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* HCRORAY�� CITY COUNCIL STAFF REPORT
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DATE: February 3, 2011 CONSENT AGENDA
SUBJECT: Mills Act Historic Site Contract — 982 Avenida Palmas; the DeBrabant
House
FROM: David H. Ready, City Manager
BY: Planning Services
SUMMARY
This action would engage the City of Palm Springs into a standard Mills Act Agreement
with Mr. Mark Hilbert, owner of 982 Avenida Palmas, ("The DeBrabant House"). The
intent of this contract is to require maintenance and preservation of this Class 1 historic
site in exchange for possible property tax relief as calculated by the County of
Riverside.
RECOMMENDATION:
Direct staff to execute the Mills Act Agreement between the City of Palm Springs and
Mr. Mark Hilbert and record said agreement with the Recorder of Records for the
County of Riverside.
STAFF ANALYSIS:
On March 3, 2009, the City Council designated the property at 982 Avenida Palmas a
Class 1 Historic Site.
On November 9, 2010, the Historic Site Preservation Board voted unanimously to
recommend to City Council that it execute the Mills Act Contract between the City of
Palm Springs and Mr. Mark Hilbert, owner of 982 Avenida Palmas.
Pursuant with California Government Code Section 50280 — 50290 upon the application
of an owner of any qualified historic property, the legislative body of a city may contract
with the owner or agent to restrict the use of the property to carry out the purposes and
goals of historic preservation of the property. Such a contract is commonly referred to
as a "Mills Act Agreement" and it provides for possible alternative property tax rate
calculations in exchange for specific and ongoing preservation and maintenance of the
ITEM NO.
City Council Staff Report February 3, 2011
Mills Act—982 Avenida Palmas Page 2 of 2
property, specifically its historically significant elements and characteristics.
The HSPB staff report dated November 9, 2010 is attached which provides background
and explanation of the Mills Act Agreement for this particular case.
a,porof
ng, Thomas J. Wlls01
Direlan Services Assistant City Manager
tea,, r
David H. Ready, C ger
Attachments:
RSPB minutes of November 9, 2010
HSPB staff report dated November 9, 2010
Mills Act Contract between City of Palm Springs and Mr. Mark Hilbert, Owner
Historic Site Preservation Board Minutes Page 3 0A 5
Tuesday, November 9,2010
ant is directed to return to the RSPB,with plans for finishing all exposed
wood trim, r and window frames, entry building, and patio additions,
as well as a landscape plan. r noted that the lighter color wood at
Cheeky's was preferable to a darker color.
moo 8A. HSPB 67 - Request for Recommendation of Mills Act Agreement with the City
of Palm Springs for the "de Brabant House" located at 982 Avenida Palmas,
Zone R-1-B, Section 11, APN 507-155-006. (CE)
Edward Robertson summarized the staff report.
M/S/C (Strahl / Grattan, 7-0) To recommend to the City Council to enter into a Mills
Act contract with the property owner.
Edward Robertson summarized the staff report.
The Board discussed the materials presented by staff. Vice Chair Marshall
ered to create an updated list of properties for consideration at the next
m ing. The Board discussed:
• dditional properties not found on prior lists;
• P ntial historic districts, and the issues surrounding the creation of
new ' tricts; and
• The Ci bility to process no more than about five or six applications.
The Board accepted Chair Marshall's offer to prepare a consolidated list of
candidate properties for 'ew at the December meeting.
9. COMMITTEE REPORTS
9A. Las Palmas Business Historic Di 'ct Committee -- Board members Ploss
and Deleeuw presented a list of c -buting properties within the district,
and reported that research continues i relevant background information.
A panorama photo survey is also bei prepared. Non-contributing
properties will also be researched. The Boar ' cussed:
• The potential of reclassifying non-contributing erties;
• Analyzing all properties in the district, including a property's status in
the current district, its current use(s), and y potential for
reclassification;
• Creating an overlay zone district beyond the current histori 'strict; and
• The status of construction projects within the district.
9B. Public Outreach Committee — Chair Gilmer had no additional comments.
