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HomeMy WebLinkAbout03874 - EL SONORA ASSOC SETTLEMENT MO 6051 E1 Sonora Associates •Settlement Agr. - E1 Cielo Rd. Improvement Project AGREEMENT #3874 M0604l", 1,1-5-97 SETTLEMENT AGREEMENT FOR PAYMEi. v;•= --- -- EL CIELO ROAD IMPROVEMENT PROJECT COSTS AND FEES This SETTLEMENT AGREEMENT FOR PAYMENT OF EL CIELO ROAD IMPROVEMENT PROJECT COSTS AND FEES (the "Agreement") is made and entered into this /j'�day of November, 1997, by and between the CITY OF PALM SPRINGS, a California municipal corporation (the "City"), and EL SONORA ASSOCIATES, a California Limited Partnership ("El Sonora"). RECITAL_ S: 1. El Sonora is the owner of that certain real property located in the City of Palm Springs, County of Riverside, State of California, which is commonly known as 1300 El Cielo Road South and is more fully described at Exhibit "A", attached hereto and incorporated herein by this reference, and depicted at Exhibit "B", attached hereto and incorporated herein by this reference (the "Property"). 2. El Sonora began construction of new homes in the development known as the Jasmine Project which consists of 26 single-family detached one and two story residential lots upon the Property. 3. On May 27, 1994, the City completed improvements to the ease side of El Cielo Road, which abuts the Jasmine Project, pursuant to Capital Project No. 93-44. 4. Pursuant to the Conditions of Approval for Tentative Tract Map No. 26333 ("TTM 26333"), at item no. 8, El Sonora is to reimburse the City one-half (1/2) of the City's costs of construction as set forth at item nos. 2 through 7 and 38 and 41 of TTM 26333, which include costs for road improvements on the east side of El Cielo Road from the centerline intersection of Sonora Road to the Jasmine Project north property line ("El Cielo Improvements"). 5. The City's costs of construction on the El Cielo Improvements attributable to El Sonora totalled fifty-five thousand seven hundred fifty-six dollars ($55,756.00). El Sonora has made two payments to the City of eight thousand five hundred eighty dollars ($8,580.00) each, the last payment of which was received by City on August 1, 1996. A balance due the City remains for thirty-eight thousand five hundred ninety-six dollars ($38,596.00) ('Balance"). El Sonora has not paid any other portions of the Balance to the City. 6. The general partner of El Sonora, Dan B. Starkey ("Starkey"), has acknowledged in his July 3, 1997 correspondence to and conversations with the City's counsel that El Sonora is liable to the City for the Balance. 7. El Sonora in its July 3, 1997 correspondence to the City's counsel informed the City that immediate payment of the entire Balance would be impossible or would force El Sonora to file for bankruptcy protection. 8. El Sonora is continuing the construction of homes in the Jasmine Project, and Starkey agreed that El Sonora will be able to make periodic payments of the Balance to the City upon close of escrow of each of eighteen (18) remaining homes in the Jasmine Project. The eighteen (18) remaining homes are described at Exhibit "C" and depicted as those lots notated by an "X" on the diagram at Exhibit "D" (the "Jasmine Properties"). 627/014084-000113093020.1 all/03/97 9. City and El Sonora desire; to enter into this Agreement to arrange a schedule for El Sonora's payment of the Balance, as provided at Section 1 herein, and avoid litigation for the payment of the Balance. 10. El Sonora hereby acknowledges that the above recitals are true and correct, and admits and waives any right to challenge its obligations, as set forth in this Agreement, in the event any litigation arises regarding the subject matter of this Agreement. COVENANTS: Based on the foregoing recitals, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: SECTION 1. EI, SONORA'S OBLIGATIONS. 1.1 Upon the sale of each of the eighteen (18) Jasmine Properties being developed or to be developed by El Sonora, as described at Exhibit "A", El Sonora shall pay to the City two thousand one hundred forty-four dollars and twenty-two cents ($2,144.22)upon close of escrow on each property, for the total Balance of thirty eight thousand five hundred and ninety six dollars ($38,596.00), with payment of the entire Balance to occur no later than December 1, 1998, regardless of whether any of the Jasmine Properties remain unsold. El Sonora agrees that any portion of the Balance remaining unpaid by December 1, 1998, after timely payment of the installments pursuant to this Paragraph, shall be paid immediately by December 1, 1998. 1.2 Concurrent with the execution of this Agreement, El Sonora shall execute a Note for thirty-eight thousand five hundred ninety-six dollars ($38,596.00) (the "Note") secured by a deed of trust with assignment of rents to a Lot 12 of the Property and Addendum to the Deed of Trust (collectively referred to as the "Deed") to secure the obligations in this Agreement. A copy of the Note and Deed are attached hereto as Exhibits "E" and "F," respectively. 1.3 Within five (5) days of the date of this Agreement, El Sonora shall deliver to the City a financial statement showing El Sonora's assets, including receivables and liabilities which confirm that El Sonora would face bankruptcy if forced to pay the entire Balance immediately. 