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HomeMy WebLinkAboutA4160 - RIVERSIDE COUNTY COOPERATOVE AGR R 19672 ,ULb6 County Contract no. 2 COOPERATIVE AGREEMENT County of Riverside Cooperative Agreement 3 Indian Avenue and Garnet Avenue Underground Util AGREE[mNT 14160 R19672, 10-20-99 4 5 This agreement (hereinafter referred to as "AGREEMENT") is made and entered into this 6 � � -h-day of I4��.* 2001, by and between the County of Riverside, a political 7 subdivision of the State of California (hereinafter referred to as "COUNTY"), and the City of 8 Pahn Springs, a municipality (hereinafter referred to as "CITY"). 9 10 RECITALS: 11 12 WHEREAS, COUNTY and CITY desire to participate in an Underground Utility Project in the 13 vicinity of Indian Avenue and Garnet Avenue in the Palm Springs area (hereinafter referred to as 14 "PROJECT"), to replace overhead utility facilities under 34 kilovolts with underground facilities; 15 and 16 17 WHEREAS, COUNTY and CITY have determined the boundaries of the proposed 18 Underground Utility District (hereinafter referred to as "DISTRICT") in cooperation with the 19 Southern California Edison Company (hereinafter referred to as "EDISON"), as shown on 20 Exhibit "A", which is attached hereto and by this reference is incorporated herein, and the 21 proposed District boundaries are partially within the CITY and partially within the COUNTY, as 22 shown on Exhibit "A"; and 23 24 WHEREAS, COUNTY is willing to utilize $1,995,000 in County Rule 20-A Underground 25 Utility Conversion funds toward paying; the costs of the PROJECT; and 26 [NJ kdt 28 COOPERATIVE AGREEMENT Page 1 of 8 I WHEREAS, CITY desires to place utilities underground within the DISTRICT, but it has no 2 Rule 20-A funds available to apply toward the costs of the Project; and 3 4 WHEREAS, CITY has received 'Declarations of Covenants, Conditions and Restrictions to 5 Participate in District for Utility Undergrounding upon Notice" from Suitt Ventures, Inc. 6 (Instrument No. 327507, recorded August 5, 1998) and Foodmaker, Inc. (Instrument No. 275939, 7 recorded July 6, 1998) regarding parcels located within the DISTRICT and requiring Suitt 8 Ventures, Inc. and Foodmaker, Inc. to participate in the costs of PROJECT; copies of each 9 document are attached hereto marked as Exhibit 'B" and "C", respectively (collectively, the 10 "CC&R") ; and 11 12 WHEREAS, the established procedures of the California Public Utilities Commission 13 (hereinafter referred to as "CPUC") for utilization of Rule 20-A funds require that the serving 14 electric utility company, in this instance EDISON, as the owner of the electric facilities, review 15 and approve the eligibility of candidate projects, design the conversion improvements, and 16 advertise, award, and administer the construction of the conversion improvements; and 17 18 WHEREAS,EDISON has determined that the PROJECT is a qualifying project under the 19 CPUC guidelines; 20 21 NOW, THEREFORE, the parties hereby agree as follows: 22 23 1. Recitals. The above recitals are true and correct. 24 25 2. Lead Agency. COUNTY shall be the lead agency for the PROJECT. 26 27 28 COOPERATIVE AGREEMENT Page 2 of 8 . 1 2 3. Project Boundaries. The project boundaries shall be in conformance with Exhibit "A", 3 subject to-such minor modifications as may be required for practical considerations in the 4 implementation of the PROJECT. 5 6 4. Project Description. The PROJECT is to replace all overhead utility facilities with 7 underground facilities, except for surface mounted utility facilities that do not support 8 overhead cables, those utility facilities that exceed 34 kilovolts, and those overhead 9 facilities that are near the EDISON substation adjacent to the DISTRICT'S boundaries and 10 determined by EDISON to be critical in the operation of the substation. 11 12 5. Project Costs. The PROJECT cost is estimated at$2,157,500 excluding administration 13 costs of CITY ($10,000) and of COUNTY ($10,000), as described in Exhibit "D", which is 14 attached hereto and by this reference made a part hereof. 