HomeMy WebLinkAboutRes No 2431PLANNING COMMISSION RESOLUTION NO. 2431
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL
APPROVAL OF THE UNIVERSITY PARK MASTER PLAN
DEVELOPMENT AGREEMENT AS IT RELATES TO 190 +/- ACRES
GENERALLY LOCATED SOUTH OF GERALD FORD DRIVE AND
EASTERLY OF PORTOLA AVENUE, 74-500 COLLEGE DRIVE.
CASE NO. DA 06-02
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on 16th
the day of January, 2007, hold a duly noticed public hearing to consider the request of PALM
DESERT FUNDING COMPANY, LP, for approval of the above described development
agreement; and
WHEREAS, said application has complied with the requirements of the "City of Palm
Desert Procedure for Implementation of the Califomia Environmental Quality Act, Resolution No.
06-78," in that the Acting Director of Community Development has determined that the project
was previously assessed as part of Case No. C/Z 06-04, the University Park Master Plan for
which a Negative Declaration of Environmental Impact was certified; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of all interested persons desiring to be heard, said Planning Commission did
find the following facts and reasons to exist to justify recommending approval of said request:
1. The proposed University Park Master Plan Development Agreement is consistent
with the University Park Master 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 the University Park Master Plan Development Agreement, Exhibit "A"
attached, is hereby recommended for approval to the City Council as submitted.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning
Commission, held on this 16th day of January, 2007, by the following vote, to wit:
AYES: LIMONT, SCHMIDT, TSCHOPP, CAMPBELL
NOES: NONE
ABSENT: TANNER
ABSTAIN: NONE
SONIA M. CAMPBELL, Chairperson
ATTEST:
STEPHEN R. SMITH,'Acting Secretary
Palm Desert Planning Commission
PLANNING COMMISSION RESOLUTION NO. 2431
RECORDING REQUESTED BY, AND EXEMPT FROM FILING FEE
WHEN RECORDED, MAIL TO: PURSUANT TO GOVT. CODE §6103
City Clerk's Office
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
(Space above for Recorder's use Only)
DEVELOPMENT AGREEMENT
Between
THE CITY OF PALM DESERT, CALIFORNIA
and
PALM DESERT FUNDING COMPANY, L.P.,
A California limited partnership
(UNIVERSITY PARK MASTER DEVELOPMENT PLAN)
Dated: , 2006
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PLANNING COMMISSION RESOLUTION NO. 2431
DEVELOPMENT AGREEMENT
(University Park)
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as
of this day of , 2007, by and between the City of Palm Desert, California, a
municipal corporation organized and existing under the laws of the State of California (the
"City), and Palm Desert Funding Company, L.P., a Delaware limited partnership ("Developer"),
with reference to the following facts, understandings and intentions of the parties:
RECITALS
A. These Recitals refer to and utilize certain capitalized terms which are defined in
this Agreement. The parties intend to refer to those definitions in conjunction with the use
thereof in these Recitals.
B. Government Code Sections 65684 through 65869.5 inclusive (the "Development
Agreement Legislation") authorize the City to enter into development agreements in connection
with the development of real property within its jurisdiction. On August 11, 1983, the City
enacted by Ordinance No. 341, as amended on December 7, 1989 by Ordinance No. 589
(collectively, the "Development Agreement Ordinance"), procedures and requirements for the
consideration of development agreements thereunder pursuant to the Development Agreement
Legislation.
C. Developer owns or is purchasing certain property in the City of Palm Desert
California (the "Property") which Property is more particularly described on Exhibit "A"
attached hereto and incorporated herein by this reference.
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D. Developer intends to use the Property to develop a Project consisting of the
medium and low density residential development and associated amenities and public
improvements.
E. The Property is located within an important planning area (University Park Area)
of the City and the coordinated development of the Project pursuant to this Agreement represents
an important and mutually beneficial economic development and land usage planning
opportunity for the City and Developer.
F. In April 1997, the City Council, by its Ordinance No. 838, approved a
Development Agreement (DA 97-2), and said DA 97-2 was recorded in the official records of
the County Recorder for the County of Riverside on May 22, 1997 as Instrument No. 179687.
DA 97-2 included a development plan for a large area of land which was centered around the
Cook Street and Gerald Ford Drive intersection. DA 97-2 incorporated the Wonder Palms
Development Plan, including eight planning areas. A portion of the Property was included in the
approved Wonder Palms Development Plan as Planning Areas 3 and 5. It is the intent of the
parties to this Agreement that this Agreement amend and supercede DA 97-2 with respect to any
portion of the Property subject to DA 97-2. This Agreement shall not affect any portion of the
land affected by the Wonder Palms Development Plan outside the boundaries of the Property.
G. In the 2004 General Plan update, the section (Section 33) within which the
Property is located, (bounded by Frank Sinatra on the south, Portola on the west, Gerald Ford on
the north, and Cook on the east), was considered a distinct planning area which made up part of
the University Park Area.
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H. The City has determined that the development of the Project as contemplated by
this Agreement is consistent with and in furtherance of the development goals, policies, general
land uses and development programs of the City as set forth in the City's University Park Area
of the General Plan, and is consistent with the existing Planned Community Development (PCD)
Overlay Zone.
