HomeMy WebLinkAboutOrdinance 1285 - Development Agreement 15-15 - Portola PD LLCORDINANCE NO. 1285
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT
FOR THE RETREAT AT DESERT WILLOW FOR 112 CONDOMINIUM UNITS
AND COMMON AREA AMENITIES ON 15.52 ACRES LOCATED AT 38-400
PORTOLA AVENUE
CASE NO: DA 15-15
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on
the 21 st day of April, 2015, hold a duly noticed public hearing to consider the request by
Portola PD, LLC for approval of the above noted and adopted Planning Commission
Resolution 2648 recommending approval to the City Council; and
WHEREAS, the City Council of the City of Palm Desert, California, did on the 271n
day of August, 2015, hold a duly noticed public hearing, which was continued from June 11,
2015 and July 9, 2015 to consider the request by Portola PD, LLC for approval of the above
noted Development Agreement; and
WHEREAS, said applications have complied with the requirements of the "City of
Palm Desert Procedure for Implementation of the California Environmental Quality Act,"
Resolution No. 2014-41, the Director of Community Development has determined that the
project will not have a negative impact on the environment and that a negative declaration
can be adopted; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of all interested persons desiring to be heard, the City Council did find the
following facts and reasons to exist to justify the approval of said request:
1. The Development Agreement provides the City and the developer with a higher
degree of certainty of how the project will be developed, what associated fees
and improvements will be required, and assurance of consistency with City
policies, ordinances, regulations, and exceptions allowed as part of the zoning
ordinance or DA. Listed are the key components that staff and the applicant
agreed on for development of the project.
• The increased project density of 8 du/acre is provided in the Development
Approvals.
• The maximum height of 30 feet is provided in the Development Approvals.
• Developer will install a 6-foot high slump stone block wall along the
Portola Avenue frontage of the retention basin. The wall must match the
color, texture, width, and flagstone columns of the block wall to the
existing Desert Willow perimeter block wall.
DA 15-15 ORDINANCE NO. 1285
• Developer will install double metal gates to provide access from Portola
Avenue the retention basin and related improvements.
• Developer will install and maintain desert landscaping in front of the
perimeter block wall and transfer the responsibility to the Homeowners
Association (HOA) and/or include maintenance as an obligation of the
HOA pursuant to the CC&Rs.
• Developer will plant trees on the south side of the retention basin to
screen the maintenance building.
• Developer will maintain the retention basin, including the retention basin
slopes, drywells, walls, and perimeter trees and other underground
drainage appurtenances within the retention basin. The Developer may
transfer the responsibility to the HOA.
• Developer will provide a one-time maintenance "clean up" of existing
landscaping on the common east/north property line adjacent to the
Desert Willow Golf Resort, Golf Hole No. 6.
• All homeowners (two per household) upon closing on their units
automatically become the equivalent of Academy Golf Members and
Platinum Club Members at the City -owned Desert Willow Golf Resort for a
monthly fee of $75.00.
• Golf Academy Membership and Applicable Discounts and Benefits
• Unlimited Use of Academy Practice Facility
• Platinum Club Membership and Applicable Discounts and Benefits
• Private Golf Cart Access Throughout Resort
• An alternative to providing affordable, low-income, moderate -income or
any other subsidized or inclusionary housing, the developer will pay an
Affordable Housing Fee of $ per square foot. (The amount of the fee
will be established during the public hearing when the DA is considered by
the City Council.)
2. The project meets the intent of the Planned Residential zone by providing a
mixture of residential densities in the surrounding area. The building density
would not adversely impact any adjacent properties. The proposed buildings only
occupy 23 percent of the property, while 44 percent will be landscaping.
3. The design and layout of the 112 condominium units are in compliance with all
grading requirements and the properties will be developed in accordance with the
Uniform California Building Code. Grade changes in the community are
accommodated by the street layout and open space provided throughout the
subdivision. Pedestrian access is provided to adjoining land uses (Desert Willow
Golf Resort), which decreases the need for vehicular traffic between adjoining
properties.
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DA 15-15 ORDINANCE NO. 1285
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 the City Council does hereby approve Development Agreement 15-15 as
proposed.
3. That Development Agreement 15-15, Exhibit "A" attached hereto, by Ordinance No.
1285 is hereby approved.
4. That 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 be in full
force and effect thirty (30) days after its adoption.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm
Desert, California, at its regular meeting held on the 27th day of August, 2015, by the
following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
SUSAN MARIE WEBER, MAYOR
ATTEST:
RACHELLE D. KLASSEN, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
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DA 15-15 Ordinance No. 1285
Exhibit "A"
RECORDING REQUESTED BY, AND
WHEN RECORDED RETURN TO:
City Clerk's Office
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Fee Exempt - Gov't Code §6103
(Space above for Recorder's Use)
DEVELOPMENT AGREEMENT
(RETREAT AT DESERT WILLOW)
between
THE CITY OF PALM DESERT,
a California Municipal Corporation
and
FAMILY DEVELOPMENT GROUP, INC.,
a Delaware Corporation
Dated as of June 11, 2015, for reference purposes only
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered by and among
the City of Palm Desert, a California municipal corporation ("City"), and Family
Development Group, Inc., a Delaware corporation ("Developer") with reference to the
following facts:
RECITALS.
A. To strengthen the public planning process, encourage private participation
in comprehensive planning and reduce the economic risk of development, the
Legislature of the State of California adopted the "Development Agreement Statute,"
Sections 65864 et seq., of the Government Code. City, a California charter city, is
authorized pursuant to the Development Agreement Statute to enter into development
agreements with persons having legal or equitable interests in real property for the
purpose of establishing predictability for both City and Developer in the development
process. Developer has requested that City enter into a development agreement for the
development of the Property, as defined below. City enters into this Agreement
pursuant to the provisions of the California Government Code, the City's General Plan,
the City Municipal Code, and applicable City policies.
B. Developer has entered into an Agreement of Purchase and Sale and
Escrow Instructions to purchase from the Successor Agency to the Palm Desert
Redevelopment Agency (SARDA") that certain parcel of approximately 15.5 acres of
unimproved land commonly known as Desert Willow Lot Pad F, APN 620-400-0228,
and more particularly described in Exhibit "A" (the "Property"). Developer desires to
develop the Property in residential development.
F. The Parties desire to enter into this Agreement in order to preserve
Developer's rights to develop the Property pursuant to the applicable approvals, rules,
regulations, and policies that are in place at the time of this Agreement, and to ensure
sufficient funding is available to provide adequate and appropriate public facilities,
infrastructure and services in advance of or at the time of need generated by the further
development of the Property and that the Property will be developed in accordance with
City's General Plan, and the City's Zoning Ordinance, and the Development Approvals
as defined in Section 6.7.
G. This Agreement constitutes a current exercise of City's police powers to
provide predictability to Developer in the development approval process by vesting the
permitted uses(s), density, intensity of use, and timing and phasing of development
consistent with the General Plan and the Zoning Code. This Agreement allows City to
realize significant economic benefits and services, which will advance the interests and
meet the needs of the City's residents, businesses, and visitors to a greater extent than
the current land uses.
H. Developer desires to enter into this Agreement in order to eliminate
uncertainty in planning for and secure orderly development of the Project, as defined in
Section 6.16.
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AGREEMENT
City and Developer agree as follows:
1. Incorporation of Recitals. Each of the Recitals set forth above are part of this
Agreement.
2. Purchase and Sale Agreement. On December 23, 2014, SARDA and Developer
entered that certain Agreement of Purchase and Sale and Escrow Instructions for
the Property.
3. Public Hearings. On , 2015 ("Approval Date"), the City Council held
a public hearing on the Development Approvals, including the approval of this
Agreement, considered the recommendations of Staff, and made the findings set
forth in Section 4.
