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HomeMy WebLinkAbout04708 - EL DORADO PALM SPRINGS LTD SUBDIVISION IMPROVEMENT TM 28087 AGREEMENT NO. A4708 January 7, 2009 A lawsuit was filed against the City by El Dorado Palm Springs Ltd. shortly after August of 2000 and it remained in litigation for several years. On October 1, 2008, the City executed a Settlement Agreement with El Dorado Palm Springs Ltd. which is on file as agreement#A5737. We are closing out this agreement, at the request of James Thompson, since it will never be executed. El Dorado Palm Springs LTD Subdivision Agreement AGREEMENT #4708 R20612, 6-4-03 WYCLERK �i�F SP►111113� , SUBDIVISION IMPROVEMENT AGREEMENT by and between CITY OF PALM SPRINGS and EL DORADO PALM SPRINGS LTD., A CALIFORNIA LIMITED PARTNERSHIP TABLE OF CONTENTS 1.Construction Obligations........................................................... 1 1.1 Monumentation...................................................... 1 1.2 Intent of Map........................................................ 1 1.3 Survey Monuments................................................ 2 1.4 Performance of Work.............................................. 2 1.5 Changes in the Work.............................................. 2 1.6 Defective Work....................................................... 2 1.7 No Warranty by City............................................... 2 1.8 Authority of the City Engineer................................ 2 1.9 Inspection............................................................... 2 1.10 Compliance with Law............................................. 3 1.11 Final Acceptance of Works of Improvement........... 3 2. Time for Performance....................................................... 3 2.1 Commencement and Completion Dates................. 3 2.2 Force Majeure......................................................... 4 2.3 Continuous Work.................................................... 4 2.4 Time of the Essence................................................ 4 3. Labor................................................................................. 4 3.1 Labor Standards...................................................... 4 3.2 Nondiscrimination................................................... 4 3.3 Licensed Contractors.............................................. 4 3.4 Workers' Compensation.......................................... 4 4. Security............................................................................. 5 4.1 Required Security.................................................... 5 4.2 Form of Security Instruments.................................. 5 4.3 Subdivider's Liability................................................ 6 4.4 Letters of Credit....................................................... 6 4.5 Release of Security Instruments.............................. 7 5. Cost of Construction and Provision of Inspection Service............................................................................... 7 5.1 Subdivider Responsible for All Related Costs of Construction............................................................ 7 5.2 Payment to City for Cost of Related Inspection and Engineering Services........................................ 7 6. Default............................................................................... 7 i 6.1 Remedies Not Exclusive.......................................... 7 6.2 City Right to Perform Work...................................... 7 6.3 Attorney's Fees and Costs....................................... 7 7. Indemnity.......................................................................... 8 8. General Provisions............................................................. 8 8.1 Successors and Assigns......................................... 8 8.2 No Third Party Beneficiaries.................................... 8 8.3 Entire Agreement; Waivers and Amendments....... 8 9. Corporate Authority........................................................... 