Loading...
HomeMy WebLinkAboutRes No 1797PLANNING COMMISSION RESOLUTION NO. 1797 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF A DEVELOPMENT AGREEMENT FOR 270 +/- ACRES GENERALLY LOCATED SOUTH OF INTERSTATE 10, EAST AND WEST OF COOK STREET. CASE NO. DA 97-2 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 18th day of March, 1997, hold a duly noticed public hearing to consider the request of DAVID FREEDMAN & CO., INC. (WONDER PALMS) for approval of DA 97-2; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, said Planning Commission did find the following facts and reasons to justify recommending approval of said development agreement: 1. The proposed development agreement is consistent with the intent and purpose of the development plan and the 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 Planning Commission in this case. 2. That approval of DA 97-2 Exhibit "A" as revised is hereby recommended to City Council for approval. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 1st, day of April, 1997, by the following vote, to wit: AYES: BEATY, CAMPBELL, FERN • DEZ NOES: NONE ABSENT: JONATHAN ABSTAIN: FERGUSON GUSON, Chairperson ATTEST: 1ThJIOO PHILIP DRELL, lecretary Palm Desert Planning Commission PLANNING COMMISSION RESOLUTION NO. 1797 EXHIBIT A (Space above for Recorder's use Only) s DEVELOPMENT AGREEMENT Between THE CITYOF PALM DESERT, CALIFORNIA and DAVIDFREEDMAN & CO., INC. (Wonder Palms) Dated: , 1997 PLANNING COMMISSION RESOLUTION NO. 1797 Ire TABLE OF CONTENTS PAGE 1. Definitions 4 1.1 Defined Terms 4 1.3 Building Ordinances 4 1.4 City Council 4 1.5 Effective Date 4 1.6 Enacting Ordinance 4 1.7 Existing Land Use Ordinances 4 1.8 Land Use Ordinances 4 1.9 Mortgage 5 1.10 Project 5 1.11 Property 5 2. Term; Amendment 5 2.1 Term 5 2.2 Amendment 5 3. General Development of the Project 6 3.1 Project 6 3.2 Project Timing; Construction Entitlement 7 3.3 Building Permits and Other Approvals and Permits 8 3.4 Procedures and Limitations 8 3.5 Effect of Agreement 9 3.6 Operating Memoranda 10 4. Specific Criteria Applicable to Development of the Project 11 4.1 Applicable Ordinances 11 4.2 Amendment to Applicable Ordinances 12 4.3 Easements; Abandonments 12 5. Mid -Valley Storm Channel Dedication. 13 5.1 Dedication 13 5.2 Appraisal Procedures 14 5.3 Fees and Expenses 15 5.4 Experience Requirement 16 6. Art In Public Places 16 7. Periodic Review of Compliance 17 8. Permitted Delays; Supersedure by Subsequent Laws . 17 8.1 Permitted Delays 17 8.2 Supersedure of Subsequent Laws or Judicial Action 18 9. Events of Default; Remedies; Termination 19 9.1 Events of Default 19 9.2 Remedies 20 9.3 Waiver; Remedies Cumulative 20 9.4 Effect of Termination 20 9.5 Third Party Actions 21 DE096717 3/27/97 PLANNING COMMISSION RESOLUTION NO. 1797 10. Encumbrances on Property 22 10.1 Discretion to Encumber 22 10.2 Mortgage Protection 22 10.3 Mortgagee Not Obligated 23 10.4 Estoppel Certificates 23 11. Transfers and Assignments; Effect of Agreement on Title 24 11.1 Rights and Interests Appurtenant 24 11.2 Covenants Run with Land 24 12. Notices 25 13. Indemnification 26 13.1 Developer's Obligation 26 13.2 City's Obligation. 26 13.3 Environmental Assurances 27 14. Miscellaneous 27 14.1 Relationship of Parties 27 14.2 Consents 28 14.3 Not a Public Dedication 28 14.4 Severability 28 14.5 Exhibits 29 14.6 Entire Agreement 29 14.7 Governing Law; Construction of Agreement 29 14.8 Signature Pages 30 14.9 Time 30 14.10 Prevailing Party's Attorney's Fees and Costs 30 DE096717 3/27/97 PLANNING COMMISSION RESOLUTION NO. 1797 Vow DEVELOPMENT AGREEMENT (Wonder Palms) THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of this day of , 1997, by and between the City of Palm Desert, California, a municipal corporation organized and existing under the laws of the State of California (the "City), and David Freedman & Co., Inc., a California corporation ("Developer"), with reference to the following facts, understandings and intentions of the parties: RECITALS A. These Recitals refer to and utilize certain capitalized terms which are defined in this Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. Government Code Sections 65684 through 65869.5 inclusive (the "Development Agreement Legislation") authorize the City to 4 enter into development agreements in connection with the development of real property within its jurisdiction. On August 11, 1983, the City enacted by Ordinance No. 341, as amended on December 7, 1989 by Ordinance No. 589 (collectively, the "Development Agreement Ordinance") , procedures and requirements for the consideration of development agreements thereunder pursuant to the Development Agreement Legislation. C. Developer is the owner of a legal or equitable interest in the Property and is entitled to have filed the application for and to enter into this Agreement. The Project consists of the future development of the Property. The Property is located at an 0E096717 3/27/97 PLANNING COMMISSION RESOLUTION NO. 1797 important entry point to the City and the coordinated development of the Project pursuant to this Agreement represents an important and mutually beneficial economic development and land usage planning opportunity for the City and Developer. D. The City has determined that the development of the Project as contemplated by this Agreement is consistent with and in furtherance of the development goals, policies, general land uses and development programs of the City as set forth in the City's General Plan and is consistent with the existing Planned Community Development (PCD) Overlay Zone adopted on , 1997 by Ordinance No. , affecting the Property. E. City has further determined that entry into this Agreement will further the goals and objectives of