4. City Council Findings. The City Council finds that this Agreement and the
Development Approvals are consistent with City's General Plan, as well as all
other applicable ordinances, plans, policies, and regulations of the City in effect
as of the Approval Date.
4.1 The City Council finds that this Agreement will ensure a desirable and
functional community environment, provide effective and efficient
development of public facilities, infrastructure, and services appropriate for
the development of the Project, assure attainment of maximum effective
utilization of resources within the City, moderate the cost of housing and
development to the consumer, and provide other significant benefits to the
City and its residents.
4.2 The City Council finds that this Agreement strengthens the public planning
process, encourages private participation in comprehensive planning,
particularly with respect to the implementation of the City's General Plan,
and reduces the economic costs of development and government.
4.3 The City Council finds that the best interests of the citizens of the City and
the public health, safety and welfare will be served by entering into this
Agreement.
4.4 The City Council finds that this Agreement is consistent with the City's
General Plan.
5. Continuing Obligations. City acknowledges that this Agreement binds City now
and in the future. By approving this Agreement, the City Council has elected to
exercise certain governmental powers at the time of entering into this Agreement
rather than deferring its actions to some undetermined future date. The terms
and conditions of this Agreement have undergone extensive review by the City
staff and the City Council and have been found to be fair, just and reasonable.
City has concluded that the Project will serve the best interests of its citizens and
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that the public health, safety, and welfare will be best served by entering into this
Agreement.
6. Definitions. In this Agreement, unless the context otherwise requires, the
following terms and phrases shall have the following meanings, whether or not
capitalized herein:
6.1 "Agreement" shall mean this Development Agreement between the City
and Developer. The term "Agreement" shall include any amendment
properly approved and executed pursuant to Section 8.5.
6.2 "City" shall mean the City of Palm Desert, a California municipal
corporation.
6.3 "City Council" shall mean the governing legislative body of the City.
6.4 "City Municipal Code" shall mean the Palm Desert Municipal Code.
6.5 "Day" refers to a calendar day unless specifically stated as a "business
day."
6.6 "Development" shall mean the improvement of the Property and other
property pursuant to the Development Approvals for the purposes of
completing the structures, improvements and facilities comprising or
required in connection with the Project, including, but not limited to:
grading; the construction of infrastructure and public and private facilities
related to the Project whether located within or outside the Property; the
development and construction of Units, buildings and structures on the
Property; and the installation of landscaping on or adjacent to the
Property.
6.7 "Development Approvals" shall mean the following entitlements, approved
by the City Council on the Approval Date:
a. Change of Zone, CZ 15-15;
b. Precise Plan, PP 15-15
C. Negative Declaration of Environmental Impact No 15-15;
d. this Agreement, DA No. 15-15; and
e. Tentative Track Map, TTM 36874.
6.8 "Development Impact Fees" shall mean all fees established and imposed
upon the Project by the City pursuant to the Mitigation Fee Act as set forth
in California Government Code Section 66000 et seq. "Development
Impact Fees" shall not include any fees that have not been established by
the City pursuant to and in accordance with the Mitigation Fee Act
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6.9 "Effective Date" shall mean the date this Agreement is recorded in the
Clerk -Recorder's Office of the County of Riverside, California, after having
been executed by all parties thereto with notary acknowledgements
pursuant to Section 14.8.
6.10 "Existing Land Use Regulations" means all Land Use Regulations in effect
on the Approval Date, including the Development Approvals.
6.11 "General Plan" shall mean the City of Palm Desert General Plan.
6.12 "Land Use Regulations" shall mean all ordinances, resolutions, codes,
rules, regulations and official policies of the City governing the
development and use of land, including, without limitation, the permitted
use of land, the density or intensity of use, subdivision requirements,
timing and phasing of development, the maximum height and size of
buildings, the provisions for reservation or dedication of land for public
purposes, and the design, improvement and construction and initial
occupancy standards and specifications applicable to the Project. "Land
Use Regulations" do not include any City ordinance, resolution, code, rule,
regulation or official policy governing:
a. The conduct or taxation of businesses, professions, and
occupations applicable to all businesses, professions, and
occupations in the City;
b. Other than as provided in this Agreement, taxes and assessments
of general application upon all residents of the City, provided that
the taxes and assessments are not imposed for the purpose of
taxing the right, power or privilege of developing or improving land
(e.g., excise tax) or to directly finance the acquisition or dedication
of open space or any other public improvement in respect of which
the Developer is paying any fee or providing any improvement
pursuant to this Agreement;
C. The control and abatement of nuisances;
d. The granting of encroachment permits and the conveyance of rights
and interests which provides for the use of, access to or the entry
upon public property, as may be approved by mutual agreement
between Developer and City; and
e. The exercise of the power of eminent domain.
6.13 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a
deed of trust or any other security -device, lender, and their successors
and assigns.
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6.14 "Developer refers to Family Development Group, Inc., a Delaware
corporation. Developer" includes successors in interest to Family
Development Group, Inc.
6.15 The "Parties" means the City and Developer. A "Party" refers to either the
City or the Developer, as the context requires.
6.16 "Project" means the Development of the Property consistent with the
General Plan, the Development Approvals and this Agreement, including
development and construction of the Units and other structures, facilities
and improvements on or about the Property and other property.
6.17 "Property" means the real property described in Exhibit "A" and illustrated
and depicted on Exhibit "B," which exhibits are attached hereto and
incorporated herein.
6.18 "Reservation of Authority" means the rights and authority specifically
reserved to City which limits the assurances and rights provided to the
Developer under this Agreement. The Reservation of Authority is further
defined in Section 9.7.
6.19 "Retention Basin" means, as the context requires, that certain drainage
and retention basin owned by City or SARDA adjacent to Portola Avenue
and depicted on Exhibit "B" hereto or the City owned parcel of land within
which such retention basin is located.
6.20 "Subsequent Development Approvals" means any and all permits,
licenses, approvals and authorizations for or related to the Project
required or permitted by the Existing Land Use Regulations, the
Subsequent Land Use Regulations and this Agreement after the Approval
Date, including, without limitation, all development review approvals
required under the City Municipal Code, site development permits,
excavation, grading, building, construction, encroachment or street
improvement permits, occupancy certificates, utility connection
authorizations, drainage, landscape, or other permits or approvals
necessary for the grading, construction, marketing, use and occupancy of
the Project.
6.21 "Subsequent Land Use Regulations" means those Land Use Regulations
adopted and first becoming effective after the Approval Date which are
described in Section 9.7 ("Reservation of Authority") of this Agreement.
6.22 `Term" means the term of this Agreement as set forth in Section 8.2 of this
Agreement.
6.23 "Unit" means each and any residential unit contemplated by the
Development Approvals and included as part of the Project. For the
purposes of Section 9.15, the term "Completed Unit" means a Unit (i) that
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has been substantially completed and constructed on the Property as part
of the Project, and (ii) for which a conditional certificate of occupancy has
been issued by the City (or will be issued by the City upon payment of the
In -Lieu Fee (as hereafter defined)).
7. EXHIBITS. All exhibits attached to this Agreement are incorporated as a part of
this Agreement. Those exhibits are:
Exhibit
Description
"A" Property Legal Description
"B" Illustration of Property Location / Overview
"C', Desert Willow Golf Resort Membership Privileges
8. GENERAL PROVISIONS
8.1 Binding Effect of Agreement. This Agreement shall be recorded against
the Property and shall run with the land until the Property or any portion
thereof has been released of record from this Agreement or this
Agreement has terminated pursuant to the terms hereof. The
Development shall be carried out only in accordance with the terms of this
Agreement; provided, however, that this Agreement is not intended to
compel Developer to complete the Project and Developer shall be under
no obligation whatsoever to commence or complete Development of the
Property on account of this Agreement.
