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ANNEXATIONS PRICE CLUB/COSTCO NO 30 1993
L BEST, BEST & KRIEGER ..WfNERWI.INLl11GNO VRO.kk!•IW4 MRYOMA,KM !•9 I e' LAWYERS R�.� ARTHUR L.LUTLEWORTH- ANTONIA GRAPHOS STEVEN C.dBAUN MARY E.GILSTRAP SUITE 312 GLEN E.STEPHENS' GREGORY K.WILKINSON BRANT H.DVEIRIN DANIEL C.PARKER.JR. J U L 2 0 1993 39700 808 HOPE DRIVE WILLIAM R.W WOLFE' WYNNE S.FURTH ERIC L.GARNER GINEVRA C.MARUM POST OFFICE BOX 1555 BARTON C.GAUT' DAVID L.BARON DENNIS M.COTA GLENN P.SABINE RANCHO MIRApE, CALIFORNIA 92270 PAUL T.SELZER' EUGENE TANAKA JULIE HAYWARD BIGGS CHRISTINE L.RICHARDSON OALLAS HOLMES' BASIL L CHAPMAN RACHELLE J.NICOLLE JOANE GARCIA-COLSON COMMUKIIY DEVEIOPmw DEPARTkTE�-EPHONE(619)568-2611 CHRISTOPHER L.CARPENTER' TIMOTHY M.CONNOR ROBERT W.HARGREAVES PHILIP J.KOEHLER CITY OF PALM DESERT TELECOPIER(619)340.6698 RICHARD T.ANDERSON' VICTOR L.WOLF JANICE L.WEIS DIANE C.WIESE JOHN O.WAHLGJ' DANIEL E.OLIVIER SHARYL WALKER REBECCA MARES GURNEY MICHAEL D.HARRIS. DANIEL J.MCHUGH PATRICK H.W.F.PEARCE ALLISON C.HARGRAVE W.CURT EALY' HOWARD B.GOLDS KIRK W.SMITH DOROTHY C ANDERSON THOMAS S.SLOVAK' STEPHEN P.OEITSCH JASON 0.OABAREMER G.HENRY WELLES JOHN E.GROWN' MARC E.EMPEY KYLE A.SNOW JAMES R.HARPER MICHAEL T.RIDDELL' JOHN R.ROTTSCHAEFER MARK A.EASTER DINA O.HARRIS MEREDITH A.JURY' MARTIN A.MUELLER DIANE I.FINLEY BARBARA R.BARON OF COUNSEL MICHAEL GRANT' J.MICHAEL SUMMEROUR MICHELLE OUELLETTE RICHARD T.EGGER JAMES B.CORISON FRANCIS J.BAUM' VICTORIA N.KING PETER M.BARMACK PATRICK O.GOLAN ANNE T.THOMAS• JEFFERY J.CRANDALL DAVID P.PHIPPEN.SR. DEAN R.OERLETH 0.MARTIN NETHERY' SCOTT C.SMITH SUSAN C.NAUSS HELENE P.GREYER GEORGE M.REYES JACK B.CLARKE,JR. CHRISTOPHER DODSON EMILY P.HEMPHILL WILLIAM W.FLOYD.JR. BRIAN M.LEWIS BERNIE L.WILLIAMSON SONIA RUBIO SHARMA GREGORY L.HAROKE JEANNETTE A.PETERSON EWNE E.HILL JOHN 0.PINKNEY KENDALL H.MacVEY BRADLEY E.NEUFELD KEVIN K.RANDOLPH OFFICES IN CLARK H.ALSOP- ELISE K.TRAYNUM JAMES B.GILPIN RIVERSIDE 1909168E-IA50 DAVID J.ERWIN' WILLIAM D.OAHLING.JR. MARSHALL S.RUDOLPH RAYMOND BEST(1SOS-19S7) MICHAEL J.ANOELSON' MATT H.MORRIS KIM A.BYRENS JAMES H.KRIEGER 41913-1975) PALM SPRINGS(619)325-7264 DOUGLAS S.PHILLIPS' JEFFREY V.DUNN CYNTHIA M.GERMANO EUGENE BEST(1893-IMI) ONTARIO 4909)989-8581 •A rPpimCHAL WAOM.TIa' R` July 9, 1993 Sheila Gilligan, City Clerk City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Re: Annexation 30 Development Agreements �J Dear Sheila: Enclosed please find the following recorded original - Development Agreements for your files: (1) Rancho Mirage Industri-al ,_ Park, Ruyen International Corp. , Henry Melby, Trustee of the B.IH. c> Fortner Testamentary Trust, MC-Properties, Macleod Couch Land Co. and Bernard and Jeanett DeBonne; (2) MC Properties; and (3) Monterey Palms. You should already have the development agreement between the Y City and Alyce Lazar. If you do not, please let me know and I will try to track it down for you. f This should finally be the end of these agreements. Should you have any questions, please feel free to call. Very truly yours, BEST, BEST & KRIEGER Pamela Field Secretary to DOUGLAS S. PHILLIPS /pam enclosures T PAN38396 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: O Q CJT� ui 0 c/° 0 o `" IQ ui BEST, BEST & KRIEGER g¢ yJL/ S9900 BOB HOPE 041VE. SUITE 312 W Ea PO•JT of-wicE sox ,sae UW RANr.MO MtRA3E. CALIFORNIA 92270 DEVELOPMENT AGREEMENT ENTERED INTO BETWEEN THE CITY CIF PALM DESERT AND RANCHO MIRAGE INDUSTRIAL PARK RUYEN INTERNATIONAL CORP., HENRY MELBY, TRUSTEE OF THE B. H. FORTNER TESTAMENTARY TRUST, MC- PROPERTIES, MACLEOD-COUCH LAND CO. AND BERNARD AND JE 1 NNETT DEBONNF. w � 181069 TABLE OF CONTENTS RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 5 2 . TERM. . . . . . . . . . . . . . . . . . . . . . . . . . 7 3 . RESTRICTIONS ON DEVELOPMENT AND USE. . . . . . . . . . . 7 4 . DEVELOPMENT AND USE . . . . . . . . . . . . . . . . . . . 9 5 . COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . 15 6 . DEFAULT BY OWNERS . . . . . . . . . . . . . . . . . . . . 15 7 . TIMING OF DEVELOPMENT . . . . . . . . . . . . . . . . . 15 8 . DEFAULT BY THE CITY . . . . . . . . . . . . . . . . . . 16 9 . INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . 17 10 . SUPERSEDING STATE OR FEDERAL LAW. . . . . . . . . . . 18 11 . SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . 19 12 . EQUITABLE SERVITUDES . . . . . . . . . . . . . . . . . . 19 13 . NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. . . 20 14 . NOTICES AND OTHER COMMUNICATIONS . . . . . . . . . . . . 20 15 . ESTOPPEL CERTIFICATES. . . . . . . . . . . . . . . . . . 21 16 . APPLICABLE LAW. . . . . . . . . . . . . . . . . . . . . 21 17 . VENUE. . . . . . . . . . . . . . . . . . . . . . . . . . 21 18 . ATTORNEYS' FEES. . . . . . . . . . . . . . . . . . . . . 22 19 . PARAGRAPH HEADINGS. . . . . . . . . . . . . . . . . . . 22 2U. CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . 22 21 . SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . 22 22 . CALENDAR PERIODS. . . . . . . . . . . . . . . . . . . . 22 23 . SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . 22 24 . FURTHER ASSURANCES . . . . . . . . . . . . . . . . . . . 23 25 . COVENANT OF GOOD FAITH. . . . . . . . . . . . . . . . . 23 i �� J 181069 26 . COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . 23 27 . INCORPORATION OF RECITALS. . . . . . . . . . . . . . . . 23 28. EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . 24 29 . AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . 24 30 . RECORDATION. . . . . . . . . . . . . . . . . . . . . . . 24 31 . AGREEMENT BY OWNERS RE NEGATIVE DECLARATION, NORTH SPHERE OF PREZONING, ANNEXATION OF OWNERS ' PROPERTY INTO THE CITY OF PALM DESERT . . . . . . . . . 