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HomeMy WebLinkAboutA3581 - HIGHTECH AVIATION CCR ANDREAS PALMS 26370 7 #ECE{VED FOR RECORD AT 8:00 O'CLOCK v FREE RECORDING REQUESTED BY AUG I 11995 AND WHEN RECORDED MAIL TO: w.aew M04W Pkao a CITY OF PALM SPRINGS dflb-. 0 ny.Cavw" 3200 East Tahquitz Canyon Way �jf7�/ P40af x Palm Springs, California 92263 Attn: City Attorney Fop"4 t (For Recorder's Use Onlv) High-Tech Aviation DECLARATION OF COVENANTS (Stefan Horna CC&Rs � AGAGREEMENT #358)1 u4':s„PT,P� I .;r r'' CONDITIONS, AND RESTRICTIONS Bldg Official , 7-24-95 THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS ("Declaration") is made this 24th day of JULY , 199 r by and between HIGH-TECH AVIATION, INC. ("Declarant") and the CITY OF PALM SPRINGS, a municipal corporation ("City") . 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 1036 Andreas Palms Drive, more particularly described on Exhibit "A" attached hereto and incorporated herein by reference ("Property") . B. The City has fee or easement interests in various streets, sidewalks, and other property within the City and is responsible for the planning and development of land within the City in such a manner as to provide for the health, safety and welfare of the residents of the City. That portion of the City's interest in real property most directly affected by this Agreement is depicted in Exhibit "B" attached hereto and incorporated herein by reference ("Public Parcel") . C. Declarant endeavored to construct a single family residence ("the Structure") on the Property. During the course of construction numerous disputes arose regarding permitting and inspection. D. Such disputes included, but were not limited to: failure to submit plans and changes for review; work performed without clearance and in violation of stop work orders; foundation poured without inspection; lateral load and roof line concerns not addressed; structural elements of building covered without inspection or approval; plumbing, electrical wiring, insulation, ventilation ducts, and fire safety systems covered without inspection or approval; grading and drainage failure to conform to plans and other structures and systems not receiving normal inspection or approval. Declarant maintains that the majority of PS2\489\014084-0009\2148964.3 m07114195 • • ZG3 70 7 the inspections were either timely made or made at a subsequent date. E. Due to the failure to resolve some or all of the above disputes, on or about June 9, 1994 Declarant was notified of the city's intention to record a Notice of Violation of the Palm Springs Building Code. Said Notice of Violation was recorded on or about July 12 , 1994 and was numbered instrument 277662 . F. Due to the failure to resolve some or all of the above disputes, on or about July 11, 1994 Declarant was notified that the City was contemplating taking legal action against Declarant for violations of the Palm Springs Building Code. On or about July 22, 1994, and since then, Declarant denied and disputed the allegations supporting potential legal action. G. Due to the failure to resolve some or all of the above disputes, on or about May 3, 1995 Declarant notified the City of an intention to sue for damages for the City's failure to issue a certification of occupancy for the Structure. Declarant asserted that the City's inspectors had authorized every phase of the Structure's construction and asserted damages in excess of $700, 000. H. In an attempt to resolve some or all of the above disputes, approximately twenty-eight areas of the house were "opened" for structural inspection. Said structural inspection occurred on or about September 9 and September 13 , 1994. I. The City maintains that at said structural inspection some of the structural details were verified, but others had either inadequate openings to verify or no openings at all. The City maintains that still others were found not to be in compliance with ordinances or conformance with plans. Declarant maintains that structural corrections were made to address some City concerns and other points were recalculated by the engineer of record. These and other inspection points remain in dispute between Declarant and the City. J. Declarant and the City desire to avoid additional cost and expense, and compromise whatever claims they may have against each other, by entering into and recording this Declaration. K. Declarant recognizes and acknowledges that at all times all involved City officials and personnel acted in good faith and in the course and scope of their employment. L. Declarant and the City intend that in exchange for the granting of a certificate of` occupancy by the City, the Declarant shall hold, sell, and convey the Property subject to the covenants, conditions, restrictions, and reservations set forth in this Declaration and that the City shall have the right and power to FS2\489\014084-0009\2148964.3 m07/14/95 -2- enforce the covenants, conditions, restrictions, and reservations as provided herein. M. Declarant agrees to establish and grant certain covenants, conditions and restrictions upon the property for the benefit of the City and its respective successors and assigns. Such covenants, conditions and restrictions shall run to the benefit of the Public Parcel. and bind the Property, the Declarant and its successors and assigns. NOW, THEREFORE, 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. COVENANTS, CONLIITIONS. AND RESTRICTIONS 1. 