HomeMy WebLinkAboutORD 981 - 1 I •
ORDINANCE NO. 981
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, APPROVING A
DEVELOPMENT AGREEMENT BETWEEN ABD PALM
DESERT 1 18, LLC, AND THE CITY OF PALM DESERT FOR
117.5 +/- ACRES AT THE NORTHEAST CORNER OF
TAMARISK ROW DRIVE AND COUNTRY CLUB DRIVE.
CASE NO. DA 00-01 AS IT RELATES TO CASE NOS. GPA 00-07.
C/Z 00-5. TT 29468 AND TT 29555
WHEREAS, the City Council of the City of Palm Desert, California, did on the
22nd day of February, 2001, hold a duly noticed public hearing to consider the request
by ABD PALM DESERT 1 18, �.LC, for approval of DA 00-01; and
WHEREAS, California law provides the operative date of an ordinance may be
made contingent upon the occurrence of a future event; and
WHEREAS, it is the intention of City that this Ordinance shall become effective
thirty (30) days after the date of its adoption but shall not become operative until the
date of recordation of a grant deed conveying title to the Property from the existing
owner of the Property, Palm Desert (Riverside) PIP, L.P. to ABD Palm Desert, LLC
("ABD Palm Desert") is recorded in the Official Records of Riverside County (the
"Grant Deed Recordation Date").
WHEREAS, at said public hearing, City Council heard and considered all
testimony and arguments of all interested persons.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm
Desert, California, as follows:
1 . That the above recitations are true and correct and constitute the findings
of the City Council in this case.
2. That DA 00-01 Exhibit "A" as attached hereto is hereby approved.
3. The City Clerk of the City of Palm Desert, California, is hereby directed
to publish this ordinance in the Desert Sun, a newspaper of general
circulation, published and circulated in the City of Palm Desert, California,
and shall take effect thirty (30) days afte� the date of its adoption;
provided, however, this Ordinance shall only become operative upon the
Grant Deed Recordation Date.
ORDINANCE NO. 981
PASSED, APPROVED AND ADOPTED by the Palm Desert Crty Councii this 12th
day of April , 2001 , by the following vote, to wit:
AYES: BENSON, CRITES, KELLY, SPIEGEL, FERGUSON
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
J FE O , Mayor
ATTEST:
_., ->
� �'C�'��d/ G�LG
; SHEILA R. GI LIGA , ity Clerk
City of Palm Deser , alifornia
2
ORD I ��JANCE N�. J8 1
RECORDING REQUESTED BY RECORDING REQUESTED BY
AND WHEN RECORDED MAiL T0: CITY OF PALM DESERT
Cox, Castle & Nicholson LLP E RDI E S EMPT DUE TO
2049 Century Park East, 28th Floo G ERN ENT SECTION 27383
Los Angeles, CA 90067
Attn: Ronald I . Silverman, Esq.
City C erk
Space Above Line For Recorder' s Use Only)
DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF PALM DESERT
AND ABD PALM DESERT 118, LLC
�RD I �VANCE N�. 98 1
TABLE OF CONTENTS
Page
Section I . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section II . BENEFITS TO CITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section III . Project Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Permitted Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Rules, Regulations and Official Policies . . . . . . . . . . . . . 6
1 . Applicable Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 . Conflicting Enactments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3 . Setbacks, Design Guidelines, Landscape
Guidelines and Park Improvements . . . . . . . . . . . . . . . . 8
C. Future Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
D. Permitted Fees and Exactions . . . . . . . . . . . . . . . . . . . . . . . . . 9
E. Permitted Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
F. Term of Map (s) and Other Project Approvals . . . . . . . . . . 10
G. Timing of Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
H. Moratorium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
I . Vesting of Owner' s Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
J. Infrastructure Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
K. Infrastructure Phasing Flexibility . . . . . . . . . . . . . . . . . . 12
L. Development Agreement/Project Approvals . . . . . . . . . . . . . 13
M. Operative Date of Project Approvals . . . . . . . . . . . . . . . . . 13
Section IV. COOPERATION/IMPLEMENTATION . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Further Assurances; Covenant to Sign Documents . . . . . . 14
CRCHELED/39619/825255v11 1 02/15/O1
c
C�RD I iJANCE N4. 98 1
B. Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C. Public Financing of Improvements . . . . . . . . . . . . . . . . . . . . 14
D. Processing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
E . Processing During Third Party Litigation . . . . . . . . . . . . 16
F. State, Federal or Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . 16
G. Other Governmental Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
H. Defense of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
I . Design/Development Standards . . . . . . . . . . . . . . . . . . . . . . . . 17
l . Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2 . Zoning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3 . Development Plan/Precise Plan. . . . . . . . . . . . . . . . . . . . . 18
4 . Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5 . Minimum Lot Size . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6. Design Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7 . Building Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8 . Common Open Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9 . Building Height . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10 . Private Roads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11 . Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12 . Applicable Development Standards . . . . . . . . . . . . . . . 20
Section V. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. Covenants Run with the Land . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. Transfers and Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1 . Right to Assign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2 . Liabilities Upon Transfer . . . . . . . . . . . . . . . . . . . . . . . . . 21
CRCHELED/39819/825255v11 1 1 02/15/O1
URD I iJANCE N4. 98 1
C. Mortgagee Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
D. Statement of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
E. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
F. Annual Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
G. Default by City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
H. Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
I . Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . 28
J. Future Litigation Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 29
1 . Payment to Prevailing Party. . . . . . . . . . . . . . . . . . . . . . . 29
2 . Scope of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
K. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
L. Permitted Delays; Supersedure by Subsequent Laws . . . . 30
1 . Permitted Delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2 . Supersedure by Subsequent Laws . . . . . . . . . . . . . . . . . . . . 31
M. Amendment of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
N . Operating Memoranda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
0. Amendments to Project Approvals . . . . . . . . . . . . . . . . . . . . . 33
Section VI . MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
A. Negation of Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
B. No Third Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . 34
C. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
D. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
E. Construction of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
F. Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
G. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CRCHELED/39814/825255v11 1 1 1 02/15/O1
4RD I 1�lANCE N�. 98 1
H. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
I . Time is of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
J. Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
K. Recordation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
L. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
CRCHELED/39819/825255v11 1 V 02/15/O1
C�RD I ZJANCE N�. 98 1
DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF PALM DESERT
AND ABD PALM DESERT 118, I�LC
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and
entered into as of this 12th day of April , 2001, by and
between the CITY OF PALM DESERT, a municipal corporation
( "City") , and ABD PALM DESERT 118, LLC, a California Limited
Liability Company ("Owner") .
W I T N E S S E T H:
A. The lack of certainty in the approval of
development projects can result in a waste of resources,
escalate the cost of housing and other development, and
discourage investment in and commitment to comprehensive
planning which would make maximum efficient utilization of
resources at the least economic cost to the public.
B. California Government Code Sections 65864-65869 . 5
(the "Development Agreement Statute") were therefore enacted
authorizing a municipality to enter into binding development
agreements with persons having legal or equitable interests in
real property.
C. Owner has a legal or equitable interest in
certain real property located in City more particularly
described in Exhibit "A" attached hereto and incorporated herein
by this reference (the "Property" ) .
D. Subject to the provisions of the "Project
Approvals" (as defined below) , Owner' s project will constitute
an approximately 255-unit (but in no event more than 270 unit)
CRCHELED/39819/825255v11 1 02/15/O1
4RD I f'UANCE N4. 98 1
single-family detached residential community (the "Project") as
depicted on the Illustrative Plan (��Illustrative Plan") attached
hereto as Exhibit "B" and incorporated herein by this reference .
All residential lots shall have a minimum lot size of 10, 000
square feet .
E. This Agreement is intended by the parties to
become effective only upon the date of recordation of a grant
deed conveying title to all or a portion of the Property from
the existing owner of the Property, Palm Desert (Riverside) PIP,
L. P . ("PDPIP" ) , to Owner (the "Effective Date") .
F. Owner currently holds an option to purchase the
Property from PDPIP, the existing Owner of the Property. PDPIP
holds land for investment purposes only, and does not engage in
development or pre-development activities in connection with
such land. Therefore, PDPIP is not a party to this Agreement,
and Owner has requested and City has agreed to delay the
operative date of the "Project Approvals" (as hereinafter
defined) and this Agreement until the Effective Date .
Therefore, though the Project Approvals (and the Resolution (s)
and/or Ordinance (s) approving the Project Approvals) will not
become operative until the Effective Date, they will be
processed concurrently with Ordinance No. 981 approving this
Development Agreement, and shall become effective in the normal
course pursuant to the California Government Code .
G. On April 12 , 2001, the City Council (the
"Council") , upon appeal by Owner of the Planning Commission' s
CRCHELED/34819/825255v11 2 02/15/O1
�RD I 'NANCE N�. 981
recommendation of denial of the Project, after making
appropriate findings, adopted a negative declaration pursuant to
the provisions of the California Environmental Quality Act,
adopted Ordinance No. 980 , approving this Agreement, General
Plan Amendment No. 00-7 , and Zone Change No. 00-(15 By approving
this Agreement and the Project Approvals, City acknowledges that
it is approving the Project as depicted on the Illustrative
Plan. City shall approve subject to only those conditions
authorized herein subsequent Large-Lot Parcel Maps or Tentative
Tract Maps substantially consistent with this Agreement and the
Project Approvals .
H. Collectively General Plan Amendment No. 00-7 , and
Zone Change No. 00-05constitute the project approvals ( "Project
Approvals") .
I . Development of the Project will further the
comprehensive planning objectives contained within City' s
general plan, as amended, (the "General Plan" ) , and will result
in public benefits, including, among others, the following:
1 . Fulfilling long-term economic and social
goals for City and the community;
2 . Providing fiscal benefits to City' s General
Fund in terms of increased retail spending in City by Project
residents and property tax revenues;
3 . Providing both short-term construction
employment and long-term permanent employment within City by
CRCHELED/34819/B25255v11 3 02/15/O1
�RDINANCE NO. 981
creation of demand for services necessary to serve the residents
of the Project;
4 . Financing and constructing significant
infrastructure improvements that will serve the region and the
community; and,
5 . Phasing the construction of public
infrastructure improvements with private development .
J. Owner has requested City to enter into a
development agreement pursuant to the Development Agreement
Statute.
K. For the reasons recited herein, City has
determined that the Project is a development for which a
development agreement is appropriate under the Development
Agreement Statute .
L. The Council has determined that this Agreement is
consistent with the General Plan and specifically has determined
that this Agreement is fair, just and reasonable, and City has
concluded that the economic interests of its citizens and the
public health, safety and welfare will be best served by
entering into this Agreement .
M. The Council, after a duly noticed hearing,
adopted Ordinance No. 981 , approving this Agreement on
Anril 12 , 2001, which Ordinance became effective 30 days
later on May 12, 2001 • Notwithstanding the effectiveness of
Ordinance No. 981 , on Avril 12 , 2001, the parties intend
CRCHELED/34819/825255v11 4 02/15/O1
�RDINANCE N�. 981
that this Agreement shall become effective upon the Effective
Date .
NOW, THEREFORE, with reference to the foregoing
recitals and in consideration of the mutual promises,
obligations and covenants herein contained, the parties hereto
agree as follows :
SECTION I. DEFINITIONS. The following terms shall have the
meanings defined for such terms in the Sections set forth below:
Term Section
Agreement Introduction
Applicable Rules Section III .B . 1 .
City Introduction
Council Recital G
Development Agreement Statute Recital B
Effective Date Recital E
Future Approvals Section III .C.
General Plan Recital I
Ministerial Approvals Section IV. D. 3 .
Mortgagee Section V.C.
Notice of Non-Compliance Section V. F.
Owner Introduction
PDPIP Recital E
Planning Commission Recital G
Project Recital D
Project Approvals Recital H
Property Recital C
Related Parties Section VI . J.
Subsequent Rules Section III .B. 2 .
Term Section V. K.
Vested Rights Section III . I .
SECTION II . BENEFITS TO CITY. In consideration of the
significant educational, recreational, and infrastructure
improvements that Owner will be financing and constructing
and/or dedicating for the benefit not only of the Project but of
CRCHELED/39819/825255v11 5 02/15/O1
ORDINANCE N�. 981
the region and community surrounding the Project and the benefit
to the community that the development of the Project represents,
all of which will provide a significant overall benefit to City
and the community, City has agreed to enter into this Agreement .
SECTION III . PROJECT DEVELOPMENT.
A. Permitted Uses . The parties hereby agree that, for
the term of this Agreement, the permitted uses, the density and
intensity of use, the maximum height and size of proposed
buildings, provisions for reservation or dedication of land for
public purposes and location of public improvements, shall be
those set forth in the Project Approvals, the "Applicable Rules"
(as hereinafter defined) and this Agreement .
B. Rules, Regulations and Official Policies .
1 . Applicable Rules . The parties hereby agree that,
for the term of this Agreement, the rules, regulations and
official policies governing permitted uses, governing density,
and governing design, improvement and construction standards and
specifications applicable to development of the Property and the
Project shall be those rules, regulations and official policies
in force at the time of the Effective Date, including those
rules as set forth herein (collectively, the "Applicable
Rules") . Notwithstanding the foreqoing, nothing in this
Agreement shall preclude City from applying changes occurring
from time to time in the Uniform Building Code, Uniform
Electrical Code, Uniform Fire Code, Uniform Mechanical Code, or
Uniform Plumbing Code, provided that such changes (i) are found
CRCHELED/34814/825255v11 6 02/15/O1
�ORD I 'NANCE Nfl. 98 1
by City to be necessary to the health or safety of the citizens
of City, (ii) are generally applicable to all similar types of
property in City, and (iii) do not prevent or unreasonably delay
development of the Project in accordance with this Agreement .
Prior to the Effective Date, City and Owner shall
use reasonable efforts to identify two identical sets of the
Applicable Rules, one set for City and one set for Owner, so
that if it becomes necessary in the future to refer to any of
the Applicable Rules, there will be a common set of the
Applicable Rules available to both parties .
2 . Conflicting Enactments . Any change in the
Applicable Rules, including, without limitation, any change in
any applicable general, area or specific plan, zoning,
subdivision or building rule or regulation, adopted or becoming
effective after the Effective Date, including, without
limitation, any such change by means of an ordinance,
initiative, resolution, policy, order or moratorium, initiated
or instituted for any reason whatsoever and adopted by the
Council, the Planning Commission or any other board, agency,
commission, committee, or department of City, or any officer or
employee thereof, or by the electorate, as the case may be,
which would, absent this Agreement, otherwise be applicable to
the Property and which would conflict in any way with or be more
restrictive than the Applicable Rules ("Subsequent Rules") ,
shall not be applied by City to the Property. Owner may give
City written notice of its election to have any Subsequent Rule
CRCHELED/39814/825255v11 7 02/15/O1
�ORD I�NANCE N4. 98 1
applied to the Property, in which case such Subsequent Rule
shall be deemed to be an Applicable Rule.
3 . Setbacks, Design Guidelines, Landscape Guidelines
and Park Improvements . Except as may otherwise be provided in
this Agreement, the front, side, and rear setbacks and the
architectural and landscaping design review for all structures
within the Project shall be consistent with and conform to the
Applicable Rules, except as contained herein.
C. Future Approvals . Any development of the Property
shall require all discretionary approvals required by the
Applicable Rules (collectively, the "Future Approvals" ) . It is
anticipated that Owner shall pursue timely approval of a
Tentative Map and/or Large-Lot Parcel Map consistent with this
Agreement and the Project Approvals, including the Illustrative
Plan. This Agreement shall obligate City to approve the
subsequent Tentative Map and/or Large-Lot Parcel Map as long as
it/they are substantially consistent with this Agreement, the
Project Approvals, and the Illustrative Plan.
D. Permitted Fees and Exactions . Except as otherwise
provided in this Agreement, and specifically excluding fees set
by entities not controlled by City that are collected by City,
City shall only charge and impose those fees and exactions,
including, without limitation, dedications and any other fee or
tax (including excise, construction or any other tax) relating
to development or the privilege of developing, which are in
effect on a City-wide basis as of the Effective Date . This
CRCHELED/39819/825255v11 8 02/15/O1
�RDINANCE NO. 981
Section shall not be construed to limit the authority of City to
charge normal and customary application, processing, and permit
fees for land use approvals, building permits and other similar
permits, which fees are designed to reimburse City' s expenses
attributable to such application, processing and permitting and
are in effect on a City-wide basis at such time as said
approvals and permits are granted by City.
E . Permitted Conditions . Provided Owner' s applications
for any Future Approvals are consistent with this Agreement and
the Applicable Rules, City shall grant the Future Approvals in
accordance with the Applicable Rules and authorize development
of the Property for the uses and to the density of the Project
described herein. With regard to Owner' s application for a
Large Lot Parcel Map and/or Vesting Tentative Tract Map, City
shall only impose those conditions listed in the attached
Exhibit "C. " In connection with any other Future Approvals,
City shall have the right to impose reasonable conditions
including, without limitation, normal and customary dedications
for rights of way or easements for public access, utilities,
water, sewers, and drainage necessary for the Project; provided,
however, such conditions and dedications shall not be
inconsistent with the Applicable Rules or Project Approvals, nor
inconsistent with the development of the Project as contemplated
by this Agreement . Owner may protest any conditions,
dedications or fees while continuing to develop the Property;
CRCHELED/34819/825255v11 9 02/15/O1
ORDINANCE N�. 981
such a protest by Owner shall not delay or stop the issuance of
building permits or certificates of occupancy.