8.2 Term of Agreement. The Term shall commence on the Effective Date.
The Term shall continue for a period of ten (10) years from the Effective
Date (the "Term"), subject to the following:
a. During the Term, certain portions of the Property may be released
from this Agreement as provided elsewhere in this Agreement.
b. As provided in Section 8.3 or elsewhere within this Agreement, the
Term may end earlier than the end of either the Initial Term or any
extension pursuant to Section8.2(c) below.
C. So long as Developer is not then in default of its obligations
hereunder or under any agreement contemplated hereunder or
otherwise with respect to any Land Use Regulations or
Development Approvals, City agrees to consider, in its absolute
discretion, an extension of the Term of this Agreement with respect
to and upon the written request of Developer for an additional five
(5) year period. Any such consideration by the City of an extension
of the Term will require a determination by the City, in its sole
discretion, that there has been no material change in the attendant
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facts and circumstances relating to the Project that would warrant a
material change to the Project (to the extent not completed) as
currently contemplated by this Agreement. All references to the
"Term" in this Agreement shall be deemed to take into account any
such extension agreed to by City pursuant hereto.
8.3 Termination. This Agreement shall be deemed terminated and of no
further effect upon the earlier occurrence of any of the following events:
a. Expiration of the Term as set forth in Section 8.2 of this Agreement;
b. Entry of a final judgment setting aside, voiding or annulling the
adoption of the ordinance approving this Agreement;
C. The adoption of a referendum measure overriding or repealing the
ordinance approving this Agreement;
d. Completion of the Project in accordance with the terms of this
Agreement, including issuance of all required occupancy permits
and acceptance by City, or the applicable public agency, of all
required dedications and the satisfaction of all of Developer's
obligations under this Agreement; or
e. As may be provided by other specific provisions of this Agreement.
8.4 Effect of Termination or Expiration. Termination or expiration of this
Agreement shall not constitute termination of the Development Approvals
or Subsequent Development Approvals obtained prior to the date of
termination or expiration. Upon termination of this Agreement, which
termination is subject to the notice and cure rights set forth in Section 12
below, or upon expiration of the Term of this Agreement, the only rights or
obligations under this Agreement which either Party shall have are those
obligations that are specifically set forth as surviving this Agreement,
including those described in Sections 11, 12, and 14.14.
8.5 Amendment or Cancellation of Agreement. Subject to the terms of
Section 8.6, this Agreement may be amended from time to time or
canceled only by the written consent of both City and Developer in the
same manner as its adoption, as set forth in California Government Code
Section 65868. Any amendment or cancellation shall be in a form suitable
for recording in the Office of the Clerk -Recorder of the County of
Riverside, California. An amendment or other modification of this
Agreement will continue to relate back to the Effective Date of this
Agreement (as opposed to the effective date of the amendment or
modification), unless the amendment or modification expressly states
otherwise.
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8.6 Minor Modifications. The provisions of this Agreement require a close
degree of cooperation between the Parties and "Minor Changes" to the
Project may be required from time to time to accommodate design
changes, engineering changes, and other refinements related to the
details of the Parties' performance. "Minor Changes" shall mean changes
to the Project that are consistent with the Development Approvals, which
do not result in a change in use, an increase or decrease in density or
intensity of use, significant new or increased environmental impacts that
cannot be mitigated, or violations of any applicable health and safety
regulations in effect on the Effective Date.
Accordingly, the Parties may mutually consent to adopting "Minor
Changes" through their signing of an "operating memorandum" reflecting
the Minor Changes. Neither the Minor Changes nor any Operating
Memorandum shall require public notice or hearing. The City Attorney and
City Manager shall be authorized to determine whether proposed
modifications and refinements are "Minor Changes" subject to this Section
8.6 or more significant changes requiring amendment of this Agreement.
The City Manager may execute any operating memoranda without City
Council action.
8.7 Term of Development Approvals. To the extent not precluded by
applicable law, the expiration date of all Development Approvals shall be
extended so they are coextensive with the Term of this Agreement (as
same may be extended in accordance herewith).
8.8 Relationship of City and Developer. The contractual relationship between
City and Developer arising out of this Agreement is one of independent
contractor and not agency. This Agreement does not create a joint -venture
or any third -party beneficiary rights.
8.9 Notices. All notices, demands, and correspondence required or permitted
by this Agreement shall be in writing and delivered in person or mailed by
first class or certified mail, postage prepaid, addressed as follows:
If to City, to:
City of Palm Desert
Attn: City Manager
73-510 Fred Waring Drive
Palm Desert, California 92260
With a copy to:
Best Best & Krieger LLP
Attn: Dave Erwin
74760 Highway 111, Suite 200
Indian Wells, California 92210
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If to Developer, to:
Family Development Group, Inc.
Attn: Rudy C. Herrera
73081 Fred Waring Drive
Palm Desert, California 92260
With a copy to:
Law Offices of Gregory L. Wasserman
Attn: Greg Wasserman
700 Larkspur Landing Circle, Suite 199
Larkspur, California 94939
City or Developer may change its address by giving notice in writing to the
other parties at the addresses listed above. Thereafter, notices, demands,
and correspondence shall be addressed and transmitted to the new
address. Notice shall be deemed given upon personal delivery or, if
mailed, two (2) business days following deposit in the United States mail.
9. DEVELOPMENT OF THE PROPERTY.
9.1 Developer's Vested Right. Developer shall have the vested right to
complete Development of the Property and to build -out the Project in
accordance with the Development Approvals and the Subsequent
Development Approvals, the Existing Land Use Regulations and this
Agreement ("Developer's Vested Right"). To enable Developer to
complete the Project, Developer's Vested Right shall include, but not be
limited to, with the exercise of reasonable diligence, the right to the
issuance of all permits and certificates of occupancy, the granting of all
approvals, the conducting and performance of all reviews and inspections,
and the taking of such other actions that are (i) requested by Developer,
and (ii) consistent with the terms of this Agreement and the Development
Approvals. In no event or circumstance shall the City's approval, granting
or issuance of any Development Approvals be delayed in connection with
or contingent upon the City's adoption or contemplation of an In -Lieu Fee
Ordinance (as hereafter defined).
Developer's Vested Right shall be subject to the Reservation of Authority
set forth in Section 9.7 and all provisions of this Agreement, and may not
be modified or terminated except as expressly provided by this
Agreement.
Upon any termination or the expiration of this Agreement, and subject to
the terms of Section 8.4, Developer's rights to continue with Development
of the Property to complete the Project pursuant to the Development
Approvals and the Subsequent Development Approvals shall be subject to
the ordinary exercise of the City's police power and City's applicable
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processes and procedures then in place. At that time, Developer's vested
rights, if any, shall be determined by City ordinance, rules, regulations and
procedures, state and federal statutes and case law and the then current
factual state of the Development.
9.2 Governing Land Use Regulations. The Land Use Regulations applicable
to the Project and the Property shall be the Existing Land Use
Regulations. An amendment or other modification of this Agreement will
not change the applicable Land Use Regulations (i.e., the Existing Land
Use Regulations will control), unless the amendment or modification
expressly provides otherwise. Likewise, an amendment to the
Development Approvals shall not require an amendment to this
Agreement. In the event of a conflict between the Development Approvals
and other provisions of the Existing Land Use Regulations, the terms and
conditions of the Development Approvals shall control.
Except as provided under Section 9.7, the City's Reservation of Authority,
Land Use Regulations that are adopted after the Approval Date shall not
apply to the Property, the Development, or the Project, with the following
exceptions:
a. Developer and City may mutually agree in writing that the Project
will be subject to one or more Land Use Regulations that are
adopted after the Approval Date. With the mutual written agreement
of the Parties, if those Land Use Regulations do not result in a
change in use, a substantial increase or decrease in density or
intensity of use, significant new or increased environmental impacts
that cannot be mitigated, or violations of any applicable health and
safety regulations in effect on the Approval Date, an amendment of
this Agreement shall not be required to make those regulations
applicable to the Property. If any of those effects would occur, then
Developer and City must amend this Agreement in accordance with
Section 8.5 if they desire to subject the Project to any such Land
Use Regulations adopted after the Approval Date.
b. The Subsequent Land Use Regulations described in Section 9.7
below shall apply to the Property, the Development, and the
Project, but only to the extent permitted by Section 9.7.
