ri LF 307,00 S0.00 G"FIDPE Storm Drain Pi o LF .48.00 $0.00 6"PVC Storm Drain Pie LF $40.00 $D.00 8"HDPE Storm Drain Pie LF $aa.ao $0,00 8"PVC Storm Draln PI a LF $50.00 $0.00 10"HDPE Storm Dmin PI a LF $65.00 $0.00 12"PVC Storm Drain Pie ILF 1 $65,00 $0.00 12"HDPE Storm Drain PI c LF $72.OD - $0 00 12' R.C.P. LF $142.00 30.00 15"HDPE Storm Drain PI e LF $130-00 $O.CO 15"R.C.P.150DD S❑ LF $167,00 $0.00 18"HDPE Siorm Drain PI a LF $150 00 $0.00 18"R C.P.1000D Cl SD LF 5190.00 $0.00 21"HDPE Slorm Drain Pipe LF $165,DD $0 DO 24"HDPE Siorm Drain Pipe LF $175.00 $0,00 2a^R.C.P,100013 Cl SD LF $220,00 s0.00 27"HDPE 5tor Drain Pie LF 1 $187,50 $0.00 30"HDPC Storm Draln Pipe LF 5200.00 $0.00 30"R.C.P.1000D Cl SO LP 9210.00 $0.00 30"R.C.P.2000D CI SD LF $240.00 $0.00 36"HDPE Storm Drain PI o LF '275 00 $0,00 36"R.C.P.2000D Cl SO LF $325.00 $0.00 39"RCP Stm Drn Pipe Lr $347.00 $O.Oo 42."HDPE Storm DmIn PI a LF $305,00 $0.00 42"R.C.P.400D Cl SD LF $360.Oo $0,00 46"HDPE Siorm Drain PI a LF $320.00 $0,00 48"R.C.P,2000D Cl SD LF $3BD.00 0.00 54"HDPE Storm Drain Pie LP $345.00 50-00 54"R.0 P.20001)CI SD LF 410.00 $0.00 60"Galy,GSP 5tm Drn Pie LF $290,00 $0.00 60"HDPE Storm Drain Pipe NEA 5440.00 $0.00 ST R.C.P.20000 Cl SD $520.00 $0.00 65"R.O.P.2DDDD Cl$D •550.00 50.00 RCFC CB SD100 #1 w211v6 $15 D00.00 RCFC CB SDI 00 Al w141V12 $15 000.00 $0.00 RCFC CB SD100 41 wl4Iv10 $15.000.00 $0 00 RCFC CB SDI 00 91 wl4lv9) $15.000,00 $0 00 RCFC CB 8D100#1 wl4lv6 EA $30A00.00 $0.00 RCFC CB SD1CD Al w7lv7 EA $10,000.00 $0.00 RCFC CB SDI 00#1 w7lv6 EA $10 00C.00 $0.00 Catch Basin w=4'or less FA $7.500.00 $0.00 Nva last Curb Inlet EA 55,000 00 $0.00 Catch Basin 18"Dow) EA $$800.00 B0.00 Catch Easln 12"X12" EA $2.500.00 50.00 Junction Slruclrlre No,a EA. $4 200.00 $0,00 Transition Structure No,3 EA 55,500 00 $0.00 Concrete Collar EA 52,250.00 $0 00 Outlet Stricture EA S7 500.00 $0.00 Inlet Structure CA $7 500.00 Smao 4`X 6'Cone.17ax Culver[ LF $1 500.00 SO.00 Rlo Rap min.6"cobbles SF $55.00 $0.00 Concrete 24"%J"Channel 77.35 LF $13.00 $1 005-55 Concrete 12"'V"Cllch LF $5,25 $0.00 Drywell EA $10,000.00 $0.00 Storm Oraln Clcanout EA 51,400.00 $0,00 Storm Orain Manhole EA $6 350.00 $0,00 SlormteclLC hers E. $0,250Oo O.On Street Name SI n EA $350.00 1 So 00 Sarncade EA $350.00 $0.00 Tmfflc SI n EA S350-00 $0.00 Remove&Ral=te Palm Trees EA 55e0.00 $0.00 Indian Mcolan Landscllrrl alien L5 $161 182.92 $0-OD Rolocate Tralllc Sl n EA $500.00 Traffic SI nal Installation Ls $250 000 00 $0.00 Traffic Si nal Modlflcation LS F62$00.00 $0.00 Sunrlsellndlan LI hlin ,Si nln ,Slrl In EA $24,576.00 So.00 Clans 1 Type F Delineator EA $200.00 SO-00 White Stripe 4" LF y200 $000 White 4"Thermo la.-tic S7i a LF $4.00 50.00 While Stripe 8" LF $3.00 50.00 While 8"Thermoplastic Strl o LF $0.00 $0.00 Off-sRe SI nln lStrl In Lln LS $56 400.00 $0 00 While 12"Thermoplastic Stripe LF $8.00 $0.00 Rod Curb LF $2 00 $0.00 Park Stall Oelineahon LF 51.50 I 50.00 HandIcap Parkin belineation EA $300,00 $0.00 SLOD Bar and La end GA S300.00 $0,00 Bike Lane Legend EA $15o.00 $0 00 Blka Lana G'WnL Stripe LF $2.50 $0.00 Ob ecl Marker e L-1 LF $150.Oo $0.00 Bollard EA $300.00 $0.00 SuNey Crew HR $0.00 Stri In /Pavement MarkInq HR SO.00 IMPROVEMENT COST S1,081.770 46 15%Contingency $102.265.57 TOTAL IMPR.COST $1 244,036.03 WATER MAIN FEE: 5HT Q $15.00 = S0.00 ITEM UNIT UNIT AMOUNT ,. 1"I.P in Manu.Well T eA EA $o.00 P'I-P.With Taq EA $0.00 Load and Tack EA TOTAL $0.00 BONDS FaNiful Performance S1,244,03603 Maintenance 3186,G05.40 Matorlal and Labor $622,018.01 Monumcntallon T $4,00000 OWA Performance Bond $0.00 Total Performance $1,944,036.03 OWA Labor&Mal.Bond S0.00 Total Labor&Matorlal $622,018.01 ENCROACHMENT PERMIT FEE 317,75G,74 ENCRM'T IMPR.COST 11,05i,770,4e y PERMIT AOMIN.(MICROFILM) $23-00 i Sl1RVEYJPVMT.CUT/MARKING $0.00 TOTAL $17,779.74 '(Based on Table Be1OW) PROJECT VALUATION' FEE $1 -$2 000 $330.18 Mlnlmum $2.001-$59.000 5330.18+2.5%OVER$2 000 $50,001-$200 000 $1,530 18+2%OVER$50,000 OVER$200,000 $4,530.18+1.5/OVER$200,000 CGT Ray.7118/03 it F RECORDING REQUESTED BY: Stewart Title of California, Inc. AND WIIEN RECORDED MAIL TO: Jackson I DeMarco I Tidus I Peckenpaugh 2030 Main Street, 12th Floor Irvine, CA 92614 Attn: Michele A. Staples, Esq. SPACE ABOVE TI•IIS LINE FOR RECORDER'S USE. DEED OF TRUST WITH ASSIGNMENT OF RENTS This DEED OF TRUST WITH ASSIGNMENT OF RENTS (this "Deed of Trust") is made effective as of July 2009, and is executed by PS AVENIDA CABALLEROS/SAN RAFAEL, LLC, a Delaware limited liability company("Trustor'), as trustor, whose address