24 ii 181069 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ( "Agreement" ) is entered into on 199/, between RANCHO MIRAGE INDUSTRIAL PARR, RUYEN INTERNATIONAL CORP. , HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST, MC-PROPERTIES, A CALIFORNIA PARTNERSHIP; MACLEOD-COUCH LAND CO. , A CALIFORNIA PARTNERSHIP, BERNARD AND JEANNETT DEBONNE ( "Owners" ) , and the CITY OF PALM DESERT, a municipal corporation or.3anized and existing under the laws of the State of California (the "City" ) . Owner and the City are sometimes collectively referred to herein as 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 65864-65869 .5 ( "Development Agreement Law" ) authorize the City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and reducing the economic costs of such development. C . Pursuant to Government Code Section 65865, the Ciiy has adopted rules and regulations establishing procedures and requirements for consideration of 1 J 181069 D. Owners are the owners of the real property described on Exhibits "1" , "211 , "3" and "4" , a! ached hereto and incorporated herein by this reference (the "Property" ) . The Property is currently located within the unincorporated area of Riverside County, within the City sphere of influence. The City has initiated proceedings for the annexation of the Property into the corporate boundaries of the City in accordance with the Cortese- Knox Act (Government Code Section 56000 , et seq. ) , has certified and approved a negative declaration pursuant to the California Environmental Quality Act for prezoning, and has approved certain pre-annexation zoning for the property (C/Z 92-1) . Such annexation proceedings will be completed following approval of this Agreement, and this Agreement shall not be effective until such time as the annexation proceedings are completed. E. Owners ' properties are currently zoned as follows under the County of Riverside Land Use Ordinance and General Plan: Name Legal Description of Property Zoning Rancho Mirage See Exhibit 1 Attached C-P-S and IP Industrial Park Ruyen International See Exhibit 1 Attached C-P-S and IP Corp. Henry Melby, Trustee of the B.H. Fortner Testamentary Trust See Exhibit 2 Attached IP MC Properties/ MacLeod-Couch Land Co. See Exhibit 3 Attached Bernard and Jeannett DeBonne See Exhibit 4 Attached IP Prior to approving such zoning, the County performed all required environmental analysis in accordance with CEQA. mirage.da4/ts/12-28-82 2 � J 181069 F. On July 28, 1992, the County of Riverside approved Tentative Commercial Parcel Map 24255, subject to conditions, with respect to certain property owned by Rancho Mirage Industrial Park and Ruyen International Corp. legally described as : Assessor 's Parcel Nos . 653-250-005, 653-250- 006, 653-250-010, 653-250-014, 653-250-015, 653-250-016 , 653-250-017 , 653-250-018, and 653-250-019 ( hereafter referred to as the RMIP/Ruyen Property) . Prior to approving P .M. 24255 , the County performed all required environmental analysis in accordance with CEQA. G. The County of Riverside has previously approved Parcel Map 2741.9, subject to conditions, with respect to certain property owned by Henry Melby, as Trustee of the A .H. Fortner Testamentary Trust, legally described as: Assessor's Parcel No. 653-250-011 Prior to approving Parcel Map 27419, the County performed all required environmental analysis in accordance with CEQA. H. Owners intend to use their property for industrial, commercial or for less intensive commercial and/or residential uses, and seek certainty in the approval of the industrial, commercial, or residential uses of their property and with respect to the development of their prof . rty. I. In partial consideration of, and in order to implement that certain Settlement Agreement and Mutual Release between the City and Rancho Mirage Industrial Park dated lbec ern be.f 17 , 1992, the City and Owners have entered into this Agreement relating to The Property, and proceedings have been taken in accordance with the development agreement law and the City's rules and regulations . mirage.daOts/12-28-92 3 l 181069 J. The City Council has found that this Agreement is consistent with the City's genial plan, as amended (the "General Plan" ) , and any applicable Specific Plan. R. On 17ecernbu 1-7 , 1992 , the City Council of the City adopted Ordinance No. A& approving this Agreement with Owners . L. The "Development Criteria" as defined and specified below implement the goals and policies of the City's General Plan and provide balanced and di.versified land uses in order to maintain the overall quality of life and of the environment within the City, and impose appropriate standards and requirements with respect to land development and usage of The Property. M. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. This Agreement has undergone extensive review by the City's staff, the Planning Commission of the City, and the City Council and has been found to be fair, just and reasonable and in the best interest of the citizens of the City and the public health, safety and welfare. IN CONSIDERATION OF THE RECITALS AND THE MUTUAL COVENANTS AND CONDITIONS OF THIS AGREEMENT, the parties agree as follows: nirage.daVt, 12-28-92 4 i / 181069 AGREEMENT 1 . DEFINITIONS. 1. 1 "Agreement" is this Development Agreement. 1 .2 "Agreement Date" is the date this Agreement is executed by the City. 1. 3 "CEQA" is the California Environmental Quality Act, Public Resources Code Section 21000, et sec . 1 . 4 "City" is the City of Palm Desert, California. 1 .5 "County" is the County of Riverside, California. 1 . 6 "Development Criteria" are: (a) As to Assessor's Parcel Nos. : 653-250-005, 653-250- 006 , 653-250-010, 653-250-014, 653-250-015, 653-250-016 , 653-250- 017, 653-250-018, and 653-250-019 (RMIP/Ruyen Property) : The County of Riverside approved zoning (C-P-S and I-P) approved by C2 5017 and permitted by EIR 166 as well as the conditions of approval for Tentative Commercial Parcel Map 24255, amended no. 2, with respect to Assessor's Parcel Nos. 653-250-005, 653-250-006 , 653-250-010, 653-250-014, 653-250-015, 653-250-016, 653-250-017, 653-250-018, and 653-250-019 approved by the County of Riverside on July 28, 1992; (b) As to Assessor's Parcel No. : 653-250-011-5 (Property of the B.H. Fortner Testamentary Trust: The County of Riverside Conditions of Approval with respect. to Tentative Parcel Map No. 27419 (Fortner Trust) approved by the County on July 21, 1992; mirage da41to112-28 92 5 181069 (c) The terms and conditions of any additional pre- annexation agreements entered into by the City and the Owners of the Properties specified on Exhibits " 1" , "2 " , "3 " and "4 " . (d) Subject to 1 . 