F. Term of Map (s) and Other Project Approvals . Pursuant
to California Government Code Sections 66452 . 6 (a) and 65863 . 9,
the term of any subdivision map that may be processed on all or
any portion of the Property and the term of each of the Project
Approvals shall be extended for a period of time through the
scheduled termination date of this Agreement as set forth in
Section V.K below.
G. Timing of Development . Because the California Supreme
Court held in Pardee Construction Co. v. City of Camarillo, 37
Ca1 . 3d 465 (1984 ) , that the failure of the parties therein to
provide for the timing of development resulted in a later-
adopted initiative restricting the timing of development to
pr2vail over the parties' agreement, it is the parties' intent
to cure that deficiency by acknowledging and providing that,
subject to any infrastructure phasing requirements that may be
required by the Project Approvals or any Future Approvals, Owner
shall have the right (without obligation) to develop the
Property in such order and at such rate and at such times as
Owner deems appropriate within the exercise of its subjective
business judgment .
H. Moratorium. No City-imposed moratorium or other
limitation (whether relating to the rate, timing or sequencing
of the development or construction of all or any part of the
Property, whether imposed by ordinance, initiative, resolution,
CRCHELED/39819/825255v11 1� 02/15/O1
•ORD I �NANCE NO. 98 1
policy, order or otherwise, and whether enacted by the Council,
an agency of City, the electorate, or otherwise) affecting
parcel or subdivision maps (whether tentative, vesting tentative
or final) , building permits, occupancy certificates or other
entitlements to use or service (including, without limitation,
water and sewer) approved, issued or granted within City, or
portions of City, shall apply to the Property to the extent such
moratorium or other limitation is in conflict with this
Agreement; provided, however, the provisions of this Section
shall not affect City' s compliance with moratoria or other
limitations mandated by other governmental agencies or court-
imposed moratoria or other limitations .
I . Vesting of Owner' s Rights . The rights and
entitlements granted to Owner pursuan� to this Agreement shall
be and constitute "vested rights" or the equivalent of "vested
rights" , as that term is defined under California law applicable
to the development of land or property and the right of a public
entity to regulate or control such development of land or
property, including, without limitation, vested rights in and to
building permits and certificates of occupancy.
J. Infrastructure Capacity. Subject to Owner ' s
installation of infrastructure in accordance with the
requirements of the Project Approvals and any Future Approvals,
City hereby acknowledges that it will have sufficient capacity
in its infrastructure, services and utility systems, including,
without limitation, traffic circulation, storm drainage, flood
CRCHELED/39814/825255v11 1 1 02/15/O1
flRD I �NANCE N�. 98 1
control, electric service, sewer collection, sewer treatment,
sanitation service and, except for reasons beyond City' s
control, water supply, trea�ment, distribution and service, to
accommodate the Project . To the extent that City renders such
services or provides such utilities, City hereby agrees that it
will serve the Project and that there shall be no restriction on
hookups or service for the Project except for reasons beyond
City' s control .
K. Infrastructure Phasing Flexibility. Owner and City
recognize that economic and market conditions may necessitate
changing the order in which the infrastructure necessary to
serve the Project is constructed. Therefore, City and Owner
hereby agree that should it become necessary or desirable to
develop any portion of the Project ' s infrastructure in an order
that differs from the order �set forth in any of the Project
Approvals, Owner and City shall collaborate and City shall
permit any modification requested by Owner so long as the
modification continues to ensure adequate infrastructure is
available to serve that portion of the Project being developed.
L. Development Agreement/Project Approvals . In the event
of any inconsistency between any Applicable Rule, Project
Approval or Future Approval and this Agreerrient, the provisions
of this Agreement shall control .
M. Operative Date of Project Approvals . Because PDPIP
does not intend to develop the Property, the City agrees that
0
each of the Project Approvals, including General Plan No. OU-,��
CRCHELED/39819/625255v11 1 2 02/15/O1
��RD I�NANCE NO. 98 1
Zone Change No. 00-05, this Development Agreement, and any
subsequent tentative tract map and/or large-lot parcel map shall
contain a condition that provides that each Project Approval and
this Development Agreement shall become operative only upon the
Effective Date and, if not so conditioned, shall be deemed to
contain that condition. Nothing in the preceding sentence shall
be construed to affect the time that a resolution or ordinance
approving the Project Approvals and this Development Agreement
becomes effective; it being understood and agreed that any
resolution or ordinance approving the Project Approvals shall
become effective in the normal course in accordance with the
California Government Code . It is only the operative date of
the Project Approvals and this Development Agreement that shall
be conditioned to occur as of the Effective Date .
SECTION IV. COOPERATION/IMPLEMENTATION.
A. Further Assurances; Covenant to Sign Documents . Each
party shall take all actions and do all things, and execute,
with acknowledgment or affidavit, if required, any and all
documents and writings, that may be necessary or proper to
achieve the purposes and objectives of this Agreement .
B. Reimbursement . Nothing in this Agreement precludes
City and Owner from entering into any reimbursement agreements
for the portion (if any) of the cost of any dedications, public
facilities and/or infrastructure that City may require as
conditions of the Project Approvals or the Future Approvals, to
CRCHELED/39819/825255v11 1 3 02/15/O1
�RDINANCE N0. 981
the extent that they are in excess of those reasonably necessary
to mitigate the impacts of the Project .
C. Public Financing of Improvements . Owner may, from
time to time, request City to establish one or more assessment
and/or community facilities districts to finance infrastructure,
public facilities and/or fees that may be required in connection
with the development of the Project . City agrees to use its
best efforts to implement such requests subject to applicable
state and federal law and to the Applicable Rules .
D. Processing. Upon satisfactory completion by Owner of
all required preliminary actions and payments of appropriate
processing fees, if any, City shall, subject to all legal
requirements, promptly initiate, diligently process, complete at
the earliest possible time all required steps and expeditiously
grant any approvals and permits necessary for the development by
Owner of the Property in accordance with this Agreement,
including, but not limited to, the following :
l . The processing of applications for and issuance
of all discretionary approvals requiring the exercise of
judgment and deliberation by City, including without limitation,
the Future Approvals;
2 . The holding of any required public hearings;
3 . The processing of applications for and issuing of
all ministerial approvals requiring the determination of
conformance with the Applicable Ruies, including, without
limitation, site plans, development plans, land use plans,
CRCHELED/34814/825255v11 1 4 02/15/O1
�RDINANCE NO. 981
grading plans, improvement plans, building plans and
specifications, and ministerial issuance of one or more final
maps, zoning clearances, demolition permits, grading permits,
improvement permits, wall permits, building permits, lot line
adjustments, encroachment permits, conditional and temporary use
0
permits, sign permits, certificates of use and occupancy and
approvals and entitlements and related matters as may be
necessary for the completion of the development of the Property
("Ministerial Approvals") .
4 . The Project Approvals and this Development
Agreement will not become operative unless and until the grant
deed conveying the Property to Owner is recorded.
5 . The City shall use its best efforts in expediting
the Final Improvement Plans, Tract Maps, and other required
plans and approvals necessary to record the final maps and
construct the Project . City will use its best efforts to
process and cause to be recorded the Final Large Lot Parcel Map
within 30 days of the approval of any Tentative Large Lot Parcel
Map consistent with the Project Approvals and this Agreement,
but in no event prior to the Effective Date .
E. Processing During Third Party Litigation . The filing
of any third party lawsuit (s) against City or Owner relating to
this Agreement, the Project Approvals, any Future Approvals or
to other development issues affecting the Property shall not
delay or stop the development, processing or construction of the
Project, approval of any Future Approvals, or issuance of
CRCHELED/39819/825255v11 1 5 02/15/O1
•QRD I�NANCE N�. 98 1
Ministerial Approvals, unless the third party obtains a court
order preventing the activity. City shall not stipulate to or
cooperate in the issuance of any such order.
F. State, Federal or Case Law. Where any state, federal
or case law allows City to exercise any discretion or take any
act with respect to that law, City shall, in an expeditious and
timely manner, at the earliest possible time, (a) exercise its
discretion in such a way as to be consistent with, and carry out
the terms of, this Agreement and (b) take such other actions as
may be necessary to carry out in good faith the terms of this
Agreement .
G. Other Governmental Bodies . To the extent that City,
the Council, the Planning Commission or any other board, agency
or commission of City constitutes and sits as any other board,
agency or commission, committee, or department, it shall not
take any action that conflicts with City' s obligations under
this Agreement .
H . Defense of Agreement . City shall cooperate with Owner
to uphold the validity and enforceability of this Agreement . If
this Agreement is adjudicated or determined to be invalid or
unenforceable, City agrees, subject to all legal requirements,
to consider modifications to this Agreement to render it valid
and enforceable to the extent permitted by applicable law.
I . Design/Development Standards . Notwithstanding the
provisions of the Applicable Rules, the following
design/development standards shall apply to the Project :
CRCHELED/34814/825255v11 1 6 02/15/O1
ORDINANCE N�. 981
1 . Easements . Easements dedicated for pedestrian
use shall be permitted to include easements for underground
drainage, water, sewer, gas, electricity, telephone, cable and
other utilities and facilitxes so long as they do not
unreasonably interfere with pedestrian use.
2 . Zoning. Zone Change No. 00-OS , approved
concurrently with this Agreement, rezones the property PR-4 or
Planned Residential - 4 units per gross acre as provided in
Chapter 25 . 24 of the Palm D�sert Municipal Code ("Code") . As
provided in Code section 25 . 24 . 010, the purpose of the PR zone
district is to provide for flexibility in development, creative
and imaginative design, and the development of coordinated
projects .
�
3 . Development Plan/Precise Plan. To the extent
Chapter 25 . 24 requires a development plan and/or precise plan,
the Illustrative Plan attached as Exhibit "B" shall be deemed to
constitute such a development plan and/or precise plan. The
Project shall be deemed to have completed the prefiling
procedure contained in Code section 25. 24 . 030.
4 . Exceptions . As provided in Section 25 . 24 . 310 of
the Code, to the extent the development standards contained in
this Agreement are different from development standards
contained in Chapter 25 . 24 of the Code, this Agreement shall
control .
0
5 . Minimum Lot Size . The minimum lot size for the
Project shall be 10, 000 square feet .
CRCHELED/39814/825255v11 1 7 02/15/O1
ORDINANCE N�. 981
6. Design Review. Final house design shall be
subject to the normal city architectural review process .
However, Owner shall not be required to seek design review of
the Project within 1 year of approval of any subsequent
tentative tract map.
7 . Building Coverage. The Project shall have a
maximum building coverage of 35 percent for one story homes and
may be increased up to a maximum of 50 percent with City
Architectural Review Commission approval .
8 . Common Open Space. The Project is deemed to have
complied with Section 25 . 29 . 270 of the Code relating to minimum
common open space .
9 . Building Height . The maximum building height for
the Project shall be a maximum of twenty-four feet for two-story
homes and a maximum of eigh�een feet for one-story units,
subject to design review.
10 . Private Roads . With parking on two sides, the
private roads in the Project shall be thirty-six feet wide .
11 . Parking. The Project shall be deemea to comply
with all applicable parking standards based on the two covered
garage spaces and two uncovered driveway parking spaces as
contemplated in the Project Approvals .
12 . Applicable Development Standards . Notwithstanding
anything herein to the contrary, the development standards for
the Project shall be as follows :
a . Minimum lot width: 70 feet;
�
CRCHELED/39614/825255v11 1 8 02/15/O1
� C�RD I NANCE N0. 98 1
b. Minimum front yard: 20 feet for one and two
story homes;
c . Minimum rear yard: 15 feet for one story
homes and 25 feet for two story homes;
d. Minimum side yards : 14 feet combined, each
of which shall not be less than 5 feet for
one story homes;
.
e. Minimum street side yard: 10 feet for
single story homes and 15 feet for two story
homes;
f. Minimum dwelling unit size : 1, 000 square
feet;
g. Minimum separation between two story
elements : 30 feet .
SECTION V. GENERAI, PROVISIONS.
A. Covenants Run with the Land. In accordance with the
Development Agreement Statute, all of the provisions,
agreements, rights, powers, standards, terms, covenants and
obligations contained in this Agreement shall be binding upon
the parties and their respective heirs, successors (by merger,
reorganization, consolidation or otherwise) and assigns,
devisees, administrators, representatives, lessees, and all
other persons acquiring the Property, or any portion thereof, or
any interest therein, whether by operation of law or in any
manner whatsoever, and shall inure to the benefit of the parties
and their respective heirs, successors and assigns . All of the
CRCHELED/34819/825255v11 1 9 02/15/O1
�RDINANCE NO. 981
provisions of this Agreement shall constitute covenants running
with the land.
B. Transfers and Assignments .
1 . Right to Assign. Owner shall have the right to
sell, assign or transfer all or any portion of the Property to
any person at any time during the term of this Agreement .
2 . Liabilities Upon Transfer. Upon the delegation
of all duties and obligations and the sale, transfer or
assignment of all or any portion of the Property, Owner shall be
released from its obligations under this Agreement with respect
to the Property, or portion thereof, so transferred arising
subsequent to the Effective Date of such transfer if (i) Owner
has provided to City ten days' written notice of such transfer
(ii) City has consented to the transfer to the transferee, such
consent not to be unreasonably withheld and to be made within 30
days of City' s receipt of notice of the transfer; and, (iii) the
transferee has agreed in writing to be subject to all of the
provisions hereof applicable to the portion of the Property so
transferred. Upon any transfer of any portion of the Property
and the express assumption of Owner' s obligations under this
Agreement by such transferee, City agrees to look solely to the
transferee for compliance by such transferee with the provisions
of this Agreement as such provisions relate to the portion of
the Property acquired by such transferee. A default by any
transferee shall only affect that portion of the Property owned
by such transferee and shall not cancel ar diminish in any way
CRCHELED/34814/825255v11 2� 02/15/O1
�ORD I �NANCE N�. J8 1
Owner' s rights hereunder with respect to any portion of the
Property not owned by such transferee . The transferee shall be
responsible for the reporting and annual review requirements
relating to the portion of the Property owned by such
transferee, and any amendment to this Agreement between City and
a transferee shall only affect the portion of the Property owned
by such transferee .
C. Mortgagee Protection. The parties hereto agree that
this Agreement shall not prevent or limit Owner, in any manner,
at Owner' s sole discretion, from encumbering the Property or any
portion thereof or any improvement thereon by any mortgage, deed
of trust or other security device securing financing with
respect to the Property. City acknowledges that the lender (s)
providing such financing may require certain Agreement
interpretations and modifications and agrees, from time to time,
to meet with Owner and representatives of such lender (s) to
negotiate in good faith any such request for interpretation or
modification. City will not unreasonably withhold its consent
to any such requested interpretation or modification provided
such interpretation or modification is consistent with the
intent and purposes of this Agreement . Any mortgagee of a
mortgage or a beneficiary of a deed of trust ("Mortgagee" ) of
the Property shall be entitled to the following rights and
privileges :
1 . Neither entering into this Agreement nor a breach
of this Agreement shall defeat, render invalid, diminish, or
CRCHELED/34819/825255v11 2 1 02/15/O1
ORDINANCE N4. 981
impair the lien of any mortgage or deed of trust on the Property
made in good faith and for value .
2 . If City timely receives a request from a
Mortgagee requesting a copy of any notice of default given to
Owner under the terms of this Agreement, City shall provide a
copy of that notice to the Mortgagee within ten days of sending
the notice of default to Owner . The Mortgagee shall have the
right, but not the obligation, to cure the default during the
remaining cure period allowed such party under this Agreement .
3 . Any Mortgagee who comes into possession of the
Property, or any part thereof, pursuant to foreciosure of the
mortgage or deed of trust, or deed in lzeu of such foreclosure,
shall take the Property, or part thereof, subject to the terms
of this Agreement; provided, however, in no event shall such
Mortgagee be liable for any defaults or monetary obligations of
Owner arising prior to acquisition of title to the Property by
such Mortgagee, except that any such Mortgagee or its successors
or assigns shall not be entitled to a building permit or
occupancy certificate until all delinquent and current fees and
other monetary obligations due under this Agreement for the
Property, or portion thereof, acquired by such Mortgagee have
been paid to City.
