HomeMy WebLinkAboutRes No 2156PLANNING COMMISSION RESOLUTION NO. 2156
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY
COUNCIL APPROVAL OF A DEVELOPMENT AGREEMENT
RELATING TO THE PROJECT KNOWN AS "THE CREST" LOCATED
ON PROPERTY IN SECTION 25 T5S R5E AND A PORTION OF
SECTION 31 T5S R6E.
CASE NO. DA 02-01
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the
1st day of October, 2002, hold a duly noticed public hearing to consider the request of
DESTINATION DEVELOPMENT CORP. for a recommendation of approval of DA 02-01 to the
City Council; 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 to City Council approval
of said request:
1. The proposed development agreement is consistent with the provisions of
Municipal Code Chapter 25.37 Development Agreements.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm
Desert, California, as follows:
1. That the above recitations are true and correct and constitute the findings of the
Commission in this case.
2. That approval of Development Agreement DA 02-01 (Exhibit A as amended) 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 October, 2002, by the following vote, to wit:
AYES: CAMPBELL, LOPEZ, TSCHOPP, FINERTY
NOES: NONE
ABSENT: NONE
ABSTAIN: JONATHAN_,61(1/0
CINDY FINERTY; Chairperson
ATTEST:
;1-kitAILQ)
PHILIP DRELL, S cretary
Palm Desert Planning Commission
RECORDING REQUESTED BY
AND
WHEN RECORDED MAIL TO:
City of Palm Desert
Attn: Carlos Ortega
73-510 Fred Waring Drive
Palm Desert, CA 92260
(Above Space for Recorder's Use Only)
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this
day of 2002, by and between the CITY OF PALM DESERT, a California
municipal corporation ("City"), and DESTINATION DEVELOPMENT CORPORATION, a
California corporation ("Developer"), pursuant to the authority of Section 65864 et seq. of the
Government Code of the State of California:
RECITALS
A. To strengthen the public planning process, encourage private participation in
comprehensive planning and reduce the economic risk of development, the Legislature of the
State of California adopted Sections 65864 et seq. of the Government Code authorizing any city,
county or city and county to enter into a development agreement with an applicant for a
development project, establishing certain development rights in the property which is the subject
of the development project application_ City has adopted an ordinance and regulations
establishing procedures and requirements for the approval of development agreements.
B. City and Developer desire to enter into this Agreement in order to facilitate the
development of certain real property ("Site") located either within, or within the Sphere of
Influence of, the City of Palm Desert, more fully described in Exhibit A attached hereto and
shown on the map attached as Exhibit B. The real property will be developed pursuant hereto for
(i) a residential subdivision; and (ii) a private membership golf club ("Club") with golf and other
recreational amenities more particularly described herein (collectively, the "Project").
C. This Agreement will be binding on the Site upon the recordation in the Official
Records of Riverside County, California of this Agreement. Approximately 63± acres of the Site
is located within the City, and approximately 640± acres of the Site is located within the City's
Sphere of Influence in the unincorporated area of Riverside County. Developer desires to secure
entitlements for the Site from the City and to annex into the City the portion of the Site which is
within the City's Sphere of Influence.
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D. Developer has either an ownership interest in the Site or the right to acquire the
Site, and therefore has a legal or beneficial interest in all of the Site.
E. Developer and City have determined that the Site is best suited to development as
a residential subdivision project and as the Club.
F. City has given due notice of its intention to adopt this proposed Agreement, has
conducted public hearings thereon pursuant to Government Code Section 65867 and City's
ordinance and regulations relating to development agreements, and has found that the provisions
of this Agreement and its purposes are consistent with the objectives, policies, general land uses
and programs specified in City's General Plan as amended concurrently with adoption of this
Agreement.
G. Development of the Site, which is vacant, requires the construction of substantial
public improvements, many of which will benefit both the project and surrounding areas. The
development risks and uncertainties associated with the long term nature of the Project, including
the cost of these public improvements, could discourage and deter Developer from making the
long term commitments necessary to develop the Project. Therefore, the parties desire to enter
into this Agreement in order to reduce or eliminate such uncertainties.
H. Developer's work in connection with the Project shall include developing the
improvements referred to herein as the "Developer Improvements". The "Developer
Improvements" include the rough grading, roads and streets, utilities, finished pad grading,
drainage gutters, storm water and flood control facilities, water system facilities and all other
improvements deemed necessary by Developer or required by City to prepare the Site for
development as provided herein. As permitted by law, City and Developer desire to establish
design and development standards and permitted uses for the Project and to identify the scope of
improvements to be required for, and as a result of, the Project.
I. City, by entering into contractual agreements such as this, acknowledges that the
obligations of City shall survive beyond the terms of the present City Council members, that
such action will serve to bind the City and future Councils to the obligations herein undertaken,
and that this Agreement shall limit the future exercise of certain governmental and police
powers of City. By approving this Agreement, City Council has elected to exercise certain
governmental powers at the time of entering into this Agreement rather than deferring its actions
to some undetermined future date. The terms and conditions of this Agreement have undergone
extensive review by the City and its Council and have been found to be fair, just and reasonable.
City has concluded that the approval and development of the Project as provided herein will
serve the best interests of City's citizens and that the public health, safety and welfare will be
best served by entering into this Agreement. City acknowledges that Developer would not
consider or engage in the development of the Project without the assurances of the development
entitlements provided for herein. By entering into this Agreement, City desires to vest in
Developer certain development entitlements as specified in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
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are hereby acknowledged, City and Developer (each herein sometimes called a "Party" and
jointly the "Parties") do hereby agree as follows:
ARTICLE 1
GENERAL PROVISIONS
A. [Sec. 100] Property Description.
The Site is that property described in Exhibit A. The Developer represents that it has a
legal or equitable interest in the Site. This Agreement will affect title to and impose obligations
and liabilities on the Site only upon the recordation of this Agreement in the Official Records of
Riverside County, California. The Developer represents that from and after the date on which
this Agreement is recorded against the Site, all persons who thereafter acquire a legal or
equitable interest in the Site (excepting owners or claimants in easements) will acquire such
interests subject to this Agreement.
