HomeMy WebLinkAboutB. DA 06-02 Amendment #1 and Misc 08-301 Palm Desert Funding Company, LP CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
PLANNING COMMISSION STAFF REPORT
REQUEST: Recommendation of approval to the City Council of an amendment
to Development Agreement 06-02, University Park, deleting the
Coachella Valley Water District well sites from the scope of the
development agreement.
SUBMITTED BY: Kevin Swartz
Assistant Planner
APPLICANT: Palm Desert Funding Company, LP
3 San Joaquin Plaza #215
Newport Beach, CA 92660
CASE NO(s): DA 06-02 AMENDMENT #1 AND MISC 08-301
DATE: August 5, 2008
I. EXECUTIVE SUMMARY:
Approval of staff's recommendation will recommend to City Council approval
to delete the Coachella Valley Water District well sites from the scope of the
approved development agreement.
II. BACKGROUND/DISCUSSION:
In 1997, pursuant to development agreement 97-2, the City adopted the Wonder
Palms Master Plan. That master plan covered the area around Cook Street at
the Gerald Ford intersection, and included portions of this property. On February
8, 2007 Ordinance No. 1132 was passed approving Development Agreement 06-
02 that will supersede Development Agreement 97-2 allowing the applicant,
Palm Desert Funding, to develop the projects contained within the 190 acres of
the University Park Master Plan.
The property has two well sites, with Well Site One fronting on Portola Avenue
and College Drive and Well Site Two fronting on Gerald Ford Drive. The
Development Agreement 06-02 states that the property owner must maintain the
well sites for the Coachella Valley Water District. The property owner has
expressed concern about in maintaining the well sites for the Coachella Valley
Water District. The City wants to see a 10 foot wide landscaped parkway off of
College Drive for Well Site One and off of Gerald Ford Drive for Well Site Two,
Staff Report
Case Nos. DA 06-02 Amendment and MISC 08-301
August 5, 2008
Page 2 of 2
which will be maintained through the Home Owners Association. The property
owner has agreed and is requesting that the City delete the Coachella Valley
Water District from the scope of the development agreement.
III. ENVIRONMENTAL REVIEW:
This modification to the development agreement will not result in any physical
changes to the built environment. The project was reviewed as part of the
University Park Area Land Use plan process for which a Negative Declaration of
Environmental Impact was certified, and no further environmental review is
necessary.
IV. RECOMMENDATION:
That the Planning Commission adopt the findings and adopt Planning
Commission Resolution No. , recommending to City Council approval of
Development Agreement 06-02 Amendment and MISC 08- 301.
V. ATTACHMENTS:
A. Draft Resolution
B. First Amendment to Development Agreement 06-02
C. Legal Notice
D. Approved Development Agreement 06-02
E. Plans and Exhibits
Submitted by: Department Head:
)6
Kevin Swartz Lauri Aylaian
Assistant Planner Director of Community Development
•
Approval.
Homer Croy
ACM for Develop t Services
G:\Planning\Kevin Swartz\Word\DA 06-02 Amendment\PC staf report doc
PLANNING COMMISSION RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO
THE CITY COUNCIL APPROVAL TO AMEND DEVELOPMENT
AGREEMENT 06-02, DELETING THE COACHELLA VALLEY
WATER DISTRICT WELL SITES FROM THE SCOPE OF THE
DEVELOPMENT
CASE NOS. DA 06-02 AMENDMENT#1, MISC 08-301
WHEREAS, the Planning Commission of the City of Palm Desert, California, did
on the 5th of August, 2008, hold a duly noticed public hearing to consider the request of
Palm Desert Funding for the above mentioned project; 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 Planning
Commission did find the following facts and reasons to exist to justify recommending
approval of development agreement 06-02 amendment #1:
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City
of Palm Desert, California, as follows:
1. That the above recitations are true and correct and constitute the findings
of the commission in this case.
2. That approval of Development Agreement 06-02 Amendment #1, and
Miscellaneous 08-301, are hereby recommended to the City Council,
subject to the attached conditions.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert
Planning Commission, held on this 5th day of August 2008, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
VAN G. TANNER, Chairperson
ATTEST:
LAURI AYLAIAN, Secretary
Palm Desert Planning Commission
PLANNING COMMISSION RESOLUTION NO.
CONDITIONS OF APPROVAL
CASE NOS. DA 06-02 AMENDMENT #1 AND MISC 08-301
Department of Community Development:
1. That all conditions of approval imposed on the original Development Agreement
06-02 shall apply to this application except for the proposed amendment,
attached.
2
PLANNING COMMISSION RESOLUTION NO.
RECORDING REQUESTED BY AND WHEN RECORDED MAILED TO:
City of Palm Desert
Attn: City Clerk
73-510 Fred Waring
Palm Desert, CA 92260
FOR THE BENEFIT OF THE CITY OF PALM DESERT
NO FEE
6103 FOR THE GOVERNMENT CODE
Space above this line for Recorder's use
First Amendment to Development Agreement 06-02
This First Amendment to Development Agreement 06-02 (this "Amendment") is made
and entered into this as of this day of , 2008 by and between the CITY
OF PALM DESERT, a California Municipal Corporation ("City"), and PALM
DESERT FUNDING COMPANY, L.P. A DELAWARE LIMITED PARTNERSHIP
("Developer") ("City and Developer are collectively "the Parties"), pursuant to the
authority of Section 65864 et seq. of the Government Code of the State of California.
RECITALS
A. City and Developer entered into that certain Development Agreement 06-02
dated as of the 8th day of March 2007 and recorded on April 2, 2007 as
Document Number 2007-0221432, and the official records of Riverside County,
California (the "Agreement"). The Agreement was entered into to facilitate the
development of certain real property (the "site") more particularly described in the
Agreement.
B. City and Developer now desire to amend the Agreement in the manner set forth
herein pursuant to Section 2.2 of the Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of
the Parties, the Parties hereto agree to as follows:
AGREEMENT
1 . Effective Date. This Amendment shall become effective on the date which is two
business days after the date which is thirty days after the date of final adoption
by the City of the ordinance approving this Amendment ("Effective Date"). From
and after the Effective Date, all references to the Agreement shall automatically
be deemed to mean the Agreement as amended by this Amendment.
2. Defined Terms: All capitalized terms used but not defined herein shall have the
meeting set forth in the Agreement.
3. Effect on Site: This Amendment will bind the Site upon the Effective Date.
4. Amendment to Exhibit "A": Exhibit "A" legal description shall be revised by
removing the properties described in Exhibit "AA", attached, from the Site. The
3
PLANNING COMMISSION RESOLUTION NO.
properties described in Exhibit "AA" shall no longer be a part of the property
entitled and restricted under the terms of Development Agreement 06-
02.Covenants Run With Land: It is specifically understood and agreed by and
between the Parties hereto that the Agreement and this Amendment shall not be
severable from Developer's interest in the Site and the provisions of this
Agreement as amended by this Amendment shall constitute covenants which
shall run with the Site or any portion thereof upon the recordation of this
Amendment, and that thereafter the benefits and burdens of the Agreement as
amended by this Amendment shall bind and inure to all successors in interest to
the Parties who require any interest in this Site.
