Loading...
HomeMy WebLinkAboutA6642 - SELENE PALM SPRINGS - OPERATIONS CONVENANT 2017--0544662 12/28/2017 12:28 Pet Fee: $ 0.00 FREE RECORDING REQUESTED BY Page I of 22 AND WHEN RECORDED MAIL TO: Countyeof1RRivversideel Records Peter Aidana rder ISe ����j, E �o ' THE CITY OF PALM SPRINGS , , ' ; ' 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attention: City Clerk *qri'{ (Space Above This Line for Recorder's Office Use Only) AMENDED AND RESTATED OPERATIONS COVENANT AGREEMENT NO. 6642 THIS AMENDED AND RESTATED OPERATIONS COVENANT AND DECLARATION OF COVENANTS AND RESTRI. TIONS (the "Agreement" or "Restated Covenant") is made and entered into this Way of November, 2017, by and between the CITY OF PALM SPRINGS, a municipal corporation and charter city ("City"), by and through its City Council, and Selene Palm Springs, LLC, a California limited liability company, ("Owner"). RECITALS : A. The City of Palm Springs adopted Chapter 5.26 of its Municipal Code in December, 2007 to provide a Hotel Operations Incentive Program ("Program") for the operation, maintenance and expansion of the inventory of quality and first class hotels within the City that enhance the tourist and travel experience for visitors to the City, maximize the use of the City's Convention Center, provide attractive and desirable visitor serving facilities and experiences, and assist the City in achieving its tourism goals. (Chapter 5.26 of the Municipal Code is incorporated herein by reference and defined terms therein shall, unless otherwise indicated, have the same meanings herein.) B. On December 17, 2014, City and Equi-Cap, LLC, a California limited liability company, ("Equi-Cap"), entered into that certain Operations Covenant for a first class new hotel to contain approximately 205 hotel rooms identified as the Selene Palm Springs Resort, (the "Original Hotel"), to be developed on that certain real property, (the "Site"), which is generally located at the northeast corner of Calle Alvarado and Amado Road as legally described on Exhibit "A", and as depicted on the Site Plan attached hereto as Exhibit "B", incorporated herein by reference. The Operations Covenant was recorded on March 6, 2015, as Document No. 2015- 0090568, (the "Original Covenant"). AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 1 OF 16 C. At the time of the execution of the Original Covenant, City was under contract with Owner, as successor in interest, pursuant to that certain Purchase and Sale Agreement, (Agreement No. 6329), as amended, originally approved by the City Council on March 6, 2013, and originally executed by and between the City and CDI Ventures, LLC, a California limited liability company, ("CDI"), to convey fee title real property interest in the Site for the purposes of developing a new first class hotel on the Site. D. The Original Covenant was entered into by and between City and Owner's affiliate, Equi-Cap. However, at the time of execution of the Original Covenant, neither Owner nor Equi-Cap had any real property interest in the Site. Amendment No. 1 dated March 5, 2014, to Agreement No. 6329 confirmed that Praetor Investments, LLC, a California limited liability company, ("Praetor"), was the successor in interest to CDI. Amendment No. 2 to Agreement No. 6329 dated October 1, 2014, confirmed that Selene Palm Springs, LLC, a California limited liability company, was the successor in interest to Praetor. It is the intention of the Parties to acknowledge that Selene Palm Springs, LLC, a California limited liability company, as Owner herein, is the owner of any and all rights in and to the Program, pursuant to this Restated Covenant. E. On August 26, 2016, City and Owner completed the real property transaction consummated by Agreement No. 6329, and City conveyed fee title interest in the Site to Owner pursuant to that certain Grant Deed recorded as Document No. 2016- 0367646. F. On June 7, 2017, the City Council adopted Resolution No. 24236, approving an amendment to Final Planned Development District 333 proposed by Owner, revising the Original Hotel to a first class new hotel project consisting of 169 hotel rooms, to be operated as a "Dream Hotel" brand hotel by the Dream Hotel Group, (the "Dream Hotel" or "Project"). The Project approved by the City Council also includes 34 multi- family condominium residential units. It is the intention of the Parties to identify the Dream Hotel as the "first class new hotel" that will benefit from participation in the Program pursuant to this Restated Covenant. G. In accordance with the City's approval of the Dream Hotel on June 7, 2017, Owner will submit construction drawings for the Dream Hotel to the City for review and approval on or before December 31, 2017, and will be prepared to commence with demolition of existing surface improvements and grading operations on the Site on or before December 31, 2017. H. Pursuant to Chapter 5.26 of the Municipal Code, Owner must demonstrate that the Hotel is "under construction" prior to December 31, 2017. The Parties hereby acknowledge that in light of the City's recent approval of the amendment to Planned Development District 333 on June 7, 2017, Owner will not be in a position to demonstrate that the Hotel is "under construction" prior to December 31, 2017, and it AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 2 OF 16 is the intention of the Parties to provide for an extension of time for Owner to demonstrate such compliance pursuant to this Restated Covenant. I. The Parties acknowledge that the Dream Hotel, as entitled and approved, will qualify as a new First Class Hotel under and pursuant to the provisions of Chapter 5.26, and further, the Parties hereby agree that pursuant to the terms of this Restated Covenant, the obligation to demonstrate that the Dream Hotel will be "under construction" prior to December 31, 2017, in accordance with Chapter 5.26 shall be extended eighteen (18) months to June 30, 2019. Owner further agrees that it shall: (i) prepare construction drawings for the vertical "core and shell" of the Dream Hotel, and will submit these construction drawings to the City for review and approval for building permit on or before April 30, 2018; (H) proceed with construction of the underground parking facility and the foundation for the vertical construction of the Dream Hotel not later than April 1, 2018; (iii) commence with construction of the vertical "core and shell" of the Dream Hotel by December 31 , 2018; and (iv) complete construction of the Dream Hotel by June 30, 2020, unless such completion date is otherwise further modified in accordance with an amendment to the Purchase and Sale Agreement entered into between the City and Owner (identified as Agreement No. 6329, approved by action of the City Council of the City, and whereby the completion date is a necessary prerequisite to complying with the terms of this Restated Covenant. It is the intention of the Parties to incorporate herein this Agreement the revised obligation dates for commencement and completion of construction of the Dream Hotel, and that if completed and under operation by the dates of commencement and completion as stated herein this Recital, the Dream Hotel will qualify as a new First Class Hotel and be entitled to benefits thereof under and pursuant to the provisions of Chapter 5.26 of the Municipal Code and this Agreement. J. Except as otherwise allowed pursuant to Section 7.12 of this Restated Covenant, Owner understand and agrees that, to the extent Owner does not construct a "Dream Hotel" brand hotel, and pursues construction of an alternatively branded hotel, such alternatively branded hotel will not qualify as a new First Class Hotel, and shall not be entitled to any benefits thereof under or pursuant to the provisions of Chapter 5.26 of the Municipal Code and this Agreement. Accordingly, this Agreement will be of no further effect, and City shall have no obligations hereunder. K. City and Owner now desire to place restrictions upon the use and operation of the Hotel, in order to ensure that the Hotel shall be operated continuously as a First Class Hotel available for short-term rental for the term of this Restated Covenant. L. City and Owner also agree that in return for participation in the Program, Owner shall agree to operate the Hotel as a "Dream Hotel" brand hotel; participate in the Palm Springs Convention Center's Committable Rooms Program; and provide City with a minimum of eight (8) room-nights per month for official City use; and, City AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PACE 3 OF 16 agrees to share a percentage of Transient Occupancy Tax Increment with Owner pursuant to the Program guidelines. M. The City finds that no further environmental review is required in connection with the approval of this Restated Covenant, in that in connection with City approval of the entitlements related to the Project on June 7, 2017, the City Council approved a mitigated negative declaration, and the City finds that this mitigated negative declaration is the controlling environmental document for the Project, and that no further environmental review is necessary. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Owner hereby conveys to the City the Operating Covenants described herein, and City hereby agrees to provide Owner with funds as provided under the Program and as set forth hereinafter. ARTICLE I STATEMENT OF OPERATING COVENANTS 1.1. OPERATION AND USE COVENANT. Beginning on or before June 30, 2020, Owner covenants to operate, maintain, and use the Dream Hotel in accordance with this Agreement. All uses conducted on the Site, including, without limitation, all activities undertaken by the Owner pursuant to this Agreement shall, in all material respects, conform to requirements of this Agreement and Palm Springs Municipal Code. The parties understand and agree that the Owner may seek to amend this Agreement pursuant to certain terms and conditions as stated herein, and that in the event of City approval of such an amendment, a hotel identified by Owner with a flag or brand apart from the Dream Hotel may serve to fulfill Owner's duties hereunder. Absent such an amendment hereto, Owner's operation, maintenance and use of a Dream Hotel shall be a condition precedent to Owner's receipt of any and all consideration or benefit under the Program and hereunder. 