B. [Sec. 101] Term.
(1) Commencement and Length of Term. The term of this Agreement shall
commence upon the Effective Date as defined herein and shall extend for a period of fifteen (15)
years after the Effective Date. The "Effective Date" is the date which is two (2) business days
after the later to occur of (i) the date which is thirty (30) days after the date of final adoption by
the City of the ordinance approving this Agreement or (ii) the date on which Developer or an
affiliated entity acquires fee title to the Site. Thereafter, unless said term is modified or extended
by circumstances set forth in this Agreement or by mutual consent of the Parties, subject to the
provisions of Section 1000 hereof, upon expiration of said term this Agreement shall be deemed
terminated and of no further force and effect and the Parties shall, upon request of the City,
execute an appropriate certificate of termination which shall be recorded in the official records of
Riverside County, subject, however, to the provisions of Section 407 hereof.
(2) Govemment Code Section 66542.6(a). Pursuant to Section 66452.6(a) of
the California Government Code, the time for the approval by the City of any tentative, final or
parcel map prepared with respect to the Site shall be extended for a period equal to the period
this Agreement remains in effect. Such time for approval, and the term of this Agreement, shall
be extended and remain in effect for an additional period of time equal to the period of any
injunction or moratorium affecting the issuance of grading, building or any. other permits or
entitlements which are necessary to the development of the Project or any structure to be
constructed within the Site.
C. [Sec. 102] Sale or Assignment; Binding Covenants.
(1) Covenants Run With Land. It is specifically understood and agreed by
and between the Parties hereto that this Agreement shall not be severable from Developer's
interest in the Site and the provisions of this Agreement shall constitute covenants which shall
run with the Site or any portion thereof upon the recordation of this Agreement, and that
thereafter the burdens and benefits hereof shall bind and inure to all successors in interest to the
Parties.
J
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(2) Right to Assign. After completion of the Club, Developer shall have the
right to freely sell, assign, exchange or otherwise transfer its interest under this Agreement as
part of a contemporaneous and related sale, assignment or transfer of its interest in the Site, or
any portion thereof, without the consent of the City. In addition, Developer shall have the right
at any time to freely sell, assign, exchange or otherwise transfer its interest under this Agreement
to any entity which is affiliated with or any of whose constituent entities are affiliated with
Developer. Any sale, assignment, exchange or transfer of Developer's interest under this
Agreement to an unaffiliated (in any way) party prior to completion of the Club shall only be
effective upon the consent of City; provided, however, that City must give its consent unless City
reasonably concludes that the proposed transferee does not have the capability to complete the
Club. Developer shall notify the City of any such sale, assignment, exchange or transfer by
providing written notice thereof to the City Manager in the manner provided in Section 800
hereof.
(3) Release Upon Transfer. Upon the sale, assignment, exchange or transfer
of Developer's rights and interests in the Site or any portion thereof, Developer shall be released
from its obligations under this Agreement with respect to the Site, or the portion thereof so
transferred, arising subsequent to the effective date of such transfer. Any such transferee shall be
obligated and bound by the terms and conditions of this Agreement and shall be the beneficiary
thereof and a party thereto, only with respect to the Site, or such portions thereof so transferred
to such transferee. Any such transferee shall observe and fully perform all of the duties and
obligations of the Developer contained in this Agreement, as such duties and obligations pertain
to the portion of the Site sold, assigned, exchanged or transferred to it.
D. [Sec. 103] Recordation of this Agreement.
Promptly following the Effective Date, City shall record this Agreement in the
Official Records of Riverside County, California so that it encumbers the Site.
ARTICLE 2
DEVELOPMENT OF THE SITE
A. [Sec. 200] Entitlement Applications for the Project.
Developer has submitted to City applications and supporting materials relating to
the Project consisting of an application for a general plan amendment (the "General Plan
Amendment"), an application for a zone change (the "Zone Change"), an application for
approval of a tentative tract map (the "Tentative Tract Map") and an application for approval
of a precise plan/conditional use permit (the "Precise Plan/CUP"). The City has certified the
Final Subsequent EIR ("EIR") relating to the Project. The City has also approved the
Developer's Precise Plan/CUP, General Plan Amendment, Zone Change and Tentative Tract
Map for the Site. The Site shall be developed as established in the approved Tentative Tract
Map, the General Plan Amendment, Zone Change, and Precise Plan/CUP, except for such
changes which may be mutually agreed upon hereafter between Developer and City.
B. [Sec. 201] Permitted Uses.
The Developer shall have the right to develop the Site for the following uses.
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(1) Residential Development. The area of the Site designated for residential
development on the site plan showing anticipated facilities and their locations on the Site
attached hereto as Exhibit C may be developed with up to sixty (60) residential dwelling units
(each, a "DU") and one (1) on -site caretaker residence. Notwithstanding any provisions to the
contrary set forth in Chapter 25.100 of the Palm Desert Municipal Code, each DU may (but
need not) in developer's sole discretion be sold as up to four (4) fractional interests, each of
which fractional interests shall permit the owner of such fractional interest to occupy a DU
(which may or may not be the DU in which such owner has a fee interest) for a portion of each
calendar year.
(2) Club. The Club may be developed by Developer on the areas of the Site
designated for such use on Exhibit C hereto. The Club may consist of any or all of the
following recreational amenities: a private membership golf course, a driving range, a starter
house, comfort stations located in various areas of the Project, an open air pavilion with covered
roof and retractable sides, a clubhouse building which includes food and beverage areas, satellite
food and beverage facilities or mobile serving vehicles (including for the sale of alcoholic
beverages) located as designated by Developer on or near the golf course and other facilities,
appropriate maintenance bunker facilities located in various areas of the golf course, swimming
pools, and other recreational amenities appropriate for a private golf club. The golf clubhouse,
maintenance building, entry gate and gatehouse, parking and other recreational uses shall be
located as shown on Exhibit C. Such facilities and locations may be revised by Developer so
long as they are substantially similar to that shown on Exhibit C, and so long as the number of
DUs does not increase beyond sixty (60) plus the caretaker unit.