the City's land use planning policies by, among other things, encouraging investment, providing precise and supplemental criteria for the uses, design, circulation and development of the Property, including flexibility in land use options which may be altered in order to respond to future changes in the surrounding areas, eliminating uncertainty in planning for, and securing orderly processing and development of, the Project. The benefits conferred on the City by Developer herein will (i) insure consistent, comprehensive planning which will result in aesthetically pleasing, environmentally harmonious, an economically viable development within the City; (ii) provide for the creation of a high -quality, aesthetically pleasing entry statement for the City; (iii) provide for the construction of stormwater system improvements vital to the City; and (iv) further the development objectives of the City in an DE096717 3/27/97 -2- PLANNING COMMISSION RESOLUTION NO. 1797 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 Development Plan attached to this Agreement as Exhibit "A", and at a rate of development of its choosing, subject to the terms and conditions contained in this Agreement. F. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. G. This Agreement has undergone extensive review by the City's staff, the Planning Commission and the City Council. H. In order to effectuate the foregoing, the parties desire s to enter into this Agreement. NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, and in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: DE096717 3/27/97 -3- PLANNING COMMISSION RESOLUTION NO. 1797 1. Definitions. 1.1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. 1.2 Agreement. This Development Agreement. 1.3 Building Ordinances. Those building standards, of general and uniform application throughout the City and not imposed solely with respect to the Property, in effect from time to time that govern building and construction standards within the City, including, without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire codes. 1.4 City Council. The legislative body of the City of Palm Desert. 1.5 Effective Date. The date on which the Enacting Ordinance becomes effective. 1.6 Enacting Ordinance. Ordinance , enacted by the City Council on , 1997, approving this Agreement. 1.7 Existing Land Use Ordinances. The Land Use Ordinances in effect as of the Effective Date. 1.8 Land Use Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of the City, governing the development of the Property, including but not limited to, the permitted uses of land, the density and intensity of use of land, Exactions, and the timing of development, all as applicable to the development of the Property. Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shall include the City's General Plan, the City's zoning DE096717 3/27/97 -4- PLANNING COMMISSION RESOLUTION NO. 1797 ordinance and the City's subdivision code, but shall exclude the Building Ordinances. 1.9 Mortgage. A mortgage, deed of trust, sale and leaseback arrangement in which all or a part of the Property, or an interest in it, is sold and leased back concurrently, or other transactions in which all or a part of the Property, or an interest in it, is pledged as security, contracted in good aith and for fair value. 1.10 Project. The mixed -use commercial, industrial and residential development and associated amenities, and on -site and off -site improvements, as permitted under and described in the Development Plan (Exhibit "A"), 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. The real property and any improvements thereon which is described in Exhibit "B" to this Agreement. 4, 2. Term; Amendment. 2.1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate on the fifteen (15) year anniversary date of the Effective Date, unless sooner terminated or extended as hereinafter provided. 2.2 Amendment. The parties to this Agreement at their sole discretion and by their mutual written consent may from time to time amend the provisions and terms of this Agreement and the Exhibits hereto. Any amendment to this Agreement or the Exhibits hereto as provided herein shall be effected only upon compliance with the procedures for amendment, if any, required by the DE096717 3/27/97 -5- PLANNING COMMISSION RESOLUTION NO. 1797 Development Agreement Legislation and the Development Agreement Ordinance. The City shall, after any such amendment takes effect, cause an appropriate notice of such amendment to be recorded in the official records of the County of Riverside. 3. General Development of the Proiect. 3.1 Project. (a) The Project is defined and described in the Development Plan for Wonder Palms Commercial Center attached to this Agreement as Exhibit "A", which specifies for the purpose of this Agreement all of the following aspects of the Project: (i) proposed land uses of the Property, including eight separate planning areas ("Planning Areas") with unique development characteristics; (ii) the maximum (and probable) density and intensity of development of the Property; (iii) certain parking requirements for the various Planning Areas; and (iv) sizing requirements for the construction of certain utility facilities; (v) certain requirements relating to access and traffic circulation within the Property; (vi) certain requirements relating to art in public places on the Property; (vii) certain design guidelines relating to the construction of on -site and off -site improvements; (viii) procedures for development within the Planning Areas. (b) Developer shall have the vested right to develop the Project in accordance with, and development of the Project during the Term shall be governed by, the Development Plan and, to the extent not inconsistent with or modified by the Development Plan, the Existing Land Use Ordinances. Developer's right to develop the Property in accordance with this Section 3.1 DE096717 3/27/97 -6- PLANNING COMMISSION RESOLUTION NO. 1797 shall be without regard to future ordinances, resolutions, rules, regulations and policies of the City or referenda of the voters of the City, including, without limitation, those with respect to moratoriums for utility service, other than ordinances, resolutions, rules, regulations and policies of the City which limit or condition the rate, timing or sequencing of development of the Property and which are required solely as a result of then existing shortages of utility service capacity or facilities. 