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r�`'F°RNNP Historic Site Preservation Board
Staff Report
Date: November 9, 2010
Case No.: HSPB-67
Application Type: Mills Act Agreement
Location: 982 Avenida Palmas
Applicant: Mark Hilbert
From: Craig A. Ewing, AICP, Director of Planning Services
PROJECT DESCRIPTION
An application by Mark Hilbert, owner of 982 Avenida Palmas, "The de Brabant House"
to enter into a Mills Act Agreement with the City of Palm Springs.
RECOMMENDATION
That the Historic Site Preservation Board recommend that the City Council execute a
Mills Act Agreement between the City and Mr. Mark Hilbert, owner of 982 Avenida
Palmas, "The de Brabant House".
PRIOR ACTIONS TAKEN ON THE PROJECT
On March 3, 2010, the City Council designated the property at 982 Avenida Palmas a
Class 1 Historic Site,
BACKGROUND AND SETTING
Pursuant with California Government Code Section 50280 — 50290 upon the application
of an owner of any qualified historic property, the legislative body of a city may contract
with the owner or agent to restrict the use of the property to carry out the purposes and
goals of historic preservation of the property. Such a contract is commonly referred to
Historic Site Preservation Board Staff Report November 9, 2010
Case HSPB 67—Mills Act—982 Avenida Palmas Page 2 of 3
as a "Mills Act Agreement" and it provides for possible alternative property tax rate
calculations in exchange for specific and ongoing preservation and maintenance of the
property, specifically its historically significant elements and characteristics.
DESCRIPTION AND ANALYSIS
The Mills Act is state sponsored legislation granting local governments the authority to
directly participate in a historic preservation program. It is designed to provide private
property owners with an economic incentive, via property tax relief, to actively
participate in the restoration of their historic properties.
Property owners may qualify for property tax relief if they pledge to restore and maintain
the historical and architectural character of their properties for at least a ten-year period.
A formal agreement known as a Mills Act contract is executed between the local
government and the property owner for a minimum ten-year term. Contracts are
automatically renewed each year and are transferred to new owners when the property
is sold. Property owners agree to preserve and maintain the property in accordance
with specific historic preservation standards and conditions as identified in the contract.
Local authorities may impose penalties for breach of contract or failure to protect the
historic property. The contract is binding to all owners during the contract period.
The Mills Act contract has the effect of freezing the base value of the property. There is
little effect over the first few years but as the property is restored over a longer period of
time, the value increases and the property tax savings may increase over time. The
property owners have consulted with their tax advisors and determined that entering
into a Mills Act contract with the City would be mutually beneficial for both parties. The
owners also understand that entering into the Mills Act contract only represents the
potential for property tax savings and is not a guarantee.
The current owners of the subject property have already invested a significant amount
of money to restore and preserve the property in its original state and will continue to do
so. The potential property tax savings provided by the Mills Act contract will assist the
owners in defraying the costs associated with maintaining the property.
REQUIRED FINDINGS
Mills Act Agreements may only be executed on qualified historic properties.
Pursuant California Government Code 50280.1 "Qualified historical property" for
purposes of this article, means privately owned property which is not exempt from
property taxation and which meets either of the following:
(a) Listed in the National Register of Historic Places or located in a registered
historic district, as defined in Section 1.191.2(b).
(b) Listed in any state, city, county, or city and county official register of historical
or architecturally significant sites, places, or landmarks.
2 v
Historic Site Preservation Board Staff Report November 9, 2010
Case HSPB 67— Mills Act--982 Avenida Palmas Page 3 of 3
The property at 982 Avenida Palmas meets this criterion in that it is was designated a.
Class 1 historic site by the City Council of the City of Palm Springs.
Following review and recommendation by the Board, the contract will be forwarded to
the City Council for action.
ENVIRONMENTAL ASSESSMENT
This project is exempt from environmental review per Section 15331 of the California
Environmental Quality Act (CEQA) Guidelines.