D. [Sec.202] Project Phasing; Project Scenarios.
The Parties acknowledge that Developer cannot at this time predict when, or the
order in which, individual buildings in the Project will be developed on the Site. Such decisions
with respect to phasing of the Project will depend upon a number of circumstances not within the
control of Developer, including, without limitation, market conditions and demand for the use or
uses within the Project, the condition of capital markets and availability of appropriate financing
for the development of the Project (such as construction or interim and permanent loans, and/or
equity capital) and other similar factors. In order to retain the flexibility necessary to respond to
such market conditions, Developer shall have the right to develop the Project in phases, in such
order, and at such times as Developer deems appropriate within the exercise of its subjective
business analysis of those factors determining, in Developer's judgment, the appropriate course
of development of the Project. However, in connection with each phase, Developer shall be
required to: (i) comply with the Development Standards (as hereinafter defined); (ii) provide
sufficient parking for the anticipated uses in such phase, as determined pursuant to the
Development Standards; and (iii) implement the mitigation measures required for such
development pursuant to the EIR.
E. [Sec. 203] Special Development Provisions.
The Parties agree that certain development rights are hereby granted to allow
Developer to take advantage of the special and unique type and character of the Project and the
Site. These special development provisions are as follows:
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(1) Proiect Development Standards: The DUs, clubhouse maintenance
building and other structures shall be developed along private roads. Permitted building heights
and set backs shall be consistent with those set forth on Exhibit D attached hereto.
(2) Protect Parking Provisions: Because the DUs will have seasonal use and
generally lower demand for on -site parking on a per -residence basis than full time residences,
each DU shall have at least one (1) garage or carport parking space and one (1) designated open
air space. In addition, each DU shall have one covered space for an electric golf cart. Parallel
on -street parking and visitor parking areas (equalling .5 spaces per DU) shall be permitted within
the Development consistent with roadway design and safety considerations.
(3) Road Design and Development Standards: On -site roads may be
constructed of asphalt, concrete, decomposed granite and soil binder, or other material which
meets generally accepted performance criteria, including those of the City Fire Marshall. Road
widths shall be the minimum found acceptable by the City Fire Marshall, anticipated to be not
less than sixteen (16) feet and not more than twenty-four (24) feet. Golf course access drives
shall have an improved travel width of not less than sixteen (16) feet. Throughout the project,
road edging may be at -grade concrete retainer strips with appropriate parallel drainage channels
unless Developer elects to install curbs and gutters.
(4) Private Easements and Rights-of-Wav: The City shall assist the Developer
in its discussions with private parties regarding the abandonment and/or relocation of private
easements and/or rights -of -way which Developer deems may adversely affect the needs and
development design for the Project.
(5) Trails Access/Easements: Developer shall grant necessary easements to
the City for public hiking and/or equestrian trails on the perimeter of the Site in areas designated
by Developer for such purpose and acceptable to the City, California Department of Fish and
Game and the U.S. Fish and Wildlife Service. Such trails shall allow trail linkage from Homme
Park to Art Smith Trailhead. Such trails shall not compromise project security or the golfing
experience for persons using the Club facilities. Developer shall have no liability for the design,
construction, maintenance or use of said trail(s). City shall be responsible for any environmental
clearances or agency permits or approvals which may be required to effect trail(s) construction.
(6) Dedication of Open Space: A conservation easement or conveyance for
conservation shall be established in perpetuity for those portions of the Site shown on the map
attached hereto as Exhibit E. A fence shall be erected to preclude access to the golf course and
associated lands by Peninsula bighorn sheep.
(7) Irrigation Line Right-of-Wav & Encroachment Permit: The City shall
cooperate and facilitate the provision of an encroachment permit and necessary right-of-way
approval from the City so as to permit Developer to construct an irrigation line from Developer's
irrigation well on Goldenrod Road to the Site. Such irrigation line shall be designed and
constructed in compliance with applicable law at the time such design is submitted to the City.
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(8) Contractor/Service Personnel Parking: Developer shall provide
appropriate on -site parking facilities and a transponder program to contractors, service providers
and employees to eliminate the demand for off -site parking.
(9) Right to Combine Lots. Developer shall have the right, by recordation of
lot tie agreements, to combine two (2) or more lots in the area designated for DUs into one larger
lot, and upon such combination to either allow such lots to have different grades or to regrade all
of such combined lots to the average graded level of such combined lots. City will cooperate in,
and process, any lot line adjustments requested by Developer.
(10) Art in Public Places. Developer shall be permitted to satisfy any
applicable art in public places requirements onsite in a location visible from Highway 74. Such
art and its location shall be subject to the approval of the City's Art in Public Places
Commission.
(11) Grading. Notwithstanding any provisions to the contrary set forth in
Chapter 25.15 of the Palm Desert Municipal Code, grading on the Site shall, to the extent
commercially feasible, be limited to the grading reasonably required to effect safe access to the
Site and that reasonably required to develop the Residential Development and the Club, both as
described in Sec. 201 of this Agreement. The grading plan for the Site shall be reviewed and
approved by the City's Department of Public Works. Such grading plan shall also be reviewed
and approved by the City's Architectural Review Commission but solely to confirm that such
grading plan complies with the provisions of this paragraph.
F. [Sec. 204] Reservations and Dedications.
No reservations or dedications of land will be required by City during the Term
except as agreed to in writing by City and Developer in Developer's sole and absolute discretion
and as provided in Section 203 (6) hereof
G. [Sec. 205] Processing of Applications and Permits.
(1) Processing of Applications. City will accept and shall diligently process
all applications for discretionary and other permits or other entitlements with respect to the
Project in accordance with this Agreement. If requested by Developer, City will initiate or cause
to be initiated all necessary legal proceedings pursuant to the Benefit Assessment Act of 1982
(Government Code Section 54720), or any other applicabl e provisions of law, to include the Site
in a maintenance district for purposes of funding the ongoing maintenance of flood control
facilities of benefit to the Site. To the extent such proceedings are initiated and completed by the
Coachella Valley Water District, City legally consents to the inclusion of the Site in such
maintenance district.