0 Recitals. The above recitals are incorporated herein and made a part hereof. 2 . 0 Purpose. The City is concerned, based on its belief that the Structure did not receive proper inspection and approval, that there may be defects in the Structure that would lead to later loss or damage to persons or property on the Property. The purpose of this Declaration is to put future owners on notice and to obtain a waiver of the right to sue and agreement to hold harmless binding on successors in interest in the Property. This would be in addition to the immunities the City and its employees enjoy under Sections 818 .4, 818 . 6, 821.2, and 821.4 of the Government Code, as they may be amended. Declarant is seeking the right to occupy the Property. In consideration for granting a certificate of occupancy for the Structure 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 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. P82\489\014084-0009\2148964.3 m07114195 -3- 3 . 0 Assumption of Risk:. Declarant, on behalf of' itself, its successors, and assigns, ("successors") hereby fully assumes as to the City, its officers, officials, agents, employees, and successors, any and all risks of any type, including but not limited to property damage, personal injury, and/or death, arising out of the construction, inspection or lack of inspection, approval or lack of approval, refusal to grant certificate of occupancy or granting of certificate of occupancy, and occupancy of the Structure as it currently exists or is hereafter may be modified. 4 . 0 Release. 4 . 1 General Release. In consideration for granting a certificate of occupancy for the Structure by the City, the Declarant, on behalf of itself, its successors, and assigns, ("successors") hereby fully releases and discharges the City, its officers, officials, agents, employees, and successors from, and relinquishes all rights, claims, and actions the Declarant and its successors may now have or may have after the execution of this Declaration, arising out of the construction, inspection or lack of inspection, approval or lack of approval, refusal -to grant certificate of occupancy or granting of certificate of occupancy, and occupancy of the Structure as it currently exists or is hereafter may be modified. Declarant further agrees that the public officials of the City responsible for approving the Project plans, performing inspections and approving the Project were acting at all times within the course and scope of their employment, and without fraud, corruption, or malice. 4. 2 Unknown Claims. 4 .2 . 1 Declarant acknowledges and agrees that this release applies to all claims for injury or death to any person, or damage to any property (real or personal) , whether such injury, death, or damage are known or unknown, foreseen or unforeseen, patent or latent, present or future, that Declarant may have against the City, its officers, officials, agents, and employees, and Declarant hereby waives application of California Civil Code section 1542 . 4.2 . 2 Declarant certifies that it or its representative has read the following provisions of California Civil Code section 1542 : "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which P52\489\014084-0009\2148964.3 m07/14/95 -4- if known by him must have materially affected his settlement with the debtor. " 4 . 2 . 3 Declarant certifies that it or its representative understands and acknowledges that the significance and consequence of this waiver of California Civil Code section 1542 is that even if it or its successors should suffer additional damages arising out of the facts referred to in this Declaration, it or its successors will not be able to make any claim for those damages. Furthermore, Declarant acknowledges that it intends these consequences even as to claims for damages that may exists as of the date of this Declaration but which Declarant does not know exist, and which, if known, would materially affect Declarant's decision to execute this declaration, regardless of whether Declarant's lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause. 4 . 2 . 4 The covenants set forth herein are made for the direct benefit of the City; will constitute covenants running with the land and equitable servitudes; and will bind Declarant and every person having any fee, leasehold, or other interest in any portion of the Property at any time or from time to time. Declarant: hereby declares its understanding and intent that the burden of the covenants set forth herein touch and concern the Property in that Declarant's legal interests in the Property is rendered less valuable thereby. 5. 0 Indemnification. 5. 1 Declarant agrees to indemnify the City, its officers, officials, agents, and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm, or entity arising out of or in connection with the acts or omissions of Declarant, its agents, employees, subcontractors, or invitees hereunder. 6. 