5. Interpretation: This Amendment shall be interpreted to give each of the
provisions their plain meaning. The Recitals are incorporated into this
Amendment.
6. Entire Agreement: This Amendment is executed in duplicate originals each of
which is deemed to be an original.
7. Status of Agreement: Except as modified by this Amendment, the terms and
provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Second Amendment as
of the date and year first above written.
"CITY" CITY OF PALM DESERT, a California
Municipal Corporation
Effective Date: By:
(Mayor, City of Palm Desert)
, 2008
Attest:
Carlos L. Ortega
City Manager
Approved as to form:
David Erwin
City Attorney
"DEVELOPER" PALM DESERT FUNDING
a Delaware limited liability company
Date of Submission by Developer: By:
, 2008
4
PLANNING COMMISSION RESOLUTION NO.
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , before me, , Notary
Public, personally appeared
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/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On , before me, , Notary
Public, personally appeared
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/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
5
501412638A
Policy No. : CNJP-2228-
CALIFORNIA LAND TITLE ASSOCIATION
STANDARD COVERAGE - 1990
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California,
County of Riverside, City of PALM DESERT, described as follows :
THAT CERTAIN PARCEL OF LAND SITUATED IN THE CITY OF PALM DESERT,
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, BEING A PORTION OF
PARCEL 3 , AS SHOWN ON PARCEL MAP NO. 31730 FILED IN BOOK 211
PAGES 63 THROUGH 75, INCLUSIVE, OF PARCEL MAPS, RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT THE CENTERLINE INTERSECTION OF PORTOLA AVENUE AND
COLLEGE DRIVE AS SHOWN ON SAID PARCEL MAP NO. 31730;
THENCE ALONG THE CENTERLINE OF SAID COLLEGE DRIVE NORTH
89°54 ' 28" EAST 121 . 37 FEET;
THENCE NORTH 00°05 ' 32" WEST 54 FEET TO THE TRUE POINT OF
BEGINNING;
THENCE NORTH 47°41 ' 41" WEST 45 . 19 FEET TO A LINE PARALLEL AND
38 . 00 FEET EAST OF THE WESTERLY LINE OF SAID PARCEL 3 ;
THENCE ALONG SAID PARALLEL LINE, NORTH 00°05 ' 32" WEST 110 . 11
FEET;
THENCE LEAVING SAID PARALLEL LINE, NORTH 89°54 ' 28" EAST 97 . 33
FEET TO A POINT ON A NON-TANGENT CURVE CONCAVE NORTHEASTERLY
AND HAVING A RADIUS OF 45 . 50 FEET, A RADIAL LINE OF SAID CURVE
FROM SAID POINT BEARS NORTH 65°46 ' 56" EAST;
THENCE ALONG SAID CURVE SOUTHEASTERLY AND EASTERLY 71 . 68 FEET
THROUGH A CENTRAL ANGLE OF 90°16 ' 08" TO A POINT OF REVERSE
CURVATURE WITH A CURVE CONCAVE SOUTHEASTERLY AND HAVING A
RADIUS OF 34 . 50 FEET, A RADIAL LINE OF SAID CURVE FROM SAID
POINT BEARS SOUTH 24°29 ' 12" EAST;
THENCE ALONG SAID CURVE EASTERLY 14 . 69 FEET THROUGH A CENTRAL
ANGLE OF 24°23 ' 40" ;
Continued on next page
6 Exhibit "AA" of DA 06-02 Amd 1
501412638A
Policy No. : CNJP-2228-
CALIFORNIA LAND TITLE ASSOCIATION
STANDARD COVERAGE - 1990
THENCE TANGENT FROM SAID CURVE NORTH 89°54 ' 28" EAST 13 .33 FEET;
THENCE SOUTH 00°05 ' 32" EAST 126 . 81 FEET TO A LINE PARALLEL WITH
AND 10 FEET NORTH OF THE SOUTHERLY LINE OF SAID PARCEL 3 , SAID
LINE ALSO BEING THE NORTHERLY RIGHT (S) OF WAY LINE OF SAID
COLLEGE DRIVE;
THENCE SOUTH 89°54 ' 28" WEST 29 . 98 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 315 . 00 FEET;
THENCE ALONG SAID CURVE WESTERLY 41 . 94 FEET THROUGH A CENTRAL
ANGLE OF 07°37 ' 41" TO A POINT OF REVERSE CURVATURE WITH A CURVE
CONCAVE SOUTHERLY AND HAVING A RADIUS OF 363 . 00 FEET, A RADIAL
LINE OF SAID CURVE FROM SAID POINT BEARS SOUTH 07°32 ' 10" WEST;
THENCE ALONG SAID CURVE WESTERLY 48 . 33 FEET THROUGH A CENTRAL
ANGLE OF 07°37 ' 41" ;
THENCE TANGENT FROM SAID CURVE SOUTH 89°54 ' 28" WEST 31 . 88 FEET
TO THE TRUE POINT OF BEGINNING.
End of Legal Description
Continued on next page
7 Exhibit "AA" of DA 06-02 Amd 1
SEC. 33, T.4S. , R.6E. 50 0 50 100 150
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DATA TABLE 0
n
® BEARING/DELTA RADIUS LENGTHwi
1 N89'54'28"E -- 121.37'
2 N00°05'32"W -- 54.00' DENOTES TEMPORARY ACCESS EASEMENT m
3 N47'41 '41"W -- 45. 19' r T -I i
4 NOO'05'32"W -- 1'0. 11' L _ J RECORDED ON AS o
5 N89'54'28"E -- 97.33' INSTRUMENT NO.
6 90°16'08" 45.50' 71.68'
0
7 24°23'40" 34.50' 14.69' o
8 N89'54'28"E -- 13.33' g
9 S00'05'32"E -- 126.81'
10 S89'54'28"W -- 29.98'
11 07°37'41" 315.00' 41.94' x.