Craig A. Ewing, AICP
Director of Planning Services
ATTACHMENTS
1. Letter of Request (received Oct. 28, 2010)
2. Draft Mills Act Agreement
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HILBERT
`PROPERTIES 11
1300 BRISTOL NORTH
SUITE. 190
NEWPORT BEACH,CA 92660
(949) 476-0104
Fax (949) 476-9921
To: Mr. Craig Ewing
Dept. of Planning
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92263
From: Mark Hilbert
Re: 982 Avenida Palmas
APN: 507-155-016-8
October 26, 2010
Dear Mr. Ewing,
Thank you for all of the effort you have made to classify our home as Class 1 Historic
States. 1 believe that this effort will pay dividends to the city down the road by protecting
its valuable and special history.
Enclosed please find our check for $ 824.00 to process this request for the Mills Act
property tax abatement program.
Please use mark(a),hilbertproperties.net to contact us. Our telephone number is (949) 476-
0104.
Yours truly,
Mark Hilbert tu
PLANNING 5ERV#cFC, 7
C)EPARTMENT
FREE RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, CA 92263-2743
Attn: City Clerk
HISTORIC PROPERTY PRESERVATION AGREEMENT
This Historic Property Preservation Agreement ("Agreement") is made and entered into
this day of , 201_(the "Effective Date"), by and between the
CITY OF PALM SPRINGS, a municipal corporation ("City"), and Mark Hilbert ("Owner").
RECITALS:
A. California Government Code Sections 50280, et seq., authorizes cities to enter
into contracts with the owners of qualified historical property to provide for the
use, maintenance and restoration of such historical property so as to retain its
characteristics as property of historical significance.
B. Owner possesses fee title in and to that certain historic dwelling, commonly
known as the "deBrabant House" together with associated structures and
improvements and real property, all generally located at the street address 982
Avenida Palmas, Palm Springs, California (collectively, the "Property"), A legal
description of the Property is attached hereto as Exhibit A and is incorporated
herein by this reference.
C. On March 3, 2010 (the "Approval Date"), the City Council of the City of Palm
Springs ("Council") adopted Resolution No. 22677 thereby declaring and
designating the Property as a historic landmark pursuant to the terms and
provisions of Chapter 8.05 of the Palm Springs Municipal Code.
D. City and Owner, for their mutual benefit, now desire to enter into this Agreement
both to protect and preserve the characteristics of historical significance of the
Property, in accordance with Government Code Sections 50280 through 50290,
as amended from time to time, and to qualify the Property for an assessment of
valuation pursuant to Revenue and Taxation Code Section 439.2.
AGREEMENT
NOW, THEREFORE, City and Owner, in consideration of the mutual covenants and
conditions set forth herein, do hereby agree as follows:
1. Effective Date and Term of Agreement. This Agreement shall be effective and
commence on the Effective Date, and shall remain in effect for a term often (10)
1
years thereafter. Each year upon the anniversary of the Effective Date, unless
this Agreement is terminated in accordance with Section 2 below, such initial
term will automatically be extended by one (1) year.
2. Non-Renewal and Cancellation. Neither City nor Owner may terminate this
Agreement except in accordance with this Section 2. Termination shall be
effected either by (a) an election not to renew the Agreement, in which case
termination shall be effective upon the expiration of the remaining term of the
Agreement, as specified in Section 2.1 below, or (b) cancellation of the
Agreement, which shall effect an immediate termination of the Agreement upon
the happening of all events specified in Sections 2.2 and 5.
2.1 Each year on the anniversary of the Effective Date (hereinafter referred to
as the "Renewal Date"), an additional one (1) year shall automatically be
added to the term of this Agreement unless timely written notice of non-
renewal is served by the non-renewing party. Notice of non-renewal shall
be effective only if served by Owner at least ninety (90) days prior to the
next upcoming annual Renewal Date, or by City at least 60 days prior to
the next upcoming Renewal Date. City may elect not to renew this
Agreement for the reasons and in accordance with the procedures set
forth in Section 5 below. Owner may make a written protest of City's notice
of non-renewal in accordance with Section 5 below. The party giving
notice of non-renewal may, at any time prior to the annual Renewal Date
of the Agreement, withdraw its notice of non-renewal by giving a notice of
revocation to the other party. If Owner or City serves timely notice of non-
renewal in any year, the Agreement shall remain in effect for the balance
of the term then remaining at the time the notice of non-renewal was
given.
