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HomeMy WebLinkAbout05126 - SUBDIVISION IMPROVEMENT AGR TUSCANY HEIGHTS LLC F f I MARK C. SCHNITZER, State Bar No. 48628 MARTHA A. WARRINER, State Bar No. 76132 2 RE,ID & HELLYER A Professional Corporation 3 3880 Lemon Street, Fifth Floor Post Office Box 1300 4 Riverside, California 92502-1300 Telephone: (951) 682-1771 5 Facsimile: (951) 686-2415 e-mail: mschnitzer@rhlaw.com 6 e-mail: mwarriner@rhlaw.com Attorneys for Debtor and 7 Debtor-in-Possession 8 UNITED STATES BANKRUPTCY COURT 9 CENTRAL DISTRICT OF CALIFORNIA, RIVERSIDE DIVISION 10 1 I In re ) CASE.NO. 6:09-bk-14197 TD 0 12 ) Cbapter I I o = Tuscany IIeights LLC, ) 13 ) NOTICE OF HEARING ON MOTION OF auo LL m Debtor and Debtor-in-Possession. ) DEBTOR IN POSSESSION FOR i z m 14 ) AUTHORITY TO (a) ENTER INTO W u ) RESIDENTIAL LEASE; AND (b) FOR USE 15 ) OF CASH COLLATERAL TO PAY REAL aS o w a ) ESTATE COMMISSIONS ` mow 16 ) 0� � w WF,W ) DATE: November 12, 2009 M 17 ) TIME: 10:00 a.m. CRTRM.: #303, 3`d Floor 18 ) 3420 Twelfth Street Riverside, CA 92501 19 ) 20 ) 21 TO THE HONORABLE THOMAS DONOVAN, UNITED STATES BANKRUPTCY 22 JUDGE; THE OFFICE OF THE UNITED STATES TRUSTEE; CALIFORNIA BANK &c 23 TRUST AND ITS ATTORNEYS OF RECORD; ALL CREDITORS AND PARTIES IN 24 INTEREST: 25 NOTICE IS HEREBY GIVEN that pursuant to an Order Shortening Time dated 26 November 6, 2009, a hearing on the MOT10N OF DEBTOR IN POSSESSION FOR 27 AUTHORITY TO (a) ENTER INTO RESIDENTIAL LEASE; AND (b) FOR USE OF CASH 28 COLLATERAL TO PAY REAL ESTATE COMMISSIONS, will be heard on November 12, -1- 1 2009, at 10:00 a.m., in Courtroom 303 of the United States Bankruptcy Court located at 3420 2 Twelfth Street, Riverside, California. A copy of the Court's order is attached. 3 4 5 DATED: November 6, 2009 REID & HELLYER A PROFESSIONAL CORPORATION 6 7 By: /s/Mark C. Schnitzer 8 MARK C. SCI-INITZER MARTHA A. WARRINER 9 Attorneys for Debtor and Debtor-in-Possession 10 11 � 0 12 aLL � - 13 Qs ,n ^ J 0 14 x � aw 15 - � z � z M o w a W0J 16 � w M � 17 18 19 20 21 22 23 24 25 26 27 28 -2- Received Nov 6 2009 Od:07pm Nov 6 2009 4 0 8 P M J u o 7 e Ocnovao 21 ?-894-0418 No 2 10 1 P 2 Case 6:09-bk-14197-TD Doc 89 Filed 11/06/09 Entered 11/06/09 15:59:42 Desc Main Document Page 1 of 5 1 FILED & ENTERED 2 3 NOV 06 2009 4 CLERK U.B.BANKRUPTCY COURT Cantral Dlstrim of Callfwn.a 5 BY penning DEPUTY CLERK 6 7 3 UNITED STATES BANKRUPTCY COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 In re. Case No. 6 09-bk-14197-TD 12 Tuscany Heights, LLC Chapter 11 13 ORDER GRANTING DEBTOR'S APPLICATION FOR ORDER SETTING HEARING ON 14 SHORTENED NOTICE ON DEBTOR'S MOTION TO (A) ENTER INTO RESIDENTIAL LEASE, AND 15 (B) FOR USE OF CASH COLLATERAL TO PAY 16 Debtor(s). REAL ESTATE COMMISSIONS 17 Date. November 12, 2009 Time: 10.00 A M, 16 Location Courtroom 303 3420 Twelfth Street 19 Riverside, CA 92501 20 Having considered Debtors .application for Order Setting Hearing on Shortened Notice on 21 Debtor's Motion to (a) Enter into Residential Lease, and (b) For Use of Gash Collateral to Pay Real 22 Estate Commissions, 23 IT IS HEREBY ORDERED that Debtor's application is granted. 24 IT IS FURTHER ORDERED that Debtor shall give notice of the hearing by phone to the attorney 25 for California Bank & Trust ("CB&T"), or if not possible the appropriate officer of CB&T, and the United States Trustee, personally if possible, not later than the close of business today, November 6, 2009. 26 IT IS FURTHER ORDERED that Debtor shall provide written notice of the hearing and a copy of 27 the motion to the attorney for CB&T, and, if necessary to insure prompt notice, to the appropriate officer 28 of CB&T; the United States Trustee; and the 20 largest unsecured creditors, electronically if possible, otherwise by overnight mail to be received no later than Monday, November 9, 2009, at noon - 1 0 Received Nnv 6 2009 Od.Olpm Nov. 6 2009 4, 0 8 P M Judge Donovar, 213-894-0418 Nc 2 10 1 3 Case 6:09-bk-14197-TD Doc 89 Filed 11/06/09 Entered 11/06/09 15 59 42 Desc Main Document Page 2 of 5 1 IT IS FURTHER ORDERED that Debtor shall provide all creditors with written notice of the 2 hearing and a copy of the motion by regular mail no later than the close of business today, November 3 6, 2009, IT 15 SO ORDERED. d 5 B 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DATED: November 6, 2009 United States Bankruptcy Judge 26 27 28 _Z UIVI/bl-r - U.J. tian.MptCy UOUrt (V-3.S.2 - Ll VL') Yage 1 or L File a Motion: 6:09-bk-1 Q]97-TD.Tuscany Heights LLC Type: bk Chapter: I v Office: 6 (Riverside) Assets: y Judge: TD Case Flab: DEFER U.S. Bankruptcy Court Central District Of California Notice of Electronic Filing The following transaction was received from Mark C Schnitzer entered on 11/6/2009 at 11:34 AM PST and filed on 11/6/2009 Case Name: Tuscany Heights LLC Case Number: 6:09-bk-14197-TD Document Number:87 Docket Text: Motion for Conditional Use of Cash Collateral Motion of Debtor in Possession for Authority to (a) Enter Into Residential Lease; and(b)for Use of Cash Collateral to Pay Real Estate Commissions; Memorandum of Paints and Authorities; Declaration of Wesleyl Oliphant in Support Thereof with Proof of Service Filed by Debtor Tuscany Heights LLC (Attachments: 4 (1) Exhibit Attachment 1 of 2i1 (2) Exhibit Attaclunent 2 of 2) (Schnitzer, Mark) The following document(s) are associated with this transaction: Document description:Main Document Original filename:S:\WP\T0629\pleadings\ECF\Motion Cooper[1 of3].pdf Electronic document Stamp: [STAMP bkecfStamp_ID=I 106918562 [Date=11/6/2009] [FileNumbet=29534854- 0] [ct3t3aaS139dd57f4873fa90399c2l59085b8e75eaa3c32c3d4dbc50890ba6mf f563ac0bda589981714a8flc3eabe7ee34abc96f6fc7edc69eaf02392]9c2t]] Document description:Exhibit Attachment I of 2 Original filename:S:\WP\T0629\pleadings\ECF\Motion Cooper[2 of 3].pdf Electronic document Stamp: [STAMP bkeefStamp_ID=1106918562 [Date=l 1/6/2009] [FileNumber=29534854- 1] [844a0aeb99213a03lcObt3b]a13149df7b4bb58006fea5cc96278ceec3c2163ff1 29296e24bbb67aceca99e2O6edd2655233ca3e6ebe923058ca449d89dcOd06]] Document description:Exhibit Attachment 2 of 2 Original filename:S:\WP\T0629\pleadings\ECF\Motion Cooper13 of 3].pdf Electronic document Stamp: [STAMP bkecfStamp_ID=1106918562 [Date=11/6/2009] [FileNumber=29534854- 2] [0239adee7cO]O1O3f9a380386e5f4f0e478988de9f2O4fb6ldb29672ef8db9f2e0 552c627ea2c(7e9983ef5cbafe343lfO2b63661efgdf475379abd3438e3538]] 6:09-bk-14197-TD Notice will be electronically mailed to: https://ecLeacb.uscoutts.gov/cgi-bio/Dispatch,pl?105941089519901 11/6/2009 CM/ECF - U.S. Bankruptcy Court (v3.3.2 - LIVF) Page 2 of 2 Christopher L Blank on behalf of Interested Party Courtesy NEF clblaW4c@pacbell.net Dan E Chambers on behalf of Creditor California Bank & Trust as Assignee of the FDIC as Receiver for Vineyard Bank, NA dchambers@jmbm.com Mark C Schnitzer on behalf of Debtor Tuscany Heights LLC mschnitzer@rhlaw.com United States Trustee (RS) ustpregion l 6.rs.ecf@usdoj.gov Martha A Warriner on behalf of Debtor Tuscany Heights LLC mwarrincr@rhlaw.com 6:09-bk-14197-TA Notice will not be electronically mailed to: Scott Lyle Realtor 483 N Palm Canyon Dr Palm Springs, CA 92262 https://ecf.eacb.uscourts.gov/egi-bin/Dispatch,pl?105941089519901 11/6/2009 I MARK C. SCHNITZER, State Bar No. 48628 MARTHA A. WARRINER, State Bar No. 76132 2 REID & HELLYER A Professional Corporation 3 3880 Lemon Street, Fifth Floor Post Office Box 1300 4 Riverside, California 92502-1300 Telephone: (951) 682-1771 5 Facsimile: (951) 686-2415 e-mail: mschnitzer@rhlaw.com 6 e-mail: mwarriner@rhlaw.com Attorneys for Debtor and 7 Debtor-in-Possession 8 UNITED STATES BANKRUPTCY COURT 9 CENTRAL DISTRICT OF CALIFORNIA, RIVERSIDE DIVISION 10 11 In re ) CASE NO. 6:09-bk-14197 TO 12 ) Chapter 11 Q a " Tuscany Heights LLC, ) s 13 ) MOTION OF DEBTOR IN POSSESSION wLLae Debtor and Debtor-in-Possession. ) FOR AUTHORITY TO (a) ENTER INTO >. 0 14 ) RESIDENTIAL LEASE; AND (b) FOR USE LU N a 15 ) OF CASH COLLATERAL TO PAY REAL ) ESTATE COMMISSIONS; z o ) MEMORANDUM OF POINTS AND ° h w 16 ) AUTHORITIES; DECLARATION OF W w ~ ) WESLEY OLIPHANT IN SUPPORT n 17 ) THEREOF 18 ) DATE: TIME. 19 ) CRTRM.: 9303, 3`d Floor 3420 Twelfth Street 20 ) Riverside, CA 92501 21 22 TO THE HONORABLE THOMAS DONO'VAN, UNITED STATES BANKRUPTCY 23 JUDGE; THE OFFICE OF THE UNITED STATES TRUSTEE; CALIFORNIA BANK & 24 TRUST AND ITS ATTORNEYS OF RECORD; AND PARTIES IN INTEREST: 25 Tuscany Heights LLC, the debtor and debtor in possession (the "Debtor"), hereby moves this 26 Court for authority to (a) enter into a lease agreement with William Cooper for the lease of real 27 property located at 2417 Tuscany Heights, Palm Springs, CA 92262 and (b) for authority to use 28 California Bank & Trust's (the "Bank") purported cash collateral pay a commission to its broker, -1- I Scott Lyle Realtors (the "Motion"). 2 The Motion is based on the attached Memorandum of Points and Authorities, and 3 Declaration of Wesley Oliphant, and upon such other additional evidence, oral or documentary, that 4 the Court may consider- 5 6 DATED: November ', 2009 REID & HELLXER A PROFESSIONAL CORPORATION 7 8 13y: 9 MARK C. SCkrITZER MARTHA . ARRINER 10 Attorneys for Debtor and Debtor-in-Possession 11 0 12 Ua � aLLH - 13 a = ter � m a zm 14 j R O m = R Z¢ - 15 2 Cd zwM p a wwoW 16 � w Ma 17 18 19 20 21 22 23 24 25 26 27 28 -2- I MEMORANDUM OF POINTS AND AUTHORITIES 2 L 3 BACKGROUND 4 This case was commenced by the filing of a voluntary Chapter 11 petition by the Debtor on 5 March 9, 2009 (the "Petition Date"), The Debtor is a real estate developer and is the owner and 6 developer of Tuscany Heights, a 15-lot development in Palm Springs, California (the "Property"). 7 Three houses were completed prior to the Petition Date. One of them is the subject of a lease 8 agreement between the Debtor and Peter and Cindy Jamieson ("Jamieson Lease") for property 9 located at 2338 Tuscany Heights, Palm Springs, CA 92262, which lease expired on October 14, 10 2009, and for which the Debtor has a motion pending for extension of that lease. The rental income 1 I has been maintained in a segregated rents account for the benefit of the Bank. 0 12 This Motion seeks authority to enter into a new lease with William Cooper ("Cooper") for Uo - ¢ ' a 13 property located at 2417 Tuscan Heights, Palm Springs, CA 92262 for a one year term = v, 1 rt3 Y gY ws � r w a o 14 commencing November 15, 2009 and ending on November 15, 2010 at a monthly rental of S5,000. W O 0 15 In addition, Cooper will provide Debtor with a security deposit in the amount of S 10,000. The °a $O a w 16 Motion also seeks authority to pay a real estate commission to Scott Lyle Realtors, whose a � w ~ 17 employment the court has previously approved, from the purported cash collateral of the Bank. 18 II. 19 STATEMENT OF FACTS 20 A. Lease 21 On or about November 2, 2009, the Debtor entered into a one-year lease (the "Lease") for 22 the real property located at 2417 Tuscany Heights, Palm Springs, CA 92262 (the "Leased Property") 23 with William Cooper ( "Cooper"), subject to approval of this court. Pursuant to the Lease, Cooper 24 has agreed to lease the Leased Property for a term of one year commencing November 15, 2009 and 25 terminating on November 15, 2010 at a monthly rent of S5,000. In addition, Cooper has agreed to 26 provide Debtor a security deposit in the amount of$10,000. The rental income and security deposit 27 will be deposited into the segregated rents account. A true and correct copy of the Lease is attached 28 to the Declaration of Wesley Oliphant (the "Oliphant Declaration") as Exhibit 1. -3' I Cooper has informed the Debtor that unless the Lease is approved by the court on or before 2 November 15, 2009, he will not go forward with the Lease. Having immediate approval of the 3 Lease is in the best interest of the estate and its creditors as it will provide an additional source of 4 cash flow which is more beneficial than having the Leased Property remain vacant and 5 unproductive. The amount of rent is market rent under the current economic conditions. 6 B. Payment of Commission to Real Estate Broker 7 The court previously approved the employment of Scott Lyle Realtors ("Lyle") as Debtor's 8 real estate broker for the purpose of marketing, sale and other related real estate services for 9 property owned by the Debtor. A copy of the approved Residential Listing Agreement ("Listing") is 10 attached to the Oliphant Declaration as Exhibit 2. The Debtor has agreed, subject to court approval, 11 to pay Lyle a real estate commission in the amount of$6,000 for negotiating the Lease, which is a 0 � 12 10% commission as set forth in paragraph 16 of the Listing . The Debtor seeks to pay that amount UO -' ti 13 out of the segregated rents account, as set forth below. See Oliphant Declaration. zM � w LL s m14 C. Use of Cash Collateral Wwo ° w 2 J W 15 Prior to the Petition Date on or about January 2007, the Debtor entered into a loan y o � 0 W ow 16 agreement with Vineyard Bank ("Vineyard"), which provided for construction financing, and which m F 17 was secured by a deed of trust on the Property. The balance due to Vineyard as of the Petition Date 18 was approximately 510,078,000. Post-petition, Vineyard was taken over by the FDIC and the 19 Debtor is informed that the Bank became the Assignee of the FDIC as Receiver for Vineyard. After 20 filing the chapter 1 I petition, and in order to comply with its duty not to use the Bank's cash 21 collateral without the Bank's consent, the Debtor opened a segregated bank account into which 22 rental income generated by the Property was deposited, which rents are purportedly the cash 23 collateral of the Bank. As of October 31, 2009, the balance in that account was $35,04824. If the 24 Lease is approved, additional rents of$5,000.00 per month, commencing November 15, 2009, will 25 also be deposited into that account. Over the course of the Lease, the Debtor anticipates that an 26 additional 560,000, plus the security deposit, will be received by the Debtor and deposited into that 27 account. Sec Oliphant Declaration. 28 The agreed upon commission to Lyle is $6,000. There are sufficient funds in this account to -4- I pay the commission to Lyle. See Oliphant Declaration- 2 III. 3 THE COURT SHOULD APPROVE T14E LEASE 4 Section 363(b) of the Bankruptcy Code empowers a trustee, after notice and a hearing, to 5 " . . . use, sell, or lease . . . other than in the ordinary course of business,property of the estate . . . ." 6 Section 363(c) provides that unless the coup orders otherwise, the trustee may enter into 7 transactions, including the sale or lease of property of the estate, in the ordinary course of business, 8 without notice and a hearing, and may use property of the estate in the ordinary course of business 9 without notice and a hearing. Pursuant to Section 1107(a) of the Bankruptcy Code, the debtor-in- 10 possession enjoys the same powers as a trustee. 11 In considering a proposed use of such property, courts look at whether the transaction is in 0 12 the best interests of the estate based on the facts and history of the case. In re American Nest Uo `a. s 13 Airlines, 166 B.R. 908, 912 (Bankr. D. Ariz. 1994) (citing In re Lionel Corp., 722 F. 2d 1063, 1071 Q W Q N > W ¢z 14 (2d. Cir. 19823)). This analysis requires an examination of the "business justification" for the J " ¢ m J IWY O .f s < 0 15 proposed transaction. In re 240 North Brand Partners, Ltd., 200 B.R. 653 (9th Cir. BAP 1996). oUM w - i W 16 The trustee has "broad powers" under section 363 to use property of an estate, and "the manner . . . trmW " M 17 is within the discretion of the Trustee . . . ." In re The Canyon Partnership, 55 B.R. 520, 524 18 (Bankr. S.D. Cal. 1985). The Court may approve such a transaction if the debtor has articulated 19 some business justification for the transaction. In re Frnst Horne Center, Inc., 209 B.R. 974, 979 20 (Bankr. W.D. Wash. 1997). 21 The Debtor is a real estate developer and its business is focused on the development, sale 22 and/or lease of the Property. As such, it now seeks authority to enter into the Lease. And while the 23 arm's length negotiation of the Lease with Cooper is within the ordinary course of the Debtor's 24 business, the Debtor seeks court approval of the Lease in an abundance of caution. In the exercise 25 of its business judgment, the Debtor has determined that, in light of the depressed real estate market, 26 it is unlikely to be able to rent the Leased Property at a higher rent than that offered by Cooper. The 27 Debtor has been advised that unless the Lease is approved by November 15, 2009, Cooper will 28 rescind the transaction and a source of revenue for the estate would disappear. The Debtor therefore -5- I believes that it has a choice of leaving the Leased Property vacant or entering into the Lease. There 2 is only one logical choice: the Lease offers the better business choice. 3 The Debtor therefore requests authority to enter into the Lease because it is in the best 4 interests of the estate and its creditors, and because there is good business,justification 1'or the Lease. 5 The Lease terms are the result of arms length negotiation, and are as favorable as the Debtor expects 6 to be able to obtain under current economic circumstances. Thus, entering into the Lease benefits 7 not only the estate, but also the Bank for its purported cash collateral interest in the rents. S IV. 9 THE COURT SHOULD AUTHORIZE THE DEBTOR'S USE 10 OF THE BANK'S CASH COLLATERAL 11 A. The Debtor has Satisfied the Statutou Standards Applicable to Cash Collateral Use K 12 The provisions of l I U.S.C. §363(c)(2) govern a debtor's use of cash collateral. Section .a rz 13 363(c)(2)provides, in pertinent part, as follows: W A N w 14 The trustee [or debtor in possession] may not use, sell or lease cash collateral.... r �= m w - w 15 unless: (A) each entity that has an interest in such cash collateral consents; or(B) � � z od 0 O w a w w 16 the court, after notice and a hearing, authorizes such use, sale, or lease in M 17 accordance with the provisions of this section- is Therefore, a court may authorize a debtor's use of a creditor's cash collateral in the 19 absence of creditor consent. ,See, 11 U.S.C. §363(e). A debtor-in-possession has all the rights 20 and powers of a trustee with respect to property of the estate, including the right to use 21 property of the estate in compliance with I U.S.C. §363. See, I I U.S.C. §1107(a). 22 Section 363(e) provides that, upon the request of an entity that has an interest in 23 property proposed to be used by the debtor, the court may prohibit or condition such use "as is 24 necessary to provide adequate protection of such interest." The Bankruptcy Code clearly 25 delineates the party which bears the burden of proof on the relevant cash collateral issues: 26 (1) the trustee [or debtor in possession] has the burden of proof on the issue of 27 adequate protection; and 28 (2) the entity asserting an interest in property has the burden of proof on the issue -6- I of the validity, priority, or extent of such interest. 2 11 U.S.C. §363(p) 3 Thus, this Court may authorize the Debtor's use of any cash collateral of the Bank 4 upon detennining that the Bank's interests in the cash collateral as a secured creditor will be 5 adequately protected. In re McCombs Properties V1, Ltd., 88 B.R. 261 (Bankr. C.D. Cal. 6 1988), 7 B. The Debtor's Use of Cash Collateral Will Not Result in a Diminution of the Bank's 8 Interest in Its Collateral 9 1. The "Interest in Pro c " Standard 10 In United Savings v. Timbers oflnwood Forest, 484 U.S. 365, 108 S.Ct. 626 (1988), the 11 United States Supreme Court analyzed and quantified the parameters of the "interest in property," 0 12 referenced in 11 U.S.C. §§361, 362(d)(1), and 363(e), which the Bankruptcy Code undertakes to Uo r 13 protect, where required, through adequate protection. This analysis led the Supreme Court in LU W C N o a G 14 Timbers to the conclusion that the "interest in property"referenced in the above sections of the J w O m W a LL w = H � 0 15 Bankruptcy Code means, and is limited to, the "value of the Collateral." Timbers, supra, 108 Od z a w a 12 w 16 S.Ct. at 630. Therefore under the Timbers analysis, the adequate protection provisions in the W JNw � � m 7 a 17 Bankruptcy Code protect a secured creditor only from a potential diminution in the value of that 18 creditor's collateral during the post-petition period. Id. 19 The value-oriented adequate protection analysis adopted by the Supreme Court in the 20 Timbers case has been closely adhered to by the courts, which have subsequently had occasion to 21 address this issue. See e.g., In re Ledgemere Land Corp„ 116 B.R. 338, 343 (Bankr. D. Mass. 22 1990) (so long as the receivables being collected and used by the debtor are being replaced by 23 sufficient new receivables in which the creditor is granted a security interest, the creditor is 24 adequately protected); In re Johnson, 90 B.R. 973, 978 (Bankr. D. Minn. 1988) (secured creditor 25 is not impaired and is not entitled to receive adequate protection payments where value of 26 collateral does not decline); In re Century Inv. Fund, VII Ltd. Partnership, 96 B.R. 884, 887 27 (Bankr. E.D. Wis. 1989) (where value of collateral appears to be stable, secured creditor is not 28 entitled to adequate protection payments);In re Anderson, 86 B.R. 877, 889 (Bankr, N.D. Ind. -7- 1 1988) (secured creditor was required to show a necessity for adequate protection by demonstrating 2 a decline in asset value from the petition date); In re Kessler, 86 B.R. 134, 136 (Bankr. C.D. Ill. 3 1988) (tinder Timbers, movants are not entitled to adequate protection payments, as there was no 4 showing that property was depreciating in value)- 5 In In re Elmore, 94 B.R. 670, 677 (Bankr. C.D. Cal. 1988),the Court held that: 6 [T]he Court finds that the property is not depreciating in value. In consequence, 7 the Court finds that Lomas [Secured Creditor] is adequately protected by the 8 value of its collateral... The right to receive payments is a simple contract right 9 that supports only a claim in the bankruptcy case. There is no other adequate 10 protection to which Lomas is entitled under the Bankruptcy Code. I I In In re McCombs, 88 B.R. 261 (Bankr. C.D. Cal 1988), the Court held that: ffi 12 The analysis of the Supreme Court in Timbers is instructive here. The phrase -o U a 13 "interest in Property" in § 363 e means the value of the collateral. That is the aLU µ P N w0 14 interest that I am required to protect. If that value is likely to diminish during the W w 15 time of the use, adequate protection muss be provided b the Debtor. J � h � a q P P Y °aowi ° o w 16 McCombs, supra, 88 B.R. at 266 (emphasis added Accord, In re Delta Resources, Inc , 54 P.3d JMJ P ( P )•M 17 722, 730 (11`h Cir.), cert. denied, 64 U.S.L.W. 3348 (1995); In re Westchase I L.P., 126 B.R. 18 692, 694-95 (W.D.N.C. 1991). 19 Under the strict value-oriented analysis adopted by the Supreme Court in Timbers (and 20 adhered to by the well-reasoned cases cited above), the adequate protection inquiry under 11 21 U.S.C. §363(e) is limited to determining whether the debtor's use of a secured creditor's cash 22 collateral will reduce the value of the creditor's collateral base. If the debtor can establish that 23 the proposed use of the collateral will not cause a decline in the value of the collateral (as is the 24 case in this matter), then court authorization of such use is appropriate. 25 In this instance, the Debtor proposes to use cash collateral, in the form of rents collected 26 on the Leased Property, for the enhancement of the Bank's interest in that collateral. The Debtor 27 proposes to use the rents to pay the commission due to the real estate broker that negotiated the 28 Lease and which is equal to ten percent (10%) of the rents to be received under the Lease. The -8- I use of rents to pay this commission will thus enable the Debtor to replenish the rent account in 2 the net amount of S64,000 (net rent plus security deposit), which will increase the value of the 3 Bank's interest in the purported collateral. 4 2. The Debtor Has Satisfied its Adc uate Protection Burden under Timbers. 5 The asset that the Debtor seeks authority to use that constitutes the Bank's purported cash 6 collateral is the rental income that is being segregated. The cash in the account at this time is 7 S35,048.24. Under the Debtor's cash collateral proposal, the interests of the Bank in any cash 8 collateral will be adequately protected from a diminution in value through the replenishment in the 9 net amount of$64,000. 10 Here, the cash collateral consists of the rents being generated by the Property. The value 11 will depend on the preservation of the Debtor as a going concern, without the threat of disruption d 12 in cash flow. In order to generate the rental income that ultimately benefits the Bank, the Debtor UO - 4 d 13 requires the services of Lyle and for which Lyle is entitled to a commission. The net result of the gym " w0 14 Debtor's proposed use of cash collateral is the increase in net rents collected in the amount of Jw � W z 6 , 15 S54,000. In other words, upon completion of the contemplated transactions, the Debtor will have Ca ow WW 16 reduced the segregated account by approximately S6,000 and added rents of$60,000, plus the h 17 securitydeposit of S 10,000, all to the net benefit of the Bank's p purported secured position. 18 Debtor is not seeking to use the Bank's cash collateral for other expenses relating to the 19 maintenance of the Property. The court has already approved a borrowing motion for that 20 purpose. The use contemplated by the Debtor is to pay for services related to generating income, 21 which the Bank would be obligated to do if it were the owner of the Property. 22 23 24 25 26 27 28 -9- 1 v. 2 CONCLUSION 3 Wherefore, Debtor respectfully requests the court to approve the Lease; approve the payment of 4 Lyle's commission from the purported cash collateral of the Bank; and for such other and further 5 relief as the court deems just and proper. 6 7 DATED: November 2009 REID & HELLYER A PROFESSIONAL CORPORATION 8 9 By. 10 MA C. SCHNIT7FR HA A. WARRiNER I 1 A orneys for Debtor and Debtor-in-Possession 12 Ua �= aLLN - 13 }'u a 14 LU ff 15 06 O w a tow 16 `ww w Ma 17 18 19 20 21 22 23 24 25 26 27 28 -10- I DECLARATION OF WESLEY OLIPHANT 2 I, WESLEY OLIPHANT, declare: 3 1. I am the managing member of Tuscany Heights, LLC, the debtor and debtor 4 in possession (the "Debtor"). The following facts are known to me personally and if called upon 5 to testify, I could and would testify competently thereto. 