D. Statement of Compliance . Within thirty days following
any written request which either City or Owner may make from
time to time, the other shall execute and deliver to the
requesting party a statement certifying that : (1) this
CRCHELED/39814/825255v11 2 2 02/15/O1
�ORD I�NANCE NO. 98 1
Agreement is unmodified and in full force and effect or, if
there have been modifications hereto, that this Agreement is in
full force and effect, as modified, and stating the date and
nature of such modifications; (2) there are no current uncured
defaults under this Agreement or specifying the dates and nature
of any such defaults; and (3) any other reasonable information
requested. The failure to deliver such statement within such
time shall be conclusive upon the party which fails to deliver
such statement that this Agreement is in full force and effect
without modification and that there are no uncured defaults in
the performance of the requesting party. The City Manager shall
be authorized to execute any such statement .
E. Default. Failure by City or Owner to perform any term
or provision of this Agreement for a period of thirty days from
the receipt of written notice thereof from the other shall
constitute a default under this Agreement, subject to extensions
of time by mutual consent in writing. Said notice shall specify
in detail the nature of the alleged default and the manner in
which said default may be satisfactorily cured. If the nature
of the alleged default is such that it cannot reasonably be
cured within such 30-day period, the commencement of the cure
within such time period and the diligent prosecution to
completion of the cure shall be deemed a cure within such
period. During the time a cure for any alleged default is being
diligently prosecuted, no default shall be deemed to exist under
this Agreement .
CRCHELED/39814/825255v11 2 3 02/15/O1
'URD I 'NANCE N�. J8 1
Subject to the foregoing, after notice and expiration
of the 30-day period without cure, the notifying party, at its
option, may institute legal proceedings pursuant to this
Agreement and/or give notice of intent to terminate this
Agreement pursuant to Government Code Section 65868 . Following
such notice of intent to terminate, the matter shall be
scheduled for consideration and review by the Council within
thirty calendar days in the manner set forth in Government Code
Sections 65867 and 65868 . Following consideration of the
evidence presented in said review before the Council and a
determination that a default exists, the party alleging the
default by the other party may give written notice of
termination of this Agreement to the other party.
F. Annual Review. Pursuant to Government Code Section
65865 . 1, throughout the term of this Agreement, good faith
compliance with the terms of this Agreement by Owner shall be
reviewed by the Planning Commission at the regularly scheduled
Planning Commission meeting next following each anniversary of
the Effective Date. If as a result of such review, City
reasonably determines, on the basis of substantial evidence
presented at such meeting, that Owner has not complied in good
faith with the terms and conditions hereof, City shall provide
written notice thereof ( "Notice of Non-Compliance") , stating in
specific detail and specific reasons for such finding. After
City delivers the Notice of Non-Compliance, Owner shall have the
right to cure such non-compliance as provided in Section V.E .
CRCHELED/34819/825255v11 2 4 02/15/O1
�RDINANCE NO. 981
above . City' s failure to perform an annual review pursuant to
the terms of this Section V. F shall not constitute or be
asserted as a default by Owner.
G. Default by City. In the event City defaults (as
defined in Section V.E . herein) under the terms of this
Agreement, Owner shall have all rights and remedies provided
herein or under applicable law, including the specific
performance of this Agreement .
H . Legal Action. Any party may, in addition to any other
rights or remedies, institute legal action to cure, correct or
remedy any default, enforce any covenant or agreement herein,
enjoin any threatened or attempted violation hereof, or enforce
by specific performance the obligations and rights of the
parties hereto.
Pursuant to Code of Civil Procedure Section 638 , et
se�C . , all legal actions shall be heard by a referee who sha�l be
a retired judge from either the Riverside County Superior Court,
the California Court of Appeal, the United States District Court
or the United States Court of Appeals, provided that the
selected referee shall have experience in resolving land use and
real property disputes . Owner and City shall agree upon a
single referee who shall then try all issues, whether of fact or
law, and report a finding and judgment thereon and issue all
legal and equitable relief appropriate under the circumstances
of the controversy before such referee . If Owner and City are
unable to agree on a referee within ten days of a written
CRCHELED/34814/825255v11 2 S 02/15/O1
�RDINANCE N0. 981
request to do so by either party hereto, either party may seek
to have one appointed pursuant to Code of Civil Procedure
Section 640 . The cost of such proceeding shall initially be
borne equally by the parties . Any referee selected pursuant to
this Section V.G. shall be considered a temporary judge
appointed pursuant to Article 6, Section 21 of the California
Constitution. Notwithstanding the provisions of this Section
V.H. , either party shall be entitled to seek declaratory and
injunctive relief in any court of competent jurisdiction to
enforce the terms of this Agreement, or to enjoin the other
party from an asserted breach thereof, pending the selection of
a referee as provided in this Section V. H . , on a showing that
the moving party would otherwise suffer irreparable harm.
I . Waiver; Remedies Cumulative . Failure by City or Owner
to insist upon the strict performance of any of the provisions
of this Agreement, irrespective of the length of time for which
such failure continues, shall not constitute a waiver of the
right to demand strict compliance with this Agreement in the
future. No waiver by City or Owner of a default or breach of
any other party shall be effective or binding upon it unless
made in writing, and no such waiver shall be implied from any
omission by City or Owner to take any action with respect to
such default or breach. No express written waiver of any
defaults or breach shall affect any other default or breach, or
cover any other period of time, other than any default or breach
and/or period of time specified in such express waiver. One or
CRCHELED/34614/825255v11 2 6 02/15/O1
ORDINANCE NO. 981
more written waivers of a de�ault or breach under any provision
of this Agreement shall not be a waiver of any subsequent
default or breach, and the performance of the same or any other
term or provision contained in this Agreement . Subject to
notice of default and opportunity to cure under Section V.E. ,
all of the remedies permitted or available under this Agreement,
at law or in equity, shall be cumulative and alternative, and
invocation of any such right or remedy shall not constitute a
waiver or election of remedies with respect to any other
permitted or available right or remedy.
J. Future Litigation Expenses .
l . Payment to Prevailing Party. If City or Owner
brings an action or proceeding (including, without limitation,
any motion, order to show cause, cross-complaint, counterclaim,
or third-party clazm) by reason of defaults, breaches, tortious
acts, or otherwise arising out of this Agreement, the prevailing
party in such action or proceeding shall be entitled to its
costs and expenses of suit including, but not limited to,
reasonable attorneys' fees and expert witness fees .
2 . Scope of Fees . Attorneys' fees under this
Section shall include attorneys' fees on any appeal and, in
addition, a party entitled to attorneys' fees shall be entitled
to all other reasonable costs and expenses incurred in
connection with such action. In addition to the foregoing award
of attorneys' fees to the prevailing party, the prevailing party
in any lawsuit shall be entitled to its attorneys' fees incurred
CRCHELED/34819/825255v11 2 7 02/15/O1
QRDINANCE N4. 981
in any post-judgment proceedings to collect or enforce the
judgment . This provision is separate and several and shall
survive the merger of this Agreement into any judgment on this
Agreement .
K. Term. This Agreement shall commence upon the
Effective Date and shall extend twelve (12) years from the
Effective Date (the "Term") , unless said term is otherwise
terminated, modified or extended by circumstances set forth in
this Agreement or by mutual consent of the parties .
F�llowing the expiration of the Term, this Agreement
shall be deemed terminated and of no further force or effect;
provided, however, such termination shall not affect any right
or duty arising from City approvals, including, without
limitation, the Project Approvals, the Future Approvals, the
Ministerial Approvals and any reimbursement agreement (s) entered
into pursuant to the terms of this Agreement .
This Agreement shall terminate with respect to any lot
and such lot shall be released and no longer be subject to this
Agreement, without the execution or recordation of any further
document, when a certificate of occupancy has been issued for
the building (s) on the lot .
L. Permitted Delays; Supersedure by Subsequent Laws .
1 . Permitted Delays . In addition to any specific
provisions of this Agreement, performance of obligations
hereunder shall be excused and the Term of this Agreement shall
be similarly extended during any period of delay caused at any
CRCHELED/39819/825255v11 2 8 02/15/O1
QRD I �NANCE NO. 98 1
time by reason of: acts of God such as floods, earthquakes,
fires, or similar catastrophes; wars, riots or similar
hostilities; strikes and other labor difficulties beyond the
party' s control (including the party' s employment force) ; the
enactment of new laws or restrictions imposed or mandated by
other governmental or quasi-governmental entities preventing
this Agreement from being implemented; litigation involving this
Agreement, the Project Approvals, the Future Approvals or the
Ministerial Approvals, which directly or indirectly delays any
activity contemplated hereunder; or other causes beyond the
party' s control . City and Owner shall promptly notify the other
party of any delay hereunder as soon as possible after the same
has been ascertained.
2 . Supersedure by Subsequent Laws . If any federal
or state law, made or enacted after the Effective Date prevents
or precludes compliance with one or more provisions of this
Agreement, then the provisions of this Agreement shall, to the
extent feasible, be modified or suspended as may be necessary to
comply with such new law . Immediately after enactment or
promulgation of any such new law, City and Owner shall meet and
confer in good faith to determine the feasibility of any such
modification or suspension based on the effect such modification
or suspension would have on the purposes and intent of this
Agreement . Owner and/or City shall have the right to challenge
the new law preventing compliance with the terms of this
Agreement, and in the event such challenge is successful, this
CRCHELED/34819/825255v11 2 9 02/15/O1
'�RD I'NANCE Nfl. 98 1
Agreement shall remain unmodified and in full force and effect .
At Owner' s sole option, the term of this Agreement may be
extended for the duration of the period during which such new
law precludes compliance with the provisions of this Agreement .
M. Amendment of Agreement . This Agreement may be amended
from time to time by mutual consent of the parties to this
Agreement, in accordance with the provisions of Government Code
Sections 65867 and 65868; provided, however, that any amendment
which does not relate to the term, permitted uses, density or
intensity of use, height or size of buildings, provisions for
reservation and dedication of land, or monetary contributions by
Owner shall not require notice or public hearing, before the
parties may execute an amendment hereto.
N . Operating Memoranda . The provisions of this Agreement
require a close degree of cooperation between City and Owner and
the refinements and further development of the Project may
demonstrate that clarifications are appropriate with respect to
the details of performance of City and Owner . If and when, from
time to time, during the term of this Agreement, City and Owner
agree that such clarifications are necessary or appropriate,
they shall effectuate such clarifications through operating
memoranda approved by City and Owner, which, after execution,
shall constitute a part of this Agreement . No such operating
memoranda shall constitute an amendment to this Agreement
requiring public notice or hearing. The City Attorney shall be
authorized to make the determination whether a requested
CRCHELED/39814/825255v11 3� 02/15/O1
�RDINANCE N4. 981
clarification may be effectuated pursuant to this Section or
whether the requested clarification is of such a character to
constitute an amendment here,pf pursuant to Section V.M. The
City Manager may execute any operating memoranda hereunder
without Council or Planning Commission action.
O. Amendments to Praject Approvals . It is contemplated
by City and Owner that Owner may, from time to time, seek
amendments to one or more of the Project Approvals . Any such
amendments are contemplated by City and Owner as being within
the scope of this Agreement as long as they are consistent with
the Applicable Rules and shall, upon approval by City, continue
to constitute the Project Approvals as referenced herein . The
parties agree that any such �mendments which are minor in nature
may be agreed to in writing by the City Manager or his/her
designee and Owner . All other amendments will require approval
by the Planning Commission and/or Council, whichever is
appropriate under the Applicable Rules . City and Owner agree
that any amendments pursuant to this Section V.O shall neither
constitute an amendment to this Agreement nor require an
amendment to this Agreement
SECTION VI. MISCELLANEOUS,
A. Negation of Partnership. The Project constitutes
private development, neither City nor Owner is acting as the
agent of the other in any respect hereunder, and City and Owner
are independent entities with respect to the terms and
conditions of this Agreement�. None of the terms or provisions
CRCHELED/34814/825255v11 3 1 02/15/O1
�RDINANCE NO. 981
of this Agreement shall be deemed to create a partnership
between or among the parties in the businesses of Owner, the
affairs of City, or otherwise, nor shall it cause them to be
considered joint venturers or members of any joint enterprise .
B. No Third Party Beneficiary. This Agreement is not
intended, nor shall it be construed, to create any third-party
beneficiary rights in any person who is not a party, unless
expressly otherwise provided.
C. Entire Agreement . This Agreement sets forth and
contains the entire understanding and agreement of the parties,
and there are no oral or written representations, understandings
or ancillary covenants, undertakings or agreements which are not
contained or expressly referred to herein. No testimony or
evidence of any such representations, understandings or
covenants shall be admissible in any proceeding of any kind or
nature to interpret or determine the terms or conditions of this
Agreement .
D. Severability. Invalidation of any of the provisions
contained in this Agreement, or of the application thereof to
any person, by judgment or court order shall in no way affect
any of the other provisions hereof or the application thereof to
any other person or circumstance, and the same shall remain in
full force and effect, unless enforcement of this Agreement, as
so invalidated, would be unreasonable or inequitable under all
the circumstances or would frustrate the purposes of this
Agreement and the rights and obligations of the parties hereto.
CRCHELED/39819/825255v11 3 2 02/15/O1
�RD I �NANCE N�. 98 1
E. Construction of Agreement . The provisions of this
Agreement and the Exhibits hereto shall be construed as a whole
according to their common meaning and consistent with the
provisions hereof, in order to achieve the objectives and
purposes . Wherever required by the context, the singular shall
include the plural and vice versa, and the masculine gender
shall include the feminine or neuter genders, or vice versa .
F. Section Headings . All section headings and
subheadings are inserted for convenience only and shall not
affect any construction or interpretation of this Agreement .
G. Applicable Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of California .
H . Notices . Any notice shall be in writing and given by
delivering the same in person or by sending the same by
registered, or certified mail, return receipt requested, with
postage prepaid, by overnight delivery, or by facsimile to the
respective mailing addresses, as follows :
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert CA 92660
Attention: City Manager
Facsimile : 760-340-0579
Copy to: City of Palm Desert
c/o Best, Best, & Krieger
39700 Bob Hope Drive, Suite 312
P.O. Box 1555
Rancho Mirage, California 92270
Attention: Dave Erwin, City Attorney
Facsimile : 760-340-6698
Owner : ABD Palm Desert 118 , LLC
CRCHELED/34819/825255v11 3 3 02/15/O1
�RDINANCE N0. 981
c/o American Beauty Development Co.
16830 Ventura Boulevard, Suite 401
Encino, CA 91436
Attention: John Morrisette
Facsimile: 818-981-4821
Copy to: Cox, Castle & Nicholson, LLP
2049 Century Park East
Los Angeles, CA 90067-3284
Attention : Ronald I . Silverman, Esq.
Facsimile : 310-277-7889
Either City or Owner may change its mailing address at any time
by giving written notice of such change to the other in the
manner provided herein at least ten days prior to the date such
change is effected. All notices under this Agreement shall be
deemed given, received, made or communicated on the earlier of
the date personal delivery is effected or on the delivery date
or attempted delivery date shown on the return receipt, air bill
or facsimile .
I . Time is of the Essence . Time is of the essence of
this Agreement and of each and every term and condition hereof .
J. Limitation of Liability. City hereby acknowledges and
agrees that Owner ' s obligations under this Agreement are solely
those of ABD Palm Desert 118 , LLC and in no event shall any
present, past or future officer, director, shareholder,
employee, partner, affiliate, manager, representative or agent
u
of Owner ( "Related Parties") have any personal liability,
directly or indirectly, under this Agreement and recourse shall
not be available against any Related Party in connection with
this Agreement or any other document or instrument heretofore or
hereafter executed in connection with this Agreement . The
CRCHELED/34819/825255v11 3 4 02/15/O1
ORDINANCE N�. 981
limitations of liability provided in this Section are in
addition to, and not in limitation of, any limitation on
liability applicable to Owner or any Related Party provided by
law or in any other contract, agreement or instrument .
K. Recordation. In order to comply with
Section 65868 . 5 of the Government Code, the parties do hereby
direct the City Clerk to record a copy of this Agreement against
the Property with the County Recorder of Riverside County within
ten (10) days after and not before the Effective Date .
L. Termination. If Owner does not acquire fee simple
title to the Property on or before August 31, 2002, this
Agreement shall automatically terminate and shall be of no
further force and effect . Al1 other terms of this Agreement
shall remain in full force and effect in the event of Owner' s
cooperation with City.
IN WITNESS WHEREOF, Owner and City have executed this
Agreement as of the date first hereinabove written.
"City" "Owner"
CITY OF PAL DESERT, ABD PALM DESERT 118, LLC, a
a mun ' ip c rporation California limited liability company
By: American Beauty Development,
By: LLC, a California limited
Ma r J m F rgu n Liability company, as managing
�' Member
ATTEST. By: American Beauty Development
City C r Co. , a California corporation,
Sheila R. Gillig n as managing member
CRCHELED/39819/825255v11 3 5 02/15/O1
�RDINANCE NO. 981
Approved as t Form:
6���
By: �
By: Daniel Shine, President
Cit to ey
CRCHELED/39819/825255v11 3 6 02/15/O1
�RDINANCE NO. 981
STATE OF CALIFORNIA )
) ss .
