HomeMy WebLinkAboutRes No 1663PLANNING COMMISSION RESOLUTION NO. 1663
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO
THE CITY COUNCIL APPROVAL OF A NEGATIVE
DECLARATION OF ENVIRONMENTAL IMPACT AND AMENDED
AND RESTATED DEVELOPMENT AGREEMENT CONCERNING THE
COMMERCIAL DEVELOPMENT ON THE SOUTH SIDE OF EL
PASEO BETWEEN SAN PABLO AVENUE AND LARKSPUR LANE.
PROJECT TITLE: AHMANSON COMMERCIAL DEVELOPMENT
PLAN AMENDED AND RESTATED DEVELOPMENT AGREEMENT
WHEREAS, the Planning Commission of the City of Palm Desert,
California, did on the 4th day of October, 1994, hold a duly noticed
public hearing to consider the request of MADISON REALTY/SUNRISE CO.
for approval of an amended and restated development agreement
concerning the commercial development on the south side of El Paseo
between San Pablo Avenue and Larkspur Lane; and
WHEREAS, said application has complied with the requirements of
the "City of Palm Desert Procedure for Implementation of the California
Environmental Quality Act, Resolution No. 80-89," in that the director
of community development has determined that the amended project
impacts remain consistent with the findings of the previously Certified
Environmental Impact Report SCH#88122603 and as mitigated will not have
a significant adverse impact on the environment and a Negative
Declaration of Environmental Impact has been prepared; 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 said amended and
restated development agreement:
The Amended and Restated Development Agreement remains consistent
with the goals and objectives of the city's Zoning Ordinance,
Commercial Core Area Specific Plan, and General Plan.
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 a Negative Declaration of Environmental Impact Exhibit
"A" and the Amended and Restated Development Agreement
Exhibit "B" are hereby recommended to the city council for
approval.
PLANNING COMMISSION RESOLUTION NO. 1663
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm
Desert Planning Commission, held on this 4th day of October, 1994, by
the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
BEATY, FERNANDEZ, JONATHAN, WHITLOCK, SPIEGEL
NONE
NONE
NONE
RAMON A. DIAZ, Sucre ary
Palm Desert Planni Commission
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PLANNING COMHISSION RESOLUTION NO. 1663
EXHIBIT A
NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT
PURSUANT TO TITLE 14, DIVISION 6, ARTICLE 7, SECTION 15070
OF THE CALIFORNIA ADMINISTRATIVE CODE
PROJECT NAME: AHMANSON COMMERCIAL DEVELOPMENT PLAN
DISPOSITION, DEVELOPMENT AND IMPLEMENTATION
AGREEMENT AND DEVELOPMENT AGREEMENT
APPLICANT: Madison Realty/Sunrise Co.
c/o Philip Smith
42-600 Cook Street
Palm Desert, California 92260
PROJECT
DESCRIPTION:
Modification of an approved Disposition, Development and
Implementation Agreement (DDIA) between the Palm Desert
Redevelopment Agency (Agency) and the Ahmanson
Commercial Development Company and Development Plan
between the City of Palm Desert and Ahmanson Commercial
Development Company, generally associated with
implementation of the Ahmanson Commercial Development
Plan, for which an Environmental Impact Report SCH
#88122603 was certified November 16, 1989. The proposed
modifications concern the development of Site Area No.
5 originally approved as a 167,500 square foot
commercial center on the south side of El Paseo between
San Pablo Avenue and Larkspur Lane.
The Development Agreement modifications include:
1. Increase in Gross Leasable Area (GLA) from 167,500
to 197,500.
2. Permission to include up to 25% of Gross Leasable
Area (49,250 square feet) of restaurant use.
Disposition, Development and Implementation Agreement
modifications include:
1. Purchase by the Agency of "Parking Rights" via an
easement agreement for 200 public parking spaces
to be constructed in addition to those spaces
required for the project by the city's Parking
Ordinance.
PLANNING COMMISSION RESOLUTION NO. 1663
NEGATIVE DECLARATION
OF ENVIRONMENTAL IMPACT
2. Preparation of a "Parking Management Plan"
insuring efficient operation and management of all
of the parking on the Property.
ANALYSIS
OF IMPACTS: 1. General: Project impacts resulting from the
modification will be identical to those identified
in the Certified EIR. All mitigation measures
identified in the Final EIR for this site area
will be applicable to the project.
2. Traffic Generation: The certified EIR had
identified impacts resulting from traffic
generation as the primary effect of the project.
The EIR traffic analysis based on the 4th Edition
of Trip Generation published by The Institute of
Transportation Engineers (ITE) forecast 10,370
daily trips from the original 167,500 square foot
project. Subsequently, ITE revised and refined
their forecasts in the 5th Edition based on
approximately 100 new shopping center studies.
These studies have indicated a generally lower
traffic generation rate then was previously
forecast. While the project floor area will
increase 20% from 167,500 square feet to 197,000
square feet, traffic generation as forecast by the
5th Edition will increase only 4% to 10,815 when
compared to the EIR analysis. This increase does
not change the traffic mitigation recommended by
the EIR. These include:
A. Long-term (Year 2000) Mitigation Measures
Highway 111 @ Monterey Avenue -State Route 74
Requires the addition of a second northbound
left -turn lane on SR-74 and a second
eastbound and westbound left -turn lane on
Highway 111 (same as 1989 study).
Requires the addition of a third eastbound
and westbound through lane on Highway 111 for
a total of six through lanes (three in each
direction).
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PLANNING COMMISSION RESOLUTION NO. 1663
NEGATIVE DECLARATION
OF ENVIRONMENTAL IMPACT
Highway 111 @ San Pablo
Convert exclusive eastbound and westbound
right -turn lanes on Highway 111 into a third
eastbound and westbound through lane one
Highway 111 (same as 1989 study).
Highway 111 @ San Luis Rey
Re -stripe the northbound approach of San Luis
Rey at Highway 111 to provide an exclusive
left -turn lane (same as 1989 study).
Requires the addition of a third eastbound
and westbound through lane on Highway 111 for
a total of six through lanes (three in each
direction) (same as 1989 study).
El Paseo @ State -Route 74
Re -stripe the northbound approach of State -
Route 74 at El Paseo to provide a second
left -turn lane (same as 1989 study).
B. Project -specific Improvements
Highway 111 @ San Pablo
Requires the addition of a second northbound
through lane on San Pablo at Highway 111
(same as 1989 study).
El Paseo @ San Pablo Avenue
Re -stripe the northbound approach of San
Pablo at El Paseo to provide an exclusive
right -turn lane. Restrict on -street parking
on San Pablo adjacent to the project site to
provide storage for the right -turn lane.
Traffic signal operation modifications to
provide for 8-phase function with split
phasing as an alternative dependent upon
Caltrans requirements.
Restripe/reconstruct southbound San Pablo
Avenue to provide left turn, through and
right turn lanes.
5
PLANNING COMMISSION RESOLUTION NO. 1663
NEGATIVE DECLARATION
OF ENVIRONMENTAL IMPACT
Modification of existing median left turn
pockets at El Paseo/San Pablo Avenue and El
Paseo/Larkspur Lane to provide additional
vehicle stacking capacity.
3. The purchase of parking rights and preparation of
a parking management plan will result in positive
impacts by addressing existing parking
deficiencies within the El Paseo area.
The Director of the Department of Community Development, City of Palm
Desert, has therefore concluded that the described project remains
within the scope of the previously certified Environmental Impact
Report SCH #88122603 and as mitigated, will not have a significant
effect on the environment. There has been no significant changes in
the nature of the project or the environment since certification of the
EIR. A copy of the project EIR is available in the Department of
Community Development/Planning, Palm Desert Civic Center, 73-510 Fred
Waring Drive, Palm Desert, California. A copy of the initial study for
the proposed DA and DDIA modification has been attached to document the
reasons in support of this finding.
Ramon A. Diaz
DATE: October 4, 1994
6
T
M 1
(Space above for Recorder's Use Only)
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
Between
THE CITY OF PALM DESERT, CALIFORNIA
and
THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP
Dated: , 1994
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LIST OF EXHIBITS
Exhibit
Desianation Descrivtion
A The Project
B The Property
C The Phasing Schedule
D The Exactions
E The Public Facilities
F The Disposition, Development.
and Implementation Agreement
G Cooperation Agreement
�n-
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (the
"Agreement") is made and entered into as of this day of ,
1994, by and between the City of Palm Desert, California,
a municipal corporation organized and existing under the laws of
the State of California ("City"), and The Madison Realty
Partnership, Limited Partnership, a Delaware limited partnership,
("Developer").
RECITALS
This Agreement is entered into on the basis of the
following facts, understandings and intentions of the parties:
A. Government Code Sections 65864 through 65869.5
inclusive (the "Development Agreement Legislation") authorize City
to enter into development agreements in connection with the
development of real property within its jurisdiction. On
August 11, 1983, City enacted by Ordinance No. 341, as amended on
December 7, 1989 by Ordinance No. 589 (collectively, the
"Development Agreement Ordinance"), establishing the procedures and
requirements for the consideration of development agreements
thereunder pursuant to the Development Agreement Legislation.
B. The Developer is the holder of a legal or equitable
interest in the Property (as defined in Section 1.10 below) and is
entitled to have filed the application for and to enter into this
Agreement. The Developer has purchased the Property from ACD 2, a
California corporation (the successor in interest to Ahmanson
Commercial Development Company ("ACD"), a California corporation,
which was the "Developer" of the Property under the Development
Agreement (as defined below)).
C. The City and ACD have previously entered into that
certain Development Agreement dated May 1, 1990 and recorded in the
Office of the County Recorder of Riverside County, California on
June 20, 1990 as Instrument No. 227140 (the "Development
Agreement"), which Development Agreement relates in part to and
benefits the Property and the Project (as defined in Section 1.9
below) and by which the City has acknowledged that the development
of the Property and the Project as set forth therein is consistent
with and in furtherance of the development goals and policies of
the City. As of the Effective Date, the terms and conditions of
the Development Agreement which are not included in this Agreement
shall have no force or effect upon, and shall not be binding upon,
Developer or the Property.