8 ii SUBDIVISION IMPROVEMENT AGREEMENT THIS SUBDIVISION IMPROVEMENT AGREEMENT (this "Agreement") is entered into this Z-day of 2003, by and between the CITY OF PALM SPRINGS, a municipal9 rporation of the State of California ("CITY"), and El Dorado Palm Springs Ltd., a California Limited Partnership ("Subdivider"). RECITALS A. Subdivider is the owner of, and has obtained approval of a subdivision map for Tract Map No. 28087 in the City of Palm Springs, County of Riverside, State of California (the "Property"). The map contains conditions of approval for the development of the Property (the "Conditions"). B. Subdivider has delivered to City and City has approved the map which requires the setting of monuments, "Monumentation" (as hereinafter defined) which are required to be installed in order to accommodate the development of the Property. C. Subdivider's agreement to install the Monumentation pursuant to this Agreement are a material consideration to City in approving the final 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 Monumentation. Subdivider agrees, at its sole cost and expense, to install or cause to be installed the monuments(herein sometimes collectively referred to as the "Monumentation"), as the same may be supplemented and revised from time to time as set forth herein (said map, together with all related documents, are referred to herein as the "Map"). The estimated cost for the Monumentation is 950.00. 1.2 Intent of Map. Approval of the Map referenced in Section 1.1 requires a complete work of setting of monumentation 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 the setting of all required Monumentation,even though the Map 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 Map, 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 1 of any doubt or question arising regarding the true meaning of the setting of any of the Monumentation, reference shall be made to the City Engineer whose decision thereon shall be final. 1.3 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 A 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. 1.5 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. 1.6 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,.7 No Warranty by City. The Map for which the setting of Monumentation is required has 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 Map or related documents, 1.8 Authority of the City Engineer. In addition to the authority granted to the City Engineer 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. 1.9 Inspection. The inspection of the work by City shall not relieve Subdivider or the contractor of any obligations to fulfill this Agreement as herein 2 provided, and unsuitable materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted. 1.10 Compliance With Law. In addition to the express provisions of this Agreement and the Map, Subdivider shall cause construction of the setting of Monumentation to be completed in accordance with all other applicable federal, state, and local laws, ordinances, rules and regulations. 1.11 Final Acceptance of Monumentation. After Subdivider's contractor has completed all of the Monumentation, Subdivider shall then request a final inspection of the work. It 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 two (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 setting of Monumentation shall be construed as final acceptance of any part until the overall final acceptance by City is made and the Engineer of Record has submitted written confirmation to the City that the Monumentation has been set and he has been paid in full for said work. Final acceptance shall not constitute a waiver by City of defective work subsequently discovered. 2. Time for Performance. 2.1 Commencement and Completion Dates. Subject to Section 2.2 and 2.3 below, Subdivider shall (i) commence with installation of the Monuments when the final grading and street improvements have been completed ("Commencement Date"); and (ii) complete or cause to be completed all of the Setting of Monumentation Two (2) Years after the Commencement Date. 2.2 Force Maj_eure. Notwithstanding the provisions of Section 2.1, Subdivider's time for commencement and completion of the setting of Monumentation 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. 3 2.3 Continuous Work. After commencement of installation of the Monumentation (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 five (5) days, events of Force Majeure excepted. 2.4 Time of the Essence. Time is of the essence of Subdivider's performance of all of its obligations under this Agreement, 3. Labor. 3.1 Labor Standards. Subdivider shall be responsible for causing all contractors and subcontractors performing any of the setting of Monumentation 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 setting of Monumentation 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 Surveyor. Subdivider shall cause all of the setting of Monumentation to be installed under the direct supervision of a California licensed land surveyor in conformance with the map. 3.4 Worker's Compensation. Subdivider shall cause every contractor and subcontractor performing any of the setting of Monumentation 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 bond, letter of credit, instrument 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 (hereinafter "Security Instruments"): (i) A Security Instrument guaranteeing the payment of the cost of setting monuments as required in Section 1.4 in the amount of 950.00. This Agreement shall not be effective for any purpose until such Security Instruments are supplied to and approved by City in accordance herewith. 