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HomeMy WebLinkAboutUnit Membership Agmt - The Retreat at Desert WillowContract No. C40640 STAFF REPORT CITY OF _PALM DESERT ECONOMIC DEVELOPMENT DEPARTMENT MEETING DATE: , October 15, 2020 PREPARED BY: Martin Alvarez, Economic Development Director Christopher Gerry, Management Analyst REQUEST: Approve the Desert Willow Unit Membership Agreement for golf -related benefits provided to households at The Retreat at Desert Willow. Recommendation By Minute Motion, approve the Desert Willow Unit Membership Agreement by and between the City of Palm Desert, The Retreat at Desert Willow Homeowners Association and Portola PD, LLC. Backaround On May 2, 2016, the City of Palm Desert (City) and Portola PD, LLC (Developer) recorded a development agreement (Instrument No. 2016-01757) for the development of The Retreat at Desert Willow. The Retreat consists of 112 residential units on 15.5 acres in a gated community located on Portola Avenue and contiguous to the Desert Willow Golf Resort. The property has since been fully developed and all units have been sold. The development agreement identified broad membership privileges for two household members at the Desert Willow Golf Resort in exchange for a $75 monthly access fee per unit. Those membership privileges outlined in the development agreement included access to: • The Palm Desert Golf Academy at Desert Willow membership and applicable discounts and benefits; • Unlimited use of Academy practice facility; • Platinum Club membership and applicable discounts and benefits; and • Private golf cart access throughout Desert Willow Golf Resort. The development agreement, specifically Section 9.15.e (Attachment A), included that the City, Developer and The Retreat at Desert Willow Homeowners Association (HOA) would further define the respective terms and conditions in a separate agreement. Accordingly, all parties have agreed to and City staff recommends the terms and conditions identified in the Desert Willow Unit Membership Agreement (Attachment B). Fiscal Analvsis The City will continue to receive an annual access fee from The Retreat at Desert Willow that equates to $100,800 annually. The agreement provides for and is subject to an annual Consumer Price Index for All Urban Consumers (CPI-U) adjustment beginning July 1, 2021. October 15, 2020 - Staff Report Desert Willow Unit Membership Agreement Page 2 of 2 LEGAL REVIEW Robevt9argreavek Robert W. Hargreaves City Attorney DEPT. REVIEW i?ia�rtisc �4Fuaae� Martin Alvarez Director of Economic Development Interim City Manager, vQ�: Attachments A. Development Agreement (Section 9.15.e) B. Desert Willow Unit Membership Agreement FINANCIAL REVIEW Janet Moore Director of Finance ASSISTANT CITY MANAGER A04- F, voozaw Andy Firestine Assistant City Manager slopes, drywells, walls and other underground drainage appurtenances within the retention basin, may be transferred to the HOA and/or included as an obligation of the HOA pursuant to the CC&Rs, in either of which event Developer shall be released from said obligation. d. Prior to City's issuance of any occupancy permit for the Project, but not as a condition to City's issuance of any building permits for the Project, Developer shall provide a one-time maintenance "clean up" of existing landscaping on the common east/north property line adjacent to the Desert Willow Golf Resort, hole No. 6, in a manner that is reasonably acceptable to City. Such obligation shall not require Developer to install new landscaping or to install, repair or replace any irrigation system servicing such existing landscaping. e. Unit owners shall, upon closing on their respective Completed Unit, automatically become the equivalent of an Academy Golf Member and Platinum Club Member at the City owned Desert Willow Golf Resort adjacent. to the Property (each a "Unit Member") for the Monthly Unit Access Fee (as set forth below) with no additional fees or costs or buy -in amount pursuant to the terms of the CC&Rs (or an amendment thereto) and a separate agreement between Developer, City and the HOA addressing the specific terms of Unit Membership (the "Desert Willow Unit .Membership Agreement"). City and Developer shall cooperate with each other and the HOA with respect to finalizing the Desert Willow Unit Membership Agreement and the applicable terms of the CC&Rs (or an amendment thereto) as soon as practicable. The Desert Willow Unit Membership Agreement shall contemplate, among other things, that (i) each owner of a Completed Unit (but no more than two co - owners per Completed Unit) shall