3.2 Project Timing; Construction Entitlement. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which parts of the Project will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. Therefore, the parties hereto acknowledge and expressly agree that Developer is hereby granted by the City the 4 vested and guaranteed right to develop the Project in such manner and at such rate and at such times as Developer deems appropriate within the exercise of its sole subjective business judgment. Therefore, City expressly agrees that Developer shall be entitled to apply for precise plans, subdivision maps, building permits, occupancy certificates and other land use and development entitlements for its use at any time provided that such application is made in accordance with the Development Plan and this Agreement. Notwithstanding any provisions to the contrary in this Agreement or the Existing Land use Ordinances, Developer shall have the right, but not the obligation, to obtain from the City, all DE096717 3/27/97 -7- PLANNING COMMISSION RESOLUTION NO. 1797 necessary approvals, consents, permits, or other entitlements for the construction of not less than the maximum number of square feet of gross floor area or dwelling units of any permitted use under the Development Plan specified with respect to any designated Planning Area set forth in the Development Plan. 3.3 Building Permits and Other Approvals and Permits. Subject to (a) Developer's compliance with this Agreement, the Development Plan, the Existing Land Use Ordinances and the Building Ordinances, and (b) payment of the usual and customary fees and charges of general application charged for the processing of such applications, permits and certificates and for any utility connection, or similar fees and charges of general application, the City shall process and issue to Developer promptly upon application therefor all necessary use permits, building permits, occupancy certificates, and other required permits for the construction, use and occupancy of the Project, or any portion thereof, as applied for, including connection to all utility systems under the City's jurisdiction and control (to the extent that such connections are physically feasible and that such utility systems are capable of adequately servicing the Project). 3.4 Procedures and Standards. The standards for granting or withholding permits or approvals required hereunder in connection with the development of the Project shall be governed as provided herein by the standards, terms and conditions of this Agreement and the Development Plan, and to the extent not inconsistent therewith, the Existing Land Use Ordinances, but the procedures for processing applications for such permits or DE096717 3/27/97 -8- PLANNING COMMISSION RESOLUTION NO. 1797 approvals (including the usual and customary fees of general application charged for such processing) shall be governed by such ordinances and regulations as may then be applicable and which are consistent with the Development Plan. 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 forth in the Development Plan and the Existing Land use Ordinances, and to grant the City and the residents of the City certain benefits which they otherwise would not receive. This Agreement shall be binding upon the City and its successors in accordance with and subject to its terms and conditions notwithstanding any subsequent action of the City, whether taken by ordinance or resolution of the City Council, by 4 referenda, initiative, or otherwise. The parties acknowledge and agree that by entering into this Agreement and relying thereupon, the Developer has obtained, subject to the terms and conditions of this Agreement, a vested right to proceed with its development of the Project in accordance with the proposed uses of the Property, the density and intensity of development of the Property and the requirements and guidelines for the construction or provision of on -site and off -site improvements as set forth in the Development Plan and the Existing Land Use Ordinances, and the timing provisions of Section 3.2, and the City has entered into this Agreement in order to secure the public benefits conferred upon it DE096717 3/27/97 -9- PLANNING COMMISSION RESOLUTION NO. 1797 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. 