4 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 be an 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 may be 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. 5 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 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 of Monumentation upon Subdivider's written request upon the completion of the setting of the monumentation and written proof that the Engineer of Record has been paid for said work, provided no claims are outstanding at that time regarding defective work. 6 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 installation of the Monumentation. 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 setting of Monumentation. 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 setting of Monumentation until all City fees and charges have been fully paid, including without limitation, charges for applicable penalties and additional required inspections. 6. Default. 6.1 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. 6.2 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. 6.3 Attorney'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. 7 7. Indemnitv. 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 installation of the Monumentation 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 wilful misconduct. 8. General Provisions. 8.1 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. 8.2 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. 8.3 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 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 bythe appropriate representatives of both parties. 9. Corporate Authority. The persons executing this Agreement on behalf of the parties hereeto 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. 8 IN WITNESS WHEREOF, the parties hereto have executed this Subdivision Improvement Agreement as of the date first above written. DATED: ATTEST: CITY OF PALM SPRINGS, CALIFORNIA B Patricia A. anders, City Clerk David Ready, Cit nager APPROVED AS TO FORM: City Attor SUBDIVIDER: El Dorado Palm Springs Ltd., a California Limited Partnership By Goldstein Properties, Inc., its General Partner (Check One: _ individual, _ partnership, _ corporation) By: ! ✓� (Notarized) Title:j�,. . . _ By: (Notarized) 4 e S Title: Mailing Address: Q� Gilchrist Rutter LP in care of Richard Close 1299 Ocean Avenue, Suite 900 APPROVED BY THE CITY COUNCIL Santa Monica, CA 90401 BY REc, NO �o�la f D3 - 9 0 JURAT• 7` State of �\��-0 d l } ss. County of Subscribed and sworn to (or affirmed) before me , '\\ this � —day of G C,\ 7, by I' Dale Month Year ROBIN WARD 1 Commission iti24D829 z (1) G( VA R--S I• i�u Notary Public-California Noma of Signers) ( Los Angeles County �\ t� My Comm.Expires Nov6,2003 (2) ` _ r • - Name of Signers) A w ( Signature of Notary Public I OPTIONAL i, Though the information in this section is not required by law, it may prove valuable to persons relying on the document and could prevent t fraudulent removal and reattachment of this form to another document. Description of Attached Document Top of thumb here Top of thumb here Title it or Type of Document: � Lt\lt�9%\)"S Document Date: 3-2,5 - 03 Number of Pages: _ Signer(s) Other Than Named Above: 11 01995 Naaonal Notary Association•6236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 Prod.No.5914 Reorder.Call Tall-Free 1-800-876.6827 1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of P 1 v e r S 1 �If On lU n Q q 3 Q 0113 T before me, V � it� A , N� (Z k o is Da t�I` Name and The of Ofiner(e.g,"Jan.Don,Notary P^ublllvx d ea"( personally appeared I JQ y l A IY-R e Q�Y C2 Vt c� �(2tP 1 C,\Ct G • Y'S Namefsl 0(Signals) Xpersonally known to me 00 8 to be the persons whose nameEp 4 D subscribed to the within instrument and JUDITH A.NICHOLS acknowledged to me that the executed - COMM.