(2) Discretionary Approvals. Development of the Site by the Developer is
subject, inter alia, to the following discretionary approvals:
(a) approval of one or more additional parcel maps; and
(b) approval of one or more additional tentative tract maps.
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If, at any time during the term of this Agreement, an act of Developer relating to the Project
requires an administrative approval, variance, conditional use permit or other City approval,
including, but not limited to, the discretionary approvals listed in this Section 205, Developer
shall apply to the City in accordance with the applicable procedures then specified therefor and
generally in effect for such administrative approval, variance, conditional use permit or other
City approval. In reviewing and approving applications for discretionary approvals, the City
may exercise its full discretion under the law and may attach such conditions and requirements
as may be deemed necessary or appropriate to carry out the policies, goals, standards and
objectives of the General Plan and to comply with legal requirements and policies of the City
pertaining to such discretionary approvals.
(3) Demolition and Grading Permits. During the term of this Agreement,
Developer shall be entitled to obtain one or more demolition permits or grading permits for the
Project without the necessity for applying for or receiving any building permit; provided,
however, that Developer shall be in compliance with all requirements of the City Municipal
Code other than any requirements to apply for or receive any buil ding permit.
(4) Certificates of Occupancy. Promptly after completion of any portion of
the Project, including any required mitigations, in compliance with the terms hereof and all
applicable statutes, ordinances and regulations applicable to the construction of improvements
such as those completed on the Site, upon application, the City shall provide Developer with a
Certificate of Occupancy therefor.
(5) Subdivision Right. This Agreement shall not impair the right of
Developer to further subdivide the Site in accordance with applicable law and the terms of this
Agreement. The City agrees to promptly consider in good faith one or more tract maps and other
applications necessary or appropriate to accomplish such subdivision. Any approval of such an
application may include reasonable conditions. Developer may post a bond or letter of credit
reasonably approved by the City Manager as to form, amount and issuer, as security for
satisfaction of any condition that may be satisfied by the payment of money.
H. [Sec. 206] Design Review.
Nothing set forth herein shall impair or interfere with the right of City to require
the processing of building permits as required by law and to conduct its architectural review of
any specific improvements proposed for the Site pursuant to the applicable provisions of the
City's Municipal Code which are in effect at the time such review is conducted; provided,
however, no such review shall authorize or permit City to impose any condition and/or withhold
approval to any proposed improvement the result of which would be inconsistent with the
Tentative Map, the Zone Change, the General Plan Amendment, the Precise Plan/CUP, or the
provisions of this Agreement.
I. [Sec. 207] Easements.
If easements on property adjacent to the Site are required in order for Developer
to complete grading for the Developer Improvement, City shall cooperate with Developer in
efforts to obtain such easements. City shall not be obligated to incur any expense in connection
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with such cooperation. City shall cooperate with Developer in connection with the abandonment
of existing utility or other easements and facilities and the relocation 'thereof or creation of any
new easements within the City necessary or appropriate to the development of the Project. If any
such easement is owned by the City, City shall, at the request of Developer, take such action as
may be necessary to abandon existing easements and relocate them as may be necessary or
appropriate.
J. [Sec. 208] Rules, Regulations and Official Policies.
(1) Applicable Rules. Regulations and Official Policies. For the term of this
Agreement, the rules, regulations, ordinances and official policies governing the permitted uses
of land, density, design, improvement and construction standards and specifications applicable to
the development of the Site shall be as set forth in this Agreement; provided, however, that
development of the Site shall be subject to municipal ordinances and regulations which do not
conflict with the provisions hereof, including, without limitation, building, electrical,
mechanical, fire and similar codes, and ordinances which regulate the manner in which activities
may be conducted or which prohibit any particular type of activity on a city-wide basis, in a
particular zone (other than development limitations which are inconsistent with the rights granted
hereby) or on some other valid, non-discriminatory basis. Except as otherwise provided in this
Agreement, to the extent any future changes in the General Plan, zoning codes or any future
rules, ordinances, regulations or policies adopted by the City purport to be applicable to the Site
but are inconsistent with the terms and conditions of this Agreement, the terms of this Agreement
shall prevail, unless the parties mutually agree to amend or modify this Agreement pursuant to
Section 1000 hereof Except as provided in subsections (2), (3), (5) and (6) of this Section 208,
the City shall not, in subsequent actions applicable to the Site, apply new rules, ordinances,
regulations or policies which conflict with the terms and conditions of this Agreement. To the
extent that any further changes in the General Plan, zoning codes or any future rules, ordinances,
regulations or policies adopted by the City are applicable to the Site and are not inconsistent with
the terms and conditions of this Agreement or are otherwise made applicable by other provisions
of this Section 208, such future changes in the General Plan, zoning codes or such future rules,
ordinances, regulations or policies shall be applicable to the Site.
(2) Changes in State or Federal Law. This Section shall not preclude the
application to the Project of changes in City laws, regulations, plans or policies, the terms of
which are specifically mandated and required by changes in state or federal laws or regulations.
In the event state or federal laws or regulations enacted after the date of this Agreement, or
action by any governmental jurisdiction other than the City, prevent or preclude compliance with
one or more provisions of this Agreement or require changes in plans, maps or permits approved
by the City, then the Parties shall meet and confer in good faith to determine the feasibility of
modifying, extending or suspending one or more provisions of this Agreement as may be
necessary to comply with such state or federal laws or regulations or the regulations of such
other governmental jurisdiction. In addition, Developer shall have the right to challenge such
new law preventing compliance with the terms of this Agreement, and, in the event such
challenge is successful, this Agreement shall remain unmodified and in full force and effect.
