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HomeMy WebLinkAboutOrd 1297 - Prospect Co - Sr Living FacilityMEETING J VAU, � .._.._.c,. D C&JTINUED TO ORDINANCE NO. 1297 LUPASSEB TO 2W FIE DINT i AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT AMENDMENT AND CHANGE OF ZONE APPLICATION FOR THE EXPANSION OF A SENIOR LIVING FACILITY LOCATED ON THE SOUTHWEST CORNER OF CATALINA WAY AND SAN PASCUAL AVENUE CASE NOS: DA/CZ 15-086 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 181h day of August 2015, hold a duly noticed public hearing to consider the request by Prospect Companies, for approval of the above noted, and adopted Planning Commission Resolution 2655 recommending approval of the expansion of an existing Senior Living Facility and change of zone application, to the City Council; and WHEREAS, the City Council of the City of Palm Desert, California, did on the 8th day of October, 2015, hold a duly noticed public hearing to consider the request by Prospect Companies for approval of amendments to the Development Agreement, Precise Plan, and Change of Zone applications for the expansion of a Senior Living Facility; 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. 2015-75, in that the Director of Community Development has determined that no significant environmental impacts will result from the expansion of the Senior Living Facility and has prepared a Notice of Exemption to 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, said City Council did find the following facts and reasons to exist to justify the approval of said request: Findings for Approval: 1. That the proposed change of zone is consistent with the objectives of the Zoning Ordinance and the adopted General Plan. The Senior Living Facility will expand by acquiring two adjoining parcels abutting its existing eastern property line. These parcels are currently zoned Residential Single -Family (R-1) on the City's Zoning Map. The proposal to change their zoning designations from R-1 to Residential Single -Family (R-2) with a Senior Overlay (S.O.) is consistent with the City's current General Plan which adopted the policies contained in the Palma Village Specific Plan. The Palma Village Specific Plan identified properties surrounding the City's Senior Center to develop for senior housing projects and to make zoning consistent with the multi -family character of existing development west of San Pascual, while preserving the single-family zones east of San Pascual. ORDINANCE NO. 1297 The expansion of the Senior Living Facility is also consistent with the City's Zoning Ordinance provisions for the R-2 zoning district and S.O. zone. The expanded facility conforms to the development standard for the R-2 zoning district, with the exception of an adjustment to the front yard setback along Catalina Way. The development is single -story in height and does not exceed the maximum building height of 18 feet. An exception has been granted to reduce the front yard setback along Catalina Way from 15 feet to 10 feet in order to ensure the expanded facility has a similar setback as the existing facility. The adjustment to this setback is supported by the S.O. zone which allows for flexibility in design standards for senior housing development. In addition, the expanded facility complies with affordability requirements listed for senior housing developments in the S.O. zone. WHEREAS, the City Council of the City of Palm Desert, California, DOES HEREBY ORDAIN, AS FOLLOWS: 1. That the above recitations are true and correct and constitute the findings of the City Council in this case. 2. That Development Agreement 15-086, amending Development Agreement 97-1, and a Change of Zone 15-086 applying the Residential Single -Family (R-2) and Senior Overlay (S.O.) designations are hereby approve, as proposed, by Ordinance No. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm Desert, California, at its regular meeting held on the 8th day of October, 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 G Planning Eric Ccja Case Filcs PP PP 15-086 Legend Garden Expansion City Council CC Ordinance (Legrnds).docx K AMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT, CALIFORNIA And PROSPECT LG, LLC, a California limited liability company Dated: ,2015 48224)001-6929.1 725(X) .00011'.19550707.1 P606-001 -- 1786943.1 RECORDING REQUESTED BY AND FOR RECORDER'S USE ONLY WHEN RECORDED MAIL TO: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Attn: City Clerk Record for the Benefit of the City of Palm Desert Pursuant to Government Code Section 6103 (Space Above This Line Reserved for Recorder's Use Only) AMENDED DEVELOPMENT AGREEMENT THIS AMENDED DEVELOPMENT AGREEMENT ("Amended Agreement") is made and entered into as of this day of _ 2015, by and between the City of Palm Desert, California, a municipal corporation organized and existing under the laws of the State of California (the "City"), and Prospect LG, LLCM, a CAifornia limited liability company ("Developer"), pursuant to the authority of Sections 65864 — 65869.5 of the Califomia Government Code and the applicable provisions of the municipal code of the City of Palm Desert. The City and the Developer are hereinafter, from time to time, individually referred to in this Amended Agreement as a "Party" and collectively referred to as the "Parties." RECITALS A. These Recitals refer to and utilize certain capitalized to which are defined in this Amended Agreement, The Parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. D. California Government Code Sections 65864 tbrough 65869.5, inclusive (the "Development Agreement Legislation"), authorize the City to enter into development agreements in connection with the development of real property within its jurisdiction. On August 22, 2013, the City enacted by Ordinarice No. 1259, amending Municipal Code Section 25, and including Sections 25.78,060 (the "Development Agreement Ordinance"), which establishes procedures and requirements for the consideration of development agreements Pursuant to the Development Agreement Legislation. C. On April, 23, 1998, City and Pacific Assisted Living, Inc. ("Operator") entered into a Development Agreement ("Original Agreement") for the development of a twenty (20) unit assisted living facility on the southeast comer of Catalina Way and Sao Carlos Avenue commonly known as "Legend Gardens" (the "Assisted Living Facility"). The Assisted Living Facility is restricted to senior citizen households over 62 years of age and, per the to of the Original Agreement, to meet the Affordability Requirements of Section 25,52.030 F of the Municipal Code, two (2) units in the Assisted Living Facility must be set 4822-0001-69�q,i 2 725W0001 1\19550707A P606-001 -- 1786943A aside for aged recipients of Supplemented d Security Income ("SS " as administered by the United States Social Security Administration (the "Original SSI Units"). The maximuni charge for full room, board and care services as offered by the Operator for the Original SSI Units cannot root exceed the maxinunn applicable S [ benefit less $50.00 per person. D� As part of this Project, Developer will expand the assisted Living facility by acquiring and merging multiple parcels of land located within the City. Specifically, Legend Gardens, Inc., a California corporation is the current owner of .Assessor's Parcel No. 627-114-111, Five J's, LI.C", a California limited liability company is the current owner of :Assessor's Parcel No. 627-114- 1 , Mildred M, Sutherland as trustee of The Mildred 1 . Sutherland Living Trust U/A dated 3/22/95 is the current owner of Assessor's Parcel No. 627-114-0 5, d fay L. Emery and Delora Emery are the current owners of ,Assessor's Parcel No. 22- 114-06 all of which shall collectively be referred to herein as "Current Owner Properties," which parcels are generally located oh the south side of Catalina Way, between San Carlos Avenue and San Pascual Avenue, The Current Owner Properties will be merged into one parcel ("Project Property") pursuant to a Parcel Map Waiver prior to the recordation of this Amended Agreement. Developer intends to demolish the existing, detached single-family homes located on a portion of the Project Property in order to expand the Assisted Living Facility pursuant to the Development Approvals; E. The Developer has applied for precise plan, change of zone, and development agreem, ent amendment approvals pursuant to Chapter 2 .' 