D. Pursuant to that certain Agreement of Purchase and
Sale ("Purchase Agreement") between Developer, as buyer, and ACD 2,
as seller, dated May 20, 1994, Developer agreed to purchase the
Property from ACD 2 and also agreed to assume all of the
obligations and duties which relate to the Property and to accept
all rights and interests under the Development Agreement which
relate to the Property as the owner and developer of the Property,
all as set forth in this Agreement. If this Agreement is entered
into prior to close of escrow pursuant to the Purchase Agreement,
notwithstanding anything to the contrary set forth herein, this
Agreement shall not become effective unless and until such close of
escrow occurs, and the Effective Date (as defined in Section 2.1
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hereof) will be postponed until such close of escrow occurs, as
evidenced by the recordation of a deed conveying the Property to
Developer.
E. The Project consists of the development of the
Property. The Project will require a major investment by the
Developer in public facilities and a substantial investment by the
Developer in on -site and off -site improvements. The Project has
been analyzed and reviewed by the City in light of the land use
standards and policies embodied in the Existing Land Use Ordinances
(as defined in Section 1.5 below).
F. 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 and policies of the City as
set forth in the City's General Plan and the existing Palm Desert
Commercial Core Area Specific Plan initially adopted by the City on
July 23, 1987, and the objectives, policies, general land uses and
development programs set forth therein.
G. City has determined that the execution of this
Agreement by the City and the Developer will effect the assumption
by the Developer of the duties and obligations and the acceptance
by the Developer of the rights and interests with respect to the
Property under the Development Agreement as described above and set
forth herein and will further the goals and objectives of the
City's land use planning policies by, among other things,
eliminating uncertainty in planning for and securing orderly
development of the Project so that adequate long-term plans
regarding the provision of necessary infrastructure can be
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developed and implemented, and ensuring the maximum effective
utilization of resources within the City at the least feasible
economic cost to its citizens. The benefits conferred on City by
Developer herein will (i) facilitate the installation of certain
vital public improvements; (ii) improve traffic circulation
patterns within the City; and (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 Project in accordance with the Existing Land Use Ordinances and
at a rate of development of its choosing, subject to the terms and
conditions contained in this Agreement.
H. In order to effectuate the foregoing, the parties
desire to enter into this Agreement in order to amend and restate
in its entirety the Development Agreement with respect to the
Property.
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 pefined 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 Building Ordinances. Those building standards, of
general and uniform application throughout the City and not imposed
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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.
1.3 Enacting Ordinance. Ordinance No. , enacted by
the City Council on , 1994, approving this Agreement.
1.4 Exactions. All exactions, in -lieu fees or payments,
assessments, dedication or reservation requirements, obligations
for on -site or off -site improvements, construction requirements for
public improvements, facilities, or services called for in
connection with the development of or construction on the Property,
whether such requirements constitute subdivision improvements, any
conditions of approval relating to any fees, charges, or
dedications imposed by the Subdivision Map Act or any implementing
local ordinance, mitigation measures in connection with
environmental review of any project, or impositions made under any
applicable ordinance or in order to make a project approval
consistent with the City's General Plan. Exactions do not include
Processing Fees.
1.5 Existing Land Use Ordinances. The Land Use
Ordinances in effect as of May 1, 1990.
1.6 Reserved.
1.7 Land Use Ordinances. "Land Use Ordinances" means
all resolutions, codes, rules, regulations and official policies of
City legally adopted in accordance with all applicable laws
governing the development and use of land, including, without
limitation, the permitted use of land, the density or intensity of
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use, subdivision requirements, the maximum height and size of
proposed buildings, the provisions for reservation or dedication of
land for public purposes and all Exactions, the phasing or timing
of development, and the design, improvement and construction and
initial occupancy standards and specifications applicable to the
development of the Property as they may be modified by the
Development Approvals. "Land Use Ordinances" do not include any
City resolution, code, rule, regulation or official policy,
governing:
(a) The conduct of businesses, professions, and
occupations;
(b) Other than as provided in this Agreement, taxes
and assessments of general application upon all residents of the
City, provided that the taxes and assessments are not imposed for
the purpose of taxing the right, power or privilege of developing
or improving land (e.g. excise tax) or to directly finance the
construction or maintenance of any public improvement in respect of
which Developer is paying any fee or providing any improvement
pursuant to Section 4 hereof;
•
(c) The control and abatement of nuisances;
(d) The granting of encroachment permits and the
conveyance of rights and interests which provide for the use of or
the entry upon public property;
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(d) The exercise of the power of eminent domain.
1.8 Mortaage. 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.
1.9 processing Fees. "Processing Fees" means the normal
and customary application, filing, plan check, permit fees for land
use approvals, design review, tree removal permits, building
permits and other similar permits and entitlement, and inspection
fees, which fees are charged to reimburse the City's expenses
attributable to such applications, processing, permitting, review
and inspection and which are in force and effect on a general basis
at such time as said approvals, permits, review, inspection or
entitlement are granted or conducted by City.
1.10 proiect. The commercial/retail development and
associated amenities, and on -site and off -site improvements, as
described in Exhibit
"A"
intended to be constructed on the
Property, as the same may hereafter be further refined, enhanced or
modified pursuant to the provisions of this Agreement.
1.11 Property. That real property which -is described in
Exhibit "B".
1.12 Reservations of Authority. "Reservations of
Authority" means the rights and authority excepted from the
assurances and rights provided to Developer under this Agreement
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and reserved to City including, without limitation, those rights
and authorities described in Section 3.7 of this Agreement.
1.13 Certain Other Terms. Certain other terms shall have
the meanings set forth for such terms in this Agreement.
2. Effective Date: Term: Amendment.
2.1 Effective Date. This Agreement has been entered
into by the parties as of the date and year first above written,
and, except as otherwise provided herein, shall be effective as of
such date (the "Effective Date") u7 s: ;;..�iiit
postponed as provided °" 1n "�Recita . • `:: "
Notwithstanding anythingv inw this,greemer
Developmentand ::Iatplementatioif-agreement o the contra-
has not closed ;pureuant.;to the Purchase -liar'
Recital D above'] within "six •'{6 ` months 'follow
seem
Disposition::
escrow
as defnedn
date fly:. 'I'
Agreement's execution `'by the City,: then this Agreement sha
automatically terminate and: shall not become effective andthe
parties hereto placed in the same position as `they would have been
absent the execution of this Agreement.
2.2 Term. The term of this Agreement (the "Term") shall
commence on the Effective Date and shall terminate on May 1, 2000,
unless sooner terminated or extended as hereinafter provided.
2.3 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. No consent to any such amendment shall be required from
any party to the Development Agreement other than the City. Any
amendment to this Agreement or the Exhibits as provided herein
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shall be effected only upon compliance with the procedures for
amendment, if any, required by the Development Agreement
Legislation and the Development Agreement Ordinance and only upon
receipt of the written consent of the Palm Desert Redevelopment
Agency. 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. The cost of such
recordation shall be borne equally by the parties to this
Agreement.
3. General Development of the Proiect.
3.1 Proiect.
(a) The Project is defined and described in Exhibit
"A", which specifies for the purposes of this Agreement all of the
following aspects of the Project: (i) proposed uses of the
Property, (ii) the maximum height and square footage of buildings
to be constructed on the Property, (iii) density and intensity of
use of the Property, (iv) requirements for the construction or
provision of on -site and off -site improvements; and (v)
requirements for reservation or dedication of portions of the
Property for public purposes.
(b) Except as otherwise expressly provided in
Exhibit "A" and further provided in Section 4.2 below, Developer
shall have the right to develop the Project in accordance with, and
development of the Project during the Term shall be governed by,
the Existing Land Use Ordinances, subject to the Reservations of
Authority. However, Developer shall not be obligated to develop
the Project.
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3.2 Project Timing. The parties acknowledge that
Developer cannot at this time predict when or the rate at which 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 maps, building permits, occupancy
certificates and other entitlement for its use at any time,
provided that such application is made in accordance with the
Existing Land Use Ordinances, subject to the Reservations of
Authority and that the development and/or construction of the
Project contemplated or authorized by such maps, building permits,
occupancy permits and other entitlement is otherwise in conformity
therewith.
3.3 Building Permits and Other Approvals and Permits.
Subject to (a) Developer's compliance with this Agreement, the
Existing Land Use Ordinances and the Building Ordinances, and (b)
payment of Processing Fees or similar fees and charges of general
application, City shall process and issue to Developer 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
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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).
3.4 Procedures; Limitations on Exactions. 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 Exhibits hereto, and to the extent not
inconsistent therewith, the Existing Land Use Ordinances, subject
to Reservations of Authority, 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. Notwithstanding the foregoing, or anything to the
contrary otherwise contained herein, there shall not, except as
otherwise specifically provided herein, be imposed upon the Project
any Exactions other than those set forth in Exhibit "D", nor shall
the fees and charges for the. Exactions exceed those set forth in
Exhibit "D" (to the extent set forth in Exhibit "D") or those
charged pursuant to the Existing Land Use Ordinances (to the extent
not set forth in Exhibit "D").
3.5 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
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forth in Exhibit "A" and the Existing Land Use Ordinances, subject
to the Reservations of Authority, and to grant 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
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
maximum height and size of buildings to be constructed on the
Property, the density and intensity of use of the Property and the
requirements for the construction or provision of on -site and off -
site improvements and the reservation or dedication of land for
public use, if and to the extent set forth in Exhibit "A", and in
accordance with the Existing Land Use Ordinances, subject to the
Reservations of Authority, 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.
The parties acknowledge that: (a) the City has entered
into this Agreement pursuant to the Development Agreement
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Legislation and its police power in order to address public health
and safety and general welfare concerns including those relating to
the amount, density, intensity and timing of development within the
Property and the need for public facilities and infrastructure in
connection with the Property and other property in the area; and
(b) as, and to the extent contemplated in the Development Agreement
Legislation, there is certain authority under the police power to
address public health and safety concerns that cannot be legally
relinquished or restricted by this Agreement and that in addition
to the Reservations of Authority, the City subsequent to the
exercise such authority by the adoption of
and policies which may be applicable to the
Property, but which do not conflict with the
this Agreement as determined in the manner and
Effective Date may
rules, regulations,
Project and/or the
terms and intent of
in accordance with the standards set forth below. For the purposes
of this Agreement any such rule, regulation or policy shall not be
deemed to conflict with the terms and intent of this Agreement if
the same does not:
(i) modify the permitted types of land uses, the
density or intensity of use, the maximum height or size of proposed
buildings on the Property, or impose requirements for the
construction or provision of on -site or off -site improvements or
the reservation or dedication of land for public use, or the
payment of fees or the imposition of Exactions, other than as are
in each case specifically provided for in this Agreement; or
(ii) prevent the Developer from obtaining all
necessary approvals, permits, certificates or other entitlement at
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such dates and under such circumstances as the Developer would
otherwise be entitled under this Agreement; or
(iii) prevent or inhibit the Developer from
commencing, prosecuting and finishing on a timely basis the
construction and development of the Project and the satisfaction of
its obligations hereunder in the manner and as contemplated by this
Agreement; or
(iv) increase the cost of the construction or
development of the Project, or the construction or provision of any
public improvements to be provided by the Developer as contemplated
herein, or the reservation or dedication of land for public
purposes, or increase the cost of selling, financing or leasing the
Project or any portion thereof.