6 2. The Debtor is a real estate developer and is the owner and developer of Tuscany 7 Heights, a 15-lot development in Palm Springs, California (the "Property"). Three houses were 8 built pre-petition, and the remaining 12 lots are ready for construction- 9 3. On or about November 2, 2009, the Debtor entered into a one-year lease (the 10 "Lease") for the real property located at 2417 Tuscany Heights, Palm Springs, CA 92262 (the 11 "Leased Property") with William Cooper ( "Cooper"), subject to approval of this court. Pursuant a 12 to the Lease, Cooper has agreed to lease the Leased Property for a term of one year commencing 0 vas LL h 13 November 15, 2009 and terminating on November 15, 2010 at a monthly rent of$5,000. In 5- = 0 14 addition, Cooper has agreed to provide Debtor a security deposit in the amount of$10,000. The Jw � O1 15 rental income and security deposit will be deposited into the segregated rents account. A true and 2N ¢ zo U O w 4 W N w 16 correct copy of the Lease is attached hereto as Exhibit 1. m 17 4. Cooper has informed me that unless the Lease is approved by the court on or before 18 November 15, 2009, he will not go forward with the Lease. Having immediate approval of the 19 Lease is in the best interest of the estate and its creditors as it will provide an additional source of 20 cash flow which is more beneficial than having the Leased Property remain vacant and 21 unproductive. I believe the amount of react is market rent under the current economic conditions. 22 Thus, in my opinion, and in the exercise of my business j udgment, entering into the Lease benefits 23 not only the estate, but also the Bank for its purported cash collateral interest in the rents. 24 5. The court previously approved the employment of Scott Lyle Realtors ("Lyle") as 25 Debtor's real estate broker for the purpose of marketing, sale and other related real estate services 26 for property owned by the Debtor. A copy of the approved Residential Listing Agreement 27 ("Listing") is attached to the Oliphani Declaration as Exhibit 2. Pursuant to that employment, 28 Lyle negotiated the terms of the Lease on behalf of the Debtor and has thus earned a commission, -11- I subject only to Court approval. The Debtor has agreed, subject to court approval,to pay Lyle a 2 real estate commission in the amount of$6,000 for negotiating the Lease,which is a 10% 3 commission as set forth in paragraph 16 of the Listing , I believe the commission for Lyle is both 4 reasonable and consistent with industry standards. Because the Lease is for the benefit of both the 5 estate and the Bank,I am asking that the Debtor be allowed to use funds from the segregated rents 6 account to pay that commission- 7 6. Prior to the Petition Date, in or about January 2007, the Debtor entered into a loan 8 agreement with Vineyard Bank("Vineyard") which provided for construction financing and was 9 secured by a deed of trust on the Property. The balance due to Vineyard,as of the Petition Date 10 was approximately$10,078,000. Post-petition,Vineyard was taken over by the FDIC and I have 11 been informed that Califomia Bank& Trust("CB&T") became the Assignee of the FDIC as 0 12 Receiver for Vineyard(Vineyard and CB&T are collectively, the "Bank"). E 13 7. After filing the chapter I 1 petition,and in order to comply with its duty not to use a ff 14 the Bank's cash collateral without the Bank's consent, on behalf of the Debtor, I opened a _awos s 0 15 segregated bank account into which rental income generated by the Property has been deposited, ao 16 which rents are purportedly the cash collateral of the Bank. The balance in that account as of 17 October 31,2009 was$35,048.24. There are sufficient funds in this account to pay the 18 commission to Lyle. 19 7. The rental income to be received pursuant to the Lease is at least$60,000,plus the 20 security deposit of$10,000. Net of the commission to Lyle, the Lease will produce$64,000 in 21 additional rental income, which will be deposited in the segregated rents account. 22 1 declare under penalty of perjury pursuant to the laws of the United States that the 23 foregoing facts are true and correct. 24 Executed this-day of November at Palm Desert, California. 25 26 27 WESLEY OLIPRANT 28 _12_ EXHIBIT 1 C A L F F O R N L A RESIDENTIAL LEASE OR r ASSOCIATION MONTHJO-MONTH RENTAL AGREEMENT OF R E A L T O R S du (C.A,R.Form LR,Revised 11/08) Date 1110212009 , Tusaan5, HeicThts ("Landlord")and William Coo er ('Tenant")agree as follows' 1, PROPERTY: A. Landlord rents to Tenant and Tenant rents from Landlord, the real property and Improvements described as:2427 Tuscany Heights TJriL7Q. Palm_ Epriners CA 92262 ("Premises"), B. The Premises are for the sole use as a personal residence by the following named person(s)only: C. The following personal property,maintained pursuant to paragraph 11,Is Included: or❑(If checked)the personal property on the attached addendum. 2. TERM:The term begins on(date) _November 15, 200.9 ("Commencement pate"),(CheckA or B); ❑ A. Month-to-Month: and continues as a month-to-month tenancy.Tenant may terminate the tenancy by giving written notice at least 30 days prior to the intended termination date.Landlord may terminate the tenancy by giving written notice as provided by law.Such notices may be given on any date. [] B. Lease:and shall terminate on(date) November 15, 2010 at !zoo ❑AM/❑x PM. Tenant shall vacate the Premises upon termination of the Agreement, unless: (I) Landlord and Tenant have extended this agreement In writing or signed a new agreement; III) mandated by local rent control law; or(Ili) Landlord accepts Rent from Tenant(other than past due Rent),In which case a month-to-month tenancy shall be created which either party may terminate as specified in paragraph 2A, Rent shall be at a rate agreed to by Landlord and Tenant, or as allowed by law.All other terms and conditions of this Agreement shall remain in full force and effect. 3. RENT:"Rent"shall mean all monetary obligations of Tenant to Landlord under the terms of the Agreement,except security deposit. A. Tenant agrees to pay$ 5,000.00 per month For the term of the Agreement. B. Rent Is payable in advance on the 1st(or 0 15th )day of each calendar month,and is delinquent on the next day. C. If Commencement Date falls on any day other than the day Rent is payable under paragraph 3B, and Tenant has paid one full month's Rent in advance of Commencement Date,Rent for the second calendar month shall be prorated based on a 30-day period. D. PAYMENT:Rent shall be paid by ❑personal check, ❑money order,[�fl cashlerds check,or ❑other 'to (name) (phone) at (address) ,(or at any other location subsequently speclfied by Landlord In writing to Tenant)(and ❑if checked, rent may be paid personally between the hours of and on the following days ).If any payments Is returned for non-sufficient funds("NSF")or because tenant steps payment,then, after that:(I)Landlord may,in writing, require Tenant to pay Rent In cash for three months and(ll)all future Rent shall be paid by❑money order,or ❑cashier's check. 4. SECURITY DEPOSIT: A. Tenant agrees to pay$ 10,000,00„ as a security deposit.Security deposit will be[]transferred to and held by the Owner of Ina Premises,or ❑x held In Owner's Broker's trust account. B. All or any portion of the security deposit may be used,as reasonably necessary,to:(I)cure Tenant's default in payment of Rent(which includes Late Charges, NSF Fees or other sums due); (11) repair damage,excluding ordinary wear and tear,caused by Tenant or by a guest or licensee of Tenant; (ili) dean Premises, If necessary, upon termination of the tenancy, and (iv) replace or return personal property or appurtenances SECURITY DEPOSIT SHALL NOT BE USED BY TENANT IN LIEU OF PAYMENT OF LAST MONTH'S RENT. If all or any portion of the security deposit Is used during the tenancy.Tenant agrees to reinstate the total security deposit within five days after written notice is delivered to Tenant.Within 21 days after Tenant vacates the Premises, Landlord shall!(1)furnish Tenant an Itemized statement indicating the amount of any security deposit received and the basis for Its disposition and supporting documentation as required by California Civil Code§ 1950.5(g);and (2) return any remaining portion of the security deposit to Tenant. C. Security deposit will not be returned until all Tenants have vacated the Premises and all keys returned.Any security deposit returned by check shall be made out to all Tenants named on this Agreement,or as subsequently modified. D. No interest will be paid on security deposit unless required by local law E. If the security deposit is held by Owner, Tenant agrees not to hold Broker responsible for Its return. If the security deposit Is held in Owner's Broker's trust account, and Broker's authority is terminated before expiration of this Agreement, and security deposit Is released to someone other than Tenant, then Broker shall notify Tenant, in writing, where and to whom security deposit has been released. Once Tenant has been provided such notice,Tenant agrees not to hold Broker responsible for the security deposit. 5. MOVE-IN COSTS RECEIVED/DUE: Move-In funds made pa,�aable to Scott Lyle Realtors shall be paid by ❑personal check, ❑x money order,or Ixl cashier's check, Category Total Due Payment Received Balance Due Date Due Rent from Z_1f�5/_2009 t0 12/15/2009 (date) $5,000.00 $5 000,00 12/15/2009 "Security Deposit $10,coo,00 $10 000.00 1212512009 Other 11/15/2009 Other Total $25,000.00 $15 000.00 1111512009 °The maximum amount landlord may recelve as security deposit,however designated, cannot exceed two months' _�ryt for unfurnished premises,or three months'Rentforfurnlshed premises. Tenant's Initials ( I;V)( ) The copyright laws of the United States(Title 17 U.S.Code)forbid the unauthorized Landlord's Initials �`�W �_reproduction or this form,or any porilen thereof,by photocopy machine or any other ( )( ) means, Including facsimile or computerized formats. Copyright b 1991-2008, CALIFORNIA ASSOCIATION OF REACTORS®,INC.ALL RIGHTS RESERVED. Reviewed by Date ¢ounGx1usipc lR REVISED 11I08(PAGE 1 OP 6) oPFUTURIrY RESIDENTIAL LEAS Q ORENTAL A REEMI=NT L 1 OF 6 Agent: Ryan Cummings Phone:(760)409-9129 Fax:(619)923.3347 Prepared using WINForms®software Broker: Capitl5 Real Estate 515 N.Palm Canyon Dr.,Bldg.C, Palm Springs CA 92262 2917 TnsCany Heights Drive Premises:Palm Springs, CA 92262 Date: Novembex 2, 2009 G. LATE CHARGE; RETURNED CHECKS: X Tenant acknowledges either late payment of Rent or issuance of a returned check may cause Landlord to Incur costs and expenses, the exact amounts of which are extremely difficult and impractical to determine.These costs may include, but are not limited to, processing, enforcement and accounting expenses, and late charges imposed on Landlord. If any installment of Rent due from Tenant is not received by Landlord within 5 (or❑ )calendar days afterthe date due, or if a check is returned, Tenant shall pay to Landlord, respectively, an additional sum of$ or % of the Rent due as a Late Charge and$25.00 as a NSF fee for the first returned check and$35.00 as a NSF fee for each additional returned Check, either or both of which shall be deemed additional Rent. B. Landlord and Tenant agree that these charges represent a fair and reasonable estimate of the costs Landlord may incur by reason of Tenant's late or NSF payment. Any Late Charge or NSF fee due shall be paid with the current installment of Rent. Landlord's acceptance of any Late Charge or NSF fee shall not constitute a waiver as to any default of Tenant. Landlord's right to collect a Late Charge or NSF fee shall not be deemed an extension of the date Rent is due under paragraph 3 or prevent Landlord from exercising any ether rights and remedies under this Agreement and as provided by law. 7. PARKING:(Check A or B) ❑ A. Parking is permitted as follows: Garage, Driveway and an front of Garage The right to parking [g is []is not included in the Rent charged pursuant to paragraph 3. If not Included in the Rent, the parking rental fee shall be an additional $ per month. Parking space(s)are to be used for parking properly licensed and operable motor vehicles, except for trailers, boats, campers, buses or trucks (other than pick-up trucks). Tenant shall park in assigned space(s) only. Parking speoe(s) are to be kept clean-Vehicles leaking oil,gas or other motor vehicle fluids shall not be parked on the Premises. Mechanical work or storage of inoperable vehicles is not permitted in parking space(s)or elsewhere on the Premises. OR ❑ B. Parking is not permitted on the Premises. 8. STORAGE: (Check A or B) ❑x A. Storage is permitted as follows! within Hon Ge or Garage The right to storage space❑x is,❑is not, included in the Rent charged pursuant to paragraph 3. If not included in the Rent, storage space fee shall be an additional$ per month.Tenant shall store only personal properly Tenant owns,and shall not store property claimed by another or in which another has any right,title or interest.Tenant shall not store any improperly packaged food or perishable goods, flammable materials, explosives, hazardous waste or other inherently dangerous material, or illegal substances. OR ❑ S. Storage is not permitted on the Premises. 9. UTILITIES:Tenant agrees to pay for all utilities and services, and the fallowing charges: except wate= ,which shall be paid for by Landlord. If any utilities are not separately metered, Tenant shall pay Tenant's proportional share, as reasonably determined and directed by Landlord. If utilities are separately metered, Tenant shall place utilities in Tenant's name as of the Commencement Date. Landlord is only responsible for installing and maintaining one usable telephone jack and one telephone line to the Premises. Tenant shall pay any cost for conversion from existing utilities service provider. 10. CONDITION OF PREMISES: Tenant has examined Premises and, if any, all furniture, furnishings, appliances, landscaping and fixtures, including smoke detector(s). (Check all that apply:) ❑ A. Tenant acknowledges these items are clean and in operable condition,with the following exceptions: © B. Tenant's acknowledgment of the condition of these Items is contained In an attached statement of condition (C.A.R. Form MIMO), CJ C. Tenant will provide Landlord a list of items that are damaged or not In operable condition within 3(Or❑ )days after Commencement Date, not as a contingency of this Agreement but rather as an acknowledgment of the condition of the Premises. ❑ D- Other: 11. MAINTENANCE: A. Tenant shall properly use, operate and safeguard Premises, including if applicable, any landscaping, furniture, furnishings and appliances, and all mechanical, electrical, gas and plumbing fixtures, and keep them and the Premises clean, sanitary and well ventilated. Tenant shall be responsible for checking and maintaining all smoke detectors and any additional phone lines beyond the one line and jack that Landlord shall provide and maintain. Tenant shall immediately notify Landlord, In writing, of any problem, malfunction or damage. Tenant shall be charged for all repairs or replacements caused by Tenant, pets, guests or licensees of Tenant, excluding ordinary wear and tear Tenant shall be charged for all damage to Premises as a result of failure to report a problem in a timely manner. Tenant shall be charged for repair of drain blockages or stoppages, unless Caused by defective plumbing parts or tree roots invading sewer lines. B. F1 Landlord ❑x Tenant shall water the garden, landscaping, trees and shrubs, except: as F ovidod by Hoe C. Landlord ❑x Tenant shall maintain the garden, landscaping,trees and shrubs, except: as pro idod by Hex D, p Landlord 0 Tenant shall maintain Pool and Pool EIoulpment E. Tenant's failure to maintain any item for which Tenant is responsible shall give Landlord the right to hire someone to perform such maintenance and charge Tenant to caverthe cost of such maintenance. F. The following items of personal property are included in the Premises without warranty and Landlord t III not maintain, repair or replace them' Fax-lshings fxom residence Iocat_nd at 2989 T1Yscanv Heights .Rd , Tenant's Initials )( ) Landlord's Initlals( )( ) C Copydghl®1991-2008,CALIFORNIA ASSOCIATION OF REALTORSe,INC LR REVISED 11108(PAGE 2 OF 6) Reviewed by Oate o LIIDUM RESIDENTIAL LEASE OR MONTH-TO-MONTH RENTAL AGREEMENT(LR PAGE 2 OF 6) 2427 Tuscany Heights Drive Premises: Hat m SP lnag CA 92262 pate: November 2 2009 12. NEIGHBORHOOD CONDITIONS; Tenant is advised to satisfy him or herself as to neighborhood or area conditions, including schools, proximity and adequacy of law enforcement, crime statistics,proximity of registered felons or offenders,fire protection, other governmental services, availability, adequacy and cost of any wired, wireless internet connections or other telecommunications or other technology services and installations, proximity to commercial, Industrial or agricultural activities, existing and proposed transportation,construction and development that may affect noise, view, or traffic, airport noise, noise or odorfrom any source,wild and domestic animals, other nuisances, hazards, or circumstances, cemeteries,facilities and condition of common areas, conditions and influences of significance to certain cultures and/or religions,and personal needs, requirements and preferences of Tenant. 13. PETS: Unless otherwise provided in California Civil Code § 54.2, no animal or pet shall be kept on or about the Premises without Landlord's prior written consent,except: 14. ❑ (If checked) NO SMOKING: No smoking is allowed on the Premises. If smoking does occur on the Premises, (i) Tenant is responsible for all damage caused by the smoking Including, but not limited to, stains, bums,odors and removal of debris;(ii)Tenant is In breach of this Agreement; (III)Tenant,Authorized Guests, and all others may be required to leave the Premises;and (iv)Tenant acknowledges that in order to remove odor caused by smoking, Landlord may need to replace carpet and drapes and paint entire Premises regardless of when these items were last cleaned or replaced. Such actions and other necessary steps will impact the return of any security deposit. 15. RULES/REGULATIONS: A. Tenant agrees to comply with all Landlord rules and regulations that are at any time pasted on the Promises or delivered to Tenant. Tenant shall not, and shall ensure that guests and licensees of Tenant shall not, disturb, annoy, endanger or Interfere with other tenants of the building or neighbors, or use the Premises for any unlawful purposes, including, but not limited to, using,manufacturing,selling, storing or transporting Illicit drugs or other contraband, or violate any law or ordinance,or commit a waste or nuisance on or about the Premises. B. (If applicable,check one) ©x 1. Landlord shall provide Tenant with a copy of the rules and regulations within 15 days or OR ❑2. Tenant has been provided with, and acknowledges receipt of,a copy of the rules and regulations. 16. ❑x (If checked)CONDOMINIUM; PLANNED UNIT DEVELOPMENT; A. The Promises Is a unit in a condominium, planned unit development, common interest subdivision or other development governed by a homeowners'association ("HOA").The name of the HOA is Tenant agrees to comply with all HOA covenants, conditions and restrictions, bylaws, rules and regulations and decisions. Landlord shall provide Tenant copies of rules and regulations, if any. Tenant shall reimburse Landlord for any fines or charges imposed by HOA or other authorities, due to any violation by Tenant, or the guests or licensees of Tenant. B. (Check one) ❑x 1. Landlord shall provide Tenant with a copy of the HOA rules and regulations within _%5 days or OR ❑ 2. Tenant has been provided with,and acknowledges receipt of,a copy of the HOA rules and regulations. 17. ALTERATIONS; REPAIRS: Unless otherwise specified by law or paragraph 29C, without Landlord's priorwritten consent, (i)Tenant shall not make any repairs, alterations or Improvements in or about the Premises including: painting, wallpapering, adding or changing locks, installing antenna or satellite dlsh(es), placing signs, displays or exhibits, or using screws, fastening devices, large nails or adhesive materials; (ii) Landlord shall not be responsible for the costs of alterations or repairs made by Tenant; (III)Tenant shall not deduct from Rent the costs of any repairs, alterations or Improvements; and (iv) any deduction made by Tenant shall be considered unpaid Rent. 18. KEYS; LOCKS: A. Tenant acknowledges receipt of(or Tenant will receive ❑ prior to the Commencement Date, or❑a 11/15/2009 ); ❑x 2 key(s)to Premises, ❑x 2 remote control devices)for garage door/gate opener(s), [] key(s)to mailbox, ❑ , ❑ key(s) to common area(s), El B. Tenant acknowledges that locks to the Premises ❑ have,rx7 have not, been re-keyed. C. If Tenant re-keys existing locks or opening devices, Tenant shall immediately deliver copies of all keys to Landlord.Tenant shall pay all costs and charges related to lass of any keys or opening devices. Tenant may not remove locks, even if installed by Tenant. 19. ENTRY, A. Tenant shall make Premises available to Landlord or Landlord's representative for the purpose of entering to make necessary or agreed repairs, decorations, alterations, or improvements, or to supply necessary or agreed services, or to show Premises to prospective or actual purchasers,tenants,mortgagees, lenders,appraisers, or contractors. B. Landlord and Tenant agree that 24-hour written notice shall be reasonable and sufficient notice, except as follows: 48-hour written notice Is required to conduct an inspection of the Premises prior to the Tenant moving out, unless the Tenant waives the right to such notice. Notice may be given orally to show the Promises to actual or prospective purchasers provided Tenant has been notified in writing within 120 days preceding the oral notice that the Premises are for sale and that oral notice may be given to show the Premises. No notice is required: (i) to enter in case of an emergency; (ii) if the Tenant is present and consents at the time of entry or(ill) if the Tenant has abandoned or surrendered the Premises. No written notice is required if Landlord and Tenant orally agree to an entry for agreed services or repairs if the date and time of entry are within one week of the oral agreement. C. ❑ (If checked) Tenant authorizes the use of a keysafe/lockbox to allow entry into the Premises and agrees to sign a keysafe/lockbox addendum(C.A.R. Form KLA). 20. SIGNS:Tenant authorizes Landlord to place FOR SALE/LEASE signs on the Promises. 21. ASSIGNMENT; SUBLETTING: Tenant shall not sublet all or any part of Premises, or assign or transfer this Agreement or any interest in it, without Landlord's prior written consent. Unless such consent is obtained, any assignment, transfer or subletting of Premises or this Agreement or tenancy, by voluntary act of Tenant, operation of law or otherwise, shall, at the option of Landlord, Tenants Initials I-,' ( ) Landlord's Initials Cop REVISED 11108(PAGE 3 NIAOF ASSOCIATION OF RFALTCRSm,INC ReVIGwad b Date EWn�KUAW LR REVISED 11/08(PAGE 3 OF 6) Y oppnn%NnY RESIDENTIAL LEASE OR MONTH-TO-MONTH RENTAL AGREEMENT (LR PAGE 3 OF 6) 2417 Tuscany Heights j)='Ve Premises: Palm Spnj_ngs, CR 92262 Date: November 2, 2009 _ terminate this Agreement. Any proposed assignee, transferee or sublessee shall submit to Landlord an application and credit information for Landlord's approval and, If approved, sign a separale written agreement with Landlord and Tenant. Landlord's consent to any one assignment, transfer or sublease, shall not be construed as consent to any subsequent assignment, transfer or sublease and does not release Tenant of Tenant's obligations under this Agreement. 22. JOINT AND INDIVIDUAL OBLIGATIONS: If there is more than one Tenant, each one shall be individually and completely responsible for the performance of all obligations of Tenant under this Agreement, jointly with every other Tenant, and individually, whether or not In possession. 23. ❑ LEAD-BASED PAINT(If checked): Premises was constructed prior to 1978. In accordance with federal law, Landlord gives and Tenant acknowledges receipt of the disclosures on the attached form(C.A.R. Form FLD)and a federally approved lead pamphlet. 24. ❑ MILITARY ORDNANCE DISCLOSURE: (If applicable and known to Landlord) Premises is located within one mile of an area once used for military training, and may contain potentially explosive munitions. 25. ❑ PERIODIC PEST CONTROL: Landlord has entered into a contract for periodic pest control treatment of the Premises and shall give Tenant a copy of the notice originally given to Landlord by the pest control company. 26. ❑ METHAMPHETAMINE CONTAMINATION; Prior to signing this Agreement, Landlord has given Tenant a notice that a health official has issued an order prohibiting occupancy of the property because of methamphetamine contamination. A copy of the notice and order are attached. 27. MEGAN'S LAW DATABASE DISCLOSURE: Notice: Pursuant to Section 290,46 of the Penal Code, information about specified registered sex offenders is made available to the public via an Internet Web site maintained by the Department of Justice at www.meganslaw.co.gov. Depending on an offender's criminal history, this information will Include either the address at which the offender resides or the community of residence and ZIP Code in which he or she resides. (Neither Landlord nor Brokers, if any, are required to check this wcbsite. If Tenant wants further information,Tenant should obtain information directly from this website.) 28. POSSESSION: ,4. Tenant is not in possession of the premises. If Landlord is unable to deliver possession of Premises on Commencement Date, such Date shall be extended to the date on which possession is made available to Tenant. If Landlord Is unable to deliver possession within 5(or ❑ ) calendar days after agreed Commencement Date,Tenant may terminate this Agreement by giving written notice to Landlord, and shall be refunded all Rent and security deposit paid. Possession is deemed terminated when Tenant has returned all keys to the Premises to Landlord- B. ❑Tenant is already in possession of the Premises. 