Nothing contained in this Section shall be deemed to authorize or permit
City to withhold any building permit, review, inspection, approval,
authorization, and/or certificate of occupancy based on Developer's failure
to comply with any Land Use Regulation that is not applicable to the
Project because of this Agreement.
9.3 Permitted Uses. Except as otherwise provided within this Agreement, the
permitted uses on the Property shall be as provided in the Development
Approvals.
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9.4 Density and Intensity. Except as otherwise provided within this
Agreement, the density and intensity of use for all Development on the
Property shall be as provided in the Development Approvals.
9.5 Maximum Height and Size of Structures. Except as otherwise provided
within this Agreement, the maximum height and size for all structures on
the Property shall be as provided in the Development Approvals.
9.6 Requirement for Reservation and Dedication of Land. Except as otherwise
provided within this Agreement, the Project's requirements for reservation
and dedication of land shall be as provided in the Development Approvals.
9.7 Reservation of Authority. The following Subsequent Land Use Regulations
shall apply to the Property and the Project:
a. Processing fees and charges imposed by the City to cover the
City's estimated or actual costs of reviewing and processing
applications for Development of the Property, providing inspections,
conducting annual reviews, providing environmental analysis, or for
monitoring compliance with this Agreement or any Development
Approvals granted or issued, provided such fees and charges are in
force and effect on a general basis on the date of filing such
applications with the City and are not applied to the Project in a
discriminatory manner. This 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 force and effect on a City-wide basis at such
time as said approvals and permits are granted by City.
b. Procedural regulations applicable and applied on a City-wide basis
relating to hearing bodies, petitions, applications, notices, findings,
records, hearings, reports, recommendations, appeals and any
other matter of procedure.
C. Provided that they are uniformly applied to all development projects
within the City, regulations governing engineering and construction
standards and specifications, including uniform codes adopted by
the City and local amendments to those codes adopted pursuant to
state law. Such codes include, without limitation, the City's adopted
version of the Uniform Administrative Code, Building Code,
Plumbing Code, Mechanical Code, Electrical Code, and Fire Code.
d. Regulations which may be in conflict with the Development
Approvals or this Agreement but which are objectively required
(and there are no available reasonable alternatives) to protect the
public health and safety in the event of a sudden, unexpected
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occurrence involving a clear and imminent danger that demands
immediate action to prevent or mitigate loss of, or damage to, life,
health, property, or essential public services within the immediate
community. Such regulations must be a valid exercise of the City's
police power and must be applied and construed so as to provide
Developer, to the maximum feasible extent, with the rights and
assurances provided in this Agreement and the Development
Approvals, including, without limitation, Developer's Vested Right,
without unnecessary condition or undue delay. Any regulations,
including moratoria, enacted by City and imposed on the Property
to protect the public health and safety in the limited circumstances
described above shall toll the Term and any time periods for
performance by Developer and City set forth in this Agreement.
9.8 Development Impact Fees. Developer shall pay those Development
Impact Fees uniformly applied to all development projects within the City
in effect at the time of payment as and when typically paid for projects
similar to the Project or as otherwise agreed to by the Parties.
9.9 Adequacy of Required Infrastructure. Subject to Developer's installation
of all infrastructure required to serve the Project in accordance with the
requirements of the Development Approvals and the Existing Land Use
Regulations and subject to City's Reservation of Authority and Developer's
payment of Development Impact Fees, City acknowledges and agrees
that, based on current and reasonably foreseeable conditions, there is
sufficient capacity in the infrastructure and services owned, operated,
controlled, and provided by the City, including, without limitation, traffic
circulation, storm drainage (including the capacity of the Retention Basin),
trash collection, and flood control, to accommodate the Project.
Notwithstanding the foregoing, City does not warrant the adequacy of and
City shall not be responsible or liable for any infrastructure or services that
are not owned, operated, controlled and /or provided by City.
9.10 Changes in Federal and State Law. The Property may be subject to
subsequently enacted state or federal laws or regulations, which preempt
local regulations, or mandate the adoption of local regulations that conflict
with the General Plan and this Agreement. Upon discovery of a
subsequently enacted federal or state law meeting the requirements of
this Section, City or Developer shall provide the other Party with written
notice of the state or federal law or regulation, provide a copy of the law or
regulation, and a written statement of conflicts with the provisions of this
Agreement and/or the General Plan. Promptly thereafter, City and
Developer shall meet and confer in good faith in a reasonable attempt to
modify this Agreement to the limited extent necessary to comply with such
federal or state law or regulation. In such negotiations, City and Developer
agree to preserve the terms of this Agreement and the rights of Developer
as derived from this Agreement, including, without limitation, the
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Developer's Vested Right, to the maximum feasible extent while resolving
the conflict. City agrees to cooperate with Developer in resolving the
conflict in a manner which minimizes any financial impact of the conflict
upon Developer. City also agrees to process Developer's proposed
changes to the Project as may be necessary to comply with such federal
or state law and to promptly process such proposed Project changes in
accordance with City procedures. Any delays caused by such changes in
state or federal law shall toll the Term of this Agreement and the time
periods for performance by Developer and City set forth in this Agreement.
9.11 Compliance with CEQA. The City acknowledges and agrees that all of the
environmental impacts of the Project, and any appropriate mitigation
measures and alternatives, have been adequately addressed in the
Development Approvals. City agrees to cooperate with Developer to
process in a timely manner any additional environmental study or report
circulated by Developer in connection with the ongoing Development of
the Property and completion of the Project
9.12 Timing of Development. Because the California Supreme Court held in
Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that
the failure of the parties in that case 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 specific intent
of the Parties to provide for the timing of Development in this Agreement.
To do so, the Parties acknowledge and provide that Developer shall have
the right, but not the obligation, to develop the Property in such order and
at such rate and at such times as Developer deems appropriate within the
exercise of its subjective business judgment subject to the phasing of the
Development set forth in Section 9.13.
9.13 Commencement, Phasinq and Sequence of Development. Developer
may commence Development of the Property when it deems appropriate
in its subjective business judgment. Developer may complete the Project
in as many development phases and sub -phases as it deems appropriate
in its subjective business judgment. However, Developer shall complete
the obligations described in the Development Approvals within the Term of
this Agreement or Developer's Vested Right shall be subject to limitation
or qualification pursuant to the terms of Section 8.4 and Section 9.1
hereof.
9.14 Covenants, Conditions and Restrictions. Developer shall reserve and
record such covenants, conditions and restrictions ("CC&Rs") against the
Property that Developer deems appropriate in the exercise of its
reasonable business judgment, which CC&Rs shall relate to the
development, use and operation of the Project and shall contemplate the
establishment of a homeowners' association to oversee the Project
pursuant to the applicable terms thereof (the "HOK); provided, however,
that such CC&Rs shall not conflict with the terms of this Agreement, the
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Development Approvals or any Existing Land Use Regulations. Prior to
recordation of such CC&Rs, Developer shall provide a copy of the CC&Rs
to City for review and approval by the City Attorney. The City Attorney's
review shall be limited to determining if the CC&Rs substantially comply
with the terms of this Agreement, including the requirements of Section
9.15. The CC&Rs will run with the land, and, in accordance with its terms,
shall be binding on Developer's successors, assigns and transferees of all
or any portion of the Property.