15 16 6. City/Property Owner Agreements. CITY shall notify in writing the owners of property in 17 Palm Springs, within the proposed district, as shown as property `B' and `D' in Exhibit "A" 18 (Foodmaker Corporation (Jack in the Box - property `B'J; and Suitt Ventures, Inc. 19 {Chevron Service Station - property `D') et al) or their successors, of the amount of their 20 assessment and endeavor to collect such fiords and shall hold all amounts collected 21 therefrom for payment to EDISON of the proportionate project cost attributable to such 22 property owners as shown on Exhibit "D". 23 24 7. Use of County Rule 20-A Funds. COUNTY shall authorize EDISON to utilize COUNTY 25 Rule 20-A funds to fund the PROJECT, including that portion of PROJECT that is located 26 within the CITY's boundaries. The Rule 20-A costs are estimated to be $1,995,000 and 27 28 COOPERATIVE AGREEMENT Page 3 of 8 I the remaining construction costs will be funds obtained pursuant to the terms of the 2 CC&R's. COUNTY agrees to advance all additional Rule 20-A funds necessary to - 3 complete PROJECT in the event that the affected property owners within CITY, subject to 4 the CC&R's, refuse to pay or timely pay their proportionate share of their costs as 5 identified in Exhibit "D" and Section 6, above. If COUNTY advancement of Rule 20-A 6 funds is made, CITY agrees to reimburse COUNTY for said costs with either funds 7 collected by CITY from the affected property owners, or from CITY's Rule 20-A funds, 8 when those funds become available. In accordance with the standard procedures for the 9 use of Rule 20-A funds, EDISON will design the electrical facilities conversion 10 improvements, will coordinate with other utility owners for the undergrounding of other 11 overhead facilities, and will advertise, award and administer the contract to construct the 12 conversion improvements. The conversion improvements will be constructed by a 13 qualified contractor ("CONTRACTOR"), licensed by the State of California. COUNTY 14 will perform all necessary coordination with EDISON, on behalf of both parties to this 15 AGREEMENT, and will periodically inform CITY of established schedules and the status 16 of PROJECT. 17 18 8. Administrative Costs. Administrative costs incurred by COUNTY and CITY will be the 19 funding responsibility of each respective party, and neither entity shall bill the other for 20 such costs. 21 22 9. County District Establishment. COUNTY shall establish an Underground Utility District 23 for that portion of the PROJECT that is within its jurisdictional boundaries by a formal 24 action of its Board of Supervisors, in accordance with its established procedures that are 25 consistent with Rule 20-A, and order the relocation of overhead facilities within said 26 DISTRICT that are 34 kilovolts or less. COUNTY represents and warrants that is has 27 28 COOPERATIVE AGREEMENT Page 4 of 8 I established procedures, consistent with Rule 20-A, to establish an Underground Utility 2 District. 3 4 10. City District Establishment. CITY shall establish an Underground Utility District for that 5 portion of the PROJECT that is within its jurisdictional boundaries by a formal action of 6 its City Council, in accordance with its established procedures that are consistent with Rule 7 20-A, and order the relocation of overhead facilities within said DISTRICT that are 34 8 kilovolts or less. CITY represents and warrants that is has established procedures, 9 consistent with Rule 20-A, to establish an Underground Utility District. 10 11 11. Cooperation. Both CITY and COUNTY will cooperate and coordinate with each other and 12 with EDISON in the implementation and completion of the PROJECT. Both CITY and 13 COUNTY will perform such actions, as necessary and appropriate for the implementation 14 and completion of the PROJECT, including property owner coordination and the resolution 15 of problems pertaining to property owner compliance with Rule 20-A requirements within 16 their respective jurisdictions. 17 18 12. EDISON has estimated that the PROJECT will require forty-eight months from the date 19 that this AGREEMENT is executed by both Parties and each Party has formed their 20 respective Underground Utility Districts. This four year period will represent the initial 21 term of this Agreement. Both parties agree that should EDISON notice COUNTY that 22 additional time is needed to complete the PROJECT, the parties will enter into a written 23 amendment to this Agreement allowing for the additional time. CITY and COUNTY may 24 also agree to modify the agreement by execution of a written Amendment executed by 25 both. Unless modified in accordance with this Section, this AGREEMENT shall continue 26 in full force and effect until completion of all work described herein. 