29. TENANT'S OBLIGATIONS UPON VACATING PREMISES; A. Upon termination of this Agreement, Tenant shall: (i) give Landlord all copies of all keys or opening devices to Premises, including any common areas; (ii) vacate and surrender Premises to Landlord, empty of all persons; (iii) vacate any/all parking and/or storage space; (iv) clean and deliver Premises, as specified in paragraph C below, to Landlord in the same condition as referenced in paragraph 10; (v) remove all debris; (vi) give written notice to Landlord of Tenant's forwarding address; and (vii) B. All alterationslimprovements made by or caused to be made by Tenant,with or without Landlord's consent, become the property of Landlord upon termination. Landlord may charge Tenant for restoration of the Premises to the condition it was in prior to any alterations/Improvements. C. Right to Pre-Move-Out Inspection and Repairs: (1) After giving or receiving notice of termination of a tenancy (C.A.R. Form NTT), or before the end of a lease, Tenant has the right to request that an inspection of the Premises take place prior to termination of the lease or rental (C.A.R. Form NRI). If Tenant requests such an inspection,Tenant shall be given an opportunity to remedy identified deficiencies prior to termination, consistent with the terms of this Agreement. (ii) Any repairs or alterations made to the Premises as a result of this inspection (collectively, "Repairs") shall be made at Tenant's expense. Repairs may be performed by Tenant or through others, who have adequate insurance and licenses and are approved by Landlord. The work shall comply with applicable law, including governmental permit, Inspection and approval requirements. Repairs shall be performed in a good, skillful manner with materials of quality and appearance comparable to existing materials. It is understood that exact restoration of appearance or cosmetic items following all Repairs may not be possible. (ill) Tenant shall: (a) obtain receipts for Repairs performed by others; (b) prepare a written statement indicating the Repairs performed by Tenant and the date of such Repairs;and (c) provide copies of receipts and statements to Landlord prior to termination. Paragraph 29C does not apply when the tenancy is terminated pursuant to California Code of Civil Procedure§1161(2),(3)or(4) 30. BREACH OF CONTRACT; EARLY TERMINATION: In addition to any obligations established by paragraph 29, in the event of termination by Tenant prior to completion of the original term of the Agreement, Tenant shall also be responsible for lost Rent, rental commissions, advertising expenses and painting costs necessary to ready Promises for re-rental. Landlord may withhold any such amounts from Tenant's security deposit. 31. TEMPORARY RELOCATION: Subject to local law, Tenant agrees, upon demand of Landlord, to temporarily vacate Premises for a reasonable period, to allow for fumigation (or other methods) to control wood destroying pests or organisms, or other repairs to Premises. Tenant agrees to comply with all Instructions and requirements necessary to prepare Premises to accommodate pest control, fumigation or other work, including bagging or storage of food and medicine, and removal of perishables and valuables. Tenant shall only be entitled to a credit of Rent equal to the per diem Rent for the period of time Tenant is required to vacate Premises. 32. DAMAGE TO PREMISES; If, by no fault of Tenant, Premises are totally or partially damaged or destroyed by fire, earthquake, accident or other casualty that render Premises totally or partially uninhabitable, either Landlord or Tenant may terminate this Agreement by giving the other written notice. Rent shall be abated as of the date Premises become totally or partially uninhabitable. The abated amount shall be the current monthly Rent prorated on a 30-day period. If the Agreement is not terminated, Landlord shall promptly repair the damage, and Rent shall be reduced based on the extent to which the damage interferes with Tenant's reasonable use of Premises. If damage occurs as a result of an act of Tenant or Tenant's guests, only Landlord shall have the right of termination, and no reduction in Rent shall be made. 33. INSURANCE: Tenant's or guest's personal property and vehicles are not insured by Landlord, manager or, if applicable, HOA, against loss or damage due to fire, theft, vandalism, rain, water, criminal or negligent acts of oche y other cause. Tenant Is Tenant's Initials ( )( ) LanciDrd's Initials ( )( ) Copyright @ 1991-2008,CALIFORNIA ASSOCIATION OF REALTORSO INC. Reviewed by Date counumusxc LR REVISED 11I08(PAGE 4 OF 6) - — erroarvelrr RESIDENTIAL LEASE OR MONTH-TO-MONTH RENTAL AGREEMENT(LR PAGE 4 OF 6) 2417 Tuscany Heights Drive Premises: Palm springs, C.F1 92262 Date: November 2, 2009 advised to carry Tenant's own insurance (renter's insurance)to protect Tenant from any such loss or damage. Tenant shall comply with any requirement imposed on Tenant by Landlord's insurer to avoid, (1) an increase in Landlord's insurance premium (or Tenant shall pay for the Increase in premium); or(ii) loss of Insurance. 34, )NATERBEDS: Tenant shall not use or have waterbeds on the Premises unless: (i) Tenant obtains a valid waterbed insurance policy; (fi)Tenant increases the security deposit in an amount equal to one-half of one month's Rent; and (III) the bed conforms to the floor load capacity of Premises. 35. WAIVER:The waiveF of any breach shall not be construed as a continuing waiver of the same or any subsequent broach. 36. NOTICE: Notices may be served at the following address, or at any other location subsequently designated: Landlord) Tenant: 5111iam cooper 2417 Tuscany Heights Rd _ Palm Sprinos, CA 92262 37. TENANT ESTOPPEL CERTIFICATE: Tenant shall execute and return a tenant estoppel certificate delivered to Tenant by Landlord or Landlord's agent within 3 days after its receipt. Failure to comply with this requirement shall be deemed Tenant's acknowledgment that the tenant estoppel certificate is true and correct,and may be relied upon by a lender or purchaser. 38. TENANT REPRESENTATIONS; CREDIT; Tenant warrants that all statements in Tenant's rental application are accurate. Tenant authorizes Landlord and Broker(s)to obtain Tenant's credit report periodically during the tenancy in connection with the modification or enforcement of this Agreement. Landlord may cancel this Agreement: (1) before occupancy begins; (ii) upon disapproval of the credit report(s); or(iii)at any time, upon discovering that information In Tenant's application is false.A negative credit report reflecting on Tenant's record may be submitted to a credit reporting agency if Tenant fails to ful'rill the terms of payment and other obligations under this Agreement. 39. MEDIATION; A. Consistent with paragraphs B and C below, Landlord and Tenant agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to court action. Mediation fees, if any, shall be divided equally among the parties involved. If,for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action. B. The following matters are excluded from mediation: (i) an unlawful detainer action; (If) the tiling or enforcement of a mechanic's lien; and(iii)any matter within the jurisdiction of a probate, small claims or bankruptcy court,The fling of a court action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a waiver of the mediation provision. C. Landlord and Tenant agree to mediate disputes or claims involving Listing Agent, Leasing Agent or property manager("Broker'), provided Broker shall have agreed to such mediation prior to, or within a reasonable time after,the dispute or claim is presented to such Broker. Any election by Broker to participate in mediation shall not result in Broker being deemed a party to this Agreement. 40. ATTORNEY FEES: In any action or proceeding arising out of this Agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and casts, except as provided in paragraph 39A. 41. C.A.R. FORM: C.A.R. Form means the specific form referenced or another comparable form agreed to by the parties. 4Z OTHER TERMS AND CONDITIONS; SUPPLEMENTS: 0 Intororeler IanslatorAoreement(C.A.R. Form ITAI ❑ KevsafelLockbox Addendum(C.A.R.Form KLA), ❑ Lead-Based Paint and Lead-Basod Paint Hazards Disclosure(C.A R.Farm FLD) The following ATTACHED supplements are incorporated in this Agreement: Addend= S 43. TIME OF ESSENCE,; ENTIRE CONTRACT; CHANGES: Time is of the essence. All understandings between the parties are incorporated in this Agreement. Its terms are intended by the parties as a final, complete and exclusive expression of their Agreement with respect to its subject matter, and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. If any provision of this Agreement is held to be ineffective or Invalid, the remaining provisions will nevertheless be given full force and effect. Neither this Agreement nor any provision in it may be extended,amended,modified, altered or changed except in writing. This Agreement is subject to California landlord-tenant law and shall incorporate all changes required by amendment or successors to such law.This Agreement and any supplement, addendum or modification, including any copy, may be signed in two or more counterparts,all of which shall constitute one and the same writing. 44. AGENCY: A. CONFIRMATION:The following agency relationship(s)are hereby confirmed for this transaction: Listing Agent: (Print firm name) Scott a le Reaztors is the agent of(Check one):dx the Landlord exclusively; or F1 both the Landlord an enant. Leasing Agent: (Print firm name) ca itis Real Estato (if not same as Listing Agent) is the agent of (check one): x the Tenant exclusively; or u the Landlord exclusively; or ❑both the Tenant and Landlord. B. DISCLOSURE: (If checked): The term of this lease exceeds one year. A disclosure regarding real estate agency relationships (C.A.R.Form AD)has been provided to Landlord and Tenant,who each acknowledge its receipt. 45. r7 TENANT COMPENSATION TO BROKER: Upon execution of this Agreement, Tenant agrees to pay In mpensation to Broker as specified in a separate written agreement between Tenant and Broker. Tenant's Initals ( )( ) Landlord's Initials ( )( ) Copyrighl01991-2008,CALIFORNIA ASSOCIATION OF REAL70R9®,INC Reviewed b Date EouAUIWSNC LR ROWEL)11108(PAGE 5 OF 6) y orroniuNITY RESIDENTIAL LEASE OR MONTH-TO-MONTH RENTAL AGREEMENT(LR PAGE 5 OF 6) 2417 Tuscany Heights Drive Premises: Palm springs, CA 92262 ,.. Date: November 21 2009 46. ❑ INTERPRETER/TRANSLATOR: The terms of this Agreement have been interpreted for Tenant into the following language: the attached interpretor/translator agreement(C.A R. Form ITA). Landlord and Tenant acknowledge receipt of 47. FOREIGN LANGUAGE NEGOTIATION: If this Agreement has been negotiated by Landlord and Tenant primarily in Spanish, Chinese, Tagalog, Korean or Vietnamese. pursuant to the California Civil Code Tenant shall be provided a translation of this Agreement in the language used for the negotiation. 48, OWNER COMPENSATION TO BROKER: Upon execution of this Agreement, Owner agrees to pay compensation to Broker as specified in a separate written agreement between Owner and Broker(C.A.R. Form LCA). 49. RECEIPT: If specified in paragraph 5,Landlord or Broker, acknowledges receipt of move-in funds. Landlord and Tenant acknowledge and agree Brokers: (a) do not guarantee the condition of the Premises; (b) cannot verify representations made by others; (c) cannot provide legal or tax advice, (d)will not provide other advice or information that exceeds the knowledge, education or experience required to obtain a real estate license. Furthermore, if Brokers are not also acting as Landlord In this Agreement, Brokers: (e) do not decide what rental rate a Tenant should pay or Landlord should accept; and (f) do not decide upon the length or other terms of tenancy. Landlord and Tenant agree that they will seek legal, tax, insurance and other desired assistance from appropriate professionals. Tenant agree Yo re� the Premises on the a ove terms and conditions. Tenant f �5 wtlliam coopez Date Novcmbar 2 2009 Addess GL (I City t,6F%Lll _ State ,_ Zip Telephone Fax E-mail Tenant Date Address City State — Zip Telephone Fax E-mail ❑ GUARANTEE.: In consideration of the execution of this Agreement by and between Landlord and Tenant and for valuable consideration, receipt of which is hereby acknowledged, the undersigned ("Guarantor") does hereby: (i) guarantee unconditionally to Landlord and Landlord's agents, successors and assigns, the prompt payment of Rent or other sums that become due pursuant to this Agreement, including any and all court casts and attorney fees included in enforcing the Agreement; (h)consent to any changes, modifications or alterations of any term in this Agreement agreed to by Landlord and Tenant; and(M) waive any right to require Landlord and/or Landlord's agents to proceed against Tenant for any default occurring under this Agreement before seeking to enforce this Guarantee. Guarantor(Print Name) Guarantor Date Address City State Zip Telephone Fax E-mail Landiard agrees to rent the Premises on the above terms and conditions. Landlord Landlord Tuscany Heights Address Telephone Fax E-mail REAL ESTATE BROKERS: A. Real estate brokers who are not also Landlord under this Agreement are not parties to the Agreement between Landlord and Tenant. B. Agency relationships are confirmed in paragraph 44. C. COOPERATING BROKER COMPENSATION: Listing Broker agrees to pay Cooperating Broker(Leasing Firm) and Cooperating Broker agrees to accept: (1)the amount specified in the MLS,provided Cooperating Broker is a Participant of the MLS in which the Property is offered for sale or a reciprocal MLS; Or (ii)❑(if checked) the amount specified in a separate written agreement between Listing Broker and Cooperating Broker. Real Estate Broker(Listing Firm) scott Lyle Realtors „ ,- DRE Lic.#t By(Agent) DRE Lic.# Date Address City State — Zip Telephone Fax E-mail Real Estate Broker(Leasing Firm) Ca itis Real .Estate DRE Lic.#b S 5383 By(Agent) Ran cuffinin s DRE Lic.#02425106 Date Noven7bez 2, 2009 Address szs N Palm canyon Drive, Bldg C City Rasa=a.aas__ State CA Zip 9? 62 Telephone 960 d09- 1 Fax (760)874 0366 E-mail rc==ings icani isxoalastate.con ,_ THIS FORM HAS BEEN APPROVED BY THE CAUFORNIA ASSOCIATION OF RCALTORS¢D7(C.A.R.).NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF ANY PROVISION IN ANY SPEOIFIC TRANSACTION A REAL ESTATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE TRANSACTIONS IF YOU DESIRE LEGAL OR TAX ADVICE,CONSULT AN APPROPRIATE PROFESSIONAL. This form Is svallable for use by the entire real estate Industry.It In not intended to Identify the user as a REALTOR& REALTOR©Is a registered collechvo membership mark which may be used only by members of the NATIONAL ASSOCIATION OF REALTORSO who subscribe to Its Cede of Ethics Published and Distributed by: x REAL ESTATE BUSINESS SERVICES,INC. .. a subsidiary of the California Association of REALTORSO ` v 525 South Vlrgll Avenue,Los Angeles,California 90020 Revlewed by Date MAIM= oPPORTUNIry LR REVISED 11108(PAGE 6 OF 5) RESIDENTIAL LEASE OR MONTH-TO-MONTH RENTAL AGREEMENT(LR PAGE 6 OF 6) T nny liepht A' CAL FO RNIA _ ASSOCIATION ADDENDUM r� ? OF REALTORsl (C.A.R. Form ADM, Revised 10/01) No. ONE The following terms and conditions are hereby incorporated In and made a part of the: ❑ Residential Purchase Agreement, Q Manufactured Home Purchase Agreement, ❑ Business Purchase Agreement, R Residential Lease or Month-to-Month Rental Agreement, ❑ Vacant Land Purchase Agreement, 0 Residential Income Property Purchase Agreement, ❑ Commercial property Purchase Agreement, ❑ other dated November 2, 2009 , on property known as 2417_ Tuscany_Heights Drive in which William Cooper is referred to as("Buyer/Tenant") and Tuscany Heights is referred to as("Seller/Landlord"). 1,ITe_na_n_r h_as escpressed an i.,trterest_izr_purchasing the propert r�-a�some time during the term of the lease_ Terms,of purchase shalt be.tzecotiated xhen tenant takes action to tender an o££er to_Purchase based on the then current market terms- 2- Tenant reserves the r t r._ipbt of refusal in the event an offer to purchase the Property is offered by a third party. 3._Nal£_.of_monthly lease ($2500)and all move-in costs(seg deoosit)Vill be applied -� toward down--paavraent xhen Qptinn}a e7FF vci sed..___.. 4. 1f tenant wishes to purchase £urnish_inc7 with option he w111 do so under, seperate contract. The foregoing terms and conditions are hereby agreed to, and the undersigned acknowledge receipt of a copy of this document. Date November 2 20 Date Buyer(Tenant . Iler/Landlord I1.L.L1 m Cooper Tuscany Heights Buyeir/Tcnant Seller/Landlord The copyright laws of the United Slates(Title 17 US.Code)forbid the unauthorized reproduction of this form,or any portion thereof,by photocopy machine or any other means, Including facsimile or computerized formats.Copyright©1986.2001,CALIFORNIA ASSOCIATION OF REALTOR50,INC.ALL RIGHTS RESERVED. THIS FORM HAS BEEN APPROVED BY THE CALIFDRNIA ASSOCIATION OF REALTORSO(C A R) NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF ANY PROVISION IN ANY SPECIFIC TRANSACTION. A REAL ESTATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE TRANSACTIONS.IF YOU DESIRE LEGAL OR TAX ADVICE,CONSULT AN APPROPRIATE PROFESSIONAL. This form Is available for use by the entire real estate Industry It Is not Intended to Identity the user as a REALTORO REALTOR0 Is a registered collective membership mark which may be used only by members of the NATIONAL ASSOCIATION OF REALTORS©who subscribe to Its Code of Ethics. y�,� Published and Distributed by: SUREG fit,'• *• REAL ESTATE BUSINESS SERVICES,INC. Reviewed by ^ mo syslmnt for sucw�:' asubs/diary o/the California Association ofRE'ALTORSO 525 South Virgil Avenue,Los Angeles,California 90020 Broker or Designee Date [cuuibusixc ADM-11 REVISED 10101 (PAGE 1 OF 1) oFPexmxirY ADDENDUM(ADM-11 PAGE 1 OF 1) Capitis Ron]Estate 515 N Patin Canyon Dr.,Bldg,C, Palm Springs CA 92262 Phone:(760)409-0129 Fax: (619)923-3847 Ryan Cummings 711scany Height C A L I F O R N I A DISCLOSURE REGARDING ASSOCIATION REAL ESTATE AGENCY RELATIONSHIP (Selling Firm to Buyer) OF REALTORS" (As required by the Civil Code) (C.A.R.Form AD,Revised 4106) When you enter Into a discussion with a real estate agent regarding a real estate transaction, you should from(he outset understand what type of agency relationship or representation you wish to have with the agent In the transaction. SELLER'S AGENT A Seller's agent under a listing agreement with the Seller acts as the agent for the Seller only. A Seller's agent or a subagent of that agent has the following affirmative obligations: To the Seller: A Fiduciary duty of utmost care,Integrity,honesty and loyalty In dealings with the Seller. To the Buyer and the Seller: (a) Diligent exercise of reasonable skill and care in performance of the agent's duties. (b) A duty of honest and fair dealing and good faith. (c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation at,the parties. An agent Is not obligated to reveal to either party any confidential Information obtained from the other party that does not involve the affirmative duties set forth above. BUYER'S AGENT A selling agent can,with a Buyer's consent, agree to act as agent for the Buyer only. In these situations, the agent is not the Seller's agent, even If by agreement the agent may receive compensation for services rendered, either in full or in part from the Seller.An agent acting only for a Buyer has the following affirmative obligations: To the Buyer, A fiduciary duty of utmost care,integrity,honesty and loyalty in dealings with the Buyer. To the Buyer and the Seller: (a) Diligent exercise of reasonable skill and care in performance of the agent's duties. (b) A duty of honest and fair dealing and good faith. (0) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the parties. An agent Is not obligated to reveal to either party any confidential information obtained from the other party that does not involve the affirmative duties set forth above. AGENT REPRESENTING BOTH SELLER AND BUYER A real estate agent, either acting directly or through one or more associate licensees, can legally be the agent of both the Seller and the Buyer in a transaction,but only with the knowledge and consent of both the Seller and the Buyer. In a dual agency situation, the agent has the following affirmative obligations to both the Seller and the Buyer. (a) A fiduciary duty of utmost care,integrity,honesty and loyalty In the dealings with either the Seller or the Buyer. (b) Other dubes to the Seller and the Buyer as stated above In their respective sections. In representing both Seller and Buyer,the agent may not,without the express permission of the respective party,disclose to the other party that the Seller will accept a price less than the Ilsting price or that the Buyer will pay a price greater than the price offered. The above duties Of the agent in a real estate transaction do not relieve a Seller or Buyer from the responsibility to protect his or her own interests.You should carefully read all agreements to assure that they adequately express your understanding of the transaction. A real estate agent is a person quallfied to advise about real estate.If legal or tax advice Is desired,consult a competent professional. Throughout your real property transaction you may receive more than one disclosure form, depending upon the number of agents assisting in the transaction.The law requires each agent with whom you have more than a casual relationship to present you with this disclosure foml.You should read its contents each time it is presented to you,considering the relationship between you and the real estate agent In your specific transaction This disclosure form includes the provisions of Sections 2079.13 to 2079.24,inclusive,of the Civil Code set forth on page 2.Read it carefully. [ME ACKNOWLEDGE RECEIPT OF A COPY OF HIS ISCLOSDRE AND THE PO IONS OF THE CIVIL CODE PRINTED ON THE BACK(OR A SEPARATE PAGE). ❑ Buyer ❑ Seller ❑ Landlord ® Tenant Date ovcmbex 2, 2009 William Cooper ❑ Buyer❑ Seller ❑ Landlord ❑ Tenant Date Agent .a ita_- Raal Estate ORE Lic.901935131 Real Es to Broker(Firm) By PRE LIC. 01_,4157,- Date Xoy�,_ml2ex 2, 2009 alesper-on r- •oclate) Ryan C 5 THIS FORM SHALL BE PROVIDI ACKNOWLEDGED AS FOLLOWS(Civil Code§2079.14): • When the listing brokerage company also represents Buyer,the Listing Agent shall have one AD form signed by Seller and one signed by Buyer. • When Buyer and Seller are represented by different brokerage companies,the Listing Agent shall have one AD form signed by Seller and the Buyer's Agent shall have one AD farm signed by Buyer and one AD form signed by Seller. "rho copyright laws of the United States(Title 17 U.S Code)forbid the unauthorized reproduction of this form,or any portion thereof,by photocopy machine or any other means, Including facsimllo orcomputod2ed formats Copyright®1991.2008.CALIFORNIA ASSOCIATION OF REALTOR59,INC ALL RIGHTS RESERVED, THIS FORM HAS BEEN APPROVED BY THE CALIFORNIA ASSOCIATION OF REALTORSS(C.A.R.).NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF ANY PROVISION IN ANY SPECIFIC TRANSACTION A REAL ESTATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE TRANSACTIONS,IF YOU DESIRE LEGAL OR TAX ADVICE,CONSULT AN APPROPRIATE PROFESSIONAL. This farm Is avallabie for use by the entire real estate Industry.It Is not Intended to Identify the user as a REALTORS.REALTORS is a registered collective membership mark which may be used only by members of the NATIONAL ASSOCIATION OF REALTORS©who subscribe to Its code of Elhlce. REAL ES and BUSINESslhb�iedS S REAL ESTATE Bt181NE58 SERVICES,INC a subsidiary of the Caldomla Association of REALTORS® .^�. rd, 525 South Virgil Avenue.Los Angolas,California90020 Reviewed by Dete mwtxousiin AD REVISED 4106(PAGE 1 OF 2) I.-TRITv DISCLOSURE REGARDING REAL.ESTATE AGENCY RELATIONSHIP(AO PAGE 1 OF 2) Agent: Ryan Cummings Phone:(760)409-0129 Fax:(619)023-3347 Prepared using WINFOrmsO software Broker: Capitis Real Estate 515 N.Palm Canyon Dr.,Bldg.C, Palm Springs CA 92262 CIVIL CODE SECTIONS 2079.13 THROUGH 2O79.24(2079.16 APPEARS ON THE FRONT) 2079.13 As used in Sections 2070.14 to 2079.24,Inclusive,the following terms have the following meanings: (a)"Agent"means a person acting under provisions of title 9(commencing with Section 2295)In a real properly transaction,and includes a person who Is licensed as a real estate broker under Chapter 3(commencing with Section 10130)of Part 1 of Division 4 of the 6uslness and Professions Cade,and under whose license a listing Is executed or an offer to purchase is obtained.(b)"Assoc ate licensee" means a person who is licensed as a real estate broker or salesperson under Chapter 3 (commencing with Section 10130)of Part 1 of Division 4 of the Business and Professions Code and who is either licensed under a broker or has entered into a written contract with a broker to act as the broker's agent In connection with acts requiring a real estate license and to function under the broker's supervision In the capacity of an associate licensee.The agent in the real property transaction bears responsibility for his or her associate licensees who perform as agents of the agent.When an associate licensee owes a duty to any principal,or to any buyer or seller Who Is not a principal, in a real property transaction, that duty Is equivalent to the duty owed to that party by the broker for whom the associate licensee functions. (c) "Buyer"means a transferee in a real property transaction,and includes a person who executes an offer to purchase real property,from a seller through an agent, or who seeks the services of an agent in more than a casual, transitory, or preliminary manner, with the object of entering Into a real property transaction."Buyer'includes vendee or lessee.(d?"Dual agent" means an agent acting, either directly or through an associate licensee,as agent for both the seller and the buyer In a real property transaction.(e)"Listing agreement"means a contract between an owner of real property and an agent,by which the agent has been authorized to sell the real property or to find or obtain a buyer. (f) "Listing agent"means a person who has obtained a listing of real property to act as an agent for wmpensatien.(g)"Listing price"I5 the amount expressed rn dollars specified in the listing for which the seller Is willing to sell the real property through the listing agent (h)"offering price"Is the amount expressed In dollars specified In an offer to purchase for which the buyer Is willing to buy the real property. (i) "offer to purchase" means a written contract executed by a buyer acting through a selling agent which becomes the contract for the sale of the real property upon acceplance by the seller.(j)"Real property" means any estate specified by subdivision (1)or(2)of Section 761 In property which constitutes or I6 improved wlih one to Four dwelling units, any leasehold In this type of properly exceeding one year's duration, and mobile homes,when offered for sale or sold through an agent pursuant to the authority contained in Section 10131 6 of the Business and Professions Code. (k)"Real property transaction"means a transaction far the sale of real property In which an agent is cm toyed by one or more of the principals to act m that transaction,and includes a listing or an offer to purchase (1)"Sell;"'sale,' or 'sold"refers to a transaction for the transfer of real property from the seller to the buyer,and includes exchanges Of real property between the seller and buyer, transactions for the creation of a real property sales contract within the meaning of Section 2985,and transactions For the creation of a leasehold exceeding one year's duration.