1.4 El Sonora warrants that the Property secured by the Deed shall not be transferred by El Sonora until the entire Balance is paid to the City. 1.5 During the term of this Agreement, El Sonora shall not, directly or indirectly, voluntarily, involuntarily or by operation of law, sell, assign, transfer, dispose of, option to sell or suffer to exist any other lien against all or any portion of Lot 12 of the Property, secured by the Deed, or any interest therein, then, or at any time thereafter, without prior written approval by the City. 1.6 Concurrent with the execution of this Agreement, El Sonora shall pay to the City, by certified or cashier's check drawn to the order of the City of Palm Springs, the sum of two thousand dollars ($2,000.00) as reimbursement for the City's expenses and legal fees and costs for its attempts to collect the balance due to the City. 1.7 The City and El Sonora desire to informally settle El Sonora's obligation to pay the entire Balance plus the City's expenses and legal fees and costs incurred in collecting the Balance on the terms set forth in this Agreement. 6271014084-000113093020.1 a10/20/97 -2- SECTION 2. CITY'S OBLIGATIONS. 2.1 In consideration of El Sonora's agreement to informally settle the obligation to pay the entire Balance and pay the City's expenses and legal fees and costs incurred in collecting the Balance, City has agreed to forebear and postpone the prosecution of all claims and causes of action against El Sonora for payment of the Balance while El Sonora is performing pursuant to the terms of this Agreement. 2.2 Upon the payment of the last installment by El Sonora to the City, the City shall furnish El Sonora with documentation evidencing satisfaction of the Balance, and reconvey the Note and Deed. 2.3 The Balance, or any portion thereof, shall continue to accrue interest until paid in full. City, however, will forebear its entitlement to such accrued interest on the Balance in consideration for the full and satisfactory performance by El Sonora of the terms of this Agreement. The City reserves the right to seek all accrued interest upon El Sonora's breach of this Agreement as defined at Section 3 below. SECTION 3. DEFAULT AND REMEDIES. 3.1 If El Sonora neglects, refuses, or fails to make any installment within the time periods required at Section 1.1, pay the entire remaining Balance by December 1, 1998, or otherwise satisfactorily perform any of the provisions of this Agreement, El Sonora shall be in default. 3.2 In the event of a default and after written notice by City of the default and El Sonora's failure to completely cure the default within thirty (30) days of the date of such notice, City may pursue the following remedies: a. Acceleration of the loan balance, evidenced by the Note. b. Collection of interest accrued on the Balance from August 1, 1996, the last date in which El Sonora paid any portion of its share of the El Cielo Improvements. C. Withhold or revoke any building permits, occupancy permits, certificate of occupancy, business licenses and similar matters or approvals pertaining to the Property or any part thereof or interests therein. d. The foregoing provisions of this Section 3 are not exclusive but are cumulative and in addition to all other rights and remedies available under the law and the exercise of one or more rights and remedies shall not preclude the exercise, at the same or different times, of any other rights or remedies for the same default or any other default. SECTION 4, MISCELLANEOUS. 4.1 Compliance With Laws. All actions taken pursuant to this Agreement shall be provided in accordance with all federal, state, and local laws, ordinances and regulations including, without limitation, all applicable Palm Springs Municipal Code provisions. Furthermore, each and every provision required by law to be inserted into this Agreement shall be deemed to be inserted, and this Agreement shall be read and enforced as though they were included. 4.2 Attorneys' Fees. If any party to this Agreement is required to initiate or defend any action to enforce the provisions of or remedy the breach of this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to recover its reasonable attorneys' fees, both at trial and on any appeal and in any 627/014084-0001/3093020.1 .10/19/97 -3- administrative proceeding. Attorneys' fees shall include reasonable costs for investigating such action, conducting discovery, and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to completion. 4.3 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party shall impair such right or remedy or be construed as a waiver. The consent or waiver of one act or omission shall not be deemed to constitute a consent or waiver of any subsequent act or omission. Any waiver by any party of any default must be in writing. 4.4 Integration: Amendment. This Agreement contains all of the agreements of the parties and cannot be modified, terminated or rescinded, in whole or in part, except by an instrument in writing signed by all parties hereto. No prior oral or written understanding shall be of any force with respect to those matters covered in this Agreement. 4.5 Notice. Any notice to be given under this Agreement shall be in writing and given by personal delivery or by depositing the same in the United States Mail, certified or registered, postage prepaid, to the addresses set forth below, or to such other address as a party may designate from time to time: City: City of Palm Springs Attention: Nick Singer 3200 E. Tahquitz Canyon Way Palm Springs, California 92263 With a Copy to: David J. Aleshire, Esq. Rutzm & Tucker 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626 El Sonora: The Starkey Company 3002 Dow Avenue, Suite 142 Tustin, California 92680 Attn: Dan B. Starkey Notices personally delivered shall be effective upon delivery. Notices delivered by mail, as provided above, shall be effective forty-eight (48) hours after deposit in the mail. If the effective date falls on a holiday or weekend, the effective date shall be the next business day following such holiday or weekend. 