is 710 W Oakdale, Chicago, Th 60657, to STEWART TITLE OF CALIFORNIA,INC. ("Trustee"), as trustee, for the benefit of the CITY OF PALM SPRINGS, a municipal corporation o(the State ofCalifonria("Beneficiary"), as the beneficiary. WITNESSETH: That Trustor grants to Trustee in Trust,with Power of Sale, that certain real property (the "Property") located in the City of Palm Springs, County of Riverside, State of California, described as follows: SEE EXHIBIT A ATTACHED HERETO together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits, for the purpose of securing the performance of Trustor's covenants, duties and obligations under that certain Subdivision Improvement Agreement by and between Trustor and Beneficiary dated as of August 1, 2006 (the "Improvement Agreement"), including without limitation, (1) Trustor's obligations to construct and install, or to cause construction and installation of, certain roadway improvements, sewer infzastructure and laterals, curbs and gutters, and sidewalks (as more particularly defined in the Improvement Agreement, the "Works of Improvement") identified in the materials attached hereto as Exhibit B prior to its obtaining certificates of occupancy for residences, or sale of any residences, on lots in Tract No. 33933 (each, a"Lot") served by such Works of Improvement; and (2) payment of compensation to City for all of City's costs reasonably incurred in performing usual and custornary inspections of the Works of Improvement. All initially capitalized terms used herein and not otherwise defined shall have the meanings ascribed to Arose terms in the Improvement Agreement. This Deed of Trust shall be subordinate to all encumbrances of record, including that certain deed of trust from Trustor, as trustor, to Stewart Title of California, Inc., as trustee for the benefit of New Century Bank, as beneficiary, recorded on February S, 2007, as Instrument No. 2007-0094441, until payment in full of all amounts secured thereby. 5297-38143\A GRM1l 892022.4 A. To protect the security of this Deed of Trust, Trustor agrees: (1) To keep said Property in good condition and repair; to complete or restore promptly and in good and workmanlike manner any building, structure or improvement that may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor; to comply with all laws affecting said Property or requiring any alterations or improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said Property in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said Property may be reasonably necessary, the specific enumerations herein not excluding the general. (2) ff vertical or above-grade improvements are constructed on said Property, to provide, maintain and deliver to Beneficiary evidence that Truster maintains insurance satisfactory to Beneficiary, and naming Beneficiary as an additional insured and/or loss payable (as the case may be). The amount collected under any casualty insurance policy may be applied by Beneficiary toward restoration of the subject improvements suffering such casualty or, at option of Beneficiary, the entire arnount so collected or any part thereof may be released to Truster. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. (3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorneys' fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed of Trust. (4) To pay, when due and payable and before delinquency, all of the following: (a) all real property taxes and assessments affecting said Property, including assessments on appurtenant water stock, (b) all encumbrances, charges and liens, with interest, on said Property or any part thereof, which appear to be prior or senior to the lied of this Deed of Trust; and (c) all costs, fees and expenses that may arise relating to this Deed of Trust. Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may: make or do the-same in such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said Property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or senior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees. (5) To pay innnediately and without demand all sums so expended by Beneficiary or Trustee, and to pay for any statement provided for by law in effect at time date hereof regarding 2 5297.38143%AGRMm7 892022.4 the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded. 13, It is mutually agreed: (1) That any award of damages in connection with any condemnation for public use of or injury to said Property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in the same manner and with the same effect as