(m)"Seller"means the transferor in a real property transaction,and includes an owner who lists real property with an agent,whether or not a transfer results,or who receives an offer to purchase real property of which he or she is the owner from an agent on behalf of another."Seller"includes bath a vendor and a lessor. (n)"Selling agent"means a listing agent who acts alone,or an agent who acts In cooperation with a listing agent,and who sells or finds and obtains a buyer for the real property,or an agent who locates property for a buyer or who finds a buyer for a property for which no listing exists and presents an offer to purchase to the seller (o)"Subagent" means a person to wham an agent delegates agency powers as provided in Article 5 (commencing with Section 2349)of Chapter 1 of Title 9. However, "subagent"does not include an associate licensee who is acting under the supervision of an agent in a real property transaction. 2079.14 Listing agents and selling agents shall provide the seller and buyer In a real property transaction with a copy of the disclosure form specified in Section 2079.16, and, except as provided In subdivision (c), shall obtain a signed acknowledgement of receipt From that seller or buyer, except as pprovided in this section or section 2070.16,as follows:(a)The listing agent, If any,shall provide a disclosure form to the seller prior to entering into the Iisling agreement.(b)The selling agent shall provide the disclosure form to the seller as soon as practicable prior to presenting the seller with an offer to purchase,unless the selling agent previously provided the seller with a copy of the disclosure form pursuant to subdivision(al.(c)Where the selling agent does not deal on a face-to-face basis with the seller, the disclosure form prepared by the selling agent may be umished to the seller (and acknowledgement of receipt obtained for the selling agent from the seller) by the listing agent, or the selling agent may deliver the disclosure form by certified mail addressed to the seller at his or her last known address, In which case no signed acknowledgement of receipt Is required.(d)The selling agent shall provide the disclosure form to the buyer as soon as practicable prior to execution of the buyer's offer to purchase, except that if the offer to purchase is not prepared by the selling agent,the selling agent shall present the disclosure farm to the buyer not later than the next business day after the selling agent receives the offer to purchase from the buyer. 2079.15 In any circumstance in which the seller or buyer refuses to sign an acknowledgement of receipt pursuant to Section 2079.14, the agent, or an associate licensee acting for an agent,shall set forth,sign,and date a written declaration of the facts of the refusal 2079.17(a)As soon as practicable,the selling agent shall disclose to the buyer and seller whether the selling agent is acting In the real properly transactlon exclusivelly as the buyer's agent, exclusively as the seller's agent, or as a dual agent representing both the buyer and the seller. This relationship shall be confirmed in the contract to purchase and sell real property or In a separate writing executed or acknowledged by the seller, the buyer,and the selling agent prior to or coincident with execution of that contract by the buyer and the seller, respectively.(b)As soon as practicable, the listing agent shall disclose to the seller whether the listing agent is acting In the real property transaction exclusively as the seller's agent,or as a dual agent representing both the buyer and seller.This relationship shall be confirmed In the contract to purchase and sell real property or in a separate writing executed or acknowledged by the seller and the listing agent prior to or coincident with the execution of that contract by the seller. (c)The confirmation required by subdivisions(a)and(b)shall be in the following form 'yi,µ7ylt (oaSNOT�;COtJIP�LETE. S.gNfP;�LrIONhYj;° w�4Pyy",,.' y Is the agent or(check one) ❑ the seller exclusively;or ❑both the buyer and seller. (Name of Listing Agent) ;; w'iCOh'IPA(.'ET,6s5AM jY)'"._r �.'�`' i5 the agent of(Check ono): ❑the buyer exclusively;of❑ the seller exclusively; or (Name of Selling Agent If not the same as the Listing Agent) ❑ both the buyer and seller. (d)The disclosures and confirmation required by this section shall be in addition to the disclosure required by Section 2079.14. 2079.18 No selling agent In a real property transaction may act as an agent for the buyer only,when the selling agent is also acting as the listing agent in the transaction. 2079,19 The payment of compensation or the obligation to pay compensation to an agent by the seller or buyer Is not necessarily determinative of a particular agency relationship between an agent and the seller or buyer. A listing agent and a selling agent may agree to share any compensation or commission pall,or any right to any compensation or commission for which an obligation arises as the result of a real estate transaction,and the terms of any such agreement shall not necessarily be determinative of a particular relationship. 2079.20 Nothingg In this article prevents an agent from selecting, as a condition of the agent's employment, a specific form of agency relationship not specifically prohlblied by this article if the requirements of Section 2079.14 and Section 2079,17 are complied with. 2079.21 A dual agent shall not disclose to the buyer that the seller is willing to sell the property at a price less than the listing price,without the express written consent of the seller.A dual agent shall not disclose to the seller that the buyer is willing to ppay a price greater than the offering price,without the express written consent of the buyer This section does not alter In any way the duty or responslbilfly of a dual agent to any principal with respect to confidential information other than price. 2079.22 Nothing in this article precludes a listing agent from also being a selling agent, and the Combination of these functions in one agent does not, of itself,make that agent a dual agent. 2079.23 A contract between the principal and agent may be modified or altered to change the agency relationship at any time before the performance of the act which is the abject of the agency with the written consent of the parties to the agency relationship. 2070.24 Nothing In this article shall be construed to either diminish the duty of disclosure awed buyers and sellers by agents and their associate licensees, subagents, and employees or to relieve agents and their associate licensees, subagents, and employees from liability to air conduct In connection with acts govemed by this article or for any breach of a fiduciary duty or a duly of disclosure. Seller's/Landlord Initials( )( ) Copyright®1991.2008.CALIFORNIA ASSOCIATION OF REALTORSD INC Buyer's(feriant's Initials( )(^ ) AD REVISED 4106(PAGE 2 OF 2) Reviewed by Date nW ORTUNITY DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIP(AD PAGE 2 OF 2) Tuscany Height EXHIBIT 2 A CA LI PO RN I A RESIDENTIAL LISTING AGREEMENT 4111t ASSOCIATION (Exclusive Authorization and Right to Sell) ,WP OF RaALTOAsx (C.A,R.Farm RLA,Revised 4107) 1. EXCLUSIVE RIGHT TO SELL: Tuscany Heights, LLC Debtor in Posseaaiota ('Seller") hereby employs and grants Scott Lv2e_Rea2tors ("Broker") beginning(date) may 11, 2009 and ending at 11:59 P.M on (date) May 11, 2020 ("Listing Period") the exclusive and irrevocable right to sell or exchange the real property in.the City of� Palm Springs County of Riverside ,Assessor's Parcel No, California,described as. Tk 2S495 Tuscany Heights Lc,La 1-15 _1-,,,,OJ LADUA u ("Property"). 2. ITEMS EXCLUDED AND INCLUDED; Unless otherwise specified in a real estate purchase agreement, all fixtures and fittings that are attached to the Property are included, and personal property dens are excluded,from the purchase price, ADDITIONAL ITEMS EXCLUDED; -9,) G I: S,a�U5. eon �c�� P,t?ar c.T _ ADDITIONAL ITEMS INCLUDED: Seller intends that the above items be excluded or included in offering the Property for sale, but understands that: (i) the purchase agreement supersedes any intention expressed above and will ultimately determine which items are excluded and included in the sale; and(fi) Broker is not responsible for and does not guarantee that the above exclusions and/or inclusions will be in the purchase agreement 3. LISTING PRICE AND TERMS: A. The listing price shall be: *** Dollars (s B. Additional Terms. ** Pr4oe to be determined by Salter. Bellex will also lease with option the Finished homes on lots 1 and 3 4. COMPENSATION TO BROKER: Notice: The amount or rate of real estate commissions is not fixed by law. They are set by each Broker individually and may be negotiable between Seller and Broker (real estate commissions include all compensation and fees to Broker). A. Seller agrees to pay to Broker as compensation for services irrespective of agency relationship(s) either® 6.000 percent of the listing price(or if a purchase agreement is entered into, of the purchase price), or Q$ AND i£ no cooperating commission is due compensation_to be five (5!11;) percent , as follows (1) If during the Listing Period, or any extension, Broker, Seller, cooperating broker, or any other person procures a ouyer(s) who offers to purchase the Property on the above price and terms, or on any price and terms acceptable to Seller. (Broker is entitled to compensation whether any escrow resulting from such offer closes during or after the expiration of the Listing Period.) OR (2) If within 180 calendar days(a)after the end of the Listing Period or any extension, or(b) after any cancellation of this Agreement, unless otherwise agreed, Seller enters into a contract to sell, convey, lease or otherwise transfer the Property to anyone ("Prospective Buyer") or that person's related entity (i) who physically entered and was shown the Properly during the Listing Period or any extension by Broker or a cooperating broker; or (if) for whom Broker or any cooperating broker submitted to Seller a signed, written offer to acquire, lease, exchange or obtain an option on the Property.Seller, however, shall have no obligation to Broker under paragraph 4A(2) unless, not later than 3 calendar days after the end of the Listing Period Or any oxtension or cancellation, Broker has given Seller a written notice of the names of such Prospective Buyers. OR (3) If, without Broker's prior written consent, the Property is withdrawn From sale, conveyed, (eased, rented, otherwise transferred, or made unmarketable by a voluntary act of Seller during the Listing Period, or any extension. E. If completion of the sale is prevented by a party to the transaction other than Seller,then compensation due under paragraph 4A shall be payable only If and when Seller collects damages by suit, arbitration, settlement or otherwise, and then in an amount equal to the lesser of one-half of the damages recovered or the above Compensation, after first deducting title and escrow expenses and the expenses of collection, if any. } C. In addition, Seller agrees to pay Broker: ,L/ P S s /a D. Seller has been advised of Broker's policy regarding cooperation with, and the amount of compensation offered ko,otherbrokers. (1) Broker is authorized to cooperate with and compensate brokers participating through the multiple listing service(s) ("MLS") by offering MLS brokers either g�{.., percent of the purchase price, or El $ ,N/,4 (2) Broker is authorized to cooperate with and compensate brokers operating outside the MLS as per Broker's policy. E, Seller hereby irrevocably assigns to Broker the above compensation from Seller's funds and proceeds in'escrow. Broker may submit this Agreement, as instructions to compensate Broker pursuant to paragraph 4A, to any escrow regarding the Property involving Seller and a buyer, Prospective Buyer or other transferee. F. (1) Seller represents that Seller has not previously entered into a listing agreement with another broker regarding the Property, unless specified as follows: Al (2) Seller warrants that Seller has no obligation to pay compensation to any other broker regarding/the Property u pe nless the Property is transferred to aqy of the following individuals or entities' /(•,Uy F'� f-�C S,d c YGLZ i ).,j 61, lZc._��7.,��Sc..-:[�] (oY "tS2of�aoZ (3) If the Property is sold to anyone listed above during the time Seller is obligated to compensate another broker: (1) Broker is not entitled to compensation under this Agreement;and(it) Broker is not obligated to represent Seller in such transaction. The copyright laws of the United States (Title 17 U.S. Code) forbld the unauthorized reproduction of this form, or any portion thereat, photocopy Seller acknowledges receipt of a copy of this page. machine or an other means, including facsimile or computerized formats. Copyright m 1e31.2007,CALIFORNIA ASSOCIATION OF REALTORS& INC. Seller's Inilials( X N�) ALL RIGHTS RESERVED. laf RLA REVISED 4107(PAGE i OF 3) Reviewed by Date HURL HOLIMs WFURUNITY RESIDENTIAL LISTING AGREEMENT-EXCLUSIVE RLA PAGE 1 OF 3 Agent: Paul Dn Rouen Phone:(760)200.134a Fax:(760)345.5501 Prepared using WINForms©software Broker: Desert Estates Realty 77$D0 Ave of the States, Palm Desert CA$2211 TF 2e495 Tuscany Fle;iSbta Lots 1-15 Property Address: Palm $ rin s, CA 92262 Dale: S. OWNERSHIP,TITLE AND AUTHORITY: Seller warrants that: (i) Seller is the owner of the Property; (ii) no other persons or entities have title to the Property; and (iii) Seller has the authority to both execute this Agreement and sell the Property Exceptions to ownership,title and authority areas follows. .S'o—(IG R s IN L' cc a2. l (I &A+SAc�rro d ft -15� .wIo TGG.I 0 6. MULTIPLE LISTING SERVICE: All terms of the transaction, Including financing, if applicable, will be provided to the selected MI-5 for publication, dissemination and use by persons and entities on terms approved by the MLS. Seller authorizes Broker to comply -1 with all applicable MLS rules. MLS rules allow MLS data to be made available by the ML5 to additional Internet sites unless Broker T. gives the MLS instructions to the contrary. MLS rules generally provide that residential real property and vacant lot listings he m submitted to the ML5 within 48 hours or some other period of time after all necessary signatures have been obtained on the listing G agreement. However, Broker will not have to submit this listing to the MLS if, within that time, Broker submits to the MLS a form In signed by Seller (C.A.R. Form SEL or the locally required form) Instructing Broker to withhold the listing from the MLS. Information rA about this listing will be provided to the MLS of Broker's selection unless a form instructing Broker to withhold the listing from the 5 MI-S is attached to this listing Agreement. L 7. SELLER REPRESENTATIONS: Seller represents that, unless otherwise specified in writing, Seller is unaware of.{i.}.aay--P}etiee--of 7F . Da€aui J" d a in ; (ii}any.dPtlDCWsat--eniecrcrudc—uad�_cauy-lean-sacuFad-byrorasthersbliga'Norrafier ag-the c mtl"dtpfOCE2diflg-.�ffG�ttpn_ea�he- —reRy�; (iu)-aWJ-�itigatlOR,'ifDItfdtt@ft--(idi7liRiStr2Si4G -a:ticw,-gavemmawi-iavectigatlea-e�-tkareateaed-asNarrthalts-or-raay�ffeaFShe�Faper2y-or-SeAecle-abi6E•pHE* -� .#=Afar4t�aad(v)any current, pending or proposed special assessments affecting the Property. Seller shall promptly notify Broker in writing if Seller becomes aware of any of these items during the Listing Period or any extension thereof, B, BROKER'S AND SELLER'S DUTIES: Broker agrees to exercise reasonable effort and due diligence to achieve the purposes of this Agreement Unless Seller gives Broker written instructions to the contrary, Broker is authorized to order reports and disclosures as appropriate or necessary and advertise and market the Property by any method and in any medium selected by Broker, including iy MLS and the Internet, and, to the extent permitted by these media, control the dissemination of the information submitted to any V} medium Seller agrees to consider offers presented by Broker, and to act in good faith to accomplish the sale of the Property by, among other things, making the Property available for showing at reasonable times and referring to Broker all inquiries of any party . interested in the Property Seller Is responsible for determining at what price to list and sell the Property. Seller further agrees to v indemnify, defend and hold Broker harmless from all claims, disputes, litigation,judgments and attorney fees arising from , any incorrect information supplied by Seller,or from any material facts that Seiler knows but fails to disclose. G 9, DEPOSIT; Broker is authorized to accept and hold on Seller's behalf any deposits to be applied toward the purchase price. 10. AGENCY RELATIONSHIPS: A. Disclosure; If the Property includes residential property with one-to-four dwelling units, Seller shall receive a 'Disclosure Regarding Agency Relationships"form prior to entering into this Agreement. B. Seller Representation: Broker shall represent Seiler in any resulting transaction,except as specified in paragraph 4F C. Possible Dual Agency With Buyer: Depending upon the circumstances, it may be necessary or appropriate for Broker to act as an agent for both Seller and buyer, exchange party, or one or more additional parties ("Buyer'). Broker shall, as soon as practicable, disclose to Seller any election to act as a dual agent representing both Seller and Buyer. If a Buyer is procured directly by Broker or an associate-licensee in Broker's firm, Seller hereby consents to Broker acting as a dual agent for Seller and such Buyer In the event of an exchange, Seller hereby consents to Broker collecting compensation from additional parties for services rendered, provided there is disclosure to all parties of such agency and compensation. Seller understands and agrees that (i) Broker, without the prior written consent of Seller, will not disclose to Buyer that Seller is wllling to sell the Property at a price less than the listing price; (ii) Broker,without the prior written consent of Buyer, will not disclose to Seller that Buyer Is willing to pay a price greater than the offered price; and (tit) except for (i) and (ii) above, a dual agent is obligated to disclose known facts materially affecting the value or desirability of the Property to both parties. D, other Sellers: Sellor understands that Broker may have or obtain listings on other properties, and that potential buyers may consider, make offers on, or purchase through Broker, property the same as or similar to Seller's Property Seller consents to Broker's representation of sellers and buyers of other properties before,during and after the end of this Agreement. E. Confirmation: If the Property includes residential property with one-to-four dwelling units, Broker shall confirm the agency relationship described above,or as modified. In writing,prior to or concurrent with Seller's execution of a purchase agreement. 11.SECURITY AND INSURANCE: Broker is not responsible for loss of or damage to personal or real property, or person, whether attributable to use of a keysafe/lockbox, a showing of the Property, or otherwise Third parties, including, but not limited to, appraisers, inspectors, brokers and prospective buyers, may have access to, and take videos and photographs of,the interior of the Property. Seller agrees: (I) to take reasonable precautions to safeguard and protect valuables that might be accessible during showings of the Property; and (ii) to obtain insurance to protect against these risks. Broker does not maintain insurance to protect Seller. 12.KEYSAFE/LOCKBOX: A keysafe/lockbox is designed to hold a key to the Property to permit access to the Property by Broker, cooperating brokers, MLS participants, their authorized licensees and representatives, authorized inspectors, and accompanied prospective buyers Broker, cooperating brokers, MLS and Associations/Boards of REALTORSO are not,insurers against Injury, theft, loss,vandalism or damage attributed to the use of a keysafe/lockbox. Seller does (or if checked ❑does not) authorize Broker to install a keysafe/lockbox. If Seller does not occupy the Property. Seller shall be responsible for obtaining occupant(s)' written permission for use of a keysafe/lockbox. 13.SIGN:Seller does(or if checked EJ does not)authorize Broker to install a FOR SALE/SOLD sign on the Property. 14,EQUAL HOUSING OPPORTUNITY:The Property is offered in compliance with federal, state and local antidiscrimination laws. 15.ATTORNEY FEES: In any action, proceeding or arbitration between Seller and Broker regarding the obligation to pay compensation under this Agreement,the prevailing Seller or Broker shall be entitled to reasonable attorney fees and costs from the non-prevailing Seller or Broker, except as provided in paragraph 19A. %ADDITIONAL TERMS: This listing and any sale is subject to the app 'Oval by the bankruptcy Cogrt. S_e77 e.r also 3areas to pav to br❑ker Ten(lot) percent of any lease negotiated vpg�_, poaseaaion By tenant. 1„N •,ter-Fr�r...d✓p r�r 7tr s-+.�i✓t" _� 1�f'-.+cs SU Ak Ci�P('T —0;5f(C5P'- Tlt& 7t'+^'[dJ•'�T 'lD 1r� r2o(-c1, ��+2 [-6-AS(5 Cnbvtr✓fr S5 rD�+ Seller acknowledges receipt of a copy of this page. Copyright®1991-2007.CALIFORNIA ASSOCIATION OF REALTORSM.INC Sellers Initials RLA REVISED 4107(PAGE 2 OF 3) Reviewed by Date nuunwainc nrrnAruxlnc RESIDENTIAL LISTING AGREEMENT-EXCLUSIVE(RLA PAGE 2 OF 3) Tuscany Hcight SR 28495 Tuscany Heaght8 Lots 1-15 Property Address:Palm SPrinos, CA 92252 Date 17. MANAGEMENT APPROVAL: If an associate-licensee in Broker's office (salesperson or broker-associate) enters Into this Agreement an Broker's behalf, and Broker or Manager does not approve of its terms, Broker or Manager has the right to cancel this Agreement, in writing,within 5 Days After Its execution. 18, SUCCESSORS AND ASSIGNS:This Agreement shall be binding upon Seller and Seller's successors and assigns. 19. DISPUTE RESOLUTION: A. MEDIATION: Seller and Broker agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action, subject to paragraph 19B(2) below. Paragraph 19B(2) below applies whether or not the arbitration provision is initialed. Mediation fees, K any, shall be divided equally among the parties involved If,for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made,then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action. THIS MEDIATION PROVISION APPLIES WHETHER OR NOT THE ARBITRATION PROVISION IS INITIALED. S. ARBITRATION OF DISPUTLS: (1) Seller and Broker agree that any dispute or claim in law or equity arising between them regarding the obligation to pay compensation under this Agreement,which is not settled through mediation,shall be decided by neutral, binding arbitration, including and subject to paragraph 19B(2) below. The arbitrator shall be a retired judge or justice, or an attorney with at least 5 years of residential real estate law experience,unless the parties mutually agree to a different arbitrator, who shall render an award in accordance with substantive California law.The parties shall have the right to discovery in accordance with California Code of Civil Procedure §1283.06. In all other respects, the arbitration shall be conducted in accordance with Title 9 of Part III of the California Code of Civil Procedure.Judgment upon the award of the arbitrators) may be entered in any court having jurisdiction,Interpretation OF this agreement to arbitrate shall be governed by the Federal Arbitration Act- (2) EXCLUSIONS FROM MEDIATION AND ARBITRATION: The following matters are excluded from mediation and arbitration: (1) a judicial or non judicial foreclosure or other action or proceeding to enforce a deed of trust,mortgage, or installment land sale contract as defined in California Civil Code§2985; (ii)an unlawful detainer action; (III)the filing or enforcement of a mechanic's lien; and (iv) any matter that is within the jurisdiction of a probate, small claims, or bankruptcy court. The filing Of a court action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a waiver of the mediation and arbitration provisions. "NOTICE: 13Y INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION I5 VOLUNTARY." "WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION." Seller's Initials I Broker's Initials I 20, ENTIRE AGREEMENT:All prior discussions, negotiations and agreements between the parties concerning the subject matter of this Agreement are superseded by this Agreement,which constitutes the entire contract and a complete and exclusive expression of their agreement, and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. If any provision of this Agreement is held to be ineffective or invalid, the remaining provisions will nevertheless be given full farce and effect. This Agreement and any supplement, addendum or modification, including any photocopy or facsimile,may be executed in counterparts. By signing below,Sailer acknowledges that Seller has read, understands, received a copy of and agrees to the terms of this Agreement. Seller X __ Tti�cany He.{ghta, LLC Debtor la Date Address 77900 Avenue of the Sta C@S City palm Dr rr State CA Zip 92201 Telephone (760)H45-2626 Fax (760)345-ESo1 E-mail Seller Date Address City State Zip Telephone Fax E-mail Real Estate Broker(Firm)-„-, Scott Lyle, Realtors ORE Lic. 005?a272 By(Agent) _ Scott nv2e ORE Lic.