2.030 and Chapter 25.78,040 of the Zoning Ordinance, for development of real property within the'C'ity's'Senior Overlay District which allows for significant density increases in return for building specialized housing designed d restricted to residents over age 62 years. F. pursuant to Chapter 25.2 .020 of the Zoning Ordinance governing development of projects within the Senior Overlay District, ct, d as a condition of approval, the City requires that a specified number of units associated with the project be set, aside for lower and moderate income occupants subject to restrictions necessary to insure the continued occupancy of said units by Sower income and moderate income senior citizen households at an affordable rent. C . The City has determined that the development of the Project as contemplated by the Amended Agreement is consistent with and in furtherance of :the development goals, policies, general land uses and development programs of the City as set forth in the City's General Plan and the Palma Village Specific Plan and is consistent with the Residential Multiple Family and Senior Overlay Zoning Districts adopted on _� 2015, by Ordinance No. _.®_, affecting the Project Property. H. City has ftirther deterinined that entry into this A. ended Agreement will further the goals and objectives of the C°ity's land use plaru ung policies by, aniong either things, encouraging investment, providing precise and supplemental criteria for the uses, design, d development of the project Property, and implementation of the Palma Village Specific Plan. The benefits conferred on the City by Developer herein will P606-001 -- 1786943:1 (i) insure consistent, comprehensive planning which will result its the development, and expansion of an assisted living facility that is aesthetically pleasing and harmonious with the Senior Overlay District and surrounding neighborhood; (ii) provide affordable housing opportunities within the Project boundaries; ('iii)further the development objectives of the City in an orderly manner, all of which will significantly promote the health, safety and welfare of the residents of the City. In exchange for these benefits to the City,Developer desires to receive the assurance that it may proceed with the Protect in accordance with the Project Approvals and at a rate of development of its choosing, subject to the terms and conditions contained in this Amended Agreement. r By adopting this Amended Agreement, the City Council has elected to exercise certain governmental powers at the present time rater than deferring such actions until an undetennined future date and has done so intending to bind. the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. T, This Amended :Agreement has undergone extensive review by the City's staff, thePlanning Commission and the City Council. Can its Effective Date, the amended Agreement will supersede and replace the Original Agreement in its entirety. . To ensure that the intentions of the City and Developer with respect to the Project approvals are carried out the Parties desire voluntarily to enter into this Amended Agreement to facilitate development of the Project, subject to the conditions and requirements included in this Amended Agreement. NOW, THEREFORE, pursuant, to the authority contained in the Development Agreement L,egislation� and in consideration of the mutual covenants and promises of the Parties herein contained.., the parties agree as follows: AMENDED AGREEMENT 1. Definitions. L L Defined Terms. s Each reference in this Amended Agreement to any of the following terms shall have the meaning set forth below for each such to 1.2. affordable Pent, The maximum applicable monthly Supplemental Security Income ("SSI") benefit payable ,for fall room, board and care services in Califortua, (based on non -medical out -of -home care less fifty Dollars (50.00) per month per person. The Affordable Rent may be adjusted annually pursuant to the annual SS SSP payment Standards published by the California Department of Social Services. Per 2015, the 7 s(x).00 11t195s07c7,1 1.3 1.. 1.5. 1..7. Affordable dent shall not exceed $1,095 for single occupancy and $2,240 for datable occupancy. Affordable eds. One (l) Memory Care Bed and lime (9) Assisted Living Beds to be made available to Sal Recipients at the Affordable Merit upon; completion of Project and continuously through the terrxr of this Amended Agreement. The rent for an Affordable Bed may not exceed the Affordable Rent. Amended Agreernent. This Amended Development xAgreement which supersedes the originally approved Development Agreement enacted by the Palma Desert City Council by adoption of Ordinance 867. Assisted Livira acilit, . The existing assisted living facility operating as "LegendGardens". .Assisted Livin Bed. One 1) bed within are Assisted Living grit wbich Assisted Living Trait may be'single or dial occupancy.. For purposes of clarity, a dual occupancy Assisted Living Unit would ld include two (2) Assisted Living Beds. Assisted LiyiqgIJLrIits. Those certain bits included in the existing Assisted Living Facility and tease additional Units to be added as part of the Project which are designated for assisted living services a ca shown n the plan attached hereto as Exhibit . , which Assisted Living Units may be single or dual 'occupancy. Beds. The total number of beds within all the AssistedLiving Units and Memory Care Units at any given time which may vary whether such Units are dual or'single ' occupancy. . Btri;ldin Cyrdzrr° ces. "These building standards, of general and unifonn application throughout the City and not imposed solely with respect to the Project Property, in effect frombrom time to time that govern building d construction standards within the City, including, without limitation the C"ity's building, plumbing, electrical, mechanical, grading, sign, and fire —4- 1.l tk: C it Council. The legislative body of the City of Palm Desert.. 1.11. Effective Date. The Effective late of this Amended Agreement shall be the date that it is recorded in the Official Records of riverside County, California. 1.12. L,'nacting Ordinance. Ordinance , enacted by the City Council n 2015, approving this ended Agreement. 725(X 0001 � 195507 ��r x .t 1-0001- 29.1 P606-001 -- 1786941 S .1 h :xisting Land Use Ordinances. The Land Use Ordinances ees in effect as of the Effective late. 1.14. Land Use Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of the City, governing the development ent of the Project, including but not limited to, the permitted uses of land, the density and intensity of use of land, and the timing of development, all as applicable to the development of the City property and project Property. Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shall include City's General Plan, the Palau Village Specific Plan, the City's zoning ordinance and theCity's subdivision code, but shall exclude the Building Ordinances. 1.15.cry mare Belle One t l bed in a Mernory Care init which Memory Care Limit may be single or dual occupancy. For purposes ses of clarity, a dual occupancy Memory Care unit may have twoMemory Care Beds. 1.16. lvfet ror Care T fhit Those Limits to be added as part of the Project which are designated for memory care as shown can the plan attached hereto as Exhibit L whicb Memory Care Units may be single or deal occupancy. 