2.2 City may cancel this Agreement at any time only for the reasons and in
accordance with the notice and hearing procedure set forth in Section 5
below. City may, at any time prior to termination of the Agreement,
withdraw its notice of cancellation by giving a notice of revocation to
Owner.
3. Maintenance Standards for the Proper. During the term of this Agreement, the
Property shall be subject to the following conditions, requirements, and
restrictions:
3.1 Owner shall preserve, maintain, and, when necessary, restore and
rehabilitate the Property, as necessary to retain its historical significance
including its "Character Defining Features" (as hereinafter defined), in
substantial conformance with the (i) the rules and regulations of the Office
of Historic Preservation of the California Department of Parks and
Recreation, (ii) the United States Secretary of the Interior's Standards for
Rehabilitation and (iii) the State Historical Building Code, as the same may
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be amended, restated, or replaced from time to time (the "Preservation
Standards"). "Character Defining Features" shall include, but not be
limited to, the general architectural form, style, materials, design, scale,
proportions, organization of windows, doors, and other openings, details,
mass, roof line, porch and all other aspects of the appearance of the
exterior of the Property. Owner may perform routine maintenance and
repair of the Property, but may not materially alter the Property without the
prior approval of City which approval shall not be unreasonably withheld or
delayed. "Material Alternations" shall include, but not be limited to,
demolition of any portion of the Property, exterior door or window
replacement, major landscaping projects and all other similar exterior
alterations of the Property, regardless of whether a building permit is
required for such alterations. Before performing any work requiring the
approval of City, Owner shall give at least sixty (60) days' written notice to
City, describing the work to be done; if City shall not have acted within
sixty (60) days thereafter to disapprove the work, or to approve the work
subject to specified conditions, the work shall be deemed approved as
submitted. In all events, City's Director of Planning Services shall be
notified of all changes to the Property which Owner reasonably determines
to be significant, prior to implementation of the changes.
3.2 Covenants Regarding Maintenance. The Owner shall maintain the
Property, Site and all improvements thereon, including lighting and
signage, in good condition, free of debris, waste, and graffiti, and in
compliance with all applicable provisions of the Municipal Code. Owner
shall maintain the Property and landscaping on the Property Site in
accordance with the "Maintenance Standards" (as hereinafter defined).
Such Maintenance Standards shall apply to all buildings, signage, lighting,
landscaping, irrigation of landscaping, architectural elements identifying
the Property and any and all other improvements on the Property Site
(collectively the "Improvements"). To accomplish the maintenance, Owner
shall either staff or contract with and hire licensed and qualified personnel
to perform the maintenance work, including the provision of labor,
equipment, materials, support facilities, and any and all other items
necessary to comply with the requirements of this Agreement.
Owner and its maintenance staff, contractor, or subcontractors shall
comply with the following standards (the "Maintenance Standards").
a. The Improvements shall be maintained in conformance and in
compliance with the Preservation Standards, and reasonable
commercial development maintenance standards for similar project,
including but not limited to painting and cleaning of all exterior
surfaces and other exterior facades comprising all private
improvement sand public improvements to the curb-line. The
Improvements shall be maintained in good condition and in
accordance with the custom and practice generally applicable to
comparable historic properties located in Palm Springs, California.
b. Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass;
tree and shrub pruning, trimming and shaping of trees and shrubs
to maintain a healthy, natural appearance and safe road conditions
and visibility, and irrigation coverage; replacement, as needed, of
all plant materials; control of weeds in all planters, shrubs, lawns,
groundcovers, or other planted areas; and staking for support of
trees.
C. Clean-up maintenance shall include, but not be limited to:
maintenance of all sidewalks, paths, and other paved areas in
clean and weed-free condition; maintenance of all such areas clear
of dirt, mud, trash, debris, or other matter which is unsafe or
unsightly; removal of all trash, litter, and other debris from
improvements and landscaping prior to mowing; clearance and
cleaning of all areas maintained prior to the end of the day on which
the maintenance operations are performed to ensure that all
cutting, weeds, leaves, and other debris are property disposed of.