3.6 Operatina Memoranda. Developer and City
acknowledge that the provisions of the Agreement require a close
degree of cooperation between Developer 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 under the Agreement in
order to effectuate the purpose of the 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 confer in good faith with respect
to such changes or provide for such additional provisions through
operating memoranda to be considered in good faith by the parties,
which, if approved, shall be attached hereto as addenda and become
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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 City such operating memoranda may be acted upon by its
Community Development Director. 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.
3.7 Limitations, Reservations and Exceptions.
Notwithstanding any other provision of this Agreement, the
following shall apply to the development of the Property:
(a) Processing Fees imposed by City to cover the
estimated or actual costs to City of processing applications for
Development Approvals or for monitoring compliance with any
Development Approvals granted or issued, which fees are charged to
reimburse the City's expenses attributable to such applications,
processing, permitting, review and inspection and which are in
force and effect on a general basis at such time as said approvals,
permits, review, inspection or entitlement are granted or conducted
by City.
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(b) Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings,
reports, recommendations, appeals and any other matter of
procedure.
(c) Regulations, standards, policies and rules governing
the engineering and construction of private or public improvements
including, without limitation, any and all uniform codes adopted by
the City, including local amendments to those codes adopted
pursuant to state law allowing for such amendments; provided that
such codes are uniformly applied to all new development projects of
the same uses within the City. Such codes include without
limitation, the City's Uniform Housing Code, Building Code,
Plumbing Code, Mechanical Code, Electrical Code, Fire Code and
Building Security Code. City agrees that such standards,
regulations, policies and rules shall be those applied on a City-
wide basis to all development projects of a similar type as the
Project.
(d) Regulations which are reasonably necessary to
protect the residents of the Project or of the immediate community,
or both, from a condition perilous to their health or safety, or
both; provided, however, the following shall apply:
(i) That to the extent possible, such regulations
shall be applied and construed so as to provide Developer with the
rights and assurances provided in this Agreement; and
KKR41079
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(ii) That such regulations apply uniformly to all
new development projects of the same uses within the City; and
(iii) That the City Council finds, based on
substantial evidence, that such regulations are necessary to
eliminate or reduce a public danger perilous to the health or
safety of the residents of the Project or of the immediate
community.
(e) Regulations which do not conflict with the terms and
intent of this Agreement. Any Land Use Ordinance limiting the rate
or timing of development of the Property shall be deemed to
conflict with the terms and interest of this Agreement and shall
therefore not be applicable to the development of the Property
unless otherwise permitted by the Reservations of Authority.
(f) Regulations which are in conflict with the terms and
intent of this Agreement provided Developer has given written
consent to the application of such regulations to development of
the Property.
4. Specific Criteria Applicable to Development of the
Protect.
4.1 Applicable Ordinances. Except as set forth in
Exhibit "A" and subject to the provisions of Section 4.2 below and
the Reservations of Authority, the Existing Land Use Ordinances
shall govern the development of the Property hereunder and the
KKR41079
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granting or withholding of all permits or approvals required to
develop the Property. 4.2 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 .than those in effect as of the Effective
Date, Developer shall have the right to notify the City in writing
of its request to be subject to all or any such new standards for
the remaining term of this Agreement. If City approves such
request, which approval shall be in the City's reasonable
discretion, 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. 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 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.
4.3 Easements; Abandonments. City shall cooperate with
Developer, at Developer's sole cost, expense and liability, 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 and
consider such action as may be necessary to abandon existing
KKR41079
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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.
5. public Benefits.
5.1 [Reserved] 5.2 palm Desert
Redevelopment Aaencv_. Developer and the Palm Desert Redevelopment
Agency ("Agency") have entered into that certain Amended and
Restated Disposition, Development and Implementation Agreement (the
"Disposition and Development Agreement" or "DDIA") attached hereto
as Exhibit "F" which pertains to the Property. Developer and City
acknowledge that said Disposition and Development Agreement
provides for the terms, conditions and requirements with respect to
the construction of the Minimum Site Improvements (as defined in
the DDIA) by the Developer and the payment to Developer by the
Agency of the Purchase Price (as defined in the DDIA) for the
Parking Rights (as defined in the DDIA). City and Developer agree
that the
payment to Developer of the Purchase Price
shall be controlled in all respects by said DDIA and that in the
event of any inconsistency between the provisions thereof and of
this Agreement in connection with the manner or timing of Such
conotruct ien e such payment, the provisions of
the DDIA shall be deemed to control. City agrees that the
performance by the Developer of its obligations under said DDIA
shall constitute the performance and satisfaction of its
corresponding obligations hereunder.
5.3 [Reserved)
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5.4 [Reserved.]
6.
6. Review for Compliance.
6.1 periodic Review. The Community Development Director or
his or her designee shall review this Agreement annually, on or
before the anniversary of the Effective Date, in order to ascertain
the good faith compliance by Developer with the terms of the
Agreement. Developer shall submit an Annual Monitoring Report, in
a form acceptable to the Community Development Director or his or
her designee, within 30 days after written notice from the
Community Development Director or his or her designee. The Annual
Monitoring Report shall be accompanied by an annual review and
administration fee, in an amount consistent with then -existing City
fee schedules and resolutions, sufficient to defray the estimated
costs of review and administration of the Agreement during the
succeeding year. The amount of the annual review and
administration fee shall be set annually by resolution of the City
Council. Neither City nor Developer shall have a dutyto notify
the other of their respective obligations hereunder and the City's
failure to so conduct such annual reviews shall not affect the
rights, protection, and benefits afforded Developer by the
Development Agreement Legislation and this Agreement shall remain
subject to the Development Agreement Legislation.
6.2 Special Review. The Planning Commission or City Council
may order a special review of compliance with this Agreement at any
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time. The Community Development Director or his or her designee
shall conduct such special reviews.
6.3 procedure.
(a) During either a periodic review or a special review,
Developer shall be required to demonstrate good faith compliance
with the terms of the Agreement. The burden of proof on this issue
shall be on Developer.
(b) Upon completion of a periodic review or a special
review, the Community Development Director or his or her designee
shall submit a report to the Planning Commission setting forth the
evidence concerning good faith compliance by Developer with the
terms of this Agreement and his/her recommended finding on that
issue.
(c) If the Planning Commission finds on the basis of
substantial evidence that Developer has complied in good faith with
the terms and conditions of this Agreement, the review shall be
concluded.
(d) If the Planning Commission makes a preliminary
finding that Developer has not complied in good faith with the
terms and conditions of this Agreement, the Planning Commission
may commence proceedings to terminate this Agreement under Section
6.4 and Section 6.5. Notice of default And the opportunit r to cure
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as provided under Section 8.4 of this Agreement shall be given to
Developer prior to or concurrent with proceedings under Section 6.4
and Section 6.5.
(e) Failure to comply with the terms or conditions of
this Agreement by reason of interference caused by acts of God,
labor disputes, inability to procure materials due to a general
shortage of labor or materials in the normal channel of trade,
delay in transportation, delay in inspections, City's breach
hereunder or any other cause beyond the reasonable control of
Developer, whether similar or dissimilar to the foregoing, shall
not constitute a failure of good faith compliance with the terms
and conditions of this Agreement. Notwithstanding the foregoing,
however, the inability of Developer to obtain or maintain financing
necessary to allow for the Development of the Project shall not be
deemed an excuse for the Developer's failure to comply with the
terms and conditions of this Agreement.
6.4 proceedings Upon Hod4fic3tion or Termination. If, upon
a finding under Section 6.3(d), the Planning Commission determines
to proceed with modification or termination of this Agreement, the
Planning Commission shall give written notice to Developer of its
intention so to do. The notice shall be given at least ten
calendar days prior to the scheduled hearing and shall contain:
KKR41079
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(a) The time and place of the hearing;
-22-
(b) A statement as to whether or not the Planning
Commission proposes to terminate or to modify the Agreement; and,
(c) Such other information as is reasonably necessary to
inform Developer of the nature of the proceeding.
6.5 Hearina on Modification or Termination. At the time and
place set for the hearing on or termination, Developer
shall be given an opportunity to be heard. Developer shall be
required to demonstrate good faith compliance with the terms and
conditions of this Agreement. The burden of proof on this issue
shall be on Developer. If the Planning Commission finds, based
upon substantial evidence, that Developer has not complied in good
faith with the terms or conditions of the Agreement the Planning
Commission may terminate this Agreement. or modify this Agrccmcnt
and I!pooc ouch condition3 a3 arc rcu3onably nccc33ary to protcct
the intcrc3t3 of the City. Developer may appeal any determination
of the Planning Commission made pursuant to this Section 6.5 to the
City Council in accordance with the City Municipal Code as amended
or substituted. The decision of the City Council shall be final,
subject en-ly to judicial review. pursuant to Ccction 1094.5 of the
Codc of Civil Proccdurc. [Developer requests cure period following
adverse judgment.]
6.1 Certificate of Agreement Compliance. If, at the conclu-
sion of a Periodic or Special Review, Developer is found to be in
compliance with this Agreement, City shall, upon request by
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Developer, issue a Certificate of Agreement Compliance
("Certificate") to Developer stating that after the most recent
Periodic or Special Review and based upon the information known or
made known to the Planning Director and City Council that (1) this.
Agreement remains in effect and (2) Developer is not in default.
The Certificate shall be in recordable form, shall contain
information necessary to communicate constructive record notice of
the finding of compliance, shall state whether the certificate is
issued after a Periodic or Special Review, and shall state the
anticipated date of commencement of the next Periodic Review.