12 07'37'41" 363.00' 48.33' 3
13 S89'54'28"W -- 31 .88' SHEET 1 OF 1 SHEET 8
w U
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EXHIBIT "B n PLANNING ■ DESIGN ■ CONSTRUCTION
74-130 COUNTRY CLUB DRIVE SURE 201 n
PLAT TO ACCOMPANY A • PAL./.1 DESERT.CALLFOFllA 92260-1655
LEGAL DESCRIPTION FOR CONSULTING 760-346-7481. FAX 78024683E• rwwlieean 7,
WELL SITE PURPOSES. DATE: MAY 8, 2007 JN: 20-100707-05
8 Exhibit "AA" of DA 06-02 Amd 1
501418444A
Policy No. : CNJP-2228-
CALIFORNIA LAND TITLE ASSOCIATION
STANDARD COVERAGE - 1990
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California,
County of Riverside, City of PALM DESERT, described as follows:
THAT CERTAIN PARCEL OF LAND SITUATED IN THE CITY OF PALM DESERT,
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, BEING A PORTION OF
PARCEL 4, AS SHOWN ON PARCEL MAP NO. 31730, FILED IN BOOK 211
PAGES 63 THROUGH 75, OF PARCEL MAPS, RECORDS OF RIVERSIDE
COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTERLINE INTERSECTION OF GERALD FORD DRIVE
AND PACIFIC AVENUE AS SHOWN ON SAID PARCEL MAP NO. 31730;
THENCE ALONG THE CENTERLINE OF SAID GERALD FORD DRIVE, NORTH
89°56 ' 07" EAST 373 . 93 FEET TO THE BEGINNING OF A TANGENT CURVE
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 1000 FEET;
THENCE ALONG SAID CURVE EASTERLY 523 .05 FEET THROUGH A CENTRAL
ANGLE OF 29°58 ' 07" ;
THENCE LEAVING SAID CENTERLINE RADIALLY FROM SAID CURVE SOUTH
29°54 ' 14" WEST 95 FEET TO THE TERMINUS OF A CURVE LYING 95 FEET
SOUTHERLY AND CONCENTRIC WITH THE SAID CENTERLINE OF GERALD
FORD DRIVE, BEING A POINT ON A NON-TANGENT CURVE CONCAVE
SOUTHWESTERLY AND HAVING A RADIUS OF 905 FEET, A RADIAL LINE OF
SAID CURVE FROM SAID POINT BEARS SOUTH 29°54 ' 14" WEST, SAID
POINT ALSO BEING THE TRUE POINT OF BEGINNING;
THENCE ALONG SAID CURVE SOUTHEASTERLY 189.39 FEET THROUGH A
CENTRAL ANGLE OF 11°59 '26" ;
THENCE NON-TANGENT FROM SAID CURVE SOUTH 22°13 ' 53" WEST 139. 12
FEET TO A POINT ON A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 283 FEET, A RADIAL LINE OF SAID CURVE
FROM SAID POINT BEARS SOUTH 22°13 ' 53" WEST;
THENCE ALONG SAID CURVE WESTERLY 102 . 99 FEET THROUGH A CENTRAL
ANGLE OF 20°51 ' 05" ;
THENCE NON-TANGENT FROM SAID CURVE NORTH 00°03 ' 53" WEST 218.67
Continued on next page
9 Exhibit "AA" of DA 06-02 Amd 1
501418444A
Policy No. : CNJP-2228-
CALIFORNIA LAND TITLE ASSOCIATION
STANDARD COVERAGE - 1990
FEET TO THE TRUE POINT OF BEGINNING.
End of Legal Description
Continued on next page
10 Exhibit "AA" of DA 06-02 Amd 1
SEC. 33, T.4S. , R.6E. N41 °53'40"E _LR1
0 N22° 13'53"E I_RI
TEMPORARY ACCESS /
EASEMENT
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WELL SITE L
0.552 AC.
N 4., O
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10 X S01 °22'48"W iR)
T.P.O.B.
1
1
L29°54' 14"W _CR1
(\/ �
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o PARCEL 4
/(D PARCEL MAP 31730
P.M.B. 211/63-75
0
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SCALE: 1"=100'
I75' _ L _�
0 100 0 100 200 300
SCALE: 1 "=100'
E
0
n
v
m
DATA TABLE o
N
WESTERLY LINE ® BEARING/DELTA RADIUS LENGTH "
O1 OF PARCEL 4 1 N89.56'07"E -- 373.93' a
I _— — _ 2 29'58'07" 1000.00' 523.05' 8
EASTERLY RIGHT-OF-WAY _ 3 s29'S4' 14"w 95.oo'
LINE OF PACIFIC AVENUE `�'
4 11.59'26" 905.00' 189.39'
_ 5 S22.13'53"W(R) -- 139. 12'
P.O.C. I 6 20°51'05" 283.00' 102.99'
C/L PACIFIC AVENUE 7 No0•03'53"w -- 218.67' s
P
m
r --; DENOTES TEMPORARY ACCESS EASEMENT RECORDED ON AS
INSTRUMENT NO.l ---J a
3
SHEET 1 OF 1 SHEET g
EXHIBIT "B13Pir
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74-t20 COUHRIY CLUB CAVE.SITE 201 IQ
PLAT TO ACCOMPANY A PALM DESERT,CAIJFCENA 92260-1655 <
LEGAL DESCRIPTION FOR CONSULTING 760-346-7481• FAX 760.3466315. nwwAf3F corn
o
WELL SITE PURPOSES. DATE: MAY 8, 2007 JN: 20-100707-06
11 Exhibit "AA" of DA 06-02 Amd 1
•
CITY Of Pfllfll DESERT
y 73-510 FRED WARING DRIVE
�'✓ �•' PALM DESERT,CALIFORNIA 92260-2578
',•\�° TEL:760 346-0611
I'\•„ /�,` FAX:760 341-7098
•:.�; info@palm-desert.org
CITY OF PALM DESERT
LEGAL NOTICE
CASE NO. DA 06-02
NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert
Planning Commission to consider a request by Palm Desert Funding (University Park)to
Amend Development Agreement 06-02,deleting the Coachella Valley Water District
wellsites,from the scope of the Development Agreement.
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SAID public hearing will be held on Tuesday, August 5, 2008, at 6:00 p.m. in the Council
Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert,
California, at which time and place all interested persons are invited to attend and be
heard. Written comments concerning all items covered by this public hearing notice shall
be accepted up to the date of the hearing. Information concerning the proposed project
and/or negative declaration is available for review in the Department of Community
Development at the above address between the hours of 8:00 a.m. and 5:00 p.m.
Monday through Friday. If you challenge the proposed actions in court, you may be
limited to raising only those issues you or someone else raised at the public hearing
described in this notice, or in written correspondence delivered to the Planning
Commission (or city council)at, or prior to,the public hearing.
PUBLISH: Desert Sun Lauri Aylaian, Secretary
July 24, 2008 Palm Desert Planning Commission
ORDINANCE NO. 1132
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF PALM DESERT AND PALM DESERT
FUNDING COMPANY, L.P., A DELAWARE LIMITED PARTNERSHIP.
CASE NO. DA 06-02 related to C/Z 06-04
WHEREAS, the City Council of the City of Palm Desert, California, did on the 8th
day of February, 2007, hold a duly noticed public hearing to consider
WHEREAS, the Planning Commission by its Resolution No. 2431 has
recommended approval; and
WHEREAS, the Development Agreement is consistent with the General Plan;
and
WHEREAS, said application has complied with requirements of the "City of Palm
Desert Procedures to Implement the California Environmental Quality Act, Resolution
No. 06-78," in that the Director of Community Development has determined the project
was previously assessed as part of Case No. C/Z 06-04 for which a Negative
Declaration of Environmental Impact was certified and no further review is necessary;
and
WHEREAS, at said public hearing, City Council heard and considered all
testimony and arguments of all interested persons.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm
Desert, as follows:
1. That the above recitations are true and correct and constitute the
consideration of the City Council in this case.
2. That Development Agreement 06-02, Exhibit A attached hereto, is hereby
approved.
3. The City Clerk of the City of Palm Desert, California, is hereby directed to
publish this ordinance in the Desert Sun, a newspaper of general circulation,
published and circulated in the City of Palm Desert, California, and shall be in
full force and effective thirty (30) days after its adoption.