I. City has further determined that entry into this Agreement will further the goals
and objectives of the City's land use planning policies by, among other things, encouraging
investment, providing precise and supplemental criteria for the uses, design, circulation and
development of the Property, including flexibility in land use options which may be altered in
order to respond to future changes in the surrounding areas, eliminating uncertainty in planning
for, and securing orderly processing and development of, the Project. The benefits conferred on
the City by Developer herein will (i) ensure consistent, comprehensive planning which will result
in aesthetically pleasing, environmentally harmonious, and economically viable development
within the City; and (ii) further the development objectives of the City in an orderly manner, all
of which will significantly promote the health, safety and welfare of the residents of the City. In
exchange for these benefits to the City, Developer desires to receive the assurance that it may
proceed with the Project in accordance with the University Park Master Development Plan as
approved by the City on April 27, 2006 ("Development Plan") attached to this Agreement as
Exhibit "B", and at a rate of development of its choosing, subject to the terms and conditions
contained in this Agreement and subject to the processing of additional land use approvals as
may be reasonably required to implement the Development Plan.
J. By adopting this Agreement, the City Council has elected to exercise certain
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governmental powers at the present time rather than deferring such actions until an undetermined
future date and has done so intending to bind the City and the City Council and intending to limit
the City's future exercise of certain governmental powers, to the extent permitted by law.
K. This Agreement has undergone extensive review by the City's staff, the Planning
Commission and the City Council.
L. In order to effectuate the foregoing, the parties desire to enter into this
Agreement.
NOW, THEREFORE, pursuant to the authority contained in the Development Agreement
Legislation, and in consideration of the mutual covenants and promises of the parties herein
contained, the parties agree as follows:
1. Definitions.
1.1 Defined Terms. Each reference in this Agreement to any of the following
terms shall have the meaning set forth below for each such term.
1.2 Agreement. This Development Agreement.
1.3 Building Ordinances. Those building standards, of general and uniform
application throughout the City and not imposed solely with respect to the Property, in effect
from time to time that govern building and construction standards within the City, including,
without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire
codes.
1.4 City Council. The legislative body of the City of Palm Desert.
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1.5 Effective Date. The date on which the Enacting Ordinance becomes
effective.
1.6 Enacting Ordinance. Ordinance , enacted by the City Council
on , 2007, approving this Agreement.
1.7 Existing Land Use Ordinances. The Land Use Ordinances in effect as of
the Effective Date.
1.8 Land Use Ordinances. The ordinances, resolutions, codes, rules,
regulations and official policies of the City, governing the development of the Property,
including but not limited to, the permitted uses of land, the density and intensity of use of land,
and the timing of development, all as applicable to the development of the Property.
Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shall
include the City's General Plan, the City's zoning ordinance and the City's subdivision code, but
shall exclude the Building Ordinances.
1.9 Mortgage. A mortgage, deed of trust, sale and leaseback arrangement in
which all or a part of the Property, or an interest in it, is sold and leased back concurrently, or
other transactions in which all or a part of the Property, or an interest in it, is pledged as security,
contracted in good faith and for fair value.
1.10 Proiect. The medium and low density residential development and
associated amenities, and on -site and off -site improvements, as permitted under and described in
the Master Development Plan (Exhibit `B"), to be constructed on the Property, as the same may
hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement
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and pursuant to the conditions of approval imposed on any further land use entitlement
applications that may be reasonably required in order to implement the development of the
Proj ect.
1.11 Property. The real property and any improvements thereon which is
described in Exhibit "A" to this Agreement.
1.12 Tract Maps. Tract Maps 32655, 32655-1, tentative tract maps 34055,
34057, 34074, and 34626 and any other tract map affecting the Property and implementing the
Project, approved hereafter with the consent of the Developer.
2. Term; Amendment.
2.1 Term. The term of this Agreement (the "Term") shall commence on the
Effective Date and shall terminate on the ten (10) year anniversary date of the Effective Date,
unless sooner terminated or extended as hereinafter provided.
2.2 Amendment. The parties to this Agreement at their sole discretion and by
their mutual written consent may from time to time amend the provisions and terms of this
Agreement and the Exhibits hereto. Any amendment to this Agreement or the Exhibits hereto as
provided herein shall be effected only upon compliance with the procedures for amendment, if
any, required by the Development Agreement Legislation and the Development Agreement
Ordinance. The City shall, after any such amendment takes effect, cause an appropriate notice of
such amendment to be recorded in the official records of the County of Riverside.
3. Supercede DA 97-2. This Agreement shall amend and supercede DA 97-2
(recorded by Riverside County Recorder on May 22, 1997 as Instrument No. 179687) with
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respect to any portion of the Property subject to DA 97-2.
4. General Development of the Project.
4.1 Proiect.
(a) The Project is defined and described in the University Park Master
Development Plan attached to this Agreement as Exhibit "B", which specifies for the purpose of
this Agreement all of the following aspects of the Project: (i) proposed land uses of the Property;
(ii) the maximum (and probable) density and intensity of development of the Property; (iii)
development standards; (iv) open space and park requirements; (v) certain requirements relating
to access and traffic circulation within the Property; and (vi) certain design guidelines relating to
the construction of on -site and off -site improvements.