Developer may record the Certificate with the County Recorder.
Whether or not the Certificate is relied upon by assignees or
other transferees or Developer, City shall not be bound by a
Certificate if a default existed at the time of the Periodic or
Special Review, but was concealed from or otherwise not known to
the City.
7. permitted Delays: Supersedure by Subsequent Laws.
7.1 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 God or 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 '(proviled"'that
KKR41079
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or the Land Use Ordinances, or any other ordinance
effecting the Project or the approvals, permits or other
entitlement related thereto, or restrictions imposed or mandated by
governmental or quasi -governmental entities • :x xX a83
....:.,...,..,..,a.....:;�...a...n.m�c2.unucsL..a<oaw.c.2.h...ar.aukh.•... hxxovaach'.ai:YaWFwnav=:ur<i`.k:::t,.ei,:5:<:.:«.+e&:.i
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 event or circumstance giving rise to a permitted delay under
the terms of the Disposition.and Development., and lmplementat ga
Agreement (to the extent that the Developer's performance under
this Agreement is impacted thereby), 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, and, at Developer's request, the Term of this
Agreement, shall be extended by the period of any delay hereunder,
provided not to exceed in any event seven (71 [Check with City]
years following the Effective Date. Notwithstanding anything in
this Agreement to the contrary, the inability of Developer to
obtain or maintain financing necessary for the development of the
Project shall not be cause for an extension of time for performance
or of the Term of this Agreement.
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7.2 ,Supersedure of Subsequent Laws or Judicial Action:
Termination of the Development Agreement. The provisions of this
Agreement shall, to the extent feasible, be modified or suspended
as may be necessary to 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.
Immediately 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 7.1 above,
for a period of time equal to the length of time the challenge was
pursued.
If, following such meetings with the City or the failure
of any challenge to such new Law or Decision by either the City or
Developer, the Developer determines in its sole reasonable business
judgement that a modification or suspension of the terms or
conditions of this Agreement is infeasible, the Developer shall
have the right to terminate this Agreement by giving written notice
to the City.
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Subject to the provisions of Section 3.5 and the
Reservations of Authority, nothing set forth in this Article 7
shall be construed to permit the City to enact a Law which
conflicts with the terms or intent of this Agreement.
8. DEFAULT AND REMEDIES.
8.1
that City
be liable
Agreement
Remedies in General. It is acknowledged by the parties
would not have entered into this Agreement if it were to
in damages under this Agreement, or with respect to this
or the application thereof.
In general, each of the parties hereto may pursue any remedy
at law or equity available for the breach of any provision of this
Agreement, except that City shall not be liable in damages,
including, without limitation, attorneys' fees and litigation
costs, to Developer, or to any successor in interest of Developer,
or to any other person, except as otherwise expressly provided in
this Section 8.1, and Developer covenants not to sue for damages or
claim any damages:
(a) For any breach of this Agreement.or for any cause of
action which arises out of this Agreement; or
(b) For the impairment or restriction of any right or
interest conveyed or provided under, with, or pursuant to this
Agreement, including, without limitation, any impairment or
KKR41079
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restriction which Developer characterizes as a regulatory taking or
inverse condemnation; [Developer requests deletion] or
(c) Arising out of or connected with any dispute,
controversy or issue regarding the application or interpretation or
effect of the provisions of this Agreement.
Further, nothing contained herein shall modify or abridge
Developer's rights or remedies (including its rights for damages,
if any) resulting from the exercise by City of its power of eminent
domain; provided, however, that such exercise results in a physical
occupation of the Property or portion thereof. Except as set forth
in the preceding sentence, Developer's remedies shall be limited to
those set forth in this Section 8.1 and Section 8.2.
[Developer requests mutual waiver at least, prefers not to
waive money damages.]
8.2 Specific Performance. The parties acknowledge that money
damages and remedies at law generally are inadequate, and specific
performance and other non -monetary relief, including temporary and
permanent injunctive relief and-inaridainus, are particularly
appropriate remedies for the enforcement of this Agreement and
should be available to all Parties for the following' reasons:
(a) Money damages are unavailable against the City
except as provided in Section 8.1 above.
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(b) Due to the size, nature and scope of the Project, it
may not be practical or possible to restore the Property to its
natural condition once implementation of this Agreement has begun.
After such implementation, Developer may be foreclosed from other
choices it may have had to utilize the Property or portions
thereof. Developer has invested significant time and resources and
performed extensive planning and processing of the Project in
agreeing to the terms of this Agreement and will be investing even
more significant time and resources in implementing the Project in
reliance upon the terms of this Agreement, and it is not possible
to determine the sum of money which would adequately compensate
Developer for such efforts; the parties acknowledge and agree that
expedited, priority
any injunctive
basis.
relief may be
8.3 Release.
remedy of specific
in Section 6.5,
ordered on an
Except for nondamage remedies, including the
performance and judicial review as provided for
Developer, for itself, its successors and
assignees, hereby releases the City, its officers, agents and
employees from any and all claims, demands, actions, or suits or
any kind or nature arising out of any liability, known or unknown,
present or future, including, but not limited to,•any claim or
liability, based or asserted, pursuant to Article I, Section 19 of
the California Constitution, the Fifth Amendment of the United
States Constitution, or any other law or ordinance which seeks to
impose any other liability or damage, whatsoever, upon the City
KKR41079
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because it entered into this Agreement or because of the terms of
this Agreement.
8.4 Termination er "-"icat on for Default of Developer.
City may terminate or modify this Agreement for any failure of
Developer to perform any material duty or obligation of Developer
under this Agreement, or to comply in good faith with the terms of
this Agreement (hereinafter referred to as "default"); provided,
however, City may terminate or -mad €y this Agreement pursuant to
this Section only after providing written notice to Developer of
default setting forth the nature of the default and the actions, if
any, required by Developer to cure such default and, where the
default can be cured, Developer has failed to take such actions and
cure such default within 60 days after the effective date of such
notice or, in the event that such default cannot be cured within
such 60 day period but can be cured within a longer time, has
failed to commence the actions necessary to cure such default
within such 60 day period and to diligently proceed to complete
such actions and cure such default. The rights of the City
pursuant to this Section 8.4 are cumulative with and independent of
the City's rights under Section 6 of this Agreement.
.•
8.5 Termination of Acreement for Default of City. Developer
may terminate this Agreement only in the event of a default by City
in the performance of a material term of this Agreement and only
after providing written notice to City of default setting forth the
nature of the default and the actions, if any, required by City to
KKR41079
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cure such default and, where the default can be cured, City has
failed to take such actions and cure such default within 60 days
after the effective date of such notice or, in the event that such
default cannot be cured within such 60 day period but can be cured
within a longer time, has failed to commence the actions necessary
to cure such default within such 60 day period and to diligently
proceed to complete such actions and cure such default.
8. THIRD PARTY LITIGATION.
8.1 General Plan Litigation. City has determined that this
Agreement is consistent with its Comprehensive General Plan, herein
called General Plan, and that the General Plan meets all require-
ments of law. Developer has reviewed the General Plan and concurs
with City's determination.
City or Developer shall have no liability under this Agreement
for any failure of City to perform under this Agreement or the
inability of Developer to develop the Property as contemplated by
the Development Plan of this Agreement as the result of a judicial
determination that on the Effective Date, or at any time
thereafter, the General Plan, or portions thereof,. are invalid or
inadequate or not in compliance with law.
8.2 Third Party Litigation Concerning Agreement. Deve4eper
ohall defend, at it3 expcn3c, including attorley3' fccs, indemnify,
and hold harmlc33 City, it3 agents, officers and cmploycc3 from any
KKR41079
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claim, aetion er preeeeding against City, Its agents, officers or
•
action or proceeding, and City shall eeoperatc in thc defense. If
City fails te promptly notify Developer of any ouch claim, action
or proceedIng, er if City fails te eeeperate in the defense,
Deve1eper-shall-not-thereat-4er-be-resperefendl--inenky
thc defense ef any -Buell claim, action or proceeding. Th theTevent
that any action or45r66-6
not a party to thisAgreement against thecity,............ its agents,
officers or employees to attack, set aside, void or annul the
approval of this Agreement or the approval: mf any permit granted
pursuant to this Agreement, the City shall provide written notica
to Developer requesting Developer to indemnify, defend and hold
harmless City against such third party action or proceeding. The
Developer shall have the right, in its sole and absolute
discretion, to provide such defense and indemnification at its sole
cost and expense, including the payment of the City's reasonable
attorney fees and litigation costs. In the event that the
Developer declines to provide such indemnification and defense, the
City shall have the right, in its sole and absolute discretiam, to
terminate this Agreement in its entirety without cost;-liabilitfq
obligation to either the City or Developer. In the event this
Agreement is terminated as described above. all permits and/Or
development approvals previously iss4ed':..with respect to the
KKR41079
DRAFT 09-29-94
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„
�Uke4eee-�neeefkx.x�,.. . .
n a•(
8.3 .Indemnity. In addition to the provisions of Section 9.2
above, Developer shall indemnify and hold City, its officers,
agents, employees and independent contractors free and harmless
from any liability whatsoever, based or asserted upon any act or
omission of Developer, its officers, agents, employees,
subcontractors and independent contractors, for property damage,
bodily injury or death (Developer's employees included) or any
other element of damage of any kind or nature, relating to or in
any way connected with or arising from the activities contemplated
hereunder, including, but not limited to, the study, design,
engineering, construction, completion, failure and conveyance of
the public improvements, save and except claims for damages arising
through the sole active negligence or sole willful misconduct of
City. Developer shall defend, at its expense, including attorneys'
fees, City, its officers, agents, employees and independent
contractors in any legal action based upon such alleged acts or
omissions. City may in its discretion participate in the defense
of any such legal claim, action or proceeding. [Developer requests
limiting indemnity to personal injury or property damage.]
8.4 Environmental Contamination. Developer shall indemnify
and hold City, its officers, agents, and employees free and
harmless from any liability, based or asserted, upon any act or
omission of Developer, its officers, agents, employees,
KKR41079
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subcontractors, predecessors in interest, successors, assigns and
independent contractors, excepting any acts or omissions of City as
successor to any portions of the Property dedicated or transferred
to City by Developer, for any violation of any federal, state or
local law, ordinance or regulation relating to industrial hygiene
or to environmental conditions on, under or about the Property,
including, but not limited to, soil and groundwater conditions, and
Developer shall defend, at its expense, including attorneys, fees,
City, its officers, agents and employees in any action based or
asserted upon any such alleged act or omission. City may in its
discretion participate in the defense of any such claim, action or
proceeding. [Developer requests deletion if no public improvement
dedications.]