3.6 Operating Memoranda. Developer and City acknowledge that the provisions of this 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 this Agreement in order to effectuate the purpose of this Agreement and the intent of the parties with respect thereto. If and when, from time to time, the parties find that such changes or additional provisions are necessary or appropriate, and subject to the provisions of the next succeeding sentence, they shall effectuate such changes or provide for such additional provisions through operating memoranda s to be approved in good faith by the parties, which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further changed or supplemented from time to time as necessary, with further good faith approval of Developer and City. Upon receipt by the City of an opinion of the City Attorney to the effect that the subject matter of such operating memoranda does not require the amendment of this Agreement in the manner provided in Section 65868 of the California Government Code, then no such operating memoranda shall require prior notice or hearing, or constitute an amendment to this Agreement; and in the case of the City, such operating memoranda may be approved and DE096717 3/27/97 -10- PLANNING COMMISSION RESOLUTION NO. 1797 ger executed by its Community Development Director or City Manager without further action of the City Council. Failure of the parties to enter into any such operating memoranda shall not affect or abrogate any of the rights, duties or obligations of the parties hereunder or the provisions of this Agreement. 4. Specific Criteria Applicable to Development of the Project. 4.1 Applicable Ordinances. Except as set forth in the Development Plan and subject to the provisions of Section 4.2 below, the Existing Land Use Ordinances shall govern the development of the Property hereunder and the granting or withholding of all permits or approvals required to develop the Property; provided, however, that (a) Developer shall be subject to all changes in processing, inspection and plan -check fees and charges imposed by City in connection with the processing of applications for development and construction upon the Property so long as such fees and charges are of general application, are not imposed solely with respect to the Property, and do not constitute an Exaction, and (b) Developer shall abide by the Building Ordinances in effect at the time of such applications. 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 for the Property or any part thereof than those in effect as of the Effective Date, Developer shall have the right to notify the City in writing of its desire to be subject to all or any such new standards for the remaining term of this Agreement. If City agrees, DE096717 3/27/97 -11- PLANNING COMMISSION RESOLUTION NO. 1797 by resolution of the City Council or by action of a City official whom the City Council may designate, such new standards shall become applicable to the Property or portions thereof. Should City thereafter amend such new standards, upon the effective date of such amendment, the original new standards shall continue to apply to the Property as provided above, but Developer may 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 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, take such action and execute such documents as may be necessary to abandon existing easements and relocate them, as necessary or appropriate in connection with the development of the Project, all at the cost and expense of the Developer. In addition, to the extent that temporary or permanent easements on property adjacent or in close proximity to the Property will be required in order for Developer to develop all or portions of the Project, the City shall cooperate with Developer in efforts to obtain or secure any such required easements. 5. Mid -Valley Storm Channel Dedication. DE096717 3/27/97 -12- PLANNING COMMISSION RESOLUTION NO. 1797 low 5.1 Dedication. In order to facilitate development of the proposed Mid -Valley Channel, Developer shall dedicate to the City a right-of-way easement for the Mid -Valley Channel, in a form acceptable to the City and Developer, over a portion of the Property consisting of approximately 11 acres near the northerly boundary of the Property, which area is more particularly described on Exhibit "C" to this Agreement (the "Mid -Valley Channel Area"). The easement over the Mid -Valley Channel Area shall be dedicated on or before issuance by the City of the first building permit for any portion of the Project. The City acknowledges that Developer, through significant on -site retention of Project -generated storm waters and the dedication of the right-of-way necessary for the future construction of the proposed Mid -Valley Channel, has facilitated the future construction of the Mid -Valley Channel in this area. In consideration for the dedication of Mid -Valley Channel Area as described herein, Developer shall receive a credit 4. against required area drainage fees equal to the fair market value of the Mid -Valley Channel Area land. Prior to such dedication, Developer and the City shall attempt to agree upon the fair market value of the land to be dedicated to the City pursuant to this Section 5.1. In the event Developer and the City cannot agree on the fair market value of the land to be dedicated for the Mid - Valley Channel prior to such dedication, then within fifteen (15) days after conveyance of the right-of-way easement as described above the then present fair market value of the land dedicated shall, at the request of the Developer, be resolved by the appraisal procedures set forth in Section 5.2 below. DE096717 3/27/97 -13- PLANNING COMMISSION RESOLUTION NO. 1797 5.2 Appraisal Procedures. In the event the parties cannot reach an agreement upon land value as described above, the Developer shall, in a written notice to the City, state that it elects to have the fair market value of the dedicated land determined by the appraisal procedures set forth herein, and shall specify the name of its appraiser. Within ten days of receipt of such notice from Developer, the City shall notify the' Developer of the name of its appraiser. Upon the appointment of the two appraisers as herein provided, said two appraisers shall be sworn to faithfully and fully determine the value question at issue. The determination to be made by the appraiser shall be: "What was the fair market value of the land dedicated to the City as of the date of conveyance taking into account all uses and restrictions then affecting such land." Such arbitration shall be conducted in accordance with the rules of the American Arbitration Association for commercial arbitration. The two appraisers shall make their respective determinations in writing and shall give notice to all the parties. If there is a variance of less than 109; (such l00 variance determined by dividing the amount of the variance by the larger of the two appraisals) in the fair market values determined by the two appraisers, the average of the values so determined shall be controlling and shall be binding upon the City and the Developer. If there is a variance of more than 109c in the fair market values determined by the two appraisers, said appraisers shall forthwith and within ten days after both the said appraisers have made their determination, appoint in writing a third appraiser and give written notice of such appointment to each of the City and DE096717 3/27/97 -14- PLANNING COMMISSION RESOLUTION NO. 1797 err the Developer. If in the event the two appraisers shall fail to appoint or agree upon such third appraiser within said ten day period, a third appraiser shall be selected by the City and Developer if they so agree upon such third appraiser within a further period of ten days. If any appraiser shall not be appointed or agreed upon within the time herein provided, then the Developer or the City may apply to the appropriAte court in Riverside County, California, for appointment of such appraiser. Said appraiser shall be sworn faithfully and fairly to determine, pursuant to the procedures set forth above, the value question at issue. The third appraiser's determination of value shall be controlling unless it is (i) higher than either of the determinations of value of the original appraisals, in which case such previous higher determination shall be controlling and binding upon the City and Developer, or (ii) lower than the determinations of value of the two original appraisals, in which case such previous low determination of value will be controlling and binding upon the City and Developer; 5.3 Fees and Expenses. Each party shall pay the fees and expenses of the appraiser it appoints, and the fees and expenses of the third appraiser and any general expenses incurred by the appraisers in connection with the appraisals shall be borne equally. 5.4 Experience Requirement. Any appraiser appointed hereunder shall have no less than five years experience in the appraisal of real property of the type to be dedicated herein and DE096717 3/27/97 -15- PLANNING COMMISSION RESOLUTION NO. 1797 shall hold the professional designation of M.A.I. or its equivalent. 6. Art In Public Places. The City and Developer recognize that the Property is located at a major access point into the City from Interstate 10. The City and Developer desire to cooperate with each other to secure the introduction and integration of public art into the Project for the purpose of enhancing the image of the City and the Project. for the promotion of the City City shall work together to In order to secure such public art and the Project, Developer and the develop one or more artworks to be located on or adjacent to Cook Street major public and/or Gerald Ford Drive south of Interstate 10. The City and Developer agree to outline a process to establish a master plan for public art, which plan shall identify sites and opportunities for art, funding amounts and sources, procedures for art selection, and methods for art project management in connection with the Project. In the event that a large art statement is selected as the appropriate installation, the City may consider advancing the funds necessary to secure and install said art piece with the City being reimbursed pursuant to in lieu art fees as development occurs and as further described below. Developer shall, at the request of the City, provide such easements upon the Property as may be reasonably required for the installation and maintenance of such public art. The location of such easements shall be mutually approved by the City and Developer. In addition to providing such easements as may be reasonably required for the installation and maintenance of such public art, Developer shall pay to the City in lieu art fees at the -16- DE096717 3/27/97 PLANNING COMMISSION RESOLUTION NO. 1797 time of and in connection with the development of the Property, or portions thereof, in accordance with the fee levels and other payment and procedural requirements of Chapter 4.10 of the Municipal Code of the City lawfully imposed at the time of development of the Property, or portions thereof. 7. Periodic Review of Compliance. In accordance with Govt. Code Section 65865.1, the City Council shall review this Agreement at least each calendar year during the term of this Agreement. At such periodic reviews, Developer must demonstrate its good faith compliance with the terms of this Agreement. Developer agrees to furnish such evidence of good faith compliance as the City, and after reasonable exercise of its discretion and after reasonable notice to Developer, may require. 