1.2 HOTEL USE. The Owner hereby agrees that the Project is to be owned, managed, and operated as a "Dream Hotel" brand hotel in a first-class manner, and the Project's participation in the Program shall continue in accordance with the terms of the Program, for a term equal to thirty years commencing upon the date Owner first receives from the City the Owner's share of transient occupancy tax revenues pursuant to the Program, or until Owner has received from the City the total sum of fifty million dollars ($50,000,000) if that occurs prior to the expiration of said thirty years, unless Owner's participation in the Program is terminated prior thereto in accordance with this Agreement (the "Term"). Subject to Palm Springs Municipal Codes Section 5.26.040(a) and Sections 7.9, 7.11, and 7.15 of this Covenant, during the Term, City shall pay to Owner, within thirty days after receipt from Owner of twelve monthly payments made by Owner to the tax administrator per Section 3.24.080 of the Municipal Code, an amount equal to seventy-five percent (75%) of the adjusted tax rate of those payments made to AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 4 OF 16 the City. City acknowledges and agrees that City has reviewed proposed development and operational plans for the Dream Hotel and concluded that such plans are in substantial compliance with and will satisfy First Class Hotel requirements of the City and Chapter 5.26 of the Municipal Code. 1.3 HOUSING USES PROHIBITED. Excepting therefrom the 34 multi-family residential condominium units approved as part of the Project, none of the 169 hotel rooms in the Project will at any time be utilized as a non-transient residential property including dormitory, fraternity or sorority house, rooming house, nursing home, hospital, sanitarium, or trailer court or park without the City's prior consent which consent may be given or withheld in its sole and absolute discretion. 1.4 CONVERSION OF PROJECT. Excepting therefrom the 34 multi-family residential condominium units approved as part of the Project, no part of the Project will at any time be owned by a cooperative housing corporation, nor shall the Owner take any steps in connection with the conversion of the 169 hotel rooms to such ownership or uses to condominiums, or to any other form of ownership, without the prior written approval of the City Council which approval may be given or withheld in its sole and absolute discretion. ARTICLE2 WARRANTIES AND COVENANTS 2.1. WARRANTIES AND COVENANTS. For the Term of this Agreement, the Owner hereby represents, covenants, warrants and agrees as follows: 1. Owner has completed the City's application for the Hotel Operations Incentive Program. Since the Dream Hotel will be a new hotel, City has determined the Transient Occupancy Tax Base to be used to calculate the Transient Occupancy Tax Increment shall be zero dollars ($0.00), and the Owner accepts such Transient Occupancy Tax Base. 2. Owner hereby agrees to subscribe to the Palm Springs Convention Center's Committable Rooms Program or any similar successor program as identified by the City Manager without being obligated to incur any additional costs or expenses. 3. Upon City's prior request, Owner shall provide the City at no cost eight (8) rooms for one (1) night (or 4 rooms for 2 nights) other than Friday or Saturday nights each month for use for City purposes as approved or designated by the City Manager, provided that such use by the City shall be subject to the rooms being available at the time of the City's request. Such accommodations AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 5 OF 16 shall include all services and amenities for which the Owner would normally collect transient occupancy taxes but will not include services and amenities that are optional to the transient and for which the transient is not required to pay a transient occupancy tax. City shall be responsible for any transient occupancy taxes for any occupancy provided to City under the provisions of this paragraph. Notwithstanding anything in this Agreement to the contrary, if the City does not use rooms during any month, then its right to use rooms with respect to that month shall expire at the end of that month and shall not accrue; provided, however, if the City was unable to use rooms solely because Owner's Hotel had no rooms available when the City requested a room in accordance with this Section 2.1.3, then, the City's right to use rooms shall not expire and may be used by the City in a subsequent month. ARTICLE3 MAINTENANCE 3.1. MAINTENANCE. 1. Maintenance Obligation. Owner, for itself and its successors and assigns, hereby covenants and agrees to maintain and repair or cause to be maintained and repaired the Site and all related on-site improvements and landscaping thereon, including, without limitation, buildings, parking areas, lighting, signs and walls in a first class condition and repair, free of rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction, at Owner's sole cost and expense. Such maintenance and repair shall include, but not be limited to, the following: (i) sweeping and trash removal; (ii) the care and replacement of all shrubbery, plantings, and other landscaping in a healthy condition; and (iii) the repair, replacement and restriping of asphalt or concrete paving using the same type of material originally installed, to the end that such paving at all times be kept in a level and smooth condition. In addition, Owner shall be required to maintain the Project in such a manner as to avoid the reasonable determination of a duly authorized official of the City that a public nuisance has been created by the absence of adequate maintenance such as to be detrimental to the public health, safety or general welfare or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within one thousand (1,000) feet of such portion of the Site. 2. Parking and Driveways. The driveways and traffic aisles on the Site shall be kept clear and unobstructed at all times. AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 6 OF 16 3. Right of Entry. In the event Owner fails to maintain the Site in the above-mentioned condition, and satisfactory progress is not made in correcting the condition within thirty (30) days from the date of written notice from City (such notice shall reasonably identify the required maintenance), City may, at City's option, and without further notice to Owner, declare the unperformed maintenance to constitute a public nuisance. Thereafter, either City or its employees, contractors, or agents, may cure Owner's default by entering upon the Site and performing the necessary landscaping and/or maintenance in accordance with Section 3.1.1 above. The City shall give Owner, its representative, or the residential manager reasonable notice of the time and manner of entry, and entry shall only be at such times and in such manner as is reasonably necessary to carry out this Agreement. Owner shall pay such costs as are reasonably incurred by City for such maintenance, including attorneys' fees and costs. 4. Lien. If any costs incurred by City under Section 3 above are not reimbursed within thirty (30) days after Owner's receipt of City's written request for reimbursement, the same shall be deemed delinquent, and the amount thereof shall bear interest thereafter at a rate of the lower of ten percent (10%) per annum or the legal maximum until paid. Any and all delinquent amounts, together with said interest, costs and reasonable attorney's fees, shall be an obligation of Owner as well as a lien and charge, with power of sale, upon the property interests of Owner, and the rents, issues and profits of such property. City may bring an action at law against Owner obligated to pay any such sums or foreclose the lien against Owner's property interests. Any such lien may be enforced by sale by the City following recordation of a Notice of Default of Sale given in the manner and time required by law as in the case of a deed of trust; such sale to be conducted in accordance with the provisions of Section 2924, et seq., of the California Civil Code, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any other manner permitted by law. Any monetary lien provided for herein shall be subordinate to any bona fide mortgage or deed of trust covering an ownership interest or leasehold or sub-leasehold estate in and to any portion of the Site, and any purchaser at any foreclosure or trustee's sale (as well as any deed or assignment in lieu of foreclosure or trustee's sale) under any such mortgage or deed of trust shall take title free from any such monetary lien, but otherwise subject to the provisions hereof; provided that, after the foreclosure of any such mortgage and/or deed of trust, all other assessments provided for herein to the extent they relate to the expenses incurred subsequent to such foreclosure, assessed hereunder to the purchaser at the foreclosure sale, as owner of the subject Site after the date of such foreclosure sale, shall become a lien upon such Site upon recordation of a Notice of Assessment or Notice of Claim of Lien as herein provided. In the event of any such foreclosure, City (or successor) agrees to and shall recognize and AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 7 OF 16 honor any existing commercial (non-transient occupancy) leases in effect with respect to portions of the Project, provided that commercial tenants of such leases agree to subordinate and attorn to City (or successor) as the new landlord with respect to such leases. ARTICLE4 COMPLIANCE WITH LAWS 4.1. COMPLIANCE WITH LAWS. Owner shall comply with all ordinances, regulations and standards of the City and City applicable to the Site. Owner shall comply with all rules and regulations of any assessment district of the City with jurisdiction over the Site. ARTICLE 5 CITY OFFICERS AND EMPLOYEES, CONFLICT OF INTEREST, AND NOW DISCRIMINATION 5.1. NON-LIABILITY OF CITY OFFICERS AND EMPLOYEES. No officer or employee of the City shall be personally liable to the Owner, or any successor-in- interest, in the event of any default or breach by the City or for any amount which may become due to the Owner or to its successor, or for breach of any obligation of the terms of this Agreement. 