#1261786 the same in thel authorized W 'sees Public-California y capacit les and that by ' the RIVERSIDE COUNTY signatures) p on the instrument the ersono, or My CcfYm,EKp,Maiy21,2004 the entity upon behalf of which the person(g) acted, executed the instrument. WITNESS my hand and official sea[G 1 ` agnalum of Notary Pul5he OPTIONAL Though the information below is not required bylaw,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of J Attached Document (� V�Title or Type of Document: J l V k s \ O vN Tm p r o v e rn y of Ckl r e e m?it Document Date: Tu h e- w p 0 o 3 I Number of Pages: Signer(s)Other Than Named Above: UaYI'Lto-5 0 dS { 1h Capacity(ies) Claimed by Signer Signer's Name: D2V1 ea 4TMI",64 S'andfr.5 Individual T.p of thumb h.. X Corporate Officer—Title(s): l/n� l I1 V Root q}el" ❑ Partner—❑ Limited ❑General ❑ Attorney-in-Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: aT, Signer Is Representing: PJXL 01999 Nekl el Notary Assovvi,on•9350 De Bolo Ave.PO Box 2402•ChalswotlM1,CA 91313-2402•www nallonaloolAr,Oro Prod Ne 5907 Ree,dor Call Toll-Free 1-600.876-BB27 ° DOC N 2003-517199 ' 07/11/2003 08:00p Fee:NC Lj �y /� pp�ii-- r Page 1 of 10 .N 10/P66 T111. - Recorded in Of icial Records County of Riverside FREE RECORDING REQUESTED BY Orso AND WHEN RECORDED MAIL TO: Gary L. Assessl{or, Country Clerk & Recorder CITY F2 7M SPRINGS PO Box 43 IIIIIIIIIIIIIIIIIIIIIIIII�IIIIIIIIIII�Ihllllllllllllll Palm Springs, CA 92263-2743 Attn: City Clerk _ M S U PAGE SRE OA POOR NOCOR SMF MISC V p R L COPY LONG tiEPUNONG E%AM Filing Fee Exempt Per Government Code 6103 (For Recorder's Use Only) DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO INSTALL STREET IMPROVEMENTS UPON NOTICE LJJBI THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO INSTALL STREET IMPROVEMENTS UPON NOTICE ("Declaration") is entered into this -�_ day of � , 2003, by and between El Dorado Palm Springs LIP. , a California Limited Partnership ("Declarant") , whose address is Gilchrest Rutter, LP, in care of Richard Close, 1299 Ocean Avenue, Suite 900, Santa Monica, CA 90401; and the CITY OF PALM SPRINGS, a municipal corporation ( "City") , whose address is PO Box 2743, 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92263, Attn: City Clerk. R E C I T A L S : A. Declarant is the owner of that certain real property located in the City of Palm Springs, County of Riverside, State of California, commonly known as 6000 East Palm Canyon Drive, Palm Springs, California 92262-6118, more particularly described on Exhibit "A" attached hereto and incorporated herein by reference (Tract Map No. 28087) ("Property") . The City has fee or easement interests in various streets, sidewalks and other property within the City and is responsible for the planning and development of land within the City in such a manner as to provide for the health, safety and welfare of the residents of the City. That portion of the City' s interest in real property most directly affected by this Agreement is 6000 East Palm Canyon Drive. ( "Public Parcel") . B. Declarant desires to obtain City approval of a Final Map upon the Property ("City Approval") . As a part of the City Approval, a nexus or rough proportionality have been established for requirement of off-site improvements as related to the tentative tract map, requiring Declarant to construct certain street or other improvements on the Property or the Public Parcel, which street improvements are more particularly described on 1 Exhibit "B" attached hereto and incorporated herein by reference ("Improvements") . Declarant desires to defer the construction of the Improvements and, pursuant to Section 9309. 00E of the City Zoning Ordinance, the Director, Department of Public Works/City Engineer has determined that the construction of the Improvements can be deferred on the terms more particularly set forth herein. NOW THEREFORE, the Declarant declares, covenants and agrees, by and for itself, its heirs, executors and assigns, and all persons claiming under or through it that the Property shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied subject to the covenants and restrictions hereinafter set forth, which covenants are established expressly and exclusively for the use and benefit of the City and the Public Parcel . 1. 0 Covenants, Conditions and Restrictions. 1. 