27 28 COOPERATIVE AGREEMENT Page 5 of 8 1 13. Encroachment Permits. CITY shall issue those encroachment permits to EDISON and 2 COUNTY that are needed for construction of PROJECT at no cost to EDISON or 3 COUNTY. COUNTY shall issue encroachment permits to EDISON and CITY as needed 4 for construction of PROJECT at no cost to EDISON or CITY. 5 6 14. Reciprocal Indemnification. Each party hereto shall indemnify, defend, save and hold 7 harmless the other party and their respective officers, agents, and employees, of and from 8 any and all liability, claims, demands, debts, losses or suits or damages to other parties for 9 death, personal injury or property damage, arising out of or in any manner connected with 10 the performance of the duties and obligations of such indernnifying party under this 11 AGREEMENT. 12 13 15. Successors and assigns. This AGREEMENT shall inure to the benefit of and be binding on 14 each of the parties and their respective successors and assigns. 15 16 16. Severability. The invalidity of any provision in this AGREEMENT as determined by a 17 court of competent jurisdiction shall in no way affect the validity of the other provisions 18 hereof. 19 20 17. This AGREEMENT contains the entire agreement between the parties with respect to the 21 matters herein provided. 22 23 18. This AGREEMENT may be executed in counterparts each of which shall be deemed an 24 original, but which together shall constitute a single agreement. 25 26 27 29 COOPERATIVE AGREEMENT Page 6 of 8 1 19. Notices. Any notice authorized or required to be given by this AGREEMENT or 2 proceedings related hereto shall be deemed to have been sufficiently given if and when sent 3 by first class mail, postage prepaid, to the parties as follows: 4 To County: To City: 5 COUNTY OF RIVERSIDE CITY OF PALM SPRINGS 6 Transportation Department Grants and Special Projects Department 7 4080 Lemon Street, S'h floor 3200 E. Tahquitz Canyon Way 8 P.O. Box 1090 P.O. Box 2743 9 Riverside, Ca. 92502-1090 Palm Springs, Ca. 92263-2743 10 Attn: Stan Dery Attn: Robert L. Mohler 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOPERATIVE AGREEMENT Page 7 of 8 1 IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of the date 2 indicated above. 3 4 COUNTY OF RIVERSIDE CITY OF PALM SPRINGS P;h5 airman, Boar o City anage Supervisors 7 8 Dated SAX it 5 7lfi Dated Zb 9 ATTEST: ATTEST: 10 GERALD A.MALONEY Clerk of the Boar 11 �� 12 13 Deputy Clerk of the Board "CAyCZ1:e2k= APPROVED AS TO FORM: APPROVED AS TO FORM: 14 William C. Katzenstein f 15 County Counsel 16 l By r 17 Deputy Co ounsel City Attorney 18 19 20 21 sd 22 23 24 25 26 27 ter 28 COOPERATIVE AGREEMENT �° Page 8 of 8 E9dEl "v' �i7 I IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of the date 2 indicated above. 3 4 COUNTY OF RIVERSIDE CITY OF PALM SPRINGS 5 B By airman, Board 7o City Manager Supervisors 7 8 Dated�� ��� Dated 9 ATTEST: ATTEST: 10 GERALD A. MALONEY Clerk of the Board 12 By ,R f ° ��� By 13 eputy Cler''of the Board City Clerk APPROVED AS TO FORM: APPROVED AS TO FORM: 14 William C. Katzenstein 15 County Counsel 16 l By 17 Deputy Con ounsel City Attorney 18 19 20 21 sd 22 23 24 25 26 27 28 COOPERATIVE AGREEMENT Page 8 of 8 W s%%Pdo ,j 001 mWE'Ar rAVI MEN l/I��I� /II IV/ /I���/�Y1�1/I/�I�JIII II I/I II/l;ll�iiliiliiil�I I�/I�I��I�II/IJj/�Ij�p��l� II'IIII.� Ili l�l1l/IAIjI�I�111��0/ICI l��llll�,���ltii r�lll�i�ll 1j11111�II� R I Ji�jill/Ji �I�10 IIII�JIIJ�I�Aijiljl�����IVIIJIry�i 11 jiYlJ .!ir, MY w wr . I� I�, I wYypy 4 :.. 11 v OAK poll FA County of Riversi SIA vir 1002 � I,ow 11,i�i i1 • II�/i...i 84 00 © /l;f,fj//, / %/r ouperative Agreement Rule 20-A Underground Utility District Project EXHIBIT "A" jProject Boundary Map jCity of Palm Springs ` Thu iwp»a mode by the Ri.ersdy 1h, Geadrvd 0 tn,6.,p Syr .d COIi VT the may elow�n»ve yrod*.h. .e wd and tlu Tnx.pwvnn.aid - ,,Yanodemmr AdekY wlueh u ramyrva!ojAdwmuvaea.wJ 61 N�6nnanan Ru 1p d - A and the dddind d Sfrty.Pla.wud and 7imvpormna deye.onau. The Cmwry ajR(ng&- aasno ne g mnd w legal reapcwnbS'ry,6r Ne�n,6.rnaaan coumnd an rue nag. U.r.d D nmRSEDS jarrnum"P.....d I wd� a.d17w ,wJfMm. wt w.brwuiu..Thu rP'Add Na e q i w w d