# 00520272 Date Address A83 City palm sar9.nas State CA Zip 92262 Telephone (760)778-6200 Fax (760)778-6206 E-mail TI•II5 FORM HAS SEEN APPROVSD BY THE CALIFORNIA ASSOCIATION OF REALTORS®(C.A.R) NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF ANY PROVISION IN ANY SPECIFIC TRANSACTION A REAL ESTATE SROKSR I$ THE PERSON Ol)ALIFIEO TO ADVISE ON REAL ESTATE TRANSACTIONS IF YOU DESIRE LEGAL OR TAX ADVICE CONSULT AN APPROPRIATE PROFESSIONAL. This farm Is available for use by the entire real estate Industry.II is not intended to identify the user as a REALTOR® REALTOND r o vice,Murcd cNisclrvu membership mark which may be,used only by members of Iho NATIONAL ASSOCIATION OF REALTORSO who subscribe to Its Cade of Ethics PublisREAL Sand BUSINESS x aslibn Sty cfth CaMan5 SERVICES, of a5South rirhoenue,LO Assecimmnol REAL r0R5'r -5255oua1Vs91 Avenue,Los Ae9GPw.Call➢rnls 90020 Reviewed by Dalc VPDAnMrr RLA REVISED 4I07(PAGE 3 OF 3) RESIDENTIAL LISTING AGREEMENT�EXGLUSIVE(RLA PAGE 3 OF 3) Tuscany Height In re Tuscany Heights, LLC CHAPTER 11 Debtor(s) CASE NUMBER 6 09-bk-14197TD NOTE: When using this form to indicate service of a proposed order, DO NOT list any person or entity in Category I. Proposed orders do not generate an NEF because only orders that have been entered are placed on the CM/ECF docket. PROOF OF SERVICE OF DOCUMENT I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: 3880 Lemon Street, 51n Floor, Riverside, CA 92501 Mailing Address: RO Box 1300, Riverside, CA 92502-1300 A true and correct copy of the foregoing document described MOTION OF DEBTOR IN POSSESSION FOR AUTHORITY TO (a) ENTER INTO RESIDENTIAL LEASE; AND (b) FOR USE OF CASH COLLATERAL TO PAY REAL ESTATE COMMISSIONS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF WESLEY OLIPHANT IN SUPPORT THEREOF will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d). and (b) in the manner Indicated below: I TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING ("NEF")— Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s) ("LBR"), the foregoing document will be served by the court via NEF and hyperlink to the document. On 11/06/09 1 checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the email address(es) indicated below • Christopher L Blank clblank@pacbell.net • Dan E Chambers dchambers@jmbm.com • United States Trustee (RS) ustpregionl6ss.ecf@usdoj.gov ❑ Service information continued on attached page 11. SERVED BY U.S. MAIL OR OVERNIGHT MAIL(indicate method for each person or entity served): On I served the following person(s) and/or entity(ies) at the last known address(es) in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mall, first class, postage prepaid, and/or with an overnight mail service addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed. ❑ Service information continued on attached page Ill. SERVED BY PERSONAL DELIVERY FACSIMILE TRANSMISSION OR EMAIL indicate method for each person or entity served): Pursuant to F.R.Civ P. 5 and/or controlling LBR, on 11/6/09 1 served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on the judge will be completed no later than 24 hours after the document is fled Honorable Thomas Donovan, United States Bankruptcy Judge, Edward R Roybal Federal Building and Courthouse, 255 E. Temple, Suite 1352, Los Angeles, CA 90012— Personal Delivery © Service information continued on attached page • Christopher L Blank clblank@pacbell.nct • Dan E Chambers dchambers@jmbm.com I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California January 2009 F 9013-3.1 In re,Tuscany Heights, LLC CHAPTER 11 Dobtor(s). C E NUMBER 6 09•bk-141 D (p Wendy M. Patrick Date Type Name ~ Signature This form is mandatory It has been approved for use by the United States Bankruptcy Court for the Central District of California. January 2009 F 9013-3.1 �?ALA4 gA - , City of Palm Springs U 0 Department of Public Works and Engineering '�c°,p •^`o �' s 32Q0 E TU1uiwit Canyon Way • Palm Springs,California 92262 TcL (760)323-8253 • Pax: (760)322-8360 • Web: www.c,.palm-spwigs Ca us March 26, 2009 21 j Risk Transfer Associates Insurance 462 Corona Mall, Suite 102 n Corona, CA 92879 Attn: 5haunna Burchfiel Re:Tract Map 28495 (Tuscany Heights, LLC) Please consider this letter as the City of Palm Springs' notice that the obligations of the Subdivision Improvement Agreement (No. A5126) between the City of Palm Springs and Tuscany Heights, LLC related to Tract Map 28495, have been fully satisfied. All of the improvements covered under this Subdivision Improvement Agreement have been accepted by the City of Palm Springs. The following subdivision security required by the agreement may now be reduced from $165,450 to the following amount: • Maintenance/Warranty Bond;Bond No. 0358655 $0.00 The following bonds have previously been released as follows: • Faithful Performance Bond Bond No. 0358655 $0.00 • Labor/Materials Bond; Bond No. 0358655 $0.00 • Monumentation Bond; Bond No. 0358654 $0.00 If you have any questions, I can be reached at(760) 323-8253, extension 8741. Sincerely, Carol Templeton Engineering Associate Cc ShaunaBuramiel of Risk TmnsferAssociates Insurance via email;Julie Cox from Office of Wesley Oliphant via email;James Thompson,City Clerk; TM2B49$flie Posc Office Box 2743 Palm Springs, California 92263-2743 DOC n 2005-06SB55Z 08/12/2005 08:00A Fee:NC Page I of 33 Recorded in Official Records PLEASE COMPLETE THIS INFORMATION County of Riverside RECORDING REQUESTED BY: Larry W. Ward Assessor, County Clerk & Recorder AND WHEN RECORDED MAIL TO: I 11EI 111111111111111111111111111111111111111111 CJ O M S U PAGE SIZE DA PCOR NOCOR SMF MISC Aa.� r„ Ii A R L COPY LONG REFUND NCHG EXAM Space above this line for recorder's use only TRA: DTT: Title of Document Tuscany Heights, LLC Subdivision Improvement Agr. AGREEMENT#5126 Res 21334, 7-6-05 IT H B" A REAFOR I-IECORDERS USE ONLY THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3:00 Additional Recording Fee Applies) ACR 238RAS4RE0(Rev.02/2003) RETURN TO: CITY CLERK CITY OF PALM SPRINGS BOX 2743 PALM SPRINGS,GA 92203 SUBDIVISION IMPROVEMENT AGREEMENT by and between CITY OF PALM SPRINGS and TUSCANY HEIGHTS, LLC A CALIFORNIA LIMITED LIABILITY COMPANY ORIGINAL BID ACdWOR'o aF'EEMf-N r I IIIIII IIIIIII I III IIII IIII IIIIIII IIIII III Hill IIII IIII ,/12/260 503500R TABLE OF CONTENTS 1.Construction Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1 Works of Improvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1a Deferred Works of Improvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.2 Other Obligations Referenced in Conditions of Tentative Map Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1 .3 Intent of Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.4 Survey Monuments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.5 Performance of Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.6 Changes in the Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.7 Defective Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.8 No Warranty by City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.9 Authority of the City Engineer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.10 Documents Available at the Site . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.11 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.12 Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.13 Suspension of Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.14 Final Acceptance of Works of Improvement . . . . . . . . . . . . . . . . . . . . . . . 4 2. Time for Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.1 Commencement and Completion Dates . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.2 Phasing Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2.3 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2.4 Continuous Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2.5 Reversion to Acreage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2.6 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3. Labor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3.1 Labor Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3.2 Nondiscrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3.3 Licensed Contractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3.4 Workers' Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4. Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4.1 Required Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4.2 Form of Security Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4.3 Subdividers Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4.4 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4.5 Release of Security Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 5. Cost of Construction and Provision of Inspection Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 5.1 Subdivider Responsible for All Related Costs of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 i II II III I I I III II I I IIII IIII I IIII 60 08l 200f5 s 3300R 5.2 Payment to City for Cost of Related Inspection and Engineering Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 E3. Acceptance of Offers of Dedication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 7. Warranty of Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8.1 Remedies Not Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8.2 City Right to Perform Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 8.3 Attorney's Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 9. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 '10 General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10.2 No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10.3 Entire Agreement; Waivers and Amendments . . . . . . . . . . . . . . . . . . . . 10 11. Corporate Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ii II III IIIIIIII II IIII II II II ©a,, z�a 0FJR SUBDIVISION IMPROVEMENT AGREEMENT THIS SUBDIVISION IMPROVEMENT AGREEMENT (this "Agreement") is entered into this /I7r-j day of AV 2 --H _, 2005, by and between the CITY OF PALM SPRINGS, a municipal corporation of the State of California ("CITY"), and TUSCANY HEIGHTS, LLC, a California Limited Liability Company ("Subdivider"). RECITALS A. Subdivider is the owner of, and has obtained approval of a subdivision map for Tract Map No. 28495, located in the City of Palm Springs, County of Riverside, State of California (the "Property"), as described on Exhibit "A". The map contains conditions of approval for the development of the Property(the "Conditions") as described on Exhibit "B". B. Pursuant to the Conditions, Subdivider, by the Map, has offered dedication to the City of Palm Springs Lots "C" and "D" for street and public utility purposes, including sewers; an easement for public utility purposes, including sewers, with the right of ingress and egress for service and emergency vehicles and personnel over Lot "A"; an easement 20' wide for ingress and egress of service and emergency vehicles and personnel over Lot 9; and abutters rights of access to Racquet Club Road and Sanborn Way as shown on the map; and City desires to accept said public dedications and certain other improvements as described in this Agreement. C. Subdivider has delivered to City and City has approved plans and specifications and related documents for certain "Works of Improvement" (as hereinafter defined) which are required to be constructed and installed in order to accommodate the development of the Property. D. Subdivider's agreement to construct and install the Works of Improvement pursuant to this Agreement and its public dedications and other improvements, as described in this Agreement, are a material consideration to City in approving the parcel map for the Property and permitting development of the Property to proceed. COVENANTS Based upon the foregoing Recitals which are incorporated herein by reference and in consideration of City's approving the Map for the Property and permitting development of the Property to proceed, Subdivider agrees to timely perform all of its obligations as set forth herein. 1. Construction Obligations. 1.1 Works of Improvement. Subdivider agrees, at its sole cost and expense, to construct or install or cause to be constructed or installed the street, drainage, domestic water, sanitary sewer and other improvements(herein sometimes collectively referred to as the "Works of Improvement"), as the same may be supplemented and revised from time to time as set forth herein (said plans and specifications, together with all related documents, are referred to herein as the "Plans"). The estimated construction cost for the Works of Improvement is $1,103,000.00. loci II III I I III II 11111111111111111111111111 IIIIIII II 68l 12,290 508 GOA 5 of 33 1.1 a Deferred Works of Improvement. In accordance with City Council approval of the deferral of ultimate street improvements for Racquet Club Road West, currently designated as a Secondary Thoroughfare on the City of Palm Springs Circulation Element, as indicated by item 9 on Page 6 of Resolution 20322 adopted May 1, 2002, upon 30 days written notice from the City Engineer, Subdivider agrees, at its sole cost and expense, to construct or install or cause to be constructed or installed the ultimate street improvements for Racquet Club Road West as a Secondary Thoroughfare (herein sometimes collectively referred to as the "Deferred Works of Improvement"), as the same may be supplemented and revised from time to time as set forth herein. The estimated construction cost for the Deferred Works of Improvement is $52,000.00. Until receipt of notice from the City Engineer to construct the Deferred Works of Improvement, the Deferred Works of Improvement shall be secured in accordance with Section 4 of this Agreement. Upon completion and acceptance of the Works of Improvement by the City, and receipt of a request from Subdivider for release of security in accordance with Section 4.5 of this Agreement, the Subdivider shall furnish a separate security instrument in the amount of the Deferred Works of Improvement, or the original security instrument for faithful performance of the Works of Improvement, in accordance with Section 4.1(a)(i) of this Agreement, may be reduced to the estimated construction cost for the Deferred Works of Improvement identified herein. Said security instrument shall be held by the City until and upon completion and acceptance of the Deferred Works of Improvement by the City, or, upon adoption of a revision to the Circulation Element of the City of Palm Springs General Plan, changing the designation of Racquet Club Road West from a Secondary Thoroughfare to a Collector, rendering this Section 1.1 a null and void, at which time security held for completion of the Deferred Works of Improvement shall be released. 1.2 Other Obliciations Referenced in Conditions of Tentative Map Approval. In addition to the foregoing, Subdivider shall satisfy all of the conditions of approval on the Tentative Map for the Property. The conditions of approval associated with the Tentative Map are included as Exhibit "B" attached hereto. 1.3 Intent of Plans. The intent of the Plans referenced in Section 1.1 is to prescribe a complete work of improvement which Subdivider shall perform or cause to be performed in a manner acceptable to the City Engineer (or his/her designee) and in full compliance with all codes and the terms of this Agreement. Subdivider shall complete a functional or operable improvement or facility, even though the Plans may not specifically call out all items of work required for the contractor to complete its tasks, incidental appurtenances, materials, and the like. If any omissions are made or information necessary to carry out the full intent and meaning of the Plans, Subdivider or its contractor shall immediately notify its design engineer who will seek approval of the City Engineer for furnishing of detailed instructions. In the event of any doubt or question arising regarding the true meaning of any of the Plans, reference shall be made to the City Engineer whose decision thereon shall be final. Subdivider recognizes that the Plans consist of general drawings. All authorized alterations affecting the requirements and information given on the Plans shall be in writing and approved by the City Engineer. The Plans shall be supplemented by such working or shop drawings as are necessary to adequately control the work. Without the City Engineer's prior written approval, no change shall be made by Subdivider or Subdivider's contractor to any plan, specification, or working or shop drawing after it has been stamped as approved. 2 �� 111111111111III II 1 II II II ©8,1e6eof 3 90R 1.4 Survey Monuments. Before final approval of street improvements, Subdivider will place survey monument(s) as shown on the Map in accordance with the provisions of the State Subdivision Map Act and the Subdivision Ordinance of the City of Palm Springs. Subdivider shall provide security for such obligation as provided in Section 4.1(a)(iii) and, after setting the monument(s), Subdivider shall furnish the City Engineer of the City of Palm Springs written notice of the setting of said monument(s) and written proof of having paid the engineer or surveyor for the setting of said monument(s). 1.5 Performance of Work. Subdivider shall furnish or cause to be furnished all materials, labor, tools, equipment, utilities, transportation, and incidentals required to perform Subdivider's obligations under this Agreement. 1..6 Changes in the Work. The City Engineer, without invalidating this Agreement and without notification to any of the sureties or financial institutions referenced in Paragraph 4, may order extra work or may make changes by altering or deleting any portion of the Works of Improvement as specified herein or as deemed necessary or desirable by the City Engineer as determined necessary to accomplish the purposes of this Agreement and to protect the public health, safety, or welfare. The City Engineer shall notify Subdivider or Subdivider's contractor in writing (by Correction Notice) at the time a determination has been made to require changes in the work. No field changes performed or proposed by Subdivider or its contractor shall be binding on City unless approved in writing by the City Engineer. 1.7 Defective Work. Subdivider shall cause its contractor to repair, reconstruct, replace, or otherwise make acceptable any work found by the City Engineer to be defective. 1.8 No Warranty by City. The Plans for the Works of Improvement have been prepared by or on behalf of Subdivider or its consultants or contractors, and City makes no representation or warranty, express or implied, to Subdivider or to any other person regarding the adequacy of the Plans or related documents. 1.9 Authority of the City Engineer. In addition to the authority granted to the City E=ngineer elsewhere in this Agreement, the City Engineer shall have the authority to decide all questions which may arise as to the quality and acceptability of materials furnished and work performed, and all questions as to the satisfactory and acceptable fulfillment of the terms of this Agreement by Subdivider and Subdivider's contractor. 1.10 Documents Available at the Site. Subdivider shall cause its contractor to keep a copy of all approved Plans at the job site and shall give access thereto to the City's inspectors and engineers at all times. 1.11 Inspection. Subdivider shall have an authorized representative on the job site at all times during which work is being done who has full authority to act for Subdivider, or its design engineer, and Subdivider's contractor(s) regarding the Works of Improvement. Subdivider shall cause its contractor to furnish the City with every reasonable facility for ascertaining whetheror not the Works of Improvement as performed are in accordance with the requirements and intent of this Agreement, including the Plans. If the City inspector requests it, the contractor at any time before acceptance of the Works of Improvement shall remove or uncover such portions of the finished work as may be directed which have not previously been inspected. After examination, the contractor shall restore said portions of 3 II III I I IIII II III 1111111111111 II II �78fG'9(17 of 2500R the work to the standards required hereunder. Inspection or supervision by the City shall not be considered as direct control of the individual workmen on the job site. City's inspector shall have the authority to stop any and all work not in accordance with the requirements contained or referenced in this Agreement. The inspection of the work by City shall not relieve Subdivider or the contractor of any obligations to fulfill this Agreement as herein provided, and unsuitable materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted. 1.12 Compliance With Law. In addition to the express provisions of this Agreement and the Plans, Subdivider shall cause construction of the Works of Improvement to be completed in accordance with all other applicable federal, state, and local laws, ordinances, rules and regulations. 1.13 Suspension of Work. City Engineer shall have authority to order suspension of the work for failure of the contractor to comply with law pursuant to Section 1.11. In case of suspension of work for any cause whatever, Subdivider and its contractor shall be responsible for all materials and shall store them properly if necessary and shall provide suitable drainage and erect temporary structures where necessary. 1.14 Final Acceptance of Works of Improvement. After Subdivider's contractor has completed all of the Works of Improvement, Subdivider shall then request a final inspection of the work. If items are found by the inspector to be incomplete or not in compliance with this Agreement or any of the requirements contained or referenced herein, City will inform the contractor of such items. After the contractor has completed these items, the procedure shall then be the same as specified above for the contractor's initial request for final inspection. If items are found by City's inspector to be incomplete or not in compliance after tv✓o (2) "final" inspections, City may require the contractor, as a condition to performing further field inspections, to submit in writing a detailed statement of the work performed subsequent to the date of the previous inspection which was found to be incomplete or not in compliance at that time. No inspection or acceptance pertaining to specific parts of the Works of Improvement shall be construed as final acceptance of any part until the overall final acceptance by City is made. Final acceptance shall not constitute a waiver by City of defective work subsequently discovered. The date on which the Works of Improvement will be considered as complete shall be the date of the Notice of Acceptance. 2. Time for Performance. 2.1 Commencement and Completion Dates. Subject to Section 2.2 and 2.3 below, Subdivider shall (i) commence with construction and installation of the Works of Improvement thirty (30) days following City's approval of the Plans ("Commencement Date"); and (ii) complete or cause to be completed all of the Works of Improvement two 2 years after the Commencement Date. Extensions of time for completion of the Works of Improvement may be granted upon approval by the City Engineer or his designee. 4 � � 0030e2,� 60E11111 III III 8 E=xtension of time may be granted upon mutual agreement of the City Engineer and Subdivider, either verbally or in writing, as required by the City Engineer or his designee. 2.2 Phasinci Requirements. Notwithstanding the provisions of Section 2.1 , City reserves the right to control and regulate the phasing of completion of specific Works of Improvement as required to comply with applicable City ordinances, regulations, and rules relating to the timely provision of public services and facilities. In addition to whatever other remedies City may have for Subdivider's failure to satisfy such phasing requirements, as the same now exist or may be amended from time to time, Subdivider acknowledges City's right to withhold the issuance of further building permits on the Property until such phasing requirements are satisfied. Prior to issuance of building permits, Subdivider shall provide satisfactory evidence that all applicable requirements that are a condition to issuance of building permits have been satisfied. Such requirements may include the payment of fees, construction of improvements, or both. Final inspections or issuance of Certificates of Occupancy may be withheld from the Subdivider by the City, if, upon a determination by the City Engineer or his designee, completion of specific Works of Improvements or other requirements associated with the development of the Property have not been completed to his satisfaction. 2.3 Force Majeure. Notwithstanding the provisions of Section 2.1 , Subdivider's time for commencement and completion of the Works of Improvement shall be extended for the period of any enforced delay caused due to circumstances beyond the control and without the fault of Subdivider, including to the extent applicable adverse weather conditions, flood, earthquakes, strikers, lockouts, acts or failures to act of a public agency (including City), required changes to the scope of work required by City, and similar causes; provided, however, that the period of any enforced delay hereunder shall not include any period longer than five (5) days prior to City's receipt of a written notice from Subdivider or its Contractor detailing the grounds for Subdivider's claim to a right to extend its time for performance hereunder. City Engineer shall evaluate all claims to Force Majeure and his decision shall be final. 2.4 Continuous Work. After commencement of construction of the Works of Improvement(or separate portion thereof), Subdivider shall cause such work to be diligently pursued to completion, and shall not abandon the work for a consecutive period or more than thirty (30) days, events of Force Majeure excepted. 2.5 Reversion to Acreaqe. In addition to whatever other rights City may have due to Subdivider's failure to timely perform its obligations hereunder, Subdivider recognizes that City reserves the right to revert the Property to acreage subject to the limitations and requirements set forth in California Government Code Sections 66499.11-66499.20-3/4. In this regard, Subdivider agrees that if the Works of Improvement have not been completed on or before the later of two (2) years from the date of this Agreement or within the time allowed herein, whichever is the later, and if City thereafter initiates proceedings to revert the Property to acreage, pursuant to Government Code Section 66499.16 Subdivider hereby consents to reversion and agrees that any improvements made by or on behalf of Subdivider shall not be considered in determining City's authority to revert the Property to acreage. 2.6 Time of the Essence. Time is of the essence of Subdivider's performance of all of its obligations under this Agreement, 5 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII F's? 6s0 f5 © 2 ea 3. Labor. 3.1 Labor Standards. Subdivider shall be responsible for causing all contractors and subcontractors performing any of the Works of Improvement to comply with all applicable federal and state labor standards, including to the extent applicable the prevailing wage requirements promulgated by the Director of Industrial Relations of the State of California Department of Labor. 3.2 Nondiscrimination. Subdivider agrees that no contractor or subcontractor performing any of the Works of Improvement shall discriminate against any employee or prospective employee with respect to such work in hiring, promotion, seniority, or any other terms and conditions of employment on the grounds of race, creed, color, national origin, ancestry, religion, sex, or marital status. 3.3 Licensed Contractors. Subdivider shall cause all of the Works of Improvement to be constructed by contractors and subcontractors with valid California Contractors' licenses for the type of work being performed. 3.4 Worker's Compensation. Subdivider shall cause every contractor and subcontractor performing any of the Works of Improvement to carry Workers'Compensation Insurance as required by the Labor Code of the State of California and shall cause each such contractor and subcontractor to submit to City a Certificate of Insurance verifying such coverage prior to such contractor or subcontractor entering onto the job site. 4. Security. 