4.6 Term. This Agreement shall continue in full force and effect until the last installment of the Balance is paid to the City. 4.7 Interpretation and Enforcement Governing Law. This Agreement shall be construed and interpreted both as to validity and performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted and maintained in the Superior Court of the County of Orange, State of California, or in any other appropriate court with jurisdiction in such county, and El Sonora agrees to submit to the personal jurisdiction of such court. 4.8 Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining 6271014084-0001/3093020.1 a10119197 -4- provisions of the Agreement shall continue in full force and effect, unless and to the extent that the rights and obligations of any party would be materially altered or abridged by such interpretation. 4.9 Partnership Authority. The person executing this Agreement on behalf of El Sonora warrants that such person has been duly authorized to execute and deliver this Agreement on behalf of El Sonora, by so executing; this Agreement, such party is formally bound to the provisions of this Agreement, and the provisions of this Agreement do not violate any provision of any other agreement to which such party is bound. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first written above. "EL SONORA" a California Limited Partnership ✓��{FCC/ /.%,�.� / �,. DAN B. 9-TARKEY ATTEST: "CITY" CITY OF A4 S S, a C ' ornia municipal co tion By: City Clerk City Man ger for the dty of Palm Springs APPROVED AS TO FORM laAPPRte C.V ..F v 627/014084-0001/3093020.1 a10/19/97 -5- EXHIBIT "A" LEGAL DESCRIPTION Being lots 1 through 26 of that certain map entitled "Tract No. 26333, being a subdivision of portions of Lot 1, Tract No. 27412, M.B. 237, Pages 100 & 101 inclusive, official records of Riverside County, Section 19, Township 4 South, Range 5 East, San Bernardino Base and Meridian" filed July 25, 1995, in Tract Map Book 254, Pages 52 to 55 inclusive, Records of Riverside County. 627/014084-0001/3093020.1 a10/19/97 EXHIBIT "A" i T.AHQUITZ CREEK GOLF COURSE 1 7 g ` 9 J PLAN 2 PLAN 3 P1 A\ 3 R{YEIiF RR'F15 x 10 21 JA S NiNl l ! I LAN a E -,% 20 P .4 L Al S P X ( X G .S FPLAN I \� AN 3 � 6 �G: t. 11 PLAN is �✓ PPLANz PL AN 1 // "R FEI E%Sr O I 5 !jf( . � I Nx....•_f II 23 PLAN 4 2 19 EjLA RMI$F13[A PLAN V I 18 o 13 24 PLAN , � PLAN CJ ]cu qr GOLF 14 1 a COURSE PLAN 2 =t COURSE PLAN 3 yin REVERS£/3 GR ✓�' i t �,. 2 G7S P{Aeu[2 PLAN 1 15 26 PLAN 2 _i r� X) C]_ u7 SONORA ROAD EXHIBIT "C" LEGAL DESCRIPTION Being lots 1, 2, 7, 8, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, and 26 of that certain map entitled "Tract No. 26333, being a subdivision of portions of Lot 1, Tract No. 27412, M.B. 237, Pages 100 & 101 inclusive, official records of Riverside County, Section 19, Township 4 South, Range 5 East, San Bernardino Base and Meridian" filed July 25, 1995, in Tract Map Book 254, Pages 52 to 55 inclusive, Records of Riverside County. 627/014084-0001/3093020.1 a10119/97 EXHIBIT "C" SECURED PROMISSORY NOTE $38, 596. 00 Riverside County, California November-3 , 1997 FOR VALUE RECEIVED, the undersigned, EL SONORA ASSOCIATES, a California Limited Partnership ("Maker") promises to pay to the order of the City of Palm Springs, a California municipal corporation ("Payee") , at a place designated by Payee, in lawful money of the United States, the sum of Thirty Eight Thousand Five Hundred Ninety Six Dollars ($38, 596. 00) plus accrued interest on the unpaid principal balance at the rate of ten percent (10%) per annum, or, if less, the maximum rate permitted by law, such interest to accrue from the date hereof. Such principal and interest shall be due and payable pursuant to the terms set forth in the Settlement Agreement for the Payment of E1 Cielo Road Improvement Project Costs and Fees ("El Cielo Road Agreement") commencing on the date hereof, until paid in full. This Note is secured by a Deed of Trust With Assignment of Rents of even date herewith ("Deed of Trust") , encumbering certain real property located in the County of Riverside, State of California, more particularly described therein ("Collateral") , the El Cielo Road Agreement, and any other instruments, now or hereafter executed by Maker in favor of Payee, which in any manner constitute additional security for this Note. The entire outstanding principal balance under this Note shall become immediately due and payable without notice or demand upon the occurrence at any time of any of the events listed below: (1) Should the Maker default in the payment of principal or interest when due and payable hereunder or in the performance or observance of the terms, covenants, and conditions set forth herein, in the E1 Cielo Road Agreement, or in any other instrument securing this Note to be performed and observed by the Maker, and any such default shall continue for a period of ten (10) days after the date of such default. (2) Should the Maker make an assignment for the benefit of creditors, or if a :receiver of Maker's property shall be appointed, or if a :petition in bankruptcy or for the reorganization under any Chapter of any Federal or State Bankruptcy Act or other similar proceeding under the law for relief of debtors shall be filed by or against Maker, or if any lien of attachment, execution, lien, or claim of lien be placed against the Collateral and is not cleared from the record or reasonably bonded against within thirty (30) days after it has been filed against the Collateral. (3) Should Maker sell, contract to sell, transfer, assign, further encumber, or alienate the Collateral, or any 627/014094-0001/3099381.1 a11/03197 title or any interest therein in any manner, whether voluntarily or involuntarily, unless such transfer occurs pursuant to the terms of the E1 Cielo Agreement or the Deed of Trust. If this Note is not paid when due, whether at maturity or by acceleration, Maker promises to pay all costs of collection, including, without