9.15 Development of the Project. Notwithstanding any provision of this
Agreement, the Existing Land Use Regulations or the Development
Approvals to the contrary, but subject to compliance with all applicable
legal requirements, including, but not limited to CEQA, the following
requirements shall apply to the Project:
a. 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 install a 6 foot high slump stone block wall
along the Portola Avenue frontage of the Retention Basin pursuant
to the applicable City approved improvement plans (the "Block
Wall"). Developer shall reasonably endeavor to match the color,
texture, width, and flagstone columns of the Block Wall to the
existing Desert Willow perimeter block wall. Developer shall also
install double metal gates (of the type commonly used for such
purposes) in a location reasonably acceptable to City to provide
reasonable access from Portola Avenue to the Retention Basin and
related improvements.
b. 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 install desert landscaping in front of the
Block Wall (the "Block Wall Landscaping"), and shall irrigate and
maintain such Block Wall Landscaping in perpetuity as part of the
Project's new perimeter landscaping. Developer's obligation to
install, irrigate and maintain the Block Wall Landscaping shall be
consistent with the City approved landscape plan. Developer's
obligation to install, irrigate and maintain the Block Wall
Landscaping 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.
C. Developer shall plant trees on the South side of the Retention
Basin Developer running east -west to screen off the maintenance
building (the "Retention Basin Trees"), which Retention Basin Trees
shall be planted in conformance with the approved landscaping
plan for the Project, if and to the extent reflected therein, or
otherwise to the reasonable satisfaction of the City. Furthermore,
Developer shall reasonably maintain the Retention Basin, including
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the Retention Basin Trees slopes, drywells, walls and other
underground drainage appurtenances within the retention basin, in
accordance with all City ordinances; rules and regulations, which
obligation shall include quarterly clean up. Developer's obligation to
maintain the Retention Basin, including the Retention Basin Trees
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
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Access Fee shall be fixed at $75 per month per Completed Unit,
and (vi) Developer shall not be responsible for the payment of any
Monthly Unit Access Fees.
f. As an alternative to providing affordable, low-income, moderate -
income or any other subsidized or inclusionary housing (as
applicable, "Subsidized Housing") at the Project, Developer shall
pay an Affordable Housing Fee of$l.00lper square foot of habitable
space with respect to the Units pursuant to the terms hereof,
unless the City adopts an Affordable Housing Fee applicable to
new residential development in the City ("City -Wide Affordable
Housing Fee"), in which case the City -Wide Affordable Housing Fee
shall apply. Except as may be otherwise agreed to by the Parties,
and unless the City -Wide Affordable Housing Fee (as hereafter
defined) contemplates a later payment, any Affordable Housing Fee
that may be paid by Developer pursuant to the terms of this
Agreement for or with respect to a Unit shall be paid by Developer
to City, on a Unit by Unit basis, upon and as a condition to the
City's issuance of a building permit for a given Unit. Furthermore,
in the event that any Affordable Housing Fees are paid by
Developer exclusive of City -Wide Affordable Housing Fee in
connection with the Project, City and Developer shall reasonably
cooperate to explore entering into a separate agreement pursuant
to which Developer may utilize any such Affordable Housing Fees
paid by Developer to supply Subsidized Housing in the City. As
used herein, the term "Affordable Housing Fee" means a fee
imposed by this Agreement payable by Developer to the City as an
alternative to providing Subsidized Housing at the Project that
applies to each Unit. Subject to the foregoing, the Affordable
Housing Fee shall be superseded by any applicable ordinance
formally adopted by the City at any time which ordinance primarily
concerns the payment of a fee by real estate developers in
connection with a given project as an alternative to any such
developer providing Subsidized Housing in the City as part of such
project (an "City -Wide Affordable Housing Fee").
9.16 Construction of the Project. In addition to constructing the Project in
accordance with the Development Approvals, Developer shall take
commercially reasonable best efforts to incorporate plumbing and
irrigation systems that allow for the use of reclaimed water on the
medians, parks, and all landscaped areas on the Property. Developer
shall take commercially reasonable best efforts to incorporate within the
Project certain construction concepts promoted by the U.S. Green Building
Council.
9.17 Access to and Over and Utilization of Retention Basin. The Project shall
have the right to utilize the Retention Basin, in compliance with all
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applicable laws, rules and regulations but without further restriction or
qualification, for storm water and drainage discharge and runoff.
Furthermore, Developer and Developer's successors, assigns and
transferees (including owners of any portion of the Property) shall have
the right to access and cross over and through the Retention Basin and
the City owned maintenance area adjacent to and south of the Property
using paths, sidewalks and/or walkways to be constructed by Developer to
provide pedestrian and golf cart access to and from the Desert Willow Golf
Resort and associated golf courses. Upon request of Developer, the rights
and interests of Developer set forth in this Section 9.17 shall be
memorialized in one or more easement agreements between City and
Developer in form and substance consistent with the foregoing and
otherwise reasonably acceptable to the Parties.
10. ANNUAL REVIEW.
10.1 Timing of Annual Review. Pursuant to Government Code Section
65865.1, City shall review the good faith compliance of Developer with the
terms of this Agreement one time during every twelve (12) month period of
the Term until substantial build -out of the Project has occurred ("Annual
Review").
10.2 Standards for Annual Review. During the Annual Review, Developer shall
be required to demonstrate good faith compliance with the terms of this
Agreement. If City Council or its designee finds and determines, based on
substantial evidence, that Developer has not complied in good faith with
the terms or conditions of this Agreement, then City may proceed in
accordance with Section 12 of this Agreement pertaining to the potential
default of Developer and the opportunities for cure. City shall establish
and Developer shall pay a reasonable fee to cover the costs incurred by
City in connection with the Annual Review (the "Annual Review Fee").
10.3 Certificate of Compliance. At any time during any year that the City
Council or its designee finds that Developer is in compliance with this
Agreement, City shall, upon written request by Developer, provide
Developer with a written certificate of good faith compliance within fifteen
(15) days of City's receipt of Developer's request for same.
11. THIRD PARTY LITIGATION.
11.1 General Plan Litigation. City has determined that this Agreement is
consistent with its General Plan. Developer has reviewed the General
Plan and concurs with City's determination. Neither Developer nor City
shall have any liability under this Agreement or otherwise for any failure of
City to perform under this Agreement, or for the inability of Developer to
proceed with Development the Property as contemplated by the
Development Approvals or this Agreement, if such failure or inability is the
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result of a judicial determination that part or all of the General Plan is
invalid, inadequate, or not in compliance with law.
11.2 Third Party Litigation Concerning Agreement. In the event of any legal
challenge instituted by a third party challenging the validity of any
provision of the Development Approvals including this Agreement,
Developer and City each shall have the right, in its sole discretion, to elect
whether or not to defend such action. Developer shall, at Developer's
expense, defend, indemnify, and hold City, its agents, officers and
employees harmless from any claim, action or proceeding against City, its
agents, officers or employees to attack, set aside, void, or annul the
approval of this Agreement or the approval of any Development Approvals
or Subsequent Development Approvals granted pursuant to this
Agreement, unless Developer elects to abandon the Project or the
underlying Development Approval or Subsequent Development Approval.
City shall promptly notify Developer of any such claim, action or
proceeding, and City shall cooperate in the defense.
11.3 Indemnity. In addition to the provisions of Section 11.2, Developer shall
indemnify and hold City, its officers, agents, employees and independent
contractors free and harmless from any liability whatsoever, based or
alleged upon any act or omission of Developer, its officers, agents,
employees, subcontractors and independent contractors, for property
damage, bodily injury or death (Developer's employees included) or any
other element of damage of any kind or nature, relating to or arising from
Development of the Project, except for claims for damages arising through
the active negligence or intentional or willful misconduct of City or any of
its officers, agents, employees and independent contractors. Developer
shall defend, at Developer's expense, including attorneys' fees, City, its
officers, agents, employees and independent contractors in any legal
action based upon such alleged acts or omissions of Developer that are
subject to such indemnity obligation. City may in its discretion participate
in the defense of any such legal claim, action or proceeding.