5.2 CONFLICT OF INTEREST. Owner acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Owner enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Owner warrants that Owner has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. 5.3 COVENANT AGAINST DISCRIMINATION. a. In connection with its performance under this Agreement, Owner shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, marital status, ancestry, national origin (defined as place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition. Owner shall ensure that applicants are employed, and that employees are treated during their employment, without regard to their race, religion, color, sex, age, marital status, ancestry, national origin (defined as place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion or AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 8 OF 16 transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Owner shall otherwise fully comply with the provisions of Palm Springs Municipal Code Sections 2.04.100 and 7.09.040 relating to non-discrimination. b. Owner shall not discriminate against or segregate any person, or group of persons, on account of race, religion, color, sex, age, marital status, ancestry, national origin (defined as place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, or any part thereof, nor shall Owner, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of guests or vendees of the Site, or any part thereof. ARTICLE6 COVENANTS TO RUN WITH THE LAND 6.1. COVENANTS TO RUN WITH THE LAND. Owner hereby subjects the Site to the covenants, reservations, and restrictions set forth in this Agreement. City and Owner hereby declare their express intent that all such covenants, reservations, and restrictions shall be deemed covenants running with the land and shall pass to and be binding upon the Owner's successors in title to the Site; provided, however, that on the termination of this Agreement said covenants, reservations and restrictions shall expire. All covenants without regard to technical classification or designation shall be binding for the benefit of the City, and such covenants shall run in favor of the City for the entire term of this Agreement, without regard to whether the City is or remains an owner of any land or interest therein to which such covenants relate. Each and every contract, deed or other instrument hereafter executed covering or conveying the Site or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations, and restrictions, regardless of whether such covenants, reservations, and restrictions are set forth in such contract, deed or other instrument. City and Owner hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that Owner's legal interest in the Site is rendered less valuable thereby. City and Owner hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Project by the intended beneficiaries of such covenants, reservations, and restrictions, and by furthering the public purposes for which the City was formed. AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 9 OF 16 Owner, in exchange for the City entering into this Agreement, hereby agrees to hold, sell, and convey the Site subject to the terms of this Agreement. Owner also grants to the City the right and power to enforce the terms of this Agreement against the Owner and all persons having any right, title or interest in the Site or any part thereof while such party owns the Site. No party shall have any liability or obligation in connection with any breach occurring while such party is not the owner of the Site. Within fifteen (15) business days after request of Owner, City shall execute and provide to Owner an estoppel certificate, in the form approved by the City Attorney of the City, confirming whether or not Owner is in breach of any obligations under this Agreement and identifying any required cure. ARTICLE 7 INDEMNIFICATION 7.1 . INDEMNIFICATION. Owner agrees for itself and its successors and assigns to indemnify, defend, and hold harmless City and its respective officers, members, officials, employees, agents, volunteers, and representatives from and against any loss, liability, claim, or judgment to or by any third party relating to development and/or operation of the Project by Owner, excepting only any such loss, liability, claim, or judgment arising solely out of the intentional wrongdoing or gross negligence of City or its respective officers, officials, employees, members, agents, volunteers, or representatives. Owner further agrees for itself, and its successors and assigns to indemnify and defend and hold harmless the City, its respective officers, members, officials, employees, agents, volunteers, and representatives from and against any loss, liability, claims, damages, penalties, losses, costs, expenses, injuries and/or liabilities arising out of claims that Owner's participation in the Program creates a public work for prevailing wage purposes thereby requiring the payment of prevailing wages and this obligation shall apply regardless of whether or not the claim, damage, penalty, loss, cost, expense, injury and/or liability complained of arises out of or relates in any way to any negligence on the part of City. Owner, while in possession of the Site, and each successor or assign of Owner while in possession of the Site, shall remain fully obligated for the payment of property taxes and assessments in connection with the Site. The foregoing indemnification, defense, and hold harmless agreement shall only be applicable to and binding upon the party then owning the Site or applicable portion thereof. 7.2. ATTORNEYS' FEES. In the event that a party to this Agreement brings an action against the other party hereto by reason of the breach of any condition, covenant, representation or warranty in this Agreement, or otherwise arising out of this Agreement, the prevailing party in such action shall be entitled to recover from the other reasonable expert witness fees, and its reasonable attorney's fees and costs. Attorney's fees shall include attorney's fees on any appeal, and in addition a party AMENDED lRESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 10 OF 16 entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, including the conducting of discovery. 7.3. AMENDMENTS. This Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the real property records of the County of Riverside. 7.4. NOTICE. Any notice required to be given hereunder shall be made in writing and shall be given by personal delivery, certified or registered mail, postage prepaid, return receipt requested, at the addresses specified below, or at such other addresses as may be specified in writing by the parties hereto: City: City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager Copy to: City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Attorney Owner: Selene Palm Springs, LLC 9190 W. Olympic Blvd., Suite 412 Beverly Hills, CA 90212 Telephone: 310-877-3110 Attn: Lauri Kibby The notice shall be deemed given three (3) business days after the date of mailing, or, if personally delivered, when received. 7.5. SEVERABILITY/WAIVER/INTEGRATION 1. Severability. If any provision of this Agreement or portion thereof, or the application to any person or circumstances, shall to any extent be held invalid, inoperative, or unenforceable, the remainder of the provisions, or the application of such provision or portion thereof to any other persons or circumstances, shall not be affected thereby; provided, that if any material terms or provisions of these Operating Covenants are rendered invalid, void and/or unenforceable, or due to changes in the law such terms or provisions would materially alter the terms of the transactions contemplated herein, the parties agree to meet and negotiate in good faith to attempt to reform these Operating Covenants to accomplish the intent of the parties. AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 11 of 16 2. Waiver. A waiver by either party of the performance of any covenant or condition herein shall not invalidate this Agreement nor shall it be considered a waiver of any other covenants or conditions, nor shall the delay or forbearance by either party in exercising any remedy or right be considered a waiver of, or an estoppel against, the later exercise of such remedy or right. 3. Integration. This Agreement contains the entire Agreement between the parties and neither party relies on any warranty or representation not contained in this Agreement. 4. Third Parties. No third party beneficiaries are intended, and the only parties who are entitled to enforce the provisions of these Operating Covenants are the City, Mortgagees, Owner and their respective successors and assigns. 