limitation, reasonable attorneys' fees and disbursements. Presentment, demand, protest, notice of protest, dishonor and nonpayment of this Note and all notices of every kind are hereby waived. From and after the maturity of this Note, which shall occur if Maker sells, contracts to sell, transfers, assigns, further encumbers, or alienates any portion of the Property, except pursuant to the terms of the El Cielo Road Agreement or Deed of Trust, the entire principal remaining unpaid hereunder, shall automatically bear an annual interest rate equal to ten percent (10%) per annum. Maker shall have the right to prepay all or any part of any balance due under this Note,, with interest accrued to the date of payment, at any time without: premium or penalty. No delay or omission on the part of the Payee hereof in exercising any right hereunder shall operate as a waiver of such right or of any other right under this Note. This Note is to be governed by and construed in accordance with the internal laws of the State of California and the exclusive forum for the determination of any action relating to the validity and enforceability hereof shall be either an appropriate court of said State or that court of the United States which includes said State within its territorial. jurisdiction. EL SONORA ASSOCIATES, a California Limited Partnership b-an B z Starkey, president "Maker" 627/014084-0001/3099381.1 a10/19/97 -2- Order Nu. Escrow No. Loan No. L�' WHEN RECORDED M TO: RECEIVED FOR RECORD AT 8:00 O'CLOCK CITY CLERK �� �99a CITY OF PALM SPRINGS i P.O. BOX 2743 Recorded PALM SPRINGS, CA 92263 ofRl"WideCountyl ercds � nl Rlwnkk County,CMMnrna Recorder SPACE ABOVE THIS LINE FOR RECORDER'S USE F DEED OF TRUST WITH ASSIGNMENT OF RENTS This DEED OF TRUST, made this -3 day of November, 1997, between EL SONORA ASSOCIATES, a California Limited Partnership, herein called TRUSTOR, TITLE INSURANCE COMPANY, a California corporation, herein called TRUSTEE, and the CITY OF PALM SPRINGS,a California municipal corporation, herein called BENEFICIARY, WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that property in the City of Palm Springs, County of Riverside, State of California, more-particularly described on Exhibit "A" attached hereto and incorporated herein by this reference, together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits for the purpose of securing (1) payment of the sum of Thirty Eight Thousand Five Hundred Ninety Six Dollars (838,596.00) according to the terms of a promissory note or notes of even date herewith made by Truster, payable to order of Beneficiary, and extensions or renewals thereof; (2) the performance of each agreement of Truster incorporated by reference or contained herein; and (3) payment of additional sums and interest thereon which may hereafter be loaned to Truster, or its successors or assigns, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust. To protect the security of this Deed of Trust, and with respect to the property above described, Truster expressly makes each and all of the agreements, and adopts and agrees to perform and be bound by each and all of the terms and provisions set forth in subdivision A, and it is mutually agreed that each and all of the terms and provisions set forth in subdivision B of the fictitious deed of trust recorded in Orange County August 17, 1964, and in all other counties August 18, 1964, in the book and at the page of Official Records in the office of the county recorder of the county where said property is located, noted below opposite the name of such county, namely: COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE Alameda 1288 556 Kinas 858 713 Placer 1028 379 Sierra 38 187 Alpine 3 130-31 Lake 437 110 Pamas 166 1307 Siskiyou 506 762 Amador 133 438 Lassen 192 367 Riverside 3778 347 Solano 1287 621 Butte 1330 513 Los Angeles T-387B 874 Sacramento 5039 124 Sonoma 2067 427 Calaveras 185 338 Madera 911 136 San Benito 300 405 Stanislaus 1970 56 Calms 323 391 Marin 1849 122 San Bernardino 6213 768 Sutter 665 585 Contra Costa 4684 1 Manposa 90 453 San Francisco A-804 596 Tehama 457 183 Del Norte 101 549 Mendocino 667 99 San Joaquin 2855 283 Trinity 108 596 El Dorado 704 635 Merced 1660 753 San Luis Obispo 1311 137 Tulare 2630 108 Fresno 5052 623 Madre 191 93 San Mateo 4778 175 Tuolumne 177 160 Glenn 469 76 Mono 69 302 Santa Barbara 2065 Bel Ventura 2607 237 Humboldt 601 83 Monterey 367 239 Santa Clara 6626 664 Y.I. 769 16 Imperial 1189 701 Napa 704 742 Santa Cruz 1638 607 Yuba 398 693 6271014084-0001/3097689. all/03/97 Inyo 166 672 Nevada 363 94 Shasta B00 633 Kern 3756 690 Orange 7182 18 San Diego SERIES 5 Book 1964, Page 149774 shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and provisions contained in said subdivisions A and B (identical in all counties, and printed on pages 3 and 4 hereof) are by the within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as if set forth at length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge therefor does not exceed the maximum allowed by law. The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to it at its address hereinbefore set forth. SEE THE ADDENDUM TO DEED OF TRUST WITH ASSIGNMENT OF RENTS ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE. Signature of Truster } EL SONORA ASSOCIATES, a California Limited Partnershiyd. STATE OF CALIFORNIA } COUNTY OF RIVERSIDE By: Dan B. Starkey, Partner J/ (1Lie ere.for official notarial.M) 627/014084-000113097689. a10/19/97 0 EXHIBIT "A" • l' 2 7 ` 6 9 TO THE DEED OF TRUST WITH ASSIGNMENT OF RENTS The property secured by this Deed of Trust is described as follows: Being lot 12 of that certain map entitled "Tract No. 26333, being a subdivision of portions of Lot 1, Tract No. 27412, M.B. 237, Pages 100 & 101 inclusive, official records of Riverside County, Section 19, Township 4 South, Range 5 East, San Bernardino Base and Meridian" filed July 25, 1995, in Tract Map Book 254, Pages 52 to 55 inclusive, Records of Riverside County. 