ORDINANCE NO. 1132
PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this 8th
day of March, 2007, by the following vote, to wit:
AYES: BENSON, FERGUSON, FINERTY, SPIEGEL, and KELLY
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
RICHARD S. KEL , MAYOR
ATTEST:
c—
CH LLE . KLASSE , CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
2
DOC # 2007-0221432
04/02/2007 08:00A Fee:NC
RECORDING REQUESTED BY, AND Page 1 of 120
Recorded in Official Records
WHEN RECORDED, MAIL TO: County of Riverside
Larry U. Ward
Assessor, County Clerk I Recorder
City Clerk's Office 11111
HIM
I � IIII�I I II I 1111
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
FOR THE BENEFIT OF THE
CITY OF PALM DESERT S R U PAGE SIZE DA MISC LONG RFD COPY
-NO FEE - 17_0
6103 OF THE GOVT. CODE M A L 465 426 PCOR NCOR SMF EXAM
3C
Development Agreement 06-02 03
p g 036
Between
City of Palm Desert
and
Palm Desert Funding Company, L.P. ,
A Delaware Limited Partnership
(University Park Master Development Plan)
Dated: March 8, 2007
ORDINANCE NO. 1132
Case No. DA 06-02 Related to C2 06-04
(Title of Document)
[THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.]
ORDINANCE NO. 1132
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF PALM DESERT AND PALM DESERT
FUNDING COMPANY, L.P., A DELAWARE LIMITED PARTNERSHIP.
CASE NO. DA 06-02 related to C/Z 06-04
WHEREAS, the City Council of the City of Palm Desert, California, did on the 8th
day of February, 2007, hold a duly noticed public hearing to consider
WHEREAS, the Planning Commission by its Resolution No. 2431 has
recommended approval; and
WHEREAS, the Development Agreement is consistent with the General Plan;
and
WHEREAS, said application has complied with requirements of the "City of Palm
Desert Procedures to Implement the California Environmental Quality Act, Resolution
No. 06-78," in that the Director of Community Development has determined the project
was previously assessed as part of Case No. C/Z 06-04 for which a Negative
Declaration of Environmental Impact was certified and no further review is necessary;
and
WHEREAS, at said public hearing, City Council heard and considered all
testimony and arguments of all interested persons.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm
Desert, as follows:
1. That the above recitations are true and correct and constitute the
consideration of the City Council in this case.
2. That Development Agreement 06-02, Exhibit A attached hereto, is hereby
approved.
3. The City Clerk of the City of Palm Desert, California, is hereby directed to
publish this ordinance in the Desert Sun, a newspaper of general circulation,
published and circulated in the City of Palm Desert, California, and shall be in
full force and effective thirty (30) days after its adoption.
ORDINANCE NO. 1132
PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this 8th
day of March, 2007, by the following vote, to wit:
AYES: BENSON, FERGUSON, FINERTY, SPIEGEL, and KELLY
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
RICHARD S. KEL , MAYOR
ATTEST:
S3 "
CH LLE . KLASSE , CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
EACH DOCUMENT TO WHICH THIS CERTIFICATE IS
ATTACHED.IS CERTIFIED TO BE A FULL,TRUE AND
CORRECT COPY OF THE ORIGINAL ON FILE AND ON
RECORD IN MY OFFICyn
Dated: Nr2.t_/AV �3 '�.c)-]
r
RACHELLE D. KLASSEN,City Cleric
City a ifom'
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EXHIBIT A
ORDINANCE NO. 1132
DEVELOPMENT AGREEMENT
(University Park)
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as
of this 8th day of March , 2007, 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 Palm Desert Funding Company, L.P., a Delaware limited partnership ("Developer"),
with reference to the following facts, understandings and intentions of the parties:
RECITALS
A. These Recitals refer to and utilize certain capitalized terms which are defined in
this Agreement. The parties intend to refer to those definitions in conjunction with the use
thereof in these Recitals.
B. Government Code Sections 65684 through 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 11, 1983, the City
enacted by Ordinance No. 341, as amended on December 7, 1989 by Ordinance No. 589
(collectively, the "Development Agreement Ordinance"), procedures and requirements for the
consideration of development agreements thereunder pursuant to the Development Agreement
Legislation.
C. Developer owns or is purchasing certain property in the City of Palm Desert
California (the "Property") which Property is more particularly described on Exhibit "A"
attached hereto and incorporated herein by this reference.
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D. Developer intends to use the Property to develop a Project consisting of the
medium and low density residential development and associated amenities and public
improvements.
E. The Property is located within an important planning area (University Park Area)
of the City and the coordinated development of the Project pursuant to this Agreement represents
an important and mutually beneficial economic development and land usage planning
opportunity for the City and Developer.
F. In April 1997, the City Council, by its Ordinance No. 838, approved a
Development Agreement (DA 97-2), and said DA 97-2 was recorded in the official records of
the County Recorder for the County of Riverside on May 22, 1997 as Instrument No. 179687.
DA 97-2 included a development plan for a large area of land which was centered around the
Cook Street and Gerald Ford Drive intersection. DA 97-2 incorporated the Wonder Palms
Development Plan, including eight planning areas. A portion of the Property was included in the
approved Wonder Palms Development Plan as Planning Areas 3 and 5. It is the intent of the
parties to this Agreement that this Agreement amend and supercede DA 97-2 with respect to any
portion of the Property subject to DA 97-2. This Agreement shall not affect any portion of the
land affected by the Wonder Palms Development Plan outside the boundaries of the Property.
G. In the 2004 General Plan update, the section (Section 33) within which the
Property is located, (bounded by Frank Sinatra on the south, Portola on the west, Gerald Ford on
the north, and Cook on the east), was considered a distinct planning area which made up part of
the University Park Area.
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H. The City has determined that the development of the Project as contemplated by
this 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 University Park Area
of the General Plan, and is consistent with the existing Planned Community Development (PCD)
Overlay Zone.
I. City has further determined that entry into this Agreement will further the goals
and objectives of the City's land use planning policies by, among other things, encouraging
investment, providing precise and supplemental criteria for the uses, design, circulation and
development of the Property, including flexibility in land use options which may be altered in
order to respond to future changes in the surrounding areas, eliminating uncertainty in planning
for, and securing orderly processing and development of, the Project. The benefits conferred on
the City by Developer herein will (i)ensure consistent, comprehensive planning which will result
in aesthetically pleasing, environmentally harmonious, and economically viable development
within the City; and (ii) 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 Project in accordance with the University Park Master Development Plan as
approved by the City on April 27, 2006 ("Development Plan") attached to this Agreement as
Exhibit "B", and at a rate of development of its choosing, subject to the terms and conditions
contained in this Agreement and subject to the processing of additional land use approvals as
may be reasonably required to implement the Development Plan.
J. By adopting this Agreement, the City Council has elected to exercise certain
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governmental powers at the present time rather than deferring such actions until an undetermined
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.
K. This Agreement has undergone extensive review by the City's staff, the Planning
Commission and the City Council.
L. In order to effectuate the foregoing, the parties desire to enter into this
Agreement.