above provided for disposition of proceeds of fire or other insurance; provided, however, that no such assignment shall be effective to the extent that Beneficiary, or any of its department or agencies, (a) is the taking authority in any condetmnation action, or (b) causes the damages for which a damages award is made, in which case, any such condemnation or damages award shall be paid to Trustor. (2) That by accepting payment of any sum. secured hereby after its due date, Beneficiary does not waive its right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay. (3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed of Trust, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee may (a) reconvey any part of said Property, (b) consent to the making of any map or plat thereof, (c)join in granting any easement thereon, or (d)join in any extension agreement or any agreement subordinating the lien or charge hereof (4) That upon delivery to Beneficiary of a bond, letter of credit or other Security Instrument (as defined in the Improvement Agreement) satisfying the requirements of Sections 4.1 and 4.2 of the Improvement Agreement and in an amount set forth on Exhibit B (or such lesser amount representing the items thereon that remain uncompleted), together with the written request from Trustor requesting reconveyance of this Deed of Trust, Beneficiary shall cause Trustee to reconvey, without warranty, all liens upon and interests in the Property then held hereunder. The Grantee in such reconveyance may be described as "the person or persons legally entitled thereto." (5) Property development and improvement activities, including the installation and construction of the Works of Improvement serving the Property, have been suspended at the election of Trustor due to adverse economic and market conditions affecting residential development. When construction and development activities re-cormnence on the Property, Beneficiary shall have the absolute right to demand that Trustor deliver to Beneficiary a bond or letter of credit satisfying the requirements of Sections 4.1 and 4.2 of the Improvement Agreement and in an amount set forth on Exhibit B (or such lesser amount representing the items thereon that remain uncompleted) in the place and stead of this Deed of Trust as the operative Security Instrument securing performance under the hnprovement Agreement. (6) That upon written request as may be delivered, from time to time, from Trustor to Beneficiary (a "Request for Partial Reconveyance"), and subject to the completion of one or more items of the Works of Improvement described on Exhibit B in accordance with the 3 5297.38143VAGRMn P2022.4 covenants, duties and obligations under the Improvement Agreement, Beneficiary shall partially release by partial reconveyance a reconvey the lien of this Deed of Trust (each, a "Partial Reconveyance") respecting any legal lot (or such other portion) of the Property having an aggregate "release value" equal to or less than the scheduled cost assigned to the applicable completed portion of the Work of hmprovement (as shown on Exhibit B provided that Trustor satisfies, or causes satisfaction of, each of the following terms and conditions: (a) Truster shall have delivered to Beneficiary satisfactory evidence (in Beneficiary's reasonable judgment) of the completion, and acceptance by all relevant governmental agencies, of the subject Work of Improvement; (b) Trustor shall have delivered to Beneficiary a Request for Partial Reconveyance, which shall describe the portion of the Property for which the lien of the Deed of Trust is to be reconveyed; (c) upon Beneficiary's request, Trustor shall provide to Beneficiary (at Trustor's sole cost and expense) an endorsement to Beneficiary's title policy assuring the continued lien priority of this Deed of Trust on the remaining portion of the Property remaining subject to this Deed of Trust; (d) Trustor shall reimburse Beneficiary for all fees and costs reasonably incurred by Beneficiary in connection with preparing, executing and delivering such Partial Reconveyance; and (e) there shall exist no event of default by Trustor under the Improvement Agreement or this Deed of Trust. For purposes hereof and solely with respect to delivery of a Partial Reconveyance, the term "release value" as respecting each lot forming part of the Property shall be $25,714.00 ($1,080,000/42 lots); provided, however, at no time shall the Lots remaining subject to the lien of the Deed of Trust have an aggregate value that is less than the estimated cost