6(a) , (b) and (c) above, all of those ordinances , resolutions, codes, rules, regulations and official policies of the City governing the development and use of the Property including, without limit.)ti.on, the permitted uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings, the provisions for reservation of dedication of land for public purposes, and the design, improvement and construction standards and c;pecifications otherwise applicable to the development of the Property, as they may now exist or as they may be changed from time to time by the City. 1. 7 "Effective Date" is that date which is the later to occur of the following: (a) the expiration date for the filing of a referendum petition challenging the ordinance approving this Agreement if no such petition is filed by such date, (b) the date that the results of a referendum elecLion are declared approving this Agreement, if a referendum petition is filed within the applicable period, or (c) the date the Property is annexed into the City. 1.8 "Owners " are Rancho Mirage Industrial Park, Ruyen International Corp. , Henry Melby, Trustee of the B.H. Fortner Testamentary TT ,18t, MC-Properties/MacLeod-Couch Land Co. and Bernard and Jeannett DeBonne and their successors in interest to all or any part of the Property. nirag: da4/t$/12-28 92 6 181069 1 . 9 "Property" is all of the real property and any improvements thereon described in Exhibits "1" , "2 " , "3" and "4 " , attached hereto and incorporated herein by this reference. 2 . TERM. 2 . 1 Unless earlier terminated as provided in this Agreement, this Agreement will commence on the date the Property is annexed into the City and will continue for a period of ten ( 10) years thereafter. 2 . 2 In accordance with Government Code 565865(b) , the Property shall be annexe,1 into the City within one ( 1) year after the date the Agreement is signed unless such time period is extended by further agreement of the parties . However, City will exercise its best efforts to complete annexation of the Property, in accordance with the terms and conditions of this Agreement and any additional pre-annexation agreements entered into between City and Owners, within six months from the effective date of this Agreement. 3 . RESTRICTIONS ON DEVELOPMENT AND USE. The development and use of the Property, including the density or intensity of use, the maximum height and size of proposed buildings, building setback requirements, parking requirements and provisions for reservation or dedication of land for public purposes, will be governed by the Development Criteria as defined in Paragraph 1 .6 (a) (b) (c) and (d) above. The City acknowledges and agrees that the Development Criteria specifically permit the development and use of the Rancho Mirage Industrial Park - Ruyen International Corp. Property as allowed under the County's C-P-S mirage A24/ts112-28-92 7 181069 and I-P zones (County of Riverside EIR No. 166 and CZ 5017) . The City further acknowledges and agrees that the Development Criteria specifically permit the division of Assessor's Parcel No. 653-250- 006 , owned by Rancho Mirage Industrial Park and Ruyen International Corp. , (consisting of one hundred sixty nine point and four tenths [ 169 .4] acres) into one hundred ( 100) commercial lots, subject to the conditions of County's Commercial Parcel Map No. 24255, amendment no. 2 . The City finally acknowledges and agrees that the Development Criteria specifically permit the division of that Property owned by Henry Melby as Trustee of the B.H. Fortner Testamenta, y Trust legally described on Exhibit 2 as permitted by Riverside County Parcel Map No. 27119, subject to those conditions imposed by the County. Except with regard to those aspects of the development of the Property which are address.-,! in finis Agreement , the parties acknowledge and agree that other aspects of the development of the Property, such as signage, architectural review and art in public places, may require the exercise of discretion by the City and that those aspects of the development of th,: Property will be subject to the City's reasonable review and approval as set forth in the City's ordinances, resolutions, rules and regulations , as they exist at the time of approval . However, zoning and land use designations are fixed by this Agreement, as are tract maps and use permits specifically named and ment.iuned in this Agreement and such aspects of development are hereby fixed and are not subject to ordinances, resolutions, rules, regulations and policies in effect at the time of development . mirage.&4/ts/12 28.92 8 ' 4 . DEVELOPMENT AND USE . 181069 4 . 1 Rancho Mirage Industrial Park, Ruyen International Corp. , Henry Melby, Trustee of the B.H. Fortner Testamentary Trust, MC- Properties/MacLeod-Couch Land Co. and Bernard and Jeannett DeBonne will have the vested right to develop their Property to the extent covered by and in accordance with the Development Criteria and this Agreement. 4 .2 Traffic lights are proposed to be installed by certain Owners at the intersection of Monterey Avenue and the roadway which the Owners MC-Properties/MacLeod-Couch Land Co. propose to use as the principal access into their Property. Such access roadway is currently designed to proceed in an East/west direction, to approximately the Easterly boundary line of the MC- Properties/MacLeod-Couch property and to thereafter proceed Northeasterly to intersect Dinah Shore Drive at right angles . The area where such Northeasterly turn in the roadway is proposed is owned by Monterey Palms, a California Limited Partnership ( "Monterey Palms" ) . To the extent that such principal access roadway crosses or must be constructed on property owned by Monterey Palms, City shall cooperate with MC-Properties/MacLeod- Couch Land Co. to acquire the necessary right-of-way through the exercise of City's powers of eminent domain if MC-Properties and/or MacLeod-Couch are, after reasonable efforts, unable to purchase the right-of-way necessary for the construction and maintenance of the roadway. City shall be reimbursed for the costs of any such eminent domain proceedings by MC-Properties/MacLeod-Couch. The City agrees to cooperate in good faith to obtain the placement of mirage.da4/ts/7. 