NOW, THEREFORE, pursuant to the authority contained in the Development Agreement
Legislation, and in consideration of the mutual covenants and promises of the parties herein
contained,the parties agree as follows:
1. Definitions.
1.1 Defined Terms. Each reference in this Agreement to any of the following
terms shall have the meaning set forth below for each such term.
1.2 Agreement. This Development Agreement.
1.3 Building Ordinances. Those building standards, of general and uniform
application throughout the City and not imposed solely with respect to the Property, in effect
from time to time that govern building and construction standards within the City, including,
without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire
codes.
1.4 City Council. The legislative body of the City of Palm Desert.
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1.5 Effective Date. The date on which the Enacting Ordinance becomes
effective.
1.6 Enacting Ordinance. Ordinance 1132 , enacted by the City Council
on March 8 , 2007, approving this Agreement.
1.7 Existing Land Use Ordinances. The Land Use Ordinances in effect as of
the Effective Date.
1.8 Land Use Ordinances. The ordinances, resolutions, codes, rules,
regulations and official policies of the City, governing the development of the Property,
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 Property.
Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shall
include the City's General Plan, the City's zoning ordinance and the City's subdivision code,but
shall exclude the Building Ordinances.
1.9 Mortgage. A mortgage, deed of trust, sale and leaseback arrangement in
which all or a part of the Property, or an interest in it, is sold and leased back concurrently, or
other transactions in which all or a part of the Property, or an interest in it, is pledged as security,
contracted in good faith and for fair value.
1.10 Project. The medium and low density residential development and
associated amenities, and on-site and off-site improvements, as permitted under and described in
the Master Development Plan (Exhibit "B"), to be constructed on the Property, as the same may
hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement
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and pursuant to the conditions of approval imposed on any further land use entitlement
applications that may be reasonably required in order to implement the development of the
Project.
1.11 Property. The real property and any improvements thereon which is
described in Exhibit"A"to this Agreement.
1.12 Tract Maps. Tract Maps 32655, 32655-1, tentative tract maps 34055,
34057, 34074, and 34626 and any other tract map affecting the Property and implementing the
Project, approved hereafter with the consent of the Developer.
2. Term; Amendment.
2.1 Term. The term of this Agreement (the "Term") shall commence on the
Effective Date and shall terminate on the ten (10) year anniversary date of the Effective Date,
unless sooner terminated or extended as hereinafter provided.
2.2 Amendment. The parties to this Agreement at their sole discretion and by
their mutual written consent may from time to time amend the provisions and terms of this
Agreement and the Exhibits hereto. Any amendment to this Agreement or the Exhibits hereto as
provided herein shall be effected only upon compliance with the procedures for amendment, if
any, required by the Development Agreement Legislation and the Development Agreement
Ordinance. The City shall, after any such amendment takes effect, cause an appropriate notice of
such amendment to be recorded in the official records of the County of Riverside.
3. Supercede DA 97-2. This Agreement shall amend and supercede DA 97-2
(recorded by Riverside County Recorder on May 22, 1997 as Instrument No. 179687) with
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respect to any portion of the Property subject to DA 97-2.
4. General Development of the Project.
4.1 Protect.
(a) The Project is defined and described in the University Park Master
Development Plan attached to this Agreement as Exhibit "B", which specifies for the purpose of
this Agreement all of the following aspects of the Project: (i) proposed land uses of the Property;
(ii) the maximum (and probable) density and intensity of development of the Property; (iii)
development standards; (iv) open space and park requirements; (v) certain requirements relating
to access and traffic circulation within the Property; and (vi) certain design guidelines relating to
the construction of on-site and off-site improvements.
(b) During the Term hereof, Developer shall have the vested right to
develop the Project in accordance with, and development of the Project shall be governed by, the
Development Plan and, to the extent not inconsistent with or modified by the Development Plan,
the Existing Land Use Ordinances. Developer's right to develop the Property in accordance with
this Section 4.1 shall remain subject to:
(i) all ordinances, regulations, rules, laws, plans, policies, and guidelines of
the City and its City Council, Planning Commission, and all other City boards, commissions, and
contained within the Existing Land Use Ordinances;
(ii) all amendments or modifications to Existing Land Use Ordinances after
the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans, policies,
and guidelines of the City and its City Council, Planning Commission, and all other City boards,
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commissions, and committees enacted or adopted after the Effective Date of this Agreement
(collectively, "New Laws"), except such New Laws which would prevent or materially impair
Developer's ability to develop the Project in accordance with the Development Plan unless such
New Laws are (A) adopted by the City on a City-wide basis and applied to the Site in a non-
discriminatory manner, (B) required by a non-City entity to be adopted by or applied by the City
(or if optional the failure to adopt or apply such non-City law or regulation would cause City to
sustain a loss of funds or loss of access to funding or other resources), or(C) New Laws the City
reserves the right to apply under this Agreement;
(iii) all subsequent development approvals implementing the Project and the
conditions of approval associated therewith, including but not limited to Project Tract Maps and
building permits, -•-
(iv) the payment of all fees or exactions in the categories and in the amounts as
required at the time such fees are due and payable which may be at the time of issuance of
building permits, or otherwise as specified by applicable law, as existing at the time such fees are
due and payable, it being understood that this Agreement shall not prevent the City from
establishing any new City fees, including new development impact fees, or increasing any
existing City fees, and to apply such new or increased fees to the Project or applicable portion
thereof,
(v) the reservation or dedication of land for public purposes or payment of
fees in lieu thereof as required at the time such reservations or dedications or payments in lieu
are required under applicable law to be made or paid,
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(vi) Building, electrical, mechanical, fire and similar building codes based
upon uniform codes adopted in, or incorporated by reference into, the Palm Desert Municipal
Code, as existing on the Effective Date of this Agreement or as may be enacted or amended
thereafter, applied to the Project in a nondiscriminatory manner.
(c) Notwithstanding any condition setting forth the earlier expiration
of any of the Tentative Maps, each of the Tentative Maps shall remain effective for the Term of
this Agreement unless modified with the concurrence of Developer, its successors or assigns.
4.2 Project Timing.; Construction Entitlement. The parties acknowledge
that Developer cannot at this time predict when or the rate at which or the order in which parts of
the Project will be developed. Such decisions depend upon numerous factors which are not
within the control of Developer, such as market orientation and demand, interest rates,
competition and other similar factors. Therefore, the parties hereto acknowledge and expressly
agree that Developer is hereby granted by the City the vested and guaranteed right to develop the
Project in such manner and at such rate and at such times as Developer deems appropriate within
the exercise of its sole subjective business judgment. Therefore, City expressly agrees that
Developer shall be entitled to apply for precise plans, subdivision maps, building permits,
occupancy certificates and other land use and development entitlements for its use at any time
provided that such application is made in accordance with the Development Plan and this
Agreement.
Notwithstanding any provisions to the contrary in this Agreement or the Existing Land
Use Ordinances, Developer shall have the right, but not the obligation, to construct not less than
the maximum number of square feet of gross floor area or dwelling units of any permitted use
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under the Development Plan specified with respect to any designated Planning Area set forth in
the Development Plan. Developer acknowledges that additional land use entitlements may
reasonably be required pursuant to the City's Existing Land Use Ordinances, before Developer
may obtain permits for construction on the Property.