1.17. The Development ; ent reement dated April 23, 1998 between the City and Pacific assisted Living, Inc. for the development of the Assisted Living Facility; 1.18. %7ri final SST beds. For purposes of the Amended Agreement, four (4) Assisted Lwing Beds in the Assisted Living Facility which must be occupied aged recipients of Supplemented ed Security Income ("SST") as administered by the 'United States Social Security Administration pursuant to the tenns of the Original: Agreement. 1.19. T'rd`e t. The existing twenty i) unit Assisted Living Facility known as Legend Gardens together with the expansion of the ,assisted Living Facility to include fifty t l j new assisted living units and twelve (12) in ` iory care units for a total of forty-seven t471 snits, including associated amenities, card services, and on -site and off -site improvements, as permitted under and described in the Project Approvals to be constructed on the Project Property, as the same may hereafter be farther relined, enhanced or modified pursuant to the provisions of this Amended Agreement, Project is further defined are Section 3.1 beret fx 1.21, rta'ect rov ls.. Developer has applied for and obtained various environmental and land use approvals and entitlements related to the development of the Project, as described below. "Project Approvals"' shall mean all of the approvals, plums and agreements described in this section 1.20: 4821-0001- �,q.i o 725(X),0001 1\1955 r707A 1.20.1 Change of Zone "Z 15-86 a raved on t115. .2 i.2 Precise Plan. PPE 15-86, aroved0M 1.20.2 Parcel Map Waiver pMW 15- s AnDroved on 2015 1.20.4 Arnended Development lopment greement DA JJ5-86,Vproyg can '101 -5_by Ordinance No. 1 .20.5 5SRubsequent rravals. In carder to develop the Pro ect, as contemplated in this Amended Agreement, the Project may require land use approvals, entitlements, development permits, and use and/or construction approvals other than those listed in Sections 1.21.1 througJi 1.20.4, alcove, which may include, without limitation: development plans, s, amendments to ;applicable redevelopment plans, conditional use permits, variances, subdivision approvals; street abandontnents, design review approvals, demolition pertnits, improvement agreements, infrastructure agreements, grading permits, building permits, right-of-way permits, left line adjustments, site plans, certificates of occupancy, parcel- maps, lot splits, landscaping plans, master sign programs, transportation demand management programs, encroachment permits, and amendments thereto and to the Projecct Approvals (collectively, "Subsequent Approvals"). At such time as any Subsequent approval applicable to the Property is approved by the City, then such Subsequent approval shall become subject to all the 'terms and conditions of this Amended Agreement applicable to Project Approvals and shall be treated as a ProJec:t approval under this Development Agreement. 1 a21, The real property which is the subject of this Amended Agreement as described in Recital D and more particularly described in Exhibit A. 1.22. Senior Citizen Household, hold, household consisting of a maxi urn of two (2) persons both of whorn are over 62 years of age, 1.22. SSI Recipient. A recipient of Supplemental Security Income ("SSI"") %s administered by the United States Social Security Administration over the age if 62. 1.24. Units. The ,Assisted Living Units and the Memory Care Units collectively. l .25. Useful fife of :the .Pro ect.. Effective from the issuance of the final certificate of occupancy for the Project, it is the greater of thirty ;( 0) years or the period of time which the Project remains habitable, with reasonable carer d maintenance, as determined by the City. 481-2-0001.69*9,1 7 72500,00011 \19550707.1 P606-001 -- 17804 3, t 2, Term- ° reed si to 2.1 Teim. The term of this Amended Agreement (the "Term") shall c ornmence on the Effective hate and shall remain in effect for the Useful ful ife of the Project. 2.2 Amendment. The Parties to this Amended Agreement at _their sale discretion and by their mutual written consent may from time to time aniend the provisions and terms of this Amended cement and the Exhibits hereto. Any amendment to this Amended Agreement of the exhibits hereto a provided herein shall be effected only open compliance with the procedures for are' d aft, if y, required by the Development ent Agreement t Legislation and the Development Agreement Ordinance, The City shall, after any such amendment t takes effect, cause an appropriate notice of such amendment to be recorded in the official records of the County of Riverside. 3. General D velc rent c f the Prg act. I Prpjectt. (a) The Project is defined and described in the Project Approvals Which specifics for the purpose of this Amended d Agreement all of the following sects of the Project: (i) Maintenance of the assisted Living Facility including the twenty (20) Assisted Living Limits (including the Original SSI Beds), zeal preparation; common on dining area, administrative offices, and mparable services offered by assisted living (facilities of similar size; (ii) Demolition of two (2) existing detached single-family homes along San Pascual Avenue. (iii) New construction for the expansion of the Assisted Living Facility including the construction of new buildings, landscaping, and other site iii1provernents, to accommodate fifteen (l) new .Assisted Living Units, arld twelve (2) new Memory Care Units, for a total of 27 new Units. (iv) Affordability requirements in accordance with the C ity's Senior Overlay District as modified by this Amended Agreement. (v) Development and operation of the site in accordance with this Amended Agreement, the C ity's Senior Overlay District, d the conditions of approval placed on the precise plan application. (b) The Parties acknowledge that, as part of the Project Approvals, and as required by Chapter 25.28.020 of'the City's Zoning Ordinance, ce, the Developer is required to reserve and make affordable ten 10) Units within the Project for low-income and moderate - income households. Dud to the unique range of services provided by the Assisted Living Facility, and consistent with the Original Agreement, in lieu of the requirements contained in Chapter 25.28.020, Developer shall have the rigJit to set aside twine (g) Assisted Living Beds and ass - 01-6929.E 72500,0001 1\0550707.! P606- 01 -- 17 6 a t one (1) Memory Care Bed (which numbers include the four () Original SSI Beds) for SSI Recipients of Senior Citizen Households at a rental h r not to exceed an AfTordable Rent. The affordable Beds need not be restricted to the same Unit as longs the beds are interspersed throughout the Project such that a Unit may contain one (1) Affordable Bed and one (1) market rate Bed; it being cknoi ed ed that it is the number of Beds, not Units, which Developer is obligated to Gaffer at the Affordable Rent. It is understood that occupants of the affordable Beds shall receive identical basic congregate care services as available to other residents of the Project, whether assisted living services or memory dare services. () Developer shall install sidewalks where the residential driveway aprons are currently located along Catalina Way and. San Pascual Avenue as approved by, and in accordance with, the C°ity's Public WorksDepartment's standards and policies, 3.3 Po°ect °� Construction Entitlement. Developer shall have the vested right to develop the Project in such carder and at such rate and at such times as Developer'deems appropriate in the exercise of its business judgment, provided that Developer is in compliance with the Project Approvals and all conditions contained therein. City expressly agrees that Developer shall be entitled to apply for subdivision maps, building pennits, occupancy certificates and. Gather land use an, d development entitlements for its use at any time provided that such application is made in accordance with the