Upon reasonable advance notice, Owner shall allow reasonable periodic
examinations of the interior and exterior of the Property by City, County
Assessor, the California Department of Parks and Recreation, and the
State Board of Equalization, as may be necessary to determine Owner's
compliance with the terms and provisions of this Agreement.
3.3 Owner shall landscape the Property so as to permit a view corridor near
the entrance to the Property, enabling the general public to see the entry
to the Property from the public way adjacent to the Property, and an
historical marker briefly documenting the site for public view shall be
maintained adjacent to the public right-of-way near the entry within one (1)
year after the Completion Date. Such marker has been or shall be
provided by the City in City's standard form used for historical properties
as of the Effective Date (as to size, material, text, exact location and
method of installation), and in the event of its loss, theft, or destruction,
shall be replaced at Owner's sole cost and expense (provided, however,
that if the total cost and expense of creating and installing the marker shall
exceed $500, the excess shall be borne solely by City), and maintained at
Owner's sole cost and expense. City acknowledges and agrees that
Owner is maintaining the Property, and the marker and view corridor shall
be situated and limited so as to minimize public intrusion and afford Owner
all reasonable expectations of privacy.
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3.4 Owner shall take reasonable steps to obtain and keep in force during the
term of this Agreement a policy or policies of insurance (or a reasonable
substitute therefore) providing replacement value coverage against
damage to the Property against all perils included within the classification
of fire, extended coverage, vandalism, malicious mischief and other
generally covered perils, but excluding earthquake, flood and other
matters either not generally available within the Palm Springs area, or not
generally offered in such a policy without requiring an additional premium.
Failure to maintain insurance or a reasonable substitute therefore shall be
grounds for termination of this Agreement pursuant to Section 5(a) below.
4. Provision of Information. Owner hereby agrees to furnish City with all reasonable
information requested by City which may be necessary or advisable to determine
compliance with the terms and provisions of this Agreement.
5. Non-Renewal and Cancellation.
(a) City may elect to provide notice of non-renewal of this Agreement in its
discretion consistent with the provisions of this Agreement and with
applicable law,.
(b) City, following notice in accordance with California Government Code
Section 50285 and a duly noticed public hearing before the Council, may
elect to cancel this Agreement only if the Council finds and determines
that (i) Owner, through its own willful or negligent acts, and subject to
Section 16 below, has failed to restore or rehabilitate the Property in
accordance with the Plans on or before the Completion Date, or (ii)
Owner, through its own willful or negligent acts, and subject to Section 16
below, has allowed the Property to deteriorate beyond the point that it no
longer meets the standards for a qualified historic property, and the
deterioration is serious and irreversible.
(c) Notwithstanding anything to the contrary herein, the Property shall be
deemed to meet the standards for a qualified historic property if it is in
compliance with the Plans and it is maintained in accordance with Section
3.2.
(d) If City determines to cancel or not to renew this Agreement as specified
above, it shall provide Owner with written notice of its intent to cancel or
not renew, and such notice must specify in detail the reasons for the
cancellation and/or non-renewal and the steps which Owner must take to
cure any such problems (unless such reasons are not susceptible of cure).
If City determines in its reasonable discretion that Owner has not cured
such problems within ninety (90) days of such notice (or if curing such
problems will reasonably take longer than ninety (90) days and Owner has
not commenced diligent efforts to cure such problems within ninety (90)
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days), then City shall (i) with respect to a decision to cancel, notice and
hold a second public hearing before the Council to determine whether to
cancel this Agreement, or (ii) with respect to a decision not to renew,
provide Owner with written notice of its final decision not to renew this
Agreement. Notice of all hearings under this Agreement shall be given to
Owner directly pursuant to Section 11 below and published in accordance
with Government Code Section 6061.
(e) If City cancels (but not if City elects not to renew) this Agreement in
accordance with this Section 5, Owner shall pay a cancellation fee of
twelve and one-half percent (12'/z%) of the full value of the Historic
Property at the time of cancellation. The full value shall be determined by
the County Assessor without regard to any restriction on the Property
imposed pursuant to this Agreement. The cancellation fee shall be paid to
the County Auditor at such time and in such manner as the Auditor shall
prescribe. As an alternative to cancellation of this Agreement for breach of
any condition, City may (without limiting Owner's right to elect not to renew
this Agreement), but is not obligated to, bring any action in court
necessary to enforce the Agreement including, but not limited to, an action
for specific performance or injunction.