To the extent that any actions of federal or state agencies (or actions of regional
and local agencies, including the City, required by federal or state agencies) have the effect of
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preventing, delaying or modifying development of the Site, the City shall not in any manner be
liable for any such prevention, delay or modification of said development. The Developer is
required, at its cost and without cost to or obligation on the part of the City, to participate in such
regional or local programs and to be subject to such development restrictions as may be
necessary or appropriate by reason of such actions of federal or state agencies (or such actions of
regional and local agencies, including the City, required by federal or state agencies).
(3) Payment of Fees. Notwithstanding anything herein to the contrary, all
future applications for approvals, permits and entitlements shall be subject to the development
and processing fees and taxes at their respective rates which are in force and effect at the time the
application therefor is filed.
(4) No Further Approvals. The City shall not require the Developer to obtain
any further approvals or permits for the development of the Site in accordance with this
Agreement during the Term.
(5) City's Retained Authority. Nothing herein shall be construed to limit the
authority of the City to adopt and apply codes, ordinances and regulations which have the legal
effect of protecting persons or property from conditions which create a health, safety or physical
risk.
(6) Other Vesting Statute. The parties intend that the provisions of this
Agreement shall govern and control as to the procedures and the terms and conditions applicable
to the development of the Site over any contrary or inconsistent provisions contained in Sections
66498.1 et seq. of the Government Code or any other State law now or hereafter enacted
purporting to grant or vest development rights based on land use entitlements (herein "Other
Vesting Statute"). In furtherance of this intent, and as a material inducement to the City to enter
into this Agreement, the Developer agrees that, except as expressly provided herein:
(a) Notwithstanding any provisions to the contrary in any Other
Vesting Statute, this Agreement and the conditions and requirements of land use entitlements for
the Site obtained while this Agreement is in effect shall govern and control the Developer's
rights to develop the Site; and
(b) The Developer waives, for itself and its successors and assigns, the
benefits of any Other Vesting Statute insofar as they may be inconsistent or in conflict with the
terms and conditions of this Agreement and land use entitlements for the Site obtained while this
Agreement is in effect; and
(c) The Developer will not make application for a land use entitlement
under any Other Vesting Statute insofar as said application or the granting of the land use
entitlement, pursuant to said application, would be inconsistent or in conflict with the terms and
conditions of this Agreement and prior land use entitlements obtained while this Agreement is in
effect.
(7) Need for Public Hearings. This section shall not be construed to limit the
authority or obligation of the City to hold necessary public hearings, to limit the discretion of the
City or any of its officers or officials with regard to rules, regulations, ordinances, laws and
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entitlements of use which require the exercise of discretion by the City or any of its officers or
officials.
L. [Sec. 209] Encumbrances and Lender's Rights.
(1) Permitted Encumbrances. This Agreement shall be superior and senior to
any lien placed upon the Site. The Parties agree that this Agreement shall not prevent or limit
any owner of an interest in the Site from encumbering the Site with any deed of trust or other
security device securing financing with respect to the Site;
(2) Lender's Rights. The holder of any mortgage, deed of trust, or other
security arrangement ("Lender") with respect to the Site, or any portion thereof, that has
requested, in writing, receipt of notice of any event of default under this Agreement shall be
entitled to receive a copy of any notice of default and shall be allowed an opportunity to cure
such default. The Lender shall receive a Second Default Notice thirty (30) days before the City
institutes legal proceedings and the Lender shall again be allowed an opportunity to cure such
default.
The holder of any mortgage, deed of trust, or other security arrangement with
respect to the Site, or any portion thereof, shall not be obligated under this Agreement to
construct or complete improvements or to guarantee such construction or completion, but shall
otherwise be bound by all the terms and conditions of this Agreement. Nothing in this
Agreement shall be deemed to construe, permit or authorize any such holder to devote the Site,
or any portion thereof, to any uses, or to construct any improvements thereon, other than those
uses and improvements provided for or authorized by this Agreement, subject to all of the terms
and conditions of this Agreement.
M. [Sec. 210] Interaction with Somerset Homeowners Association.
During the period in which the Developer is constructing the improvements on the
Site, the Developer shall meet from time to time with any authorized committee appointed by the
Somerset Homeowners Association. The purpose of such meetings shall be to discuss the
concerns of said Association about landscaping and other issues.
ARTICLE 3
OBLIGATIONS OF THE DEVELOPER
A. [Sec. 300] Improvements.
The Developer shall develop the Site in accordance with and subject to the terms
and conditions of this Agreement and the discretionary approvals referred to in Section 205
hereof. The failure of the Developer to comply with the terms and conditions of or fulfill any
obligation of the Developer under this Agreement or any discretionary approvals, shall constitute
a default by the Developer under this Agreement. Any such default may be cured by Developer
as set forth in Section 400 hereof.
136922.7 - Word - 10/03/02
11
B. [Sec. 301] City's Good Faith in Processing.
Subject to the discretionary approvals referred to in Section 205 hereof, the City
agrees that it will accept, in good faith, for timely processing, review and action, all complete
applications for zoning, special permits, development permits, tentative maps, subdivision maps
or other entitlements for use of the Site in accordance with the General Plan and this Agreement.
The City shall inform the Developer, upon request, of the necessary submission
requirements for each application for a permit or other entitlement for use in advance, and shall
promptly review said application and schedule the application for review by the appropriate
authority.
C. [Sec. 302] Developer's Insurance.
Before commencing work pursuant to any City -approved permit on the Site, the
Developer shall obtain general liability insurance reasonably approved by the City Manager as to
form, amount and carrier. Thereafter, the Developer shall maintain the insurance during the term
of this Agreement.
D. [Sec. 303] Environmental Requirements.
The Developer shall, in connection with the development of each new
improvement on the Site, comply with the mitigation measures set forth in the EIR.
ARTICLE 4
DEFAULT, REMEDIES, TERNIINATION
[Sec. 400] General Provisions.
Subject to extensions of time by mutual consent in writing, failure or
unreasonable delay by either Party to perform any term or provision of this Agreement shall
constitute a default. In the event of default or breach of any terms or conditions of this
Agreement, the Party alleging such default or breach shall give the other Party not less than
thirty (30) days notice in writing specifying with particularity the nature of the alleged default
and the manner in which said default may be satisfactorily cured. During any such thirty (30)
day period, the Party charged with being in default shall not be considered in default for
purposes of termination or institution of legal proceedings.