COUNTY OF �CS r�1�Cr�!L�S
On ��eiL- Z3 , 2001, before me, the undersigned,
a Notary Public in and for said County and State, personally
app e a r e d �Q�1��F � �� 1�-�1.Q_
,
personally known to me
��+-; �-��^+-^r�r �..: -'^���` to be the person (��- whose name Fs�- is��
subscribed to the within instrument and acknowledged to me that
he executed the same in his ���r �*�^� r authorized
capacity�}-, and that by his�'�^- �}h�; � signature (-s-� on the
instrument the person (-s3 , or the entity upon behalf of which the
person (-s� acted, executed the within instrument .
WITNESS my hand and official seal .
C.�"�ERn L. �W� r
r.orrvrn$$lon#�27�.��8 Z N /�--�. .
� NotQy Public-Califania � N o t P u b]Li
Los Mgeles Countr
My Comm.6�ires Sep 1.�04
STATE OF CALIFORNIA )
) ss .
COUNTY OF )
On ' , 2001, before me, the undersiqned,
a Notary Public in and for said County and State, personally
a p p e a r e d J 1 �i fF.��C�t.�S'oi� �,--d/ J}�.�� (_.A K . ��.-I r ►
�!f - -
personally known to me (
=-s�t--�s��—�uiden�P to be the person (s) whose name (s) .i�-/are
CRCHELED/39819/825255v11 3 7 02/15/O1
�RDINANCE N�. 981
subscribed to the within instrument and acknowledged to me that
�hefsht/they executed the same in �r/their authorized
capacity (ies) , and that by �� '��/their signature (s) on the
instrument the person (s) , or the entity upon behalf of which the
person (s) acted, executed the within instrument .
WITNESS my hand and official seal .
Notary Pub ic
-' RACN�LLE D.KIA���I �
,„�,._�-' :' COMM.�114f548 �
��'�._�� NOTARY PUBIIC-CAL�ORNIA�
, � RIVERSDE COUNTY
,.r"�; 1dp Canm.Exp..MxN 13�2001 �
CRCHELED/39814/825255v11 3 8 02/15/O1
�RQINANCE NO. 981
EXHIBI"� "r"
LEGAL DESCRIPTIOti 0; PROPERTY
ALL THAT PORTlON OF THE SOUTHWEST QUARTER OF FRACTIONAL SECTION 1,
TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS
SHOWN BY UNITED STATES GOVERNMENT SURVEY, LYING SOUTHERLY OF THE
RIGHT OF WAY OF THE SOUTHERN PACIFIC RAILROAD COMPANY.
EXCEPTING THEREFROM THE SOUTH 44 FEET AS CONVEYED TO THE COUNTY OF
RIVERSIDE BY DEED RECORDED MARCH 3, 1958 IN BOOK 2246, PAGE 531
OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION AS CONVEYED TO THE CITY OF
PALM DESERT BY DEED RECORDED JULY 10, 1995 AS INSTRUMENT NO. 220685
OFFICIAL RECORDS.
SAID LAND IS ALSO KNOWN AS ALL THAT PROPERTY LYING WITHIN THE
BOUNDARIES OF TENTATIVE TRACT 29468.
CRCHELED/3�1814/825255v11 Exhibit A - Page 1 02/15/O1
�RD I �NANCE NO. 98 1
��.�� ���
EYhibit "B" ��»--p �M
a.�..,�i. ,�,e�
� Illustrative plan
' p7.w�►�=w�-awe aww..o+.�twt
/ M NwAM 1Ar�t.�.�
� � ' Lw 4�t�u ��r�e
i c.«>+�a-rns
O\�!'.}1N.f1�'!ml
- XJIt 71�Qi
OC 0 d0 !
•
�II[LIYINARY �tTE �LAN
� `,� .
I 10.000 S�. YIMIWI\0�SR[
I �
_^--'
� I � � �
� � I I
� �--J-� - . _, I .
� . . _ _ -�— �-
_ .,---— ._
�. -� ; • � j � . -
.� i � 1 = . ;
� s 'J
i i I • �
I "' ' I I I • .i I i I j I �
1 I �
I ; � ' ; i j _ I I , �
� �� I � � ;� � I 1 I
� _� I I ! � � � Y ���
� ~ I I �
� I r y ' „
; ji
� � I � i
i � �� 1 �
'3 . . � � ' ► ' i
i � . .. -- _ ---- � 0 :
� I 1 \
I '� � I � � I I l I I /,n, � .
� .� ..." � .. I / /
�� ��'� � ; I i I � ,
� � 'I i I � . .. � '�
i �
< � �- . _ �—\ � . i
r � i I � .
� I ~ I • I I � � I I ^ � p /i . ' � .
I ? I l 1 li j '\ 1. . �
�-y l i � � " � i
� ,^ _
� �- 'J
� �
� 1---� --� .. —_ ..____;- I. .__�. ,_—.
� _ - -� I
GOUNi cY � u D DRivE
�RDINANCE N�. �81
EXHIBIT "C"
CONDITIONS OF APPROVAL
CASE NOS. GPA 00-7, C/Z 00-5, TT 29468, TT 29555, DA 00-1
Departmenf of Communitv Development:
1 . The development of the property shall conform substantially with exhibits on
file with the Department of Community Development, as modified by the
following conditions.
2. Construction of a porfion of said project shall commence within the time
coinciding with the 12 year term of the approved development agreement
untess an extension of time is granted; otherwise said approval shall become
null, void and of no effect whatsoever.
3. The development of the property described herein shall be subject to the
restrictions and limitations set forth herein which are in addition to all
municipal ordinances and state and federal statutes now in force, or which
hereafter may be in force.
4. Prior to issuance of a building permit for construction of any use
contemplated by this approval, the applicant shall first obtain permits and/or
clearance from the following agencies:
Coachella Valley Water District
Palm Deserf Architectural Commission
City Fire Marshal
Public Works Department
Sunline Transit Agency
Evidence of said permit or clearance from the above agencies shall be
presented to the Department of Building and Safety at the time of issuance
of a building permit for the use contemplated herewith.
5. All sidewalk plans shall be reviewed and approved by the Deportment of
Public Works.
6 All new utilities shall be underground.
1
�RDINANCE N�. 981
7. All sidewalk plans shall be reviewed and approved by the department of
public works prior to architectural review commission submittal.
8. Applicant agrees to maintain the landscaping required to be installed
pursuant to these conditions. Applicant will enter into an agreement to
maintain said landscaping for the life of the project, which agreement shall
be notarized and which agreement shall be recorded. It is the specific intent
of the parties that this condition and dgreement run with the land and bind
successors and assigns.
9. The project shall be subject to all applicoble fees at time of issuance of
building permits including, but not limited to,Art in Public Places, Fringe-Toed
Lizard, TUMF, School Mitigation and Housing Mitigation fees. Fringe Toed
Lizard fee shall be paid at $600/acre.
10. All applicable Planned Residential standards shall apply.
11 . A noise study shall be conducted and mitigation measures shall be
implemented to insure compliance with the city's noise ordinance.
12. Access points along Tamarisk Row Drive shall be reserved for residents only.
13. Perimeter wall and perimeter landscaping adjacent to Tamarisk Row Drive,
Country Club Drive and the entry road off Country Club Drive shatl be
installed with phase one of the tract.
Deaartment of Public Works:
1. Drainage fees in accordance with Palm Desert Municipal Code Section 26.49 and
Ordinance No. 653 shall be paid prior to recordation of the final map for TT 29468.
2. Any drainage facility construction required for this project shall be contingent upon a
drainage study prepared by a registered civil engineer that is reviewed and
approved by the Department of Public Works prior to start of construction. The
project shall be designed to retain storm waters associated with the increase in
developed vs. undeveloped condition for a 100-year storm.
2
ORDINANCE NO. 981
3. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17
and 79-55, shall be paid prior to issuance of any permits associated with this
project. Project shall be responsible for the modification of the existing traffic signal
on Country Club Drive at the project entry. Said responsibility shall be limited to
one-half of the cost of the modification. Those costs may be used as a credit
against the subject signalization fees. Such a credit would be subject to approval
by the Palm Desert City Council.
4. The project shall be subject to Transportation Uniform Mitigation Fees (TUMF).
Payment of said fees shall be at the time of building permit issuance.
5. A complete preliminary soils investigation, conducted by a registered soils engineer,
shall be submitted to, and approved by,the Department of Public Works priorto the
issuance of a grading permit.
6. Complete tract maps shall be submitted as required by ordinance to the Director of
Public Works for checking and approval prior to the issuance of any permits
associated with this project.
7. As required under Palm Desert Municipal Code Section 26.28, and in accordance
with Sections 26.40 and 26.44, complete improvement plans and specifications
shall be submitted to the Director of Public Works for checking and approval before
construction of any improvements is commenced. Offsite improvement plans to be
approved by the Public Works Department and a surety posted to guarantee the
installation of requi�ed offsite improvements prior to permit issuance.
8. All public and private improvements shall be inspected by the Department of Public
Works and a standard inspection fee shall be paid prior to issuance of grading
permits.
9. In accordance with the Circulation Network of the Palm Desert General Plan,
installation of the northerly half landscaped median island in Country Club Drive
shall be provided. Landscape shall be drought tolerant in nature. Developer may
pay cash in lieu of actual construction.
10. Landscape installation on the property frontages shall be water e�cient in nature
and shall be in accordance with the City of Palm Desert landscape design
standards. Landscaping maintenance for said landscape shall be provided through
3
QRDfNANCE N�. 981
a property owners association. Applicant shall be responsible for executing a
declaration of Conditions, Covenants and Restrietions, which declaration shall be
approved by the City of Palm Desert and recorded with the county recorder. The
declaration shall specify: (a)the applicant shall oversee the formation of a property
owners association; (b)the property owners association shall be formed prior to the
recordation of the final map TT 29468; and c) the aforementioned landscaping
maintenance shall be the responsibility of the property owners association.
11. Applicant shall comply with the provisions of Municipal Code Section 24.12, Fugitive
Dust Control as well as Section 24.20, Stormwater Management and Discharge
Control.
12. Any and all offsite improvements shall be preceded by the approval of plans and
the issuance of valid encroachment permits by the Department of Public Works.
13. In accordance with Palm Desert Municipal Code Section 26.44, complete grading
plans/site improvement plans and specifications shall be submitted to the Director of
Public Works for checking and approval prior to issuance of any permits.
14. Traffic safety striping on Country Club Drive, Tamarisk Row Drive and ul" Street
shall be provided to the specifications of the Director of Public Works. A traffic
control plan must be submitted to, and approved by, the Director of Public Works
prior to the placement of any pavement markings.
15. Full public improvements, as required by Sections 26.40 and 26.44 of the Palm
Desert Municipal Code, shall be installed in accordance with applicable City
standards. Improvements shall include, but not be limited to the following:
* Installation of curb and gutter at 43 feet from centerline, AC
paving and meandering sidewalk along the Country Club Drive
frontage adjacent to property.
" Installation of curb and gutter at 38 feet from
centerline,AC paving and meandering sidewalk
along the Tamarisk Row Drive frontage.
* Installation of st�eet improvements (curb and
gutter, AC paving and sidewalk)for"I" Street as
4
�RDINANCE N�. 981
shown on the tentative map exhibit and as
described within the project development
agreement.
'' Modification to the existing traffic signal on
Country Club Drive at"I" Street to provide for full
intersection operation.
* Installation of transit facilities shall be as follows:
a. If Sunline provides bus service to this area prior to
commencement of construction, the developer shall install a
bus shelter. The bus shelter is to be constructed to
aesthetically match the architecture of the complex or
building(s). The bus shelter dimensions shall be at minimum 8'
x 18' x 8'; the bus shelter shall include, but not be limited to,
electrical lighting, bench(es), and other components(i.e.,trash
container) not listed. The bus shelter and pad to be ADA
compliant. The pad dimensions shall be a minimum of 10' x
20' and 3.5" thick.
b. However, if Sunline does not provide bus service to this area
priar to commencement of construction, the deve{oper shafl
place a bus shelter pad on the site. The pad dimensions
should be a minimum of 10' x 20' and 3.5" thick, the pad shall
be ADA compliant, and the electrical conduit to be run from the
house panel to within 12" but no closer than 6" to the bus
shelter pad for future bus shelter installation.
Regardless of the timing of Sunline senrice, a bus turnout shall be
installed to Sunline Transit standards during construction of phase
one.
"' Lots 272 and 273 along the northerly project boundary shall be
dedicated to the City of Palm Desert for pedestrian/bicycle route
purposes.
5
�RDINANCE N�. 981
Residential street sections shall be as shown on the tentative tract map with a
minimum width of thirty-six feet. Rights-of-way necessary for the construction of
required public improvements shall be provided on the Tract Map.
16. Proposed building pad elevations are subject to review and modification in
accordance with Chapter 27 of the Palm Desert Municipal Code.
17. As required under Sections 26.32 and 26.40 of the Palm Desert Municipal Code, all
existing overhead utilities shall be placed underground per the respective utility
district recommendation.
18. Waiver of access rights to Country Club Drive, Tamarisk Row Drive and "i" Street
except at approved locations shall be granted on the Final Map.
19. Prior to start of construction, the applicant shall submit satisfactory evidence to the
Director of Public Works of intended compliance with the National Pollutant
Discharge Elimination (NPDES) General Permit for storm water discharges
associated with construction.
Riverside Countv Fire Departmen�
1 . With respect to the conditions of approval regarding the above referenced
project, the fire deparfment recommends the following fire protection
measures be provided in accordance with City Municipal Code, NFPA, UFC,
and UBC or any recognized Fire Protection Standards:
The Fire Department is required to set a minimum fire flow for the remodel or
construction of all buildings per UFC article 87.
2. A fire flow of 1500 gpm for a 1 hour duration at 20 psi residual pressure must
be available before any combustible material is placed on the job site.
3. Provide or show there exists a water system capable of providing a gpm flow
of 1500 gpm for single family dwellings.
4. The required fire flow shall be available from a wet barrel Super Hydrant(s) 4"
x 2Y�" x 2'/�", located not less than 25' nor more than 200' from any porfion of
a single family dwelling measured via vehicular travelway.
6
�RDINANCE N4. 981
5. Water plans must be approved by the Fire Marshal and include verification
that the water system will produce the required fire flow.
6. All buildings shall be accessible by an all-weather roadway extending to
within 150' of all portions of the exterior walls of the first story. The roadway
sha11 not be less than 24' of unobstructed width and 13'b" of vertical
clearance. Where parallel parking is required on both sides of the street the
roadway must be 36'wide and 32'wide with parking on one side. Dead-end
roods in excess of 150' shall be provided with a minimum 45' radius turn-
around 55' in industrial developments.
7. Whenever access into private property is controlled through use of gates,
barriers or other means provisions shall be made to install a "Knox Box" key
over-ride system to allow for emergency vehicle access. Minimum gate
width shall be 16' with a minimum vertical clearance of 13'6".
8. All buildings shall have illuminated addresses of size approved by the city.
9. Conditions subject to change with adoption of new codes, ordinances, laws
or when building permits are not obtained within 12 months.
7
DOC # 20@8—�576630
RECORDING REQUESTED BY, AND 10/29/2 00ge08:0057Fee:NC
WHEN RECORDED, MAIL TO: Recorded in Ofiicial Records
County of Riverside
Larry W. Ward
City Clerk's Office Assessor, County Clerk 8 Recorder
City of Palm Desert I�IIIII IIIIIII III�I�III IIIIII I�II IIIIII II�III�I II�I�II
73-510 Fred Waring Drive
� Palm Desert, CA 92260-2578
S R U PAGE SIZE DA MISC LONG RFD COPY
FOR THE BENEFIT OF THE , 5�
CITY OF PALM DESERT M A L 465 426 PCOR NCOR SMF NCH E�caM
- NO FEE -
6103 OF THE GOVT. CODE I�IC.NG �G p.+nrlie��:�" � �.-� T; CTY uNi �`lQ
(This Space for Recorder's Use Only) �
. M
Development Agreement 00-01 o,s
Between
City of Palm Desert, California
and
ABD Palm Desert 118, LLC -
a California Limited Liability Company
Legal Description of Property
No�theast Corner of Tamarisk Row Drive and Country Club Drive
ORDINANCE NO. 981
(Case No. DA 00-01 As It Relates To Case Nos. GPA 00-07, C/Z 00-5, TT 29468 and TT 29555)
Dated: April 12, 2001
(Title of Document)
�i� �f ' � � L" r't�i� u�.��.,.
r t::J
:l,)�-3- t; .
[This page has intentionally been left blank.]
OR�D I NANCE N0. 98 '
RECORDING REQUESTED BY RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO: CITY OF PALM DESERT
. Cox, Castle & Nicholson LLP E RDI FE S EMPT DUE TO
2049 Century Park East, 28th Floo G ERN ENT SECTION 27383
Los Angeles, CA 90067 '
Attn : Ronald I . Silverman, Esq.