(f) Owner acknowledges that it may serve notice of its election not to renew
this Agreement, but that the Agreement will remain in place through the
existing term. Owner further acknowledges that it may not cancel this
Agreement for any reason.
6. No Compensation, Owner shall not receive any payment from City in
consideration of the obligations imposed under this Agreement other than costs
in excess of $500 for the historical marker. Owner and City acknowledge and
agree that the primary consideration to City for the execution of this Agreement is
the substantial benefit to the citizens of Palm Springs accruing from the
rehabilitation and maintenance of the Property, and the primary consideration to
Owner is the economic advantage that will accrue to Owner as a result of the
possible effect upon the assessed value of the Property of the restrictions on the
use and preservation of the Property imposed hereunder. However, Owner
acknowledges that it is not guaranteed to receive a reduction of property taxes as
a result of this agreement.
7. Condemnation. Upon the filing of an action in eminent domain by a public entity
for the taking of all or any portion of any interest in the Property, and a
determination by City that such action will frustrate the purpose of this
Agreement, then in such event this Agreement shall be canceled as to those
portions of the Property that are affected by the condemnation action (such that
the value shall be appraised for condemnation purposes as unencumbered by
the historic property restrictions set forth herein), and no fee shall be imposed on
Owner for cancellation in accordance with Government Code Section 50286. If
6 16
subsequent to the filing of an action in eminent domain, the proposed
condemnation is abandoned by the condemning agency as to all or a portion of
the Property, the restrictions on the use of the Property included in this
Agreement shall be automatically reinstated, the Property shall be deemed,
retroactive to the date of such abandonment, to have been subject to this
Agreement, and the terms of this Agreement shall be in full force and effect.
8. Destruction. Upon any damage to or destruction of the Property, Owner and City
shall proceed in accordance with this Section 8. In the event there is any damage
to or destruction of the Property, this Agreement shall not be deemed to require
Owner to rebuild, repair or restore the damaged portion, and Owner shall not be
held in default under this Agreement for its failure to do so, provided, however,
that this provision does not relieve Owner of any obligation to repair or otherwise
take action with respect to the Property to the extent required to do so by
applicable state and federal laws and regulations, if any, other than historical
preservation laws.
(a) Minor Insured Damage. In the event the Property or any portion thereof is
damaged by any casualty that is covered by the insurance maintained by
Owner, then Owner shall rebuild, repair and restore the damaged portion
thereof provided that (i) the amount of insurance proceeds available to
Owner equals or exceeds the cost of such rebuilding, restoration and
repair, and the total cost of repair is less than $250,000 (in the opinion of a
licensed architect, engineer or other qualified person selected by Owner
and approved by City in its reasonable discretion), (ii) such rebuilding,
restoration and repair can be completed within nine (9) months after the
work commences, in the opinion of a registered architect or engineer or
other qualified person selected by Owner and approved by City in its
reasonable discretion, (iii) City has not acted to cancel or not to renew this
Agreement on or before the date of commencement, and (iv) such
rebuilding, restoration or repair is then permitted to be done under
governmental laws, rules and regulations in existence as of the Approval
Date in such a manner as to return the damaged portion thereof to
substantially its condition immediately prior to the damage or destruction.
To the extent that insurance proceeds must be applied to reduce any
indebtedness secured by a mortgage or deed of trust encumbering the
Property or any portion thereof, such proceeds, for the purposes of this
subsection, shall be deemed not available to Owner unless such
beneficiary permits Owner to use such proceeds for the rebuilding,
restoration and repair of the damaged portion thereof. If Owner is required
under this Section to rebuild, restore or repair the Property, such work
shall commence not later than one (1) year after receipt of the applicable
insurance proceeds, and Owner shall thereafter diligently proceed to
complete such work within eighteen (18) months after commencement;
provided, however, that so long as Owner shall be diligently proceeding
toward completion of the work, such commencement and completion
7 14
dates shall be extended by City's Director of Planning Services upon
Owner's request.