4.3 Building Permits and Other Approvals and Permits. Subject to (a)
Developer's (or its assignee's) compliance with this Agreement, the Development Plan, the
Existing Land Use Ordinances and the Building Ordinances, and (b) 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 or its assignee promptly
upon application therefor all necessary use permits, building permits, occupancy certificates, and
other required permits for the construction, use and occupancy of the Project, or any portion
thereof, as applied for, including connection to all utility systems under the City'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).
4.4 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 Agreement and the
Development Plan, and to the extent not inconsistent therewith, the Existing Land Use
Ordinances, but the procedures for processing applications for such permits 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
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consistent with the Development Plan.
4.5 Effect of Agreement. This Agreement shall constitute a part of the
Enacting Ordinance, as if incorporated by reference therein in full. The parties acknowledge that
this Agreement is intended to grant Developer the right to develop the Project pursuant to
specified and known criteria and rules as set forth in the Development Plan and the Existing
Land Use Ordinances, and to grant the City and the residents of the City certain benefits which
they otherwise would not receive.
This Agreement shall be binding upon the City and its successors in accordance with and
subject to its terms and 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 acknowledge and agree that by entering into this Agreement and relying thereupon, the
Developer has obtained, subject to the terms and conditions of this Agreement, a vested right to
proceed with its development of the Project in accordance with the proposed uses of the
Property, the density and intensity of development of the Property and the requirements and
guidelines for the construction or provision of on-site and off-site improvements as set forth in
the Development Plan and the Existing Land Use Ordinances, and the timing provisions of
Section 4.2, and the City has entered into this Agreement in order to secure the public benefits
conferred upon it hereunder which are essential to alleviate current and potential problems in the
City and to protect the public health, safety and welfare of the City and its residents, and this
Agreement is an essential element in the achievement of those goals.
4.6 Operating Memoranda. Developer and City acknowledge that the
provisions of this Agreement require a close degree of cooperation between Developer and City,
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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
under this Agreement in order to effectuate the purpose of this Agreement and the intent of the
parties with respect thereto. If and when, from time to time, the parties find that such changes or
additional provisions are necessary or appropriate, and subject to the provisions of the next
succeeding sentence, they shall effectuate such changes or provide for such additional provisions
through operating memoranda to be approved in good faith by the parties,which, after execution,
shall be attached hereto as addenda and become a part hereof, and may be further changed or
supplemented from time to time 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 does not require the amendment of this Agreement in the
manner provided in Section 65868 of the California Government Code, then no such operating
memoranda shall require prior notice or hearing, or constitute an amendment to this Agreement;
and in the case of the City, such operating memoranda may be approved and executed by its
Community Development Director or City Manager without further action of the City Council.
Failure of the parties to enter into any such operating memoranda shall not affect or abrogate any
of the rights, duties or obligations of the parties hereunder or the provisions of this Agreement.
5. Specific Criteria Applicable to Development of the Proiect.
5.1 University Park Master Development Plan. The Development Plan is a
regulatory plan which, upon adoption by ordinance, will constitute the basic land use and
development criteria of the property. Development plans or agreements, tract or parcel maps,
precise development plans or any other action requiring ministerial or discretionary approval of
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their property shall be consistent with the Development Plan. Should the regulations contained
in the Development Plan differ from the regulations of the Palm Desert Zoning Ordinance, the
regulations of the Development Plan shall take precedence to the extent provided within the
approved Development Plan.
5.2 Applicable Ordinances. Except as set forth in the Development Plan
and subject to the provisions of Section 5.3 and 5.4 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 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 Property, and (b) Developer shall abide by the Building Ordinances in
effect at the time of such applications.
5.3 Amendment to Applicable Ordinances. In the event that the Palm
Desert zoning ordinance is amended by the City in a manner which provides more favorable site
development standards for the Property or any part thereof than those in effect as of the Effective
Date, Developer shall have the right to notify the City in writing of its desire to be subject to all
or any such new standards for the remaining term of this Agreement. If City agrees,by resolution
of the City Council or by action of a City official whom the City Council may designate, such
new standards shall become applicable to the Property or portions thereof. Should City
thereafter amend such new standards, upon the effective date of such amendment, the original
new standards shall continue to apply to the Property as provided above, but Developer may
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notify City in writing of its desire to be subject to all or any such amended new standards and
City may agree in the manner above provided to apply such amended new standards to the
Property.
5.4 Modification or Suspension by State Law or Federal Law. In the event
that state or federal laws or regulations, enacted after the effective date of this Agreement,
prevent or preclude compliance with one or more of the provisions of this Agreement, such
provisions of this Agreement shall be modified or suspended as may be necessary to comply
with such state or federal laws or regulations, provided, however, that this Agreement shall
remain in full force and effect to the extent it is not inconsistent with such laws or regulations,
and to the extent that such laws or regulations do not render such remaining provisions
impractical to enforce.
5.5 Easements; Abandonments. City shall reasonably cooperate with
Developer in connection with any arrangements for abandoning existing utility or other
easements and the relocation thereof or creation of any new easements within the Property
necessary or appropriate in connection with the development of the Project; and if any such
easement is owned by City, City shall, at the request of Developer and in the manner and to the
extent permitted by law, process such action as may be necessary to abandon existing easements
and relocate them to a location mutually acceptable to City and Developer, 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 close proximity to the 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
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secure any such required easements.
6. Timing of Construction.
6.1 Timing of Parks Construction. The University Park Master
Development Plan includes parks to serve the community. Various business agreements related
to the Community Facilities District for this area provide that the City purchase the parkland
from the developer and the developer subsequently constructs the park improvements to City
specifications.
The City desires assurance that the construction of the park improvements be commenced
and completed in a timely manner. Accordingly, the developer agrees that the parks shall be
constructed and completed as part of the first phase of the tract in which they are located. More
specifically, these parks shall be completed prior to the issuance of a Certificate of Occupancy
for any residence in that tract.
6.2 Exception to 6.1 Provisions. The developers are requesting that the City
issue another $20 million in bond monies in the near future. IRS tax regulations require that the
City needs to have a reasonable expectation that they are going to spend the bond monies within
three(3) years of such additional issuance.
Therefore, notwithstanding the provisions of Section 6(a) above, the City reserves the
right to require that the monies be expended and the parks be constructed within three years of
such issuance.
7. Periodic Review of Compliance. In accordance with Govt. Code Section
65865.1, the City Council shall review this Agreement at least each calendar year during the
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term of this Agreement. At such periodic reviews, Developer must demonstrate its good faith
compliance with the terms of this Agreement. Developer agrees to furnish such evidence of
good faith compliance as the City, and after reasonable exercise of its discretion and after
reasonable notice to Developer, may require.
8. Permitted Delays; Supersedure by Subsequent Laws.
8.1 Permitted Delays. In addition to any other provisions of this Agreement
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, riots,
strikes, picketing, or other labor disputes, shortage of materials or supplies, or damage to or
prevention of work in process by reason of fire, floods, earthquake, or other casualties, litigation,
acts or neglect of the other party, any referendum elections held on the Enacting Ordinance, or
the Land Use Ordinances, or any other ordinance effecting the Project or the approvals, permits
or other entitlements related thereto, or restrictions imposed or mandated by governmental or
quasi-governmental entities, enactment of conflicting provisions of the Constitution or laws 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 other cause similar or dissimilar to the foregoing beyond the
reasonable control of City or Developer, as applicable. Each party 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.