28 02 9 181069 traffic lights and the installation of a left turn lane or lanes at such intersection with Monterey. It the City requests the installation of the traffic signal prior to the time the MC- Properties/MacLeod-Couch property, or some portion thereof, is developed, the City shall be responsible for the cost to install the traffic lights and left turn lane or lanes . Otherwise, MC- Properties/MacLeod-Couch shall be responsible for such costs and agree to ;participate in an assessment district for such improvements if the City elects to form one. 4 . 3 Dinah Shore Drive is proposed to be extended to the Northerly projection of Porto-la Drive, as required by the provisions of Parcel Map No. 24255 . This means that a portion of such extended Dinah Shore Drive must c oss over and/or be constructed on property owned by Monterey Palms . Additionally, certain cul-de-sacs must be extended into or constructed upon property owned by Monterey Palms in connection with the development of Parcel Map Nos . 24255 and 27419 . The City agrees that the MC- Properties/MacLeod-Couch principal access roadway may be designed so that it intersects with Dinah Shore Drive at the conjunction of said road with such extended Dinah Shore Drive. The City shall not be responsible for the cost to extend Dinah Shore Drive. To the extent that the extension of Dinah Shore Drive is situated or must be constructed upon property owned by Monterey Palms, and/or to the extent that any cul-de-sac must be , onstructed or is situated upon property owned by Monterey Palms as required by Parcel Map 24255, if Rancho Mirage Industrial Park and/or Ruyen are reasonably unable to purchase such right-of-way from Monterey Palms , City shall mirage.da4/ts/12 18-92 10 181069 cooperate with Rancho Mirage Industrial Park and/or Ruyen by acquiring such right-of-way under the power of eminent domain. The costs of any such eminent domain action and any award made to Monterey Palms in such action shall be paid by Rancho Mirage Industri .il Park and/or Ruyen. . 4 . 3 . 1 To the extent that the conditions of Parcel Map 27419 require that any streets or cul-de-sacs be constructed and/or maintained by Henry Melby, Trustee of the B. H. Fortner Testamentary Trust, upon property owned by Monterey Palms, if the said Henry Melby is reasonably unable to purchase such right-of-way from Monterey Palms, City shall cooperate with Henry Melby by acquiring such right-of-way under the power of eminent domain. The costs of any such eminent domain action and any award made to Monterey Palms in such action shall be paid by Henry Melby. 4 . 4 Portola Avenue shall be constructed and extended at the expense of the City or other third parties other than Owners, from its present terminus to the Easterly terminus of Dinah Shore Drive as reflected by the Conditions of Approval to the aforesaid Parcel Map No. 24255. Said terminus is located at the Easterly boundary of the MontereyPalms property Northerly of its South boundary. P P Y Y This construction and extension shall occur on or before the development of the property adjacent to the extended portion of Portola Avenue but in all events it shall be completed no later than the date on which Dinah Shore Drive is constructed and completed by Rancho Mirage Indust riaL Park and Ruyen as required by the conditions of approval for Parcel Kip 24255 . It is agreed that the City may use any means in its discretion to fund the cost of mirage in4ita/12 28 92 11 182069 the extension of Portola Avenue as called for in this paragraph so long as Owners are not required to fund this improvement either directly or indirectly through fees, assessments or any other means . For purposes of this Paragraph 4 .4, "Construction of and extension of eu tola Avenue" may be accomplished by the City by the construction of the east one-half street section of extended Porto] I Avenue, which prolosed one-half street extension is located on property currently ow, !d by the Palm Desert Redevelopment Agency. This construction and o Ktension is found ar,i is deemed by the City as "an acceptable service level" with respect to the extended Portola Avenue as called for under the terms of that certain settlement agreement between 1<ancho Mirage Industrial Park and the City of Rancho Mirage with re:;pect to a settlement of that action entitled Rancho Mirage Industrial Park, et al . v. City of Rancho Mirage, Case No. Indio 65168, filed in the Superior Court, County of Riverside, or as may be required under the Conditions of Approval relative to Parcel Map Nos . 24295 and/or 27419 . The City shall indemnify and save R in, ho Mirage Industrial Park and/or Ruyen free and harmless from any suit brought whi ;1 challenges this finding. The City shall require that the west one-half of the Portola Avenue extension be completed upon development of the property west of and adjacent to such extension, pursuant to the terms of this paragraph. As none of Owners ' properties are adjacent to the proposed extension of Portola Avenue, Owners in no event shall be required to pay for or otherwise share, either miraue.J"+/ta/12-28 92 12 181069 directly or indirectly, in the cost of the construction and extension of Portola Avenue. 4 . 5 To the extent not already accomplished, City shall prezone the Rancho Mirage Industrial Park - Ruyen International Corp. Property so that zoning proposed by the City shall conform essentially with the zoning which has been established by the County pursuant to riverside County Change of Zone 5017 . 4 . 6 Th, General Plan of the City, as adopted by the City at the time of annexation, shall be consistent with all zoning permitted by the County's Change of Zane 5017 (C/Z 5017) , this Development Agreement and any other pre-annexation agreement entered into between the City, MC-Properties/MacLeod-Couch Land Co. and Bernard and Jeannett DeBonne. 4 . 