RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
)
City of Cathedral City )
68-700 Avenida Lalo Guerrero )
Cathedral City, CA 92234 )
Attn: City Manager )
______________________________________________________________________ (Space Above for Recorder's Use)
Exempt from Recording Fees Under Government Code § 27383
DECLARATION OF RESTRICTIONS
AND AGREEMENT FOR PAYMENT OF IN-LIEU FEES
THIS DECLARATION OF RESTRICTIONS AND AGREEMENT FOR
PAYMENT OF IN-LIEU FEES (this “Agreement”) is made on________________, 2022, by and between the CITY OF CATHEDRAL CITY, a chartered municipal corporation organized and existing under the Constitution and laws of the State of California , (the “City”) and The Richard Altman and Anne K. Alt man Trust (“Owner”). The City and Owner are sometimes hereinafter individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, Owner is the fee simple owner of certain real property improved with a hotel consisting of approximately forty-four (44) rooms located within the City at 68300 Gay Resort Drive and as more fully described in Exhibit “A” attached hereto and incorporated herein by this reference (the “Subject Property”); and
WHEREAS, on or about_________________, the Cathedral City Planning Commission (the “Planning Commission”) approved Conditional Use Permit (“CUP”) ________ providing for the establishment of CCBC Vacation Club Timeshare Resort, phase 1 for Fourteen (14) timeshare units of the existing 44 ho tel units on the Property (the “Project”); and
WHEREAS, when there is an approved amendment to Conditional Use Permit (“CUP”) 18 -035 providing for the establishment of CCBC Vacation Club Timeshare Resort, subsequent phases for some or all of the additional timeshare units of the existing 44 hotel units on the Property (the “Project”) and/or the addition of twenty (20) Timeshare units to be built on the northwest corner of the Subject Property; and
WHEREAS, the Project is only subject to the City’s Transient Occupancy Tax Ordinance (the “TOT Ordinance”) for those units rented to non -owner transients renting the timeshare unit, which will result in a loss of revenue to the City; and
WHEREAS, in light of such loss of revenue to the City , and in consideration of granting Owner the time extension it requested to make certain improvements, as set forth in that certain Improvement Agreement for CUP, as entered into by and between the City and the Owner on _____________________, Owner desires to pay the City certain in- lieu fees (the “In- Lieu Fees”) based on the estimated amount of Transient Occupancy Tax (“TOT”) that the City would otherwise be receiving for use of the Project as a hotel; and
WHEREAS the Parties desire to enter into this Agreement to provide for the payment of the In-Lieu Fees and the use of the Subject Property in accordance with the terms and conditions set forth herein; and
WHEREAS, entering into this Agreement is in the best interest of the health, safety and welfare of the City’s residents.
NOW THEREFORE, the Parties hereto do hereby agree as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated herein by this reference.
2. Covenant Running with the Land. The covenants contained in this Agreement shall run with the land, shall be binding upon Owner and each subsequent owner of the Subject Property (each, an “Owner”), and their successors and assigns.
3. Payment of In-Lieu Fees. Commencing on the later o f ___________________, 2022 or within thirty (30) days after the first of the month immediately after the date to which Owner receives final approval from the Department of Real Estate (“DRE”) to sell to the public the timeshare interests applicable to the hotel units for which the DRE application was made and more than fifty percent (50%) of the available timeshare interests have been sold, Owner shall remit Four Thousand Three Hundred Thirty Dollars and Fifty-Four Cents ($4,330.54) monthly (“Monthly Payment”) to the City. The Monthly Payment shall be due to the City on or before the first day of each month during the term of this Agreement. The Monthly Payment shall be subject to an adjustment, increasing or decreasing as applicable, effective at the beginning of the City’s fiscal year, which begins on July 1 of each (consecutive) year of this Agreement (the “Adjustment Date”), and shall be adjusted annually by the Consumer Price Index for All Urban Consumers (“CPI”) for the Riverside- San Bernardino-Ontario County for the twelve (12) months ending May preceding the annual review of the Monthly Payment and not to exceed three (3) percent.
If the Monthly Payment is not received by the tenth (10th) day of the month, Owner shall remit to City a ten percent (10%) late fee, which late fee shall be in addition to the Monthly Payment. At a future date when there is either subsequent conversion of hotel units to timeshare units and/or twenty (20) additional timeshare units are built on the northwest corner of the Subject Property, this agreement will be updated to mutually determine the adjustment to the In-Lieu Fees described above.
4. Use of Subject Property. Subject to City approved Project phasing, for the Term of this Agreement, Owner shall maintain the Project solely as a “Time - share property” as defined in Business and Professions Code Section 11212 (aa).
Under no circumstances shall the Project be or become a government-used facility .
Owner, or its successor, shall be the sole decision maker in client selection or rejection.
5. Term. The term of this Agreement (the “Term”) shall commence on execution by the Parties (the “Effective Date”) and shall terminate upon the first of the following (the “Termination Date”):
a. Upon the mutual written consent of the Parties.
b. If the use of the Project becomes a “hotel”, as th at term is defined in City of Cathedral City Municipal Code Section 3.24.010, as may be amended.