City C erk
Space Above Line For Recorder' s Use Only)
DEVELOPMENT AGREEMENT -
BY AND BETWEEN THE CITY OF PALM DESERT
AND ABD PALM DESERT 118, LLC
URD I IVANCE N0. 98 ' �
TABLE OF CONTENTS
Page
Section I . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section II . BENEFITS TO CITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section III . Project Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Permitted Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Rules, Regulations and Official Policies . . . . . . . . . . . . . 6
1 . Applicable Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 . Conflicting Enactments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3 . Setbacks, Design Guidelines, Landscape
Guidelines and Park Improvements . . . . . . . . . . . . . . . . 8
C. Future Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
D. Permitted Fees and Exactions . . . . . . . . . . . . . . . . . . . . . . . . . 9
E . Permitted Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
F. Term of Map (s) and Other Project Approvals . . . . . . . . . . 10
G. Timing of Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
H. Moratorium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
I . Vesting of Owner' s Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
J. Infrastructure Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
K. Infrastructure Phasing Flexibility . . . . . . . . . . . . . . . . . . 12
L. Development Agreement/Project Approvals . . . . . . . . . . . . . 13
M. Operative Date of Project Approvals . . . . . . . . . . . . . . . . . 13
Section IV. COOPERATION/IMPLEMENTATION . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Further Assurances; Covenant to Sign Documents . . . . . . 14
CRCHELED/34814/825255v11 1 02/15/O1
C7RD I '�JANCE N�. 98 '
B. Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C. Public Financing of Improvements . . . . . . . . . . . . . . . . . . . . 14
. D. Processing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
E . Processing During Third Party Litigation . . . . . . . . . . . . 16
F. State, Federal or Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . 16
G. Other Governmental Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . 1�
H . Defense of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
I . Design/Development Standards . . . . . . . . . . . . . . . . . . . . . . . . 17
1 . Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2 . Zoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3 . Development Plan/Precise Plan . . . . . . . . . . . . . . . . . . . . . 18
4 . Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5 . Minimum Lot Size . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6 . Design Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7 . Building Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8 . Common Open Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9 . Building Height . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10 . Private Roads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11 . Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12 . Applicable Development Standards . . . . . . . . . . . . . . . 20
Section V. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. Covenants Run with the Land . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. Transfers and Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1 . Right to Assign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2 . Liabilities Upon Transfer. . . . . . . . . . . . . . . . . . . . . . . . . 21
CRCHELED/39819/625255v11 1 1 02/15/O1
URD I i'JANCE N�. 98 '
C. Mortgagee Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
D. Statement of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
E . Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
F. Annual Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
G. Default by City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
H . Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
I . Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . 28
J. Future Litigation Expenses . . . . . . . . . . . . . . . . . . . . . . . . 29
1 . Payment to Prevailing Party. . . . . . . . . . . . . . . . . . . . . . . 29
2 . Scope of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
K. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
L. Permitted Delays; Supersedure by Subsequent Laws . . . . 30
1 . Permitted Delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2 . Supersedure by Subsequent Laws . . . . . . . . . . . . . . . . . . . . 31
M. Amendment of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
N. Operating Memoranda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
O. Amendments to Project Approvals . . . . . . . . . . . . . . . . . . . . . 33
Section VI . MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
A. Negation of Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
B. No Third Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . 34
C. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
D. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
E. Construction of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
F. Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
G. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CRCHELED/39814/825255v11 ].1 1 02/15/O1
C�RD I NANCE N�. 98 '
H. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
I . Time is of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
J. Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
K. Recordation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
L. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
CRCHELED/39819/825255v11 1 V 02/15/O1
C�RD I iJANCE N�. 98 1
DEVELOPMENT AGREEMENT
BY AND BETWEEN TAE CITY OF PALM DESERT �
AND ABD PALM DESERT 118, LLC
THIS DEVELOPMENT AGREEMENT ( "Agreement" j is made and
entered into as of this 12th day of April , 2001, by and
between the CITY OF PALM DESERT, a municipal corporation
("City" ) , and ABD PALM DESERT 118, LLC, a California Limited
Liability Company ("Owner") .
W I T N E S S E T H:
A. The lack of certainty in the approval of
development projects can result in a waste of resources,
escalate the cost of housing and other development, and
discourage investment in and commitment to comprehensive
planning which would make maximum efficient utilization of
resources at the least economic cost to the public.
B. California Government Code Sections 65864-65869 . 5
(the "Development Agreement Statute" } were therefore enacted
authorizing a municipality to enter into binding development
agreements with persons having legal or equitable interests in
real property.
C. Owner has a legal or equitable interest in
certain real property located in City more particularly
described in Exhibit "A" attached hereto and incorporated herein
by this reference (the "Property" ) .
D. Subject to the provisions of the "Project
Approvals" (as defined below) , Owner' s project will constitute
an approximately 255-unit (but in no event more than 270 unit)
CRCHELED/34819/B25255v11 1 02/15/O1
� NCE N4. 98 '
single-family d�tached residential community (the "Project" ) as
depicted on the Illustrative Plan ("Illustrative Plan") attached
hereto as Exhibit "B" and incorporated herein by this reference .
All residential lots shall have a minimum lot size of 10, 000
square feet .
E . This Agreement is intended by the parties to
become effective only upon the date of recordation of a grant
deed conveying title to all or a portion of the Property from _
the existing owner of the Property, Palm Desert (Riverside) PIP,
L. P . ("PDPIP") , to Owner (the "Effective Date" ) .
F. Owner currently holds an option to purchase the
Property from PDPIP, the existing Owner of the Property. PDPIP
holds land for investment purposes only, and does not enqage in
development or pre-development activities in connection with
such land. Therefore, PDPIP is not a party to this Agreement,
and Owner has requested and City has agreed to delay the
operative date of the "Project Approvals" (as hereinafter
defined) and this Agreement until the Effective Date .
Therefore, though the Project Approvals (and the Resolution (s)
and/or Ordinance (s) approving the Project Approvals) will not
become operative until the Effective Date, they will be
processed concurrently with Ordinance No. 981 approving this
Development Aqreement, and shall become effective in the normal
course pursuant to the California Government Code .
G. On April 12 , 2001, the City Council (the
"Council") , upon appeal by Owner of the Planning Commission' s
CRCHELED/34814/B25255v11 2 02/15/O1
�RDINANCE N�. 98 '
recommendation bf denial of the Project, after making -
appropriate findings, adopted a negative declaration pursuant to
the provisions of the California Environmental Quality Act,
adopted Ordinance No. 980 , approving this Agreement, General
Plan Amendment No . 00-7 , and Zone Change No. 00-a5 By approving
this Agzeement and the Project Approvals, City acknowledges that
it is approving the Project as depicted on the Illustrative
Plan. City shall approve subject to only those conditions .
authorized herein subsequent Large-Lot Parcel Maps or Tentative
Tract Maps substantially consistent with this Agreement and the
Project Approvals .
H. Collectively General Plan Amendment No. 00-7 , and
Zone Change No. 00-OSconstitute the project approvals ( "Project
Approvals") .
I . Development of the Project will further the
comprehensive planning objectives contained within City' s
general plan, as amended, (the "General P1an" ) , and will result
in public benefits, including, among others, the following:
1 . Fulfilling long-term economic and social
goals for City and the community;
2 . Providing fiscal benefits to City' s General
Fund in terms of increased retail spending in City by Project
residents and property tax revenues;
3 . Providing both short-term construction
employment and long-term permanent employment within City by
CRCHELED/34619/825255v11 3 02/15/O1
�RDINANCE N0. 98 '
creation of demand for services necessary to serve the resident-s
of the Project;
� 4 . Financing and constructing significant
infrastructure improvements that will serve the region and the
community; and,
5 . Phasing the construction of public
infrastructure improvements with private development .
J. Owner has requested City to enter into a
development agreement pursuant to the Development Agreement
Statute.
K. For the reasons recited herein, City has
determined that the Project is a development for which a
development agreement is appropriate under the Development
Agreement Statute .
L. The Council has determined that this Agreement is
consistent with the General Plan and specifically has determined
that this Agreement is fair, just and reasonable, and City has
concluded that the economic interests of its citizens and the
public health, safety and welfare will be best served by
entering into this Agreement .
M. The Council, after a duly noticed hearing,
adopted Ordinance No. 981 , approving this Agreement on
April 12 , 2001, which Ordinance became effective 30 days
later on May 12, 2001 • Notwithstanding the effectiveness of
Ordinance No. 981 � on April 12 , 2001, the parties intend
CRCHELED/34819/825255v11 4 02/15/O1
QRDINANCE N�. 98 '
that this Agreement shall become effective upon the Effective -
Date.
NOW, THEREFORE, with reference to the foreqoing
recitals and in consideration of the mutual promises,
obligations and covenants herein contained, the parties hereto
agree as follows :
SECTION I . DEFINITIONS. The following terms shall have the
meanings defined for such terms in the Sections set forth below:
Term Section
Agreement Introduction
Applicable Rules Section III .B . 1 .
City Introduction
Council Recital G
Development Agreement Statute Recital B
Effective Date Recital E
Future Approvals Section III .C .
General Plan Recital I
Ministerial Approvals Section IV. D. 3 .
Mortgagee Section V.C.
Notice of Non-Compliance Section V. F.
Owner Introduction
PDPIP Recital E
Planning Commission Recital G
Project Recital D
Project Approvals Recital H
Property Recital C
Related Parties Section VI . J.
Subsequent Rules Section III .B. 2 .
Term Section V.K.
Vested Riqhts Section III . I .
SECTION II. BENEFITS TO CZTY. In consideration of the
significant educational, recreational, and infrastructure
improvements that Owner will be financing and constructing
and/or dedicating for the benefit not only of the Project but of
CRCHELED/39814/825255v11 S 02/15/O1
c�RD I hJANCE N4. 98 "
the region and community surrounding the Project and the benefi-t
to the community that the development of the Project represents,
� all of which will provide a significant overall benefit to City
and the community, City has agreed to enter into this Agreement .
SECTION III . PROJECT DEVELOPMENT.
A. Permitted Uses . The parties hereby agree that, for
the term of this Agreement, the permitted uses, the density and
intensity of use, the maximum height and size of proposed
buildings, provisions for reservation or dedication of land for
public purposes and location of public improvements, shall be
those set forth in the Project Approvals, the "Applicable Rules"
(as hereinafter defined) and this Agreement . �
B. Rules, Regulations and Official Policies .
1 . Applicable Rules . The parties hereby agree that,
for the term of this Agreement, the rules, regulations and
official policies governing permitted uses, governing density,
and governing design, improvement and construction standards and
specifications applicable to development of the Property and the
Project shall be those rules, regulations and official policies
in force at the time of the Effective Date, including those
rules as set forth herein (collectively, the "Applicable
Rules") . Notwithstanding the foregoing, nothing in this
Agreement shall preclude City from applying changes occurring
from time to time in the Uniform Building Code, Uniform
Electrical Code, Uniform Fire Code, Uniform Mechanical Code, or
Uniform Plumbing Code, provided that such changes (i) are found
CRCHELED/39814/825255v11 6 02/15/O1
�RDINANCE N�. 98 ' -
by City to be necessary to the health or safety of the citizens
of City, (ii) are generally applicable to all similar types of
� property in City, and (iii) do not prevent or unreasonably delay
development of the Project in accordance with this Agreement .
Prior to the Effective Date, City and Owner shall
use reasonable efforts to identify two identical sets of the
Applicable Rules, one set for City and one set for Owner, so
that if it becomes necessary in the future to refer to any of _
the Applicable Rules, there will be a common set of the
Applicable Rules available to both parties .
2 . Conflicting Enactments . Any change in the
Applicable Rules, including, without limitation, any change in �
any applicable general, area or specific plan, zoning,
subdivision or building rule or regulation, adopted or becoming
effective after the Effective Date, including, without
limitation, any such change by means of an ordinance,
initiative, resolution, policy, order or moratorium, initiated
or instituted for any reason whatsoever and adopted by the
Council, the Planning Commission or any other board, agency,
commission, committee, or department of City, or any officer or
employee thereof, or by the electorate, as the case may be,
which would, absent this Agreement, otherwise be applicable to
the Property and which would conflict in any way with or be more
restrictive than the Applicable Rules ("Subsequent Rules") ,
shall not be applied by City to the Property. Owner may give
City written notice of its election to have any Subsequent Rule
CRCHELED/39814/825255v11 7 02/15/O1
�RDINANCE Na. 98 �
applied to the �roperty, in which case such Subsequent Rule -
shall be deemed to be an Applicable Rule.
� 3 . Setbacks, Design Guidelines, Landscape Guidelines
and Park Improvements . Except as may otherwise be provided in
this Agreement, the front, side, and rear setbacks and the
architectural and landscaping design review for all structures
within the Project shall be consistent with and conform to the
Applicable Rules, except as contained herein. _
C. Future Approvals . Any development of the Property
shall require all discretionary approvals required by the
Applicable Rules (collectively, the "Future Approvals") . It is
anticipated that Owner shall pursue timely approval of a
Tentative Map and/or Large-Lot Parcel Map consistent with this
Agreement and the Project Approvals, including the Illustrative
Plan. This Agreement shall obligate City to approve the
subsequent Tentative Map and/or Large-Lot Parcel Map as long as
itlthey are substantially consistent with this Agreement, the
Project Approvals, and the Illustrative Plan.
D. Permitted Fees and Exactions . Except as otherwise
provided in this Agreement, and specifically excluding fees set
by entities not controlled by City that are collected by City,
City shall only charge and impose those fees and exactions,
including, without limitation, dedications and any other fee or
tax (including excise, construction or any other tax) relating
to development or the privilege of developing, which are in
effect on a City-wide basis as of the Effective Date . This
CRCHELED/39814/825255v11 8 02/15/O1
ORDINANCE NQ. 9�
Section shall not be construed to limit the authority of City t-o
charge normal and customary application, processing, and permit
� fees for land use approvals, building permits and other similar
permits, which fees are designed to reimburse City' s expenses
attributable to such application, processing and permitting and
are in effect on a City-wide basis at such time as said
approvals and permits are granted by City.
E . Permitted Conditions . Provided Owner' s applications -
for any Future Approvals are consistent with this Agreement and
the Applicable Rules, City shall grant the Future Approvals in
accordance with the Applicable Rules and authorize development
of the Property for the uses and to the density of the Project
described herein . With regard to Owner' s application for a
Large Lot Parcel Map and/or Vesting Tentative Tract Map, City
shall only impose those conditions listed in the attached
Exhibit ��C. " In connection with any other Future Approvals,
City shall have the right to impose reasonable conditions
including, without limitation, normal and customary dedications
for rights of way or easements for public access, utilities,
water, sewers, and drainage necessary for the Project; provided,
however, such conditions and dedications shall not be
inconsistent with the Applicable Rules or Project Approvals, nor
inconsistent with the development of the Project as contemplated
by this Agreement. Owner may protest any conditions,
dedications or fees while continuing to develop the Property;
CRCHELED/39819/825255v11 g 02/15/O1
aRDINANCE NO. 98
such a protest �y Owner shall not delay or stop the issuance of
building permits or certificates of occupancy.
F. Term of Map (s) and Other Project Approvals . Pursuant
to California Government Code Sections 66452 . 6 (a) and 65863 . 9,
the term of any subdivision map that may be processed on all or
any portion of the Property and the term of each of the Project
Approvals shall be extended for a period of time through the
scheduled termination date of this Agreement as set forth in
Section V.K below.
G. Timing of Development . Because the California Supreme
Court held in Pardee Construction Co. v. City of Camarillo, 37
Ca1 . 3d 465 (1984 ) , that the failure of the parties therein to
provide for the timing of development resulted in a later-
adopted initiative restricting the timing of development to
prevail over the parties' agreement, it is the parties' intent
to cure that deficiency by acknowledging and providing that,
subject to any infrastructure phasing requirements that may be
required by the Project Approvals or any Future Approvals, Owner
shall have the right (without obligation) to develop the '
Property in such order and at such rate and at such times as
Owner deems appropriate within the exercise of its subjective
business judgment .
H. Moratorium. No City-imposed moratorium or other
limitation (whether relating to the rate, timing or sequencing
of the development or construction of all or any part of the
Property, whether imposed by ordinance, initiative, resolution,
CRCHELED/39819/825255v11 1� 02/15/O1
flRD I NANCE N�. 98 ' �
policy, order or otherwise, and whether enacted by the Council,-
an agency of City, the electorate, or otherwise) affecting
� parcel or subdivision maps (whether tentative, vesting tentative
or final) , building permits, occupancy certificates or other
entitlements to use or service (including, without limitation,
water and sewer) approved, issued or granted within City, or
portions of City, shall apply to the Property to the extent such
moratorium or other limitation is in conflict with this
Agreement; provided, however, the provisions of this Section
shall not affect City' s compliance with moratoria or other
limitations mandated by other governmental agencies or court-
imposed moratoria or other limitations .