7 Prior to annexation, Owners properties shall be pre- zoned in accordance with this Agreement and shall be thus zoned upon annexation to City. City and Owners Henry Melby, Trustee of the B.H. Fortner Testamentary Trust, MC-Properties/MacLeod-Couch Land Co. and Bernard and Jeannett DeBonne all agree that City and such Owners may determine to enter into additional future pre-annexation agreements. City agrees to negotiate with such Owners, in good faith, with respect to such future pre-annexation agreements . Those agreements, if entered into, shall contain a term of ten ( 10) years from the date the Property is annexed into the City, unless earlier terminated as provided in those agreements . 4 . 8 In connection with County's Parcel Map No. 24255 and County's Parcel Map No. 27419 , upon annexation to the City, the rairepe.dWts/12-28.92 13 193069 City shall approve new parcel maps within ninety ( 90) days of completion of annexation proceedings, upon the same terms and conditions as these maps approved by tiie County. Fees, costs and all other charges of any kii,d or nature whatsoever relative to such new parcel maps shall be waived by the City. It is understood by the parties that the purpose of this paragraph is to give the developers t:f Parcel Map Nis . 24255 and 27419 a full two-year initial period of time to develop their properties following completion of the annexation proceedings . la addition, City agrees that after expiration of the initial two (2) year period of time after annexation Owners may apply to extend Parcel Maps Nos . 24255 and 27419 for an additional eight ( 8) years in accordance with Government Code Section 66452 . 6 (a) . Fees, costs and all other charges of any kind or nature whatsoever relative to such extensions or applications therefore shall be waived by City. 4 . 9 Because of current property boundaries, Parcel Maps Nos . 24255 and 27419 create four odd-shaped or odd-sized lots, two located within the boundaries of each parcel map. Owners Rancho Mirage Industrial Park, Ruyen, and Henry Melby, Trustee of the B. H. Fortner Testamentary Trust, desire to trade land so that each will have two standard size and shape lots within the boundaries of their respective parcel maps . Therefore, City agrees to process and approve lot line adjustments for those four lots within six months after completion of annexation of the properties to the City and agrees to waive all fees, charges and costs which otherwise would be charged to Owners for these lot line adjustments . Owners Rancho Mirage Industrial Park, Ruyen and Henry Melby, Trustee of rairage.da4lts/12-28 92 14 181069 the B. H. Fortner Testamentary Trust will file applications for these lot line adjustments within 45 days after completion of annexation. 5 . COMPLIANCE . The City will periodically review this Agreement as provided in Section 65865 . 1 of the Government Code and the City Municipal Code, to ascertain owners , good faith c,,mpliance with the provisions of this Agreement. Owners will be given notice of such periodic reviews, which shall occur no more frequently than once every two years, and shall be given the opportunity to participate in these reviews and to request a hearing before the City Council on any recommendations or conclusions made by City staff at the conclusion of such reviews . 6 . DEFAULT BY OWNERS . If the City does not rind good faith comlliance with the provisions of this Agreement by Owners, then the City will have all of the remedies which are provided in the City Municipal Code and will comply with all of the procedures which are provided in Section 65865 . 1 of the Government Code and the City Municipal Code. In the event of default by an Owner or Owners, City may enforce this Agreement only as against the defaulting Owner or Owners and has no rights or remedies as against those owners not in default. 7 . TIMING OF DEVELOPMENT. The parties acknowledge that Owners cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owners, such as market orientation and reirage.da4/ts/12-28-92 15 181069 demand, interest rates, absorption, completion and other similar factors . Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo ( 1984) 37 Cal . 3d 465 that the faJ tare of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties ' agreement, it is the parties ' intent to cure that deficiency by acknowledging and providing that Owners shall have the right to develop the Property in such order and at such rate and at such times as Owners deem appropriate within the exercise of their subjective business j udgmc..:t. 8 . DEFAULT BY 'PFlli CITY. If the City fails to perform any of its obligations as provided in this Agreement and fails to cure its nonperformance within 30 days after n-,tice of nonperformance is given by Owners, then the City will be in default and Owners will have all of the remedies which are available to them, individually or collectively, at law or in equity; provided, however, that if the City's failure to perform cannot reasonably be cured within such 30 day period, then the City will not be in default of this Agreement if it commences to cure its nonperformance within such 30 day period and thereafter diligently and in good faith prosecutes such cure to completion. Without limiting the effect of the foregoing, the parties acknowledge and agree that the sub ,act watter of this Agreement is unique and that money damages may be inadequate to compensate Owners and therefore, at the election of Owners, this Agreement may be specifically enforced. rsirage.Aa4/ts/12-28-92 16 181069 This agreement is severable and is enforceable by the Owners individually only as to that Owner's property which is subject to this agreement. 