Project Approvals and this Amended Agreement, 3.4 B ildin permits and Other royals and Permits. Subject to (a) Developers compliance with this Amended Agreement, the Project Approvals, the Existing Land Use Ordinances and the Building Ordinances, and ) payment of the usual and customary fees and charges of general application charged for the processing of such applications, permits and certificates and for any utility connection, or similar fees and charges of general, application, the City shall process and issue to Developer promptly upon application therefor all necessary use permits, building permits, occupancy certificates, and other required permits its for the construction, use and occupancy of the Project, or any portion thereof, as applied for, including connection to all utility systems under the ity"s jurisdiction and control (to the extent that such connections are physically feasible and that such utility systems are capable of adequately servicing; the Project). .5 Procedures and Standards. The standards for granting or withholding permits or approvals required hereunder in connection with the development of the Project shall be governed as provided herein by the standards, terms and conditions of this Amended Agreement, and to the extent not inconsistent therewith, the Existing Land Use Ordinances, but the procedures for >processing applications for such pen -nits or approvals (including the usual and customary fees of general application charged for such ;processing) shall be governed by such ordinances and regulations as may then be applicable and which are consistent with the Project Approvals. 4822-0001.692 A q 72500.ta OI a 19550707.1 F 606-00 i -- 1786943:1 3.6 Effect of ended A � e ni t. This Amended Agreement shall constitute a part of the Enacting Ordinance, as if incorporated by reference therein in toll. The Parties acknowledge that this Amended A re rnent grants Developer the right to develop the Project pursuant to specified and known criteria and rules as set forth in the Project Approvals and the Existing LandUse Ordinances, cfe , and to grant the City and the residents of the City certain benefits which they otherwise would not receive. The Developer or its successors in interest shall reserve the Affordable Beds as described herein at an Affordable Rent for > l Recipients in Senior Citizen Households as set forth in thin: Amended Agreement for the Useful Lie of the Project and Developer shall not charge the use of the Project without prior written consent of the 'it . This Amended Agreement shall be binding upon the City and. Developer and their successors in accordance with and subject to its to conditions notwithstanding any subsequent action of the City, whether taken by ordinance or resolution of the City Council, by referenda, initiative, or otherwise. The Parties ckno ed e and agree that by entering into this Amended Agreement and relying thereupon, the Developer� has obtained, subject to the terms and conditions of this Amended Agreement, vested right to proceed with its development of the Project in accordance with the proposed asses of the Project Property, the density and intensity of development of the Project Property and the requirements and guidelines for the construction or provision of can -site and off -site improvements as set forth in the Project Approvals and the :existing Land Use Ordinances, and the timing provisions of Section 3.3,` d the City has ;entered into this in carder to secure the public benefits conferred upon it hereunder which are essential to alleviate cur -rent and potential problems in the City and to protect the public health, safety and welfare of the City and its residents, and this Amended °eemer t is an essential element in the achievement of these goals. Developer loper and. City further acknowledge and agree that this Amended Agreement shall supersede and replace in its entirety the Original Agreement upon the Effective Date ofthe Amended Agreement. 3.7 0 2eratingem rand . Developer and City acknowledge that the provisions of this Amended Agreement require a close degree of cooperation between Developer eloper and. City, and that refinements and further development of the Project may demonstrate that changes or additional provisions are appropriate with respect to the details of performance of the Parties sander this Amended Agreement in carder to effectuate the purpose of this Amended Agreement and the intent of the Parties with respect thereto. if and when, from time to time, the Parties fuses that such changes or additional Provisions are necessary or appropriate, and subject to the provisions of the next succeeding sentence, they shall effectuate such chan, ges, or provide for such additional provisions through operating memoranda to be approved in good faith by the Parties, which, after execution, shall guide implementation of this Amended Agreement and may be further charred or supplemented from time to tirtte as necessary, with further good faith approval of Developer and City. Upon receipt by the City of an opinion of the City Attorney to the effect that the subject matter of such operating memoranda dries not require the amendment of this Amended Agreement in :the manner provided in Section 65868 of the California Government 4 22-t 001-6929 a 10 Code, then no such operating memoranda shall require prior notice or hearing, or constitute an amendment to this Amended Agreement; and in the case of the City, such operating memoranda may be approved and executed by its City Manager without further action of the City Council. Failure ofthe Parties to enter into any such operating memorandashall not affect or abrogate any of the rights, duties or obligations of the Dirties hereunder or the provisions of this Amended Agreement. a egific C"ritri liikhl tci 1lta rtt caftr't. 1.1 A Tplicable Ordinance,-,, Except as set forth in the Project Approvals and subject to the provisions of Section 4.3 below, the Existing Land Use Ordinances shall govern, the development of the Property hereunder and the granting or withholding of all permits or approvals required to develop the property„ provided, however, that (a) Developer shall be subject to all changes in new d existing development impact fees,; processing, inspection and plan -check fees and charges imposed by City in connection with the processing of applications for development and construction upon the Property so long, as such fees and charges are of general application and are not imposed solely with respect to the project Property; (b) Developer shall abide by the Building Ordinances in effect at the time of such applications; and (c) Developer pay development impact fees established at'the time building peonits are issued. 