I . Vesting of Owner' s Riqhts . The rights and
entitlements granted to Owner pursuant to this Agreement shall
be and constitute "vested rights" or the equivalent of "vested
rights", as that term is defined under California law applicable
to the development of land or property and the right of a public
entity to regulate or control such development of land or
property, including, without limitation, vested rights in and to
building permits and certificates of occupancy.
J. Infrastructure Capacity. Subject to Owner ' s
installation of infrastructure in accordance with the
requirements of the Project Approvals and any Future Approvals,
City hereby acknowledges that it will have sufficient capacity
in its infrastructure, services and utility systems, including,
without limitation, traffic circulation, storm drainage, flood
CRCHELED/34819/825255v11 1 1 02/15/O1
�RD I NANCE f�10. 98 "
control, electric service, sewer collection, sewer treatment,
sanitation service and, except for reasons beyond City' s
control, water supply, trea�ment, distribution and service, to
accommodate the Project. To the extent that City renders such
services or provides such utilities, City hereby aqrees that it
will serve the Project and that there shall be no restriction on
hookups or service for the Project except for reasons beyond
City' s control .
K. Infrastructure Phasing Flexibility. Owner and City
recognize that economic and market conditions may necessitate
changing the order in which the infrastructure necessary to
serve the Project is constructed. Therefore, City and Owner -
hereby agree that should it become necessary or desirable to
develop any portion of the Project ' s infrastructure in an order
that differs from the order �set forth in any of the Project
Approvals, Owner and City shall collaborate and City shall
permit any modification requested by Owner so long as the
modification continues to ensure adequate infrastructure is
available to serve that portion of the Project being developed.
L. Development Agreement/Project Approvals . In the event
of any inconsistency between any Applicable Rule, Project
Approval or Future Approval and this Agreement, the provisions
of this Agreement shall control .
M. O�erative Date of Project Approvals . Because PDPIP
does not intend to develop the Property, the City agrees that
0
each of the Project Approvals, including General Plan No. OU-,��
CRCHELED/39814/825255v11 1 2 02/15/O1
ORDINANCE N�. 98 '
Zone Change No. - 00-05, this Development Agreement, and any -
subsequent tentative tract map and/or large-lot parcel map shall
� contain a condition that provides that each Project Approval and
this Development Agreement shall become operative only upon the
Effective Date and, if not so conditioned, shall be deemed to
contain that condition. Nothing in the preceding sentence shall
be construed to affect the time that a resolution or ordinance
approving the Project Approvals and this Development Agreement _
becomes effective; it being understood and agreed that any
resolution or ordinance approving the Project Approvals shall
become effective in the normal course in accordance with the
California Government Code . It is only the operative date of -
the Project Approvals and this Development Agreement that shall
be conditioned to occur as of the Effective Date .
SECTION IV. COOPERATION/IMPLEMENTATION.
A. Further Assurances; Covenant to Sign Documents . Each
party shall take all actions and do all things, and execute,
with acknowledgment or affidavit, if required, any and all
documents and writings, that may be necessary or proper to
achieve the purposes and objectives of this Agreement .
B . Reimbursement . Nothing in this Agreement precludes
City and Owner from entering into any reimbursement agreements
for the portion (if any) of the cost of any dedications, public
facilities and/or infrastructure that City may require as
conditions of the Project Approvals or the Future Approvals, to
CRCHELED/39814/825255v11 1 3 02/15/O1
�7RD I i�IANCE NQ. 98 "
the extent that-they are in excess of those reasonably necessar-y
to mitigate the impacts of the Project .
C. Public Financing of Improvements . Owner may, from
time to time, request City to establish one or more assessment
and/or community facilities districts to finance infrastructure,
public facilities and/or fees that may be required in connection
with the development of the Project . City agrees to use its
best efforts to implement such requests subject to applicable _
state and federal law and to the Applicable Rules .
D. Processing. Upon satisfactory completion by Owner of
all required preliminary actions and payments of appropriate
processing fees, if any, City shall, subject to all legal
requirements, promptly initiate, diligently process, complete at
the earliest possible time all required steps and expeditiously
grant any approvals and permits necessary for the development by
Owner of the Property in accordance with this Agreement,
including, but not limited to, the following :
1 . The processing of applications for and issuance
of all discretionary approvals requiring the exercise of
judgment and deliberation by City, including without limitation,
the Future Approvals;
2 . The holding of any required public hearings;
3 . The processing of applications for and issuing of
all ministerial approvals requiring the determination of
conformance with the Applicable Rules, including, without
limitation, site plans, development plans, land use plans,
CRCHELED/34814/B25255v11 1 4 02/15/O1
�RQINANCE Na. 98 � �
grading plans, improvement plans, building plans and -
specifications, and ministerial issuance of one or more final
maps, zoning clearances, demolition permits, grading permits,
improvement permits, wall permits, building permits, lot line
adjustments, encroachment permits, conditional and temporary use
0
permits, sign permits, certificates of use and occupancy and
approvals and entitlements and related matters as may be
necessary for the completion of the development of the Property
("Ministerial Approvals") .
4 . The Project Approvals and this Development
Agreement will not become operative unless and until the grant
deed conveying the Property to Owner is recorded.
5 . The City shall use its best efforts in expediting
the Final Improvement Plans, Tract Maps, and other required
plans and approvals necessary to record the final maps and
construct the Project . City will use its best efforts to
process and cause to be recorded the Final Large Lot Parcel Map
within 30 days of the approval of any Tentative Large Lot Parcel
Map consistent with the Project Approvals and this Agreement,
but in no event prior to the Effective Date.
E . Processing During Third Party Litigation. The filing
of any third party lawsuit (s) against City or Owner relating to
this Agreement, the Project Approvals, any Future Approvals or
to other development issues affecting the Property shall not
delay or stop the development, processing or construction of the
Project, approval of any Future Approvals, or issuance of
CRCHELED/34819/825255v11 1 5 02/15/O1
C7R�D I �IANCE N(�. 98 '
Ministerial Approvals, unless the third party obtains a court
order preventing the activity. City shall not stipulate to or
cooperate in the issuance of any such order.
F. State, Federal or Case Law. Where any state, federal
or case law allows City to exercise any discretion or take any
act with respect to that law, City shall, in an expeditious and
timely manner, at the earliest possible time, (a) exercise its
discretion in such a way as to be consistent with, and carry out _
the terms of, this Agreement and (b) take such other actions as
may be necessary to carry out in good faith the terms of this
Agreement .
G. Other Governmental Bodies . To the extent that City,
the Council, the Planning Commission or any other board, agency
or commission of City constitutes and sits as any other board,
agency or commission, committee, or department, it shall not
take any action that conflicts with City' s obligations under
this Agreement .
H . Defense of Agreement . City shall cooperate with Owner
to uphold the validity and enforceability of this Agreement . If
this Agreement is adjudicated or determined to be invalid or
unenforceable, City agrees, subject to a11 legal requirements,
to consider modifications to this Agreement to render it valid
and enforceable to the extent permitted by applicable law.
I . Design/Development Standards . Notwithstanding the
provisions of the Applicable Rules, the following
design/development standards shall apply to the Project :
CRCHELED/39814/825255v11 1 6 02/15/O1
I �,IANCE NO. 98 ' �
l . £asements . Easements dedicated for pedestrian _
use shall be permitted to include easements for underground
� drainage, water, sewer, gas, electricity, telephone, cable and
other utilities and facilit�es so long as they do not
unreasonably interfere with pedestrian use.
2 . Zoning. Zone Change No. QO-OS , approved
concurrently with this Agreement, rezones the property PR-4 or
Planned Residential - 4 units per gross acre as provided in _
Chapter 25 . 24 of the Palm Desert Municipal Code ("Code") . As
provided in Code section 25 . 24 . 010, the purpose of the PR zone
district is to provide for flexibility in development, creative
and imaginative design, and the development of coordinated -
projects .
�
3 . Development Plan/Precise Plan. To the extent
Chapter 25 . 24 requires a development plan and/or precise plan,
the Illustrative Plan attached as Exhibit "B" shall be deemed to
constitute such a development plan and/or precise plan. The
Project shall be deemed to have completed the prefiling
procedure contained in Code section 25 . 24 . 030 .
4 . Exceptions . As provided in Section 25 . 24 . 310 of
the Code, to the extent the development standards contained in
this Agreement are different from development standards
contained in Chapter 25 .24 of the Code, this Agreement shall
control .
0
5 . Minimum Lot Size . The minimum lot size for the
Project shall be 10, 000 square feet .
CRCHELED/39814/825255v11 1 7 02/15/O1
��DINANCE N0. 98 '
6. flesign Review. Final house design shall be -
subject to the normal city architectural review process .
� However, Owner shall not be required to seek design review of
the Project within 1 year of approval of any subsequent
tentative tract map.
7 . Building Coverage . The Project shall have a
maximum building coverage of 35 percent for one story homes and
may be increased up to a maximum of 50 percent with City _
Architectural Review Commission approval .
8 . Common Open Space . The Project is deemed to have
complied with Section 25 . 24 . 270 of the Code relating to minimum
common open space .
9 . Building Height . The maximum building height for
the Project shall be a maximum of twenty-four feet for two-story
homes and a maximum of eigh�een feet for one-story units,
subject to design review.
10 . Private Roads . With parking on two sides, the
private roads in the Project shall be thirty-six feet wide .
11 . Parking. The Project shall be deemed to comply
with all applicable parking standards based on the two covered
garage spaces and two uncovered driveway parking spaces as
contemplated in the Project Approvals .
12 . Applicable Development Standards . Notwithstanding
anything herein to the contrary, the development standards for
the Project shall be as follows :
a . Minimum lot width : 70 feet;
0
CRCHELED/39819/825255v11 1$ 02/15/01
ORDINANCE NG. .
b. Minimum front yard: 20 feet for one and two
story homes;
c . Minimum rear yard: 15 feet for one story
homes and 25 feet for two story homes;
d. Minimum side yards : 14 feet combined, each
of which shall not be less than 5 feet for
one story homes;
a
e. Minimum street side yard: 10 feet for _
single story homes and 15 feet for two story
homes;
f. Minimum dwelling unit size: 1, 000 square
feet;
g. Minimum separation between two story
elements : 30 feet .
SECTION V. GENERAL PROVISIONS.
A. Covenants Run with the Land. In accordance with the
Development Agreement Statute, all of the provisions,
agreements, rights, powers, standards, terms, covenants and
obligations contained in this Agreement shall be binding upon
the parties and their respective heirs, successors (by merger,
reorganization, consolidation or otherwise) and assigns,
devisees, administrators, representatives, lessees, and all
other persons acquiring the Property, or any portion thereof, or
any interest therein, whether by operation of law or in any
manner whatsoever, and shall inure to the benefit of the parties
and their respective heirs, successors and assigns . All of the
CRCHELED/34819/825255v11 1 9 02/15/O1
�R'D I NANCE NQ. 98 '
provisions of tfiis Agreement shall constitute covenants running
with the land.
' B. Transfers and Assignments .
1 . Right to Assign . Owner shall have the right to
sell, assign or transfer all or any portion of the Property to
any person at any time during the term of this Agreement .
2 . Liabilities Upon Transfer. Upon the delegation
of all duties and obligations and the sale, transfer or
assignment of all or any portion of the Property, Owner shall be
released from its obligations under this Agreement with respect
to the Property, or portion thereof, so transferred arising
subsequent to the Effective Date of such transfer if (i) Owner
has provided to City ten days' written notice of such transfer
(ii) City has consented to the transfer to the transferee, such
consent not to be unreasonably withheld and to be made within 30
days of City' s receipt of notice of the transfer; and, (iii) the
transferee has agreed in writing to be subject to all of the
provisions hereof applicable to the portion of the Property so
transferred. Upon any transfer of any portion of the Property
and the express assumption of Owner' s obligations under this
Agreement by such transferee, City agrees to look solely to the
transferee for compliance by such transferee with the provisions
of this Agreement as such provisions relate to the portion of
the Property acquired by such transferee. A default by any
transferee shall only affect that portion of the Property owned
by such transferee and shall not cancel or diminish in any way
CRCHELED/39814/825255v11 2� 02/15/01
aRDINANCE N�. �8 ' �
Owner' s rights hereunder with respect to any portion of the -
Property not owned by such transferee . The transferee shall be
' responsible for the reporting and annual review requirements
relating to the portion of the Property owned by such
transferee, and any amendment to this Agreement between City and
a transferee shall only affect the portion of the Property owned
by such transferee .
C. Mortgagee Protection. The parties hereto agree that _
this Agreement shall not prevent or limit Owner, in any manner,
at Owner' s sole discretion, from encumbering the Property or any
portion thereof or any improvement thereon by any mortgage, deed
of trust or other security device securing financing with
respect to the Property. City acknowledges that the lender (s)
providing such financing may require certain Agreement
interpretations and modifications and aqrees, from time to time,
to meet with Owner and representatives of such lender (s) to
negotiate in good faith any such request for interpretation or
modification. City will not unreasonably withhold its consent
to any such requested interpretation or modification provided
such interpretation or modification is consistent with the
intent and purposes of this Agreement . Any mortgagee of a
mortgage or a beneficiary of a deed of trust ("Mortgagee" ) of
the Property shall be entitled to the following rights and
privileges :
1 . Neither entering into this Agreement nor a breach
of this Agreement shall defeat, render invalid, diminish, or
CRCHELED/39814/825255v11 2 1 02/15/O1
QRDINANCE Na. �8 '
impair the lien' of any mortgage or deed of trust on the Property
made in good faith and for value .
2 . Zf City timely receives a request from a
Mortgagee requesting a copy of any notice of default given to
Owner under the terms of this Agreement, City shall provide a
copy of that notice to the Mortgagee within ten days of sending
the notice of default to Owner . The Mortgagee shall have the
right, but not the obligation, to cure the default during the _
remaining cure period allowed such party under this Agreement .
3 . Any Mortgagee who comes into possession of the
Property, or any part thereof, pursuant to foreclosure of the
mortgage or deed of trust, or deed in lieu of such foreclosure,
shall take the Property, or part thereof, subject to the terms
of this Agreement; provided, however, in no event shall such
Mortgagee be liable for any defaults or monetary obligations of
Owner arising prior to acquisition of title to the Property by
such Mortgagee, except that any such Mortgagee or its successors
or assigns shall not be entitled to a building permit or
occupancy certificate until all delinquent and current fees and
other monetary obligations due under this Agreement for the
Property, or portion thereof, acquired by such Mortgagee have
been paid to City.
D. Statement of Compliance . Within thirty days following
any written request which either City or Owner may make from
time to time, the other shall execute and deliver to the
requesting party a statement certifying that : (1) this
CRCHELED/39814/825255v11 2 2 02/15/O1
QRDINANCE N4. 98 '
Aqreement is unmodified and in full force and effect or, if -
there have been modifications hereto, that this Agreement is in
� full force and effect, as modified, and stating the date and
nature of such modifications; (2) there are no current uncured
defaults under this Agreement or specifying the dates and nature
of any such defaults; and (3) any other reasonable information
requested. The failure to deliver such statement within such
time shall be conclusive upon the party which fails to deliver .
such statement that this Agreement is in full force and effect
without modification and that there are no uncured defaults in
the performance of the requesting party. The City Manager shall
be authorized to execute any such statement.
E . Default . Failure by City or Owner to perform any term
or provision of this Agreement for a period of thirty days from
the receipt of written notice thereof from the other shall
constitute a default under this Agreement, subject to extensions
of time by mutual consent in writing. Said notice shall specify
in detail the nature of the alleged default and the manner in
which said default may be satisfactorily cured. If the nature
of the alleged default is such that it cannot reasonably be
cured within such 30-day period, the commencement of the cure
within such time period and the diligent prosecution to
completion of the cure shall be deemed a cure within such
period. During the time a cure for any alleged default is being
diligently prosecuted, no default shall be deemed to exist under
this Agreement .
CRCHELED/39814/825255v11 2 3 02/15/O1
QR�D I NANCE NO. 98 ^
Subjeet to the foregoing, after notice and expiration
of the 30-day period without cure, the notifying party, at its
� option, may institute legal proceedings pursuant to this
Agreement and/or give notice of intent to terminate this
Agreement pursuant to Government Code Section 65868 . Following
such notice of intent to terminate, the matter shall be
scheduled for consideration and review by the Council within
thirty calendar days in the manner set forth in Government Code
Sections 65867 and 65868 . Following consideration of the
evidence presented in said review before the Council and a
determination that a default exists, the party alleging the
default by the other party may give written notice of
termination of this Agreement to the other party.
F. Annual Review. Pursuant to Government Code Section
65865 . 1, throughout the term of this Agreement, good faith
compliance with the terms of this Agreement by Owner shall be
reviewed by the Planning Commission at the regularly scheduled
Planning Commission meeting next following each anniversary of
the Effective Date . If as a result of such review, City
reasonably determines, on the basis of substantial evidence
presented at such meeting, that Owner has not complied in good
faith with the terms and conditions hereof, City shall provide
written notice thereof ( "Notice of Non-Compliance") , stating in
specific detail and specific reasons for such finding. After
City delivers the Notice of Non-Compliance, Owner shall have the
right to cure such non-compliance as provided in Section V.E .