8.2 Supercedure of Subsequent Laws or Judicial Action. The provisions
of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to
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comply with any new Law or decision issued by a court of competent jurisdiction(a "Decision"),
enacted or made after the Effective Date which prevents or precludes compliance with one or
more provisions of this Agreement. Promptly after enactment of any such new Law, or issuance
of such Decision, 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 Agreement. In addition, Developer and City shall have
the right to challenge the new Law or the Decision preventing compliance with the terms of this
Agreement. In the event that such challenge is successful, this Agreement shall remain
unmodified and in full force and effect, except that the Term shall be extended, in accordance
with Section 8.1 above, for a period of time equal to the length of time the challenge was
pursued.
9. Events of Default; Remedies;Termination.
9.1 Events of Default. Subject to any extensions of time by mutual consent
in writing, and subject to the provisions of Section 7 above regarding permitted delays, the
failure of either party to perform any material term or provision of this Agreement shall
constitute an event of default hereunder ("Event of Default") if such defaulting party does not
cure such failure within ninety (90) days following receipt of written notice of default from the
other party; provided, however, that if the nature of the default is such that it cannot be cured
within such ninety (90) day period, the commencement of the cure within such ninety (90) day
period and the diligent prosecution to completion of the cure shall be deemed to be a cure within
such period. Any notice of default given hereunder shall specify in detail the nature of the
alleged Event of Default and the manner, if any, in which such Event of Default may be
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satisfactorily cured in accordance with the terms and conditions of this Agreement. During the
time periods herein specified for cure of a failure of performance, the party charged therewith
shall not be considered to be in default for purposes of termination of this Agreement, institution
of legal proceedings with respect thereto, or issuance of any permit, map, certificate of
occupancy, approval or entitlement with respect to the Project.
9.2 Remedies. Upon the occurrence of an Event of Default, the nondefaulting
party shall have such rights and remedies against the defaulting party as it may have at law or in
equity, including, but not limited to, the right to damages and the right to terminate this
Agreement or seek mandamus, specific performance, injunctive or declaratory relief.
Notwithstanding the foregoing and except as otherwise provided in Section 8.4 hereof, if either
Developer or City elects to terminate this Agreement as a result of the occurrence of an Event of
Default, such proceeding of termination shall constitute such party's exclusive and sole remedy,
and with respect to such election and City and Developer hereby waive, release and relinquish
any other right or remedy otherwise available under this Agreement or at law or equity.
9.3 Waiver; Remedies Cumulative. Failure by a party to insist upon the
strict performance of any of the provisions of this Agreement by the other party shall not
constitute waiver of such party's right to 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.
9.4 Effect of Termination. Termination of this Agreement by one party due
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to the other party's default, or as a result of the exercise of the right of termination provided to
the Developer under Section 7.2 hereof, shall not affect any right or duty emanating from any
approvals, permits, certificates or other entitlements with respect to the Property or the Project
which were issued, approved or provided by the City prior to the date of termination of this
Agreement. If City terminates this Agreement because of Developer's default, then City shall
retain any and all benefits, including money, land or improvements conveyed to or received by
the City prior to the date of termination of this Agreement, subject to any reimbursement
obligations of the City. If Developer terminates this Agreement because of City's default, or as a
result of the exercise of the right of termination provided to the Developer under Section 7.2
hereof, then Developer shall be entitled to all of the benefits arising out of, or approvals, permits,
certificates or other entitlements on account of, any Exactions paid, given or dedicated to, or
received by, City prior to the date of termination of this Agreement. Except as otherwise
provided in this Section 8.4, all of the rights, duties and obligations of the parties hereunder shall
otherwise cease as of the date of the termination of this Agreement.
If this Agreement is terminated pursuant to any provision hereof, then 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 cost of such recordation shall be borne by the party
causing such action.
9.5 Third Party Actions. Any court action or proceeding brought by any
third party to challenge this Agreement or any permit or approval required from City or any other
governmental entity for development or construction of all or any portion of the Project, whether
or not Developer is a party defendant to or real party defendant in interest in such action or
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proceeding, shall constitute a permitted delay under Section 7.1.
10. Encumbrances on Property.
10.1 Discretion to Encumber. The parties hereto agree that this Agreement
shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from
encumbering the Property or any portion thereof or any improvements thereon with any
mortgage, deed of trust or other security device ("Mortgage") securing financing with respect to
the Property. The City acknowledges that the lenders providing such financing may require
certain modifications to this Agreement, and the City agrees upon request, from time-to-time, to
meet with Developer and/or representatives of such lenders to negotiate in good faith any such
request for modification. City further agrees that it will not unreasonably withhold its consent to
any such requested modification. Any Mortgage on the Property shall include appropriate
provisions for the partial release of said Mortgage to assure that Developer can convey to the
City, free and clear of encumbrances, any portions of the Property which Developer is
conditioned to convey or has otherwise agreed to convey to the City or its designee.
10.2 Mortgage Protection. This Agreement shall be superior and senior to
the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall
defeat, render 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) shall be subject to all of the terms and
conditions of this Agreement.
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10.3 Mortgagee Not Obligated. Notwithstanding the provisions of Section
9.2, no Mortgagee will have any obligation or duty under this Agreement to perform 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 performed by Developer is a
condition to the performance of a covenant by City, the performance thereof shall continue to be
a condition precedent to City's performance hereunder.
10.4 Estoppel Certificates. Either party may, at any time, and from time 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 Agreement is in full force and effect and a binding
obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended
or modified, identifying such amendments or modifications, and (iii) 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 return such certificate within thirty (30) days following the receipt thereof. City
acknowledges that a certificate hereunder may be relied upon by transferees, assignees and
lessees of the Developer and the holders of any Mortgage.
11. Transfers and Assignments; Effect of Agreement on Title.
111 Rights and Interests Appurtenant. The rights and interests conveyed as
provided herein to Developer benefit and are appurtenant to the Property. Developer has the
right to sell, assign and transfer any and all of its rights and interests hereunder and to delegate
and assign any and all of its duties and obligations hereunder. Such rights and interests
hereunder may not be sold, transferred or assigned and such duties and obligations may not be
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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 the Property to which they
relate, including any transfer or assignment pursuant to any foreclosure of a Mortgage or a deed
in lieu of such foreclosure. Following any such sale, transfer or assignment of any of the rights
and interests of Developer under this Agreement, the exercise, use and enjoyment thereof shall
continue to be subject to the terms of this Agreement to the same extent as if the purchaser,
transferee or assignee were Developer hereunder.