(b) Ma'or or Uninsured Damage. In the event the Property is damaged or
destroyed by any casualty to the extent that Owner is not obligated, under
subsection (a) above, to rebuild, repair or restore the damaged portion
thereof, then within sixty (60)days after either (i) a final determination that
damage is not an insured claim (or one (1) year after the date of damage,
whichever comes first), or (ii) Owner's receipt of insurance premiums
sufficient to rebuild (as determined under subsection (a) above), Owner
shall notify City of its election, at its option, either to (1) rebuild, restore
and repair the damaged portions thereof, in which case Owner's notice
shall specify the time period within which Owner estimates such repairs or
restoration can be completed; or (2) terminate this Agreement effective as
of the date the damage or destruction occurred. If Owner elects to rebuild,
restore or repair the Property under this Section, such work shall
commence not later than one (1) year after receipt of the applicable
insurance proceeds (or determination that the damage is not an insured
claim), and Owner shall thereafter diligently proceed to complete such
work within eighteen (18) months after commencement; provided,
however, that so long as Owner shall be diligently proceeding toward
completion of the work, such commencement and completion dates shall
be extended by City's Director of Planning Services upon Owner's
request.
(c) Termination. If Owner elects to terminate this Agreement as provided in
Section 8(b), no cancellation fee shall be required. Upon Owner's election
to terminate, the Property shall be reassessed retroactively, as of the
damage or destruction date(s) (but taking into account such damage or
destruction), in accordance with applicable property tax laws, as if the
Property was not subject to this Agreement following such damage or
destruction date(s).
9. Binding Effect of Agreement. Owner hereby subjects the Property to the
covenants, reservations, and restrictions set forth in this Agreement. City and
Owner hereby declare their specific intent that the covenants, reservations, and
restrictions set forth herein shall be deemed covenants running with the land and
shall pass to and be binding upon Owner's successors and assigns in title or
interest to the Historic Property. Each and every contract, deed or other
instrument hereinafter executed, covering or conveying the Property, or any
portion thereof, shall conclusively be held to have been executed, delivered, and
accepted subject to the covenants, reservations, and restrictions expressed in
this Agreement regardless of whether such covenants, reservations, and
restrictions are set forth in such contract, deed or other instrument.
8 1
City and Owner hereby declare their understanding and intent that the burden of
the covenants, reservations, and restrictions set forth herein touch and concern
the land in that Owner's legal interest in the Property is rendered less valuable
thereby. City and Owner hereby further declare their understanding and intent
that the benefit of such covenants, reservations, and restrictions touch and
concern the land by enhancing and maintaining the historic characteristics and
significance of the Property for the benefit of the public and Owner.
10. Unenforceabilit . In the event a court of competent jurisdiction finds that this
Agreement does not constitute an enforceable restriction within the meaning of
the applicable provisions of the Government Code and the Revenue and
Taxation Code, except for an unenforceability arising from the cancellation or
non-renewal of this Agreement, for any tax year during the original term or any
renewal of this Agreement, then this Agreement shall be null and void and
without further effect, and the Property shall from such time be free from any
restriction whatsoever under this Agreement without any payment or further act
of the parties to the Agreement.
11. Notice. Any notice required to be given by the terms of this Agreement shall be
provided in writing and shall be mailed by certified mail, return receipt requested
or delivered by a recognized delivery or overnight courier service to the address
of the respective parties as specified below or at any other address as may be
later specified by the parties hereto by written notice given in accordance with
this Section 11. Deposit of notice in the mail, certified, return receipt requested
and postage prepaid, or receipt of delivery as specified above, shall be deemed
receipt of the notice.
To City: City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Manager
With a copy to: Woodruff, Spradlin & Smart
Attn: Douglas Holland, Esq.
To Owner: Mark Hilbert
1300 Bristol North, Ste. 190
Newport Beach, CA 92660
12. General Provisions.
12.1 None of the terms, provisions or conditions of this Agreement shall be
deemed to create a partnership between the parties hereto and/or any of
their heirs, successors or assigns, nor shall such terms, provisions or
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conditions cause the parties to be considered joint venturers or members
of any joint enterprise.