9 . INDEMNIFICATION. (a) Owners will defend, indemnify and hold the City and its elected officials, officers and employees free and harmless from any loss, cost or liability ( including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from ( i) any failure on the part of Owners to take any action which they are required to take as provided in this Agreement; (ii) any action taken by Owners which they are prohibited from taking as provided in this Agreement and ( iii) any claim which results from any willful or negligent act or omission of Owners . (b) The City will defend , indemnify and hold Owners and their trustees, beneficiaries, shareholders, directors, officers and employees free and harmless from any and all loss, cost or liability ( including, without Limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from ( i) any failure on the part of the City to take any action which it is required to take as provided in this Agreement, ( ii) any action taken by the City which it is prohibited from taking as provided in this Agreement and (iii) any claim which results from any willful or negligent act or omission of the City. mirage.dWts/12-28-92 17 1810GS (c) Included in the scope of the foregoing indemnifications will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject of the applLcable indemnification and all of the associated legal fees and court costs . Without limiting the effect of the foregoing, the Lnd: .anifying party will have the right to defend against any claim with respect to which it is indemnifying the other party, using legal counsel of its choice. 10. SUPERSEDING STATE OR FEDERAL, LAW. If any state or federal law or regulation which is enacted or adopted after the Effective Date of this Agreement or any other action of any governmental entity which is not under the City' s control, prevents or precludes compliance with any provision of this Agreement, then such provision of this Agreement will be modified or suspended only to the extent and for the time it is necessary to achieve compliance with such law, regulation or other governmental action and the remaining provisions of this Agreement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal l.aw or regulation or other governmental action. On the repeal of arty such law, regulation or other governmental action or on the occurrence of any other circumstance which removes the affect of the same on this Agreement, the provisions of this Agreement will be automatically restored to their fill original effect and any amendment to this rairage.dWtsl72-28-92 18 1e1Os9 Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 11 . SUCCESSORS AND ASSIGNS. All of the provisions of this Agreement will inure to the benefit of and will bind the parties and their respective successors and assigns and all other persons or entities which acquire all or any part of the Property. Without limiting the effect of the foregoing, Owners will have the right to assign any of their rights or delegate any of their obligations as provided in this Agreement to or for the benefit of any person or entity which owns or leases any part of the Property. 12 . EQUITABLE SERVITUDES OF ASSIGNMENT. All of the provisions of this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land as provided in the applicable law. The rights and obligations of Owners under this Agreement may be transferred or assigned, provided such transfer or assignment is made in connection with the transfer, assignment, sale or lease of all or a portion of the Property. During the terms of this Agreement, any such assignee or transferee shall observe and perform all of the duties and obligations of the particular Owner making such assignment contained in this Agreement as such duties and obligations pertain to the portion of the Property so transferred or assigned. Owners shall give to the City a notice within thirty ( 30) days after any such sale, assignment or transfer. mirspe.da4/ts/12-28-92 19 13 . NEGATION OF AGENCY, JOINT VENTURE OR PARTNCRSHIP. 1810 69 The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of joint venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners . 14 . NOTICES AND OTHER COMMUNICATIONS. All notices or other communications which are required or- permitted to be given to the parties will be in writing and will be given either by personal service or by mailing the same by certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service, addressed as follows : CITY COPY CITY OF PALM DESERT Best, Best & Krieger 73-510 Fred Waring 39700 Bob Hope Drive, #312 Palm Desert, CA 92260 Rancho Mirage, CA 92270 Attn: Carlos Ortega Attn: Douglas S. Phillips Owners COPY Rancho Mirage Industrial Park Cynthia Ludvigsen Ruyen International Corp. P. 0. Box 409 323 W. Court St. , #403 San Bernardino, CA 92402 San Bernardino, CA 92401 Attn: H. M. Peccorini Henry Melby, Trustee of the Steve Fortner B. H. Fortner Testamentary Trust 1033 Cornell Dr. 121 W. Lexington Burbank, CA 91504 Glendale, CA 91209-3310 MC Properties/ James M. Schlecht MacLeod-Couch Land Co. Schlecht, Shevlin & 717 So. Pacific Coast Highway Shoenberger, a Law Corp. Suite 204 Box 1906 Solano Beach, CA 92075 Palm Springs, CA 92263 yirage.da4jtef ic28-92 20 181069 Mr. & Mrs . Bernard De Bonne Dick Smith P. 0 . Box 1935 Smith, Peroni & Fox Palm esert, CA 92261 960 Tahquitz Canyon Way Suite 103 Palm Springs, CA 92262 If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail , then it will be deemed given as of the date of r,: :•eipt, rejection or return undelivered. Addressees to which notices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 13. 15 . ESTOPPEL CERTIFICATES. At the request of either party, the other party will, within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, except as is expressly provided in such estoppel certificate and (c) no default in the performance of the requesting party's obligations as provided in this Agreement exists, except as is expressly provided in such estoppel certificate. 16 . APPLICABLE LAW. This Agreement will be construed and enforced as provided in California law. 17 . VENUE. Any legal action with respect to this Agreement will be brought in either Riverside Superior Court or in the United States District Court for the Central District of California. rwirage.&4/ts/12 28-92 21 18. ATTORNEYS' FEES . 181069 If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in such action will be entitled to recover from the losing party all attorneys ' fees, court costs and necessary disbursements in connection with such action. 19 . PARAGRAPH HEADINGS. The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 20. CONSTRUCTION. In all cases, the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. 21 . SURVIVAL. Each and every covenant in this Agreement will survive the execution and delivery 9 of this Agreement for the benefit of the parties and their successors and assigns . 