627/014084-0001/3097689. a10/19/97 t ?I269 CALIFORNIA ALL-PURPORACKNOWLEDGM ENT ' � S �Y i9 (; 11 4 � C� State of Ric in 1 r�_ k; County ofw r On 11 99 ( before me, (cu,- tig hrr, a 1J Citciv l ( ,II C,. 11 IMF) Dale f Ttle Neme end of Officer(e.g Cdre Doe,Notary Pr to �I personally appeared iq It -• ��Zl'8'��� U 1jl Nrel of Sig r(s) �I -Fl personal1y-knowp,44a-roe-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 l; t� and acknowledged to me that he/she/they executed the >>I same in his/her/their authorized capacity(ies), and that byI his/her/their signature(s) on the instrument the person(s), �rl �I or the entity upon behalf of which the person(s) acted, executed the instrument. )I MARYAM SEDADI >I f(. .. '�. Com:nls.^,bn#`10?6763 {, WITNESS m hand and official seal. 6� -d'� °�� Noicry P.__,: --Call � y !) <� Los Ang3los County 01 My Comm.Expires May 1,200D <. hI Signature of No1ery Public �S �1 �( OPTIOfNAL ti Though-the information below 1s not required by law, it may prove valueb e to persons relying on the document and could prevent e>I fraudulent removal and reattachment of this form to another document. '�I Description of-Attached Document �I fY \ qll Title or Type of Document �i Document Date: . Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) \ >' Signer's Name: Si rler's Name: �I ❑ Individual ❑ Individual ❑ Corporate Officer ❑ CID rporate fflcer Cj Title(s): Title(s): ❑ Partner—❑ Limited ❑ General [I Partner—ElLim9ted ❑ General b�l ❑ Attorney-in-Fact ❑ Attorney-in-Fact (�I 'I ❑ Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator ; <<� ❑ Other: Top of thumb here ❑ Other: Top of thumb here j �l hl 1< I Signer Is Representing: Signer Is Representing: �j a' c: c , I t�l FZ�,.C:'�-VG„`'>Vu- C.L.`.� „s�Z,V�=V' C.LC.����- C. J�t=�; -✓,..��..._/r �-.,-�%=-' ✓v .C.�,V'.n-_.(,..C%"C':.r„-C';:����C(.t=/..'✓✓ v"S,`� ©1995 National Notary Association•8236 Rent Ave,PO Box 7184•Canoga Park,CA 91309-7184 Prod Ne.5907 Reorder:Call Tall-Free 1-600-876-6827 '` ' ". r' � w�.rr << % 7269 ADDENDUM TO DEED OF TRUST THIS ADDENDUM TO DEED OF TRUST is attached to and incorporated by reference in that certain Deed of Trust with Assignment of Rents dated November ) , 1997, executed by EL SONORA ASSOCIATES, a California Limited Partnership ("Trustor") , naming TITLE INSURANCE COMPANY, as Trustee, in favor of the City of Palm Springs, a California municipal corporation ("Beneficiary") . Said deed of trust is hereby modified/supplemented (and as modified/supplemented is hereinafter referred to as "this Deed of Trust") in the following particulars only: 1. Property. The "Property" granted in trust by this Deed of Trust includes, in addition to the real property described in Exhibit "A" (the "Land") , all of the following, all of which Trustor hereby grants to Trustee in trust, 1. 1 The Improvements. (i) All the buildings, structures and improvements of every nature whatsoever now or hereafter situated on the Land; and (ii) all fixtures, machinery, appliances, equipment, furniture and personal property of every nature whatsoever now or hereafter owned by Trustor and located in or on, or attached to, and used, or intended to be used, in connection with the operation of the Land or the buildings, structures or other improvements located on the Land, or in connection with any construction being conducted or which may be conducted on the Land, and all extensions, additions, improvements, betterments, renewals, substitutions, and replacements to any of the foregoing, and all of the right, title and interest of Trustor in and to any such personal. property or fixtures, which, to the fullest extent permitted by law, shall be conclusively deemed fixtures and a part of the real property encumbered hereby (all of the property listed in clauses (i) and (ii) above are hereinafter called the "Improvements") . 1.2 Easements. All easements, rights-of-way, gores of land, streets, ways, alleys, passages, sewer rights, water courses, water rights, air rights, development rights and powers and all appurtenances whatsoever, in any way belonging, relating or appertaining to any of the Land and/or Improvements or any part thereof, or which hereafter shall in any way belong, relate or be appurtenant thereto, whether now owned or hereafter acquired by Trustor (collectively the "Easements") . 1.3 Other. All the estate, right, title and interest of Trustor of, in and to all (i) judgments, insurance proceeds, awards of damages and settlements hereafter made resulting from condemnation proceedings or the taking of Land, Improvements and/or Easements or any part thereof under the power of eminent domain, or for any damage (whether caused by such taking or otherwise) to the Land, Improvements and/or Easements or any part thereof, or to any rights appurtenant thereto, and all proceeds of any sales or other dispositions of the Land, Improvements and/or Easements or any part thereof; and subject to the provisions of this Deed of Trust, the Beneficiary is hereby authorized to collect and receive said awards and proceeds and to give proper acquittances therefor, and to apply the same toward the payment: of the indebtedness and other sums secured hereby, notwithstanding the fact that the amount owing thereon may not then be due and payable; and (ii) all accounts, accounts receivable, contract rights and contracts, including, without limitation, agreements and contracts for the operation, construction, renovation, maintenance, leasing or sale of the mortgaged property (including, without limitation, equipment leases approved by the Beneficiary and employment