8. Permitted Delays; Supersedure by Subsequent Laws. 8.1 Permitted Delays. In addition to any other provisions of this Agreement with respect to delay, Developer and City shall be excused from performance of their obligations hereunder during any period of delay caused by acts of mother nature, civil commotion, riots, strikes, picketing, or other labor disputes, shortage of materials or supplies, or damage to or prevention of work in process by reason of fire, floods, earthquake, or other casualties, litigation, acts or neglect of the other party, any referendum elections held on the Enacting Ordinance, or the Land Use Ordinances, or any other ordinance effecting the Project or the approvals, permits or other entitlements related thereto, or restrictions imposed or mandated by governmental or quasi -governmental entities, enactment of DE096717 3/27/97 -17- PLANNING COMMISSION RESOLUTION NO. 1797 conflicting provisions of the Constitution or laws of the United States of America or the State of California or any codes, statutes, regulations or executive mandates promulgated thereunder (collectively, "Laws"), orders of courts of competent jurisdiction, or any other cause similar or dissimilar to the foregoing beyond the reasonable control of City or Developer, as applicable. Each party shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. The time of performance of such obligations shall be extended by the period of any delay hereunder. 8.2 Supersedure of Subsequent Laws or Judicial Action. The provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to 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 8 this Agreement. Promptly after enactment of any such new Law, or issuance of such Decision, the parties shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. In addition, Developer and City shall have the right to challenge the new Law or the Decision preventing compliance with the terms of this Agreement. In the event that such challenge is successful, this Agreement shall remain unmodified and in full force and effect, except that the Term shall be extended, in accordance with DE096717 3/27/97 -18- PLANNING COMMISSION RESOLUTION NO. 1797 Section 7.1 above, for a period of time equal to the length of time the challenge was pursued. 9. Events of Default; Remedies; Termination. 9.1 Events of Default. Subject to any extensions of time by mutual consent in writing, and subject to the provisions of Section 7.1 above regarding permitted delays, the failure of either party to perform any material term or provision of this Agreement shall constitute an event of default hereunder ("Event of Default") if such defaulting party does not cure such failure within ninety (90) days following receipt of written notice of default from the other party; provided, however, that if the nature of the default is such that it cannot be cured within such ninety (90) day period, the commencement of the cure within such ninety (90) day period and the diligent prosecution to completion of the cure shall be deemed to be a cure within such period. Any notice of default given hereunder shall specify in detail the nature of the alleged Event s of Default and the manner, if any, in which such Event of Default may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the party charged therewith shall not be considered to be in default for purposes of termination of this Agreement, institution of legal proceedings with respect thereto, or issuance of any permit, map, certificate of occupancy, approval or entitlement with respect to the Project. 9.2 Remedies. Upon the occurrence of an Event of Default, the nondefaulting party shall have such rights and remedies against the defaulting party as it may have at law or in DE096717 3/27/97 -19- PLANNING COMMISSION RESOLUTION NO. 1797 equity, including, but not limited to, the right to damages and the right to terminate this Agreement or seek mandamus, specific performance, injunctive or declaratory relief. Notwithstanding the foregoing and except as otherwise provided in Section 8.4 hereof, if either Developer or City elects to terminate this Agreement as a result of the occurrence of an Event of Default, such proceeding of termination shall constitute such party's exclusive and sole remedy, and with respect to such election City and Developer hereby waive, release and relinquish any other right or remedy otherwise available under this Agreement or at law or equity. 9.3 Waiver; Remedies Cumulative. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party shall not constitute waiver of such party's right to demand strict compliance by such other party in the future. All waivers must be in writing to be effective or binding upon the waiving party, and no waiver shall be implied from 4. any omission by a party to take any action with respect to such Event of Default. No express written waiver of any Event of Default shall affect any other Event of Default, or cover any other period of time specified in such express waiver. 9.4 Effect of Termination. Termination of this Agreement by one party due to the other party's default, or as a result of the exercise of the right of termination provided to the Developer under Section 8.2 hereof, shall not affect any right or duty emanating from any approvals, permits, certificates or other entitlements with respect to the Property or the Project which were issued, approved or provided by the City prior to the date of DE096717 3/27/97 -20- PLANNING COMMISSION RESOLUTION NO. 1797 termination of this Agreement. If City terminates this Agreement because of Developer's default, then City shall retain any and all benefits, including money, land or improvements conveyed to or received by the City prior to the date of termination of this Agreement, subject to any reimbursement obligations of the City. If Developer terminates this Agreement because of City's default, or as a result of the exercise of the right of termination provided to the Developer under Section 8.2 hereof, then Developer shall be entitled to all of the benefits arising out of, or approvals, permits, certificates or other entitlements on account of, any Exactions paid, given or dedicated to, or received by, City prior to the date of termination of this Agreement. Except as otherwise provided in this Section 8.4, all of the rights, duties and obligations of the parties hereunder shall otherwise cease as of the date of the termination of this Agreement. If this Agreement is terminated pursuant to any provision hereof, then the City shall, after such action takes effect, cause an appropriate notice of such action to be recorded in the official records of the County of Riverside. The cost of such recordation shall be borne by the party causing such action. 