'"' (b) During the Term hereof, Developer shall have the vested right to
ONO
develop the Project in accordance with, and development of the Project shall be governed by, the
Development Plan and, to the extent not inconsistent with or modified by the Development Plan,
the Existing Land Use Ordinances. Developer's right to develop the Property in accordance with
this Section 4.1 shall remain subject to:
(i) all ordinances, regulations, rules, laws, plans, policies, and guidelines of
the City and its City Council, Planning Commission, and all other City boards, commissions, and
contained within the Existing Land Use Ordinances;
(ii) all amendments or modifications to Existing Land Use Ordinances after
the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans, policies,
and guidelines of the City and its City Council, Planning Commission, and all other City boards,
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commissions, and committees enacted or adopted after the Effective Date of this Agreement
(collectively, "New Laws"), except such New Laws which would prevent or materially impair
Developer's ability to develop the Project in accordance with the Development Plan unless such
New Laws are (A) adopted by the City on a City-wide basis and applied to the Site in a non-
discriminatory manner, (B) required by a non -City entity to be adopted by or applied by the City
(or if optional the failure to adopt or apply such non -City law or regulation would cause City to
sustain a loss of funds or loss of access to funding or other resources), or (C) New Laws the City
reserves the right to apply under this Agreement;
(iii) all subsequent development approvals implementing the Project and the
conditions of approval associated therewith, including but not limited to Project Tract Maps and
building permits,
(iv) the payment of all fees or exactions in the categories and in the amounts as
required at the time such fees are due and payable which may be at the time of issuance of
building permits, or otherwise as specified by applicable law, as existing at the time such fees are
due and payable, it being understood that this Agreement shall not prevent the City from
establishing any new City fees, including new development impact fees, or increasing any
existing City fees, and to apply such new or increased fees to the Project or applicable portion
thereof,
(v) the reservation or dedication of land for public purposes or payment of
fees in lieu thereof as required at the time such reservations or dedications or payments in lieu
are required under applicable law to be made or paid,
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(vi) Building, electrical, mechanical, fire and similar building codes based
upon uniform codes adopted in, or incorporated by reference into, the Palm Desert Municipal
Code, as existing on the Effective Date of this Agreement or as may be enacted or amended
thereafter, applied to the Project in a nondiscriminatory manner.
(c) Notwithstanding any condition setting forth the earlier expiration
of any of the Tentative Maps, each of the Tentative Maps shall remain effective for tie Term of
this Agreement unless modified with the concurrence of Developer, its successors or assigns.
4.2 Project Timing; Construction Entitlement. The parties acknowledge
that Developer cannot at this time predict when or the rate at which or the order in which parts of
the Project will be developed. Such decisions depend upon numerous factors which are not
within the control of Developer, such as market orientation and demand, interest rates,
competition and other similar factors. Therefore, the parties hereto acknowledge and expressly
agree that Developer is hereby granted by the City the vested and guaranteed right to develop the
Project in such manner and at such rate and at such times as Developer deems appropriate within
the exercise of its sole subjective business judgment. Therefore, City expressly agrees that
Developer shall be entitled to apply for precise plans, subdivision maps, building permits,
occupancy certificates and other land use and development entitlements for its use at any time
provided that such application is made in accordance with the Development Plan and this
Agreement.
Notwithstanding any provisions to the contrary in this Agreement or the Existing Land
Use Ordinances, Developer shall have the right, but not the obligation, to construct not less than
the maximum number of square feet of gross floor area or dwelling units of any permitted use
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under the Development Plan specified with respect to any designated Planning Area set forth in
the Development Plan. Developer acknowledges that additional land use entitlements may
reasonably be required pursuant to the City's Existing Land Use Ordinances, before Developer
may obtain permits for construction on the Property.
4.3 Building Permits and Other Approvals and Permits. Subject to (a)
Developer's (or its assignee's) compliance with this Agreement, the Development Plan, the
Existing Land Use Ordinances and the Building Ordinances, and (b) payment of the usual and
customary fees and charges of general application charged for the processing of such
applications, permits and certificates and for any utility connection, or similar fees and charges
of general application, the City shall process and issue to Developer or its assignee promptly
upon application therefor all necessary use permits, building permits, occupancy certificates, and
other required permits for the construction, use and occupancy of the Project, or any portion
thereof, as applied for, including connection to all utility systems under the City's jurisdiction
and control (to the extent that such connections are physically feasible and that such utility
systems are capable of adequately servicing the Project).
4.4 Procedures and Standards. The standards for granting or withholding
permits or approvals required hereunder in connection with the development of the Project shall
be governed as provided herein by the standards, terms and conditions of this Agreement and the
Development Plan, and to the extent not inconsistent therewith, the Existing Land Use
Ordinances, but the procedures for processing applications for such permits or approvals
(including the usual and customary fees of general application charged for such processing) shall
be governed by such ordinances and regulations as may then be applicable and which are
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ellar consistent with the Development Plan.