to complete the Works of Improvement under the hnprovement Agreement, as reasonably determined by Beneficiary. (7) That upon written request of Beneficiary stating that all covenants, duties and obligations of Trustor under the Improvement Agreement have been duly performed, Trustee shall reconvey, without warranty, all liens upon and interests in the Property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may be described as "the person or persons legally entitled thereto." (8) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said Property, reserving unto Trustor the right, prior to any default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said Property or any part thereof, in his own name sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. The entering upon and taking possession of said Property, the collection of such rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. 4 5297-3 M 43\AGRMT\892022.4 (9) That upon default by Trustor in payment or performance under any agreement secured hereby, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to be sold said Property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed of Trust and all documents evidencing expenditures secured hereby. After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell said Property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at tune of sale. Trustee may postpone sale of all or any portion of said Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the Property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thercoE Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such sale. After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of. all sums expended tinder the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto. (10) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where said Property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed of Trust is recorded and the narne and address of the new Trustee. (11) That this Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the obligations secured hereby, whether or not named as Beneficiary herein. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. (12) That Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other deed of trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee- 5 5297-38143�AGRMn1892022.4 (13) If Trustor voluntarily or involuntarily sells, conveys, transfers, disposes of the Property or any part thereof or any interest therein (whether it is a legal or equitable interest), or enters into a contract to do any of the above, then Beneficiary shall have the right, at its option, to (a) declare, without notice, all outstanding monetary indebtedness secured hereby to be immediately due and payable, and/or (b) require that any successor to Trustor's interest in the Property deliver to Beneficiary a bond or letter of credit in the amount and form required under Sections 4.1 and 4.2 of the Improvement Agreement as a replacement Security instrument to this Deed of Trust. If Beneficiary elects not to exercise its rights hereunder, this Deed of Trust shall nonetheless remain a lien and encumbrance against the Property, and such successor in title shall be deemed to have assumed all obligations of Trustor under the Improvement Agreement. (14) All exhibits and schedules attached hereto and referred to herein are incorporated by reference with the same effect as if fully set forth herein. (15) This Deed of Trust may be executed in one or more counterparts, each of which counterpart shall, for all purposes, be deemed an original and all such counterparts, taken together, shall constitute one and the same instrument. [SIGNATURES APPEAR ON NEXT PAGE.] 6 5297.38143\AGRMn 892022.4 IN WITNESS WHEREOF, the undersigned Truster executes this Deed of Trust as of the date first above written. TRUSTOW PS AVENIDA CABALLEROS/SAN RAFAEL, LLC, a Delaware limited liability company By: California Development Enterprise, Inc., a California corporation, Its Manager By: Name: Its:: By: Name: Its:: BENEFICIARY: CITY OF PALM SPRINGS, a charter city and municipal corporation By: David H. Ready, City Manager APPROVED as to form and content this day of July, 2009, Douglas C. Holland, Esq., Woodruff Spradlin & Smart City Attompy of the City of Pahm Springs By: Diego Santana, Esq., Assistant City Attomey 5297.38143\AGRM7n 992022 4 7 ACKNOWLEDGMENTS STATE OF CALIFORNIA ) COUNTY OF ) On 20_,before me, _ a Notary Public,personally appeared I who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her 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 