9.5 Third Party Actions. Any court action or proceeding brought by any third party to challenge this Agreement or any permit or approval required from City or any other governmental entity for development or construction of all or any portion of the Project, whether or not Developer is a party defendant to or real party defendant in interest in such action or proceeding, shall constitute a permitted delay under Section 7.1. DE096717 3/27/97 -21- PLANNING COMMISSION RESOLUTION NO. 1797 10. Encumbrances on Property. 10.1 Discretion to Encumber. The parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering the Property or any portion thereof or any improvements thereon with any mortgage, deed of trust or other security device ("Mortgage") securing financing with respect to the Property. The City acknowledges that the lenders providing such financing may require certain modifications to this Agreement, and the City agrees upon request, from time -to -time, to meet with Developer and/or representatives of such lenders to negotiate in good faith any such request for modification. City further agrees that it will not unreasonably withhold its consent to any such requested modification. 10.2 Mortgage Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Site or any portion thereof by a Mortgagee (whether pursuant to a Mortgage, foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise) shall be subject to all of the terms and conditions of this Agreement. 10.3 Mortgagee Not Obligated. Notwithstanding the provisions of Section 9.2, no Mortgagee will have any obligation or duty under this Agreement to perform the obligations of Developer DE096717 3/27/97 -22- PLANNING COMMISSION RESOLUTION NO. 1797 or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that to the extent that any covenant to be performed by Developer is a condition to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's performance hereunder. 10.4 Estoppel Certificates. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended or modified, identifying such amendments or modifications, and (iii) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and .return such certificate within thirty (30) days following the receipt thereof. City acknowledges that a certificate hereunder may be relied upon by transferees, assignees and lessees of the Developer and the holders of any Mortgage. 11. Transfers and Assignments; Effect of Agreement on Title. 11.1 Rights and Interests Appurtenant. The rights and interests conveyed as provided herein to Developer benefit and are appurtenant to the Property. Developer has the right to sell, assign and transfer any and all of its rights and interests hereunder and to delegate and assign any and all of its duties and DE096717 3/27/97 -23- PLANNING COMMISSION RESOLUTION NO. 1797 obligations hereunder. Such rights and interests hereunder may not be sold, transferred or assigned and such duties and obligations may not be delegated or assigned except in compliance with the following conditions: (i) Said rights and interests may be sold, transferred or assigned only together with and as an incident of the sale, lease, transfer or assignment of the pol`tions of the Property to which they relate, including any transfer or assignment pursuant to any foreclosure of a Mortgage or a deed in lieu of such foreclosure. Following any such sale, transfer or assignment of any of the rights and interests of Developer under this Agreement, the exercise, use and enjoyment thereof shall continue to be subject to the terms of this Agreement to the same extent as if the purchaser, transferee or assignee were Developer hereunder. 11.2 Covenants Run with Land. (i) All of the provisions, agreements, rights, i powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees, lessees, and all other persons acquiring any rights or interests in the Property, or any portion thereof, whether by operation of laws or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns; DE096717 3/27/97 -24- PLANNING COMMISSION RESOLUTION NO. 1797 (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 sudcessive 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. 12. Notices. Any notice to either party shall be in writing and given by delivering the same to such party in person or by sending the same by registered or certified mail, return receipt requested, with postage prepaid, to the following addresses: If to City: If to City: City Clerk of the City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 If to Developer: David Freedman & Co., Inc. 1345 North Palm Canyon Drive Palm Springs, CA 92262 Attention: Lionel Steinberg 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. DE096717 3/27/97 -25- PLANNING COMMISSION RESOLUTION NO. 1797 13. Indemnification. 13.1 Developer's Obligation. Developer will defend, indemnify and hold the City and its elected officials, officers and employee free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any obligation which arises from the development of the Property including, without limitation, obligations for the payment of money for material and labor; (ii) any failure on the part of Developer to take any action which he is required to take as provided in this Agreement; (iii) any action taken by Developer which he prohibited from taking as provided in this Agreement and (iv) any claim which results from any willful or negligent act or omission of Developer. 