ar ry SEIVED FOR RECORD a AT 8:OOAM .E RECORDING REQUESTED BY v nND WHEN RECORDED MAIL TO: u a JUL -g 1998 CITY OF PALM SPRINGS PO Box 2743 huN1y In OYI Mmti a ° Palm Springs, CA 92263 M1fd.Caww'c+yoni� •` o^ Attn: City Clerk Rwmder n o D W Fw (For Recorder's Use Only) U c N DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO PARTICIPATE IN DISTRICT FOR UTILITY UNDERGROUNDING UPON NOTICE THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO PARTICIPATE IN DISTRICT FOR UTILITY UNDERGROUNDING UPON NOTICE ( "Declaration") is entered into this 4th day of May, 1998, by and between Foodmaker, Inc. ( "Declarant") , whose address is 100 No. Barranca Avenue, Suite 200, West Covina, CA 91791 and the CITY � A 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 6555 Indian Canyon Drive North, Palm Springs, California 92262, more particularly described on Exhibit "A" attached hereto and incorporated herein by reference (APN 669-060-003) , ("Property" ) . 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 6555 Indian Canyon Drive North ("Public Parcel") . B. Declarant desires to obtain building permit (s) and other City approvals to remodel or modify existing structures upon the Property ("City Approval") Section 8 . 04 . 402 of the Municipal Code of the City requires, as a condition precedent to the approval of the City Approval, that Declarant underground the utilities abutting or transecting the Property ("Improvements" ) .. Declarant desires to defer the construction of the Improvements and, pursuant to Section 8 . 04 . 402 of the Municipal Code of the City, the Director, Department of Transportation of the Department of Public Works 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 Right of Citv Establish District to Construct Improvements . The Citv 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, 7 assessment district, benefit area, or any other lawful plan or procedure for the construction and financing of public -1- 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 sec . or any other procedure for the establishment of a District and/or the implementation of an assessment. 2 . 0 Enforcement. 2 . 1 Termination. No breach of this Declaration shall entitle any party to cancel, rescind or otherwise terminate this Declaration, or excuse the performance of such party' s obligation hereunder; provided that, however, this limitation shall not affect in any manner any other rights or remedies which the parties may have by reason of such breach. 2 . 2 Other 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 said violation or threatened violation. 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, and equitable servitudes 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, restrictions and reservations contained in this Declaration -2- • � �C'75`i39 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. 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 of 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, at the following address : City: City of Palm Springs PO Box 2743 Palm Springs, CA 92263 Attn: City Clerk With Copy to: Rutan & `pucker 611 Anton Blvd., Ste. 1400 Costa Mesa, CA 92623-9990 Attn: David J. Aleshire, Esq. Declarant : Foodmaker, Inc . 100 No . Barranca Avenue, Ste. 200 West Covina, CA 91791 Michael J. Snider, Asst . Secretary With Copy to: Engineering Division City of Palm Springs P.O. Box 2743 Palm Springs, CA 92263-2743 Any notice delivered personally shall be effective upon delivery. Any notice given by mail as above 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 . -3- .. • � 2`75939 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 . IN WITNESS WHEREOF, the undersigned have executed this Agreement �s of the date first written above. Foodmaker, In . By: Michael Snider Its : Assistant Secretary "Declarant" (DECLARANT'S SIGNATURE MUST BE NOTARIZED) ATTEST: CITY OF PALM SPRING , a mun"Vm poration Bye i c �: ( By: City Clerk er "City" (CITY CLERK AND MANAGER'S SIGNATURES MUST BE NOTARIZED) APPROVED AS TO FORM: RECO ENDED BY: City AtttrjDey Dire or, Dept. of Transportation APPROVED AS TO OWNERSHIP & LEGAL DESCRIPTION: B y: /Y(GLm4 Van NOTARY FORMS ON NEXT PAGE -4- 2'75939 State of California 1 V ss County of San Diego ) On May 14, 1998 before me, JUDY ANKROM, Notary Public, personally appeared Michael J. Snider 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. WITNESS my hand and official seal.. !