11.2 Covenants Run with Land.
(i) All of the provisions, agreements, rights, powers, standards, terms,
covenants and obligations contained in this Agreement shall be binding upon the parties and their
respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees,
lessees, and all other persons acquiring any rights or interests in the Property, or any portion
thereof, whether by operation of laws or in any manner whatsoever, and shall inure to the benefit
of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and
assigns;
(ii) All of the provisions of this Agreement shall be enforceable as
equitable servitudes and constitute covenants running with the land pursuant to applicable law;
(iii) Each covenant to do or refrain from doing some act on the Property
hereunder (A) is for the benefit of and is a burden upon every portion of the Property, (B) runs
with such lands, and (C) is binding upon each party and each successive owner during its
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ownership of the Property or any portions thereof, and shall benefit each party and its lands
hereunder, and each such other person or entity succeeding to an interest in such lands.
12. Notices. Any notice to either party shall be in writing and given by delivering the
same 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
73-510 Fred Waring Drive
Palm Desert, California 92260
If to Developer:
Palm Desert Funding Company, L.P.
c/o Hover Development
3 San Joaquin Plaza, #215
Newport Beach,CA 92660
Attention: Tom Hover
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 Agreement shall
be deemed given, received, made or communicated on the date personal delivery is effected or, if
mailed, on the delivery date or attempted delivery date shown on the return receipt.
13. Indemnification: Developer's Obligation.
13.1 Developer's Wrong-Doing. Developer will defend, indemnify and hold
the City and its elected officials, officers and employees ("Indemnified Parties") free and
harmless from any loss, cost or liability (including, without limitation, liability arising from
injury or damage to persons or property, including wrongful death and worker's compensation
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claims) which results from (i) any obligation which arises from the development of the Property
including, without limitation, obligations for the payment of money for material and labor; (ii)
any failure on the part of Developer to take any action which he is required to take as provided in
this Agreement; (iii) any action taken by Developer which he prohibited from taking as provided
in this Agreement and (iv) any claim which results from any willful or negligent act or omission
of Developer.
13.2 Environmental Assurances. Developer shall indemnify and hold the
Indemnified Parties free and harmless from any liability deriving from the City's execution or
performance of this Agreement, based or asserted, upon any act or omission of Developer, its
officers, agents, employees, contractors, 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 Developer or its officers,
agents or employees, contractors, subcontractors and independent contractors after the Effective
Date and Developer shall defend, at its expense, including attorneys fees, the Indemnified Parties
in any action based or asserted upon any such alleged act or omission.
13.3 Challenges to Agreement. Developer agrees and shall indemnify, hold
harmless and defend the Indemnified Parties from any challenge to the validity of this
Agreement, or to the City's implementations of its rights under this Agreement.
13.4 Defense by Counsel Chosen by City. In the event the Indemnified
Parties are made a party to any action, lawsuit other adversarial proceeding in any way
involving claims specified in Sections 12.1, 12.2, or 12.3, Developer shall provide a defense to
the Indemnified Parties, with counsel reasonably acceptable to City. Developer shall be
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obligated to promptly pay all costs of defense, including all reasonable attorneys' fees, and any
final judgment or portion thereof rendered against the Indemnified Parties.
13.5 Non-Liability of City Officers and Employees. No official, officer,
employee, agent, or representative of the City, acting in his/her official capacity, shall be
personally liable to Developer, or any successor or assign, for any loss, cost, damages, claim,
liability or judgment arising out of or in connection to this Agreement, or for any act or omission
on the part of the City.
13.6 Survival. The provisions of these Sections 12.1, 12.2, 12.3, and 12.4 shall
survive the termination or expiration of this Agreement.
14. Miscellaneous.
14.1 Relationship of Parties. It is understood that the Project is a private
development, that neither party is acting as the agent of the other in any respect hereunder, and
that each party is an independent contractor. It is further understood that none of the terms or
provisions of this Agreement are intended to or shall be deemed to create a partnership, joint
venture or joint enterprise between the parties hereto.
14.2 Consents. Unless otherwise herein provided, whenever approval, consent,
acceptance or satisfaction (collectively, a "consent") is required of a party pursuant to this
Agreement, it shall not be unreasonably withheld or delayed. Unless provision is otherwise
specified in this Agreement or otherwise required by law for a specific time period, consent shall
be deemed 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
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period as may be specified in this Agreement or otherwise required by law for consent, that party
shall then be deemed to have given its consent. If a party shall disapprove, the reasons therefor
shall be stated in reasonable detail in writing. This Section does not apply to development
approvals by the City.
14.3 Not a Public Dedication. Except as otherwise expressly provided herein,
nothing herein contained shall be deemed to be a gift or dedication of the 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
Agreement be strictly limited to and for the purposes herein expressed for the development of the
Project as private property.
14.4 Severability,. If any term, provision covenant or condition of this
Agreement shall be determined invalid, void or unenforceable by judgment or court order, the
remainder of this Agreement shall remain in full force and effect, unless enforcement of this
Agreement as so invalidated would be unreasonable or grossly inequitable under all the relevant
circumstances or would frustrate the purposes of this Agreement.
14.5 Exhibits. The Exhibits listed in the Table of Contents, to which reference
is made herein, are deemed incorporated into this Agreement in their entirety by reference
thereto.
14.6 Entire Agreement. This written Agreement and the Exhibits hereto
contain all the representations and the entire agreement between the parties with respect to the
subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto,
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any prior correspondence, memoranda, agreements, warranties or representations are superseded
in total by this Agreement and Exhibits hereto.
14.7 Governing Law; Construction of Agreement. This Agreement, and the
rights and obligations of the parties, shall be governed by and interpreted in accordance with the
laws of the State of California. The provisions of this Agreement and the Exhibits hereto shall
be construed as a whole according to their common meaning and not strictly for or against any
party and consistent with the provisions hereof, in order to achieve the objectives and purposes
of the parties hereunder. The captions preceding the text of each Section, subsection and the
Table of Contents hereof are included only for convenience of reference and shall be disregarded
in the construction and interpretation of this Agreement. Wherever required by the context, the
singular shall include the plural and vice versa, and the masculine gender shall include the
feminine or neuter genders, or vice versa.
14.8 Signature Pages. For convenience, the signatures of the parties of this
Agreement may be executed and acknowledged on separate pages which, when attached to this
Agreement, shall constitute this as one complete Agreement.
14.9 Time. Time is of the essence of this Agreement and of each and every
term and condition hereof.
14.10 Prevailing Party's Attorney's Fees and Costs. if any party to this
Agreement shall fail 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 party or the party not prevailing in such dispute, as
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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 to such dispute or in enforcing or establishing its rights hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above-written.
DEVELOPER:
PALM DESERT FUNDING COMPANY, L.P.,
A Delaware Limited Partnership
By: Hover Development Company, Inc.
Its: - uthorized R presentative
By �i t/i, '
! homas I. H iver, President
CIT
CITY OF PALM DESERT, CALIFORNIA, a
municipal corporation organized and existing under
the laws of he State of California
By:
or
Attes
the e D. assen, 'ty lerk Th
2t
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STATE OF CALIFORNIA
ss
COUNTY OF � �� )
On riudd,L.f , 2007, before me, 4/ 4. a Notary Public in and
for said State, personally appeared 4 , personally known
to me (or 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/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Notary bli
_ #40if: CoNmilMon•1I69101
•ti Z - Wary Pubic-Caw
`1 ^/MrCo bP•1111 NO S.
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