become a Unit Member upon the closing on their respective Completed Unit, (ii) each Unit Member shall have, without limitation, the benefit of all of those certain Desert Willow Golf Resort Membership Privileges set forth on Exhibit "C" attached hereto and incorporated herein, (iii) the HOA shall be responsible for collecting the Monthly Unit Access Fees from the owners of Completed Units and paying same over to City (or the then owner of the Desert Willow Golf Resort), which Monthly Unit Access Fees shall be paid by the HOA to the City on a quarterly basis, (iv) such agreement is intended to be perpetual in nature and shall run with the land and be recorded against the land underlying the Desert Willow Golf Resort, (v) the Monthly Unit Access Fee shall be fixed at $75 per month per Completed Unit, and (vi) Developer shall not be responsible for the payment of any Monthly Unit Access Fees. -16 72500.00883\24631316.1 DESERT WILLOW UNIT MEMBERSHIP AGREEMENT This Desert Willow Unit Membership Agreement (AGREEMENT) is made and entered into as of the 15th day of October, 2020, by and between the City of Palm Desert, a California municipal corporation (CITY), The Retreat at Desert Willow Homeowners Association, a California Non-profit Mutual Benefit Corporation (HOA) and Portola PD, LLC (DEVELOPER). RECITALS WHEREAS, on May 2, 2016, CITY and DEVELOPER recorded Development Agreement (Retreat at Desert Willow) as Instrument No. 2016-017570 (DEVELOPMENT AGREEMENT). WHEREAS, Section 9.15.e. in DEVELOPMENT AGREEMENT states: " Unit owners shall, upon closing on their respective Completed Unit, automatically become the equivalent of an Academy Golf Member and Platinum Club Member at the City owned Desert Willow Golf Resort -adjacent to the Property (each a "Unit Member") for the Monthly Unit Access Fee (as set forth below) with no additional fees or costs or buy -in amount pursuant to the terms of the CC&Rs (or an amendment thereto) and a separate agreement between Developer, City and the HOA addressing the specific terms of Unit Membership (the "Desert Willow Unit Membership Agreement"). City and Developer shall cooperate with each other and the HOA with respect to finalizing the Desert Willow Unit Membership Agreement and the applicable terms of the CC&Rs (or an amendment thereto) as soon as practicable. The Desert Willow Unit Membership Agreement shall contemplate, among other things, that (i) each owner of a Completed Unit (but no more than two co -owners per Completed Unit) shall become a Unit Member upon the closing on their respective Completed Unit, (ii) each Unit Member shall have, without limitation, the benefit of all of those certain Desert Willow Golf Resort Membership Privileges set forth on Exhibit "C" attached hereto and incorporated herein, (iii) the HOA shall be responsible for collecting the Monthly Unit Access Fees from the owners of Completed Units and paying same over to City (or the then owner of the Desert Willow Golf Resort), which Monthly Unit Access Fees shall be paid by the HOA to the city on a quarterly basis, (iv) such agreement is intended to be perpetual in nature and shall run with the land and be recorded against the land underlying the Desert Willow Golf Resort, (v) the Monthly Unit Access Fee shall be fixed at $75 per month per Completed Unit, and (vi) Developer shall not be responsible for the payment of any Monthly Unit Access Fees." WHEREAS, Exhibit C in DEVELOPMENT AGREEMENT identifies that each owner of a completed unit within the property (up to two (2) per completed unit) shall receive the benefits, as follows: 1. The Palm Desert Golf Academy at Desert Willow (ACADEMY) membership and applicable discounts and benefits; 2. Unlimited use of Academy practice facility; 3. Platinum Club membership and applicable discounts and benefits; and -1- Desert Willow Unit Membership Agreement October 15, 2020 4. Private golf cart access throughout the Desert Willow Golf Resort. WHEREAS, the parties hereto wish to identify the specific terms of AGREEMENT. ri X RQ5 M NOW, THEREFORE, the, parties hereto covenant and agree, as follows: 1. DEFINITIONS. Unless otherwise stated herein, the definitions identified in Paragraph 6. of DEVELOPMENT AGREEMENT shall have the same meaning and effect as the capitalized terms contained below. 2. BENEFITS AT DESERT WILLOW GOLF RESORT. Owner of each COMPLETED UNIT (OWNER) at The Retreat (PROPERTY) shall receive two (2) cards conferring the benefits to each cardholder (MEMBERSHIP CARD) as identified below. 