and/or service contracts) , general intangibles, actions and rights in action, including, without limitation, all rights to insurance proceeds and unearned premiums arising from or relating to the Land, Improvements and/or Easement:. or any part thereof; and (iii) leases of furniture, furnishings or equipment located on and/or used in the operation, construction, renovation, management, sale or 627/014084-0001/3097705.1 all/03/97 27269 maintenance of the Land, Improvements and/or Easements or any part thereof; and (iv) permits, licenses, governmental approvals and authorizations relating to the construction or reconstruction of the Land, Improvements and/or Easements or any part thereof and the use and operation thereof; and (v) other agreements providing for materials, labor, architectural services or other similar services in connection with the construction or reconstruction of the Land, Improvements and/or Easements or any part thereof; and (vi) extensions, renewals or modifications of the above and any guaranties of the obligations owed Trustor thereunder; and (vii) warranties and guaranties now or hereafter received by, or in favor of, Trustor regarding materials, equipment and other items of personal property supplied to, and services performed in respect to the Land, Improvements and/or Easements or any part thereof; and (viii) refunds or real property taxes or other taxes or assessments which may now or hereafter be payable to Trustor as a result of any contest, protest, certiorari proceeding or otherwise. 1.4 Leases. All right, title and interest of Trustor in and to any and all leaser now or hereafter on or affecting the Land, Improvements and/or Easements and/or the items and interest described in Paragraph 1 (c) above or any part thereof, together with all modifications, renewals and extensions thereof and any guaranties, if any, of the lessee's obligations under said leases and future leases, and together with all security therefor and all monies payable thereunder, and all books and records which contain payments made under the leases and all security therefor, subject, however, to the conditional permission hereinabove given to Trustor to collect the rents, income, lease termination, cancellation and/or surrender fees and other benefits arising under any such lease. The Beneficiary shall have the right, at any time and from time to time, to notify any lessee of the rights of the Beneficiary as provided by this Paragraph 1 (d) . 1. 5 Rents . Income and Profits. All rents, income, profits, lease termination, cancellation and/or surrender fees and other benefits to which Trustor may now or hereafter be entitled from the Land, Improvements and/or Easements and/or other items and interests described in Paragraphs 1 (c) and 1 (d) above or any part thereof to be applied against the indebtedness and other sums secured hereby. 2 . Obligations Secured. The grants, assignments and transfers made herein are given for the purpose of securing full and timely observance and performance by Trustor of its obligations under this Settlement Agreement for Payment of El Cielo Road Improvement Costs and Fees ("E1 Cielo Road Agreement" or "Secured Obligations") . 3 . Acceleration Upon Sale or Encumbrance. Trustor understands that in making this loan, Beneficiary is relying to a material extent upon the business expertise and net worth of Trustor and upon the continuing interest which Trustor has in the Property described herein. Accordingly, in the event Trustor shall, directly or indirectly, voluntarily, involuntarily or by operation of law, sell, assign, transfer, dispose of, hypothecate, further encumber, enter into option to sell or lease with option to sell or agree to sell, assign, transfer, dispose of, further encumber, enter into option to sell or lease with option to sell or suffer to exist any other lien against all or any portion of the Property, or any interest therein, then, or at any time thereafter, Beneficiary, at its sole option and in its sole and absolute discretion, may, by written notice to Trustor, declare all obligations secured hereby immediately due and payable, except to the extent that such acceleration and in such particular circumstances where exercise of such a right by Beneficiary is prohibited by law. The provisions hereof shall prevail notwithstanding any contrary provisions in any note or other instrument which evidences the obligations hereby secured. 627/014084-0001/3097705.1 a10/19/97 -2- L;, 27269 If Trustor is a general or limited partnership, a cumulative transfer, assignment, pledge or conveyance of the partnership interests in Trustor of more than twenty-five percent (25%) or, if Trustor is a limited partnership, transfer, assignment, pledge or conveyance of any interest of the general partner(s) of Trustor, shall be deemed a transfer in violation of this provision. If Trustor is a corporation, a cumulative transfer, assignment, pledge or conveyance of the corporate shares in Trustor of more than twenty-five percent (25%) shall be deemed a transfer in violation of this provision. Trustor shall notify Beneficiary promptly in writing of any transaction or event which may give rise to a right of acceleration hereunder. In addition to other damages and costs resulting from Trustor's breach of Trustor's obligations under this paragraph, Trustor acknowledges that failure to give such notice may damage Beneficiary in an amount equal to not less than the difference between the interest payable on the obligations hereby secured and the interest which Beneficiary could obtain on said sum on the date when the event of acceleration occurred. Trustor shall pay to Beneficiary all damages Beneficiary sustains by reason of the breach of the covenant of notice set forth herein. The foregoing options may be exercised at any time after the occurrence of any such event and the acceptance of one or more installments from any person thereafter shall not constitute a waiver of Beneficiary's option. Beneficiary's approval of any sale, assignment, transfer, disposition, encumbrance or other lien or failure to exercise said option with respect thereto shall not be construed as a waiver of the provisions hereof with regard to any subsequent transaction. 