12.2 Owner agrees to and shall hold City and its elected officials, officers,
agents, and employees harmless from liability for damage or claims for
damage for personal injuries, including death, and claims for property
damage which may arise from the direct or indirect use or operations of
Owner or those of Owner's contractor, subcontractor, agent, employee or
other person acting on Owner's behalf which relates to the use, operation,
and maintenance of the Property. City agrees to and shall hold Owner and
Owner's officers, principals, agents, contractors, employees, heirs,
successors and assigns harmless from liability for damage or claims for
damage for personal injuries, including death, and claims for property
damage which may arise from the activities on the Property of City or
those of City's contractor, subcontractor, agent, employee or other person
acting on City's behalf which relates to City's activities on the Property.
12.3 All of the agreements, rights, covenants, reservations, and restrictions
contained in this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their heirs, successors, legal representatives,
assigns and all persons acquiring any part or portion of the Property,
whether by operation of law or in any manner whatsoever.
12.4 In the event legal proceedings are brought by any party or parties to
enforce or restrain a violation of any of the covenants, reservations or
restrictions contained herein, or to determine the rights and duties of any
party hereunder, the prevailing party in such proceeding may recover all
reasonable attorneys' fees to be fixed by the court, in addition to court
costs and other relief ordered by the court.
12.5 Subject to Section 10 above, in the event that any of the provisions of this
Agreement are held to be unenforceable or invalid by any court of
competent jurisdiction, or by subsequent preemptive legislation, the
validity and enforceability of the remaining provisions, or portions thereof,
shall not be affected thereby.
12.6 This Agreement shall be construed and governed in accordance with the
laws of the State of California.
12.7 City shall cooperate with Owner to the extent necessary in providing the
County Assessor's Office with confirmation of and information regarding
this Agreement in connection with the qualification of the Property for the
initial assessment and any subsequent assessments of valuation of the
Property encumbered with restricted historical property status in
accordance with the California Revenue and Taxation Code.
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12.8 This Agreement may be signed in one or more counterparts, each such
counterpart shall be considered as part of and the same document as all
other related counterparts.
12.9 This Agreement has been agreed to by the parties only after negotiations
between City and Owner, both of which were represented by counsel.
Accordingly, this Agreement shall not be construed as if it had been
prepared only by City or Owner, but rather as if both City and Owner had
prepared the same.
13. Recordation. No later than twenty (20) days after the parties execute and enter
into this Agreement, City shall cause this Agreement to be recorded in the office
of the County Recorder of the County of Riverside.
14. Notification of Contract. Owner shall provide written notice of the existence of this
Agreement to the Office of Historic Preservation within six (6) months after
execution of this Agreement.
15. Amendments. This Agreement may be amended, in whole or in part, only by a
written recorded instrument executed by the parties hereto.
16. Force Majeure. If the performance by Owner of any provision of this Agreement
is delayed or prevented by any act of God, strike, lockout, shortage of material or
labor, restriction by any governmental authority, civil riot, flood, and any other
cause not within the control of Owner, then the period for Owner's performance
of the provision shall be automatically extended for the same time Owner is so
delayed or hindered.
(SIGNATURES ON FOLLOWING PAGE 12)
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IN WITNESS WHEREOF, City and Owner have executed this Agreement on the
day and year first written above.
CITY OF PALM SPRINGS,
a municipal corporation
Dated: BY
City Manager
APPROVED AS TO FORM: ATTEST:
City Attorney City Clerk
Dated: By:
Owner
Dated: By:
Owner
(Owner/Owner Affidavit(s) follow on page 13)
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OWNER AFFIDAVIT
State of )
)ss.
County of )
On before me,
Date Name and Title of Officer
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal
Signature of Notary Public
OWNER AFFIDAVIT
State of )
)ss.
County of )
On before me, ,
Date Name and Title of Officer
personally appeared
Name(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal
Signature of Notary Public
13 20
EXHIBIT A
LEGAL DESCRIPTION
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