2.1. Current ACADEMY individual membership benefits offered at RESORT, including use of ACADEMY practice facilities; 2.1.1. Benefits shall be consistent with benefits of ACADEMY members without MEMBERSHIP CARD or its then in existence equivalent membership; 2.1.2. If ACADEMY is temporarily or permanently closed, or if access is limited or reduced, cardholders shall have the option to use the resort driving range consistent with access provided to those individuals holding a same day tee time. 2.2. Current Platinum Club membership benefits offered at RESORT; 2.2.1. Discounted green fees for OWNER are subject to revision, but shall be consistent with benefits of Platinum Club members without MEMBERSHIP CARD or its then in existence equivalent membership; 2.2.2. Each year when the terms of the discounted green fees for OWNER are announced (GREEN FEE DISCOUNT), the HOA shall have 30 days to opt -out of the GREEN FEE DISCOUNT and alternatively receive an OWNER discount of twenty five percent (25%) off the posted or `dynamic' price, whichever is lower. All other benefits of the Platinum Club attached hereto as Exhibit A and made a part hereof by this reference (OTHER PLATINUM CLUB BENEFITS) shall remain in effect. 2.2.3. If the Platinum Club membership is cancelled, the HOA shall receive an OWNER discount of twenty five percent (25%) off the posted or `dynamic' price, whichever is lower. All OTHER PLATINUM CLUB BENEFITS shall remain in effect. 2.3. Exclusive direct access along the golf cart path (golf carts only) in personal golf cart only from PROPERTY to and from ACADEMY and RESORT. -2- Desert Willow Unit Membership Agreement October 15, 2020 2.4. Only golf carts issued by RESORT are allowable when playing the golf course at RESORT. 3. PAYMENT. Owner of COMPLETED UNIT shall pay the current benefit fee of $75.00 per month (MEMBERSHIP FEE) per COMPLETED UNIT owned within PROPERTY for MEMBERSHIP CARD. MEMBERSHIP FEE shall be paid through HOA and part of the regular monthly assessment for each COMPLETED UNIT. 4. ESCALATION. The benefit fee of $75.00 per month shall be effective July 1, 2020. The monthly benefit fee shall annually be adjusted by the amount of the change in the Consumer Price Index for All Urban Consumers (CPI-U) for the prior calendar year beginning July 1, 2021. The amount of the annual escalation can never exceed three percent (3%) and there is no carryover from a higher CPI-U year to a future low CPI-U year. 5. TRANSFER. Owner shall sign and agree to RESORT's policies and procedures. Owner of COMPLETED UNIT shall retain the right to MEMBERSHIP CARD listed above until the ownership of COMPLETED UNIT ceases for any reason, at which time MEMBERSHIP CARD shall automatically cease and transfer to the respective new owner of COMPLETED UNIT. Owner shall be allowed a one-time assignment of MEMBERSHIP CARD during ownership of COMPLETED UNIT. MEMBERSHIP CARD may only be transferred due to an extenuating circumstance including, but not limited to, death, a health condition or a relocation that makes its use impractical. In addition, MEMBERSHIP CARD cannot be sold, bartered or traded otherwise its rights shall be terminated. 6. ASSIGNMENT. The parties to AGREEMENT hereby warrant and represent that the parties have not heretofore assigned or transferred, or purported to have assigned or transferred to any person whomsoever, any matter, including claims, released or covered by AGREEMENT or any part or portion thereof. 7. NON -WAIVER OF CONDITIONS. No delay, omission or neglect by any party in exercising any right or power accruing upon the non-compliance or failure of performance by any party under the provisions of AGREEMENT shall impair any such right or power or be construed to be a waiver thereof. The waiver by any party of the performance of any covenants, agreement, condition or restriction contained herein shall not invalidate AGREEMENT or be deemed to constitute a waiver of any other covenant, agreement, condition or restriction contained herein. The waiver by any party of the time for performing any act hereunder shall not constitute a waiver of the right to acquire the timely performance of any identical act or the performance of any other .covenant, condition or agreement required to be performed hereunder at a later date. 8. AUTHORIZATION. Each party hereto represents and warrants that it has all necessary and appropriate authority to enter into AGREEMENT, and that each person executing AGREEMENT on such party's behalf has been empowered and authorized to do so pursuant to appropriate authorization. -3- Desert Willow Unit Membership Agreement October 15, 2020 9. GOVERNING LAW. AGREEMENT shall be governed by, and construed and enforced in accordance with, the laws of the State of California, with venue in Riverside County and no other county. 