8.5 City to Approve Counsel. With respect to Sections 9.2.,
9.3 and 9.4 herein, City reserves the right to either (1) approve
the attorney(s) which Developer selects, hires or otherwise engages
to defend City hereunder, which approval shall not be unreasonably
withheld, or (2) conduct its own defense; provided, however, that
Developer shall reimburse City forthwith for any and all reasonable
expenses incurred for such defense, including attorneys' fees, upon
billing and accounting therefor.
8.6 Accept Reasonable Good Faith Settlement. With respect to
Section 9.2, 9.3 and 9.4, City shall not reject any reasonable good
faith settlement. If City does reject a reasonable, good faith
settlement that is acceptable to Developer, Developer may enter
KKR41079
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into a settlement of the action, as it relates to Developer, and
City shall thereafter defend such action (including appeals) at its
own cost and be solely responsible for any judgments rendered in
connection with such action. This Section 9.6 applies exclusively
to settlements pertaining to monetary damages or damages which are
remedial by the payment of monetary compensation. Developer and
City expressly agree that this Section 9.6 does not apply to any
settlement which requires an exercise of the City's police powers,
limits the City's exercise of its police powers, or affects the
conduct of the City's municipal operations.
8.7 Survival. The provisions of Sections 9.1 through 9.6
inclusive, shall survive the termination or expiration of this
Agreement as to mattersarising prior to termination or expiration.
9. Mortgagee Protection; Certain Rights of Cure. Nothing
contained herein, including, but not limited to Section 11.2, shall
limit the creation of a Mortgage or interfere with the lien of or
the remedies of the holder of any. Mortgage (a "holder of any
Mortgage" includes the holder of any beneficial interest under a
Mortgage, or the purchaser at a judicial or nonjudicial foreclosure
sale pursuant to the remedies provided in the Mortgage,or any
person or entity which acquires title to the Property or any part
thereof pursuant to a deed in lieu of foreclosure), and no breach
hereof shall defeat, render invalid, diminish or impair the lien of
any Mortgage.
KKR41079
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9.1 Molder of anv Moortaaae Not Obliaate4. No holder of
any Mortgage shall have an obligation or duty under this Agreement
to perform Developer's obligations or duties hereunder or to
guarantee the Developer's performance thereof.
9.2 jlotice of Default: Right to Cure. If a holder of
any Mortgage files with the City Clerk a written notice requesting
a copy of any notice of default given Developer hereunder and
specifying the address for delivery thereof, then City shall
deliver to such holder of any Mortgage, concurrently with delivery
thereof to Developer, any notice given to Developer with respect to
any claim of City that Developer has not complied with the terms
hereof or is otherwise in default hereunder. Each such holder of
any Mortgage shall have the right (but not the obligation) for a
period of one hundred twenty (120) days after receipt of such
notice from City to cure or remedy, or to commence to cure or
remedy, the claim of default or noncompliance set forth in the
City's notice. If any such default or noncompliance cannot, with
diligence, be remedied or cured within such one hundred twenty
(120) day period, then such holder of any Mortgage shall have such
additional time as may be reasonably necessary to remedy or cure
such default or noncompliance if such holder of any Mortgage
commences to remedy or cure within such one hundred twenty (120)
day period, and thereafter diligently pursues and completes such
remedy or cure. Notwithstanding the foregoing, if the default or
noncompliance is of a nature which can only be cured by such holder
of any Mortgage by or upon obtaining possession, such holder of any
Mortgage shall be deemed to have remedied or cured such default or
KKR41079
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noncompliance if such holder of any Mortgage shall, within such one
hundred twenty (120) day period, commence efforts to obtain
possession and carry the same forward with diligence and continuity
through implementation of foreclosure, appointment of a receiver or
otherwise, and shall thereafter remedy or cure or commence to
remedy or cure the default or noncompliance within one hundred
twenty (120) days after obtaining possession.
9.3 Bankruptcy. Notwithstanding the provisions of
Section 10.2 above, if any holder of any Mortgage is prohibited
from commencing or prosecuting foreclosure or other appropriate
proceedings in the nature thereof to obtain possession of the
Property by any process or injunction issued by any court or by
reason of any action by any court having jurisdiction of any
bankruptcy or insolvency proceeding involving Developer, the holder
of any Mortgage shall for the purposes hereof be deemed to be
proceeding with diligence and continuity to obtain possession of
the Property during the period of such prohibition if the holder of
any Mortgage is proceeding diligently to terminate such
prohibition.
9.4 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
KKR.1079
DRAFT 09-29-94
-37-
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.
10. •Transfers and Assignments; Effect of Agreement on Title.
10.1 Rights and Interests Appurtenant. The rights and
interests conveyed as provided herein to Developer benefit and are
appurtenant to the Property.
11.2 Prohibition Against Transfer. No voluntary or
involuntary successor in interest of the Developer shall acquire
any rights under this Agreement with respect to the Property or
assume, or be deemed to have assumed, any obligations or duties
hereunder with respect to the development of the Property except
as expressly set forth herein.
Developer has the right to sell, assign and transfer any
and all of its rights and interests hereunder' and to` assign `'and
transfer 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 -transferred or
assigned except in compliance with the following conditions:
Said" rights and interests may be sold,
transferred ° or assigned only together twitbt and as an incident of
the sale, lease, transfer of assignment ai" the` portions of
Property to which they relate, including any transfer or assignment
KKR41079
DRAFT 09-29-94
-38-
=suer
.oreclosur a {< Ana
..w�...:.:.a«s<xnxJ:.x::.:::ii;:w.•.::::::<i:::::i::ifi:«;.:.:.;;x.:.a..rs. �, ,a ,;cx«a
33s�gIliflen� �_ T,.r'S�T.�;ir �,� tic��i+E;:•:�:4k;�.sf•w�:Y..rw:::<�s.rw::.�. ,:.,. "_....
•z::x:e>xaxxx.:��:,,:..«:<«xxanx:::ro:<rc,e«x.:.,::,•::,a,a�a, .•'�:<a.:,x:x.:,�.,�.a:J ,..«sa:a?
transfer
l t.Y.X �tsS
.«a..a...._...:..........s<J,x;«.,:«.:«.Y:<.ti,:<-:;;«..;:«ex:•.;<.,Y�,:.,:.Yx«aaraaaaw,.,,,,,..,,,,...,..•:;:... „ a
.0
:. :.....:....,'iiiiCxciviiiaii :i::: '. ] \::i•:<,Z,N".x< v......: ..., J ::J•. .. Y ...Y.,�, . .
�: .� - ..: •<: is
...x v
appurtenant a#if the --who
r
a s: a ed: •
a
(for purposes of notices hereunder of µttepurchasez, transferee : Q
assignee, and fife purchases", 'tramsfarse ar essic, nee shallprovide
.. .>..,•.. as
a '`written notice to City specifying whether cr not the purchaser;'
transferee or assignee has assumed any of Developer's obliiatiOns
hereunder and, 'if sot which such obligations have been assume;
Notwithstanding: the foregoing, Developer ,shall not transfez or
assign any of its executory obligations or affirmative covenants
with respect to the development of the Propert
without having
first received the written consent of the City, which consent may
be given or withheld by the City in the exercise of its reasonable
discretion; provided, however, that such consent shall not be
required in the event of a delegation or assignment to an
Affiliate. An "Affiliate" shall mean a partnership or mint
venture in which any of The Madison Realty .Partnership, `"'Limited
Partnership ("Madison"), John P. Boorn ("Boorn") or James S.
Bennett ("Bennett") is a general partner, or any other entity which
is controlled by Madison, Boorn or Bennett, singly or in any
combination
KKR41079
DRAFT 09-29-94
-39-
Y 55Y.M.:05,5,,,i5:•555X. ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, wim---Yb12P#'
.5, ,, •••"
11"-le:77-7.7talesnen :
41,4•14. 414,4•0 ••• • 4441444WAXAVIA4M
•••:6 xlms•••••••••,,,iii
A4.1.4.W.:44444,444444444444,444444, e ••••, •••••••••••• .44.4M,YHAN
• ee::::X.:41.• V • • • •
.7...444444,4 •••••
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•
7.,
e ,, . ,,,,,,,,,,,,,,,, • --a)* other collateral Colliteiet'}.:iiiiiiiiii144:::.:iiiCCet;te4Cgogp#troco4iiiiii14..
any security previddSly:proVided!..bDeep00.0;Epto ityl:titi:ee04rek#e
transferee's Pert oriiitiCe7of::;.Tits obligations withT respect t1e
portion of the PrOjeCt7beiiig:-acciiiiredpy:.**tattosfiievr.:xtliii
understood and agreed that until all of the conditions set forth in
this and the immediately preceding paragraph haVe:::.beeri'perfOrmed:
Developer shall not be relieved of and frOM:,..,.:::liabilityor
responsibility for compliance with the obligations arising under
this Agreement with respect to the portion of the -Projectbeihg
transferred and any transferee or assignee.shallnot receive the
rights and interests of Developer but such transferee or'aesignee
shall be bound by Developer's obligations.
Following any such sale, transferorassighMent of any of
the rights and ^,interests of Developer Under this Agreement," " the
exercise, use -arid 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. Without limiting
KKR41079
DRAFT 09-29-94
-40-
:�70i':Yrrrti::..n.�iil%%:�by!t•Yj?:Mkv7•Y AyYF%%ii1HAO�+YOv}•/vb:rtiiW YAYr�J.•li
,WAX•SH, 1:r wnYFi:.NN.w:•.t(••Jhytv.: .;{,,•:;..,.t+WOW,•n. ;w:."'ff. •t{.: F.•.w{nYYu:N.Y.:•Y,,,,,x):{{:.:..w.r::....,;x.:{{+�M:x.
hts ��s�ests
•
.w�
gam^*'+.:. :: •...