4.2 Anticipated First lies or se Paramedic Fee. The City and Developer acknowledge that the City is reviewing g the potential of establishing a first Response Paramedic pee applicable to senior living, assisted living and memory care facilities for ambulatory d emergency responses The fee is currently being studied and will require approval by the City Council either by Ordinance or Resolution. As indicated in the provisions of 4.1 above, the Developer will be subject to any new fee relating to the First Response Paramedic .pee established as a part of the development impact fees payable when building pennits are issuedand/or a user fees on an annual basis; provided;, however, nothing herein shall require eveloper to pay any; retroactive development impact fees if the same are not established as of the three that Developer aper polls building pen -nits. 43 Amendment to Applicable Ordinances. y change to the Existing Land Use Ordinances that conflicts with the Project Approvals shall nonetheless apply to the Project property if, and only if (i) it is consented to in writing by Developer in Developer's per's sale and absolute discretion; (it) it is determined by City and evidenced through findings adopted by the City Council that the change or provision is reasonably required in order to prevent a condition dangerous to the public health or safety (in) it is required by changes in State car Federal law, (iv) it consists of changes in., or new fees permitted by, Section 4. or (v) it is otherwise expressly permitted by this Amended Agreement, 482.2-0001-6929 a 11 72500.0001 I'll 9550707.1 P606-001 -- 1786943 1 In the event that the City zoning ordinance is amended by the City in a manner which provides more favorable site development standards for the Project Property or any part thereof than those in effect as of the Effective gate, Developer shall have the right to notify the City it writing of its desire to be subject to all or any such new standards for the remaining tonu of this Amended Agreement, If City agrees, by resolution of the City Council, such new standards shill become applicable to the Project Property or portions thereof a Should City thereafter amend such new standards, upon the effective date of such amendment, the original new standards shall continue to apply to the Project property as provided above, but Developer per may notify City in writing of its desire to be subject to all or any such amendedd, new standards and City shall agree in the manner above provided to apply such amended new standards to the Project Property; 4A Easements- Abandonments. donments; City shall cooperate with Developer in connection with any arrangements for abandoning existing utility or other easdntents and the relocation thereof or creation of any new easements within the Project 'Property necessary or appropriate in connection with the development of the Project, and if any such easement is ovnied by City, City shall, at the request of Developer and in the manner and to the extent permitted by lave, take such action and execute such documents as may be necessary to abandon existing easements and relocate them, as necessary or appropriate in connection with the development of the Project, all at the cost and expense of the Developer. In addition,; to the extent that temporary or permanent easements on property adjacent or in dose proximity to the Project Property will be required in order for Developer to develop all or portions of the Project, the City shall cooperate with Developer in efforts to obtain or secure any such required easements. . Periodic Review of Compliance. .1 Annual Cca Rance. In accordance with Govt. Code Section 6 865.1, the Director of Community unity, Development ent shall review compliance with this Amended Agreement on an annual basis during the Tenn of this Amended Agreement, At such annual reviews, Developer and City most demonstrate their good faith compliance' with the terms of this Amended Agreement. Developer and City agree to famish such evidence of good faith compliance. In the event that City reasonably contests the int-ormation provided by Developer, City shall have the right to audit the books and records of the Property at the Developer's expense upon City request to evaluate compliance with Section 3. 1.. 52 a cement A -enf. Developer loper _ and/or the Developer's contracted management agent (f Developer has delegated such duties) shall operate the Project in a manner that will provide decent, safe and sanitary residential facilities to the occupants thereof, and will comply with provisions of this Portended Agreement. ent. Upon the written request of the City, the Developer shall cooperate with the City in the periodic review of the management practices and financial status of the Affordable Beds in the Project. The purpose of each periodic review will be to enable the City to detennine if the Affordable Beds within the Project are being operated and managed in 4822m0001-6929.1 1 P606- 01-- t 96943 accordance with the requirements and standards of this Amended Agreement, Results of such City review shall be provided to Developer, Ca.. Pennitted:Dela s; 5u ersedure b Subse uerzt Laws. 6.1 Permitted Delay,s. In addition to any other provisions of this Amended Agreement t with respect to delay, Developer and City shall be excused from performance of their obligations hereunder during any period of delay caused by acts of mother nature, civil commotion, otion, riots, strikes, picketing, or ether labor disputes, shortage of materials or supplies, or damage to or prevention of work in process reason of fire, floods earthquake, or other casualties, litigation, acts o neglect of the other party, y referendum elections held on the Enacting Ordinance, or the Land Use Ordinances, or any other ordinance effecting the Project or the approvals, perinits or other entitlements related thereto, or restrictions imposed or mandated by governmental or quasi-govenimental entities, enactment of conflicting provisions of the Constitution or laves of the United States of America or the State of California or any codes, statutes, regulations or executive mandates promulgated thereunder (collectively, "Laws"), orders of courts of competent jurisdiction, or any either cause similar or dissimilar to the foregoing beyond the reasonable control of City or Developer, as applicable. leach Marty shall promptly notify the other Party of any delay hereunder as soon as;,possible after the same has been ascertained. The time of performance of such obligations shall be extended by the period of any delay hereunder. 6.2 a ersedrtre of ubse uent r s o Judicial ctic n. The provisions of this Amended Agreement shall, to the extent feasible, be modified or suspenoed as may be necessary to comply with any new Law or decision issued by a court of competent jurisdiction (a "Decision"), enacted of made after the Effective ;Gate which prevents or precludes compliance with one or more provisions of this Amended Agreement. Promptly after enactment of any such new Law, or issuance of such recision, the Parties shall meet "and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Amended Agrecirient. In addition, Developer and City shall have the right to challenge the new Law or the :recision preventing compliance with the ternis of this Amended Agreement, In the event that such challenge is successful, this Amended Agreement shall remain unmodified and in full farce and effect, except that the Terni shall be extended, in, accordance with Section tat above, for a pentad of time equal to the length oftime the challenge was pursued, to extent such challenge delayed the i rlpleanentation of the project, 7. Events of Default. Remedies- Tenintiation. 7.1 Events of Default. Developer is in default under this Amended agreement if one or more of the following events or conditions occur and the same is not cured within the Core Period (defined below) by taking the actions specified in a written notice of default issued by the City ("Event of Default"): 725td11,t1 011 \ 195 50707.1 P606-001 -- 179 943 1 (i) if a warranty, representation of staternent made or furnished by Developer elopers to City is false or proves to have been false in any material respect when it was made. ( i) A finding; and determination by the City made following a periodic review under the procedure provided for in Government Code- Section 6,5865.1 that upon the basis of substantial evidence Developer has not complied in good faith vvitli any of the terms or conditions of this Amended Agreement; (iii) Developer's failure to maintain the Project in substantially the same condition as it exists on the date that City issues the Certificate of Occupancy with respect to the Project, less ordinary wear and tear, or to restore promptly in a good and workmanlike manner arty building which may be damaged or destroyed.. (i) Developer's failure to appear in and defend any action or proceeding purporting to affect the ri, bts or powers of City under the ternis, of this Amended Agreement, and to pay All costs and expenses, includirlg attic ey"s fees in a reasonable sum, in any such action or proceeding in which City may appear. Any notice of default gives here n er shall specify in detail the nature € f the alleged default and the manner, if any, in which such default may be satisfactorily cured in accordance with the terms and conditions of this Amended Agreement. With regards to any default alleging that Developer has not cornpl ed with the terms and conditions of this Amended Agreement, Developer shall have at least thirty (30) days following receipt of the notice of default (the "Cure Period") to tape the specified remedial actions and achieve compliance. During the time periods specified for cure of a failureof perfonnance, the Party charged therewith shall not be considered to be in default for purposes of termination of this Amended Agreement, institution of legallirticeedings with respect thereto, or issuance of any permit, map, certificate ofoccupancy, approval or entitlement with respect to the Project. 