STATE OF CALIFORNIA ) COUNTY OF ) On 20,before me, a Notary Public,personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her 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 tinder the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature STATE OF CALIFORNIA ) COUNTY OF ) On 20 before me, a Notary Public,personally appeared who proved io me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her 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 tinder the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 5297-381 a3\AGRMT\892022 4 EXHIBIT A DESCRIPTION OF REAL PROPERTY All that certain real property located in the City of Palm Springs, County of Riverside, State of California, described as follows: Lots 1 through 29, inclusive, 34 through 39, 42, 49 through 51, inclusive, 54, 56, and 57 of Tract No. 33933 as shown by map on file in Boole 408, Pages 25 through 29, inclusive, of Maps, Records of the County of Riverside, State of California. 5297.38143WGRM7\892022 4 A-1 EXHIBIT B WORKSOFIMPROVEMENT 5297-38143�AGRMTI 892022.4 B-1 TM 33933 (Murano) 12-1-08* FAITHFUL PERFORMANCE FOND STILL NEEDED: • D WA water: 5621,000.00 • On-site sheet: (.5) (1.15) ($673,016.50) $386,984.49 (drywells, A in 100%) (No nyoplast on 2 so. Streets) • Sewer manhole adjustments (.5) (1.15) (15 ea) ($1000/ea) $8,625.00 • Sewer system (only conditional approval on $62,017.34. Enamore &Azurc, although all of sewer is 100% constructed): (.25) (.5) (1.15) ($431,425) $1,078,626.83 (45.23%) of Faithful Performance Bond still needed as of 12/1/08 (Orig. bond amount was for$2,384,500), Use 46%, or$1,080,000.00 *The above list is a typed recreation of the handwritten note attached as an exhibit to the original December 1,2008 letter from Carol Templeton,Engineering Associate,City of Palm Springs,to Gallagher Construction 8,Surety Services. RECORDING REQUESTED BY: Stewart Title of California, Inc. AND WHEN RECORDED MAIL TO: Jackson I DeMarco I Tidus I Peckenpaugh 2030 Main Street, 12th Floor Irvine, CA 92514 Attn Michele A. Staples, Esq. SPACE ABOVE THIS LINE FOR RECORDER'S USE NOTICE TO PROSPECTIVE PURCHASERS OF INCOMPLETE PUBLIC IMPROVEMENTS TO ALL PARTIES ACQUIRING AN INTEREST IN THE REAL PROPERTY DESCRIBED ON EXHIBIT"A," attached hereto (the"Property'), please take notice that: 1. Certain of the public improvements required to serve the Property, as more particularly described on Exhibit"B", attached hereto, remain incomplete as of the date hereof, including without limitation, certain water and sewer infrastructure and laterals, roadway improvements, curbs and gutters, and sidewalks ("Public Improvements"). 2, Completion of the Public Improvements by the owner(s) of the Property, and/or their successors or assigns, and acceptance thereof by the City of Palm Springs, shall be required prior to issuance of any permits, approvals, or certificates of occupancy for construction or sale of any residences on any lot within the Property. This instrument is being recorded by the undersigned owner of the Property concurrently with a deed of trust in favor of the City of Palm Springs to secure the performance of owner's obligation to complete construction and installation of the incomplete Public Improvements. This Notice shall binding on future owners and encumbrancers, and each of their respective successors, heirs and assigns and shall continue in effect until the City accepts the completed Public Improvements and releases any associated performance bonds; whereupon, the City shall record a written termination and release as confirmation of owner's completion of the subject Public Improvements. OWNER: PS AVENIDA CABALLEROS/SAN RAFAEL, LLC, Dated: 2009 a Delaware limited liability company By: California Development Enterprise, Inc., a California corporation, Its Manager By. Name: Its:: By: Name: Its:: Approved this day of July, 2009. Approved as to form and content this day of July, 2009. City Engineer Douglas C. Holland, Esq., City Attorney of the City of Palm Springs By. By: Diego Santana, Es ., Asst. City Attorne 5297-381 A 3\NOTC\908880 2 ACKNOWLEDGMENTS STATE OF CALIFORNIA ) COUNTY OF ) On 20—,before me, a Notary Public,personally appeared I who proved to mu on the basis of satisfactory evidcncc to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in lus/her authorized capacity,and that by his/her signature on the instmincnt 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 STATE OF CALIFORNIA ) COUNTY OF ) On ,20, before me, ,a Notary Public,personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her 