13.2 City's Obligation. The City will defend, indemnify and hold Developer and its trustees, beneficiaries, shareholders, directors, officers and employees free and harmless from any and all loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death an worker's compensation claims) which results from (i) any failure on the part of the City to take any action which it is required to take as provided in this Agreement, (ii) any action taken by the City which it is prohibited from taking as provided in this Agreement and (iii) any claim which results from any willful or negligent act or omission of the City. 13.3 Environmental Assurances. Developer shall indemnify and hold the City, its officers, agents and employees free and DE096717 3/27/97 -26- PLANNING COMMISSION RESOLUTION NO. 1797 harmless from any liability deriving from the City's execution or performance of this Agreement, based or asserted, upon any act or omission of Developer, its officers, agents, employees, contractors, subcontractors and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to hazardous or toxic materials, industrial hygiene, or environmental conditions created by Developer or its officers, agents or employees, contractors, subcontractors and independent contractors after the Effective Date on, under which the Property, including, but not limited to soil and groundwater conditions, and Developer shall defend, at its expense, including attorneys fees, the City its officers, agents and employees in any action based or asserted upon any such alleged act or omission. The City may in its discretion participate in the defense of any such action. The provisions of this Section 13.3 shall survive the termination or expiration of this Agreement. 14. Miscellaneous. 14.1 Relationship of Parties. It is understood that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contractor. It is further understood that none of the terms or provisions of this Agreement are intended to or shall be deemed to create a partnership, joint venture or joint enterprise between the parties hereto. 14.2 Consents. Unless otherwise herein provided, whenever approval, consent, acceptance or satisfaction (collectively, a "consent") is required of a party pursuant to this DE096717 3/27/97 -27- PLANNING COMMISSION RESOLUTION NO. 1797 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. 14.3 Not a Public Dedication. Except as otherwise expressly provided herein, nothing herein contained shall be deemed to be a gift or dedication of the Property, or of the Project or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. 14.4 Severability. If any term, provision covenant or condition of this Agreement shall be determined invalid, void or unenforceable by judgment or court order, the remainder of this Agreement shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the relevant circumstances or would frustrate the purposes of this Agreement. DE096717 3/27/97 - 2 8 - PLANNING COMMISSION RESOLUTION NO. 1797 imp Contents, 14.5 Exhibits. The Exhibits listed in the Table of to which reference is made herein, are deemed incorporated into this Agreement in their entirety by reference thereto. 14.6 Entire Agreement. This written Agreement and the Exhibits hereto contain all the representations and the entire agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, any prior correspondence, memoranda, agreements, warranties or representations are superseded in total by this Agreement and Exhibits hereto. 14.7 Governing Law; Construction of Agreement. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties hereunder. The captions preceding the text of each Section, subsection and the Table of Contents hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. 14.8 Signature Pages. For convenience, the signatures of the parties of this Agreement may be executed and acknowledged on DE096717 3/27/97 -29- PLANNING COMMISSION RESOLUTION NO. 1797 separate pages which, when attached to this Agreement, shall constitute this as one complete Agreement. 14.9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 14.10 Prevailing Party's Attorney's Fees and Costs. If any party to this Agreement shall fail to perform any of its obligations hereunder, or if a dispute arises with respect to the meaning or interpretation of any provision hereof or the performance of the obligations of any party hereto, the defaulting party or the party not prevailing in such dispute, as the case may be, shall promptly pay any and all costs and expenses (including without limitation, all court costs and reasonable attorneys' fees and expenses) incurred by the other party with respect to such to such dispute or in enforcing or establishing its rights hereunder. Notwithstanding the foregoing, City shall not be required to pay any costs or expenses (including without limitation, reasonable attorneys' fees and expenses) which Developer may incur in respect of any hearing held pursuant to Section 7 hereof. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above -written. DEVELOPER: DAVID FREEDMAN & CO., INC. By: CITY: President DE096717 3/27/97 -30- PLANNING COMMISSION RESOLUTION NO. 1797 DE096717 3/27/97 CITY OF PALM DESERT, CALIFORNIA, a municipal corporation organized and existing under the laws of the State of California By: Attest: -31- Mayor City Clerk PLANNING COMMISSION RESOLUTION NO. 1 797 STATE OF CALIFORNIA ss COUNTY OF ) On , 1997, before me, , 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. r. DE096717 3/27/97 WITNESS my hand and official seal. Notary Public -32-