7. Remedies: Upon the occurrence of an Event of Default, the City shall have such rights;and remedies against the defaulting Developer as it may have at laver or in equity, including, but not limited to, the right to terminate this Amended Agreement or seep mandamus, specific performance, in unctive or declaratory relief, but not the rigbt to damages, except to enforce payment obligations provided for under the terms ofthis Amended Agreement. Notwithstanding the foregoing, and except as otherwise provided in Section 8.4 hereof, if either Developer or City elects; to to irate this Amended Agreement as a result of the occurrence of an Event of Default, such proceeding of termination shall constitute such Pa ty's exclusive an, dole remedy, and with respect to such election 73 a:iver° Remedies C"u ulatve. failure by a Party to insist upon the strict performance of any of the provisions of this Amended Agreement by the other" Party shall not constitute waiver of such Patty's right to 48=-0001_6929J 14 725(K), 001IA9550707.1 P606-001 -- 1786'9431 demand strict compliance by such other Party in the future. All waivers must be in writing to be effective or binding upon the waiving Party, and no waiver shall be implied from any omission by a Party to take any action with respect to such Event of Default. No express written waiver of any Event of Default shall affect any other Event of Default, or cover any other period of time specified in such express waiver. 7.4 Effect of Termination. Termination of this Amended Agreement by one Party slue to the other Party`s default shall not affect any rightor duty emanating from any approvals, perrrrits, certificates or other entitlements with respect to the Project Property or the Project which were issued, approved or provided by the City prior to the date of termination of this Amended Agreement. If City terminates this Amended Agreement because of Developer's default, them City shall retain any and all benefits, including money, laird or improvements conveyed to or received by the City prior to the date of termination of this Amended Agreement, subject to any reirrrburserrrent obligations of the City. If Developer terminates this Amended Agreement because of City's default their Developer shall be entitled to all of the benefits arising out of, or approvals, permits, certificates or rather entitlements!' ents!' on account of, any Exactions paid, givers or dedicated to, or received. by, City prior to the date of termination of this Amended Agreement. Except as otherorise provided in this Section 7.4, all of the rights, duties and obligations of the Parties hereunder shall otherwise cease'as of the date of the termination o this Amended Agreement. If this Amended Agreement is terminated pursuant to any provision hereof, their the City shall, after such action takes effect, cause an appropriate notice of such action to be recorded in the official records of the County of riverside. The cast of such recordation, shall be bo e by the Parry causing such action 7.5 'Third P ctica - Any court action or proceeding brought by any third party to challenge this Amended Agreement or any permit or approval required from City car:any other governmental entity for development or construction of all or any portion of the Project, whether or not Developer aper is a party defendant to or real party defendant in interest it such action or proceeding, shall constitute a permitted delay under 'Section 7. 1. .. Encumbrances on Prorrerty, 8.1 Discretion to Encumber, The Parties hereto agree that this Amended Agreement shall not prevent or limit Developer, oper, in any manner, er, at Developer's sole discretion, from encumbering rrbering the Project Property or y portion ,thereof or any improvements thereon with any Mortgage or other security device securing financing with respect to the Project Property. The City acknowledges that the lenders providing suchfinancing may require certain modifications to this Amended Agreement, and the City agrees upon request, from time -to -time, to Tweet with Developer door representatives of such lenders to negotiate in good faith any such request for modification. i 72500,0001 1\ 195 50707. C'606- 01 -- 1786943,1 City further agrees that it will not unreasonably withhold its consent to any such requested modification. . . o t e Proteetion. This Amended Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Amended Agreement shall defeat, reader invalid, diminish or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Site or any portion thereof by a Mortgagee (whether pursuant to a Mortgage, foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise) sh1 be subject to all of the terms and conditions of this Amended Agreement. 83 ortga gee �bli aced. orwithst nding the provisions of Section 8.1, no Mortgagee will have any obligation or duty under this Amended Agreement to perforni the obligations of Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that to the extent that any covenant" to be perfonned by Developer is a condition to the performance of a covenant by City, the perfonnance thereof shall continue to be a condition precedent to Cit's performance hereunder. 8.4 f s1:cM el Certificates. Ether Party may, at any time, and from fir- e to time, deliver written notice to the other Party requesting such Party to certify in writing; that, to the knowledge of the certifying Party, (i) this Amended Agreement is in full force mid effect and a binding' obligation of the Parties, (ii) this Amended Agreement has not been amended or modified, or if so amended or modified, identifying such amendments or modifications, and (in) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and';retu such certificate within thirty (3) days following the receipt thereof. City acknowledges that a certificate sate hereunder may be relied upon by transferees, assig, ees and lessees of the Developer and the holders of any Mortgage: 9. Transfers and As,' n ents° Effect of Amended Agreement can. Title. 