7.6. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California and is subject to the provisions of Government Code Section 53083. 7.7. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall constitute one original and all of which shall be one and the same instrument. 7.8. TERMINATION. This Agreement may be terminated only (i) by and upon expiration of the Term, (ii) by mutual written agreement of the parties, and (iii) by and pursuant to the provisions of Section 7.9 or 7.10 below. In the event of any such termination, Owner (or its successor, as applicable) shall not be obligated to return any amounts previously paid to it by the City pursuant to the Program. 7.9 DEFAULT BY OWNER. If at any time during the Term, City contends that Owner has committed a material default with respect this Agreement, e.g., by failing to operate the Dream Hotel as a first class "Dream Hotel' brand hotel, City shall deliver to Owner written notice of default which specifies in detail all facts alleged by City to constitute such default. For a period of thirty days thereafter, Owner will have the right to commence and complete cure of the alleged default; provided, however, if the alleged default is of such a nature as to reasonably require more than sixty days to cure, and the Parties so agree, Owner will have such addition time as is reasonably necessary to complete such cure. Subject to Section 7.11 below, if Owner fails to timely cure such default, City shall then have the right to terminate this Agreement. (To the extent of any inconsistency between the provisions of this Section 7.9 and the provisions of Section 3.1 above, the provisions of this Section 7.9 shall prevail.) 7.10 DEFAULT BY CITY. If at any time during the Term, Owner contends that City has committed a material default with respect this Agreement, Owner may deliver to City written notice of default which specifies in detail all facts alleged by Owner to constitute such default. For a period of thirty days thereafter, City will have the right to commence and complete cure of the alleged default; provided, however, if the alleged AMENDED lRESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 12 OF 16 default is of such a nature as to reasonably require more than sixty days to cure, and the Parties so agree, City will have such addition time as is reasonably necessary to complete such cure. Subject to Section 7.11 below, if City fails to timely cure such default, Owner shall then have the right to terminate this Agreement or exercise any and all other rights and remedies available at law and in equity, and each of such rights and remedies shall be cumulative and not exclusive. 7.11 MORTGAGE PROVISONS. Anything in this Agreement to the contrary notwithstanding, with respect to any recorded mortgage or deed of trust given in good faith and for value and encumbering the Dream Hotel ("Mortgage"), any holder thereof that has delivered to City a copy of such recorded Mortgage and current contact information ("Mortgagee") will be entitled rights and benefits in accordance with the following: 1. City acknowledges and agrees that the rights and obligations of Owner under this Agreement may, with or without approval by City, be conditionally assigned by Owner to any Mortgagee as security for performance of Mortgage obligations. 2. While any Mortgage remains in effect, City will not amend or modify this Agreement in any material respect without receiving prior written approval from Mortgagee, which approval may not be unreasonably withheld, delayed or conditioned; provided, however, failure by Mortgagee to provide written approval or disapproval (and if disapproval the reasons therefor) within thirty days of delivery of request therefor shall be deemed to constitute approval by Mortgagee. 3. While any Mortgage remains in effect, in the event City delivers to Owner of any notice of default as referenced in either Section 3.1 or 7.9 above, City shall concurrently deliver a copy thereof to Mortgagee. 4. Delivery of any such notice of default notwithstanding, City will not terminate or initiate or pursue any action to terminate this Agreement as long as Mortgagee diligently (i) declares a default by Owner under the Mortgage, (ii) pursues foreclosure and/or other appropriate actions under the Mortgage, (iii) pays to City all amounts that would otherwise have been payable by Owner to City, and (iv) cures non- monetary defaults. 7.12 Operator Provisions. City acknowledges and agrees that operational obligations of Owner may, with or without consent of City, be assigned by Owner to any entity owned or wholly controlled by Owner or its Members or the Dream Hotel so long as the hotel remains a "Dream Hotel' brand hotel. Except as specified herein, in the event that the Dream Hotel brand hotel to be developed hereunder ceases to operate as a Dream Hotel brand hotel, Owner's benefits accruing pursuant to the Program will terminate, effective immediately. However, in the event of Dream Hotel unilaterally ceasing operation at the Site, or AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 13 OF 16 Owner terminating Dream Hotel for cause after at least five (5) years of operation as a Dream Hotel brand hotel (in either case, a "Dream Hotel Termination Event"), then Owner shall have the right to apply to the City for approval of an amendment to this Restated Covenant, which amendment shall provide for the resumption of said benefits pursuant to the Program. The City will consider any such application for an amendment at a public hearing provided that the City makes a determination, in an exercise of the City's sole discretion, that the flag or brand of hotel that will operate or is proposed to operate at the Site as a replacement for the Dream Hotel brand hotel is commensurate with or superior to Dream Hotel's market share and position as of this Agreement's Effective Date. The parties understand and agree that Owner has no right to or specific expectation of any amendment to this Restated Covenant subsequent to a Dream Hotel Termination Event. Developer shall have the duty to provide the City with written notice of any actual or potential Dream Hotel Termination Event immediately upon Owner's determination that a Dream Hotel Termination Event has taken place or is reasonably likely to take place. That notice shall include without limitation Owner's identification of the flag or brand of an actual or potential replacement hotel proposed as the basis for an amendment hereunder, and relevant data to assist the City in determining whether the replacement hotel is consistent with the quality standard required by this Restated Covenant. Further, Owner covenants that Owner shall reimburse City for the cost of City procurement of a study, by a qualified consultant, of the proposed replacement hotel, and whether said replacement is consistent with the requirements of this Restated Covenant. Upon City's approval of an amendment to this Restated Covenant, approving the replacement for the Dream Hotel brand hotel, and, in connection therewith, such replaced Hotel Operator may assume all or part of Owner's Hotel operation obligations under this Agreement; provided, however, Owner shall retain ultimate responsibility for such Hotel operation obligations. City agrees that while any Hotel Operator agreement is in effect, and provided that City has been put on notice of such agreement and received contact information for such Operator, in the event City delivers to Owner of any notice of default as referenced in either Section 3.1 or 7.9 above, City shall concurrently deliver a copy thereof to the Operator. 7.13 COOPERATION. Each party agrees to and shall do and perform such other and further acts and properly execute and deliver such other and further documents as may be reasonably necessary, expedient or convenient to implement and/or effectuate the intents and purposes hereof. City and Owner agree to cooperate with each other and/or with any Mortgagee or proposed Mortgagee, in a manner consistent with concepts and principles of good faith, fair dealing and commercial reasonableness, with respect to consideration, implementation and execution of any modification(s) to this Agreement reasonably requested by the City, Owner, Mortgagee or proposed Mortgagee. AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 14 of 16 7.14 REASONABLE APPROVALS. Whenever this Agreement requires or calls for the approval or consent of any party hereto, such approval shall not be unreasonably withheld, delayed or conditioned. 7.15 BINDING ARBITRATION. In the event of any dispute or controversy arising out of or relating to this Agreement, or the breach or performance of it, the parties shall reasonably attempt to resolve such dispute or controversy without resort to third party review or resolution. The parties shall first meet and confer on any such dispute or controversy. Such meeting(s) shall include any principal of the Owner and, at the discretion of the City, may include the City Manager and/or the City Council, either as a whole or through an ad hoc subcommittee designated by the City Council. Upon a determination by the parties that they are or will be unable to resolve the dispute or controversy on their own, then the parties shall submit the dispute, controversy or any remaining unresolved matter to binding arbitration, to be held in the Coachella Valley, and be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association. 7.16 INCORPORATION OF RECITALS AND EXHIBITS. Each of the recitals set forth above and each of the exhibits attached hereto are agreed to and made part of this Agreement. 