4.1 Required Security. (a) At the time Subdivider executes this Agreement, Subdivider shall furnish to City the following bonds, letters of credit, instruments of credit (assignment of deposit account) or other security acceptable to City in its sole and absolute discretion and satisfying the requirements of the applicable provisions of this Section 4 below (hereinafter "Security Instruments"): (i) A Security Instrument securing Subdivider's faithful performance of all of the Works of Improvement ("Faithful Performance Security Instrument"), in the amount of $1,103,000.00 equal to 100% of the estimated construction cost referenced in Section 1.1. (ii) A Security Instrument guaranteeing the payment to contractors, subcontractors, and other persons furnishing labor, materials, and/or equipment ("Labor and Materials Security Instrument") with respect to the Works of Improvement in an amount equal to $551,500.00 equal to 50% of the estimated construction cost referenced in Section 1.1. (iii) A Security Instrument guaranteeing the payment of the cost of setting monuments as required in Section 1.4 in the amount of$8,000.00 equal to 100% of the cost thereof. This Agreement shall not be effective for any purpose until such Security Instruments are supplied to and approved by City in accordance herewith. 6 IIIII III I I IIII II III I I II II IIII II III 08 20010 f 3300R (b) Required Security Instrument for Maintenance and Warranty. Prior to the City C;ouncil's acceptance of the Works of Improvement and recordation of a Notice of Completion, Subdivider shall deliver a Security Instrument warranting the work accepted for a period of one (1) year following said acceptance ("Maintenance and Warranty Security Instrument"), in the amount of$165,450.00 equal to 15% of the estimated construction cost set forth in Section 1.1 or a suitable amount determined by the City Engineer. 4.2 Form of Security Instruments. All Security Instruments shall be in the amounts required under Section 4.1 (a) or 4.1(b), as applicable, shall meet the following minimum requirements and otherwise shall be in a form provided by City or otherwise approved by the City Attorney: (a) Bonds. For Security Instruments provided in the form of bonds, any such bond must be issued and executed by an insurance company or bank authorized to transact surety business in the State of California. Any insurance company acting as surety shall have a minimum rating of A-IX, as rated by the current edition of Best's Key Rating Guide published by A.M. Best's Company, Oldwick, New Jersey, 08858. Any bank acting as surety shall have a minimum rating of AA, as rated by Moody's or Standard & Poor's. (b) Letters of Credit. For Security Instruments which are letters of credit, any letter of credit shall be an original separate unconditional, irrevocable, negotiable and transferable commercial letter of credit issued by a financial institution with offices in the State of California acceptable to City. Any such letter of credit shall specifically permit City to draw on same by unilateral certification of the City Engineer of the City that Subdivider is in default under its payment or performance obligations hereunder or in the event Subdivider fails to deliver a replacement letter of credit not less than thirty(30) days prior to the date of expiration of any such letter of credit and shall further be subject to the provisions of Section 4.4. (c) Instrument of Credit. For Security Instruments which are Instruments of Credit, any Instrument of Credit shall bean assignment of deposit account assigning as security to City all of Subdivider's interest in funds on deposit in one or more bank accounts with financial institutions acceptable to City. (d) General Requirements for all Security Instruments. (i) Payments under any Security Instruments shall be required to be made (and, with respect to bonds, litigation shall be required to be instituted and maintained) in the City of Palm Springs, State of California (and the Security Instrument shall so provide). (ii) Each Security Instrument shall have a minimum term of one (1) year after the deadline for Subdivider's completing the Works of Improvement, in accordance with Section 2.1 (other than Instruments of Credit, which shall have no defined term or expiration date). (iii) Each Security Instrument shall provide that changes maybe made in the Works of Improvement pursuant to the terms of this Agreement without notice to any issuer or surety and without affecting the obligations under such Security Instrument. 4.3 Subdivider's Liability. While no action of Subdivider shall be required in order for City to realize on its security under any Security Instrument, Subdivider agrees to 7 1111111111111111111111 03 �9?aof 32 cooperate with City to facilitate City's realization under any Security Instrument, and to take no action to prevent City from such realization of any Security Instrument. Notwithstanding the giving of any Security Instrument or the subsequent expiration of any Security Instrument or any failure by any surety or financial institution to perform its obligations with respect thereto, Subdivider shall be personally liable for performance under this Agreement and for payment of the cost of the labor and materials for the improvements required to be constructed or installed hereby and shall, within ten (10)days after written demand therefor, deliver to City such substitute security as City shall require satisfying the requirements in this Section 4. 4.4 Letters of Credit. (a) In the event a letter of credit is given pursuant to Section 4.2(b), City shall be entitled to draw on any such letter of credit if a replacement letter of credit (expiring in not less than one (1) year, unless City agrees to a lesser term in City's sole and absolute discretion) is not delivered not less than thirty (30) days prior to the expiration of the original letter of credit, such substitute letter of credit being in the same amount and having the terms and conditions as the initial letter of credit delivered hereunder, issued by a financial institution acceptable to City as of the date of delivery of the replacement letter of credit. (b) In the event of draw by the City on a letter of credit, the City may elect, in its sole and absolute discretion, to apply any such funds drawn to the obligations secured by such letter of credit or to hold such funds in an account under the control of the City, with no interest accruing thereon for the benefit of the Subdivider. If the City elects to hold the funds in an account pursuant to the foregoing, City may thereafter at any time elect instead to apply such funds as provided in the foregoing. Subdivider agrees and hereby grants City a security interest in such account to the extent required for City to realize on its interests therein and agrees to execute and deliver to City any other documents requested by City in order to evidence the creation and perfection of City's security interest in such account. 4.5 Release of Security Instruments. (a) City shall release the Faithful Performance Security Instrument and Labor and Materials Security Instrument when all of the following have occurred: (i) Subdivider has made written request for release and provided evidence of :satisfaction of all other requirements in this Section 4.5; (ii) the Works of Improvement have been accepted; (iii)Subdivider has delivered the Maintenance and Warranty Security Instrument; and (iv) subject to the following sentences after passage of the time within which lien claims are required to be made pursuant to Article 3 (commencing with Section 3114) of Chapter 2 of Title 15 of Part IV of Division 3 of the California Civil Code. If lien claims have been timely filed, City shall hold the Labor and Materials Security Instrument until such claims have been resolved, Subdivider has provided a statutory bond, or otherwise as required by applicable law. 8 III III I I III II I I II II II II 0E��F 12 of 3300R (b) City shall release the Maintenance and Warranty Security Instrument upon Subdivider's written request upon the expiration of the warranty period, provided no claims are outstanding at that time regarding defective work. 5. Cost of Construction and Provision of Inspection Service. 5.1 Subdivider Responsible for All Costs of Construction. Subdivider shall be responsible for payment of all costs incurred for construction and installation of the Works of Improvement. In the event Subdivider is entitled to reimbursement from City for any of the Works of Improvement, such reimbursement shall be subject to a separate Reimbursement Agreement to be entered into between Subdivider and City prior to construction of the works. 5.2 Payment to City for Cost of Related Inspection and Engineering Services. Subdivider shall compensate City for all of City's costs reasonably incurred in having its authorized representative make the usual and customary inspections of the Works of Improvement. In addition, Subdivider shall compensate City for all design, plan check, evaluating any proposed or agreed-upon changes in the work. The procedures for deposit and payment of such fees shall be as established by the City Council. In no event shall :subdivider be entitled to additional inspections or a final inspection and acceptance of any of the Works of Improvement until all City fees and charges have been fully paid, including without limitation, charges for applicable penalties and additional required inspections. 6. Acceptance of Offers of Dedication. The City Council shall pass as appropriate resolution or resolutions accepting all offers of dedication shown on the Map for the Property, with acceptance to become effective upon completion and acceptance by City of the Works of Improvement. Such resolution(s) shall authorize the City Clerk to execute the Certificate made a part of the Map regarding said acceptance of the offer of dedication. 7. WarrantV of Work. Subdivider shall guarantee all Works of Improvement against defective materials and workmanship for a period of one (1) year from the date of final acceptance. If any of the Works of Improvement should fail or prove defective within said one(1)year period due to any reason otherthan improper maintenance, or if any settlement of fill or backfill occurs, or should any portion of the Works of Improvement fail to fulfill any requirements of the Plans, Subdivider, within fifteen (15) days after written notice of such defects, or within such shorter time as may reasonably be determined by the City in the event of emergency, shall commence to repair or replace the same together with any other work which may be damaged or displaced in so doing. Should Subdivider fail to remedy defective material and/or workmanship or make replacements or repairs within the period of time set forth above, City may make such repairs and replacements and the actual cost of the required labor and materials shall be chargeable to and payable by Subdivider. The warranty provided herein shall not be in lieu of, but shall be in addition to, any warranties or other obligations otherwise imposed by law. 8. Default. 8.1 Remedies Not Exclusive. In any case where this Agreement provides a specific remedy to City for a default by Subdivider hereunder, such remedy shall be in addition to, and not exclusive of, City's right to pursue any other administrative, legal, or equitable remedy to which it may by entitled. 9 11111 IN 111111111111111111111111111111 III y , z�?0ef 3303fl 8.2 City Right to Perform Work. In addition to whatever other rights or remedies it may have for Subdivider's default hereunder, in the event Subdivider shall fail to timely perform any work required to be performed under this Agreement and such failure shall continue for a period of twenty (20) days after receipt of written notice of default from City, or thereafter Subdivider shall fail to diligently and continuously pursue the cure of any such default to completion, City shall have the right to enter into the Property and perform any of the uncompleted work by force account or contract or both and thereupon recover from ;subdivider or any Security Instrument, or both, the full cost and expense thereby incurred by City. 8.3 Attornev's Fees and Costs. In the event that Subdivider fails to perform any obligation under this Agreement, Subdivider agrees to pay all costs and expenses incurred by City in securing performance of such obligations, including costs of suit and reasonable attorney's fees. In the event of any dispute arising out of Subdivider's performance of its obligations under this Agreement or under any of the Security Instruments referenced herein, the prevailing party in such action, in addition to any other relief which may be granted, shall be entitled to recover its reasonable attorney's fees and costs. Such attorney's fees and cost shall include fees and costs on any appeal, and in addition a party entitled to attorney's fees and costs shall be entitled to all other reasonable costs incurred in investigating such action, taking depositions and discovery, retaining expert witnesses, and all other necessary and related costs with respect to the litigation. All such fees and costs shall be deemed to have accrued on commencement of the action and shall be enforceable whether or not the action is prosecuted to judgment. 9. Indemnity. Subdivider agrees to indemnify, defend, and hold harmless City and City's officers, employees, and agents from and against any and all claims, liabilities, losses, damages, causes of action, and obligations arising out of Subdivider's failure to perform the construction and installation of the Works of Improvement in accordance with the requirements contained or referenced in this Agreement. Said indemnity obligation shall apply to personal injury, death, property damage, economic loss, and any other monetary damage or penalty to which City may be subjected, including without limitation, attorney's fees and costs and the costs of realizing on any Security Instrument provided by Subdivider pursuant to the terms hereof. Such indemnity obligation shall not extend to any loss resulting from City's sole negligence or willful misconduct. 10. General Provisions. 10.1 Successors and Assigns. This Agreement shall be binding upon all successors and assigns to Subdivider's right, title, and interest in and to the Property and any portion thereof. 10.2 No Third Party Beneficiaries. This Agreement is intended to benefit only the parties hereto and their respective successors and assigns. Neither City nor Subdivider intend to create any third party beneficiary rights in this Agreement in any contractor, subcontractor, member of the general public, or other person or entity. 10.3 Entire Agreement; Waivers and Amendments. This Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to all or part of the subject matter hereof, except as may be expressly provided herein. All waivers of the 10 III III I I III II 111111111111111 HIM I II 08,1�0�14 9 9ofs8 300fl provisions of this Agreement must be in writing and signed by an authorized representative of the party to be charged, and all amendments hereto must be in writing and signed by the appropriate representatives of both parties. 11. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant the (1) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into of this Agreement does not violate any provisions of any other Agreement to which said party is bound. (Signatures on Next Page) 11 II II III I II III II II I I II II II II © 00 ©of 1 33 IN WITNESS WHEREOF, the parties hereto have executed this Subdivision Improvement Agreement as of the date first above written. ATTEST: CITY OF PALM SPRINGS, CALIFORNIA ?6s Thompson, City Cl rk David H. Ready, City Lila er (/STANDARD FORM CITY ATTORNEY APPROVED AGREEMENT APPROVIED BY CITY COUNCIL RECOMMENDED BY: 4;i�� ��?6 David J. Barakian, Director of Public Works/City Engineer SUBDIVIDER: TUSCANY HEIGHTS, LLC, a California Limited Liability Company (Check One: _ individual, _ partnership, _corporation) By: Zignatwe ,/ / By: Weslev D. Oliphant, Manaqinq Member Name and Title Mailing Address: 77-900 Avenue of the States Palm Desert, CA 92211 II I IIII I (IIII II I1111,1111111111111 II 08°05 6 658553 of' 300R ALL-PURPOSE ACKNOWLEDGMENT State of Uw N ✓�.Y ��t,,)�C'''_��,l CAPACITY CLAIMED BY SIGNER County of I I bmotdti C) ❑ INDIVIDUAL(S) On s�o�I �y �� CORPORATE /��I V5 before me, ( 1! V( +v IVt t �l r L1 rLH OFFICER(S) Date d, /gyp I Na}ne, Title of Officer TITLE(S) personally appeared VV�� I �.(vlI LY' El PARTNER(S) NAM TN) OF SIGNER(* ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) !Ypersonally known to me - OR - ❑ SUBSCRIBING WITNESS ❑ GUARDIAN/CONSERVATOR fl--prew-d-m me on the basis of 3ati3factory evidence to be the persons whose name(} Cry OTHER .�,YIQ,PII,YI(;�' is/19rsubscribed to the within instrument and acknowledged to me that he/she/fl[W executed 1 I'f y'� the same in his/lierr/tltY�rt authorized capacity(iba), and that by his/hbr/(A& signature(} on the instrument the personW or the entity upon behalf of which the lei-so acted,execut d the instrument. C.BRANDOW SIGNER IS REPRESENTING: _01MyCornm.Fxp1res0c122.200d Commission# 1521142 [[ Witness pmy hand and official seal. Notary Public-Calllomla 1L .�(f(• .((J�lj �..�{/ /'14LI I.Id,�W Riverside County ■ Signature of Notary • ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to unauthorized document. THIS CERTIFICATE Title or Type of Document1/� MUST BE ATTACHED I U TO THE DOCUMENT Number of Pages DATE of DOCUMENTJ�- DESCRIBED AT RIGHT: (l Signer(s) Other Than Named Above II 11111111111111 II IIII 11111111111111rs 12 zeesSe61WR 7 of 33 )ss. County of Riverside ) On Tu I� 3�j before me, Carrie Rovnev,Notary Public , Date Name and Title of Officer personally appeared ----------------------------------David H. Readv --------------------------------------------- Name(s)of Signer(s) personally known to me ❑ Pwvcd lu ruo uu the babib of satibfaaury eviderwc — — — _ _ to be the personfs)whose uamefs)is/are subscribed to the CARRIE ROVNEY within instrument and acknowledged to me that he/shekhey Commission#1348457 executed the same in his/frer/fiheir authorized capacityfies), r' Notary Public-California � Riverside county [' and that by his/nncr hair signatures(s)on the instrument the MyComm.Expires Mar 26,2006i person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand anTo l seal U Signature of Notary P State of California ) )ss. County of Riverside ) On J-U.l� a�, a cx7S before me, Carrie Rovnev,Notary Public Date Name and Title of Officer personally appeared-------------------------------------James Thompson -------------------------------------------- Name(s)of Signer(s) ® personally known to me ❑Pruved to me uu the basis of balisfaLlury evidcu�c a a CARRIE ROVNEY a Commission#1348457 z to be the persoufs)whose name(s)is/are subscribed to the QMy Notory Public-California ; within instrument and acknowledged to me that he/she/theyRNemide county [ executed the same in his/hentheir authorized capacityf ies), _ ' ' Comm.Expires Mar 26_2006I and that by his/herftheir signatures(s)on the instrument the person(s), or the entity upon behalf of which the person fs) acted, executed the instrument. WITNESS Kkk— d and official seal l�1JVVlQ ( /� Si natur IN 111111111 11111 III 111111 III IIII as 290 18 o£e 32 EXHIBIT "A" TRACT MAP 28495 LEGAL DESCRIPTION Tract Map No. 28495, as recorded in Map Book � '�, Pages Q7 through (U0 inclusive, records of Riverside County, California. II II II 9812 z 19 of 3 0of63 3 OOA EXHIBIT "B" TENTATIVE TRACT MAP 25495 CONDITIONS OF APPROVAL III III III III II IIII III III ee, 0C2 0of©e3 I EXHISITA Tentative Tract Map 28495 South of Racquet Club Road, west of Milo Drive May 1, 2002 CONDITIONS OF APPROVAL Before final acceptance of the project,all conditions listed below shall be completed to the satisfaction of the City Engineer, the Director of Planning, the Chief of Police, or the Fite Chief,or their designee,depending on which department recommended the condition.Any agreements, easements or covenants required to be entered into shall be in a form approved by the City Attorney. ENGINEERING DEPARTMENT: The Engineering Department recommends that if this application is approved,such approval is subject to the following conditions being completed in compliance with City standards and ordinances- Before final acceptance of the project, all conditions listed below shall be completed to the satisfaction of the City Engineer. STREETS 1. Any improvements within the street right-of-way require a City of Palm Springs Encroachment Permit. Work shall be allowed according to Resolution 17950 - Restricting Street Work on Major and Secondary Thoroughfares. 2. Dedicate an easement for sewer and public utility purposes with right-of-way of ingress and egress over private street. The easement shall be the width of the traveled way from face of curb to face of curb.The City shall be provided with a key and/or card for access to the development for sewer maintenance purposes. 3. Submit street improvement plans prepared by a Registered Civil Engineer to the Engineering Department. The plan(s) shall be approved by the City Engineer prior to issuance of any grading or building permits. Minimum submittal shall include the following, If applicable: A, Copy of signed Conditions of Approval from Planning Department, B. All agreements and improvement plans approved by City Engineer, IF applicable. C. Proof of processing dedications of right-of-way, easements, encroachment agreements/licenses, covenants, reimbursement agreements, etc, required by these conditions. �558533 I IIIIIIIIIIIIIIIIIIIIIIIIIIIlllllllllllIIIII11111IIII11 ©s;12;al of$30R Resolution 20322 Page 5 RACQUET CLUE ROAD WEST 1. Dedicate right-of-way of 44 feet to provide the ultimate half street width of 44 feet along the entire frontage of the subject property including comer cutback dedications on both sides of Michael Drive in accordance with City of palm Springs Standard Drawing No. 105. 2. Construct an interim 8 inch curb and gutter, 20 feet SOUTH of centerline along the entire frontage,with a 35 foot radius curb return and spandrels at BOTH SIDES of the intersection with Michael Drive (Private Street) per City of Palm Springs Standard Drawing No. 200 and 206. New curb and gutter shall transition top match the existing roll curb at the easterly tract boundary 3. Construct an interim 6 foot wide cross gutter at the intersection of Racquet Club Load West and Michael Drive with a flow line parallel with and 20 feet south of the centerline of Racquet Club Road West in accordance with City of Palm Springs Standard Drawing No. 200 and 206. 4. Construct an interim catch basin drop inlet structure to accept street drainage into the detention basin. 5. Construct minimum interim 24 foot wide driveway approaches for access to the detention basin(Lot B)and drainage easement access road in accordance with City of Palm Springs Standard Drawing No. 201. The driveway approach for access to the detention basin (Lot B) shall be modified as necessary to accommodate the required weir outlet structure as detailed in the final drainage study. 6. Construct an interim Type A curb ramps meeting current California State Accessibility standards at the SOUTHEAST AND SOUTHWEST comers of the intersection of Racquet Club Read/ Michael Drive per City of Palm Springs Std. Dwg. Nos. 212 and 212A. 7. Remove,and replace existing pavement with a minimum pavementsection of 3inch asphalt concrete pavement aver 6 inch aggregate base with a minimum subgrade of 24 inches at 9S% relative compaction, OR equal, from edge of proposed gutter to centerline along the entire frontage and tapering to meet existing street improvements at the east side of the tract in accordance with City of Palm Springs Standard Drawing No, 110 and 330.The pavement section shall be designed,using "R" values, by a licensed Soils Engineer and submitted to the City Engineer for approval. a. Construct a dead and with barricades and 'end of road'signage at the northwest corner of the tract. II III I I III IIII I I II II II II f�110022 of 83©F9R Resolution 20322 Page 6 9. Developer shall agree to construct, pursuant to provisions of a subdivision improvement agreement and shall secure costs as required therein, ultimate Racquet Club Road West improvements necessary to widen and construct full half- street improvements to be in compliance with the General Plan designation of Racquet Club Road West as a Secondary Thoroughfare. Improvements required to be constructed Shall include all necessary removals and relocations of interim improvements allowed herein (curb and gutter, sidewalks, driveway approaches, curb returns, spandrels, and cross-gutter, and access ramps) and construction of ultimate Improvements. This action shall become null and void at such time as by City Council action the General Plan designation for Racquet Club Road West adjacent to this project Is reclassified from a secondary Thoroughfare to a Collector. MICHAEL DRIVE (Private Street) 1. The right-of-way width shall be a minimum of 37 feet wide(back of curb to back of curb). 2_ Construct a 6 inch curb 18 feet west of centerline and 6 inch curb and gutter 18 feet east of centerline along the entire frontage, with a 35 foot radius curb return and spandrel at both sides of the intersection with Racquet Club Road West per City of Palm Springs Standard Drawing No. 200. Construct a turn around area between the card reader and the gates per gated entry requirements (see condition no. 40). 3. Construct pavement with a minimum pavement section of 2-1/2 inch asphalt concrete pavement over 4 inch aggregate base with a minimum subgrade of 24 Inches at 95% relative compaction, OR equal, from face of curb to edge of proposed gutter along the entire frontage in accordance with City of Palm Springs Standard Drawing No. 110 as modified to allow cantilevered cross-slope- The pavement section shall be designed, using"R"values, by a licensed Soils Engineer and submitted to the City Engineer for approval. SANB©RN WAY 1. Dedicate an additional right-of-way of 30 feet to provide the ultimate half street width of 30 feet along the entire frontage of the subject property. 2 Construct 6 inch curb and gutter, 18 feet north of centerline along the entire frontage of the subject property per City of Palm Springs Standard Drawing No. 200, 3. Construct a dead end with barricades and 'end of road' signage at the southwest corner of the tract. 4. Construct a 20 foot wide driveway approach and 6 inch thick, 20 foot wide concrete driveway for emergency access to the cul-de-sac at the south end of Michael Drive. r IIIIIIIIIII IIIIIIIIIIII IIIII IIIII III II IIII III G-/12/2G05 of90R 33 resolutlom 20322 Page 7 5. Construct pavement with a minimum pavement section of 2-1/2 inch asphalt concrete pavement over 4 inch aggregate base with a minimum subgrade of24 Inches at 95% relative compaction, OR equal, from edge of proposed gutter to centerline along the entire frontage in accordance with City of Palm Springs Standard Drawing No. 110 and 305. The pavement section shall be designed, using "R" values, by a licensed Soils Engineer and submitted to the City Engineer for approval. SANITARY SEWER 1, Connect all sanitary facilities to the City sewer system. Laterals shall not be connected at manholes. 