9.1 Ili its and. interests urtenant: The rights and interests conveyed as provided herein to Developer benefit and are appurtenant to the Project Property. Developer has the right to sell, assign and transfer any d all of its rights and interests hereunder and to delegate and assign any and all of its duties d obligations hereunder. Such rights and interests hereunder may not be sold, transferred or assigned and such duties and obligations may not be delegated or assigned except in compliance with the following conditions: (i) Said rights and interests may be sold, transferred or assigned only together with and as an incident of the sale, lease, transfer or assignment of the portions of true 4 12-0001-6929A 16 77500, 001 F 19 707,1 P606-001 -- 1796943A 9.2 Covenants Run with Land. (i) All of the provisions, agreements, rights, pavers, standards, terms, covenants and obligations contained in this Amended Agreement shall be binding upon the Parties and their respective heirs, successors merger, consolidation, or otherwise) and assigns, devisees, lessees, and all other persons acquiring y rights or interests in the Project Property, or any portion thereof, whether by operation of laws or in any manner whatsoever, d shall inure to the benefit of the Parties and their respective heirs, successors (by merger, consolidation or otherwise) d assigns; (i) All of the provisions of this Amended Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable lave; (in) Each covenant to do or refrain from doing some act on the Project Property hereunder (A) is for the benefit of and is a'burden upon every portion of the Property, ( reins with such lands, and ( is binding; upon each Party and each successive Developer per during its ownership of the Project Property or any pnrtions thereof, and shall benefit each Party d its lands hereunder, and each such other person or entity succeeding to an interest in such lands:: 10. Notices. Any notice to either party shall be in writing; and given by delivering the sarne to such party in person or by sending the same by registered or certified mail, return receipt requested, with postage prepaid, to the following addresses: If to City: City Clerk- of the City of Palm Desert 3-519 Fred Faring Drive Palm Desert, California 9260 If to Developer: c/o Prospect Companies 153 S. sierra Avenue, suite 173 Solana Beach, CA 92075 Attention: Mr. Mark Hell ckson Either Party may change its mailing address at any time by giving written notice of such change to the other Party in the manner provided herein. All notices under this Amended Agreement shall be deemed given, received, made or communicated on the date personal delivery is affected or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. 72500, 001 ti19550707.1 11 a Indemnification. 11.1 levelca r° 11aliaaiz. Developer will defend, indemnify and hold the City and its elected officials, officers, employees, agents and volunteers free and harmless from any lass, cast or liability (including, without limitation, liability arising frcarri injury or damage to persons or prcaperty, including wrongful death andworker's compensation claims), which results from (i) any obligation of Developer which arises from the development of the Project Property, including, without limitation, obligations for the payment of money fear material and labor; tii any failure on the part of Developer to take any action rvhicli it is required to take as provided in this Amended Agreement, tiii any action taken by Developer which it is prohibited from taking as provided in this Amended Agreement and (iv) y claim which results from any willful or negligent act or omission of Developer. Anything contained herein notwithstanding, City shall be responsible for any bass, coast or liability (including, without limitation, liability arising from injury or darna e to persons or property, including wrongful death and workees 'co mpensation claims), which results from or is caused by C"ity's own negligent acts caromissions or intentional conduct, and not closed to any extent Developer's eloper's negligent acts or omissions or intentional conduct. In the event of any administrative, legal or equitable action instituted by a third party challenging the validity of any provision of this Amended Agreement, the procedures leading to its adoption, or the Project Approvals for'the Project, Developer and City each shall have the right, in its scale discretion, to elect whether or riot to defend such action. Developer, at its sale expense shall defend, indemnify, and hold haninless the City (including its agents, officers and employees) from y such action, claim, or proceeding with counsel chosen by the City, subject to Developer's eloper's approval of counsel, which shall not be unreasonably denied, and at Developer's aper's sale expense; If the, City is aware of such an action or proceeding, it shall promptly notify Developer and cooperate in the defense. Developer upon such notification shall deposit with City sufficient funds in the judgment of City Finance Director fear to cover the expense of def riding such action without inty offset or claim against said deposit to assure that the City expends no City funds. If both 'Parties elect to defend, the Parties hereby agree to affirmatively cooperate in defending said action and to execute a joint defense and confidentiality agreement ent in carder to share and protect information, under the joint defense privilege recognized under applicable lase. As part of the cooperation in defending an action, City and Developer shall coordinate their defense in carder to make the most efficient use of legal counsel and to share and protect information. Developer and "i y shall each have stale discretion to terminate its defense at any time. The City shall not settle any third party litigation of Project Approvals without Developer's consent, which consent shall not be unreasonably withheld, conditioned or delayed. 11.2 Environmental Assurances. Both Parties agree to indemnify and hold the Gather Party and its elected officials, its officers, employees, agents and volunteers, as may be applicable, free and hantflessfirom any liability deriving from the execution or perfonnance of this Amended Agreement, based or asserted upon any act or omission of either Party, its officers, agents, employees, contractors, 48212-001-692.1 I 72500,00011 t19550707.1 P606-001 -- 1786943 4 subcontractors and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to hazardous or toxic materials, industrial hygiene, or environmental conditions created by the other Party or its officers, agents or employees, contractors, subcontractors and independent contractors after the Effective Date on or under the Project, Property, including, but not limited to soil and groundwater conditions, and each Party shall defend, at its expense, including attorneys fees, the other Party and its elected officials, employees, agents and volunteers, as applicable, in any action based or asserted upon any such alleged act or omission. Eftber Party may in its discretion participate in the defense of any such action. The provisions of this Section 11 .2 shall survive the territination or expiration of this Amended Agreement. 12. Miscellaneous. 12,1 Relationshin of Parties. The Parties specifically acknowledge that this Amended Agreement is a contract that has been negotiated and knowingly and voluntarily entered into by the City and Developer and that the Developer is an independent contractor and not an agent or partner of the City. The Parties further acknowledge that neither Party is acting as the agent of the other in any respect hereunder and that each Party is an independent contracting entity with respect to the temis, covenants, and conditions contained in this Amended Agreement. None of the terms or provisions of this Amended Agreement shall be de teed to create a partnership between or among the Parties in the business of Developer, the affairs of the City, or otherwise. it and Developer hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained in this Amended Agreement or in any document executed in connection with this Amended Agreement shall be construed as making the City and Developer joint venturers or partners. The only relationsbip between the City and Developer is that of a gray er ' mental entity regulating development and the Developer of the Project Property and developer of the Project. 