7.17 AUTHORITY. Each party represents and warrants to the other that such party has full right, power and authority to sign, execute and enter into this Agreement. [SIGNATURES ON NEXT PAGE] AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO,6642 PAGE 15 OF 16 IN WITNESS WHEREOF, the City and Owner have executed this Operations Covenant by duly authorized representatives on the date first written hereinabove. "CITY" THE CITY OF PALM SPRINGS, a municipal corporation and charter city B David H. Ready, City ger ATTEST: APPROVED 8Y CITY COUNCIL �� H���0.,c �l>✓r� �n 5 A 11I�5��7 Atob�i APP V AS TO F M: Edward Z. Kotkin, City Attorney "OWNER" Selene Palm Springs, LLC, a California limited 2�Gtc t liability company OV 272017 By: Lauri Kibby for CDI Ventu LC Managing Member By. .5 i yod 1,K) (et"V 4V--rf) r+ Abdul Q. Lalani for Qaiser Capital, LLC Managing Member [END OF SIGNATURES] • AMENDED I RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 16 OF 16 All-purpose Acknowledgment California only 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 On NOV 2 7 2017 beforeme, ek)Q'Qu?—� /t/OI7q Pu6UG / '"7 (here insert name and title of the officer), personally appeared who proved to me on the basis of satisfactory evidence to be the person(4 whose name(Koare subscribed to the within instrument _dIrrrrr1rrnoIIrrrrrrrrrrrunrlunNna, and acknowledged tom that he/sphey executed the same in his/ ENRIQUE SOLIS r heir authorized capacity(j&s7,and that by his/their signature( I, r COMM.#2166373 o5n the instrument the erson(4,or the entit u on behalf of which the NorARv Puauc-cEUIFORNI� q p Y P = RIVERSIDECOUNTY arson( )acted,executed the instrument. M Commiseio E� - p �urnrt�iruurnir�irir�iiiiiruu4F I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Notary Seal ITNESS m nd d offi ' seal.Zan . Signature For Bank Purposes Only Y ✓ c.i w . . o ��5j-y+--r�p o Pe,2�n J et./s 60 , T Description of Attached Document A p Type or Title of Document Y� L lc/C�i iT1ve ' / 0 R;2A114 )13yO�C/c-g�A-T Document Date — Number of Pages Signer(s)Other Than Named Above DSG53SOCA(Rev 02-ovu, FOO I-OOODSG5350CA-O 1 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. ACKNOWLEDGMENT OF INSTRUMENT (Cal. Civil Code Section 1181) State of California ) County of Riverside ) Ss. City of Palm Springs ) On December 21, 2017, before me, ANTHONY J. MEJIA, CITY CLERK, CITY OF PALM SPRINGS, CALIFORNIA, personally appeared DAVID H. READY, who I personally know is the CITY MANAGER of the CITY OF PALM SPRINGS whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his official and authorized capacity on behalf of the City of Palm Springs, a California Charter City. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and the official seal of the City of Palm Springs, California, this 21st day of December, 2017. PALM 3 OF A'pi A y c 4 CV ROOxG1EV `i Cgt1F0 \V1 Signature: A r ,ANTHOINY J M JIA TY CLERK Title or Type of Document AMENDED AND RESTATED OPERATIONS COVENANT AGREEMENT NO. 6642 IN WITNESS WHEREOF, the City and Owner have executed this Operations Covenant by duly authorized representatives on the date first written hereinabove. "CITY" THE CITY OF PALM SPRINGS, a municipal corporation and charter city By: David H. Ready, City Manager ATTEST: Kathleen D. Hart, Interim City Clerk APPROVED AS TO FORM: Edward Z. Kotkin, City Attorney "OWNER" Selene Palm Springs, LLC, a California limited liability company By: 5/9r7ed !) Lauri Kibby for CDI Ventures, LLC Managing Member 75JESSICA KARINA RAMIREZ Notary ID N 130723724My Commission ExpI B June 30,2120 Y Abdul Q. Lalani for alser Capital, LLC Managing Member [END OF SIGNATURES] AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 PAGE 16 OF 16 State of Texas County of Fort Bend Before me ASS l �it J I X.CJ �i on this day personally appeared Abdul Q. Lalani, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purpose Zonsideration therein expressed. Given under my hand and seal of office this day of D' JD2017. f JESSICA KARINA RAMIRE2 Notary ID i 130723724 N ry Public's Signature My Commission Expires June 30.2020 (Personalized Seal) EXHIBIT "A" LEGAL DESCRIPTION SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST,SAN BERNARDINO MERIDIAN. LEGAL DESCRIPTION BLOCKS 103, 105 AND 106 OF BUREAU OF LAND MANAGEMENT PLAT CA270040S0040E0, DATED]UNE 27, 1957, IN SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO MERIDIAN, IN THE CITY OF PALM SPRINGS,COUNTY OF RIVERSIDE,STATE OF CALIFORNIA,ACCORDING TO THE OFFICIAL PLAT THEREOF,AND 1S MORE PARTICULARLY DESCRIBED AS FALLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 106, THENCE ALONG THE WESTERLY LINE OF SAID LOTS 106 AND 103. NORTH 00°03135"WEST 645 16 FEET MORE OR LESS TO THE NORTHWEST CORNER OF SAID LOT 103: THENCE ALONG THE NORTHERLY LINE OF SAID LOT 103, SOUTH 89'43'40" EAST 354 25 FEET MORE OR LESS TO THE NORTHEAST CORNER OF SAID LOT 103, THENCE ALONG THE EASTERLY LINE OF SAID LOT 103.SOUTH 00"05'56"EAST 330.05 FEET MORE OR LESS TO THE SOUTHEAST CORNER OF SAID LOT 103, THENCE ALONG THE NORTHERLY LINE OF SAID LOT 105.SOUTH 89"49'25"EAST 352 97 FEET MORE OR LESS TO THE NORTHEAST CORNER OF SAID LOT 105, THENCE ALONG THE EASTERLY UNE OF SAID LOT 105,SOUTH 00'06'10"EAST 315.17 FEET MORE OR LESS TO THE SOUTHEAST CORNER OF SAID LOT 105, THENCE ALONG THE SOUTHERLY LINES OF SAID LOTS 105 AND 1D6. NORTH 89"46'1T'WEST 707.68 FEET TO THE POINT OF BEOINNINQ SAID ABOVE DESCRIBED AREA IN METES AND BOUNDS CONTAINS 7,80 ACRES, MORE OR LESS,AND INCLUDES PORTIONS OF ADJACENT ALLEYS AS VACATED IN DOCUMENT NUMBER 651 FROM THE CITY OF PALM SPRINGS.AND IS SUBJECT TO ALL COVENANTS,RIGHTS, RIGHTS-OF-WAY,ALLEY WAYS,AND EASEMENTS OF RECORD, INCLUDING AMADO ROAD, NORTH CALLE ALVARADO,AND NORTH AVENIDA CABALLEROS RIGHTS OF WAY. THIS DOCUMENT WAS PREPARED BY ME OR UNDER MY DIRECTION, �� Ec la"3 S�gfo BASED ON RECORD INFORMATION. L P 1 � FMR IIPR[CNOIVR No 7070 PHILLIP K. FOMOTOR,P.L.S. �^ 9rF. of (;atF�� AMENDED I RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 EXHIBIT"A" EXHIBIT "B" SITE PLAN Y f.ra w a to a+'ate.,-mm , "'" .� 1 '" . C r II' � ' • r i ' — M d i•, M r 4 M �e 4 ,t. y e AERIAL VIEW AMENDED/RESTATED OPERATIONS COVENANT FOR HOTEL INCENTIVE PROGRAM AGREEMENT NO.6642 EXHIBIT"B" DOC # 2015-0090568 03/06/2015 10:32A Fee:NC Page 1 of 15 Recorded in Official Records FREE RECORDING REQUESTED BY County of Riverside Peter Aldana AND WHEN RECORDED MAIL TO: Assessor, County clerk a Recorder THE CITY OF PALM SPRINGS IIII II IIII II I II III IIII IIII III 3200 E. Tahquitz Canyon Way _ Palm Springs, CA 92262 S R I U I PAGEI SIZE I DA I MISCI LONG RFD I COPY Attention: City Clerk 1 1 r, M A I L 1 465 426 1 PCOR I NCOR SMF CHG I QF"Au �C C�� T: CTY UNI U�� $jO OPERATIONS COVENANT A6642 THIS OPERATIONS COVENANT AND DECLARATION OF COVENANTS AND RESTRICTIONS ("Agreement" or "Covenant") is made and entered into this 17th day of December, 2014, by and between t�CITY OF PALM SPRINGS, a municipal corporation and charter city ("City"), and Equi-Cap, LLC, a California limited liability company ("Owner" or "Participant"). RECITALS : A. The City of Palm Springs adopted Chapter 5.26 of its Municipal Code in December, 2007 to provide a Hotel Operations Incentive Program ("Program") for the operation, maintenance and expansion of the inventory of quality and first class hotels within the City that enhance the tourist and travel experience for visitors to the City, maximize the use of the Cit 's P tY y Convention Center, provide attractive and desirable visitor serving facilities and experiences, and assist the City in achieving its tourism goals. (Chapter 5.26 of the Municipal Code is incorporated herein by reference and defined terms therein shall, unless otherwise indicated, have the same meanings herein.) B. Owner holds fee title to certain real property ("Site"), which is generally located at the northeast corner of Calle Alvarado and Amado Road as depicted on the Site Plan attached hereto as Exhibit "B", and legally described on Exhibit "A". The Site, which is located in the downtown area of the City of Palm Springs, California, is fully entitled for development of a first class new hotel to contain approximately 205 hotel rooms ("Hotel" or "Project"). Owner has applied for the Program and has provided satisfactory documentation confirming that the Selene Palm Springs Resort, as entitled and approved and when completed and under operation, will qualify as a new first class hotel and be entitled to benefits thereof under and pursuant to provisions of Chapter 5.26 of the Municipal Code and this Agreement. C. City and Owner now desire to place restrictions upon the use and operation of the Project, in order to ensure that the Project shall be operated continuously as a hotel available for short-term rental for the term of this Agreement. D. City and Owner also agree that in return for participation in the Program, Owner shall agree to operate the Project as a hotel; participate in the Palm Springs Convention Center's Committable Rooms Program; and provide City with a minimum of eight (8) room-nights per DCHRevise d I I A 3.201 4 month for official City use; and, City agrees to share a percentage of Transient Occupancy Tax Increment with Owner pursuant to the Program guidelines. E. The City finds that no further environmental review is required in connection with the approval of this Covenant in that in connection with City approval of entitlements related to the project, approved a mitigated negative declaration on November 20, 2013 and the City finds that this mitigated negative declaration is the controlling environmental document for this project and neither a subsequent EIR, supplemental EIR, or FIR Addendum is necessary. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Participant hereby conveys to the City the Operating Covenants described herein and City hereby agrees to provide Participant with funds as provided under the Program and as set forth hereinafter. ARTICLE 1 STATEMENT OF OPERATING COVENANTS 1.1. OPERATION AND USE COVENANT. Upon occupancy, Owner covenants to operate, maintain, and use the Selene Palm Springs Resort in accordance with this Agreement. All uses conducted on the Site, including, without limitation, all activities undertaken by the Owner pursuant to this Agreement shall, in all material respects, conform to requirements of this Agreement and Palm Springs Municipal Code. 1.2. HOTEL USE. The Owner hereby agrees that the Project is to be owned, managed, and operated as a hotel in a first-class manner, and the Project's participation in the Program shall continue in accordance with the terms of the Program, for a term equal to thirty % years commencing upon the date Owner first receives from the City the Owner's share of transient occupancy tax revenues pursuant to the Program, or until Owner has received from the City the total sum of fifty million dollars if that occurs prior to the expiration of said thirty years, "'V unless Owner's participation in the Program is terminated prior thereto in accordance with this Agreement (the "Term"). Subject to Palm Springs Municipal Codes Section 5.26.040(a) and Sections 7.9, 7.11, and 7.16 of this Covenant, during the Term, City shall pay to Owner, within thirty days after receipt from Owner of each monthly payment made by Owner to the tax administrator per Section 3.24.080 of the Municipal Code, an amount equal to seventy-five percent of each such payment. City acknowledges and agrees that City has reviewed proposed development and operational plans for the Hotel and concluded that such plans are in substantial compliance with and will satisfy first class Hotel requirements of the City and Chapter 5.26 of the Municipal Code. 1. Housing Uses Prohibited. None of the rooms in the Project will at any time be utilized as a non-transient residential property including dormitory, fraternity or sorority house, rooming house, nursing home, hospital, sanitarium, or trailer court or park without the City's prior consent which consent may be given or withheld in its sole and absolute discretion. _ OPERATIONS COVENANT j '2- FOR HOTEL INCENTIVE PROGRAM 2. Conversion of Project. No part of the Project will at any time be owned by a cooperative housing corporation, nor shall the Owner take any steps in connection with the conversion to such ownership or uses to condominiums, or to any other form of ownership, without the prior written approval of the City Council which approval may be given or withheld in its sole and absolute discretion. ARTICLE 2 WARRANTIES AND COVENANTS 2.1. WARRANTIES AND COVENANTS. For the Term of this Agreement, the Owner hereby represents, covenants, warrants and agrees as follows: 1. Owner has completed the City's application for the Hotel Operations Incentive Program. Since the Hotel will be a new hotel, City has determined the Transient Occupancy Tax Base to be used to calculate the Transient Occupancy Tax Increment shall be zero, and the Owner accepts such Transient Occupancy Tax Base. 2. Owner hereby agrees to subscribe to the Palm Springs Convention s Center's Committable Rooms Program or any similar successor program as identified by the City Manager without being obligated to incur any additional costs or expenses. 3. Upon City's prior request, Owner shall provide the City at no cost eight (8) —'LL rooms for one (1) night (or 4 rooms for 2 nights) other than Friday or Saturday nights each month for use for City purposes as approved or designated by the City Manager, provided that such use by the City shall be subject to the rooms being available at the time of the City's request. Such accommodations shall include all services and amenities for which the Owner would normally collect transient occupancy taxes but will not include services and amenities that are optional to the transient and for which the transient is not required to pay a transient occupancy taxes. City shall be responsible for any transient occupancy taxes for any occupancy provided to City under the provisions of this paragraph. Notwithstanding anything in this Agreement to the contrary, if the City does not use rooms during any month, then its right to use rooms with respect to that month shall expire at the end of that month and shall not accrue; provided, however, if the City was unable to use rooms solely because Owner's Hotel had no rooms available when the City requested a room in accordance with this Section 2.1.3, then, the City's right to use rooms shall not expire and may be used by the City in a subsequent month. ARTICLE 3 MAINTENANCE 3.1. MAINTENANCE. 1. Maintenance Obli ae tion. Owner, for itself and its successors and assigns, hereby covenants and agrees to maintain and repair or cause to be maintained and repaired the Site and all related on-site improvements and landscaping thereon, including, without limitation, buildings, parking areas, lighting, signs and walls in a first class OPERATIONS COVENANT j -3- FOR HOTEL INCENTIVE PROGRAM condition and repair, free of rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction, at Owner's sole cost and expense. Such maintenance and repair shall include, but not be limited to, the following: (i) sweeping and trash removal; (ii)the care and replacement of all shrubbery, plantings, and other landscaping in a healthy condition; and (iii) the repair, replacement and restriping of asphalt or concrete paving using the same type of material originally installed, to the end that such paving at all times be kept in a level and smooth condition. In addition, Owner shall be required to maintain the Project in such a manner as to avoid the reasonable determination of a duly authorized official of the City that a public nuisance has been created by the absence of adequate maintenance such as to be detrimental to the public health, safety or general welfare or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within one thousand (1,000) feet of such portion of the Site. The foregoing notwithstanding, Owner shall not be obligated to maintain any street or sidewalk areas, or landscaping therein, which are to be maintained by the City pursuant to a Project Financing Agreement executed by the City (as amended). 2. Parking and Driveway. The driveways and traffic aisles on the Site shall be kept clear and unobstructed at all times. 3. Rieht of Entry. In the event Owner fails to maintain the Site in the above- Y mentioned condition, and satisfactory progress is not made in correcting the condition within thirty (30) days from the date of written notice from City (such notice shall ; reasonably identify the required maintenance), City may, at City's option, and without m further notice to Owner, declare the unperformed maintenance to constitute a public -" nuisance. Thereafter, either City or its employees, contractors, or agents, may cure Owner's default by entering upon the Site and performing the necessary landscaping and/or maintenance in accordance with Section 3.1.1 above. The City shall give Owner, its representative, or the residential manager reasonable notice of the time and manner of entry, and entry shall only be at such times and in such manner as is reasonably necessary to carry out this Agreement. Owner shall pay such costs as are reasonably incurred by City for such maintenance, including attorneys' fees and costs. 4. Lien. If any costs incurred by City under Section 3 above are not reimbursed within thirty (30) days after Owner's receipt of City's written request for reimbursement, the same shall be deemed delinquent, and the amount thereof shall bear interest thereafter at a rate of the lower of ten percent (10%) per annum or the legal maximum until paid. Any and all delinquent amounts, together with said interest, costs and reasonable attorney's fees, shall be an obligation of Owner as well as a lien and charge, with power of sale, upon the property interests of Owner, and the rents, issues and profits of such property. City may bring an action at law against Owner obligated to pay any such sums or foreclose the lien against Owner's property interests. Any such lien may be enforced by sale by the City following recordation of a Notice of Default of Sale given in the manner and time required by law as in the case of a deed of trust; such sale to be conducted in accordance with the provisions of Section 2924, et seq., of the California OPERATIONS COVENANT j -4- FOR HOTEL INCENTIVE PROGRAM Civil Code, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any other manner permitted by law. Any monetary lien provided for herein shall be subordinate to any bona fide mortgage or deed of trust covering an ownership interest or leasehold or subleasehold estate in and to any portion of the Site, and any purchaser at any foreclosure or trustee's sale (as well as any deed or assignment in lieu of foreclosure or trustee's sale) under any such mortgage or deed of trust shall take title free from any such monetary lien, but otherwise subject to the provisions hereof, provided that, after the foreclosure of any such mortgage and/or deed of trust, all other assessments provided for herein to the extent they relate to the expenses incurred subsequent to such foreclosure, assessed hereunder to the purchaser at the foreclosure sale, as owner of the subject Site after the date of such foreclosure sale, shall become a lien upon such Site upon recordation of a Notice of Assessment or Notice of Claim of Lien as herein provided. In the event of any such foreclosure, City (or successor) agrees to and shall recognize and honor any existing commercial (non-transient occupancy) leases in effect with respect to portions of the Project, provided that commercial tenants of such leases agree to subordinate and attorn to City (or successor) as the new landlord with respect to such leases. ARTICLE 4 COMPLIANCE WITH LAWS 4.1. COMPLIANCE WITH LAWS. Owner shall comply with all ordinances, regulations and standards of the City and City applicable to the Site. Owner shall comply with a" all rules and regulations of any assessment district of the City with jurisdiction over the Site. ; ARTICLE 5 -" m NONDISCRIMINATION 5.1. NONDISCRIMINATION. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, gender, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, or any part thereof, nor shall Owner, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of guests or vendees of the Site, or any part thereof. C ARTICLE 6 COVENANTS TO RUN WITH THE LAND 6.1. COVENANTS TO RUN WITH THE LAND. Owner hereby subjects the Site to the covenants, reservations, and restrictions set forth in this Agreement. City and Owner hereby declare their express intent that all such covenants, reservations, and restrictions shall be deemed covenants running with the land and shall pass to and be binding upon the Owner's successors in OPERATIONS COVENANT j -5- FOR HOTEL INCENTIVE PROGRAM title to the Site; provided, however, that on the termination of this Agreement said covenants, reservations and restrictions shall expire. All covenants without regard to technical classification or designation shall be binding for the benefit of the City, and such covenants shall run in favor of the City for the entire term of this Agreement, without regard to whether the City is or remains an owner of any land or interest therein to which such covenants relate. Each and every contract, deed or other instrument hereafter executed covering or conveying the Site or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations, and restrictions, regardless of whether such covenants, reservations, and restrictions are set forth in such contract, deed or other instrument. City and Owner hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that Owner's legal interest in the Site is rendered less valuable thereby. City and Owner hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Project by the intended beneficiaries of such covenants, reservations, and restrictions, and by furthering the public purposes for which the City was formed. Owner, in exchange for the City entering into this Agreement, hereby agrees to hold, sell, and convey the Site subject to the terms of this Agreement. Owner also grants to the City the right and power to enforce the terms of this Agreement against the Owner and all persons having any right, title or interest in the Site or any part thereof while such party owns the Site. No party shall have any liability or obligation in connection with any breach occurring while such party is not the owner of the Site. Within fifteen (15) business days after request of Owner, City shall execute and provide =' to Owner an estoppel certificate, in the form approved by the City Attorney of the City, confirming whether or not Owner is in breach of any obligations under this Agreement and identifying any required cure. ARTICLE 7 INDEMNIFICATION 7.1. INDEMNIFICATION. Owner agrees for itself and its successors and assigns to indemnify, defend, and hold harmless City and its respective officers, members, officials, employees, agents, volunteers, and representatives from and against any loss, liability, claim, or judgment to or by any third party relating to development and/or operation of the Project by Owner, excepting only any such loss, liability, claim, or judgment arising solely out of the intentional wrongdoing or gross negligence of City or its respective officers, officials, employees, members, agents, volunteers, or representatives. Owner, while in possession of the Site, and each successor or assign of Owner while in possession of the Site, shall remain fully obligated for the payment of property taxes and assessments in connection with the Site. The foregoing indemnification, defense, and hold harmless agreement shall only be applicable to and binding upon the party then owning the Site or applicable portion thereof. OPERATIONS COVENANT j -6- FOR HOTEL INCENTIVE PROGRAM 7.2. ATTORNEYS' FEES. In the event that a party to this Agreement brings an action against the other party hereto by reason of the breach of any condition, covenant, representation or warranty in this Agreement, or otherwise arising out of this Agreement, the prevailing party in such action shall be entitled to recover from the other reasonable expert witness fees, and its reasonable attorney's fees and costs. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, including the conducting of discovery. 7.3. AMENDMENTS. This Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the real property records of the County of Riverside. 7.4, NOTICE. Any notice required to be given hereunder shall be made in writing and shall be given by personal delivery, certified or registered mail, postage prepaid, return receipt requested, at the addresses specified below, or at such other addresses as may be specified in writing by the parties hereto: City: City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager s Copy to: Woodruff, Spradlin& Smart, LLP ='u 555 Anton Boulevard, Suite 1200 W Costa Mesa, CA 92626 Attn: Douglas C. Holland, Esq. Owner: Equi-Cap, LLC 9190 W. Olympic, # 412 Beverly Hills, CA 90212 Telephone: 310.877.3110 Attn: Lauri Kibby The notice shall be deemed given three (3) business days after the date of mailing, or, if personally delivered, when received. 7.5. SEVERABILITY/WAIVER/fNTEGRATION 1. Severability. If any provision of this Agreement or portion thereof, or the application to any person or circumstances, shall to any extent be held invalid, inoperative, or unenforceable, the remainder of the provisions, or the application of such provision or portion thereof to any other persons or circumstances, shall not be affected thereby; provided, that if any material terms or provisions of these Operating Covenants are rendered invalid, void and/or unenforceable, or due to changes in the law such terms or provisions would materially alter the terms of the transactions contemplated herein, the parties agree to meet and negotiate in good faith to attempt to reform these Operating Covenants to accomplish the intent of the parties. OPERATIONS COVENANT j -7- FOR HOTEL INCENTIVE PROGRAM 2. Waiver. A waiver by either party of the performance of any covenant or condition herein shall not invalidate this Agreement nor shall it be considered a waiver of any other covenants or conditions, nor shall the delay or forbearance by either party in exercising any remedy or right be considered a waiver of, or an estoppel against, the later exercise of such remedy or right. 3. Integration. This Agreement contains the entire Agreement between the parties and neither party relies on any warranty or representation not contained in this Agreement. 4. Third Parties. No third party beneficiaries are intended, and the only parties who are entitled to enforce the provisions of these Operating Covenants are the City, Mortgagees, Participant and their respective successors and assigns. 7.6. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California and is subject to the provisions of Government Code Section 53083. 7.7. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall constitute one original and all of which shall be one and the same instrument. 7.8. TERMINATION. This Agreement may be terminated only (i) by and upon expiration of the Term, (ii) by mutual written agreement of the parties, and (iii) by and pursuant to the provisions of Section 7.9 or 7.10 below. In the event of any such termination, Owner (or its successor, as applicable) shall not be obligated to return any amounts previously paid to it by the City pursuant to the Program. 7.9 DEFAULT BY OWNER. If at any time during the Term, City contends that Owner has committed a material default with respect this Agreement, e.g., by failing to operate the Hotel as a first class hotel, City shall deliver to Owner written notice of default which specifies in detail all facts alleged by City to constitute such default. For a period of thirty days thereafter, Owner will have the right to commence and complete cure of the alleged default; provided, however, if the alleged default is of such a nature as to reasonably require more than = sixty days to cure, and the Parties so agree, Owner will have such addition time as is reasonably necessary to complete such cure. Subject to Section 7.11 below, if Owner fails to timely cure such default, City shall then have the right to terminate this Agreement. (To the extent of any inconsistency between the provisions of this Section 7.9 and the provisions of Section 3.1 above, the provisions of this Section 7.9 shall prevail.) 7.10 DEFAULT BY CITY. If at any time during the Term, Owner contends that City has committed a material default with respect this Agreement, Owner may deliver to City written notice of default which specifies in detail all facts alleged by Owner to constitute such default. C For a period of thirty days thereafter, City will have the right to commence and complete cure of = the alleged default; provided, however, if the alleged default is of such a nature as to reasonably require more than sixty days to cure, and the Parties so agree, City will have such addition time as is reasonably necessary to complete such cure. Subject to Section 7.11 below, if City fails to timely cure such default, Owner shall then have the right to terminate this Agreement or exercise OPERATIONSCOVENANT 1 -8- FOR HOTEL INCENTIVE PROGRAM any and all other rights and remedies available at law and in equity, and each of such rights and remedies shall be cumulative and not exclusive. 