4.5 Effect of Agreement. This Agreement shall constitute a part of the
Enacting Ordinance, as if incorporated by reference therein in full. The parties acknowledge that
this Agreement is intended to grant Developer the right to develop the Project pursuant to
specified and known criteria and rules as set forth in the Development Plan and the Existing
Land Use Ordinances, and to grant the City and the residents of the City certain benefits which
they otherwise would not receive.
This Agreement shall be binding upon the City and its successors in accordance with and
subject to its terms and conditions notwithstanding any subsequent action of the City, whether
taken by ordinance or resolution of the City Council, by referenda, initiative, or otherwise. The
parties acknowledge and agree that by entering into this Agreement and relying thereupon, the
Developer has obtained, subject to the terms and conditions of this Agreement, a vested right to
proceed with its development of the Project in accordance with the proposed uses of the
Property, the density and intensity of development of the Property and the requirements and
guidelines for the construction or provision of on -site and off -site improvements as set forth in
the Development Plan and the Existing Land Use Ordinances, and the timing provisions of
Section 4.2, and the City has entered into this Agreement in order to secure the public benefits
conferred upon it hereunder which are essential to alleviate current and potential problems in the
City and to protect the public health, safety and welfare of the City and its residents, and this
Agreement is an essential element in the achievement of those goals.
4.6 Operating Memoranda. Developer and City acknowledge that the
provisions of this Agreement require a close degree of cooperation between Developer and City,
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and that refinements and further development of the Project may demonstrate that changes or
additional provisions are appropriate with respect to the details of performance of the parties
under this Agreement in order to effectuate the purpose of this Agreement and the intent of the
parties with respect thereto. If and when, from time to time, the parties find that such changes or
additional provisions are necessary or appropriate, and subject to the provisions of the next
succeeding sentence, they shall effectuate such changes or provide for such additional provisions
through operating memoranda to be approved in good faith by the parties, which, after execution,
shall be attached hereto as addenda and become a part hereof, and may be further changed or
supplemented from time to time as necessary, with further good faith approval of Developer and
City. Upon receipt by the City of an opinion of the City Attorney to the effect that the subject
matter of such operating memoranda does not require the amendment of this Agreement in the
manner provided in Section 65868 of the California Government Code, then no such operating
memoranda shall require prior notice or hearing, or constitute an amendment to this Agreement;
and in the case of the City, such operating memoranda may be approved and executed by its
Community Development Director or City Manager without further action of the City Council.
Failure of the parties to enter into any such operating memoranda shall not affect or abrogate any
of the rights, duties or obligations of the parties hereunder or the provisions of this Agreement.
5. Specific Criteria Applicable to Development of the Project.
5.1 University Park Master Development Plan. The Development Plan is a
regulatory plan which, upon adoption by ordinance, will constitute the basic land use and
development criteria of the property. Development plans or agreements, tract or parcel maps,
precise development plans or any other action requiring ministerial or discretionary approval of
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SIM their property shall be consistent with the Development Plan. Should the regulations contained
in the Development Plan differ from the regulations of the Palm Desert Zoning Ordinance, the
regulations of the Development Plan shall take precedence to the extent provided within the
approved Development Plan.
5.2 Applicable Ordinances. Except as set forth in the Development Plan
and subject to the provisions of Section 5.3 and 5.4 below, the Existing Land Use Ordinances
shall govern the development of the Property hereunder and the granting or withholding of all
permits or approvals required to develop the Property; provided, however, that (a) Developer
shall be subject to all changes in processing, inspection and plan -check fees and charges imposed
by City in connection with the processing of applications for development and construction upon
the Property so long as such fees and charges are of general application and are not imposed
solely with respect to the Property, and (b) Developer shall abide by the Building Ordinances in
effect at the time of such applications.
5.3 Amendment to Applicable Ordinances. In the event that the Palm
Desert zoning ordinance is amended by the City in a manner which provides more favorable site
development standards for the Property or any part thereof than those in effect as of the Effective
Date, Developer shall have the right to notify the City in writing of its desire to be subject to all
or any such new standards for the remaining term of this Agreement. If City agrees, by resolution
of the City Council or by action of a City official whom the City Council may designate, such
new standards shall become applicable to the Property or portions thereof. Should City
thereafter amend such new standards, upon the effective date of such amendment, the original
new standards shall continue to apply to the Property as provided above, but Developer may
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notify City in writing of its desire to be subject to all or any such amended new standards and
City may agree in the manner above provided to apply such amended new standards to the
Property.
5.4 Modification or Suspension by State Law or Federal Law. In the event
that state or federal laws or regulations, enacted after the effective date of this Agreement,
prevent or preclude compliance with one or more of the provisions of this Agreement, such
provisions of this Agreement shall be modified or suspended as may be necessary to comply
with such state or federal laws or regulations, provided, however, that this Agreement shall
remain in full force and effect to the extent it is not inconsistent with such laws or regulations,
and to the extent that such laws or regulations do not render such remaining provisions
impractical to enforce.