11.4 Environmental Contamination. Developer shall indemnify and hold City,
its officers, agents, and employees free and harmless from any liability,
based or alleged, upon any act or omission of Developer, its officers,
agents, employees, subcontractors, predecessors in interest, successors,
assigns and independent contractors, resulting in any violation of any
federal, state or local law, ordinance or regulation relating to industrial
hygiene or to environmental conditions on, under or about the Property,
including, but not limited to, soil and groundwater conditions, and
Developer shall defend, at its expense, including attorneys' fees, City, its
officers, agents and employees in any action based or asserted upon any
such alleged act or omission. City may in its discretion participate in the
defense of any such claim, action or proceeding. Notwithstanding anything
to the contrary set forth in this Section, Developer shall not be responsible
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hereunder and shall not be required to indemnify City, its officers, agents
and employees for, from or against or with respect to (a) clean-up and
removal of groundwater contamination migrating to or from an adjacent
property not owned by Developer, or (b) pre-existing conditions affecting
the Property (including the discovery or existence of hazardous
substances in, on or about the Property and associated groundwater), or
(c) for soil conditions and other environmental contamination that resulted
from the act or omission of City its officers, agents, contractors,
consultants and employees.
11.5 City to Approve Counsel. With respect to Sections 11.1 through 11.4, City
reserves the right to either (a) approve the attorney(s) that Developer
selects, hires or otherwise engages to defend City, which approval shall
not be unreasonably withheld, or, (b) at City's sole discretion, and unless
Developer has elected to abandon the Project or the underlying
Development Approval or Subsequent Development Approval, conduct its
own defense, provided, however, that if City elects to conduct its own
defense, Developer shall reimburse City for any and all reasonable
expenses incurred for such defense, including attorneys' fees, upon billing
and accounting therefore; provided, however, that the City shall be
responsible for salaries, benefits, administrative and overhead expenses
incurred by the City in connection with any such defense. City shall not
have the right to approve counsel selected by Developer to represent
Developer's interests in any litigation.
11.6 Processing Durinq Third Party Litigation. The filing of any third party
lawsuit(s) against City or Developer relating to this Agreement, the
Development Approvals, or other development issues affecting the
Property shall not delay or stop the Development of the Property,
processing related to or construction of the Project, approval of the
Development Approvals and Subsequent Development Approvals, or
issuance of any other "Ministerial Approvals," unless the third party
obtains a court order preventing the activity. City shall not stipulate to the
issuance of any such order. For purposes of this Section, the term
"Ministerial Approvals" shall mean the issuance of approvals or permits
requiring the determination of conformance with the Existing Land Use
Regulations, including, without limitation, site plans, design review,
development plans, land use plans, grading plans, improvement plans,
building plans and specifications, and ministerial issuance of one or more
final maps, zoning clearances, grading permits, improvement permits, wall
permits, building permits, lot line adjustments, conditional and temporary
use 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.
11.7 Survival. The provisions of this Section 111, shall survive the termination,
cancellation or expiration of this Agreement.
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12. DEFAULTS AND REMEDIES.
12.1 Notice and Termination. Before either Party may declare a default or
termination of this Agreement or bring a legal action to terminate this
Agreement, and before any Party shall be deemed or considered to be in
default of this Agreement, the procedures of this Section 12 must be
followed. In the case of a default arising from the conduct of an Annual
Review, the procedures of this Section shall be strictly followed and shall
constitute a second review of the good faith compliance of Developer.
The Party asserting a default (the "Non -Defaulting Party") may elect to do
so by providing written notice to the Party alleged to be in default (the
"Defaulting Party") setting forth the nature of the default and the actions, if
any, required by the Defaulting Party to cure the default. The Defaulting
Party shall be deemed in default if the Defaulting Party fails to cure the
default within thirty (30) business days after the date of such notice (for
monetary defaults) or within sixty (60) business days after the date of such
notice (for non -monetary defaults) so long as the Defaulting Party has
commenced efforts to cure the default within thirty (30) business days
after receipt of the default notice and thereafter continues to diligently
pursue a cure; provided, however, that if the nature of the alleged default
is such that it cannot reasonably be cured within such 60 business day
period, the Defaulting Party shall not be deemed to be in default of this
Agreement if it has commenced efforts to cure the default within thirty (30)
business days after receipt of the default notice and thereafter continues
to diligently pursue a cure.
12.2 Default Remedies. A Non -Defaulting Party who has complied with the
notice of default and opportunity to cure requirements of Section 12.1
may, at its option, institute legal action to cure, correct, or remedy the
alleged default, enjoin any threatened or attempted violation, terminate
this Agreement by written notice to the Defaulting Party, enforce the terms
of this Agreement by specific performance, or pursue any other legal or
equitable remedy. These remedies shall be cumulative rather than
exclusive, except as otherwise provided by law. Notwithstanding the
foregoing, in no event or circumstance shall Developer be compelled to
initiate, continue or complete Development of the Property or completion
of the Project or any aspect or component thereof pursuant to a specific
performance action or any other legal or equitable remedy or judicial
order.
Furthermore, the City, after first following the procedures set forth in
Section 12.1, may give notice of its intent to terminate or modify this
Agreement for an uncured default, in which event the matter shall be
scheduled for consideration and review by the City Council.
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12.3 Developer's Exclusive Remedy. City and Developer acknowledge that,
subject to the terms of Section 14.14 hereof, neither City nor Developer
would have entered into this Agreement if it were to be liable in damages
under or with respect to this Agreement, the General Plan, or the
Development Approvals. Accordingly, except as otherwise stated in this
Section 12.3, neither Party shall sue the other for damages or monetary
relief of any kind for any matter related to this Agreement, the General
Plan, or the Development Approvals. City may, however, sue Developer
for the payment of sums due from Developer to City under provisions of
this Agreement which are expressly stated to survive termination of this
Agreement and which establish a financial obligation of Developer
pursuant to their express terms. Subject to the terms of Section 14.14
hereof, Developer's remedies shall be limited to declaratory and injunctive
relief, mandate, and specific performance.
12.4 Waiver; Remedies Cumulative. All waivers of performance must be in a
writing signed by the Party granting the waiver. There are no implied
waivers hereunder. Failure by City or Developer to insist upon the strict
performance of any provision 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.
A written waiver affects only the specific matter waived and defines the
performance waived and the duration of the waiver. Unless expressly
stated in a written waiver, future performance of the same or any other
condition is not waived.
A Party who complies with the notice of default and opportunity to cure
requirements of Section 12.1 and elects to pursue a legal or equitable
remedy available under this Agreement does not waive its right to pursue
any other remedy available under this Agreement, unless prohibited by
statute, Court rules, or judicial precedent.
Delays, tolling, and other actions arising under Section 14.9, and any
other tolling provision set forth in this Agreement, shall not be considered
waivers subject to this Section 12.4.
12.5 Alternative Dispute Resolution. Any dispute between the Parties may,
upon the mutual agreement of the Parties, be submitted to mediation,
binding arbitration, or any other mutually agreeable form of alternative
dispute resolution. While an alternative dispute process is pending, the
statute of limitation shall be tolled for any claim or cause of action which
either of the Parties may have against the other.
13. ENCUMBRANCES, ASSIGNMENTS, AND RELEASES.
13.1 Discretion to Encumber. This Agreement shall not prevent or limit
Developer, in any manner, at Developer's sole discretion, from
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encumbering some or all of the Property or any improvement on the
Property by or in connection with (a) any mortgage, deed of trust, or other
security device to secure financing related to the Property or the Project,
or (b) any other encumbrance or interest in the Property, including, without
limitation, the Development Approvals, any easements or reciprocal
easements, licenses, the CC&Rs and any other covenants, conditions or
restrictions applicable to the Property or the Project.