1 Construction of Improvements. At any time after this Declaration is executed by Declarant and if one of the following conditions has occurred: (i) over 50 percent of the lineal right-of-way on that side of the street and in that block (herein referred to as the "50% Qualifier Standard") has been constructed to the ultimate location, or (ii) the City has obtained covenants from the property owners meeting the 50% Qualifier Standard, or, (iii) the City is prepared to proceed with a public improvement project which will cause construction of the improvements meeting the 50% Qualifier Standard, then City shall notify Declarant in writing that Declarant must commence construction of the Improvements ( "Notice") . Within ninety (90) days from the date of the Notice, Declarant shall, at its sole cost and expense, (i) apply for and receive approval of all necessary permits and approvals required by the City to construct the Improvements and (ii) commence construction of the Improvements . The construction of the Improvements shall be in accordance with all laws, ordinances and regulations of the City and any other governmental entity with jurisdiction in effect at the time construction is commenced. Declarant shall complete the construction of the Improvements no later than one hundred twenty (120) days of the date of the Notice. 1 . 2 Dedication of Improvements . Upon the completion of the construction of the Improvements and final inspection by the City, Declarant shall irrevocably offer to dedicate the Improvements to the City. 1 . 3 Maintenance of Improvements. Until the dedication of the Improvements is accepted by the City, Declarant shall maintain and repair or cause to be maintained and repaired the Improvements in a first class condition and repair, free of 2 IIIIIIIIIIIIIIIIIIIIIII III IIIIIIIIIIIIIIIIIIIIIIIIIIII ��r 2 of01©30aR rubbish, debris and other hazards to persons using the same, and in accordance with ail applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction, at Declarant ' s sole cost and expense. 1 . 4 Right of City to Construct Improvements . The City may, at its sole discretion, elect to construct the Improvements, either alone or as part of a larger project, through the establishment of an improvement district, assessment district, benefit area, or any other lawful plan or procedure for the construction and financing of public improvements ("District") . If the City elects to establish a District, Declarant hereby agrees to join the District and pay its proportionate share of the cost of constructing the Improvements . Further, Declarant hereby waives its right to protest the formation of the District or the imposition of an assessment under the Special Assessment Investigation, Limitation and Majority Protest Act of 1931, California Streets and Highways Code Sections 2800 et seq. or any other procedure for the establishment of a District and/or the implementation of an assessment. 2 . 0 Enforcement. 2 . 1 Rights of City. In the event of any violation or threatened violation of any of the provisions of this Agreement, then in addition to, but not in lieu of, any of the rights or remedies the City may have to enforce the provisions hereof, the City shall have the right (i) to enforce the provisions hereof as a party hereto and as an owner of the Public Parcel, (ii) to withhold or revoke, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the Property or any part thereof or interests therein as to the violating person or one threatening violation and (iii) to obtain from a court of competent jurisdiction an injunction against such violation or threatened violation. 2 . 2 Failure to Perform: Lien. If any owner of the Property defaults on the performance of any of its obligations hereunder, the City, its employees, contractors and agents may, at their sole option, and after making reasonable demand of the owner of the Property that it cure said default, cure the default. In making a cure, the City shall give the owners of the Property or their representative, reasonable notice of the time and manner of said action and said action shall only be at such times and in such manners as reasonably necessary to carry out this Agreement. In such event, the owner of the Property shall reimburse the City for all costs and expenses related to the curing of said default plus interest at a rate of ten percent (100) per annum commencing on the date that is thirty (30) days after the date notice thereof 3 III II III I III IIIII I I I II III III I I II II II IIII 2�1�13 o 7 00E 109 is given and ending on the date said sum is fully repaid. Any and all delinquent amounts, together with said interest, costs and reasonable attorneys fees shall be a personal obligation of the owner of the Property as well as a lien and charge, with power of sale, upon the Property. The City may bring an action at law against the owner of the Property to pay any such sums . The lien provided for in this Section may be recorded by the City as a Notice of Lien against the Property in the Office of the Riverside County Recorder, signed and acknowledged, which Notice of Lien shall contain a statement of the unpaid