�(/l � SkU �gnatuddof Notary �:++n'.+v+wn+,xvmm,•nvvvvr•:,n•,vx� *'M1'• - JUDY ANKHOIM 1063574 r' SEAL _: '! NOTARY PUBLIC CAI.IFOHNIA o J SAN OIEGO COUNTY My Comm.ExpineJuly;2,1999 __—----------__ __ «_ _ _____________________________________________________________________________________ OPTIONAL SECTION: Capacity Claimed by Signer. Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the document. Individual X Corporate Officer(s) .,.Assistant Secretary Title(s) _ Partner(s) _ Limited _ General _ Trustee(s) Other Signer is Representing: Foodmaker- . Inc. Name of Entity(ies) Declaration of Covenants, Conditions and Restrictions Title Or Type of Document: to Participate in District for Utility Underground ing Upon Notice Number of Pages: 7 Date of Document: May 4, 1998 ,_ tiIJJJ•Y STATE OF CALIFORNIA) SS . COUNTY OF RIVERSIDE) V /ud� On a? S y e' before me, cAir�. 4 G4f1�FKi Atl � date personally appeared L. Q personally known to me basis o€- sat-isf-act-ory---ev-rdeaee- to be the persons whose name&y is/tea subscribed .to the within instrument and acknowledged to me that he/she the executed the same in his/her thei " authorize acity-jj.g� and that by ELAINE L.WEDEKIND it his/her t ei signature (� on the a +'� CCMM•rivace57 = instrument the personUn , or the entity Notary Public—CallWmla y COUNTY upon behalf of which the person(g) ,:;;:.:,;,FEB 3 11999 ��/ acted, executed the instrument. Witness my hand and official seal . Signature of N ary (SEAL) STATE OF CALIFORNIA) SS . COUNTY OF RIVERSIDE) On before me, , date personally appeared and ❑ 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 . Witness my hand and official seal . Signature of Notary (SEAL) -5- • 2'75939 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY In the City of Palm Springs, County of Riverside, State of California,] that portion Of the Northeast quarter of the Northeast quarter of Section 22, T 3 S, R 4 E, S .B.M. , more particularly described as follows : Commencing at the Northeast Corner of said Section 22, said point also being on the centerline of Indian Canyon Drive North as shown on Parcel Map No . 21921, on file in Book 162, Pages 18 through 23, inclusive, of Parcel Maps, Riverside County records; Thence, South 00' 09' 02" West along said centerline of Indian Canyon Drive North, a distance of 221 . 94 feet, more or less, to a point of intersection with the new centerline of Garnet Avenue as shown on said Parcel Map No . 21921; Thence, North 76° 18' 28" West along said new centerline of Garnet Avenue, a distance of 258 . 15 feet; Thence, perpendicular to said new centerline South 13' 41, 32" West, a distance of 17 . 50 feet to a point on the southerly right- of-way line of Garnet Avenue as relinquished to the County of Riverside in document recorded in Book 2129, Pages 509 and 510 of Riverside County Records, and. the True Point of Beginning; Thence, continuing South 130 41' 32" West, a distance of 165 . 27 feet; Thence, South 76' 18' 28" East and parallel with said new centerline of Garnet Avenue, a distance of 30 . 00 feet; Thence, North 13' 41' 32" East, a distance of 21 . 00 feet; Thence, South 760 18' 28" East, a distance of 103 . 00 feet; Thence, South 130 41' 32" West, a distance of 21 . 00 feet; Thence, South 760 18' 28" East and parallel with said new centerline of Garnet Avenue, a distance of 112 . 60 feet to a point on the westerly right-of-way line of Indian Canyon Drive North as described in Instrument No . 135291, recorded December 1, 1965, Riverside County Records; Thence, North 000 09' 02" East along said westerly right-of-way line, a distance of 124 . 62 feet to the most southerly Southeast corner of the property conveyed to the County of Riverside in Instrument No. 252566, recorded August 3, 1995, Riverside County records; Thence along the southerly and westerly lines of the property conveyed in said instrument through the following three (3) courses : North 380 04' 41" West, a distance of 28 . 47 feet; Thence, North 760 18' 28" West, a distance of 131 . 87 feet; Thence, North 000 09' 02" East, a distance of 27 .26 feet to the Northwest corner of that certain parcel conveyed to Standard Oil Company of California, a Delaware Corporation, by deed recorded EXHIBIT "A" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS -6- October 6, 1965 as Instrument No . 