5.5 Easements; Abandonments. City shall reasonably cooperate with
Developer in connection with any arrangements for abandoning existing utility or other
easements and the relocation thereof or creation of any new easements within the Property
necessary or appropriate in connection with the development of the Project; and if any such
easement is owned by City, City shall, at the request of Developer and in the manner and to the
extent permitted by law, process such action as may be necessary to abandon existing easements
and relocate them to a location mutually acceptable to City and Developer, as necessary or
appropriate in connection with the development of the Project, all at the cost and expense of the
Developer. In addition, to the extent that temporary or permanent easements on property
adjacent or in close proximity to the Property will be required in order for Developer to develop
all or portions of the Project, the City shall cooperate with Developer in efforts to obtain or
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secure any such required easements.
6. Timing of Construction.
6.1 Timing of Parks Construction. The University Park Master
Development Plan includes parks to serve the community. Various business agreements related
to the Community Facilities District for this area provide that the City purchase the parkland
from the developer and the developer subsequently constructs the park improvements to City
specifications.
The City desires assurance that the construction of the park improvements be commenced
and completed in a timely manner. Accordingly, the developer agrees that the parks shall be
constructed and completed as part of the first phase of the tract in which they are located. More
specifically, these parks shall be completed prior to the issuance of a Certificate of Occupancy
for any residence in that tract.
6.2 Exception to 6.1 Provisions. The developers are requesting that the City
issue another $20 million in bond monies in the near future. IRS tax regulations require that the
City needs to have a reasonable expectation that they are going to spend the bond monies within
three (3) years of such additional issuance.
Therefore, notwithstanding the provisions of Section 6(a) above, the City reserves the
right to require that the monies be expended and the parks be constructed within three years of
such issuance.
7. Periodic Review of Compliance. In accordance with Govt. Code Section
65865.1, the City Council shall review this Agreement at least each calendar year during the
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term of this Agreement. At such periodic reviews, Developer must demonstrate its good faith
compliance with the terms of this Agreement. Developer agrees to furnish such evidence of
good faith compliance as the City, and after reasonable exercise of its discretion and after
reasonable notice to Developer, may require.
8. Permitted Delays; Supersedure by Subsequent Laws.
8.1 Permitted Delays. In addition to any other provisions of this Agreement
with respect to delay, Developer and City shall be excused from performance of their obligations
hereunder during any period of delay caused by acts of mother nature, civil commotion, riots,
strikes, picketing, or other labor disputes, shortage of materials or supplies, or damage to or
prevention of work in process by reason of fire, floods, earthquake, or other casualties, litigation,
acts or neglect of the other party, any referendum elections held on the Enacting Ordinance, or
the Land Use Ordinances, or any other ordinance effecting the Project or the approvals, permits
or other entitlements related thereto, or restrictions imposed or mandated by governmental or
quasi -governmental entities, enactment of conflicting provisions of the Constitution or laws of
the United States of America or the State of California or any codes, statutes, regulations or
executive mandates promulgated thereunder (collectively, "Laws"), orders of courts of
competent jurisdiction, or any other cause similar or dissimilar to the foregoing beyond the
reasonable control of City or Developer, as applicable. Each party shall promptly notify the
other party of any delay hereunder as soon as possible after the same has been ascertained. The
time of performance of such obligations shall be extended by the period of any delay hereunder.
8.2 Supercedure of Subsequent Laws or Judicial Action. The provisions
of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to
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comply with any new Law or decision issued by a court of competent jurisdiction (a "Decision"),
enacted or made after the Effective Date which prevents or precludes compliance with one or
more provisions of this Agreement. Promptly after enactment of any such new Law, or issuance
of such Decision, the parties shall meet and confer in good faith to determine the feasibility of
any such modification or suspension based on the effect such modification or suspension would
have on the purposes and intent of this Agreement. In addition, Developer and City shall have
the right to challenge the new Law or the Decision preventing compliance with the terms of this
Agreement. In the event that such challenge is successful, this Agreement shall remain
unmodified and in full force and effect, except that the Term shall be extended, in accordance
with Section 8.1 above, for a period of time equal to the length of time the challenge was
pursued.
9. Events of Default; Remedies; Termination.
9.1 Events of Default. Subject to any extensions of time by mutual consent
in writing, and subject to the provisions of Section 7 above regarding permitted delays, the
failure of either party to perform any material term or provision of this Agreement shall
constitute an event of default hereunder ("Event of Default") if such defaulting party does not
cure such failure within ninety (90) days following receipt of written notice of default from the
other party; provided, however, that if the nature of the default is such that it cannot be cured
within such ninety (90) day period, the commencement of the cure within such ninety (90) day
period and the diligent prosecution to completion of the cure shall be deemed to be a cure within
such period. Any notice of default given hereunder shall specify in detail the nature of the
alleged Event of Default and the manner, if any, in which such Event of Default may be
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satisfactorily cured in accordance with the terms and conditions of this Agreement. During the
time periods herein specified for cure of a failure of performance, the party charged therewith
shall not be considered to be in default for purposes of termination of this Agreement, institution
of legal proceedings with respect thereto, or issuance of any permit, map, certificate of
occupancy, approval or entitlement with respect to the Project.
9.2 Remedies. Upon the occurrence of an Event of Default, the nondefaulting
party shall have such rights and remedies against the defaulting party as it may have at law or in
equity, including, but not limited to, the right to damages and the right to terminate this
Agreement or seek mandamus, specific performance, injunctive or declaratory relief.