CRCHELED/34819/825255v11 2 4 02/15/O1
QRDINANCE N�. 98 ' �
above . City' s failure to perform an annual review pursuant to -
the terms of this Section V. F shall not constitute or be
' asserted as a default by Owner .
G. Default by City. In the event City defaults (as
defined in Section V.E . herein) under the terms of this
Agreement, Owner shall have all rights and remedies provided
herein or under applicable law, including the specific
performance of this Agreement .
H . Legal Action. Any party may, in addition to any other
rights or remedies, institute legal action to cure, correct or
remedy any default, enforce any covenant or agreement herein,
enjoin any threatened or attempted violation hereof, or enforce
by specific performance the obligations and rights of the
parties hereto.
Pursuant to Code of Civil Procedure Section 638, et
s�. , all legal actions shall be heard by a referee who shall be
a retired judge from either the Riverside County Superior Court,
the California Court of Appeal, the United States District Court
or the United States Court of Appeals, provided that the
selected referee shall have experience in resolving land use and
real property disputes . Owner and City shall agree upon a
single referee who shall then try all issues, whether of fact or
law, and report a finding and judgment thereon and issue all
legal and equitable relief appropriate under the circumstances
of the controversy before such referee . If Owner and City are
unable to agree on a referee within ten days of a written
CRCHELED/34914/825255v11 2 S 02/15/O1
�RDINAN�E N0. 98 '
request to do so by either party hereto, either party may seek -
to have one appointed pursuant to Code of Civil Procedure
� Section 640 . The cost of such proceeding shall initially be
borne equally by the parties . Any referee selected pursuant to
this Section V.G. shall be considered a temporary judge
appointed pursuant to Article 6, Section 21 of the California
Constitution. Notwithstanding the provisions of this Section
V.H. , either party shall be entitled to seek declaratory and _
injunctive relief in any court of competent jurisdiction to
enforce the terms of this Agreement, or to enjoin the other
party from an asserted breach thereof, pending the selection of
a referee as provided in this Section V.H . , on a showing that
the moving party would otherwise suffer irreparable harm.
I . Waiver; Remedies Cumulative . Failure by City or Owner
to insist upon the strict performance of any of the provisions
of this Agreement, irrespective of the length of time for which
such failure continues, shall not constitute a waiver of the
right to demand strict compliance with this Agreement in the
future . No waiver by City or Owner of a default or breach of
any other party shall be effective or bindinq upon it unless
made in writing, and no such waiver shall be implied from any
omission by City or Owner to take any action with respect to
such default or breach. No express written waiver of any
defaults or breach shall affect any other default or breach, or
cover any other period of time, other than any default or breach
and/or period of time specified in such express waiver. One or
CRCHELED/39819/825255v11 2 6 02/15/O1
7RDINANCE N�. 98 ' �
more written watvers of a de�ault or breach under any provision-
of this Agreement shall not be a waiver of any subsequent
� default or breach, and the performance of the same or any other
term or provision contained in this Agreement . Subject to
notice of default and opportunity to cure under Section V.E. ,
all of the remedies permitted or available under this Agreement,
at law or in equity, shall be cumulative and alternative, and
invocation of any such right or remedy shall not constitute a .
waiver or election of remedies with respect to any other
permitted or available right or remedy.
J. Future Litigation Expenses .
1 . Payment to Prevailing Party. If City or Owner
brings an action or proceeding (including, without limitation,
any motion, order to show cause, cross-complaint, counterclaim,
or third-party claim) by reason of defaults, breaches, tortious
acts, or otherwise arising out of this Agreement, the prevailing
party in such action or proceeding shall be entitled to its
costs and expenses of suit including, but not limited to,
reasonable attorneys' fees and expert witness fees .
2 . Scope of Fees . Attorneys' fees under this
Section shall include attorneys' fees on any appeal and, in
addition, a party entitled to attorneys' fees shall be entitled
to all other reasonable costs and expenses incurred in
connection with such action. In addition to the foreqoing award
of attorneys` fees to the prevailing party, the prevailing party
in any lawsuit shall be entitled to its attorneys' fees incurred
CRCHELED/34819/825255v11 2 7 02/15/O1
C�RD I NANCE N4. 98 '
in any post-jud"gment proceedings to collect or enforce the -
judgment . This provision is separate and several and shall
survive the merger of this Agreement into any judgment on this
Agreement .
K. Term. This Agreement shall commence upon the
Effective Date and shall extend twelve (12� years from the
Effective Date (the "Term") , unless said term is otherwise
terminated, modified or extended by circumstances set forth in
this Agreement or by mutual consent of the parties .
Following the expiration of the Term, this Agreement
shall be deemed terminated and of no further force or effect;
provided, however, such termination shall not affect any right
or duty arising from City approvals, including, without
limitation, the Project Approvals, the Future Approvals, the
Ministerial Approvals and any reimbursement agreement (s) entered
into pursuant to the terms of this Agreement .
This Agreement shall terminate with respect to any lot
and such lot shall be released and no longer be subject to this
Agreement, without the execution or recordation of any further
document, when a certificate of occupancy has been issued for
the building (s) on the lot .
L. Permitted Delays; Supersedure by Subsequent Laws .
l . Permitted Delays . In addition to any specific
provisions of this Agreement, performance of obligations
hereunder shall be excused and the Term of this Agreement shall
be similarly extended during any period of delay caused at any
CRCHELED134814/825255v11 2 8 02/15{O1
QRDINANCE N�. 98 �
time by reason of : acts of God such as floods, earthquakes, -
fires, or similar catastrophes; wars, riots or similar
� hostilities; strikes and other labor difficulties beyond the
party' s control (including the party' s employment force) ; the
enactment of new laws or restrictions imposed or mandated by
other governmental or quasi-governmental entities preventing
this Agreement from being implemented; litigation involving this
Agreement, the Project Approvals, the Future Approvals or the
Ministerial Approvals, which directly or indirectly delays any
activity contemplated hereunder; or other causes beyond the
party' s control . City and Owner shall promptly notify the other
party of any delay hereunder as soon as possible after the same
has been ascertained.
2 . Supersedure by Subsequent Laws . If any federal
or state law, made or enacted after the Effective Date prevents
or precludes compliance with one or more provisions of this
Agreement, then the provisions of this Agreement shall, to the
extent feasible, be modified or suspended as may be necessary to
comply with such new law. Immediately after enactment or
promulgation of any such new law, City and Owner shall meet and
confer in good faith to determine the feasibility of any such
modification or suspension based on the effect such modification
or suspension would have on the purposes and intent of this
Agreement . Owner and/or City shall have the right to challenge
the new law preventing compliance with the terms of this
Agreement, and in the event such challenge is successful, this
CRCHELED/34819/825255v11 2 9 02/15/O1
aRDiNANCE N0. 98 "
Agreement shall- remain unmodified and in full force and effect .
At Owner' s sole option, the term of this Agreement may be
extended for the duration of the period during which such new
law precludes compliance with the provisions of this Agreement .
M. Amendment of Agreement . This Agreement may be amended
from time to time by mutual consent of the parties to this
Agreement, in accordance with the provisions of Government Code
Sections 65867 and 65868; provided, however, that any amendment ,
which does not relate to the term, permitted uses, density or
intensity of use, height or size of buildings, provisions for
reservation and dedication of land, or monetary contributions by
Owner shall not require notice or public hearing, before the
parties may execute an amendment hereto.
N . Operating Memoranda . The provisions of this Agreement
require a close degree of cooperation between City and Owner and
the refinements and further development of the Project may
demonstrate that clarifications are appropriate with respect to
the details of performance of City and Owner . If and when, from
time to time, during the term of this Agreement, City and Owner
agree that such clarifications are necessary or appropriate,
they shall effectuate such clarifications through operating
memoranda approved by City and Owner, which, after execution,
shall constitute a part of this Agreement . No such operating
memoranda shall constitute an amendment to this Agreement
requiring public notice or hearing. The City Attorney shall be
authorized to make the determination whether a requested
CRCHELED/34B14/825255v11 3� 02/15/O1
dRDINANCE N�. 981 � �
clarification may be effectuated pursuant to this Section or -
whether the requested clarification is of such a character to
constitute an amendment here,pf pursuant to Section V.M. The
City Manager may execute any operating memoranda hereunder
without Council or Planning Commission action.
O. Amendments to Project Approvals . It is contemplated
by City and Owner that Owner may, from time to time, seek
amendments to one or more of the Project Approvals . Any such _
amendments are contemplated by City and Owner as being within
the scope of this Agreement as long as they are consistent with
the Applicable Rules and shall, upon approval by City, continue
to constitute the Project Approvals as referenced herein. The
parties agree that any such �mendments which are minor in nature
may be agreed to in writing by the City Manager or his/her
designee and Owner. All other amendments will require approval
by the Planning Commission and/or Council, whichever is
appropriate under the Applicable Rules . City and Owner agree
that any amendments pursuant to this Section V.O shall neither
constitute an amendment to this Agreement nor require an
amendment to this Agreement
SECTION VI . MISCELLANEOUS.
A. Negation of Partnership. The Project constitutes
private development, neither City nor Owner is acting as the
agent of the other in any respect hereunder, and City and Owner
are independent entities with respect to the terms and
conditions of this Agreement�. None of the terms or provisions
CRCHELED/34819/825255v11 3 1 02/15/O1
dR�D I NANCE N0. 98 "
of this Agreement shall be deemed to create a partnership -
between or among the parties in the businesses of Owner, the
� affairs of City, or otherwise, nor shall it cause them to be
considered joint venturers or members of any joint enterprise .
B. No Third Par�y Beneficiary. This Agreement is not
intended, nor shall it be construed, to create any third-party
beneficiary rights in any person who is not a party, unless
expressly otherwise provided. _
C. Entire Agreement . This Agreement sets forth and
contains the entire understanding and agreement of the parties,
and there are no oral or written representations, understandings
or ancillary covenants, undertakings or agreements which are not
contained or expressly referred to herein. No testimony or
evidence of any such representations, understandings or
covenants shall be admissible in any proceeding of any kind or
nature to interpret or determine the terms or conditions of this
Agreement .
D. Severability. Invalidation of any of the provisions
contained in this Agreement, or of the application thereof to
any person, by judgment or court order shall in no way affect
any of the other provisions hereof or the application thereof to
any other person or circumstance, and the same shall remain in
full force and effect, unless enforcement of this Agreement, as
so invalidated, would be unreasonable or inequitable under all
the circumstances or would frustrate the purposes of this
Agreement and the rights and obligations of the parties hereto .
CRCHELED/34B19/825255v11 3 2 02/15/O1
ORDINANCE N�. 98 ' �
E . Const"ruction of Agreement . The provisions of this -
Agreement and the Exhibits hereto shall be construed as a whole
according to their common meaning and consistent with the
provisions hereof, in order to achieve the objectives and
purposes . Wherever required by the context, the singular shall
include the plural and vice versa, and the masculine gender
shall include the feminine or neuter genders, or vice versa .
F. Section Headings . All section headings and -
subheadings are inserted for convenience only and shall not
affect any construction or interpretation of this Agreement .
G. Applicable Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of California .
H. Notices . Any notice shall be in writing and given by
delivering the same in person or by sending the same by
registered, or certified mail, return receipt requested, with
postage prepaid, by overnight delivery, or by facsimile to the
respective mailing addresses, as follows :
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert CA 92660
Attention: City Manager
Facsimile : 760-390-0574
Copy to: City of Palm Desert
c/o Best, Best, & Krieger
39700 Bob Hope Drive, Suite 312
P.O. Box 1555
Rancho Mirage, California 92270
Attention: Dave Erwin, City Attorney
Facsimile : 760-340-6698
Owner : ABD Palm Desert 118 , LLC
CRCHELED/34814/825255v11 3 3 02/15/O1
�RDINANCE N0. 98 '
c/o American Beauty Development Co.
16830 Ventura Boulevard, Suite 401
Encino, CA 91436
Attention: John Morrisette
� Facsimile : 818-981-4821
Copy to: Cox, Castle & Nicholson, LLP
2049 Century Park East
Los Angeles, CA 90067-3284
Attention : Ronald I . Silverman, Esq.
Facsimile : 310-277-7889
Either City or Owner may chanqe its mailing address at any time
by giving written notice of such change to the other in the
manner provided herein at least ten days prior to the date such
change is effected. All notices under this Agreement shall be
deemed given, received, made or communicated on the earlier of
the date personal delivery is effected or on the delivery date
or attempted delivery date shown on the return receipt, air bill
or facsimile .
I . Time is of the Essence . Time is of the essence of
this Agreement and of each and every term and condition hereof .
J. Limitation of Liability. City hereby acknowledges and
agrees that Owner' s obligations under this Agreement are solely
those of ABD Palm Desert 118, LLC and in no event shall any
present, past or future officer, director, shareholder,
employee, partner, affiliate, manager, representative or agent
�
of Owner ( "Related Parties") have any personal liability,
directly or indirectly, under this Agreement and recourse shall
not be available against any Related Party in connection with
this Agreement or any other document or instrument heretofore or
hereafter executed in connection with this Agreement . The
CRCHELED/34814/825255v11 3 4 02/15/O1
ORDINANCE N4. 98 '
limitations of iiability provided in this Section are in -
addition to, and not in limitation of, any limitation on
liability applicable to Owner or any Related Party provided by
law or in any other contract, agreement or instrument .
K. Recordation. In order to comply with
Section 65868 . 5 of the Government Code, the parties do hereby
direct the City Clerk to record a copy of this Agreement against
the Property with the County Recorder of Riverside County within .
ten (10� days after and not before the Effective Date .
L. Termination . If Owner does not acquire fee simple
title to the Property on or before August 31, 2002, this
Agreement shall automatically terminate and shall be of no
further force and effect . All other terms of this Agreement
shall remain in full force and effect in the event of Owner' s
cooperation with City.
IN WITNESS WHEREOF, Owner and City have executed this
Agreement as of the date first hereinabove written.
"City" "Owner"
CITY OF PAL DESERT, ABD PALM DESERT 118 , LLC, a
a mu�' ip c rporation California limited liability company
; . 1
By: American Beauty Development,
`,� �
By: ?`-- LLC, a California limited
Ma��nr m F rgu �ri Liability company, as managing
( ;' _ ,�, � Member
�
• �' J
ATTEST� �� J By: American Beauty Development
City C r � Co. , a California corporation,
Sheila R. Gillig�n/ ;- as managing member
'%r: ,', �
CRCHELED/34814/825255v11 3 5 02/15/O1
4RDINANCE N�. _
Approved as t9, Form:
,/ � �
.� � --
�y B Y �`
By: - ,� Daniel Shine, President
� Cit to ey
CRCHELED/39819/B25255v11 3 6 02/15/O1
dRDINANCE N4. 98 '
STATE OF CALIFORNIA )
) ss . -
COUNTY OF �I;S ;�n;L,�,'L�S
. On ,�`�� ��.- Z3 , 2001, before me, the undersigned,
a Notary Public in and for said County and State, personally
1
a pp e a r e d �Ct i`1��_ � � ��-��1-�- —`=
,
personally known to me
��*; ���^*^r�• ^T=�d����: to be the person �s} whose name (s}- is��e
subscribed to the within instrument and acknowledged to me that
he executed the same in his���,��e== authorized
capacity�-�e�-�-, and that by his�h�Y ��'��; �- signature (� on the
instrument the person (-s3 , or the entity upon behalf of which the -
person (-s� acted, executed the within instrument .
WITNESS my hand and official seal .
cH�n � Fow�rt �� 1
commi.ssro�#�v3��e ' L�, _,�} ���. ,
� NotQy Public-ca6faNa � N o t P u b�i
Lns Mgeles County
My C.orrvn•E�ces Sep 1.2oW
STATE OF CALIFORNIA )
) ss .
COUNTY OF �[���1� )
On ' , 2001, before me, the undersigned,
a Notary Public in and for said County and State, personally
a p p e a r e d �}�(1T�F,(��t,�S'Ot� cc.77..—fX/�}-E.�i LA K . �u� r�,n�
,
personally known to me (
-�,�a-t--��€�e��--c�-v�ic��n�p to be the person (s) whose name (s) �/are
CRCHELED/34814/B25255v11 3 7 02/15/O1
C�R�D I NANCE N�. 98 '
subscribed to the within instrument and acknowledged to me that
i�efs�h�c/they executed the same in � '�r/their authorized
• capacity (ies) , and that by ��,-i�/their signature (s) on the
instrument the person (s) , or the entity upon behalf of which the
person (s) acted, executed the within instrument .
WITNESS my hand and official seal .