114285, of Riverside County records, and a point on aforementioned southerly right-of-way of Garnet Avenue; Thence, North 76° 18' 28" West along said southerly right-of-way line, a distance of 55 . 80 feet to the True Point of Beginning. Comprising 0.712 Acres (31, 004 S . F. ) , more or less . Subject to all easements and rights-of-way of record. EXHIBIT "A" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS -7- RE ED FOR RECORD • OOAM O'CLOCK ca FREE RECORDING REQUESTED BY AUG - 5 1998 E ? _ AND WHEN RECORDED MAIL TO: U L _ Rowded In Officla R�fa& u CITY OF PALM SPRINGS of Riwrsids county,Call < m o PO Box 2793 Recorder Palm Springs, CA 92263 ro a x Attn: City Clerk Fees S d w o a 0 ' (For Recorder's Use Only) U c N DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TC PARTICIPATE IN DISTRICT FOR UTILITY UNDERGROUNDING UPON NOTICE cG THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO PARTICIPATE IN DISTRICT FOR UTILITY UNDERGROUNDING UPON NOTICE ( "Declaration" ) is entered into this 23rd day of June, 1998, by and between Suitt Ventures, Inc . ("Declarant" ) , whose address is 997 E. Tahquitz Canyon Way, Palm Springs, CA 92262 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 6600 Indian Canyon Drive North, Palm Springs, California 92264, more particularly described on Exhibit "A" attached hereto and incorporated herein by reference (APN 669-091-013, 015) ("Prroperty" ) . 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 6600 Indian Canyon Drive North Public Parcel") . B. Declarant desires to obtain building permit (s) and other City approvals to remodel or modify existing structures upon the Property ("City Approval") . Section 8 . 04 . 402 of the Municipal Code of the City :requires, as a condition precedent to the approval of the City Approval, that Declarant underground the utilities abutting or transecting the Property ( "Improvements" ) . Declarant desires to defer the construction of the Improvements and, pursuant to Section 8 . 04 . 402 of the Municipal Code of the City, the Director, Department of Transportation of the Department of Public Works 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 Right of City Establish District 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 -1- improvements p ( "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 sec(. or any other procedure for the establishment of a District and/or the implementation of an assessment. 2 . 0 Enforcement. 2 . 1 Termination. No breach of this Declaration shall entitle any party to cancel, rescind or otherwise terminate this Declaration, or excuse the performance of such party' s obligation hereunder; provided that, however, this limitation shall not affect in any manner any other rights or remedies which the parties may have by reason of such breach. 2 . 2 Other 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 said violation or threatened violation. 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, and equitable servitudes 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, restrictions and reservations contained in this Declaration -2- • 32'7507 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. 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 of 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, at the following address : City: City of :Palm Springs PO Box 2743 Palm Springs, CA 92263 Attn: City Clerk With Copy to: Rutan & Tucker 611 Anton Blvd. , Ste. 1400 Costa Mesa, CA 92623-9990 Attn: David J. Aleshire, Esq. Declarant: Suitt Ventures, Inc. 997 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: Tom Suitt With Copy to : Engineering Division City of :Palm Springs P.O. Box 2743 Palm Springs, CA 92263-2743 Any notice delivered personally shall be effective upon delivery. Any notice given by mail as above 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 . -3- 32 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 . IN WITNESS WHEREOF, the undersigned have executed this Agreement pLs of the date first written. above. SuiWT ✓ GN(w)reS N! i r By: ��- Tom Suitt Its : LsX "Declarant" (DECLARANT'S SIGNATURE MUST BE NOTARIZED) ATTEST : CITY 0 GS, a icipal -corpo on By:� By: City Clerk City Mnager "City" (CITY CLERK AND MANAGER'S SIGNATURES MUST BE NOTARIZED) APPROVED AS TO //FORM: RE 0 B Ci y A ney Director, Dept. f Transportation APPROVED AS TO OWNERSHIP & LEGAL DESCRIPTION: By: I 'P`aAma ya v► NOTARY FORMS ON NEXT PAGE -4- 327507 STATE OF CALIFORNIA) SS . COUNTY OF RIVERSIDE) On l .c /G before me, � IVJ, ) It"J6 / defte personally appeared / personally known to me OR - proved to me on the basis- of satisfactory evidence to be the person whose name ( i�/are subscr bed to the within instrument and acknowledged to me that e/-she/they executed the same in his her/their authorized capacity(ies -, and that by EIf,wELwEOEKINo Lhis,�her/their signature (?s on the r:, COMM.