6. Events of Default; Enforcement . In the event of a default in the performance or observance of any covenant, agreement or obligation as set forth in this Agreement, including but not limited to untimely payment of the Monthly Payment, and, if such default remains uncured for a period of thirty (30) days after written notice thereof shall have been given by the City in accorda nce with Section 1 2 of t his Agreement, or such longer period as may be approved by the City in writing in its sole discretion, then the City may declare that an Event of Default has occurred hereunder and may, after written notice thereof shall have been given by the City in accordance with Section 1 2 of this Agreement, take any one or more of the following steps, at its option:
(a) By suit, action or proceeding at law or in equity, including an action seeking specific performance, to require Owner or its successors in interest to perform its obligations and covenants hereunder, or enjoin any acts or things which may be unlawful or in violation of the rights of the City hereunder; and
(b) Take whatever other action at law or in equity may appear necessary or desirabl e to enforce the obligations, covenants and agreements hereunder.
(c) No delay in enforcing the provisions hereof as to any breach or violation shall impair, damage or waive the right against or recover for the continuation or repetition of such breach or violation or any similar breach or violation thereof at any later time or times.
7. Attorneys’ Fees. In any legal proceeding to enforce the terms of or restrain a violation of this Agreement, the losing party or parties must pay the attorney fees of the winning party or parties in the amount fixed by the court in the proceeding.
8. Amendments. This Agreement may only be amended in writing by an instrument signed by the authorized representative of the City or i ts successor in interest and the then record owner or owners of the Property.
9. Severability. If any provision of this Agreement shall be invalid, inoperative or unenforceable as applied in any particular case, in any jurisdiction or jurisdictions or in all jurisdictions, or in all case s because it conflicts with any other provision or provisions hereof or any Constitution or Statute or rule of public policy, or for any other reason, such circumstances shall not have the effect of rendering the provisions in question inoperative or unenf orceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences, clauses or sections conta ined in this Agreement shall not affect the remaining portions of this Agreement or any part hereof.
10. Headings. The section headings are not part of this Agreement and will not affect the interpretation of any provisions hereof.
11. Time of the Essence. In each provision of this Agreement which states a specific amount of time within which the requirements thereof are to be satisfied or are to persist, time shall be deemed to be of the essence.
12. Notices. Any notice required to be given hereunder shall be given by personal delivery or by registered or certified mail at the addresses specified below or at such other addresses as may be specified in writing by the parties hereto:
To Owner:
The Richard Altman and Anne K. Altman Trust
Richard & Anne Altman
68300 Gay Resort Drive
Cathedral City, California 92234
with a copy to: __________________
__________________
__________________
If to the City: City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, California 92234
Attention: City Manager
With a copy to: Burke, Williams & Sorensen, LLP
444 South Flower Street, Suite 2400
Los Angeles, California 90071-2953
Attention: Eric Vail
Notice shall be deemed given three (3) business days after the date of mailing, or, if personally delivered, when received. A party’s address for notice may be changed by giving notice to the other party in the manner set forth above and indicating the new address for notice.
Section 13. Governing Law. The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the parties under this Agreement, shall be construed pursuant to and in accordance with California law.
Section 14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed as original but all of which shall constitute one and the same instrument.
Section 15. Non-liability of City officers and Employees. No officer or employee of the City shall be personally liable to the Owner, or any successor in interest, in the event of any default or breach by the City
Section 16. Successors, Heirs and Assigns . This Agreement shall be binding upon the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties to this Agreement and, likewise, shall inure to the benefit of the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties.
Section 17. Force Majeure . Subject to the limitations s et forth below, performance by the Owner hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Agreement shall be extended, where delays are due to: war; insurrection; strikes and labor disputes; lockouts; r iots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; acts of terrorism; epidemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; unusually severe weather; acts or omissions of the other p arty; or acts or failures to act of any public o r governmental agency or entity ; moratorium ; or any similar cause beyond the reasonable control of the Owner (each a “Force Majeure Delay”), except to the extent that Owner shall have failed to use its reasonable best efforts to mi nimize the likelihood of occurrence of such circumstances, to mitigate any loss or damage to the City caused by such circumstances.
If a Force Majeure Delay shall occur and, as a direct result, the Project is unable to operate for a peri od exceeding two (2) weeks , the Owner affected shall give prompt notice to the City of such Force Majeure Delay specifying the nature, date of inception and expected duration of such Force Majeure Delay, whereupon such obligation or performance (remittance of the monthly payment) shall be suspended to the extent the Owner is affected by such Force Majeure Delay. The Owner shall use its reasonable efforts to avoid or remove the cause of nonperformance a nd the Parties shall give like notice and proceed to perform with dispatch once the causes are removed or cease.
The Monthly Payment obligations under this agreement shall not restart until the thirty first (31st) day after the Property is allowed to substantially or fully operate and be open for business. Substantial operation shall include any use of the Project for which the Owner is compensated.
Section 18. Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the date first above written.
ATTEST:
Tracey R. Hermosillo, City Clerk
APPROVED AS TO FORM:
Eric Vail, City Attorney
Rita Lamb, Mayor
APPROVED AS TO CONTENT:
Charles P. McClendon,
City Manager
The Rich ltman and Anne K.
Altman d Febru ry 28, 2003,
AsAm
By:----"-----------
Its: Trustee
SIGNATURES MUST BE NOTARIZED