Notwithstanding the foregoing and except as otherwise provided in Section 8.4 hereof, if either
Developer or City elects to terminate this Agreement as a result of the occurrence of an Event of
Default, such proceeding of termination shall constitute such party's exclusive and sole remedy,
and with respect to such election and City and Developer hereby waive, release and relinquish
any other right or remedy otherwise available under this Agreement or at law or equity.
9.3 Waiver; Remedies Cumulative. Failure by a party to insist upon the
strict performance of any of the provisions of this Agreement by the other party shall not
constitute waiver of such party's right to demand strict compliance by such other party in the
future. All waivers must be in writing to be effective or binding upon the waiving party, and no
waiver shall be implied from any omission by a party to take any action with respect to such
Event of Default. No express written waiver of any Event of Default shall affect any other Event
of Default, or cover any other period of time specified in such express waiver.
9.4 Effect of Termination. Termination of this Agreement by one party due
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to the other party's default, or as a result of the exercise of the right of termination provided to
the Developer under Section 7.2 hereof, shall not affect any right or duty emanating from any
approvals, permits, certificates or other entitlements with respect to the Property or the Project
which were issued, approved or provided by the City prior to the date of termination of this
Agreement. If City terminates this Agreement because of Developer's default, then City shall
retain any and all benefits, including money, land or improvements conveyed to or received by
the City prior to the date of termination of this Agreement, subject to any reimbursement
obligations of the City. If Developer terminates this Agreement because of City's default, or as a
result of the exercise of the right of termination provided to the Developer under Section 7.2
hereof, then Developer shall be entitled to all of the benefits arising out of, or approvals, permits,
certificates or other entitlements on account of, any Exactions paid, given or dedicated to, or
received by, City prior to the date of termination of this Agreement. Except as otherwise
provided in this Section 8.4, all of the rights, duties and obligations of the parties hereunder shall
otherwise cease as of the date of the termination of this Agreement.
If this Agreement is terminated pursuant to any provision hereof, then the City shall, after
such action takes effect, cause an appropriate notice of such action to be recorded in the official
records of the County of Riverside. The cost of such recordation shall be borne by the party
causing such action.
9.5 Third Party Actions. Any court action or proceeding brought by any
third party to challenge this Agreement or any permit or approval required from City or any other
governmental entity for development or construction of all or any portion of the Project, whether
or not Developer is a party defendant to or real party defendant in interest in such action or
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proceeding, shall constitute a permitted delay under Section 7.1.
10. Encumbrances on Property.
10.1 Discretion to Encumber. The parties hereto agree that this Agreement
shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from
encumbering the Property or any portion thereof or any improvements thereon with any
mortgage, deed of trust or other security device ("Mortgage") securing financing with respect to
the Property. The City acknowledges that the lenders providing such financing may require
certain modifications to this Agreement, and the City agrees upon request, from time -to -time, to
meet with Developer and/or representatives of such lenders to negotiate in good faith any such
request for modification. City further agrees that it will not unreasonably withhold its consent to
any such requested modification. Any Mortgage on the Property shall include appropriate
provisions for the partial release of said Mortgage to assure that Developer can convey to the
City, free and clear of encumbrances, any portions of the Property which Developer is
conditioned to convey or has otherwise agreed to convey to the City or its designee.
10.2 Mortgage Protection. This Agreement shall be superior and senior to
the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall
defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for
value, and any acquisition or acceptance of title or any right or interest in or with respect to the
Site or any portion thereof by a Mortgagee (whether pursuant to a Mortgage, foreclosure,
trustee's sale, deed in lieu of foreclosure or otherwise) shall be subject to all of the terms and
conditions of this Agreement.
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10.3 Mortgagee Not Obligated. Notwithstanding the provisions of Section
9.2, no Mortgagee will have any obligation or duty under this Agreement to perform the
obligations of Developer or other affirmative covenants of Developer hereunder, or to guarantee
such performance, except that to the extent that any covenant to be performed by Developer is a
condition to the performance of a covenant by City, the performance thereof shall continue to be
a condition precedent to City's performance hereunder.
10.4 Estoppel Certificates. Either party may, at any time, and from time to
time, deliver written notice to the other party requesting such party to certify in writing that, to
the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding
obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended
or modified, identifying such amendments or modifications, and (iii) the requesting party is not
in default in the performance of its obligations under this Agreement, or if in default, describing
therein the nature and amount of any such defaults. A party receiving a request hereunder shall
execute and return such certificate within thirty (30) days following the receipt thereof. City
acknowledges that a certificate hereunder may be relied upon by transferees, assignees and
lessees of the Developer and the holders of any Mortgage.
11. Transfers and Assignments; Effect of Agreement on Title.
111 Rights and Interests Appurtenant. The rights and interests conveyed as
provided herein to Developer benefit and are appurtenant to the Property. Developer has the
right to sell, assign and transfer any and all of its rights and interests hereunder and to delegate
and assign any and all of its duties and obligations hereunder. Such rights and interests
hereunder may not be sold, transferred or assigned and such duties and obligations may not be
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delegated or assigned except in compliance with the following conditions:
(i) Said rights and interests may be sold, transferred or assigned only together with and as
an incident of the sale, lease, transfer or assignment of the portions of the Property to which they
relate, including any transfer or assignment pursuant to any foreclosure of a Mortgage or a deed
in lieu of such foreclosure. Following any such sale, Transfer or assignment of any of the rights
and interests of Developer under this Agreement, the exercise, use and enjoyment thereof shall
continue to be subject to the terms of this Agreement to the same extent as if the purchaser,
transferee or assignee were Developer hereunder.