*1048357 3 instrument the person (s', or the entit _ .^' ���:: Notary Public—CalltorNa �;;,;,,; RIVERSIDE COUNTY upon behalf of which the person ' •• My Corn'n.Expiroe FEB8.1999 acted, executed the instrument . Witness my hand and 6. fici 1 seal . i5 gnature of otary (SEAL) / STATE OF CALIFORNIA) SS . COUNTY OF RIVERSIDE) l' ! ) c z. On �/�/ before me, t_ _41,1 �. Lrt K/iJA �c,;/4� date personally appeared lr C` /• '/� J_ke c 9� and personally known to me OR-O proved 'to me -on" the basis of satisfactory evidence- to be the persons ), whose name r) isAZfee subscribed to the within instrument __arl.\ acknowledged to me that he executed the same AQ his/her heir, "�^" ( authorized ._,capacity��es.�; and that by FL4!iVE L. "V Dc KINND rl his/her%eir signature (C)= on the � Nctcry Public—Callfomla instrument the persons , or the entil=y y CFI,.�rT, COUNTY upon behalf of which the person Cs) Y Mr cc,,,,.e:are�rEB�.vt�iw9y7® acted, executed the instrument . Witness my hand and official seal . Signature of Notary (SEAL) -5- EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY That portion of the West half of Section 23, T 3 S, R 4 E, SBBM, according to an official plat of said land approved by the Surveyor General February 29, - 1856 in the County of Riverside, State of California; j BEGINNING AT A POINT on the North line of said Section 23, which lies on a line parallel to and 40.00 feet Easterly, as measured at right angles, of the West line of said Section 23; Thence North 88' 42' 28" East, along said North line of Section 23, a distance of 282.09 feet to a point lying an a line parallel to and 322.00 feet Easterly, as measured at right angles, of the West line of said Section 23; Thence South 0° 09' 05" West, along said parallel line, a distance of 264.30 feet to a point lying on the Northeasterly line of Garnet Avenue, as conveyed to the State of California by deed recorded May 9, 1922 in Book 570, Page 41 of Official Records of Riverside County, California; Thence North 76' 17' 10" West along said Northeasterly line, a distance of 262. 85 feet to a point lying on the Easterly line of Indian Avenue as conveyed to the County of Riverside by deed recorded September 6, 1966 as Instrument No. 89802 of Official Records of Riverside County, California, said point also being the beginning of a tangent curve, concave Northeasterly and having a radius of 15.00 feet; Thence Westerly, Northwesterly, and Northerly along said curve and along said Easterly line of Indian Avenue, through a central angle of 76` 26' 15" an arc length of 20.01 feet to a point lying on a line parallel to and 55.00 feet Easterly, as measured at right angles, of the West line of Said Section 23; Thence North 0' 09105" East, along said parallel line and continuing along said Easterly line of Indian Avenue, a distance of 138.19 feet; Thence North 76' 17' 10" West, parallel to said Northeasterly line of Garnet Avenue, a distance of 15.43 feet to a point lying on a line parallel to and 40.00 feet as measured at right angles, of the West line of said Section 23; Thence North 0' 09' 05" East along said parallel line, a distance of 39. 