amount of costs and expenses. Such lien may be enforced and foreclosed in a suit or action brought in any court of competent jurisdiction or in accordance with the provisions of Section 2924 of the California Civil Code applicable to the exercise of powers of sale for mortgages and deeds of trust, or in any other manner permitted by California law. Upon the timely curing of any default for which such lien was recorded, the City shall record an appropriate release of such lien, upon payment by the owner of the Property of a reasonable fee to cover the costs of preparing and recording such release, together with the payment of such other costs, including, without limitation, reasonable attorneys fees, court costs, interest or other fees which have been incurred. 3 . 0 Covenants to Run With the Land. 3 . 1 Covenants Running With the Land. This Declaration is designed to create equitable servitudes and covenants appurtenant to the Public Parcel and running with the Property. Declarant hereby declares that all of the Property shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the covenants, conditions, restrictions and equitable servitudes, all of which are for the purposes of uniformly enhancing or protecting the value, attractiveness and desirability of the Property and the Public Parcel. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth herein shall run with the Property and shall be binding upon all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns; shall inure to the benefit of every portion of the Public Parcel and any interest therein; shall inure to the benefit of the City and its successors and assigns and successors ' in interest; shall be binding upon the Declarant, its successors and assigns and successors in interest; and may be enforced by the City. 3.2 Agreement Among Declarant, Agency and City. In exchange for granting of the City Approval by the City, the Declarant hereby agrees to hold, sell and convey the Property subject to the covenants, conditions, restrictions and reservations of this Declaration. Declarant also grants to the City the right and power to enforce the covenants, conditions, `4 II�III IIII�� ►IIII I�III III IIIII IIIIIII III NIII IIII IN 07 200 40 of 10�00F restrictions and reservations contained in this Declaration against the Declarant and all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns . 4 . 0 Miscellaneous . 4 . 1 Term. The covenants, conditions and restrictions contained in this Declaration shall remain in effect until the Improvements are constructed and accepted by the City. 4 . 2 Modification. This Declaration may not be modified, terminated or rescinded, in whole or in part, except by a written instrument duly executed and acknowledged by the parties hereto, their successors or assigns and duly recorded in the Office of the County Recorder, County of Riverside. 4 . 3 Governing Law. This Declaration shall be governed by and construed in accordance with the laws of the State of California. 4 . 4 Severability. The invalidity or inability to enforce any provision of this Declaration with respect to a particular party or set of circumstances shall not in any way affect the validity and enforceability of any other provision hereof, or the same provision when implied to another party or to a different set of circumstances . 4 . 5 Notices. Any notice to be given under this Declaration shall be given by personal delivery or by depositing the same in the United States Mail, certified or registered, postage prepaid, to the address set forth on the first page of this Declaration. Any notice delivered personally shall be effective upon delivery. Any notice given by mail as above provided shall be effective forty-eight (48) hours after deposit in the mails . Any party may change address for notice by giving written notice of such change to the other party. 4 . 6 Attorneys ' Fees. In any action between the parties seeking enforcement of any of the terms and provisions of this Declaration, the prevailing party in such action shall be awarded, in addition to any damages, injunctive or other relief, its reasonable costs and expenses, including attorney' s fees . 4 . 