11.2 Covenants Run with Land.
(i) All of the provisions, agreements, rights, powers, standards, terms,
covenants and obligations contained in this Agreement shall be binding upon the parties and their
respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees,
lessees, and all other persons acquiring any rights or interests in the Property, or any portion
thereof, whether by operation of laws or in any manner whatsoever, and shall inure to the benefit
of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and
assigns;
(ii) All of the provisions of this Agreement shall be enforceable as
equitable servitudes and constitute covenants running with the land pursuant to applicable law;
(iii) Each covenant to do or refrain from doing some act on the Property
hereunder (A) is for the benefit of and is a burden upon every portion of the Property, (B) runs
with such lands, and (C) is binding upon each party and each successive owner during its
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ownership of the Property or any portions thereof, and shall benefit each party and its lands
hereunder, and each such other person or entity succeeding to an interest in such lands.
12. Notices. Any notice to either party shall be in writing and given by delivering the
same to such party in person or by sending the same by registered or certified mail, return receipt
requested, with postage prepaid, to the following addresses:
If to City:
City Clerk of the City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
If to Developer:
Palm Desert Funding Company, L.P.
c/o Hover Development
3 San Joaquin Plaza, #215
Newport Beach, CA 92660
Attention: Tom Hover
Either party may change its mailing address at any time by giving written notice of such
change to the other party in the manner provided herein. All notices under this Agreement shall
be deemed given, received, made or communicated on the date personal delivery is effected or, if
mailed, on the delivery date or attempted delivery date shown on the return receipt.
13. Indemnification: Developer's Obligation.
13.1 Developer's Wrong -Doing. Developer will defend, indemnify and hold
the City and its elected officials, officers and employees ("Indemnified Parties") free and
harmless from any loss, cost or liability (including, without limitation, liability arising from
injury or damage to persons or property, including wrongful death and worker's compensation
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PLANNING COMMISSION RESOLUTION NO. 2431
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) anv claim which results from any willful or negligent act or omission
of Developer.
13.2 Environmental Assurances. Developer shall indemnify and hold the
Indemnified Parties free and harmless from any liability deriving from the City's execution or
performance of this Agreement, based or asserted, upon any act or omission of Developer, its
officers, agents, employees, contractors, subcontractors and independent contractors for any
violation of any federal, state or local law, ordinance or regulation relating to hazardous or toxic
materials, industrial hygiene, or environmental conditions created by Developer or its officers,
agents or employees, contractors, subcontractors and independent contractors after the Effective
Date and Developer shall defend, at its expense, including attorneys fees, the Indemnified Parties
in any action based or asserted upon any such alleged act or omission.
13.3 Challenges to Agreement. Developer agrees and shall indemnify, hold
harmless and defend the Indemnified Parties from any challenge to the validity of this
Agreement, or to the City's implementations of its rights under this Agreement.
13.4 Defense by Counsel Chosen by City. In the event the Indemnified
Parties are made a party to any action, lawsuit other adversarial proceeding in any way
involving claims specified in Sections 12.1, 12.2, or 12.3, Developer shall provide a defense to
the Indemnified Parties, with counsel reasonably acceptable to City. Developer shall be
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obligated to promptly pay all costs of defense, including all reasonable attorneys' fees, and any
final judgment or portion thereof rendered against the Indemnified Parties.
13.5 Non -Liability of City Officers and Employees. No official, officer,
employee, agent, or representative of the City, acting in his/her official capacity, shall be
personally liable to Developer, or any successor or assign, for any loss, cost, damages, claim,
liability or judgment arising out of or in connection to this Agreement, or for any act or omission
on the part of the City.
13.6 Survival. The provisions of these Sections 12.1, 12.2, 12.3, and 12.4 shall
survive the termination or expiration of this Agreement.
14. Miscellaneous.
14.1 Relationship of Parties. It is understood that the Project is a private
development, that neither party is acting as the agent of the other in any respect hereunder, and
that each party is an independent contractor. It is further understood that none of the terms or
provisions of this Agreement are intended to or shall be deemed to create a partnership, joint
venture or joint enterprise between the parties hereto.
14.2 Consents. Unless otherwise herein provided, whenever approval, consent,
acceptance or satisfaction (collectively, a "consent") is required of a party pursuant to this
Agreement, it shall not be unreasonably withheld or delayed. Unless provision is otherwise
specified in this Agreement or otherwise required by law for a specific time period, consent shall
be deemed given within thirty (30) days after receipt of the written request for consent, and if a
party shall neither approve nor disapprove within such thirty (30) day period, or other time
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period as may be specified in this Agreement or otherwise required by law for consent, that party
shall then be deemed to have given its consent. If a party shall disapprove, the reasons therefor
shall be stated in reasonable detail in writing. This Section does not apply to development
approvals by the City.