No ary Pub ic '
i .��,-;. R�CN�LLE D.KLA:::•EN �
,,,,,.,-�� " COMM.�i14t�8 �
�•:Cr�:. ,, NOTARY PUBIIC-CAI.FORNU�
:�;� RNEASIDE COUNTY _
;c 3�✓` 11y cunm.Exp.,ArM t3,2aot �
CRCHELED/39814/625255v11 3 8 02/15/O1
�RDINANCE N0. J8 � �
EXHIBI'� "r."
- LEGAL DESCRIPTIO�i 0� PROPERTY
AL� THAT PORTION OF THE SOUTHWEST QUARTER OF FRACTIONAL SECTION 1,
TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS
SHOWN BY UNITED STATES GOVERNMENT SURVEY, �YING SOUTHERLY OF THE
RIGHT OF WAY OF THE SOUTHERN PACIFIC RAII.ROAD COMPANY.
EXCEPTING THEREFROM THE SOUTH 44 FEET AS CONVEYED TO THE COUNTY OF
RIVERSIDE BY DEED RECOR�ED MARCH 3, 1958 IN BOOK 2246, PAGE 531
OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION AS CONVEYEO TO THE CITY OF
PALM DESERT BY DEED RECORDED JULY 10, 1995 AS INSTRUMENT NO. 220685
OFFiCIAL RECORDS. _
SAID �AND IS ALSO KNOWN AS ALL THAT PROPERTY LYING WITHIN THE
BOUNDARIES OF TENTATIVE TRACT 29468.
CRCHELED/3�819/825255v11 Exhibit A - Page 1 02/15/O1
ORDINAN�E N�. 98 "
Exhibit "B"
� IIlustrative plan
�
i
i _.
sw[r ra•
m e
• PII[LIYINAIIT •ITE PLA
I �
I 10.000 S�. YIMIIW L�T SlZE
� � I`
I I r� ��IJ
� .1_L-/ .. _� � �
� .���. .. ._...J�.� . . .. .. ...� ...
_ _ I `
I -
1 I � 1
I �
�� _�.... . . _ . . .
� � �
I ! � I � �
1 I '
i 1 �
I I ` � I I I
w �; �\� �_� � � I_ � � -
, , l� �
O � 1 I I I• I j,
I
,; . , � ' ' �
� .. _ ____
I ' ' ' � i I \
� ; . __ _; , ! � . � ; �
� f----, � � � -'� .
a � ! i � ` � � �.� .
< � .
� �
� — - -
< r� -—� ,
;r � i � �� .
i ` I I %i ' ~� J•� . �
� •��
� i
i 'I i i I i �j,
�� _ . �
' _.L.__l �- �— .
1-- - -- �----i— -�_ _ . . .
couN,�Y . �. uo — oRrve
c�RDINANCE N�. 98 '
EXHIBIT "C"
' CONDITIONS OF APPROVAL --
CASE NOS. GPA 00-7, CJZ 00-5, TT 29468, TT 29555, DA 00-1
Department of Communitv Development:
1 . The development of the property shall conform substantially with exhibits on
file with the Department of Community Development, ds modified by the
following conditions.
2. Construction of a portion of said project shall commence within the time
coinciding with the 12 year term of the approved development agreement
unless an extension of time is granted; otherwise said approval shaH become
null, void and of no effect whatsoever.
3. The development of the property described herein shall be subject to the
restrictions and limitations set forth herein which are in addition to all
municipal ordinances and state and federal statutes now in force, or which -
hereafter moy be in force.
4. Prior to issuance of a building permit for construction of any use
contemplated by this approval, the applicdnt shall first obtain permits and/or
clearance from the following agencies:
Coachella Valley Water District
Palm Desert Architectural Commission
City Fire Marshal
Public Works Deparfment
Sunline Transit Agency
Evidence of said permit or clearance from the above agencies shall be
presented to the Department of Building and Safefy at the time of issuance
of a building permit for the use contemplated herewith.
5. All sidewalk plans shall be reviewed and approved by the Department of
Pubiic Works.
6 All new utilities shall be underground.
1
QRDINANCE NQ. 98 '
7. All sidewalk plans shall be reviewed and approved by the department of
public works prior to architectural review commission submittal.
8. Applicant agrees to maintoin the landscaping required to be installed
pursuant to these conditions. Applicant will enter into an agreement to
maintain said landscaping for the life of the project, which agreement shall
be notarized and which agreement shall be recorded. It is the specific intent
of the parties that this condition and agreement run with the {and and bind
successors and assigns. _
9. The project shall be subject to all applicable fees at time of issuance of
building permits including, but not limited to, Arf in Public Places, Fringe-Toed
Lizard, TUMF, School Mitigation and Housing Mifiigation fees. Fringe Toed
Lizard fee shall be paid at $600/acre.
10. All applicable Planned Residential standards shall apply.
11 . A noise study shall be conducted and mitigation measures shall be
implemented to insure compliance with the city's noise ordinance.
12. Access points along Tamarisk Row Drive shall be reserved for residents only.
13. Perimeter wall and perimeter landscaping adjacent to Tamarisk Row Drive,
Country Club Drive and the entry road off Country Club Drive shall be
installed with phase one of the tract.
Deaartr►�ent of Public Works:
1. Drainage fees in accordance with Palm Desert Municipal Code Section 26.49 and
Ordinance No. 653 shall be paid prior to recordation of the final map for TT 29468.
2. Any drainage faci{ity construction required for this project sha11 be contingent upon a
drainage study prepared by a registered civil engineer that is reviewed and
approved by the Department of Public Works prior to start of construction. The
project shall be designed to retain storm waters associated with the increase in
developed vs. undeveloped condition for a 100-year storm.
2
QRDINANCE N�. 98 ' -
� 3. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17
and 79-55, shall be paid prior to issuance of any permits associated with this
project. Project shall be responsible for the modification of the existing traffic signal
on Country Cfub Drive at the project entry. Said responsibility shall be limited to
one-half of the cost of the modification. Those costs may be used as a credit
against the subject signalization fees. Such a credit would be subject to approval
by the Palm Desert City Council.
4. The project shali be subject to Transportation Uniform Mitigation Fees (TUMF).
Payment of said fees shall be at the time of building permit�ssuance. -
5. A complete preliminary soils investigation, conducted by a registered soils engineer,
shall be submitted to, and approved by, the Department of Public Works priorto the
issuance of a grading permit.
6. Complete tract maps sha{I be submitted as required by ordinance to the Director of �
Public Works for checking and approval prior to the issuance of any permits
associated with this project.
7. As required under Palm Desert Municipal Code Section 26.28, and in accordance
with Sections 26.40 and 26.44, complete improvement plans and specifications
shall be submitted to the Director of Public Works for checking and approval before
construction of any improvements is commenced. Offsite improvement plans to be
approved by the Public Works Department and a surety posted to guarantee the
installation of required offsite improvements prior to permit issuance.
8. All public and private improvements shall be inspected by the Depa►tment of Public
Works and a standard inspection fee shall be paid prior to issuance of grading
permits.
9. In accordance with the Circulation Network of the Palm Desert General Plan,
installation of the northerly half landscaped median island in Country Club Drive
shaN be provided. Landscape shall be drought tolerant in nature. Developer may
pay cash in lieu of actual construction.
10. Landscape installation on the property frontages shall be water efficient in nature
and shall be in accordance with the City of Palm Dese�t landscape design
standards. Landscaping maintenance for said landscape shall be provided through
3
�RDINANCE Na. 98 "
� a property owners association. Applicant shall be responsible for executing a
declaration of Conditions, Covenants and Restrictions, which declaration shall be
approved by the City of Palm Desert and recorded with the county recorder. The
declaration shall specify: (a)the applicant shall oversee the formation of a property
owners association; (b)the property owners association shall be formed prior to the
recordation of the fnal map TT 29468; and c) the aforementioned landscaping
maintenance shall be the responsibility of the property owners association.
11. Applicant shall comply with the provisions of Municipal Code Section 24.12, Fugitive
Dust Control as well as Section 24.20, Stormwater Management and Discharge
Control.
12. Any and all offsite improvements shall be preceded by the approva{ of plans and
the issuance of valid encroachment permits by the Department of Public Works.
13. In accordance with Palm Desert Municipal Code Section 26.44, complete grading -
plans/site improvement plans and specifications shall be submitted to the Director of
Public Works for checking and approval prior to issuance of any permits.
14. Traffic safety striping on Country Club Drive, Tamarisk Row Drive and "I" Street
shall be provided to the specifications of the Director of Public Works. A traffic
control plan must be submitted to, and approved by, the Director of Public Works
prior to the placement of any pavement markings.
15. Full public improvements, as required by Sections 26.40 and 26.44 of the Palm
Desert Municipal Code, shall be installed in accordance with applicable City
standards. Improvements shall include, but not be limited to the following:
* Installation of curb and gutter at 43 feet from centerline, AC
paving and meandering sidewalk along the Country Club Drive
frontage adjacent to property.
" Installation of curb and gutter at 38 feet from
centerline,AC paving and meandering sidewalk
along the Tamarisk Row Drive frontage.
* Instatlation of street improvements (curb and
gutter, AC paving and sidewalk) for"I" Street as
4
QRDINANCE N4. �8 ' �
� shown on the tentative map exhibit and as
described within the project development
agreement.
* Modification to the existing traffic signal on
Country Club Drive at"I" Street to provide for full
intersection operation.
�' Installation of transit facilities shall be as follows:
a. If Sunline provides bus service to this area prior to
commencement of construction, the developer shalt install a
bus shelter. The bus shelter is to be constructed to
aesthetically match the architecture of the complex or
building(s). The bus shelter dimensions shall be at minimum 8'
x 18' x 8'; the bus shelter shall include, but not be (imited to, -
electrical lighting, bench(es), and other components(i.e.,trash
container) not listed. The bus shetter and pad to be ADA
compliant. The pad dimensions shall be a minimum of 10' x
20' and 3.5" thick.
b. However, if Sunline does not provide bus senrice to this area
prior to commencement of construction, the developer shall
pface a bus shelter pad on the site. The pad dimensions
should be a minimum of 10' x 20' and 3.5" thick, the pad shall
be ADA compliant, and the electrical conduit to be run from the
house panel to within 12" but no closer than 6" to the bus
shelter pad for future bus shefter installation.
Regardless of the timing of Sunline service, a bus turnout shall be
installed to Sunline Transit standards during construction of phase
one.
* Lots 272 and 273 along the northerly project boundary shall be
dedicated to the City of Palm Desert for pedestrian/bicycle route
purposes.
5
OR�D I NANCE N�. 98 �
� Residential street sections shall be as shown on the tentative tract map with a
minimum width of thirty-six feet. Rights-of-way necessary for the construction of
required public improvements shall be provided on the Tract Map.
16. Proposed building pad elevations are subject to review and modification in
accordance with Chapter 27 of the Palm Desert Municipal Code.
17. As required under Sections 26.32 and 26.40 of the Palm Desert Municipal Code, all
existing overhead utilities shall be placed underground per the respective utility
district recommendation.
18. Waiver of access rights to Country Club Drive, Tamarisk Row Drive and "I" Street
except at approved locations shall be granted on the Final Map.
19. Prior to start of construction, the applicant shall submit satisfactory evidence to the
Director of Public Works of intended compliance with the National Pollutant
Discharge Elimination (NPDES) General Permit for storm water discharges �
associated with construction.
Riverside Countv Fire Deaartment:
1 . With respect to the conditions of approval regarding the above referenced
project, the fire deparfment recommends the following fire protection
measures be provided in accordance with City Municipal Code, NFPA, UFC,
and UBC or any recognized Fire Protection Standards:
The Fire Department is required to set a minimum fire flow for the remodel or
construction of all buildings per UFC article 87.
2. A fire flow of 1500 gpm for a 1 hour duration at 20 psi residual pressure must
be available before any combustible material is placed on the job site.
3. Provide or show there exists a water system capable of providing a gpm flow
of 1500 gpm for single family dwellings.
4. The required fire flow shall be available from a wet barrel Super Hydrant(s) 4"
x 2Yz" x 2Yz", located not less than 25' nor more than 200' from any portion of
a singie family dwelling measured via vehicular travelway.
6
�RDINANCE NQ. 98 '
� 5. Water p{ans must be approved by the Fire Marshal and include verification
that the water system will produce the required fire flow.
6. All buildings shall be accessible by an all-weather roadway extending to
within 150' of all porfions of the exterior walls of the first story. The roadway
shall not be less than 24' of unobstructed width and 13'6" of verfical
clearance. Where parallel parking is required on both sides of the street the
roadway must be 36'wide and 32'wide with parking on one side. Dead-end
roads in excess of 150' shall be provided with a minimum 45' radius turn-
around 55' in industrial developments. �
7. Whenever access into private property is controlled through use of gates,
barriers or other means provisions shall be made to install a "Knox Box" key
over-ride system to allow for emergency vehicle access. Minimum gate
width shall be 16' with a minimum vertical clearance of 13'6".
8. All buildings shall have illuminated addresses of size approved by the city.
9. Conditions subject to change with adoption of new codes, ordinances, laws
or when building permits are not obtained within 12 months.
7
I I
ORDiNANCE NO. 981
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CA�IFORNIA, APPROVING A --
DEVELOPMENT AGREEMENT BETWEEN ABD PALM
DESERT 118, LIC, AND THE CITY OF PALM DESERT FOR
� 117.5 +/- ACRES AT THE NORTHEAST CORNER OF
TAMARISK ROW DRIVE AND COUNTRY CLUB DRIVE.
C�,�E NO. DA 00-01 AS IT RELAjES TO CASE NOS. GPA 00-07.
C/Z 00-5, TT 29468 AND TT 29555
WHEREAS, the City Council of the City of Palm Desert, California, did on the
22nd day of Feb�uary, 2001, hold a duly noticed public hearing to consider the request
by ABD PALM DESERT 118, LLC, for approval of DA 00-01; and
WHEREAS, California law provides the operative date of an ordinance may be
made contingent upon the occurrence of a future event; and
WHEREAS, it is the intention of City that this Ordinance shall become effective
thirty (30) days after the date of its adoption but shall not become operative until the
date of recordation of a grant deed conveying title to the Property from the existing
owner of the Property, Palm Desert (Riverside) PIP, L.P. to ABD Palm Desert, LLC �
("ABD Palm Desert") is recorded in the Official Records of Riverside County (the
. "G�ant Deed Recordation Date").
WHEREAS, at said public hearing, City Council heard and considered all
testimony and arguments of all interested persons.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm
Desert, California, as follows:
1 . That the above recitations are true and correct and constitute the findings
of the City Council in this case.
2. That DA 00-01 Exhibit "A" as attached hereto is hereby approved.
3. The City Clerk of the City of Palm Desert, California, is hereby directed
to publish this ordinance in the Desert Sun, a newspaper of general
circulation, published and circulated in the City of Palm Desert, California,
a�d shall take effect thirty (30y days after the date of its adoption;
provided, however, this Ordinance shall only become operative upon the
Grant Deed Recordation Date.
ORDINANCE NO. 981
PASSED, APPROVED AND ADOPTED by the Palrm Desert City Council this �2th �
day of April , 2001, by the following vote, to wit:
AYES: BENSON, CRITES, KELLY, SPIEGEL, FERGUSON
NOES: I30NE
ABSENT: NONE
ABSTAIN: NONE
J FE O , Mayor
ATTEST:
_� � �
�lL� �G
, SHEILA R. GI LIGA , ity Clerk
City of Palm Dese , alifornia
EACH DOCUMEtVT TO WHICH THIS CERTIFICATE IS
A�i�rA.CH�L�. IS CERTIFIE()TO BE A F��LL,TRUE A.f�70
CORRECT COPY OF TNE O�IG(NAi.ON FtLE AND U(V
RECGRJ tN MY OFFICE.
Dated: �� � �.,,_�
HACHELLE D. KLA�SEfV, CPty CI?rit
C' f I e �Galifo ia
��r� \
2
or �.��,
.:,t` '�rS,��
LE���� ��. wA� Recorde�•
P.O.Box 751
* C()UI��'1' �F i�IVERSIllE k��e,�s�a�,C'.A 92�02-075!
'-: '; ASSESSOR—COUNT'Y CLEItK-1trC;ORDER (y51)4A6-7000
`��, J
k i�� ll'�\'U'.l�l\'('l'�l(.���1(:C.(:()lll
�nl;���"�t\`"4-� � "
CERTIFICATION
Pursuant to the provisions of Government Code 27361.7, l certify under the penalty of perjury
that the following is a true copy of illegible wording found in the attached document:
(Print or tYpe the qaqe number(s) and wordinq below):
Development Agreement No. 00-01 (Ordinance No. 981)
Page 35
Embossed Seal reads as follows:
Palm Desert .
Incorporated 1973 November 26
Date: i �_ - ._>{ ? C� �
, ) ) > •,
Signature: � ��,�/ ,C /
/
Print Name: ' �� � � -
� � + ��; '�` ,, ;=,
ACIt 601 P-AS4RG0(R�v.09:200�) Availablc in.Altcmatc Fonnats