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 tinder the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal, Signature STATE OF CALIFORNTA ) COUNTY OF ) On 20,before me, a Notary Public,personally appeared I who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,and that by his/her signature on the instrument the person, or the entity upon behalf of whicb 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 5297-38143\NOTO 908880 2 �ptipALM sA? iy V N r4;�rasN�p. CITY COUNCIL STAFF REPORT DATE: September 2, 2009 NEW BUSINESS SUBJECT: APPROVE THE EXCHANGE OF BOND FOR A RECORDED DEED OF TRUST AS SECURITY FOR COMPLETION OF FUTURE IMPROVEMENTS FOR THE PALERMO AND MURANO PROJECTS. FROM: David H. Ready, City Manager BY: Department of Public Works and City Attorney SUMMARY The developer of the Palermo condominium project and the Murano project has requested that the City of Palm Springs ("City") release the bonds on deposit in exchange for recorded Deeds of Trust securing performance of the remaining Works of Improvement. Pursuant to the Subdivision Improvement Agreements for both projects, the City Attorney's Office has reviewed and approved the Deeds of Trust as appropriate forms of security. RECOMMENDATION- 1. Approve the exchange of the posted security bonds for Deeds of Trust as security from P.S. VENTURE INDIAN CANYON/SAN RAFAEL, LLC, and PS AVENIDA CABALLEROS/SAN RAFAEL, LLC, for completion of future improvements for the Palermo, Tract Map 33561, and Murano, Tract Map 33933. 2. Direct the City Clerk to execute a Certificate of Acceptance for the Deeds of Trust. STAFF ANALYSIS: The developer of the Palermo condominium project and the Murano project has requested that the City of Palm Springs ("City") release the bonds on deposit in exchange for a recorded Deed of Trust securing performance of the remaining Works of Improvement. The condominium project has been constructed in phases although the map is for a single lot (typical for condominium developments). The initial "phase" of the project has been completed and is occupied. All Works of Improvement related to, and necessary for the habitation of, said "phase" have been installed, completed, inspected and approved by the City. The Subdivision Improvement Agreement allows for the Works of Improvement to be installed/completed in phases pursuant to Section 2.2 thereof. The single family project will have a Notice recorded against the remaining lots ITEM NO. 15r C, City Council Staff Report September 2, 2009-- Page 2 Palermo and Murano Bond Substitution advising any potential purchaser of the incomplete improvements related to those unfinished lots. Department of Public Works has confirmed that the remaining Works of Improvement are unnecessary for the existing residents should the developer default and walk away from the project entirely. Further, in the event of a default the property will either revert to acreage, in which case the Works of Improvement are unnecessary, or it will be purchased by a subsequent developer (before or after foreclosure, Section B(13) of DOT) that will be subject to the Subdivision Improvement Agreement and the recorded Deed of Trust. Since the Deed of Trust is for all intents and purposes valueless based on the difference between the appraised value and the outstanding construction loan in first position, it is meant to be merely a placeholder until such time as the developer resumes construction. Section B(5) of the Deed of Trust requires the developer to re-post bonds at the time of commencement of construction. Based on the foregoing requirement, together with the Subdivision Improvement Agreement and the Conditions of Approval, the City could refuse to issue building permits until the replacement bonds have been posted. The rationale for approving the above-described bond substitution is that the City is protected by the requirement for replacement security set forth in the Deed of Trust once construction resumes; should construction fail to resume, no liability exists to the City since no further Works of Improvement are required to service existing residents. Additionally, the City aids and encourages development by relieving some of the financial pressure on the developer during these challenging economic times. FISCAL IMPACT: No fiscal impact. David J. Barakian Thomas Wils Fr Asgistanf City Manager Director of Public Works/City Engineer David H. Ready, er Dougl s C. Holland, City Attorney Attachments: 1. Deeds of Trust 2. Notice to Purchasers 2 ATTACHMENTS WILL BE MATERIALS TO FOLLOW