13.2 Mortgagee Protection. City acknowledges that the lender(s) providing
financing secured by the Property and/or its improvements may require
certain Agreement interpretations and modifications. City shall, at any time
requested by Developer or the lender, meet with Developer and
representatives of such lender(s) to negotiate in good faith any such
interpretation or modification. City will not unreasonably withhold its
consent to any requested interpretation or modification provided such
interpretation or modification is consistent with the intent and purposes of
this Agreement. Any Mortgagee of the Property shall be entitled to the
following rights and privileges:
a. Neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish, or impair the lien
of any mortgage or deed of trust on the Property made in good faith
and for value.
b. If City timely receives a prior request from a Mortgagee requesting
a copy of any notice of default given by City to Developer under the
terms of this Agreement, City shall provide a copy of such default
notice to the Mortgagee within ten (10) days of sending the notice
of default to Developer. The Mortgagee shall have the right, but not
the obligation, to cure the default during the remaining cure period
allowed Developer under Section 12.1 of this Agreement.
C. Except as otherwise provided within this Agreement, any
Mortgagee who comes into possession of some or all of the
Property pursuant to foreclosure of a mortgage or deed of trust, or
deed in lieu of such foreclosure, shall:
13.2.c.1 Take that property subject to the terms of this
Agreement and as Developer's successor; and
13.2.c.2 Have the rights and obligations of an Assignee as set
forth in Sections 13.3 and 13.4.
d. The Mortgagee shall have the right to rely on the same
Development related rights and assurances provided to Developer
as contained within this Agreement, provided that any Development
proposed by the Mortgagee is in substantial conformance with the
terms of this Agreement.
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e. The Mortgagee shall not be liable for any defaults or monetary
obligations of Developer arising prior to acquisition of title to the
Property by the Mortgagee, except that the Mortgagee may not
pursue Development pursuant to this Agreement until all delinquent
and current fees and other monetary obligations due under this
Agreement for the portions of the acquired by the Mortgagee have
been paid to City.
13.3 Transfer or Assignment. Subject to Section 13.5, Developer shall have
the right to sell, transfer, or assign its rights and obligations under this
Agreement (collectively, an "Assignment") in connection with a transfer of
Developer's interest in all or any portion of the Property (as applicable, the
"Transferred Property"). No Assignment shall be made unless made
together with the sale, transfer or assignment of all or part of the Property.
Within fifteen (15) business days after any Assignment, Developer shall
notify City in writing of the Assignment and provide City with an
agreement, in a form reasonably acceptable to City, executed by the
purchaser, transferee or assignee (collectively, the "Assignee") to
expressly and unconditionally assume all duties and obligations of
Developer under this Agreement with respect to the Transferred Property.
13.4 Effect of Assignment. Subject to Section 13.5, upon an Assignment:
a. The Assignee shall be liable for the performance of all obligations
of Developer under this Agreement with respect to Transferred
Property, but shall have no obligations hereunder with respect to
the portions of the Property, if any, not transferred (the "Retained
Property").
b. The Developer of the Retained Property shall be liable for the
performance of all obligations of Developer under this Agreement
with respect to Retained Property, but shall have no further
obligations hereunder with respect to the Transferred Property and
shall be released from any obligation under this Agreement that
arise from or in connection with or relate to the Transferred
Property.
C. The Assignee's exercise, use and enjoyment of the Transferred
Property shall be subject to the terms of this Agreement to the
same extent as if the Assignee were the Developer for the
Transferred Property, and for the purposes of this Agreement, such
Assignee shall be deemed and considered to be the Developer
hereunder with respect to the Transferred Property.
13.5 City's Consent. The City's consent shall not be required to an Assignment
unless, at the time of the Assignment, Developer has been deemed to be
in default pursuant to Section 12 and the default has not been cured. If
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Developer is in default at the time of an Assignment, City shall consent to
any Assignment which provides adequate security to City, in the
reasonable exercise of City's discretion, to guarantee the cure of the
default upon completion of the Assignment.
14. MISCELLANEOUS PROVISIONS.
14.1 Rules of Construction. The singular includes the plural; the masculine
gender includes the feminine; "shall" is mandatory; "may" is permissive.
14.2 Entire Agreement. This Agreement constitutes the entire understanding
and agreement of City and Developer with respect to the matters set forth
in this Agreement. This Agreement supersedes all negotiations or
previous agreements between City and Developer respecting the subject
matter of this Agreement.
14.3 Recorded Statement Upon Termination. Upon the completion of
performance of this Agreement or its cancellation or termination, a
statement evidencing completion, cancellation, or termination signed by
the appropriate agents of City, shall be recorded in the Official Records of
Riverside County, California.
14.4 Project as a Private Undertaking. It is specifically understood by City and
Developer that (i) the Project is a private development; (ii) neither City has
no interest in or responsibilities for or duty to third parties concerning any
improvements to the Property unless City accepts the improvements
pursuant to the provisions of this Agreement or in connection with
subdivision map approvals; and (iii) Developer shall have the full power
and exclusive control of the Property subject to the obligations of
Developer set forth in this Agreement. No Party is acting as the agent of
any other Party in any respect hereunder, and that each Party is an
independent contracting entity with respect to the terms, covenants and
conditions contained in this Agreement. No partnership, joint venture or
other association of any kind is formed by this Agreement with respect to
any Parties hereto. The only relationship between City and Owners is that
of a government entity regulating the development of private property and
the owners of such property.
14.5 Captions. The captions of this Agreement are for convenience and
reference only and shall not define, explain, modify, construe, limit,
amplify, or aid in the interpretation, construction, or meaning of any of the
provisions of this Agreement.
14.6 Consent. Where the consent or approval of City or Developer is needed
to implement Development under this Agreement or otherwise in
connection with the Development Approvals or the Subsequent
Development Approvals, then except as otherwise expressly provided
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DA 15-15 Ordinance No. 1285
herein, consent or approval shall not be unreasonably withheld, delayed,
or conditioned.
14.7 Covenant of Cooperation. City and Developer shall cooperate and deal
with each other in good faith, and assist each other in the performance of
the provisions of this Agreement.
14.8 Execution and Recording. Within sixty (60) days after the effective date of
Ordinance No. , the ordinance adopting this Agreement,
Developer's representatives shall execute three copies of this Agreement
with notary acknowledgements and deliver them to the City Clerk. The
City Clerk shall then promptly cause each of the three copies of this
Agreement to be signed by the appropriate representatives of the City with
notary acknowledgements, and promptly record a copy with the Office of
the Clerk -Recorder of the County of Riverside, California, at which point
this Agreement shall become effective.
14.9 Delay, Extension of Time for Performance. Performance by either Party of
its obligations under this Agreement shall be excused, and the Term shall
be extended, during any period of delay caused at any time by reason of
any event beyond the control of City or Developer which prevents or
delays performance by City or Developer of obligations under this
Agreement. Such events shall include, by way of example and not
limitation, acts of nature, war, riots, insurrection, terrorism, enactment of
new conflicting federal or state laws or regulations (example: listing of a
species as threatened or endangered), judicial actions such as the
issuance of restraining orders and injunctions, delay in the issuance of
bonds or formation of any community facilities or assessment districts, and
riots, strikes, labor shortages or damage to work in process by reason of
fire, floods, earthquake, or other such casualties. If City or Developer
seeks excuse from performance, it shall provide written notice of such
delay to the other Party within thirty (30) days of the commencement of
such delay. If the delay or default is beyond the control of City or
Developer and is excused, an extension of time for such cause shall be
granted in writing for the period of the enforced delay, or longer as may be
mutually agreed upon. If a Party's delay or default is not excused, the
Party making the request may seek judicial review of the need for the
delay, including requests for injunctive relief.