16 feet to the POINT OF BEGINNING. EXHIBIT "A" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS -6- r Cooperative Agreement Rule 20-A Underground Utility District Project EXHIBIT "D" Estimate of Project Costs Rule 20-A Underground Utility District Project Indian Avenue and Garnet Avenue Palm Springs/Garnet area Design, Construction and Inspection $2,157,500 Source of Funds: CPUC Rule 20-A 1,995,000 City/Developer agreement(SW) 62,500 JACK IN THE BOX(Restaurant) 6555 North Indian Canyon Drive (SW Corner of Garnet Avenue&Indian Ave..) APN#669-060-013 (Covenant for Undergrounding No.275939 recorded 7/6198 by Riv.Co.Recorder) City/Developer agreement(NE) 100,000 Suitt Ventures, Inc. 6600 North Indian Canyon Drive (NE Corner of Garnet Avenue&Indian Ave.) APN*669-091-013,015 (Covenant for Undergrounding No.327507 recorded 8/5/98 by Riv.Co.Recorder) Total: 2,157,500 CITY Administrative costs $ 10,000 Note: Administrative costs represent the in-kind contribution of CITY to perform administrative functions in support of PROJECT using CITY staff and CITY funds. COUNTY Administrative costs $ 10,000 Note: Administrative costs represent the in-kind contribution of COUNTY to perform administrative functions in support of PROJECT using COUNTY staff and COUNTY funds. Total Estimated Project costs: $2,177,500 sd T�YT �����/]���R C �T G�e'ler,1� C®�1 1 OF RI ♦ 1�RSW OF RI�Fq TRANSPORTATION AND LAND MANAGEMENT AGENCY Transportation Department David E $°„hart a ULAN�PGA I' t' Director of Transportation May 30, 2001 � ✓"�p�/ �y Mr. Robert L. Mohler Transportation/A.D. and Grants Manager City of Palm Springs 3200 E. Tahquitz Canyon Way P.O. Box 2743 Palm Springs, Ca. 92263-2743 Re: Cooperative Agreement Proposed Indian Avenue / Garnet Avenue Rule 20-A project Dear Mr, Mohler; Transmitted for your files are two fully executed originals of the cooperative agreement between the County of Riverside and the City of Palm Springs for the undergrounding of utilities in the Garnet area. The agreement was approved by the County's Board of Supervisors at their meeting of May 15, 2001 (agenda item no. 3.41). As previously discussed, we suggest that the City and County submit the proposed underground utility districts to the City Council and Board of Supervisors, respectively, for Public Hearing and adoption. This will place the project in readiness for implementation by the Edison Company when they renew the Rule 20-A program. I intend to finish drafting the public hearing documents and transmit a draft to you for your comments, use and reference in the near future. If you have any questions or need additional information, please contact me at your convenience at (909) 955-6785. Sincerely, Stan Dery, Technical Engineer Unit Supervisor Contracts and Utilities Unit sd attachments cc: Scott Staleyl 4080 Lemon Street, 8th Floor • Riverside, California 92501 • (909) 955-6740 RO Box 1090 • Riverside, California 92502-1090 • FAX (909) 955-6721 o,Nsy OF N, 9So� COLOTY OF RIVERSW �w TRANSPORTATION AND o/ LAND MANAGEMENT AGENCY ��y.g11p �+ q 1 y� Department p r]�1� y��py� ��TATION�E% a�d LAND MP 1L anspol tation Depal tl ent David E. Barnhart Director of TTansportalion March 1, 2001 Mr. Robert L. Mohler Transportation/A.D. and Grants 4Manager City of Palm Springs 3200 E. Tahquitz Canyon Way P.O. Box 2743 Palm Springs, CA 92263-2743 Re: Cooperative Agreement Proposed Indian Avenue/Garnet Avenue Rule 20-A project Dear Mr. Mohler: Transmitted for execution by the City of Palm Springs are five originals of the proposed Cooperative Agreement between the County of Riverside and the City of Palm Springs for the undergrounding of utilities in the Garnet area. The agreement has been prepared by the County's Transportation Department in accordance with our past communications, and has been approved by our legal counsel. Please return the original documents tome after execution by the City. I will forward two original, fully executed agreements to you after execution by the County's Board of Supervisors. As we discussed, I intend to remind the Board that given the current Edison Company financial crisis, a schedule for implementation of the undergrounding improvements cannot be estimated, and that City and County staff intend to submit the proposed underground utility districts to the City Council and Board of Supervisors, respectively, for Public Hearing and adoption. This will place the project in readiness for implementation by the Edison Company when they renew the Rule 20-A program. Thank you for your attention to this matter. If you have any questions or need additional information, please contact me at your convenience at (909) 955-6785, Sincerely, Stan Dery, Technical Engineering Unit Supervisor Contracts and Utilities Unit SD:bas attachment cc: George Johnson Scott Staley Ray Mendez, SCE .TEM%toa IYam6 4080 Lemon Street, 8th Flow • Riverside, California 92501 • (909) 955-6740 P.O. Box 1090 • Riverside, California 92502-t090 • FAX (909) 955-6721