After notice and expiration of the thirty (30) day period, if such default has not
been cured or is not being diligently cured in the manner set forth in the notice, the other Party to
this Agreement may at its option:
(a) terminate this Agreement, in which event neither Party shall have any
further rights against or liability to the other with respect to this Agreement or the Site; provided,
however, if portions of the Site are held in separate ownership at the time such event of default
occurs and such event of default is related only to one portion, this Agreement may be
terminated only as to such portion and no such termination shall impair the continuing
applicability of this Agreement to the remainder of the Site; or
136922.7 - Word -10/03/02
12
(b) institute legal or equitable action to cure, correct or remedy any default,
including, but not limited to, an action for specific performance of the terms of this Agreement;
provided, however, that in no event shall either party be liable to the other for money damages
for any default or breach of this Agreement.
B. [Sec. 401] Developer Default; Enforcement.
No building permit shall be issued or building permit application accepted for the
building shell of any structure on any portion of the Site if the permit applicant owns or controls
such portion of the Site and if such applicant or any entity or person controlling such applicant
has been found to be in default as to such portion of the Site by the City Council of the City
under the terms and conditions of this Agreement, unless such default is cured or this Agreement
is terminated. A default as to an owner of any portion of the Site shall have no impact on any
portion of the Site not owned by such defaulting owner. The Developer shall cause to be placed
in any covenants, conditions and restrictions applicable to the Site, or in any ground lease or
conveyance thereof, an express provision for an owner of the Site, lessee or City acting
separately or jointly to enforce the provisions of this Agreement and to recover attorney's fees
and costs for such enforcement.
C. [Sec. 402] Annual Review.
The City Planning Department shall, at least every twelve (12) months during the
term of this Agreement, review the extent of good faith substantial compliance by the Developer
with the terms and conditions of this Agreement. Such periodic review shall be limited in scope
to compliance with the terms and conditions of this Agreement pursuant to California
Government Code Section 65865.1. Notice of such annual review shall include the statement
that any review may result in amendment or termination of this Agreement. The costs of notice
and related costs incurred by the City for the annual review conducted by the City pursuant to
this Section 402 shall be borne by the Developer.
The City Manager shall provide thirty (30) days prior written notice of such
periodic review to the Developer. Such notice shall require the Developer to demonstrate good
faith compliance with the terms and conditions of this Agreement and to provide such other
information as may be reasonably requested by the City Manager and deemed by such person to
be required in order to ascertain compliance with this Agreement. If, following such review, the
City Manager is not satisfied that the Developer has demonstrated good faith compliance with all
the terms and conditions of this Agreement, the City Manager may refer the matter, along with
his recommendations, to the City Council.
Failure of the City to conduct an annual review shall not constitute a waiver by
the City of its rights to otherwise enforce the provisions of this Agreement nor shall the
Developer have or assert any defense to such enforcement by reason of any such failure to
conduct an annual review.
D. [Sec. 403] Enforced Delay, Extension of Times of Performance.
In addition to specific provisions of this Agreement, either Party hereunder shall
not be deemed to be in default where delays or defaults are due to war, terrorism, insurrection,
136922.7 - Word - 10/03/02
13
strikes, walkouts, riots, floods, earthquakes, fires, casualties, acts of God, governmental entities'
enactment of conflicting state or federal laws or regulations, new or supplementary
environmental regulations, litigation or similar bases for excused performance. If written notice
of such delay is given to the City within thirty (30) days of the commencement of such delay, an
extension of time for such cause shall be granted in writing for the period of the enforced delay,
or longer as may be mutually agreed upon.
E. [Sec. 404] Limitation of Legal Acts.
In no event shall the City, or its officers, agents or employees, be liable in
damages for any breach of violation of this Agreement, it being expressly understood and agreed
that the Developer's sole legal remedy for a breach or violation of this Agreement by the City
shall be a legal action in mandamus, specific performance or other injunctive or declaratory
relief to enforce the provisions of this Agreement.
F. [Sec. 405] Applicable Law and Attorneys' Fees.
This Agreement shall be construed and enforced in accordance with the laws of
the State of California. Developer acknowledges and agrees that the City has approved and
entered into this Agreement in the sole exercise of its legislative discretion and that the standard
of review of the validity or meaning of this Agreement shall be that accorded legislative acts of
the City. Should any legal action be brought by a party for breach of this Agreement or to
enforce any provision herein, the prevailing party of such action shall be entitled to reasonable
attorneys' fees, court costs and such other costs as may be fixed by the Court.
G. [Sec. 406] Invalidity of Agreement.
(1) If this Agreement is determined by a court to be invalid or unenforceable,
this Agreement shall automatically terminate as of the date of final entry of judgment.
(2) If any provision of this Agreement is determined by a court to be invalid
or unenforceable, or if any provision of this Agreement is rendered invalid or unenforceable
according to the terms of any law which becomes effective after the date of this Agreement and
either Party in good faith determines that such provision is material to its entering into this
Agreement, either Party may elect to terminate this Agreement as to all obligations then
remaining unperformed in accordance with the procedures set forth in Section 400, subject,
however, to the provisions of Section 407 hereof.
H. [Sec. 407] Effect of Termination on Developer Obligations.
Termination of this Agreement shall not affect the Developer's obligations to
comply with the General Plan and the terms and conditions of any and all land use entitlements
approved with respect to the Site prior to such termination, nor shall it affect any other covenants
of the Developer specified in this Agreement to continue after the termination of this Agreement.
If portions of the Site are held in separate ownership at the time of such termination, this
Agreement may be terminated only as to such portion and no such termination shall impair the
continuing applicability of this Agreement to the remainder of the Site.
136922.7 - Word -10/03/02
14
ARTICLE 5
HOLD HARMLESS AGREEMENT
[Sec. 500] Hold Harmless Agreement.