10. ENTIRE AGREEMENT; AMENDMENT. AGREEMENT, together with any related documents executed concurrently herewith or referred to in AGREEMENT, constitutes the entire understanding between the parties and supersedes any and all other prior agreements, whether written or oral, between the parties. Each party acknowledges and represents that it is relying on no representations by any other party other than those specifically set forth, or referred to, in AGREEMENT. AGREEMENT shall not be modified by either party by oral representation made before or after execution of AGREEMENT. All modifications must be in writing and signed by both parties. 11. RUNNING WITH THE LAND. Parties agree that AGREEMENT shall be a covenant running with the land and shall bind and be a charge upon PROPERTY and RESORT to the successors or assigns hereof. 12. BINDING EFFECT. The terms, conditions and agreements herein contained shall be kept and performed by the respective parties hereto and will be binding upon them and each of their successors and assigns. 13. NOTICES. Any notice required or permitted to be given under AGREEMENT or other communications between the parties to AGREEMENT shall be in writing, delivered in person, by a recognized private courier company or by United States mail, registered or certified mail, postage prepaid, return receipt requested. For purposes of AGREEMENT, notices shall be deemed to have been "given" or "delivered" upon personal delivery thereof or forty-eight (48) hours after having been deposited in the United States mail as provided herein. Notice shall be given at the following locations: CITY: Citv of Palm Desert Attn: Randv Bvnder. Interim Citv Manaaer 73510 Fred Warning Drive Palm Desert. CA 92260 DEVELOPER: Portola PD. LLC Attn: Rudv C. Herr'era. Manager 73081 Fred Warine Drive Palm Desert. CA 92260 -4- Desert Willow Unit Membership Agreement October 15, 2020 HOA: The Retreat at Desert Willow Homeowners Association Attn: David Sams, President 73081 Fred WarinL- Drive Palm Desert, CA 92260 14. SEVERABILITY. If any term, provision, condition or covenants of AGREEMENT or its application to any party or circumstance shall be held, to any extent, invalid or unenforceable, the remainder of AGREEMENT, or the application of the terms, provisions, conditions or covenants to persons or circumstances other than those to whom or for which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 15. CONSTRUCTION. AGREEMENT shall not be construed against the party preparing it but shall be construed as if both parties prepared AGREEMENT and in accordance with the laws of the State of California. The captions and headings of the paragraphs of AGREEMENT are for convenience of reference only and shall not be deemed to define or limit the provision hereof. 16. ATTORNEYS FEES. In the event that any action, suit or other proceeding is instituted to remedy, prevent or obtain relief from a breach of AGREEMENT, or arising out of a breach of AGREEMENT, the prevailing party shall recover all of such party's attorneys' fees incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions. 17. COUNTERPARTS. AGREEMENT may be executed in two (2) or more counterparts; each counterpart shall be deemed an original instrument as against the party who signed it. (SIGNATURES ON NEXT PAGE) -5- Desert Willow Unit Membership Agreement October 15, 2020 IN WITNESS WHEREOF, the parties hereto have executed this Retreat at Desert Willow Unit Membership Agreement. CITY: DEVELOPER: CITY OF PALM DESERT PORTOLA PD, LLC By: By: Gina Nestande, Mayor Rudy C. Herrera, Manager Date: Date: ATTEST: HOA: The Retreat at Desert Willow Homeowners Association By: By: Grace Rocha, Interim City Clerk David Sams, President Date: Date: APPROVED AS TO FORM: By: Robert W. Hargreaves, City Attorney Best, Best& Krieger, LLP Date: -6- Desert Willow Unit Membership Agreement October 15, 2020 EXHIBIT A OTHER PLATINUM CLUB BENEFITS • Platinum Twilight 1 Hour Earlier than Non -Cardholders • Secure Tee Times up to 21 Days in Advance • 50% OFF Driving Range • 50% OFF GHIN Handicap • 25% OFF Apparel (Non -Sale Items) • 15% OFF Accessories, Gift Items, and Footwear (Non -Sale Items) • 15% OFF Individual Golf Lessons • .10% OFF Desert Willow Luxury Collection Online Golf Store • 10% OFF Restaurant Dining at The Terrace at Desert Willow Golf Resort (Food Only) • D-iscounts at Local Retail Partners and at Participating Properties 0 -%- Desert Willow Unit Membership Agreement October 15, 2020