:•::•.. ttau!ii�oeete�•xKu:•ktuaa:;tnXad•Yiia+esk8't•KtdmYs1c:!ubK{Swcacbtk:.\A.�ia<i&:;ae::kteiiYa:tta.. <. u v:2::is?kat+�yai�til3b'oukiC'av'atoc:
:_ rizSG •: c:.n..,rnuuay:.'rx>iiiYY:6:SRa•'�'t•`�.GA.�:ix ii: ,Y::::.
liteiiint.
•
�Ofti.,i�:::•:'{A:rti.%t{{C.M.9i:.::•i:::•rY �rii:::.:..k.. w..1tn .t%.h'{?tnY .q:(:k4{•
�,;{..o,c Kati'raaxm,utY:iiCdiFcklinoat5aiCAxiQi,
X+MY... ....5 trx+)Y."^:6:MYYY:.H�:•ix•'�. A•K•Yr:.rr \ .r. y: ...'•'^:;"S: n?# 'Y.?VtlO;l -.
4NP'A '•"-y' A\YU
•yKuax••• •,t S. �
•riYAM'"""'"°�'> ::.. ig;�,.� .eeme�� ±�`: .;2:`•!�%ram :.':�> : t�@s
:faYYri�.::i3'i::iiiif:Ysi9.:��n::.»:'i;:irr•,::;:i::iiiii:n'::.,,.;;:NY..•fi �:':.:: iYrY•`:k:;:.:;T' R•rik',isb:arrl:ta...Y7.•b'+.rkUbu.•.u.a�.`YDV'6^'Y�'�';a','nJN�'+J7�::siirk• ♦v.,.:..,.
+axt-
Yt•.Yx +�nerx t s�
_4on%yy.
arassXgn
rn-,:.a�D�r.Ir�sarr�•::-:..•r.»..�rwn:::... .., .... .. '� g ........ ......,,w..
{t>:v:. , w. .. .. •iiF%:i:w [k20::t:.v :..v. vnv v ...w:..: w v
• •ac. cmdanca xs gr$eme «
- ..... ..2.M{A.- ,:tN.n k. .. ,. Yx•.i,:.ry v .. v .v ...w';-.
fatwthstd�ng Lthear+�go
t>; ans f erect
:•.. i,Yk.}. ::nv ::.... ... .... ... : ,kr ... yr:
tvwv:•:A. t v.
accordance wi a provis
duty• or obligation tQ perform Deveic
i>
ueveopsx
zall:.haue
<:excacti tory obligations or
other affirmative covenants of neveloper under greemen ,.
unless such :executory obligations ar affirmative covenan s <are
expressly assumed in connection with the conveyance of such rights
and interests. In the event -.such executory obligations ox
w
affirmative covenants are so assumed by any transferee or assignee,
no subsequent failure by such transferee or assignee ,(or .any
subsequent transferee or assignee) to perform;ar comply with such.
executory obligations or affirmative covenants shall be deemed an
Event of Default by the Developer hereunder and, siiailarly,"'no
failure of the Developer to perform or comply with'. its executory
obligations or affirmative covenants which have not been so
transferred or assigned shall constitute an event of, default
hereunder with: respect to such transferee or assignee (or
subsequent transferee or assignee).
Prior to the earlier of:..:,
(i) The termination of this Agreement or tile
expiration, of its Term; or
KKR41079
DRAFT 09-29-94
-41-
The Developer shall not assign or attempt to assign this Agreement
or anyright herein with respect to the Property "'�"°
9 P P Y �`�t.:pz'��
alUEth
M`uf^S"
•
delegate or transfer any obligations or duties of the Dcvcloper
hereunder with reopeet to the oon truetien of the Minimum
approval may bc given or withheld is thc City'-3 3olc and ab3oluto
discrction.
Notwith3tanding thc foregoing, howcvcr, thc City'o
approval 3ha11 not bc required for any a3signmcnt, delegation or
tran3fcr to any Dcvcloper Affiliate. For purpo3c3-of thi3 section
11.1, thc tcrm "Dcvcloper Affiliate" Shall mean cithcr of the
following:
1. Any gcncral partner of Dcvcloper or any shareholder
or 3harcholdcr3 of any gcncral partnc
directly or indirectly, 50% or more of thc common Stock of Such
gcncral partner ("Dcvcloper r\rtncr".
2. Any gcncral or limited partncr3hip in which
Dcvcloper or a Dcvcloper r\rtncr, individually or collcctivcly,
i3/arc thc managing gcncral partner of such partncr3hip.
KKR41079
DRAFT 09-29-94
-42-
Provided that all conditions of this Section 11.2 have
been satisfied, the City shall take all actions reasonably
necessary to accomplish the sale, transfer, assignment, conveyance
or delegation of such rights and interests and such duties and
obligations as permitted pursuant to this Section 11.2, including,
but not limited to, the execution by the City of such instruments
or documents as the Developer may reasonably request to evidence
the release of the Developer from any such duties or obligations;
provided, however, that the City shall not be required to so act if
it reasonably believes that to do so would materially impair its
rights or obligations under this Agreement.
11.3 Rcleacc of Developer. Notwith3tanding the gale
levee, traces -fey' er ae3-i-gmncnt by Developer of portion3 or all of
the Property, or it3 rights or intcrc3t3 undcr thi3 Agrccmcnt,
it3 oblilation3 and affirmative covenants undcr thi3 Agreement
obligation 3 and affirmative covcnant3.
11.43 Termination of Agreement with Respect to
Property. Notwithstanding any provisions of this Agreement to the
contrary, the burdens of this Agreement shall terminate as to any
portion of the Property with respect to which a final subdivision
map or parbel'"`itag"conforming to the terms and provisions of this
Agreement has been recorded, and thereupon, and without the
execution or recordation of any further document or instrument,
such portion of the Property shall be released from and shall no
KKR41079
DRAFT 09-29-94
-43-
longer be subject to or burdened by the provisions of this
Agreement; provided, however, that (i) the foregoing shall not be
construed to release Developer from any then unperformed
obligations under this Agreement with respect to such portion of
the Property, and (ii) the benefits of this Agreement shall
continue to run as to such portion of the Property until such time
as such portion of the Property is developed and the benefits of
this Agreement with respect thereto are fully utilized by the
construction of a building or buildings or other improvements
thereon.
Upon receipt of written request therefor and subject
to Dev='_oper-Ls tl6ie the compliance with the provisions of Sections
11.2 and hereof, hereof , the City shall promptly provide to the
Developer, or any transferee or assignee of an interest of the
Developer in the Property, a written statement confirming the
release of any portion of the Property from the burdens of this
Agreement or the termination of this Agreement with respect to such
portion of the Property, which statement shall be in form
appropriate for recording in the official records of Riverside
County and shall impart constructive record notice of such release
or termination.
l8,211.4 Covenants Run with Land. Subject to the
foregoing provisions of this Section 11 and Section 10:
(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
KKR41079
DRAFT 09-29-94
-44-
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 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.
Notwithstanding any of the foregoing or anything to the
contrary contained in this Agreement, any transferee or assignee or
holder of any Mortgage which acquires any right or interest in or
with respect to the Property or any portion thereof shall take and
hold such rights and interests subject to this Agreement and shall
not have been deemed to have assumed any obligations or duties of
the Developer hereunder except to the extent that any' such
transferees or assignees or holder of any such Mortgage have
expressly assumed in writing any of the duties or obligations of
the Developer hereunder.
KKR41079
DRAFT 09-29-94
-45-
11. potices. 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:
The Madison Realty Partnership, Limited
Partnership
7 West 7th Street
Cincinnati, Ohio 45202
Attention: Mr. John P. Boorn
with a copy to:
The Madison Realty Partnership, Limited
Partnership
7 West 7th Street
Cincinnati, Ohio 45202
Attention: Mr. James S. Bennett
with a copy to:
Pircher, Nichols & Meeks
1999 Avenue of the Stars, Suite 2600
Los Angeles, California 90067-6077
Attention: PN&M Notices (SAH)
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.
12. Miscellaneous.
KKRL1079
DRAFT 09-29-94
-46-
12.1 Relationshib 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.
12.2 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
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.
12.3 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
KKR41079
DRAFT 09-29-94
-47-
limited to and for the purposes herein expressed for the
development of the Project as private property. Except for any
portion of the Property which has been conveyed to the City by
Developer as provided in this Agreement or the DDIA, Developer
shall have the right to prevent or prohibit the use of the
Property, or the Project,. or any portion thereof, including common
areas and buildings and improvements located thereon, by any person
for any purpose inimical to the development or operation of the
Project as contemplated by this Agreement. Any portion of the
Property conveyed to the City by Developer as provided herein shall
be held and used by the City only for the purposes contemplated
herein or otherwise provided in such conveyance, and City shall not
take or permit to be taken (if within the power or authority of the
City) any action or activity with respect to such portion of the
Property that would deprive the Developer of the material benefits
of this Agreement or would materially and unreasonably interfere
with the development of the Project as contemplated by this
Agreement.
12.4 Severabilitv. 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.
KKR4T079
DRAFT 09-29-94
-48-
12.5 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.
12.6 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, any prior correspondence, memoranda, agreements,
warranties or representations are superseded in total by this
Agreement and Exhibits hereto.
12.7 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.
12.8 Signature Pages. For convenience, the signatures of
the parties to this Agreement may be executed and acknowledged on
KKR41079
DRAFT 09-29-94
-49-
separate pages which, when attached to this Agreement, shall
constitute this as one complete Agreement.
12.9 Time. Time is of the essence of this Agreement and
of each and every term and condition hereof.
12.10 [Reserved] [Developer requests inclusion of
attorneys fees provision.]
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date and year first above -written.
DEVELOPER;
KKR41079
DRAFT 09-29-94
THE MADISON REALTY PARTNERSHIP,
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: The Boorn Bennett Limited
Partnership,
an Ohio limited
partnership, its general
partner
By: Boorn, Inc.,
an Ohio corporation,
its general partner
By:
John P. Boorn
President
CITY:
THE CITY OF PALM DESERT,
CALIFORNIA, a municipal
corporation organized and
existing under the laws of the
State of California
By:
Mayor
Attest:
-50-
City Clerk,
STATE OF CALIFORNIA)
ss.
COUNTY OF
On before me, the
undersigned, a Notary Public in and for said state, personally
appeared
personally
known to me (or proved to me on the basis ofsatisfactory 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.
KKR41079
DRAFT 09-29-94
WITNESS my hand and official seal.
o.
-51-
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
)
) ss.
On before me,
the undersigned, a Notary Public in and for said state,
personally appeared
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.