The Developer hereby agrees to and shall indemnify and hold the City, its elective
and appointive boards, commissions, officers, agents and employees harmless from any liability
for damage or claims for damage for personal injury, including death, as well as from claims for
property damage, which may arise from the Developer's or the Developer's contractors',
subcontractors', agents' or employees' operations under this Agreement, whether such
operations be by the Developer, or by any of the Developer's contractors, subcontractors, or by
one or more persons directly or indirectly employed by or acting as agent for the Developer. This
provision shall survive and continue for a period of one (1) year after the termination of this
Agreement. The City shall have the right to select its own counsel to defend it in any
indemnified claim unless either (i) Developer is also sued and its counsel can defend all parties,
or (ii) Developer's insurer requires engagement of counsel other than that selected by City.
In the event of any legal action instituted by a third party or any governmental
entity or official arising out of the approval, execution or implementation of this Agreement
(exclusive of any such actions brought by the Developer) including such actions brought
pursuant to the provisions of the California Environmental Quality Act, the Developer agrees to
and shall cooperate fully and join in the defense by the City of such action and shall indemnify
and hold the City, its elective and appointive boards, commissions, officers, agents and
employees harmless from any liability for damages, costs or attorneys' fees which may arise
from such action. This provision shall survive and continue for a period of one (1) year after
termination of this Agreement. The City shall have the right to select its own counsel to
represent it in any action of the type referred to in this paragraph.
ARTICLE 6
PROJECT AS A PRIVATE UNDERTAIQNG
[Sec. 600] Project as a Private Undertaking.
It is specifically understood and agreed by and between Parties hereto that the
development of the Site is a separately undertaken private development and that the contractual
relationship created hereunder between the City and Developer is such that Developer is an
independent contractor and is not an agent of the City. None of the terms or provisions of this
Agreement shall be deemed to create a partnership or joint venture between the City and
Developer or to provide third party beneficiary rights to any person or entity not a Party hereto.
The only relationship between the City and the Developer is that of a governmental entity
regulating the development of private property and the owner of such private property.
136922.7 - Word - 10/03/02
15
ARTICLE 7
CONSISTENCY WITH GENERAL PLAN
A. [Sec. 700] Consistency With General Plan.
The City hereby finds and determines that execution of this Agreement is in the
best interests of the public health, safety and general welfare and is consistent with the General
Plan as amended concurrently with the approval of this Agreement.
ARTICLE 8
NOTICES
B. [Sec. 800] Notices.
All formal notices required by this Agreement shall be in writing and delivered in
person or sent by certified mail, postage prepaid, to the principal offices of the City and the
Developer with copies sent as set forth below. The addresses of the parties as of the date hereof
are as set forth below. Such written notices, demands, correspondence and communication may
be directed in the same manner to such other persons and addresses as either party may from
time to time designate in writing. The Developer shall give written notice to the City, within ten
(10) days after the close of escrow, of any sale or transfer of any portion of the Site and any
assignment or partial assignment of this Agreement, specifying the name or names of the
transferee, the transferee's mailing address, the legal description of the land sold or transferred,
and the name and address of any person or entity to whom any notice relating to this Agreement
shall be given with respect to such transferred portion of the Site.
Notices required to be given to the City shall be addressed as follows:
If to City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
Attention: City Manager and City Attorney
Telephone: (760) 346-0611
Fax Number (760) 346-7098
With a copy to:
Best, Best & Kreiger
Attn: David Erwin
75-760 Highway 111, Suite 200
Indian Wells, CA 92210
Telephone: (760) 568-2611
Fax Number: (760) 340-6698
136922.7 - Word - 10/03/02 16
Notices required to be given to the Developer shall be addressed as follows
If to Developer:
With a copy to:
With a copy to:
Destination Development Corporation
c/o Lowe Enterprises
Attn. Corporate Counsel
11777 San Vicente Blvd., Suite 900
Los Angeles, CA 90049
Telephone: (310) 820-6661
Fax Number: (310) 207-1132
Destination Development Corporation
Attn: Theodore R. Lennon
74-001 Reserve Drive
Indian Wells, CA 92210
Telephone: (760) 779-1646
Fax Number: (760) 779-1469
Luce Forward
Attn: Ms. Timi Hallem, Esq.
777 S. Figueroa Street, Ste 3600
Los Angeles, CA 90017
Telephone: (213) 892-4903
Fax Number: (213) 892-7731
ARTICLE 9
RECORDATION
[Sec. 9001 Agreement.
The City and the Developer shall record this Agreement and any amendments or
modifications thereof in the Official Records of Riverside County, California as required by
applicable law.
ARTICLE 10
MISCELLANEOUS
[Sec. 10001 Amendment of Agreement.
This Agreement may be amended from time to time with respect to any portion of
the Site by mutual consent of the City and the Developer (to the extent that it continues to own
any portion of the Site) and of the then -current owner(s) of the portions of the Site affected by
such amendment, with City costs payable by the amendment applicant, in accordance with the
provisions of Government Code Sections 65867 and 65868.
B. [Sec. 1001] Waiver of Provisions.
No waiver of any provision of this Agreement shall be effective unless in writing
and signed by a duly authorized representative of the Party against whom enforcement of a
136922.7 - Word -10/03/02
17
waiver is sought. No waiver of any right or remedy with respect to any occurrence or event shall
be deemed a waiver of any other occurrence or event.
C. [Sec. 1002] Time of Essence.
Time is of the essence for each provision of this Agreement of which time is an
element.
D. [Sec. 1003] Entire Agreement.
This Agreement is executed in duplicate originals, each of which is deemed to be
an original. This Agreement consists of eighteen (18) pages and five (5) exhibits, which
constitute the entire understanding and agreement of the Parties. Said exhibits are identified as
follows:
Exhibit A — Description of Site
Exhibit B — Map of Site
Exhibit C — Site Plan of Project
Exhibit D — Building Heights and Setbacks
Exhibit E — Area Designated for Conservation Easement
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and year first above written.
"CITY" CITY OF PALM DESERT, a
California Municipal Corporation.