12.2 Consents, Unless otherwise herein provided, whenever approval, consent, acceptance or satisfaction (collectively, a "Consent") is required of a Party pursuant to this Amended Agrecment, it shall not be unreasonably withheld or delayed. Unless provision is otherwise specified in this Amended Agreement or otherwise required by law for a specific time period, Consent shall be deerned given within thirty (30) days after receipt of the written request for Consent, and if a Party shall neither approve nor disapprove within such thirty (30) day period, or other time period as may be specified in this Amended Agreement or otherwise required by law for Consent, that Party shall then be deemed to have given its consent. If allarty shall disapprove, the reasons therefor shall be stated in reasonable detail in writing. This Section does not apply to development approvals by the City. 48212-0001-69291 19 725(X),0001 1\19550707A P606-001 -- 17809431 1 ` .3 Not a Public Dedication. Except as otherwise expressly provided herein, scathing herein contained shall be deem d to be a gift or dedication of the Project Property, or of the Project or any portion thereof, to the general public, for the general public, or for any 'public use or purpose whatsoever, it being the intention and understanding of the; Parties that this Amended Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. 12.4 Seerabilaa If any term, provision covenant or condition of this Amended Agreement shall be determined invalid, said or unenforceable by judgment or court carder, the remainder of this Amended Agreement shall reanain in full farce and effect, finless enforcement of this Amended Agreement as so invalidated would be unreasonable or grossly in aritabld under all the relevant circumstances or would frustrate the purposes of this Amended Agreement. 12.5 Exhibits. Each reference to a Section or Exhibit in this Amended Agreement shall man. the sections of this Amended Agreement and the exhibits attached to this Amended Agreement, unless the context requires otherwise, Each such exhibit is incorporated herein by this reference. 12.6 h Lntire A reement, This written Amended Agreement and the exhibits hereto ;contain all the representations and the entire agreement between the Parties with respect to the subject inatter hereof Except as otherwise specified in this rraended Agreement d the Exhibits hereto, dray prior correspondence,memoranda, agreements, unties or representations are superseded in total by this Amended Agreement and Exhibits hereto. 12.7 ; o in La - carastruetion d emit This Amended Agreement, and the rights and obligations of the parties, shall be ;cave by and interpreted in accordance with the laws of the State of California. The provisions of this Amended agreement and the exhibits hereto shall be construed as a whale according to their common meaning and not strictly for or against any party and consistent with the provisions hereof, in carder to achieve the objectives and purposes of the parties hereunder. The captions preceding the text of each Section and subsection hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Amended agreement. Wherever required by the context, the singular shall include the plural and vice versa. 482-7 ,)001-6929,1 0 e606-001--1786943 12.8 Signature Pages. The signatures of the Parties of this Amended Agreement may be executed` d acknowledged on ;separate pages which, h, when attached to this Amended Agreement, shall constitute this as one complete agreement. 12.9 Time. e. 'inure is of the essence of this Amended Agreement and of each and every term, and condition hereof. 12.10 Prevailing part 's Attorne 's Fees and Costs. If any Party to this Amended Agreement shall tail to perform any of its obligations hereunder, or if a dispute arises with respect to the meaning, or interpretation of any provision hereof or the performance of the obligations of any Party hereto, the defaulting Marty or the 'Marty not prevailing in such dispute, as the case may be, shall promptly pay any and all costs and expenses (including without limitation, all court'costs and reasonable attorneys' fees and expenses) incurred by the other Party with respect to such dispute or in enforcing or establishing its rights hereunder. 12.1 Ilnco oration o recitals* The Recitals and all defined terms set forth berein are hereby incorporated into this Amended Agreement as if fully and completely rewritten. 12.12 Third Pajjy Ben ci ri s. This Amended Agreement is made and entered into for the solo protection and benefit of Developer and the City and their successors -in -interest, heirsand assigns. No other person or entity shall have any right of action based upon any provision in this. Amended Agreement, 12.13 lntd retatiQn. This Amended Agreement ent is the product of mutual negotiations and participation by both the City and Developer. For purposes of construing the meaning or effect of this Amended Agreement, or any portion hereof, it shall be presumed this Amended Agreement went was drafted by both Parties and not as if it had been prepared by one party or the other. Each Party to this Amended Agreement ent specifically acknowledges that it had sufficient opportunity to review the Amended Agreement, confer with its separate legal counsel regarding the meaning of this Amended Agreement and any provision contained herein, and negotiate revisions to this Amended Agreement. Each Party relies solely upon its own judgment d the advice of its counsel in interpreting the provisions of this Amended Agreement and is not relying on any representation, interpretation, presumed' assent, or implied agreement of the rather Party which is not expressly contained in this Amended Agreement. Accordingly, neither Party shall use or 1*606-001 -- 1796943 t rely upon California Civil Code Section 1654 in order to interpret any uncertainty in the meaning of this Amended Agreement. IN WITNESS WHEREOF, the Parties have executed this Amended Agreement as of the date and year first above -written. DEVELOPER: Prospect LG, LLC, a California limited liability company By: Mark flellickson, Manager CITY: CITY OF PALM under the laws of d By: its Marie W Attest: 'ia_ei�_e11e_15_, Approved as to For By: David J. Erwin City Attorney 725(X),0001 1,19550707,1 Best & Kneger LLP )rporation organized and existing P606-001 -- 1780943 1 dnestasy 1Saalic csr ester csf ficar cesFralsl tit this crtificata riffs csry a ir�tity cif the ir�ciivdal e°lzes siaa 6 c�xalent t �vlazch this c�rtillcat- is aaacl d, and not the t thlialr� ss, �� a csr validity csf'that cs c zrset. State of California County of Riverside erside n . —_ -- — ------__,before _..._ . _.._�. _ __.a __ � Not Public, personally appeared a � _ _� who prove to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to the that lie/she/they executed the same in h sAier/ heir authorized ca city i , and that by his/her/their igmature(s) on the instrument the persords), or the entity upon behalf of which the person(s) acted, executed the inst ttment. I certify under PENALTY OF PERJURY under the laws of the State of California is that the foregoing paragraph is true and correct. WITNESS hand and official seal. Signature notary public or ester officer completing this certificate wrifies only the identity of the i dixid aal who signed the document to which this certificate is attac1rd, and not the truthfulness, accuracy, or validity of that document, State of California County of Riverside On _ before e, _ m a Notary Public; personally appeared ; who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the: within instrument and acknowledged to me that he/sliefthey executed the same in his/her/their authorized capacity(i s), and that by his/her/theirsignature(s) on the instrument the person(s), n(s), the entity upon behalf of which the persons) acted, executed the instrument. f certify under PENAL` ` OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 72500,00011l19550707,1 1'606-001 -- 17869411 EXHIBIT A PROJECT PROPERTY [description per new parcel map] 72500DO01 1\19550707.1 4822-0001-6929A 24 P606-001 -- 17869411 EXHIBIT I DEPICTION OF UNITS ,.)4)ont-6()29.t 25 P606-001 -- 1786943,1 725(K),0001 149550707A P606-001 -- 1786943A .y f l � J F PAW -1 18000 to 7 Date, z" ()