7.11 MORTGAGE PROVISONS. Anything in this Agreement to the contrary notwithstanding, with respect to any recorded mortgage or deed of trust given in good faith and for value and encumbering the Hotel ("Mortgage'), any holder thereof that has delivered to City a copy of such recorded Mortgage and current contact information ("Mortgagee") will be entitled rights and benefits in accordance with the following: 1. City acknowledges and agrees that the rights and obligations of Owner under this Agreement may, with or without approval by City, be conditionally assigned by Owner to any Mortgagee as security for performance of Mortgage obligations. 2. While any Mortgage remains in effect, City will not amend or modify this Agreement in any material respect without receiving prior written approval from Mortgagee, which approval may not be unreasonably withheld, delayed or conditioned; provided, however, failure by Mortgagee to provide written approval or disapproval (and if disapproval the reasons therefor) within thirty days of delivery of request therefor shall be deemed to constitute approval by Mortgagee. 3. While any Mortgage remains in effect, in the event City delivers to Owner of any notice of default as referenced in either Section 3.1 or 7.9 above, City shall concurrently z; deliver a copy thereof to Mortgagee. U NiT 4. Delivery of any such notice of default notwithstanding, City will not terminate or initiate or pursue any action to terminate this Agreement as long as Mortgagee diligently (i) declares a default by Owner under the Mortgage, (ii) pursues foreclosure and/or other appropriate actions under the Mortgage, (iii) pays to City all amounts that would otherwise have been payable by Owner to City, and (iv) cures non-monetary defaults. 7.12 Operator Provisions. City acknowledges and agrees that operational obligations of Owner may, with or without consent of City, be assigned by Owner to any entity owned or O wholly controlled by Owner or its Members or Hotel Operator of Owner's choice, and, in connection therewith, such Hotel Operator may assume all or part of Owner's Hotel operation obligations under this Agreement; provided, however, Owner shall retain ultimate responsibility for such Hotel operation obligations. City agrees that while any Hotel Operator agreement is in effect, and provided that City has been put on notice of such agreement and received contact information for such Operator, in the event City delivers to Owner of any notice of default as referenced in either Section 3.1 or 7.9 above, City shall concurrently deliver a copy thereof to the Operator. 7.13 RESERVED. 7.14 Cooperation. Each party agrees to and shall do and perform such other and further acts and properly execute and deliver such other and further documents as may be OPERATIONS COVENANT j -9- FOR 1101 EL INCENTIVE PROGRAM reasonably necessary, expedient or convenient to implement and/or effectuate the intents and purposes hereof. City and Owner agree tp cooperate with each other and/or with any Mortgagee or proposed Mortgagee, in a manner consistent with concepts and principles of good faith, fair dealing and commercial reasonableness, with respect to consideration, implementation and execution of any modification(s) to this Agreement reasonably requested by the City, Owner, Mortgagee or proposed Mortgagee. 7.15 Reasonable Approvals. Whenever this Agreement requires or calls for the approval or consent of any party hereto, such approval shall not be unreasonably withheld, delayed or conditioned. 7.16 Bindine Arbitration. In the event of any dispute or controversy arising out of or relating to this Agreement, or the breach or performance of it, the parties shall reasonably attempt to resolve such dispute or controversy without resort to third party review or resolution. The parties shall first meet and confer on any such dispute or controversy. Such meeting(s) shall include any principal of the Owner and, at the discretion of the City, may include the City Manager and/or the City Council, either as a whole or through an ad hoe subcommittee designated by the City Council. Upon a determination by the parties that they are or will be unable to resolve the dispute or controversy on their own, then the parties shall submit the dispute, controversy or any remaining unresolved matter to binding arbitration, to be held in the Coachella Valley, and be conducted pursuant to the Commercial Arbitration Rules of the v American Arbitration Association. =' 7.17 Incorporation of Recitals and Exhibits. Each of the recitals set forth above and "= each of the exhibits attached hereto are agreed to and made part of this Agreement. LL' 7.18 Authority. Each party represents and warrants to the other that such party has full C right, power and authority to sign, execute and enter into this Agreement. IN WITNESS WHEREOF, the City and Owner have executed this Operations Covenant by duly authorized representatives on the date first written hereinabove. C "CITY" THE CITY OF PALM SPRINGS, a municipal corporation and charter city By: �?� David H. Ready City Manager ATTEST: APPROVED H CEY C01lNC(L ity Clerk James Thompson \� ,1 `� \{r �bb�} OPERATIONS COVENANT j -10- FOR HOTEL INCENTIVE PROGRAM ACKNOWLEDGMENT OF INSTRUMENT (Cal. Civil Code Section 1181) State of California ) County of Riverside ) SS. City of Palm Springs ) On March 3, 2015, before me, JAMES THOMPSON, CITY CLERK, CITY OF PALM SPRINGS, CALIFORNIA, personally appeared DAVID H. READY, who I personally know is the CITY MANAGER of the CITY OF PALM SPRINGS whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his official and authorized capacity on behalf of the City of Palm Springs, a California Charter City. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and the official seal of the City of Palm Springs, California, this 3rd day of March, 2015. PALM$p c V N 90044iEY\9)0 Signature: Cg4I F O RNNQ, MES THOMPSON, CITY CLERK City of Palm Springs, California Title or Type of Document Operations Covenant— Equi-Cap LLC A6642 IIIIIIIIIIIIIIII IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII a-:6,15 i00s0s:2F APPROVED AS TO FORM: WOODRUFF, SP LI 4 & S7MAyRT/) J By: Do glas V. ffolland, Esq. City Art rney "OWNER" y: Name: Lauri Kim for CD Ventures, LLC Title: Managing Member [END OF SIGNATURES] I IIIIII(IIIIII IIIII III IIIIII III IIIIIIII III IIIIII(IIIIII 03 fFF' 01-. if,3dA 1 OPERATIONS COVENANT j -�1- FOR HOTEL INCENTIVE PROGRAM CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 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 ,tt`` ) County of P11\)e,C SkJt e On fP_b� aAl A t1t a015 before me, I�QX Ct�t 1DV11('tl . IVO}�(y \ lAbl1G Date p-t Here Insert Name and Title of the Officer �. t� personally appeared aurt r `i U`UU —� Names of Si ner s who proved to me on the basis of satisfactory evidence to be the person(e) whose name(e) is/are subscribed to the within instrument and acknowledged to me that he/she/#hey executed the same in his/her/their authorized capacity(ies),and that by his/herAheir signatures)on the instrument the person(e), or the entity upon behalf of which the person(e)acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph LeCARRIE ROVNEY is true and correct. COmmlalOn ill2072407 WITNESS my hand and official seal. Nopry Public-Ceittomis Riverslde County Comm =Ju128201ar Signature Sionature of Nota c Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑Corporate Officer — Title(s): ❑Corporate Officer — Title(s): ❑ Partner — ❑Limited ❑General ❑ Partner — ❑ Limited ❑ General ❑Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑ Guardian or Conservator ❑Trustee ❑Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: 02014 National Notary Association • www.NationaiNotary.org • 1-800-US NOTARY(1-800-876-6827) Item #5907 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII e3;n.l1r0 ,F', ,'Fh8 �F EXHIBIT "A" SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO MERIDIAN. LEGAL DESCRIPTION BLOCKS 103, 105 AND 106 OF BUREAU OF LAND MANAGEMENT PLAT CA270040S0040E0, DATED JUNE 27, 1957, IN SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, AND IS MORE PARTICULARLY DESCRIBED AS FALLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 106, THENCE ALONG THE WESTERLY LINE OF SAID LOTS 106 AND 103, NORTH 00'03'35"WEST 645.16 FEET MORE OR LESS TO THE NORTHWEST CORNER OF SAID LOT 103: THENCE ALONG THE NORTHERLY LINE OF SAID LOT 103, SOUTH 89043'40" EAST 354.25 FEET MORE OR LESS TO THE NORTHEAST CORNER OF SAID LOT 103. THENCE ALONG THE EASTERLY LINE OF SAID LOT 103, SOUTH 00`05'56" EAST 330.05 FEET MORE OR LESS TO THE SOUTHEAST CORNER OF SAID LOT 103. THENCE ALONG THE NORTHERLY LINE OF SAID LOT 105, SOUTH 89"49'25" EAST 352.97 FEET MORE OR LESS TO THE NORTHEAST CORNER OF SAID LOT 105; THENCE ALONG THE EASTERLY LINE OF SAID LOT 105, SOUTH 00'06'10" EAST 315.17 FEET MORE OR LESS TO THE SOUTHEAST CORNER OF SAID LOT 105; THENCE ALONG THE SOUTHERLY LINES OF SAID LOTS 105 AND 106, NORTH 89046'17"WEST 707.68 FEET TO THE POINT OF BEGINNING; SAID ABOVE DESCRIBED AREA IN METES AND BOUNDS CONTAINS 7.80 ACRES, MORE OR LESS, AND INCLUDES PORTIONS OF ADJACENT ALLEYS AS VACATED IN DOCUMENT NUMBER 651 FROM THE CITY OF PALM SPRINGS, AND IS SUBJECT TO ALL COVENANTS, RIGHTS, RIGHTS-OF-WAY, ALLEY WAYS, AND EASEMENTS OF RECORD, INCLUDING AMADO ROAD, NORTH CALLE ALVARADO, AND NORTH AVENIDA CABALLEROS RIGHTS OF WAY. THIS DOCUMENT WAS PREPARED BY ME OR UNDER MY DIRECTION, �p SAND s�R BASED ON RECORD INFORMATION. ��2y Leo P PHLLIIPE FO 010R No 7070 PHILLIP K, FOMOTOR, P.L.S. m s yTE o OF GPLf Page 1 of'l EXHIBIT "B" SITE PLAN I PRELIMINARY-SITF PLAN BASE 0 DOLCE HOTEL I I I I s I II t - .BnllER.lJR XE C4PPtiI_ pS C NiLRLNr ro n ° _\ F FOMOTON EN6IAFEFMG f 1 Rtl'MR So IIII III IIIIIIIIII IIII IIIIIIIII III II III III fi3. ' 1- f 1 ,