22 . CALENDAR PERIODS. All references in this Agrf,��ment to "years" , "quarters" , "months" and "days" will be deemed to be to references to calendar years, quarters, months and days . 23 . SEVERABILITY. Every provision of this Agreement is and will be construed to be a separate and independent covenant:. If any provision of this Agreement or the application of the same is, to any extent, found rdrage.da0ta112 24-92 22 281069 to be invalid or unenforceable, then the remainder of this Agreement or the application of such provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Agreement will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenf )rceability. 24 . FURTHER ASSURANCES. Whenever and a, often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or proper in order to achieve the intent of this Agreement. 25 . COVENANT OF GOOD FAITH. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 26 . COUNTERPARTS. This Agreement may be executed in counterparts, each of which will be deemed to be an origi , .il for all purposes and all such counterparts will constitute one and the same agreement. 27 . INCORPORATION OF RECITALS. The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereof . Each recital of fact concerning the parties will be conclusive between rairege.da4/te/12-28 92 23 181069 them and such facts will be incontestable in the event of any dispute between them with respect to such facts . Neither party will introduce any evidence in a court or administrative proceeding which would in any way serve to dispute any such recited fact. 28 . EXHIBITS. Any Exhibits to this Agreement are incorporated by reference as though fully set forth herein. 29 . AMENDMENT. No amendment or waiver of any term of this Agreement will be binding on the City unless and until it has been approved and has become effective as provided in Section 65868 of the Government Code and pursuant to the City Municipal Code and Regulation, or on Owners, unless and until it has been executed by Owners . 30 . RECORDATION. No later than 10 days after the Effective Date of this Agreement, the City will, at its cost, record this Agreement in the Official Records of the Riverside County Recorder, as provided in Section 65868 . 5 of the Government Code and as provided by the City Municipal Code. 31 . AGREEMENT BY OWNERS RE NEGATIVE DECLARATION, NORTH SPHERE OF PREZONING, ANNEXATION OF OWNERS' PROPERTY INTO THE CITY OF PALM DESERT. Neither Petitioner nor Owners nor their agents, consultants, servants, attorneys or representatives shall in any way object to or take any actions whatsoever in opposition to or challenge the Negative Declaration for City's Case No. C/Z 92-1, the North Sphere Pre-zoning or the annexation of Petitioner's property or Owners ' mirage.W'W12-28.92 24 181069 Property into the City of Palm Desert. Further, Petitioner and/or Owners at the request of City, shall take all reasonable steps to support the City ' s proposed annexation before any public body, including, but not limited to, the Local Agency Formation Commission. CITY CITY OF PALM DESERT I � By: M ATTEST. / a By: elz SHEILA GI IGAN, ty Clerk City of Palm Des t APPROXYAa,,AS TO FORM ID^SUBBSSTANCE: By: lVv Douglas . Phillips Deputy City Attorney OWNERS: RUYEN INTERN TI/ CORP a RANCHO MIRAG INDUSTRIAL PARK, a Calif orni i it partnership, Delawar d o , By SUS CO3 i�rni �i Corpor t ' n al Partner B . / ,/ f / P corini, Assistan , c etary By: H. Pecco ini , President By BRION CORPORATION, a California C=0 iCo ,Sfio�, General Partner By: C Shin Hsu, President ( Signature Page Continues ) 25 181069 HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST By. MC-Properties, a California Partnership By L2L2dA_1"j( MacLeod-Couch Land Co. , a California Partners By. R ARD DEBONNE ANNETT DEBONNE APPROVED AS TO FORM AND SUBSTANCE: c Cynt is Ludvigsen Att ney for Owners, Rancho Mirage Industrial Park and Ruyen International, Inc . JAMES—M. SCHL CHT Attorney for Owners, MC-Properties and Macleod-Couch Land Co. rmirage.daaJts112-28-92 26 ALL-PURPOSE CERTIFICATE State of California ) 181069 County of Riverside ) On a'.I It C1 It �1l W13,before me, 32LL�1 -F -. S�4`G -Y-) l¢a Notary Public in and for said State, personallv appeared E c„ it 1 r F.y Z t1 1 personally known tome(or proved to me on the basis of satisfactory evidence)to be the person(4whose name(s}is/aresubscribed to the within instrument and acknowledged tome that he f she/the)Lexecuted the same in his/her/authorized capacity(i@0,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. OLFE,SKRAMSTACI L ARICHELLL plt*4KE MRIVENTY�\1 \�u_ 1L I .. (seal)) Signature � iCt-� ) 1%`� ` My Commission Ex itt4, 1995 �.• ALL-PURPOSE CERTIFICATE State of California ) 181069 County of Riverside ) On_3c"\ �A before me, 6 1 lC-� lE'I S (� ICYI a Notary Public in and for said State, personally appeared ' J cLN -' l kct —0-1 C k ay personally known to me(or proved to me on the basis of sans actory 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. OFFICUI SERE WITNESS my hand and official seal. Wmmission HELLE E. SKRAMSTAD O Abik.C�IllonsPRR'1GPAl ORNCE MRIVERSIDE COUNTY\^, ,/ rg� c r x it Nov. 14. 1995Signatur� 'tt � l0 L]c Qk I-Q i ! IC�,R d `(k _ �.-.r+ . (Seal)) STATE OF CALI RNIA ) „ COUNTY C )ss. 181069 E� O 9 �efore me. 01 personally appeared /yL �!! ;2 personally known to me(or proved •e 4 to me on the basis of satisfactory evidence)to be the person(s) whose names) is/are subscribed to the within - '.S instrument and acknowledged to me that he/sheNheyexecuted the same in his/heq*eirauthonzed capacity(ies), m and that by his/hen4wir-signature(s) on the instrument the person(s) or the entity upon behalf of which the m person(s)acted, executed the instrument. CAROL K. DEN WITNESS my hand and official seal. z PA NOTA11 COP 8: 969961 h Signature A-��Gt�, IC ' CALIFOBNIA res March SAN BEnNq la COUNTY _MY_Commission Expi a r 1, 1996 O I t State of California ) s.s t County of Los Angeles ) 181069 On February 10, 1993,before me,RANDALL MELBY,personally appeared HENRY MELBY,personally • known to me,or(proved to me on the basis of satisfactory evidence)to be the person whose name Is subscribed to the within Instrument, and acknowledged to me that he executed the same in his authorized capacity(les),and that by his signature on the Instrument the person(s),or the entity upon behalf of which th n(s) acted, executed the Instrument. WITNES and and official seal. Notary's Signature .