Effective Date: By:
(Mayor, City of Palm Desert)
2002
Attest:
Carlos Ortega
City Manager
Approved as to form:
David Erwin
City Attorney
136922.7 - Word - 10/03/02 18
"DEVELOPER" DESTINATION DEVELOPMENT CORPORATION, a
California Corporation
DATE OF SUBMISSION BY BY:
Developer: Theodore R. Lennon, Sr. V.P.
, 2002
136922.7 - Word - 10/03/02
19
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On , 2002, before me, (name of notary)
, a notary public, 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 acknowledge to me that he/she/they executed the same in his/her/their
authorized capacity (ies), and that by his/her/their signature (s) on the instrument the person (s),
or the entity upon behalf of which the person (s) acted, executed the instrument.
WITNESS my hand and official seal.
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On , 2002, before me, (name of notary)
, a notary public, 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.
WITNESS my hand and official seal.
136922.7 - Word - 10/03/02
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On , 2002, before me, (name of notary)
, a notary public, 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.
WITNESS my hand and official seal.
136922.7 - Word - 10/03/02
EXHIBIT A-1 THROUGH A-5
LEGAL DESCRIPTION
EXHIBIT A-1
ALL THAT CERTAN REAL PROPERTY LOCATED
IN THE CITY OF PALM DESERT, RIVERSIDE
COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
SECTION 25, TOWNSHIP 5 SOUTH, RANGE 5 EAST,
SAN BERNA_RDINO MERIDIAN, IN THE COUNTY OF
RIVERSIDE. STATE OF CALIFORNIA. ACCORDING
i L. V1';'1CI.lL i'L.
1217737.10 -TAN -10/08/01
EXHIBIT A-2
ALL T':_AT PEAL ?RCPERTY r GC.-\T=D
IN THE CITY OF PALM DESERT. RIVERSIDE
COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
THE NORTH HALF OF GOVERNNIENT LOT 2 N THE NORTHWEST
QUARTER OF SECTION 31, TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN
BERNARDINO BASE AND MERIDIAN;
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE
COACHELLA VALLEY COUNTY WATER DISTRICT BY DEED RECORDED
nFCEMRFP o I0Ffl ' S TNrq-r'r?fr\'T'Tn , (1.'1nr nrrrr, . , rlr.i'/lnr-\,7 ',r-
RIVERSIDE COUNTY, CALIFORNIA, DESCRIBED AS:
BEGINNING AT THE SOUTHEAST CORNER OF THE NORTH HALF OF
GOVERNMENT LOT 2;
THENCE NORTH 00 DEGREES 21' 05" WEST, ON THE EAST SIDE OF SAID
NORTH HALF, 265.95 FEET;
THENCE SOUTHWESTERLY ALONG THE ARC OF A CURVE CONCAVE TO
THE LEFT WHOSE TANGENT BEARS SOUTH 28 DEGREES 55' 52" WEST,
HAVNG A RADIUS OF 650.00 FEET, THROUGH A CENTRAL ANGLE OF 24
DEGREES 46' 53", A DISTANCE OF 281.14 FEET TO THE SOUTH LINE OF
SAID NORTH HALF;
THENCE NORTH 88 DEGREES 57' 55" EAST ON SAID SOUTH LINE 81.06
FEET TO THE POINT OF BEGINNING.
120737.10 -TAH-10/08/01
EXHIBIT A-3
ALL THAT CERTAIN REAL PROPERTY LOCATED
N THE CITY OF PALM DESERT. RIVERSIDE
COUNTY, CALIFORNLA, DESCRIBED AS FOLLOWS:
PARCEL 2:
THAT PORTION OF THE WEST H_ L.F OF THE NORTH HALF OF LOT 1 OF
THE NORTHWEST QUARTER OF SECTION 3 1, TOWNSHIP 5 SOUTH, RANGE
6 EAST, SAKI BERINARDNO BASE AND MERIDIAN, LYING NORTHERLY OF
THE NORTHERLY LINE OF THE STORM WATER CHANNEL AS DESCRIBED
IN THE DEED RECORDED DECEMBER 2, 1960 AS INSTRUMENT NO. 102408
OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
1 20737.10 -TAH-10/08/01
E XHIB IT A-5
ALL THAT CERTAIN REAL PROPERTY LOCATED
N THE CITY OF PALM DESERT, PJVERSIDE
COUNTY, CALIFOR IA, DESCRLBED AS FOLLOWS:
THE NORTH 330.00 FEET OF THE EAST HALF OF THE NORTH HALF OF LOT
I IN THE NORTHWEST QUARTER OF SECTION 31, AND THAT PORTION OF
THE NORTH 3 30.00 FEET OF THE NORTHWEST QUARTER OF THE
NORTHEAST QUARTER OF SECTION 31, LYING WESTERLY OF THE PINE
TO PALMS HIGHWAY, CONVEYED TO THE COUNTY OF RIVERSIDE, BY
DEED RECORDED FEBRUARY 17,1936 N BOOK 266 PAGE 480 OF OFFICIAL
RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, ALL IN TOWNSHIP 5
SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN,
CONVEYED TO THE COACHELLA VALLEY COUNTY WATER DISTRICT, A
PUBLIC AGENCY, OF THE STATE OF CALIFORNIA, BY DEED RECORDED
SEPTEMBER 16, 1957 AS INSTRUMENT NO. 66503 OF OFFICIAL RECORDS
OF RIVERSIDE COUNTY, CALIFORNIA.
120737.10 -TAH -10108J01
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EXHIBIT D
BUILDING HEIGHTS AND SETBACKS
The following development standards shall apply:
Minimum Buildini Setbacks:
Front yard: Fifteen (15) feet
Rear yard: Ten (10) feet
Interior side yard: Five (5) feet
Buildint Heights:
Residential building or structures shall not have a height exceeding twenty (20)
feet from finished pad elevation. In no case shall the building exceed two living
stories above the pad elevation of the building site.
Country Club/Golf Course or recreational facilities buildings or structures shall
not have a height exceeding thirty (30) feet from finished pad elevation.
EXHIBIT E T
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