0 Covenants Running With the Land. This Declaration is designed to create equitable servitudes and covenants appurtenant to the Public Parcel and running with the Property. Declarant hereby declares that all of the Property shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied, and improved subject to the covenants, conditions, restrictions and equitable servitudes, all of which are for the purposes of uniformly enhancing or protecting the value, attractiveness, and desirability of the Property and the Public Parcel. The covenants, conditions, restrictions, reservations, equitable servitudes, liens, and charges set forth herein shall run with the Property and shall be binding upon all persons having any P52\489\014084-0009\2148964.3 m07114195 -5- 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, assigns, and successors in interest; shall be binding upon Declarant, its successors, assigns, and successors in interest; and may be enforced by the City. City and Declarant hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that Declarant's legal interest in the Property is rendered less valuable thereby. City and Declarant hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Property by the citizens of the City and by furthering the health, safety, and welfare of the residents of the City. 7. 0 Miscellaneous. 7 . 1 Term. The covenants, conditions and restrictions contained in this Declaration shall remain in effect in perpetuity. 7 . 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. 7 . 3 Governing Law. This Declaration shall be governed by and construed in accordance with the laws of the State of California. 7 .4 Conditions of Execution. Declarant acknowledges and represents that its execution of this declaration is free and voluntary. 7 . 5 Severability. The invalidity or unenforceability of 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. 7 . 6 Advice of Attorney. Declarant warrants and represents that in executing this declaration, it has relied upon legal advice from an attorney licensed to practice in the State of California, who is the attorney of its choice, that the terms of this release and its consequences have been completely read and explained to Declarant by that attorney, and that Declarant or its representative fully understands the terms of this Declaration. 7.7 Notices. Any notice to be given under this Declaration shall be given by personal delivery or by depositing MW89\014084-0009\2148964.3 m07114195 -6- 263700'7 the same in the United States Mail, certified or registered, postage prepaid, at the following address: City: City of Palm Springs P.O. Box 2743 Palm Springs, CA 92263 Attn: City Manager With a copy to: Rutan & Tucker 611 Anton Boulevard Suite 1400 Costa Mesa, CA 92628 Attn: David J. Aleshire Declarant: Hi-Tech Aviation, Inc. 1970 South Ana Maria Way Palm Springs, CA 92264 Attn: Stefan Hornak With a copy to: Slovak & Baron 1900 Tahquitz Canyon Way Suite B-1 Palm Springs, CA 92262 Attn: David L. Baron, Esq. Any notice delivered personally shall be effective upon delivery. Any notice given by mail as above provided shall be effective forty-eight hours after deposit in the mails. Any party may change address for notice by giving written notice of such change to the other party. 7 . 8 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 attorneys' fees. IN WITNESS WHEREOF, the undersigned have executed this Agreement was executed as of the date first written above. "DECLARANT": HI-TECH AVIATI ON, INC. By: Name: Its: [DECLARANT'S SIGNATURE MUST BE NOTARIZED] PS2\489\014084-0009\2148964.3 .07/14/95 -7- 263707 "CITY": CITY OF_RALt4 SPRINGS, a m n cipal cor tion By: Ci anage ATTEST: ILI City` ¢jerk [CITY MANAGER AND CITY CLERK'S SIGNATURES MUST BE NOTARIZED] APPROVED AS TO FORM: City Attd-rjiey APPROVED AS TO OWNERSHIP AND LEGAL DDESCCRIPTION IO Tit Ye: f� RECOMMENDED BY: Director of Public Works [END OF SIGNATURES] F32\489\014084-0009\2148964.3 m07/14/95 -9- y • • • 263'707 STATE OF CALIFORNIA ) ss. COUNTY OF ) On �� �qa`7 before me, b ATE NAME,TITLE OF OPPICER(EG,"JAM DOE,N(ITARY PUBLIC") personally appeared ks,"10L NAME(S)OF SIGNER(S) ❑ 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 OFFICIAL SEAL signature(s) on the instrument the person(s), or the Theresa M. Lopez entity upon behalf of which the person(s) acted, NOTARY PUBLIC-CALIFORNIA RIVERSIDE COUNTY executed the instrument. My Comm.Expires Oct. 14,1995 Witness my hand and official seal. f (SEAL) Signature of No STATE OF CALIFORNIA ) ss. COUNTY OF ) On C1�< before me, Ci���e h/�� 1�w l� v ,mow ✓�a D TE NAME,TITLE OF OFFICER(EG,"7ANE DOtf,NOTARY PUBLIC") t � personally appeared JAL✓�• Zti ���/ �� .Q�LIi ��/ NAMlj� F SIGNER(S) L -personally known to me --OR=0---proved-to-m//e-on-the-basis-of-satisfactory-evidence to be the personCo whose name(s) is/6e';subscribed to the within instrument and acknowledged to me that he/sh 'thy executed the same in his/herb eir� ,H irg ELAINE L.WEDEKIND [ authorized capacitX(es), and that by his/her/ thin, COMM.#1048857 si nature' 1 on the instrument the erson!_ or the z - Notary Public—Califomiag "( P \")�RIVERSIDE COUNTY entity upon behalf of which the person(F) acted, My Comm.Expires FEB 3.1999 executed the instrument. Witness my hand and official seal. 1 (SEAL) Signature of Notary PS2\489\014084-0009\2148964.3 07/14/95 —10— / 263,7 17 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY 0.55 Acres Net in Lot 28, MB 129/087, Tract 16759 Assessor's Parcel No. 512-310-020 EXHIBIT "A" TO CC&R'S Page 1 of 1 c� nn.n M. P uq1 .HnI /u..• nt rs[ •r• /rI NLrI If nN/lI . � � 1t ry W f O {•r.r[Y lln c ® � � 7/ ® /9 © /© lb +•r � .rU/ qJf ACM Y I qlf acM gJJkM RJf AIM R.JJA[.Nf gJft M. qJA Jc N/ ��II /rr ^..; :f1 nr ru rr..r �•eq rY Y ! 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