KKR41079
DRAFT 09-29-94
WITNESS my hand and official seal.
-52-
EXHIBIT "A"
PALM DESERT PROJECT
DEVELOPMENT STANDARDS FOR THE PROJECT
1. Purpose of Development Standards
II.
IV.
V.
VI.
KKR41079
DRAFT 09-29-94
Project Introduction
A. Overview and Location
B. Project Statistical Summary
General Notes and Conditions
General Development of Project
A. Proposed Uses
B. Building Square Footage Limits and
Maximum Heights
C. Density and Intensity of Use
D. Open Space
Planning Guidelines
A. Purpose
B. Site Planning and Circulation
C. Grading/Drainage/Street Standards
D. Landscaping, Walls and Lighting
E. Design Concept of Buildings/Parking/
Loading Area
F. Utility Services and Structures
G. Project and Business Identification
Plan Review Requirements
A. Purpose
B. Development/Precise Plan Review
C. Development/Precise Plan Contents
-1-
KKR41079
DRAFT 09-29-94
I. Purpose of Development Standards
The purpose of the development standards for the
Project is to:
1. Provide the Developer with a planning and
development process which will result in a
Project that is consistent with the City's
General Plan and in furtherance of the goals of
the City as set forth in the Agreement.
2. Provide supplemental criteria for the use,
design, density, circulation and development of
the Project (as described in II.B hereof) that
will result in an aesthetically pleasing,
environmentally harmonious and commercially
viable product that expands the goods and
services presently available to the community.
3. Ensure that development occurs in an orderly
fashion through long-range planning.
4. Encourage development that is operationally
functional to both the building operator and
the consumer.
5. Provide for the development of the Project in a
manner which is consistent with the terms and
provisions of the Agreement and the Existing
Land Use Ordinances.
II. Project Introduction
A. Overview
The Project presents an opportunity to master
plan one of the remaining large vacant
properties within the area of the City subject
to the City's Commercial Core Area Specific
Plan. The development of the Project in
accordance with the provisions of the Agreement
and these development standards furthers the
development objectives of the City in an
orderly manner.
The development of the Project in accordance
with the provisions of the Agreement and the
development standards provides a number of
benefits:
-2-
KKR41079
DRAFT 09-29-94
1. It maximizes the potential for high
quality economic development of the
Commercial Core Area.
2. It addresses specific policy
recommendations of the Palm Desert
Commercial Core Area Specific Plan.
3. It provides for the completion of all
necessary signalization and pedestrian
amenities for El Paseo, Shadow Mountain
Drive, Larkspur Lane and San Pablo Avenue
in the vicinity of the Project, as
provided for in Exhibit "D".
B. Project Statistical Summary_
Common Name: Sun Lodge Colony
Location: SWC El Paseo and Larkspur Lane
Acreage: 10.3 acres
Site Topography: generally flat with slight
slope up to the south.
III. General Notes
A. Purpose
This section III is included to: (i) provide
certain definitions for use with respect to
this Exhibit "A"; (ii) to describe the
relationship of this Exhibit "A" to the
Existing Land Use Ordinances and the Building
Ordinances; and (iii) provide other
miscellaneous provisions necessary to
effectuate the purposes and intent of the
Agreement.
B. General Notes
1. Terms contained in this Exhibit "A" shall
have the same meaning as defined in the
Agreement unless otherwise defined herein.
2. Except as otherwise provided in this
Exhibit "A" and in the Agreement, the
development of the Project shall be in
accordance with, and the development of
the Project during the Term shall be
-3-
KKR41079
DRAFT 09-29-94
governed by, the Existing Land Use
Ordinances.
3. Except as otherwise provided in this
Exhibit "A" and in the Agreement, all
construction of improvements upon the
Property shall conform to the building and
construction standards established by the
Building Ordinances.
4. Whenever the provisions of this Exhibit
"A" conflict with the provisions of the
Existing Land use Ordinances or the
Building Ordinances the provisions of this
Exhibit "A" shall be deemed to control to
the extent necessary to effectuate the
purposes and intent of the Agreement.
5. The maximum aggregate allowable building
square footage for the Project shall be
167,000 s.f. of gross leasable area;
provided, however, that the Project may
include up to an additional 30,000 square
feet of gross leasable area if a lease or
other occupancy agreement is entered into
with any of the following for the
construction of a retail store in the
Project: (a) Saks Fifth Avenue, (b) one
(1) or more retailers which are similar to
Saks Fifth Avenue (in which event City
shall have the right to decide, in its
reasonable discretion, whether or not each
such retailer proposed by Developer is
similar to Saks Fifth Avenue), or (c) one
(1) or more retailers which are not
similar to Saks Fifth Avenue (in which
event City shall have the right to approve
each such retailer in its sole
discretion). The failure of City to
respond to a request for approval of a
retailer pursuant to clause (b) or (c) of
the immediately preceding sentence within
twenty (20) days after Developer's request
shall be deemed approval of such retailer.
The City covenants and agrees that the
amendments to the Development Agreement
set forth in this paragraph 5 relating to
the permitted size of the Project shall
not result in a reduction of the maximum
aggregate allowable building square
footage provided in the Development
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DRAFT 09-29-94
Agreement for the properties 'affected
thereby (or otherwise obtained from the
City by the developers of such properties
in the course of their development).
6. Development of the Property may
accommodate all uses permitted in the C-1
zone as identified in the Existing Land
Use Ordinances.
7. Parking requirements for layouts and sizes
for the Project shall be based upon the
requirements for general retail and office
use as described in the Existing Land Use
Ordinances. Parking requirements for
ratios shall be based upon the less
stringent of the following: (a) the
requirements for general retail and office
use as described in the Existing Land Use
Ordinances, or (b) four spaces per 1,000
square feet of gross leasable area.
Notwithstanding anything to the contrary
set forth in paragraph IIIB6 or this
paragraph IIIB7 or in the Existing Land
Use Ordinances, up to 25% of the total
gross leasable area may be developed as
restaurant space with no additional
parking requirements.
8. Changes in the location or configuration
of the Buildable Zones within the Project,
as designated on the Land Use Development
Plan as attached hereto may occur as
specific site plans are developed. Any
such changes will be subject to the prior
approval of the Community Development
Director of the City. [Note: A revised
Land Use Development Plan will be proposed
for attachment to this Amendment.]
9. Tentative Tract Map may be filed and
approved subject to consistency with the
Land Use Development Plan.,
10. Except as otherwise provided herein, all
approvals of the City, the Community
Development Director, or the Planning
Commission of the City required as
provided herein shall be based upon the
criteria and standards for such approval
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DRAFT 09-29-94
set forth in the Existing Land Use
Ordinances and the Building Ordinances.
11. Prior to the issuance of any building
permit with respect to the Project, a
precise development plan for the
development of the Project shall be
submitted to the Planning Commission and
shall be approved by the Planning
Commission if such precise development
plan is consistent with the Land Use
Development Plan and complies with the
provisions of the Agreement.
12. The Developer shall be permitted to
establish a Project office on the Property
upon execution of the Agreement by the
City.
13. Sizing of all backbone utility facilities
shall be predicated on the maximum density
proposed for the Project and shall not be
required to be oversized to accommodate
uses other than with respect to the
Project.
14. All improvements required as Exactions
pursuant to the attached Exhibit "D" shall
be constructed by Developer as and when
such improvements are necessary with
respect to Project development.
15. The terms indicated on the Land Use
Development Plan shall have the following
meanings:
A. Building Zone: The approximate area
in which the buildings within the
Project will be located.
B. Parking/Landscape Zone: The
approximate area in which the
majority of parking stalls within the
Project will be located.
IV. General Development of the Project
A. Proposed Uses
Any or all uses permitted in the C-1 zone of
the Existing Land Use Ordinances.
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DRAFT 09-29-94
B. Maximum Building Sauare Footage Limits and
Maximum Heights
Maximum S.F. 167,500 (subject to increase as
set forth in paragraph IIIB5).
!eight Limit
Per applicable Existing Land Use Ordinances
C. Density and Intensity of Use
The Developer shall be entitled to develop the
Property to the maximum building site coverage
percentage provided in the applicable Existing
Land Use Ordinance as it pertains to the
Property. The Land use Development Plan
depicts the eligible building areas within the
Property. Buildings shall be reasonably
distributed within the Property to permit ease
of vehicular and pedestrian access, circulation
and egress and for proper operational building
service requirements.
V. planning Guidelines
A. Purpose
Except as otherwise provided in the Agreement
or this Exhibit "A", the development of the
Property shall be subject to and controlled by
the design and development guidelines
established by the Existing Land Use Ordinances
and the Building Ordinances. The following
guidelines are intended to be supplemental to
those established by the Existing Land Use
Ordinances and the Building Ordinances and to
the extent they are inconsistent or in conflict
with the guidelines established by the Existing
Land Use Ordinances and the Building
Ordinances, these guidelines shall be deemed
controlling. Subject to the foregoing, all
development plans for the Property shall comply
with the following guidelines.
B. Site Planning and Circulation
Access to the Property is to be provided from
the adjacent streets as depicted on the Land
Use Development Plan. Interior vehicular
circulation shall be patterned to permit ease
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DRAFT D9-29-94
of ingress and egress as well as the
distribution of buildings in relation to
parking areas to allow for the dispersion of
vehicles and pedestrians throughout the
Property. The Project shallhave clearly
defined pedestrian routes into and throughout
the Property in order to minimize potential
points of conflict between pedestrians and
vehicles. Individual entries shall occur at
the designated locations on the Land Use
Development Plan. Building setbacks shall. be
as depicted on the Land Use Development Plan.
C. Grading/Drainage
Grading design shall reinforce the
architectural and landscape designs in the
following ways:
A. Assist in screening parking, loading and
service areas.
B. Reduce the perception of height and mass
of large buildings.
C. Provide a reasonable transition from the
street to the Property.
The applicant may obtain permits for rough
grading after approval of conceptual grading
plans by the Director of Public Works and the
Director of Community Development.
Grading shall be permitted outside of an area
of immediate development if consistent with the
conceptual grading plan.
Drainage of surface parking areas and roof
areas shall terminate at an underground storm
drain system in the public streets. Points of
connection will be provided for the Property.
D. Landscaping
Landscape materials shall enhance the major
architectural design elements through the
coordinated use of indigenous and introduced
plant species, lighting, massing, etc.