14.3 Not a Public Dedication. Except as otherwise expressly provided herein,
nothing herein contained shall be deemed to be a gifl or dedication of the Property, or of the
Project or any portion thereof, to the general public, for the general public, or for any public use
or purpose whatsoever, it being the intention and understanding of the parties that this
Agreement be strictly limited to and for the purposes herein expressed for the development of the
Project as private property.
14.4 Severability. If any term, provision covenant or condition of this
Agreement shall be determined invalid, void or unenforceable by judgment or court order, the
remainder of this Agreement shall remain in full force and effect, unless enforcement of this
Agreement as so invalidated would be unreasonable or grossly inequitable under all the relevant
circumstances or would frustrate the purposes of this Agreement.
14.5 Exhibits. The Exhibits listed in the Table of Contents, to which reference
is made herein, are deemed incorporated into this Agreement in their entirety by reference
thereto.
14.6 Entire Agreement. This written Agreement and the Exhibits hereto
contain all the representations and the entire agreement between the parties with respect to the
subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto,
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the case may be, shall promptly pay any and all costs and expenses (including without limitation,
all court costs and reasonable attorneys' fees and expenses) incurred by the other party with
respect to such to such dispute or in enforcing or establishing its rights hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above -written.
DEVELOPER:
PALM DESERT FUNDING COMPANY, L.P.,
A Delaware Limited Partnership
By:
Its: General Partner
By:
President
CITY:
CITY OF PALM DESERT, CALIFORNIA, a
municipal corporation organized and existing under
the laws of the State of California
By:
Richard S. Kelly, Mayor
Attest:
Rachelle D. Klassen, City Clerk
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PLANNING COMMISSION RESOLUTION NO. 2431
STATE OF CALIFORNIA )
ss
COUNTY OF )
On , 2007, 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.
WITNESS my hand and official seal.
Notary Public
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TABLE OF CONTENTS
PAGE
RECITALS 1
1. Definitions 4
1.1 Defined Terms 4
1.2 Agreement 4
1.3 Building Ordinances 4
1.4 City Council ... 5
1.5 Effective Date 5
1.6 Enacting Ordinance 5
1.7 Existing Land Use Ordinances 5
1.8 Land Use Ordinance 5
1.9 Mortgage 5
1.10 Project 5
1.11 Property 6
1.12 Tract Maps 6
2. Term; Amendment 6
2.1 Term 6
2.2 Amendment 6
3. Supercede DA 97-2 6
4. General Development of the Project 7
4.1 Project 7
4.2 Project Timing; Construction Entitlement 9
4.3 Building Permits and Other Approvals and Permits 10
4.4 Procedures and Standards 10
4.5 Effect of Agreement 11
4.6 Operating Memoranda 11
5. Specific Criteria Applicable to Development of the Project 12
5.1 University Park Master Development Plan 12
5.2 Applicable Ordinances 13
5.3 Amendment to Applicable Ordinances 13
5.4 Modification or Suspension by State Law or Federal Law 14
5.5 Easements; Abandonments 14
6. Timing of Construction .15
6.1 Timing of Parks Construction 15
6.2 Exception to 6.1 Provisions 15
7. Periodic Review of Compliance 15
8. Permitted Delays; Supersedure by Subsequent Laws 16
8.1 Permitted Delays 16
8.2 Supersedure of Subsequent Laws or Judicial Action 16
9. Events of Default; Remedies; Termination 17
9.1 Events of Default 17
9.2 Remedies 18
9.3 Waiver; Remedies Cumulative 18
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9.4 Effect of Termination 18
9.5 Third Party Actions 19
10. Encumbrances on Property .20
10.1 Discretion to Encumber 20
10.2 Mortgage Protection 20
10.3 Mortgagee Not Obligated 21
10.4 Estoppel Certificates 21
11. Transfers and Assignments; Effect of Agreement on Title 21
11.1 Rights and Interests Appurtenant 21
11.2 Covenants Run with Land 22
12. Notices 23
13. Indemnification: Developer's Obligation 23
13.1 Developer's Wrong -Doing 23
13.2 Environmental Assurances 24
13.3 Challenges to Agreement 24
13.4 Defense by Counsel Chosen by City 24
13.5 Non -Liability of City Officers and Employees 25
13.6 Survival 25
14. Miscellaneous. 25
14.1 Relationship of Parties 25
14.2 Consents 25
14.3 Not a Public Dedication 26
14.4 Severability 26
14.5 Exhibits 26
14.6 Entire Agreement 26
14.7 Governing Law; Construction of Agreement 27
14.8 Signature Pages 27
14.9 Time 27
14.10 Prevailing Party's Attorney's Fees and Costs 27
ii
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PLANNING COMMISSION RESOLUTION NO. 2431
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
[to be attached prior to recording]
C:\Documents and Settings \Robert.Hargreaves\My Documents\PALM DESERT - University Development Plan Development Agreement vl.doc
PLANNING COMMISSION RESOLUTION NO. 2431
EXHIBIT B
UNIVERSITY PARK MASTER DEVELOPMENT PLAN
[to be attached prior to recording]
ii
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