7 Counterparts. This Declaration may be executed in any number of counterparts each of which shall be an original but all of which shall constitute one and the same document . (Signatures on Next Page) I 5 IIIIII IIIIII IIIIII IIIII III IIIII IIIIII III IIIII IIII III 07J 1�50070ga00F IN, WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above . " Declarant" By: E1 Dorado Palm Springs Ltd. , a California Limited Partnership, by Goldestein Properties, Inc. , its General Partner By: Title: By: Title: (DECLARANT' S SIGNATURE MUST BE NOTARIZED) "City" ATTEST: CITY OF PALM SPRINGS, a municipal corporation By. City Clerk Manager (CITY CLERK AND MANAGER' S SIGNAT MUST E OTARIZED) APPROVED AS TO FORM: RECOMMENDED BY: . ALESHIRE & WYNDER, LLP Attorney Senior Civil Engineer �— APPROVED AS TO OWNERSHIP & LEGAL DESCRIPTION: NOTARY FORMS ON NEXT PAGE IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 672C�6 e£70E000R l C' STATE OF CALIFORNIA) SS a COUNTY OF\\Rfl3�) `� y On �paN C\n %5 pl,)D } before me, a�n. �+ W OL a 0. Inv ate —�' Notary Public l personally appeared q,\PA ,Q S G; p\ X personally known to me OR ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies) , and that by his/her/their signature (s) on the instrument the person (s) , or the entity upon behalf of which the person(s) acted, executed the instrument. (SEAL) Witness my hand and official seal. ROBIN WARD Commission#1241" W f Notary Public-Califorda Sig ature of Notary Los Angeles County M MyCortxn.60resNov6.2M3 STATE OF CALIFORNIA) SS . COUNTY OF RIVERSIDE) IIt II On aoJ) p I � adU3 before me, UUL l I - R \ C`hD lS Date r� nNottary Public C personally appeared �1-0 V YIUT2 �0.� Q In 4 1_R \ C iC t 4 1 I ,R yd�.t S O� personally known to me -6R to be the person whose names -is are subscribed to the within instrument and acknowledged to me t at the executed the same in his�ker thei authorized capacity ( as , and that by )�h8r the ' signature (toon the ins��t!'�ument the persons , or the entity upon behalf of which the person 6 acted, executed the instrument. (SEAL) Witness my hand and official seal. l .��^' ` JUDITH A.NICHOLS n COMM.#1261786 AAA N eD Notary Public-California N ���-- A.O n \,cl". ✓L-�D' VR'„—/ LU , �' RIVERSIDE COUNTY gnature of Notary My Comm.Exp.May 21,2004 7 IIIIII IIIIII IIIIII IIIII III I III II III IIIII III IN a�20 zea17�39©ah „r ,F, EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY Tract Map No. 28087, as recorded in Map Book 338 , Pages 3q-yb in the office of the County Recorder, Riverside County, California. 8 IIIIII IIIIII IIIIII IIIII III IIIII IIIIII!III IIIII IV IIII 071i©©2 937 $90@R EXHIBIT "B" DESCRIPTION OF DEFERRED ITEMS The Improvements to be constructed herein shall include all improvements listed below, said improvements being deferred under Tentative Tract Map 28087 and associated conditions : PALM CANYON DRIVE EAST 1. Submit street improvement plans prepared by a Registered Civil Engineer to the Engineering Division. The plan (s) shall be approved by the City Engineer prior to issuance of any grading or building permits . Minimum submittal shall include the following, IF applicable: A. Copy of signed Conditions of Approval from Planning Department. S. All agreements and improvement plans approved by City Engineer, IF applicable. C. Proof of processing dedications of right-of-way, easements, encroachment agreements/licenses, covenants, reimbursement agreements, etc. required by these conditions . 2 . Construct an 8 inch curb and gutter, 44 feet NORTHEAST of centerline along the entire frontage of the subject property per City of Palm Springs Standard Drawing No. 200 . 3 . Construct an 8 foot cross gutter and spandrel at the intersection of PALM CANYON DRIVE EAST (HWY. 111) and MAIN ENTRANCE with a flow line parallel to the centerline of PALM CANYON DRIVE EAST (HWY. 111) in accordance with City of Palm Springs Standard Drawing No. 200 and 206. 4 . The driveway approach shall be constructed in accordance with City of Palm Springs Standard Drawing No. 205 and have minimum width of 32 feet to accommodate a curb ramp. 5. Construct a minimum 8 foot wide sidewalk behind the curb along the entire frontage in accordance with City of Palm Springs Standard Drawing No. 210 . 6. Construct a curb ramp meeting current California State Accessibility standards on both sides of the MAIN ENTRANCE per City of Palm Springs Std. Dwg. Nos . 212 and 212A. 7 . Remove and replace existing pavement with a minimum pavement section of 5 inch asphalt concrete pavement over 4 inch aggregate base with a minimum subgrade of 24 inches at 95% 9 III$IIE11111E1IIIElI311IIIIIII1111 ©7zee9Af' IG3e©� relative compaction, OR equal, from edge of proposed gutter to clean saw cut edge of pavement along the entire frontage in accordance with City of Palm Springs Standard Drawing No. 110 and 355 . The pavement section shall be designed, using "R" values, by a licensed Soils Engineer and submitted to the City Engineer for approval. 10 III�IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII r72001 £G90E A