4. Receiver. In addition to any and all other remedies of Beneficiary set forth under this Deed of Trust or permitted at law or in equity, if a default or event of default under this Deed of Trust shall have occurred, Beneficiary, to the extent permitted by law and without regard to the value, adequacy or occupancy of the security for the Note and other sums secured hereby, shall be entitled as a matter of right. if it so elects to the appointment of a receiver to enter upon and take possession of the Property and to collect all rents, income and other benefits thereof and apply the same as the court may direct, and such receiver may be appointed by any court of competent jurisdiction by ex parte application and without notice, notice of hearing being hereby expressly waived. The expenses, including receiver's fees, attorneys' fees, costs and agent's compensation, incurred pursuant to the power herein contained shall be secured by this Deed of Trust. 5. Assignment of :Rents. Trustor absolutely and unconditionally hereby assigns, transfers, conveys, and sets over to Beneficiary all the rents, royalties, issues, profits, revenue, income and other benefits of the Property arising from the use or enjoyment of all or any portion thereof or from any lease or agreement pertaining thereto (collectively the "Rents") ; provided, however, prior to any default by Trustor in the payment, observance, performance and discharge of any condition, obligation, covenant or agreement of Trustor contained herein, Trustor shall have the right as the agent and fiduciary representative of Beneficiary for collection and distribution purposes only, to collect and receive the Rents as they become due and payable to be applied to Trustor to the payment of the principal and interest and all other sums due or payable: on the Note and to the payment of all other sums payable under this Deed of Trust and, thereafter, so long as no default as aforesaid has occurred, the balance shall be distributed to the account of Trustor. Upon any such default, Beneficiary may, at any time without notice, either in person, by agent or by a receiver to be appointed by a court and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of the Property or any part thereof, in its own name or in the name of Trustor, sue for or otherwise collect the Rents, including those past due and unpaid 627/014084-0001/3097705.1 a10/19/97 -3- L27269 and apply the same, less costs and expenses of operation and collection, including reasonable attorneys' fees and expenses, the payment of the principal and interest and all other sums due or payable on the Note and to the payment of all other sums payable under this Deed of Trust and in such order as Beneficiary may determine. The entering upon and taking possession of the Property, the collection of the Rents and the application thereof shall not cure or waive any default or notice or default hereunder or invalidate any act done pursuant to such notice. Trustor and Beneficiary agree that it is intended that this assignment is absolute and not for security purposes. 6. Non-Monetary Defaults. Trustor specifically acknowledges that certain non-monetary defaults may occur under this Deed of Trust and in such event, Beneficiary and/or Trustee shall have the right to commence foreclosure proceedings based solely upon such non-monetary defaults. 7 . Withholding. Notwithstanding anything to the contrary contained in this Deed of Trust, any purchaser at the sale (including Beneficiary) shall have the right to withhold such funds as required by the Internal Revenue Code of 1986 (the "Code") (26 U. S.C. §§ 1445, 7701) unless prior to said sale, Trustor has delivered to Trustee an affidavit directed to the buyer at said sale, in a form and substance as required by the Code executed by Trustor under penalty of perjury, which contains the following: (i) name of Trustor; (ii) Trustor's U. S. taxpayer identification number; (iii) business address of Trustor; (iv) a statement that Trustor is not a "foreign person" within the meaning of Code Sections 1445 and 7701, that is, Trustor is not a non-resident alien, foreign corporation, foreign partnership, foreign trust or foreign estate as those terms are defined in the Code and regulations promulgated thereunder; and (v) a statement of indemnification by Trustor to the buyer and buyer's agents wherein Trustor agrees to indemnify and hold harmless buyer and buyer's agents from and against any and all loss, liability, costs, damages, claims or causes of action which may arise or be incurred by buyer or buyer's agents by reason of any failure of any representation or warranty made to be true and correct in all respects, including but not limited to any liability for failure to withhold any amount required under the Code in the event of transfer of the Property. Trustee shall deliver said Affidavit to the buyer at the sale concurrently with the deed referenced above. 8 . Miscellaneous. 8. 1 Severability. If any provision of this Deed of Trust or the application hereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of said Deed of Trust and the application of such provisions to other persons or circumstances shall not be effective thereby and shall be enforced to the extent permitted by law. 8. 