2. Construct sewer laterals from the proposed sewer main to a location in the proximity of future plumbing outlets for each Lot. Cap all sewer laterals at the right-of-way line for future connection to developed Lots. 3. Developer shall construct an 8 inch sewer main across the entire Michael Drive frontage. Developer shall also construct an 8 inch sewer main across the east sides of Lots 10 through 15 and the common area, extending across the easterly tract boundary and connecting into the proposed sewer main extension In Racquet Club Road West, to allow for a gravity collection system. Sewage pumping for individual lots shall not be permitted.The developer may submit alternative plans for a gravity flow sewer system for this tract for review and approval of the City Engineer. 4. Developer shall construct an 8 inch sewer main within Racquet Club Road West, extending to the west boundary of the property,in accordance with the Master Plan of Sewers, connecting from the existing sewer system at the manhole located 238 feet west of the street centerline intersection of Girasol Avenue and Racquet Club Road West. The developer may enter into a reimbursement agreement with the City of Palm Springs for reimbursement of construction casts for the sewer main extension, not including the project frontage, as properties connect to the extended sewer main In the future. Developer should contact the City Engineerfor details relating to a sewer reimbursement agreement. 5. All sewer mains constructed by the developer and to become part of the City sewer system shall be televised by the developer prior to acceptance of the system. 6. Submit sewer improvement plans prepared by a Registered Civil Engineer to the Engineering Department. The plan(s) shall be approved by the City Engineer prior to issuance of any grading or building permits. Minimum submittal shall include the following: A. Copy of signed Conditions of Approval from Planning Department B. Proof of processing dedications of right-of-way, easements, encroachment agreements/licenses, covenants, reimbursement agreements, etc, required by these conditions, C. Sewer 1Study/Report, IF required by these conditions. IIIIII IIII II IIIII IIII I II IIII II IIII II�I'��III I IIII 68/1@0 24�of 353 ]aesaution 20322 Page s GRADING 1. A copy of a Title Report prepared/updated within the past 3 months and copies of ' record documents shall be submitted to the City Engineerwith the first submittal of the Grading Plan. 2, Submit a Grading Plan prepared by a Registered Civil Engineer to the Engineering Department for review and approval, Grading plan shall be submitted to the Planning Department for comments prior to submittal to the Engineering Department.A PM 10(dust control)Plan shall be submitted to and approved by the Building Division prior to approval of the grading plan. The Grading Plan shall be approved by the City Engineer prior to issuance of any grading or building permits. Minimum submittal includes the following: A. copy of Planning Department comments regarding the grading plan. B. Copy of signed Conditions of Approval from Planning Department. C. Copy of Site Plan stamped approved and signed by the Planning Department. D. Copy of Title Report prepared/updated within past 3 months. E. Copy of Soils Report, IF required by these conditions. F. Copy of Hydrology Study/Report, IF required by these conditions. ' G. Copy of the General Construction Activity Storm Water Permit from the State Water Resources Control Board (Phone No. 916 657- 0687) to the City Engineer prior to issuance of the grading permit. 3. Drainage swales shall be provided adjacent to all curbs and sidewalks-3'wide and 6" deep - to keep nuisance water from entering the public streets, roadways, or gutters. 4. Developer shall obtain a General Construction Activity Storm Water Permitfrom the State Water Resources Control Board (Phone No. (916)-657-0687) and provide a ropy of same,when executed,to the City Engineer prior to issuance of the grading permit. 5. In accordance with City of Palm Springs Municipal Code, Section 8,50.00, the developer shall post with the City a cash bond of two thousand dollars ($2,000.00) per acre for mitigation measures of erosion/blows and relating to his property and development. 6. A soils report prepared by a licensed Geotechnical Engineer shall be required for and incorporated as an integral part of the grading plan for the proposed site, A copy of the soils report shall be submitted to the Building Department and to the Engineering Department along with plans,calculations and other information subject, to approval by the City Engineer prior to the issuance of the grading permit. 7. Contact the Building Departmentto get information regarding the preparation of the PMIQ (dust control) Plan requirements, II III I IIII II IIII II II II 98r 1a02 of H '3300R 12'.esvlution 20322 Page 9 8. In cooperation with the Riverside County Agricultural Commissioner and the California Department of Food and Agriculture fled Imported Fire Ant Project, applicants for grading permits involving a grading plan and involving the import or export of soil will be required to present a Clearance document from a Department of Food and Agriculture representative in the form of an approved "Notification of Intent To Move Soil From or Within Quarantined Areas of Orange, Riverside, and Los Angeles Counties" (RIFA Form CA-1) or a verbal release from that office prior to the issuance of the City grading permit. The California Department of Food and Agriculture office is located at 73-710 Fred Waring Drive, Palm Desert. (Phone: 760-776-3208) DRAINAGE 1. The developer shall accept all stormwater runoff falling onto and crossing the project site, and convey the runoff to Racquet Club Road West through storm draln channels, improvements, and a detention basin, as outlined in the approved preliminary drainage study forthis tract dated December 2001,prepared by Warner Engineering. The developer shall provide a final drainage study for this tract that shall be used to control the design and construction of storm drainage improvements and the detention basin, and shall provide the study to the Engineering Departmentwith the first submittal of the grading plan for review and approval by the City Engineer,The grading plan will not be accepted for review and approval without submittal of a final drainage study. The developer shall construct all required storm drainage improvements and the detention basin, as required by a final drainage study as approved by the City Engineer, concurrent with and as a part of the grading for this tract. 21 The project is subject to flood control and drainage implementation fees. The acreage drainage fee at the present time is $0,511.00 per acre per Resolution No 15189. Fees shall be paid prior to issuance of a building permit. ON-SITE 1. All on-site cul-de-sacs shall be constructed in accordance with City of Palm Springs Standard Drawing No. 103,curb portion only. The proposed center island within the cul-de-sac shall not exceed twenty feet (20) in diameter, with a minimum clear turning radius of forty-three feet (43') provided throughout the cul-de-sac. 2. The following requirements for a gated entry shall be met to provide adequate setbacks and turning movements for vehicles entering the primary parking facilities of this project: A. For driveway entrances,the entry shall have a minimum width of 60 feet. B, The entry shall provide a minimum 50 foot setback from the face of curb to the access gate control mechanism. 11111 IN 11111111111111111111111111111111 ��21'� 22005ofR 330f,R Sesoluti6ft 20322 Page 10 C. Provide a turnaround of sufficient width (for delivery trucks to turn around)afterthe mechanism forvehicles unable to enterthe project. Provide plan showing vehicle turning radius movements to support , proposed width. D. Security gates shall provide a minimum of 15 feet clear access in each direction. GENERAL 11 Any utility cuts in the existing off-site pavement made by this development shall receive trench replacement pavement to match existing pavement plus one additional inch. See City of Palm Springs Standard Drawing No. 115, Pavement shall be restored to a smooth rideable surface. 2. All existing and proposed utility lines that are less than 35kV on or adjacent to this project shall be undergrounded. The location and size of the existing overhead facilities shall be provided to the Engineering Department along with written confirmation from the involved utility company(s) that the required deposit to underground the facility(s) has been paid, prior to issuance of a grading permit. If it can be demonstrated that overhead service drops to existing residential properties adjacent to the project -are part of existing utility lines subject to undergrounding, the owner shall enter into a covenant agreeing to underground all existing overhead facilities on or adjacent to the project that are less than 35kV in the future upon request of the City of Palm Springs City Engineer at such time as deemed necessary. The covenant shall be executed and notarized by the owner and submitted to the City Engineer prior to issuance of a grading permit. 3. All proposed utility lines onlor adjacent to this project shall be undergrounded prior to issuance of a Certificate of Occupancy. 4. All existing utilities shall be shown on the grading/street plans. The existing and proposed service laterals shall be shown from the main line to the property line.The approved original grading/street plans shall be as built and returned to the City of Palm Springs Engineering Department prior to issuance of the certificate of occupancy. 5. The developer is advised to contact all utility purveyors fordetailed requirements for this project at the earliest possible date. 6, The developer shall take every precaution needed to"Protect-in-Place"any existing Whitewater Mutual Water Company water line(s) that may traverse his project. 7. Nothing shall be constructed or planted in the corner cut-off area of any driveway which does or will exceed the height required to maintain an appropriate sight distance per City of Palm Springs Zoning Code Section 93.02.00, D. 6 All proposed trees within the public right-of-way and within 10 feet of the public sidewalk andlor curb shall have City approved deep root barriers installed per City ' of Palm Springs Engineering specifications. 1 2�rl5-t155855� I Illlll lllllll lllll litIIII IIIIIII Illll111ll11II1111 0ar12127©o£3 3 0R nr_.S4� V" LVJL+ Page 11 MAP 11 The Title Report prepared for subdivision guarantee for the subject property, the ' traverse closures for the existing parcel and all lots created therefrom, and copies of record documents shall be submitted with the Final Map to the Engineering Department. 2. The Final Map shall be prepared by a licensed Land Surveyor or qualified Civil Engineer and submitted to the Engineering Department for review. Submittal shall be made prior to issuance of grading or building permits. TRAFFIC 1. The developer shall provide a minimum of48 inches of sidewalk clearance around all street furniture, fire hydrants and other above-ground facilities for handicap accessibility. The developer shall provide same through dedication of additional right-of-way and widening of the sidewalk or shall be responsible forthe relocation of all existing traffic signal/safety light poles, conduit, pull boxes and all appurtenances located on the Racquet Club Road West and Sanborn Way frontages of the subject property. 2. A$0 inch "STOP"sign with street name signs, standard "STOP BAR"and "STOP LEGEND"shall be installed per City of Palm Springs Standard Drawing Nos, 620- 625 at the southeast corner of Racquet Club Road West and Michael drive. 3. Construction signing, lighting and barricading shall be provided for on all projects as required by City Standards or as directed by the City Engineer. As a minimum, all construction signing, lighting and barricading shall be in accordance with State of California, Department of Transportation, "MANUAL OF TRAFFIC CONTROLS FOR CONSTRUCTION AND MAINTENANCE WORK ZONES" dated 1996, or subsequent additions in force at the time of construction. FIRE: 1. Access During Construction:Access forfire fighting equipment shall be provided to the Immediate job site at the start of construction and maintained until all construction is complete. Fire apparatus access roads shall have an unobstructed width of not less than 20' and an unobstructed vertical clearance of not less than 14'6". Fire department access roads shall have an all Weather driving surface and . support a minimum weight of 67,600 Ibs, (Sec. 902 CFC) 2. Fire apparatus access plans: Plans for fire apparatus access roads shall be submitted to the fire department for review and approval priorto construction. Plans shall include certification from a Registered Professional Engineer stating the roads are of all weather construction and capable of supporting fire apparatus weighing 67,500 Ibs G.V.W. (901,2.2.1 CFC) 3, Water Systems and Hydrants:Where underground water mains are to be provided, they shall be installed, completed and in service with fire hydrants orstandpipes(Or combinations thereof located as directed by the fire department) not later than the time when combustible materials are delivered to the construction site, (Sec. 90$ CFC) IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 0�;20z z88£2-856F,R .j Resolution 20322 Page 12 4. Residential fire hydrants: Residential fire hydrants shall be installed in accordance with DWA specifications and standards, No landscape planting, walls, or fencing are permitted within 3 feet of fire hydrants, except ground cover plantings. 5. Site Plan: Provide the fire department with two copies of an approved site plan. Approved locations for fire hydrants will be marked on this site plan, with one copy being returned to the applicant. The second copy will be retained by the fire department. 6. Hre hydrantsystems:Following fire department selection of hydrant locations,plans and specifications forfire hydrant systems shall be sgbmitted to the fire department for review and approval prior to construction. (901.2.2.2) 7. Suilding or Complex Gate Looking Devices:Gate(s)shall be equipped with a KNOX key switch device or Key box. Contact the fire department for a KNOX application form. 8. Residential Smoke Detector Installation: Provide Residential Smoke Detectors Detectors shall receive their primary power from the building wiring, and shall be equipped with a battery backup. (310.9.1.3 CSC) 9. Site Fire Protection: Provide a garden hose or hoses on construction site equipped with an adjustable spray nozzle capable of reaching all combustible construction. 10. Premises Identification: Approved numbers or addresses shall be provided for all new and existing buildings in such a position as to be plainly visible and legible from the street or road fronting the property, 11. Fire Department Access Road Dimensions: Provide a minimum of 20 feet unobstructed width. If parking on access road is desired, provide an 8 foot parking lane with opposing curb marked red with appropriate signage for a total of 28 feet in width. Provide an additional 8 feet for parking on both sides of access road for a total of 36 feet in width. 12_ Vertical Fire Apparatus Clearances: Palm Springs Fire Apparatus require an unobstructed vertical clearance of not less than 14'6". 13, Fire Flow Determination: Provide information on the size of the proposed buildings and type of construction. This is necessary to determine fire flow requirements. PLANNING: 1. The proposed development of the premises shall conform to all applicable regulations of the Palm Springs Zoning Ordinance, Municipal Code, or any other City Codes, ordinances and resolutions which supplement the zoning district regulations. 111111111 IN ©�2�E+2©of 300R Resolution 20322 Page 13 2. The owner shall defend, indemnify, and hold harmless the City of Palm Springs, its agents, officers, and employees from any claim, action, or proceeding against the City of Palm Springs or its agents, offioers or employees to attach, set aside, void or annul, an approval of the City of Palm Springs, its advisory agencies, or legislative body concerning Tentative Tract Map 28495, The City of Palm Springs will promptly notify the applicant of any such claim,action, or proceeding against the City of Palm Springs and will cooperate fully in the defense, if the City of Palm Springs fails to promptly notify the applicant of any such claim,action or proceeding or fails to cooperate fully in the defense, the applicant shall not, thereafter, be responsible to defend, Indemnify, or hold harmless the City of Palm Springs. 3, The project is located in an area defined as having an impact on fish and wildlife as defined in Section 711.4 of the Fish and Game Code; therefore a filing fee of $1,250,00 plus an administration fee of-$7B.00 shall be submitted by the applicant in a form of a money order or a cashier's check in the amount of$1,328.00 payable to the Riverside County Clerk prior to Council action on the project. This fee shall be submitted by the City to the County Clerk with Notice of Determination. 4. Prior to final map approval, the applicant shall submit a comprehensive set of codes, covenants, and restrictions ("CC&R's") to the Director of Planning and Building with the application for Final Map for approval in a form approved by the City Attorney, to be recorded prior to the issuance of occupancy permits. The CC&R's shall be enforceable by the City, shall not be amended without City approval, shall require maintenance of all property in a good condition and in accordance with all ordinances and conditions stated herein. CC&R's shall include project design guidelines, including but not limited to landscape requirements,slope restoration, building height standards, walls, building materials, multi-level homes conforming to existing topography. The is, shall reimburse the City for all legal costs associated with City Attorney review and approval of project CC&R's, The applicant shall submit to the City of Palm Springs, a deposit in the amount of $2500, for the review of the CC&R's by the City Attorney, 5. That detailed entry gate plans if proposed shall be submitted pursuant to Section 9404.00 of the Zoning ordinance. Plans shall be submitted to and approved by the Director of Planning & Building and City Engineer prior to submission of the final map for approval. 6. The mitigation measures of the environmental assessment shall apply. The -applicant shall submit a signed agreement thatthe mitigation measures outlined as part of the negative declaration or EIR will be included in the plans priorto Planning Commission consideration of the environmental assessment. 7. Architectural approval shall be valid for a period of two(2)years. Extensions of time may be granted by the Planning Commission upon demonstration of good cause, B, Not used. 9 Final landscaping, irrigation, exterior lighting, and fencing plans shall be submitted for approval by the Department of Planning and Building prior to approval of a final map. Landscape plans shall be approved by the Riverside County Agricultural Commissioner's Office prior to submittal. I IIliil lllllll 11111 it Ji 11111111111111111111111111 as,0�30 of 3eeR FmooLution 20322 1, Page 14 10. The project Is subject to the City of Palm Springs Water Efficient Landscape Ordinance The applicant shall submit an application for Final Landscape Document Package to the Director of Planning and Building for review and approval prior to the issuance of a building permit, Refer to Chapter 8.00 of the Municipal Code for specific requirements. '11. Prior to issuance of a grading permit, a Fugitive Dust and Erosion Control Plan shall be submitted and approved by the Building Official, Refer to Chapter 8.50 of the Municipal Cade for specific requirements. 12. The grading plan shall show the disposition of all out and fill materials. Limits of site disturbance shall be shown and all disturbed areas shall be fully restored or landscaped. 13. Drainage sales shall be provided adjacent to all curbs and sidewalks, T wide and 6" deep. The irrigation system shall be field tested prior to final approval of the project. Section 14.24.020 of the Municipal Code prohibits nuisance water from entering the public streets, roadways or gutters. 14. All proposed trees within the public right-of-way and within 10 feet of the public sidewalk and/or curb shall have City approved deep root barriers installed per City of Palm Springs Engineering specifications. 15. Prior to issuance of a grading permit, a Fugitive Dust and Erosion Control Plan shall be submitted and approved by the Building Official. Refer to Chapter 8.50 of the Municipal Code for specific requirements, ' 16. The grading plan shall show the disposition of all cut and fill materials. Limits of site disturbance shall be shown and all disturbed areas shall be fully restored or landscaped. 17. The applicant shall relocate underground the existing and all proposed utility Imes prior to the issuance of a building permit. 18. The applicant shall submit final landscape, irrigation and exterior lighting plans for approval by the Director of Planning and Building prior to approval of a final map. 19. Applicants seeking architectural approval of each future single family residence shall submit detailed grading, site, landscape plans and site cross sections for review pursuant to Section 94.00,Architectural Review,and Section 93,13, Hillside Developments, of the Palm Springs Zoning Ordinance. 20j Mass grading shall be prohibited as part of the project. That grading of individual lots shall be prohibited until such time that building permits are issued for single family residences. Contour and terrace grading shall be required for development of individual lots within the project. Split level pads and yards shall be required which step development and create transitions, 21 All retention basins and other drainage infrastructure shall be constructed using a, high quality landscape program and with decorative colored block, and an automated Irrigation system. The retention basin shall be designed to serve as passive recreation areas. All landscaping shall be designed in accordance with Section 93.02 of the Zoningl1 Ordinance. I IIhII IIIIIII III I IIII IIII IIIIII IIIII III IIII(IIII IN 98/129 3©of 33 0R Resolution 20322 Page 15 22. All construction debris on site shall be excavated, removed and replaced With compacted fill. 23. The minimum seismic design of all future residences shall comply with the Uniform Building Code. 24, All future residences shall employ engineered design and earthquake resistant construction. 25. An on-site detention basin and related drainage Improvements shall be constructed by the developer as a part of the project. The basin and related improvements shall be designed and constructed so that its size will detain sufficient storm water run-off such that the maximum flow existing the basin during a 100-year storm will not exceed the historic flow onto Racquet Club Road West of 62 cfs. The basin shall be constructed to contain the 100-year storm with peak flow existing the basin through a 20 feet wide weir structure will be 57.46 ofs, with the basin containing 5.268 acre feet (or 229,475 cubic feet) of stormwater runoff. The basin shall be designed according to the specifications contained in the hydrology report for the project. The tentative map shall be revised to allow for a larger detention basin as required by the study. 26. A final drainage study shall be provided to govern the actual design and construction of the storm drainage improvements for Tentative Tract Map 26495, including storm drain pipe, drainage channels, and the common area detention basin. 27, The detention basin shall be landscaped and designed to serve as a passive on-site recreation amenity. 28. The project CC&Rs shall address routine, regular, and after-storm maintenance of all retention related facilities, and a separate maintenance account shall be established and funded for same. Project CC&R provisions regarding drainage and retention basin maintenance shall be approved by the City Engineer. 29. The applicant shall dedicate 30'of street right of way and shall construct half-street Improvements along Sanborn Way,including pavement,curb,gutter and sidewalk, to the satisfaction of the Fire Department and the City Engineer. 30, If blasting is determined to be necessary as part of the excavation operation for any of the future residences on the property, the timing such procedures shall be planned with the assistance of a biologist if the biologist determines that the location and extent of blasting is likely to affect sheep lambing, breeding, or watering, blasting should be done during a period when the auditory impacts will be negligible. A biological monitor may also be necessary prior to and during blasting events to halt blasting if sheep are present in the area. While the biologist will determine the final implementation techniques, it is anticipated that the biologist will be positioned at the higher elevations of the site equipped with a spotting scope and radio and would conduct visual surveillance before and during the blasting. ' :31. Any additional landscaping or landscape alteration outside of fenced areas shall consist of plant species that are native to the immediate areas. No oleanders shall be planted on the project perimeter or within areas open to undeveloped areas. II 11111111111111111111111111111111111110s 2a522 205 085oGR �t 33 Ra'solut3on 20322 Page 16 32. The final design of any perimeter fencing or walls shall be reviewed by the Planning and Building departments as part of the Architectural Review process for each residence within the subdivision. The fencing shall be of a height, location, and ' design so as not to create a "trap" for Peninsular Bighorn Sheep that could potentially wander to the fringe of the subdivision. 33, The developer shall construct a fence or wall at least 6 (six) feet high around the perimeter of the subdivision for the purpose of keeping bighorn sheep out of the area of development. 34. The developer shall be responsible for compliance with the State Endangered Species Act and Federal Endangered Species Act prior to the issuance of grading permits, if deemed necessary by the applicable resource agencies. 