14.10 Interpretation, Governing Law, and Venue. In any dispute regarding this
Agreement, the Agreement shall be governed and interpreted in
accordance with the laws of the State of California. Venue for any litigation
concerning this Agreement shall be in Riverside County, California. This
Agreement shall be construed as a whole according to its fair language
and common meaning to achieve the objectives and purposes of the
Parties hereto, and the rule of construction to the effect that ambiguities
are to be resolved against the drafting Party shall not be employed in
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DA 15-15 Ordinance No. 1285
interpreting this Agreement, all Parties having been represented by
counsel in the negotiation and preparation hereof.
14.11 Time of Essence. Time is of the essence in the performance of the
provisions of this Agreement as to which time is an element.
14.12 Estoppel Certificate. Within thirty (30) days following a written request by
any of the Parties, the other Party shall execute and deliver to the
requesting Party a statement certifying that:
a. This Agreement is unmodified and in full force and effect or there
have been specified (date and nature) modifications to the
Agreement, but it remains in full force and effect as modified; and
b. There are no known current uncured defaults under this
Agreement, or that the responding Party alleges that specified (date
and nature) defaults exist.
The statement shall also provide any other reasonable information
requested. The failure to timely deliver this statement shall constitute a
conclusive presumption that this Agreement is in full force and effect
without modification except as may be represented by the requesting
Party and that there are no uncured defaults in the performance of the
requesting Party, except as may be represented by the requesting Party.
Developer shall pay to City all reasonable costs incurred by City in
connection with the issuance of estoppel certificates under this Section
14.12 prior to City's issuance of such certificates.
14.13 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Parties and their respective successors and assigns.
14.14 Future Litigation Expenses.
a. Payment to Prevailing Party. If either Party brings a legal or
equitable proceeding against the other Party which arises in any
way out of this Agreement, the prevailing Party shall be entitled to
recover its reasonable attorneys' fees and all other reasonable
costs and expenses incurred in that proceeding.
b. Scope of Fees. Attorneys' fees under this Section shall include
attorneys' fees on any appeal and in any post -judgment
proceedings to collect or enforce the judgment. This provision is
separate and several and shall survive the termination of this
Agreement.
C. Limitation of Liability. Developer's obligations under this Agreement
are solely those of Developer. In no event shall any present, past or
future officer, director, shareholder, employee, partner, affiliate,
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DA 15-15 Ordinance No. 1285
manager, representative or agent of Developer ("Related Parties")
have any personal liability, directly or indirectly, under this
Agreement. Recourse in any way connected with or arising from
this Agreement shall not be available against any of the Related
Parties.
14.15 Severability. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, the
remainder of this Agreement shall not be affected thereby to the extent
such remaining provisions are not rendered impractical to perform taking
into consideration the purposes of this Agreement.
14.16 No Third Party Beneficiaries. This Agreement is made and entered into
for the sole protection and benefit of the Parties and their successors and
assigns. No other person shall have any right of action based upon any
provision of this Agreement.
14.17 Counterparts. This Agreement may be executed by the parties in
counterparts, which counterparts shall be construed together and have the
same effect as if all of the parties had executed the same instrument.
14.18 Further Actions and Instruments. Upon the request of any Party at any
time, the other Party shall promptly execute, with acknowledgment or
affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably
necessary under the terms of this Agreement to carry out the intent and to
fulfill the provisions of this Agreement. The provisions of this section shall
not require the taking of any actions which are prohibited by law or, except
as expressly set forth in this Agreement, impair the lawful discretion of City
as to those matters to which the law otherwise imparts discretion to City.
14.19 Subsequent Amendment to Authorizing Statute. This Agreement has
been entered into in reliance upon the provisions of the Development
Agreement Statute in effect as of the Effective Date. Accordingly, to the
extent any subsequent amendment to the Development Agreement
Statute would affect the provisions of this Agreement, such amendment
shall not be applicable to this Agreement except to the extent necessary
for this Agreement to be enforceable.
Developer and City have executed this Agreement on the dates set forth on the
Signature Page.
27
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DA 15-15 Ordinance No. 1285
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Development
Agreement (Retreat at Desert Willow).
CITY
City of Palm Desert
Mayor
Date:
ATTEST:
By
Rachelle Klassen, City Clerk
Date
APPROVED AS TO FORM:
By:
David Erwin
for Best & Krieger LLP
City Attorney
Date:
DEVELOPER
Family Development Group, Inc.
In
Its:
Date:
And
By:
Its:
Date:
28
G RP —nglK—n 5w nzMord\Prmc a Pf %r Retreal a, De er, Wilow PP 15-15 TT 368MF-1 DA doc
EXHIBIT "A"
LEGAL DESCRIPTION
Real property in the City of Palm Desert, County of Riverside, State of California,
described as follows:
LOT 3 OF TRACT NO. 28450, IN THE CITY OF PALM DESERT, IN THE COUNTY OF
RIVERSIDE,
STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 264 PAGE(S) 4
THROUGH 15, OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA;
EXCEPTING THEREFROM ALL OIL AND GAS RESERVED BY THE UNITED STATES
OF AMERICA
AND 1/16 OF ALL COAL AND OTHER MINERAL DEPOSITS (EXCEPTING OIL AND
GAS) RESERVED
BY THE STATE OF CALIFORNIA, ALL AS RESERVED IN THE PATENT RECORDED
JANUARY 27, 1927 IN BOOK 9 PAGE 208, OF PATENTS, RECORDS OF RIVERSIDE
COUNTY, CALIFORNIA;
ALSO EXCEPTING THEREFROM ALL OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES AND
MINERALS IN AND UNDER SAID LAND, AS SET FORTH IN THE DEED OF JOHN J.
KOVACEVICH
AND BEVERLY ELLEN KOVACEVICH, HUSBAND AND WIFE, RECORDED JANUARY
20, 1959 AS
INSTRUMENT NO. 5010 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA, BY A
QUITCLAIM DEED DATED JANUARY 29, 1979 AND RECORDED FEBRUARY 8, 1979
AS
INSTRUMENT NO. 27479 OF OFFICIAL RECORDS, ANY AND ALL SURFACE ENTRY
RIGHTS IN AND TO THE SURFACE AND SUB -SURFACE TO A DEPTH OF 500 FEET
WAS CONVEYED TO FIRST AMERICAN TRUST COMPANY, TRUSTEE.
EXCEPTING THEREFROM THOSE PORTION QUITCLAIMED TO THE CITY OF PALM
DESERT,A
MUNICIPAL CORPORATION, RECORDED SEPTEMBER 21, 2014 AS INSTRUMENT
NO. 20140268856 OF OFFICIAL RECORD. APN: 620-400-028-4
29
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EXHIBIT "B"
ILLUSTRATION OF PROPERTY LOCATION / OVERVIEW
RDACT SUWIARY TABLE
u.n w,a
..>+... a ,•
„x twos
fxr snausr
nx xsisxx
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• ��� rM101AW1J„+nNM M<CfYrf:�•�x / \` . WftsoC..r4..wt�i ,:•rt. u+�ntA n,.ra T.'�
erSSnrt; llfllf Orrvi.f r'^_. M1IA1urt'YUYc M•R_NS \`
ceb Ja.Gra.rl6 naA1.•µ ,ne rcc w��uw T • 1
u� rr.�.� �..wi.wc♦ rsnan..w. ' % // �� I J ~ 3
25
S �
24
/ 1
13
2e R
13
x
13 B
DARIEL IAN ASSOCIATES
EfaBa
L J TERRA NOVA' Project Site Plan
Palm Desert, California Sul
30
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EXHIBIT "C"
DESERT WILLOW GOLF RESORT MEMBERSHIP PRIVILEGES
1. Golf Academy Membership and Applicable Discounts and Benefits
2. Unlimited Use of Academy Practice Facility
3. Platinum Club Membership and Applicable Discounts and Benefits
4. Private Golf Cart Access Throughout Resort
31
G \P1ammng\Kevin SwarttWord\Pr— PL— Retreat at Desert W low PP 15-15 TT 168741FIna1 DA.doc