Landscaping shall be in accordance with a
Landscape Concept Plan as provided in the
Existing Land Use Ordinances. The Landscape
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KKR41079
DRAFT 09-29-94
concept Plan will be submitted as part of the
precise plan at the time development of the
Property is proposed.
The landscape framework will be compatible with
the desert environment.
E. pesian Concept of Buildings/Parkins/Loadinq
Areas
The architecture of the Project shall possess
an underlying compatibility among the various
buildings through the use of similar materials,
finishes, colors and amenities while allowing a
degree of flexibility for expression and
identity. A11 building designs shall be
aesthetically agreeable with the desert
environment.
The Property shall provide 200 public parking
spaces in addition to the number of spaces
required by paragraph IIIB7.
Loading docks, service delivery areas, where
provided, are required to be screened,
recessed, and/or enclosed so as not to be
visible from adjacent streets and properties.
Loading, service and delivery areas shall not
encroach into any setback areas.
F. Utilities and Utility Structures
Public services and utilities will be provided
by the following public/private agencies unless
otherwise approved by the Director of Community
Development:
a. Water - Coachella Valley Water District
b. Sewer - Coachella Valley Water District
c. Flood Control - Coachella Valley Water
District
d. Electricity - Southern California Edison
Company
e. Natural Gas - Southern California Gas
Company
f. Telephone - General Telephone Company
g. Schools - Palm Springs and Desert Sands
Unified School District
h. Public Parks - Coachella Recreation and
Parks District
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KKR41079
DRAFT 09-29-94
i. Fire Protection - Riverside County Sheriff
Department
j. Police Protection - Riverside County
Sheriff Department
k. Solid Waste Disposal - Riverside County
Road Department and Palm Desert Disposal
Services
1. Television - Coachella Valley Television
A11 utilities shall be installed and maintained
underground. Utility design shall not place
excessive burdens upon offsite systems.
Temporary overhead power and telephone
facilities are permitted during construction
only.
Any device for transmission or reception of
communication signals shall be screened.
Rooftop devices shall not extend above the
building's highest architectural element or be
visible within a horizontal line of sight.
Ground -mounted devices shall be screened from
view from adjacent streets and property.
Outdoor trash areas shall be visually screened
by a 6-ft.-high (minimum), non combustible
enclosure constructed of the same materials and
finishes as the adjacent building. Enclosures
shall be designed and located so as not to be
highly visible from adjacent streets and
property.
G. proiect and Business Identification
Project entry statements composed of signage,
landscaping, architectural features, or a
combination of same, will be depicted on the
landscape concept plan.
VI. plan Review Reauirements
A. Purpose
This section is established to ensure that the
overall purpose and intent of the Project is
satisfied and implemented in an orderly manner.
B. Development/Precise Plan Review
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KKR41079
DRAFT 09-29-94
When the actual development of the Property is
proposed, an application for approval of a
precise plan shall be filed with and such
precise plan shall be approved by the Planning
Commission if it is consistent with the Land
Use Development Plan and complies with the
provisions of the Agreement and this Exhibit
"A".
C. Precise Plan Contents
Subject to the provisions of the Agreement and
this Exhibit A the precise plan shall include
the requirements of Section 25.73.011 of the
Existing Land Use Ordinances.
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•
EXHIBIT "B"
THE PROPERTY
THE FOLLOWING REAL PROPERTY IN THE CITY OF PALM DESERT, COUNTY
OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
The following legal description encompasses the entirety of
the Property on the Land Use Development Plan.
Parcels 1 and 2 of Parcel Map 4655, in the City of Palm
Desert, County of Riverside, State of California, as shown by
Map on file in Book 7, Page 42 of Parcel Maps, in the Office
of the County Recorder of said County.
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DRAFT 09-29-94
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phase
EXHIBIT "C"
PHASING SCHEDULE
Entitlement/Maximum
Development
Activity
I. Execution of Agreement
Agreement authorized,
executed and delivered
to Developer by City of
Palm Desert
KKR41079
DRAFT 09-29-94
Rate
Developer may obtain all
necessary approvals,
consents, permits, or other
entitlement for the
construction and occupancy
of not less than 100,000
square feet of gross floor
area within the Property and
not more than that permitted
by paragraph IIIB5 of
Exhibit A.
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EXHIBIT "D"
EXACTIONS
As provided in the Agreement, the following
constitutes those Exactions which may be imposed by the City
with respect to the development of the Project. The following
Exactions include all of the mitigation measures with respect
to the Project for which the Developer will be responsible for
satisfying and which were identified in the Environmental
Impact Report (the "EIR") pertaining to the Project and
certified as complete by the City on November 16, 1989.
Unless otherwise provided for in this Exhibit "D", all
Exactions shall be constructed or provided by the Developer in
conformance with the requirements of the Existing Land Use
Ordinances. Those Exactions identified herein, while intended
to be specific in nature, will remain subject to specific
Project review as provided in Exhibit "A". The City and the
Developer will in good faith attempt to agree as to any
modifications of the following Exactions which are requested
by the City as a result of such specific Project review.
KKR41079
DRAFT 09-29-94
1. Street Improvements
A11 street improvements are subject to the
review and approval of construction documents
pertaining thereto by the City of Palm Desert
Department of Public Works. All of the
following street improvements are to be located
adjacent to the Project.
A. South side of E1 Paseo between San Pablo
Avenue and Larkspur Lane -- completion of
all pedestrian amenities including street
lighting, landscaping, bus stations,
sidewalks, benches, and decorations.
B. West side of Larkspur Lane between El
Paseo and Shadow Mountain Drive --
completion of all pedestrian amenities
including street lighting, landscaping,
and sidewalks.
C. East side of San Pablo Avenue between El
Paseo and Shadow Mountain Drive --
completion of all pedestrian amenities
including street lighting, landscaping,
and sidewalks.
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KKR41079
DRAFT 09-29-94
D. North side of Shadow Mountain Drive
between Larkspur Lane and San Pablo
Avenue -- completion of all pedestrian
amenities including street lighting,
landscaping, and sidewalks.
2. Traffic Signals
All of the following traffic signal
improvements and signal modifications are to be
located adjacent to the Project. As used in
this Paragraph 2, the "related improvements"
shall mean those improvements identified by the
City of Palm Desert Department of Public Works
as necessary to implement the traffic signal
modifications to which they relate.
A. New traffic signal and related
improvements at the intersection of El
Paseo and Larkspur Lane, all as required
by the EIR.
B. Traffic signal modifications and related
improvements at El Paseo and San Pablo
Avenue, all as required by the EIR.
3. Storm Drains
A. Construction of all necessary drainage
systems with respect to the Project and
the facilities necessary to connect such
systems to the existing underground storm
drain systems in the public streets, all
as required by the EIR.
4. Transit
A. Construction of bus turnouts and shelters
for the Project, all as required by the
EIR.
B. Provide a Transportation Demand Management
Study as required by the EIR.
5. public Parking
In conjunction with the construction of the
private commercial/retail facilities to be
located on the Property (if constructed), the
Developer shall provide 200 additional parking
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KKR41079
DRAFT 09-29-94
spaces above project parking requirements for
the Property as required by paragraph IIIB7 of
Exhibit A for use as public parking spaces (as
such term is defined in Exhibit "E"). Prior to
the commencement of construction of the
commercial/retail facilities to be located on
the Property, the Developer and the Agency
shall have in good faith negotiated and entered
into the Parking Management Agreement described
in Section of the Disposition And
Development Agreement. It is the intent of the
Developer and the City that, subject to the
provisions of the Disposition and Development
Agreement pertaining to the payment by the
Agency to the Developer of the Purchase Price
for the Parking Rights, the Developer will pay
all costs of constructing such public parking
spaces.
6. 'lousing
The Developer will pay a housing mitigation fee
for the Project at the time of building permit
issuance with respect thereto. The proceeds of
such fees shall be used by the City, along with
other revenues of the City, to address the very
low, low and moderate income housing needs
generated by the development of the Project
consistent with the housing programs identified
or to be identified in the housing element of
the City's General Plan. Such fee shall be in
the amount of $1.00 per square foot of building
floor space for mixed commercial/retail
development and $.50 per square foot of
building floor space for professional office
development. This fee shall be payable by the
Developer only if a similar fee equal to or
greater than this fee will be required by the
City with respect to all other commercial
development within the City. In no event and
under no circumstances will such fee exceed
$197,500.
7. Fees
A. T.U.M.F. Fees
B. Signalization Fee
C. Drainage Fees
D. Art in Public Places Fees, which fees
shall be one half of one percent (.5%) of
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KKR41079
DRAFT 09-29-94
the total building valuation
(valuationwithon
for building permit purposes),
maximum limit.
E. The usual and customary fees of general
application charged for processing of
applications for permits and approvals
pertaining to the development of the
Project.
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KKR41079
DRAFT 09-29-94
EXHIBIT "E"
THE PUBLIC FACILITIES
The City and the Agency desire to provide or to cause
to be provided the following public improvements to service
property within and outside of the Project.
In conjunction with the construction of the private
commercial/retail facilities to be located on the
Property (if constructed), the Developer shall
provide a minimum of 200 public parking spaces on
the Property. For the purposes of this Exhibit "E",
the term "public parking spaces" shall mean those
parking spaces which: (i) are designated by the
Developer as available for parking by the general
public; (ii) are not designated by the Developer for
preferential or exclusive use by patrons or
employees of the private commercial/retail
facilities to be constructed on the Property; and
(iii) may be used by the general public for parking
during normal business hours without the payment of
fees or charges for such parking imposed by the
Developer (unless there are charges for parking in
parking areas owned, operated or regulated by the
City, in which event Developer may charge for
parking amounts not in excess of the charges imposed
in such parking areas). Prior to the commencement
of construction of the commercial/retail facilities
to be located on the Property, the Developer and the
Agency shall have in good faith negotiated and
entered into the Parking Management Agreement
described in Section of the Disposition And
Development Agreement. Nothing set forth in this
Agreement or this Exhibit "E" shall be construed to
prevent the Parking Management Plan from imposing
reasonable parking regulations and restrictions upon
the public parking spaces, including but not limited
to regulations and restrictions related to valet
parking, parking validations and employee parking
and restrictions or prohibitions upon the use of the
public parking spaces by office parkers.• '
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