2 Attorney's Fees. Should it be necessary for any party to commence an action at law or in equity against the other to enforce the terms of any provision of this Deed of Trust, the prevailing party shall have a right to judgment against the losing party for reasonable attorney's fees and costs as set by the court. In the event of judicial or non-judicial foreclosure of this Deed of Trust, Beneficiary shall be entitled to recover its reasonable attorneys fees and costs, which shall be deemed secured by this Deed of Trust, from proceeds of the sale and/or as a condition to reinstatement of this Deed of Trust. 8 . 3 Conflict. In the event of any conflict between the terms of this Addendum to Deed of Trust and the Deed of Trust to which this Addendum is attached, the terms of this Addendum shall control. 627/014084-0001/3097705.1 a10/19/97 -4- , 2 � c6 � IN WITNESS WHEREOF, Trustor and Beneficiary have executed this Addendum to Deed of Trust as of the day and year first above written. EL SONORA ASSOCIATES, a Califo is Limit d Partnership Dan-B. Starkey, ,President "Trus//tor" 6271014094-0001/3097705.1 a10119197 -5— �,. 27269 EXHIBIT "A" LEGAL DES(:RIPTION OF PROPERTY Being lot 12 of that certain map entitled "Tract No. 26333, being a subdivision of portions of Lot 1, Tract No. 27412 , M.B. 237, Pages 100 & 101 inclusive, official records of Riverside County, Section 19, Township 4 South, Range 5 East, San Bernardino Base and Meridian" filed July 25, 1995, in Tract Map Book 254, Pages 52 to 55 inclusive, Records of Riverside County. EXHIBIT "A" TO ADDENDUM TO DEED OF TRUST 6271014084-000113097705.1 a10/19/97 RUTAN & TUCKER, LLP ATTORNEYS AT LAW A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 611 ANTON BOULEVARD, SUITE 1400 N NFRCY ON COSTA MESA, CALIFORNIA 92626-1990 - AGG nl NICRIK D LL DIRECT ALL MAIL TO: P O BOX 1950IF SKI RRE G LL �N COSTA ME5A, CALIFORNIA 9262E-1950 ' ARLENE POSE TELEPHONE (714) 641-5100 FACSIMILE 17141 546-90aC _ N �A I 9 "INTERNET www.rutan corn TERENCE GALLAGHER O INSHORT E KING COBRA DUNN E y N 11-0-STxI AN L ANN PBee IT xGDGEP HOWELL -o5EP .AMIGA A.FORSYTH HAND VAN LISTED jE HEN. C INSUNG DAVENPORT III June 18, 1999 DAVID J GARIBALDI, III Mr. Nick Singer City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, California 92262 Re: Settlement Agreement for Payment of El Cielo Road Improvement Costs and Fees Dear Nick: Enclosed please find a check for $20,000 (Check No. 1102) from the principal of E1 Sonora for payment of the El Cielo Road Improvements Costs and Fees in connection with the Jasmine project. Also enclosed is an acknowledgment of the Settlement reached between the City and E1 Sonora for payment of the outstanding costs and fees pursuant to the Settlement Agreement. Please do not hesitate to contact me if you have any questions. Sincerely, RUTAN & TUCKER, LLP 1 Fred Galante -- FG/sb cc: David J. Aleshire, Esq. Robert Parkins 290/014084-0001/3272273. a06/18/99 ,6-senazo 1102 MIKE SULLIVAN-EL SONNORA 10834 W WHITTIER (562) 695-0711 WHITTIER, CA 90606 DATE d�,G' A PAY TO THE (i (r7'7. C r ?4 L�-'Y4. J P�, j 6S, $ 7,4 E' OROEF T // U J 5 l � —m -7 U�Bank of America W,Nngton Center Wanch 0490 1,4 11210 Waehmgton Eaulevard WhM1uec0A90606 (310) 666-1446 MEMO 1�: 12 200066 0: 110 21,(049061t1 1007911, {,arc City of Palm Spring Office of the City Manager 3200 Tahgwa Cauyo"W"y• Palm Springs,Cahfomi¢ 92262 \\(�FU&�A\ ' TEL (760)323-8201 • PAX:(760)323-8207 •TEL:(760)864-9527 June 14, 1999 Mr. Michael J. Sullivan El Sonora Associates 10834 East Whittier Boulevard Whittier, CA 90606 Re: Settlement Agreement for Payment of El Cielo road Improvement Costs and Fees Dear Mr. Sullivan: Pursuant to your conversation with Fred Galante of the City Attorney's office, the City of Palm Springs ("City") and El Sonora Associates ("El Sonora") have agreed upon a payment plan for the costs and fees pursuant to the Settlement Agreement for Payment of El Cielo Road Improvement Project Costs and Fees, dated November 15, 1997 ("Settlement Agreement"), as set forth in this letter acknowledgement. The total due by El Sonora to the City under the Settlement Agreement was $43,574.76. This included outstanding principal, as set forth at section 1.1 of the Settlement Agreement, of $33,996.00 (costs and fees of$38,596.00, minus $4,600.00 paid by El Sonora on December 23, 1998, and January 15, 1999), plus outstanding interest of$9,574.76. The City has agreed to reduce the outstanding interest due it by $5,000.00, for a total interest obligation due by El Sonora to City of$4,574.76. Accordingly, Ell Sonora and City have agreed that El Sonora shall pay the City a total settlement amount of$38,574.76, which shall be payable as follows: 1. El Sonora shall pay to the City $20,000.00 upon its execution of this letter acknowledgement. 2. El Sonora shall pay to the City $18,574.76 in five (5) equal installments upon the sale of the first five (5) houses by El Sonora on the Property, as that term is defined in the Settlement Agreement. 627/014084-0001/3269775. a06/14/99 Post Office Box 2743 0 Palm Springs, California 92263-2743 Mr. Michael J. Sullivan June 14, 1999 Page 2 3. Notwithstanding the payment procedure set forth in paragraph no. 2 above, E1 Sonora shall pay to the City the entire $18,574.76 balance described in paragraph no. 2 above within one (1) year from the date of this letter agreement, regardless of its sale of houses on the Property. Except for the payment terms clarified under this letter acknowledgment, all provisions of the Settlement Agreement shall remain in full force and effect. Please return this letter, fully executed by yourself and one other corporate officer, to Fred Galante at Rutan & Tucker, 611 Anton ]Boulevard, Suite 1400, Costa Mesa, CA 92626. ACKNOWLEDGEMENT: CI OF PALM SPRI By: City Manager EL 7i7: S By: - '�o�v���e1J By: 627/014084-0001/3269775. .06/14/99