35. The developer shall extend sewer service to the site. The project shall include the provision of sewer service to all future residences. Improvement plans associated with the Final map shall include the provision of sewer service as a part of the project. The developer may enter into a reimbursement agreement with the City. 36. An on-site archaeological monitor shall be present during all grading operations. A report shall be submitted by the monitor to the City following observation of grading operations. A grading report, including daily inspection log shall be submitted and approved prior to final inspection of tract improvements and prior to pad certification for all subsequent single family residences. 37. Separate architectural approval and permits shall be required for all signs. A _ detailed sign program shall be submitted for review and approval by the Planning Commission prior to issuance of building permits. 36. Perimeter walls shall be designed, installed and maintained in compliance with the corner cutback requirements as required in Section 9302.00.D. 39. The design, height, texture and color of bullding(s), fences and walls shall be submitted for review and approval prior to issuance of building permits. 40. An exterior lighting plan in accordance with Zoning Ordinance Section 93,21.00, Outdoor Lighting Standards, shall be submitted for review and approval by the Director of Planning & Building prior to the issuance of building permits. Manufacturer's cut sheets of all exterior lighting on the building and in the landscaping shall be submitted for approval prior to issuance of a building permit. If lights are proposed to be mounted on buildings, down-lights shall be utilized. No lighting of the hillside is permitted. 41. All future residences shall be subject to Chapters 2.24 and 3.37 of the Municipal Code regarding public art. The project shall either provide public art or payment of an in lieu fee. In the case of the in-lieu fee, the fee shall be based upon the total building permit valuation as calculated pursuant to the valuation table in the Uniform Building Code, the fee being 1/2% for commercial projects or 1/4%for residential projects with first $100,000 of total building permit valuation for individual single- family units exempt. Should the public art be located on the project site, said ' location shall be reviewed and approved by the Director of Planning and Building and the PublicArts Commission, and the property owner shall enter into a recorded agreement to maintain the art work and protect the public rights of access and viewing. IIIIIII �IIIIIII IIIII IIII IIII IIIIIII IIIII III IIIII IIII IIII 08 12 3 5 08 00R CONTRACT ABSTRACT Contract Company Name: Tuscany Heights, LLC Company Contact: Wesley D. Oliphant Summary of Services: Subdivision Improvement Agreement Contract Price: Not applicable Funding Source: Not applicable Contract Term: 2 years C � Contract Administration Lead Department: Public Works &Engineering Contract Administrator: David Barakian/ Contract Approvals Council/Community Redevclopment A°-geneyApproval Date: 7/6/05 Minute Order/Resolution Number: 21334 Agreement Number: A5126 Contract Compliance Exhibits: CGT Signatures: CGT ffisurance: Not applicable Bonds: CGT C � Contract prepared by: Marcus Fuller Submitted on: 7/12/05 by: Carol Templeton Bond Number: 0358655 Premium:$22.060 Two Original Counter Parts CITY OF PALM SPRINGS FAITHFUL PERFORMANCE BOND WHEREEAS, the City Council of the City of Palm Springs, State of California, and Tuscany Heights, LLC, a California Limited Liability Company (herein designated as "Principal") have entered into an agreement whereby Principal agrees to install and complete certain designated public improvements, which said agreement, dated March Ilth , 2005, and identified as Tract Map No. 28495, is hereby referred to and made a part hereof; and WHEREAS, Principal is required under the terms of said agreement to furnish a bond for the faithful performance of said agreement. NOW, THEREFORE, we, the Principal and International Fidelity Insurance Company as Surety, are held firmly bound unto the City of Palm Springs, (hereinafter called "City"), in the penal sum of One Million One Hundred Three Thousand and 00/100 dollars ($1,103,000.00) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents. The condition of this obligation is such that if the above bounded principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and provisions in the said agreement and any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City of Palm Springs, its officers, agents and employees, as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As a part of the obligation secured hereby and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the same shall in anywise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the agreement or to the work or to the specifications. Performance Bond Page 2 IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on March Itth 2005. PRINCIPAL Tuscany Heights, LLC, a California Limited Liability Company y: , Signature By: Wesley D. Oliphant. Managing Member Name and Title SURETY By: International Fidelity Insurance Company B r �/ Y (Surety Name) tt ey-i -Ft George J. are el' (All Signatures Shall Be Notarized) Page 2 of 2 STATE OF California SS. COUNTY OF Riverside Ott March 11th,2005 , before me, Charles T. Irvin PERSONALLYAPPEARED GeorgeJ. Burchfiel personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf e,,.r,..,_- „�,,,�,_ of which theperson(s)acted, executed the instrument. .ww.I,. CHARL *" COMM.fF'ddU4i3a1 ' W,TTNESS my hand and of seal. g""`'{+�;'+• PtOTARYPU9LIG-ChL1F`Wrl,S ��ssnc• FNEFi510E`CY3�'3lr -+ MYComm.Exp,Vkcs,f7,siYed This area for Official Notarial Seal IIIIIIII OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OF TYPE OF DOCUMENT TRU(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ® ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S)OR EN rN(IES) SIGNER(S)OTHER THAN NAMED ABOVE ID-1232(REV.5/01) ALL-PURPOSE ACKNOWLEDGEMENT CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT �r�rrrcc•.cry,--,c.r.'c:;�.er�,.^,o�Tr,�.:cr�.€rrr�=r;cro^•c�^:cnMc�rr,�r,�ancc•%„c;�',c��r:�t',�rcri„c;M,,r�-,.��ererc�n•:;^:T State of California ss. County of On �3� �-� q�"J before me, 0' OV 101) 4)I Date Name and TYlle of Orl to g•j'Jane Doe,Notary Poore) I{ �(¢ personally appeared jNanai of Signer(s) f( personally known to me i _proved—to-me—on-=the—basis o—satisfactory- evidence f f� to be the person(s) whose name(s) is/are ' _ subscribed to the within instrument and f C. BRAtZO I acknowledged to me that he/she/they executed , �: ;, r Commisslon S 1521142 the same in his/her/their authorized - '';� _ Notary Public-Callfomla ca acit les and that b his/her/their +'`•''"s�. Riverside County P y( ) Y fj signature(s) on the instrument the person(s), or My Comm.ExplresOct 22,2gp6 the entity upon behalf of which the person(s) ' acted, executed the instrument. ' I WITNESS my hand and official seal. r� Place Notary Seal Above Signature of Near,Public b OPTIONAL Ifi Though the information below is not required by law, it may prove valuable to persons relying on the documents and could prevent fraudulent removal and reattachment of this form to another document. , I Description of Attached Documen p q y p Title or Type of Document: Q � BJ� fit�f�d1�7��'Vtl�P(�-r 12 y V f1 L-iLL Document Date: J)G����' Number of Pages: fiSigner(s) Other Than Named Above: J,UD"G("� iJd/��,'p(B-1��-�l ' fi Capacity(ies) Claimed by Signers fi Signer's Name: - I Ifi ❑ Individual Ton or thumb here ❑ Corporate Officer—Title(sp ❑ Partner—❑ Limited ❑ General ❑ Attorney in FactI Ifi ❑ Trustees < ❑ Guardian or Conservator Ej✓Other: U 9d Ifi Signer Is Representing: iD, t,�L(/ANr(" fiww- ji ©1997 National Notary Association-9350 De Soto Ave.,PO Box 2402-Chatsworth,CA 91313-2402 Prod No 5907 Reorder Call Tall-Free 1-800-876-0827 Bond Number: 0358655 Premium is included in the Performance Bond Two Original Counter Parts CITY OF PALM SPRINGS LABOR AND MATERIALS BOND WHEREAS, the City Council of the City of Palm Springs, State of California, and Tuscany Heights, LLC, a California Limited Liability Company (hereinafter designated as "Principal") have entered into an agreement whereby Principal agrees to install and complete certain designated public improvements, which said agreement, dated March l lth , 2005, and identified as Tract Map No. 28495, is hereby referred to and made a part hereof; and WHEREAS, under the terms of said agreement, principal is required before entering upon the performance of the work, to file a good and sufficient payment bond with the City of Palm Springs to secure the claims to which reference is made in Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code of the State of California. NOW, THEREFORE, Principal and the undersigned as corporate surety, are held firmly bound unto the City of Palm Springs and all contractors, subcontractors, laborers, rnaterialmen and other persons employed in the performance of the aforesaid agreement and referred to in the aforesaid Civil Code in the sum of Five Hundred Fifty-One Thousand Five Hundred and 00/100 dollars ($551,500.00), for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor, that said surety will pay the same in an amount not exceeding the amount hereinabove set forth, and also in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the City in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. Should the condition of this bond be fully performed, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. The surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of said agreement or the specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or addition. Labor and Materials Bond Page 2 IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on March Ilth , 2005. PRINCIPAL Tuscany Heights, LLC, a California Limited Liability Company Signature By: Wesley D. Oliphant, Managing Member Name and Title SURETY By International Fidelity Insurance Company (Surety Name) Forney-In-F4c George J. Burchfiel (All Signatures Shall Be Notarized) S4ATEOF California SS. COUNTY OF Riverside Olt March 11th,2005 , before me, Charles T. Irvin PI,RSONALLYAPPEARED George J. Burchfiel personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by huOiedtheir sienature(s)on the instrument the person(s), or the entity upon behalf of which the persons)acted,executed the instrument. W177VESS my hand and official seal. 7y; ,�,•:,;,�,t1•• riOTARYF116UC-i`Al.ir�Aif>KA � ��1'r;rs::e2�a RNER516E CCLS7fY —� �;1;�s; IAy Cnmm.Cap.a".;'sis 7P,?,Opi Signature./ This area for Official Notarial Seal OPTIONAL. Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OF TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ® ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAIVE OF PERSON(S)OR EN WT IES) SIGNER(S)OTHER THAN NAMED ABOVE ID-1232(REV 5/01) ALL-PURPOSE ACKNOWLEDGEMENT CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT <�,crc.. ;^n;,et^.ererT^.crcrc::�.arcxc-Mrcrc�`.crc:�:errr-�.rcrrcrcrrc,.xrcr.;r.;xT;c.:.rcrs-rc..crr.^.er�r�,r���� State of Californial IF, ss. County of On = lu . before me, iLN"VDate Name end title of Ofltcer e( g,-'}Pane Doe,Notary Public') personally appeared ���L�+�',�� �,/. Dfdriqo;r H Name(s)of Signer(s) ;impersonally known to me 31 f1_prouedato-me-on4he-basisaof•-satisf2ctory , evidence; to be the person(s) whose name(s) is/are C.BRANDOw subscribed to the within instrument and ` Commisslon 8 1521I"l acknowledged to me that he/she(they executed I ,. Notary Public-Callfomla the same in his/her/their authorized jl Riverside County ( capacity(ies), and that by his/her/their �I Ifi e - MVCo=m.ExplresOct22.20DDI signature(s) on the instrument the person(s), or fi the entity upon behalf of which the person(s) I fi acted, executed the instrument. FBI, C fi WITft�f ES_ S m^^ryyyp`rypp hand 1and official seal. ,, I� Place Notary Seal Above M./� 'uwl Suture of Notary Public 'I fi fi OPTIONAL I fi Though the information below is not required by law, it may prove valuable to persons relying on the documentI and could prevent fraudulent removal and reattachment of this form to another document. I fiI Description of Attached Doc u et, p /� q /�, �/p W ,, Title or Type of Document: 11.fl� u 1) 1G'LI'C!l, lagwr o Lall,� S l l Vd�� i g tu�i."GTl'na, ; � Document Date' ^.��V ��� Number of Pages: 1 I i Signer(s) Other Than Named Above:6a-,;,6'e, or Capacity(ies) Claimed by Signer h, Signer's Name: - I ❑ Individual Top of thumb here icy ❑ Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑ General l ❑ Attorney in Facti ❑ TrusteeI ❑ Guardian or Conservator , I : tr°Other: (Y11l)m#.14,1;,V1A Signer Is Representing: � � dfc � I ©1997 National Notary Association•9350 De Soto Ave PO.Box 2402•Chatsworth,CA 91313-2402 Prod.No 5907 Reorder Call Toll-Free 1-800-676-662] 1 .. i(si3)624 izoa POWER''OF ATTORNEY INTERNATIONAL. FIDELITY INSURANCE COMPANY ' HOME OrPICE:ONE Nfl WARK CENTER,20TfI FL,;OOTt - " NEWARk,:NEW:JERSEY 07102-5207 .•KNOW ALL MEN BY THESE PRESENTS: That.INTERNATIONAL FIDELITY INSURANCE COMPANY, a•corporation organizeId and exnstin laws of the Siate,of New Jersey,and having,its principal office in We City of Newark,New Jersey,does hereby constitute and appoint _ GEORGS J'. BURCRFIEL, SUZZANNE D. BURCRSIEL `Pomona, CA. . . its true and lawful attorneys)-in-fact to execute,seal and deliver for and on its behalf as.surety,,any and all bonds slid undertakings,contracts of indemnity and other writings obligatory in die nature thereof,which are or may be allowed,required or permid byy law,stature rule,resolution contract or otherwise,and the execution of such nnstrument(s) in pursuance of i these presents, shall be as 1S'iinding upon tle' w1d INTERNATIONAL FIDELITY INSURANCE COMPANY, as fully and amply, to all intents and purposes,as if the same had been duly executed and acknowledged'by its regularly elected officers at its principal office. - This Powerof Attorney is executed,and may be revoked,pursuant to and by authority of Article 3-Section 3,of tltie By Laws adoppted by me Board of Directoi s of INTERNATIONAL FIDELITY INSURANCE COMPANY at a meeting called and held on the 7t4 day.:of February, 1974. The President or any Vice President,Executive Vice President,Secretary or Assistant Secretary,shall have power and authority ;:.(1)To appoint Attorneys-fir-Pact,-and to authorize them to execute on behalf of the Company,and attach tire Seal of the Company thereto,bonds and undertakings,contracts of indemnity and other writings obligatory in the nature thereof and, - (2)To remove,at any tune,any such attorney-m-fact and revoke,the authority given. - Further,this Power of Attorue is signed and sealed byy facsimile pursuant to resolution of the Board of Directors of said Company adopted at a meeting duly called and held on the 29th day of April, 1982'of which the following is a true excerpt: Now therefore the signatures of such officers and the seal of the Company may be affixed to any such power of attorney or any certificate relating thereto by facsimile,and any such power of attorney or certificate bearing such facsimile signatures or facsimile seal shall be valid and bindmnt upon the Company and any such power so executed and certified by facsimile,signatures and facsimile seal shall be valid and binding upon the Company in the future.with,respect to any bond or undertaking to which it is attached. D�L�T r/Nf IN TESTIMONY WHEREOF,INTERNATIONAL FIDELITY INSURANCE COMPANY has caused this instrument to be signed and its corporate seal to be affixed by,its authorized officer,this 31s[day of August,A.D. 1998. 4 SEAL x^ Z INTERNATIONAL FIDELITY INSURANCE CO NY c m y STATE OF NEW JERSEY ~6, 19134 S�y �p County of Essex yd �Y �'�H/ *• *�aa Vice-Pr Adaut On this 31st day of August 1998,before me came the individual who executed the precedm,instrument, to me ppersonally known, and, being by me duly sworn,'said the'he is the therein described and authorized officer of'tire INTERNATIONAL NbELITY INSURANCE COMPANY;that die seal affixed to - said instrument is the Corporate Seal of said Company; flat the said Corporate Seal and his signature were duly affixed by order of the Board.:of Directors of said Company.- IN TESTIMONY WHEREOF,I have hereunto set my hand affixed my Official Seal, ' �P• , � at the City of Newark,Now Jersey fie day and year first above written. - O NOTARY PUBLIC JEFS� A �. NOTARY PUBLIC NEW JERSEY CERTIFICATION My Commission Expires Nov,21,2005 I;ere undersigned officer of INTERNATIONAL FIDELITY INSURANCE COMPANY do hereby certify that I have compared the foregoing copy of the, Power of Attorney and affidavit,and the copy of the'Section of the By-Laws of said Companyas set forth in'said Power ofAftprney,with the ORIGINALS ON IN THE I40ME OFFICE OF SAID COMPANY;and that the same are correct transcripts hereof„and of the whole of..the said.originals,and that the sald,Power, of Attorney has not been revoked And is now,in.,full.forge'and effect IN TESTIMONY WHEREOF,I have hereunto set,my hand this I I th day of - March, 22005 Assistant Secretary:' F,. Bond Number: 0358654 Premium: $160.00 Two Original Counter Parts CITY OF PALM SPRINGS BOND FOR FAITHFUL PERFORMANCE, LABOR, AND MATERIALS FOR SETTING OF MONUMENTS WHEREAS, the City Council of the City of Palm Springs, State of California, and Tuscany Heights, LLC, a California Limited Liability Company (hereinafter designated as "Principal") have entered into an agreement whereby Principal agrees to set certain survey monuments, which said agreement, dated March IIth , 2005, and identified as Tract Map No. 28495, is hereby referred to and made a part hereof; and WHEREAS, said Principal is required under the terms of said Agreement to furnish a bond for the faithful performance of said Agreement and the payment of the engineer or surveyor for the setting of said monuments. NOW THEREFORE, we, the Principal, and International Fidelity Insurance Company as surety, are held and firmly bound unto the City of Palm Springs (hereinafter called "City"), and all contractors, subcontractors, laborers, materialmen, and other persons employed in the performance of the aforesaid Agreement with respect to the setting of monuments, in the penal sum of Eight Thousand and 00/100 dollars ($8.000.00), lawful money of the United States, for materials furnished or laborthereon of any kind, orfor amounts due under the Unemployment Insurance Act with respect to such work or labor, and for the completion of said setting of monuments, that said suretywill paythe same in an amount not exceeding the amount hereinabove set forth, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. The condition of this obligation is such that if the above bonded Principal, his or its heirs, executors, administrators, successors orassigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and provisions in the said Agreement respecting the setting of monuments and any alteration thereof made-as therein provided, on his or their part to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City of Palm Springs, its officers, agents and -employees, as therein stipulated, and shall have provided to the City evidence that the engineer or surveyor, and all said contractors, subcontractors, laborers, materialmen, and ether persons employed in the performance of the aforesaid Agreement with respect to the setting of monuments, have been paid for the setting of monuments, then this obligation becomes null and void; otherwise it shall be and remain in full force and effect. Nlonumentation Bond Page 2 As a part of the obligation secured hereby and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. The surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement or to the work or to the specifications. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on March IIth 2005. PRINCIPAL Tuscany Heights, LLC, a California Limited Liability Company By: /Signal r`e By: Wesley D. Oliphant, Manacling Member Name and Title SURETY By; International Fidelity Insurance Company By; � (Surety Name) Auer ley-in-Fac George(- rchfiel (All Signatures Shall Be Notarized) S7ATE OF California SS. COUNTY OF Riverside On March 11th,2005 , before me, Charles T.Irvin PERSONALLYAPPEARED George J. Burchfiel personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their militarized capacity(ies),and that by his/her/their signatures)on the instrument the person(s),or the entity upon behalf WTutv /+ p of which the person(s)acted, executed the instrument. - V 11Aif�LE$ . �fRll�l4 a COMM.g rusttc•enux rdtti ay WirTNESS my hand and official seal. RNERSIDEC�i hiY t COMM .Exp.R�xch1t,211U7� Signature This area for Official Notarial Seal IIIIIIII OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OF TYPE OF DOCUMENT Trn Ejs) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ® ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAIAE OF PERSON(S)OR EWP7(IFS) SIGNER(S)OTHER THAN NAMED ABOVE In-1232(REV.5101) ALL-PURPOSE ACKNOWLEDGEMENT CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT �State of California ss. i County of JJJ fi On 5� 1B05 before me, 01.'urom(I m ) / 1�16) a"nri A(.aN b- Date Name aTd idle of Officer(e g.,"Jane Doe,Notary Public") personally appeared ���I d01 ,' a`1 Ifi t Namep)of Slgner(s) fil ,Upersonally known to me 3 O—proved-mto—me—on—the—basis--of—satisfactory- evidence fi to be the person(s) whose name(s) is/are �I _®r;&MVComm.ExpIres0c122 _ _ _ _ _ _ subscribed to the within instrument andI C.BRANDOW acknowledged to me that he/she/they executed , aCommission# 1521142 the same in his/her/their authorized zNotary Public-Califomta capacity(ies), and that by his/her/their Riverside County signature(s) on the instrument the person(s), or,20M the entity upon behalf of which the person(s) fiacted, executed the instrument. WITNESS my hand and official seal. t� ) I` Place Notary Seal Above Signalure of Notary Public fi )>l OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. C, Description of Attached Document QbRV�• �1F ��f4�i�t��dmh�)] t�� o��'��8)��g��Q �1 �� ���t����' fi n Title or Type of Document: L61,101o)(1 ga,nrY At Document Date: III )) ��J Number of Pages: Signer(s) Other Than Named Above: 6;aw"'°• J- 9 JL,ural fi Capacity(ies) Claimed by Signer1 Signer's Name: ,-_•• , It,�i _ l 1 ❑ Individual Top of thumb here ❑ Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑ General Ifi ❑ Attorney in FactI Ifi ❑ Trustee 7,1 Ifi ❑ Guardian o Conservator ther Ifi �jlrO : fi Signer is Representing: 6(S(�L�n",yrlU'pu � �f//( B�✓ t.e�_ ©'1997 National Notary Associalbu•9350 De Soto Ave,PO Box 2402•Chatsworth,CA 91313-2402 Prod Na 5907 Reorder Call Toll-Free 1-800-876-6827 4 � \ " �+ rat 7}�7�,T� '. Ta'1(975)64"/206 ;.POWER Ol' AT 1 Ol�l.\li 1 INTERNATIONAL FIDELITY INSURANCE COMPANY, II[ONTE OFFICE: ONE NEWARK CENTER,20TH FLOOR . ` 'NEWARK,NEW JERSEY,07102-5207 - KNOW ALL MEN BY THESE PRESENTS: That INTERNATIONAL FIDELITY INSURANCE COMPANY, a corporation organized and exisfifig :Jaws of the Stare of New Jersey,and having,lits,prlpcipal office in the City of Newark;New Jersey,.,does hereby constitute and appoint GEORGE J. BURCHFIELr SUZZANNE D, 13URCHFIEL - 'Pomona. CIA. - its true and lawful attofpey(s)-in-fact to execute,seal_and deliver for and on its behalf as surety„,any and all bonds and undertakings,contracts of indenmrty and other writings obligatory in nature thereof,which are or may other required or';perninued by'law,stature, rule,re[2utation,contract or otherwise,and the execution of such instroment(s) in pursuance of these presents, shall be as-binding upon die said'INTERNATIONAL FIDELITY INSURANCE COMPANY, as frilly and amply,to all intents and purposes, as if the same had been dilly executed and acknowledged by its regularly elected officers at its " principal office.- - ' This Power id'Attorney,is executed,and may be revoked,pursuant to slid'by authority of Article 3-Section 3,of the By-Taws adopted by the Board of Directors of INTERNATIONAL FIDELITY INSURANCE COMPANY at ameeting called and held on the 7th day of February, 1974. --The President or any Vice President,Executive Vice President,Secretary or Assistant Secretary,shall have power and authority ` (I)To appoint Attorneys-in-fact,and to authorize„them to execute on behalf of the Company,and attach the Seal of the Company thereto,bonds and undertakings,contracts of indemnity and other writings obligatory in the nature thereof and, (2)To remove,at any time,any such attorney-nr-fact and revoke the authority given. - - Further,this Power of Attorney is signed and sealed b facsimile pursuant to resolution of the Board of Directors of said Company adopted at meeting duly called and held on the 29th day of April, 1982 oFw%ch the following is a true excerpt: •'Now therefore the signatures of such officers aid the seal of the Company may be affixed to any such power of attorney or any certificate relating thereto by , facsimile,and any such power of attorney or certificate bearing such facsimile signatures or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by facsimile,signatures and facsimile seal shall be valid and binding upon the Company in,ille future with respect to any bond or undertaking to which it is attached. t�\ 11/p/N`r(/py signed and TESTIMONY WHEREOF,INTERNATIONALl to be affixed FIDy its ELITY off er', i INSURANCE 3 tat day of August, has caused[Iris instrument to be o�POI�� "Z 98. WTERNATIONAL FIDELITY INSURANCE COM kNY SEAL " m v[" r y I g(yj q e'i STATE OF NEW JERSEY �y Q County of Essex aE:RS Vice-Pr idea On this 31st day of August 1998,before me came the individual who executed the ppreceding instrument, to me persoirallyy known arid,being by,me duly -swori,said the he is the therein described and authorized officer of the INTERNATIONANDELIT-Y INSURANCE COMPANY;drat the seal affixed to said instrument is the Corporate Seal of said Company;that the said Corporate Seal and his signature were duty affixed by order of the Board..of Directors of said Company. . - - A�{' IN TESTB40NY WHEREOF,I have hereunto set,my hand affixed my Official Seal, CW at the City of Newark,New Jersey the day.and year first above written. qY yC - A NOTARY PUBLIC OF NEW JERSEY CERTIFICATION My Commission Expires Nov.21,.2005 I,the undersigned officer of,.INTEPNA-TIO,NAL FIDELITY INSURANCE COMPANY do hereby.;certify that I-have compared the foregoing a0py of the. PooKor of Attorney slid affidavit,and the copy of theSection of the By Laws of said.Company as set forth in said Powoi of Attorney,with the ORIGINALS ON IN'THE HOME OFFICE OF SAID COMPANY,and thaf the same are correct transcripts,thereof,and of the whole of We said originals,,and that the said PowoP (. of Attorney has riot been revoked andis now:in;f ill force and effect IN TESTIMONY WHEREOF,I have hereunto set;my,hand this 11t(1 day of March,2005 Assistant Secretary;_ e, r MEMORANDUM TO: Marcus Fuller 1 Asst. Director of Public Works FROM: Kathie Hart, CMC Chief Deputy City Clerk DATE: August 30, 2005 SUBJECT: Tuscany Heights, LLC Subdivision Improvement Agreement -A5126 cc: File Attached is a recorded copy of A5126, a subdivision improvement agreement with Tuscany Heights, LLC. The original document is in our files. Please feel free to contact me if there are any questions, ext. 8206. /kdh attach. •