•«•«„.•..• _ O F RAND LL A LBy•' RAICIAL 7E L: a- NOTARY P" icaf o CALIFORNIA LOS A`rELESCWNTY: MMCommtsstm fsd"Mech gr,;995: CERTIFICATE OF ACKNOWLEDGMENT 151069 ..................................................... Stale of California On Q? Mea •� 1993 •More me,••5�°/ yRE I�Hn1N ,{ I V O T/QA y SS (date) (name and title of officer) County of SR^I l�lE6o 1` : �(LPj LI Pi --------------- personally appeared _ V�1 AM T, 1�2A�L�D .f>r�,��, r,r�fe M PRovEzr,is personally known to me to be the person(*whose nameM is/am subscribed to the within instrument and acknowledged to me that heish�executed the same in hisihesabeit, SAPCOm 9 MANN authorized capacity(iW and that by his/h�ltsignature(s) on the instru- 0 ua 989040 erson; ment the 19 torAa Yweuo-eutFo NtA� p ($ or the entity upon behalf of which the person(sl aped, mycomm E_�:�s tas4� executed the instrument. t WITNESS .my hand and official seal. Notary's Signature STATE OF R CALIF p9RN �1i }}es. COUNTY OF � I4 L before me l 18O 1069J° 11 ° personally appeared /�,-n • \ J c A A m� � . � i r R personalty known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)whose name(s) is/amsubscribed to the within instrument and acknowledged to me that he/shehhey executed the same in hisAwn4veU authorized capacity(ies), 0 and that by his/ker/Metr signature(s) on the instrument the person(s) or the entity upon behall of which the person(s)acted, executed the instrument. _ i CAROL K. DENNEY — WITNESS m hand and official seal. COMM. 969961 H y •w- NOTARY PUBLIC - CALIFORNIA III Signatur L A T ;QiL z"L SAN BERNARDINO COUNTY 0 / �./� Pik ���� _ y_Commiila To Expires March 11, 1996 is a or CERTIFICATE OF ACKNOWLEDGMENT 181069 Fe of California..................... On (1�>aFie I+ !I >9 93 ...;. ...before me, �RPµtRY M-4,1N praKYSS. (dale) (name and title of ofhrerl County of 1�4N�l ersonally appeared f l lvgo,T I r 1 Aa LEoe C'7E�192R+. A�.T n1E2 (NcLm ucµ LA Tap(I. personally known to me actory evl e L ) to be the person4a whose name(sd is/'am subscribed to the within instrument and acknowledged to me that he/stxexecuted the same in hisrherahCir SAPHIRE MANN 3 authorized capacitv(WJ,and that by his/ht signaiure(zl on the instru- CoD1m.41105B0a0 D ment the person, or the entity upon behalf of which the personfg acted, • OW TARP PUBLIC-OALIFORNiI� 6ANOIEGOCdINTY 1/ executed the instrument. Comm.E.yroa Mac 5.1926� WITN)ESSSy,my hand and�official seal. Notary's Signature RIGHT THUMBPRINT(OPTIONAL) State of Califenrnin l W Riverside Ji 181069 County of 3/19/93 before me, Martha A. Hesse, Notary o (DATE) (NAME,TITLE OF OFFICER I,E.,7ANE DOE.NOTARY PUBILIC-)Pub 1 C personally appeared Bernard Debonne CAPACITY CLAIMED BY SIGNER(S) (NAME(S)OF SIGNER(S)) LX INDIVIDUAL(S) ❑ CORPORATE OFFICER(S) ❑ PARTNER(S) (TITLE(S)) CYpersonally known to me OR - ❑ proved to me on the basis of satisfactory evidence ❑ ATTORNEY IN FACT to be the person,(>tr whose named' is/4 sub- ❑ TRUSTEE(S) scribed to the within instrument and acknowledged ❑ GUARDIAN/CONSERVATOR to me that he/shatAtWy executed the same in ❑ OTHER: S;E�AL his/heti!tbeir authorized ca aci fvhe#, and that by . �,*.Jc� his/I r-signatureA on the instrument the ,,.w person(g,, or the entity upon behalf of which the SIGNER IS REPRESENTING: -Y personK acted, executed the instrument. (NAME OF PERSON(s)OR ENTITY(IES)t ,' !23,!993 ' ess my hand /and official seal. (SEAL) (SIGNATURE OF NOTARY) ATTENTION NOTARY:The information requested below is OPTIONAL It could,however,prevent fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE Dev. Agreement t MUST BE ATTACHED Title or Type of Document g TO THE DOCUMENT Number of Pages Date of Document DESCRIBED AT RIGHT: Signer(s) Other Than Named Above NOLCOTTS FORM 632/0—ALL PURPOSE ACI(NOW EDGMENT WITH SIGNER CAPACITY/REPRESENTARON/RNGERPRWT—Rev 12-92 51992 M'OLLOTTS FORMS.INC. RIGHT THUMBPRINT 10PTIONALI State of Cal i fnrnia � W m ^ountyof 181069 R� versidP On 3/31/93 before me,Martha A. Hesse, Notary Public o (DATE) (NAME.TITLE OF OFFICER I.E..JANE DOE.NOTARY PUSUC-) personally appeared Jeannette DebonneAPACITY CLAIMED BY SIGNER(S) (NAME[S)OF SIGNER(S)J INDIVIDUAL(S) ❑ CORPORATE OFFICER(S) }—)(� ❑ PARTNER(S) (TITLE(S)l L, personally known to me -OR - ❑ proved to me on the basis of satisfactory evidence ❑ ATTORNEY IN FACT to be the person* whose nameX is/,a/E sub- ❑ TRUSTEE(S) scribed to the within instrument and acknowledged ❑ GUARDIAN/CONSERVATOR to me that *she/fb4 executed the same in ❑ OTHER: C. ^fia.,L I�lher/tWa authorized capacity(y¢ , and that by .- Wher/t�ir signature(s) on the instrument the ^' erson ry on p J p �', or the entity u behalf of which the SIGNER IS REPRESENTING: personA acted, executed the Instrument. (NAME OF PERSON(S)OR ENTRY(IES)1 ray Ccmm E=p��o3,P:,l 23,199 Witness my hand and official seal. (SEAL) (SIGNATURE OF NOTARY) ATTENTION NOTARY:The information requested below is OPTIONAL.It could.however,prevent fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE Development Agreement City of P.D MUST BE ATTACHED Title or Type of Document TO THE DOCUMENT Number of Pages Date of Document DESCRIBED AT RIGHT: Signer(s) Other Than Named Above MIL. aFORM 63240—ALL PURPOSE ACMIMMEDGMENT WITH SIGNER CAPACITY/REPRESENTATION/FINGERPRINT—Rey.12-92 F 1992 WOLCOTTS FORMS,INC. p' 181069 EXHIBIT "A" Legal Description PARCEL 1: "me Southwest quarter of the Northwest quarter of Section 29, 'Ibwnstdp 4 South, Barge 6 East, San Bernardino Base and Meridian, according to the Official Plat thereof. EXCEPTING therefrom the Northerly 100 feet of the Easterly 200 feet thereof. ALSO EXCEPTING therefrcn the Westerly 55 feet as conveyed to the County of Riverside, by deed recorded August 21, 1985 as Instruent No. 187127, of Official Records. PARCEL, 2: 'Lire Southerly 100 feet of the Westerly 200 feet of the Northwest quarter of the Northwest quarter of Section 29, Tvw reship 4 South, Range 6 West, San Bernardino Base and Meridian, according to the Official Plat thereof. EXCEPMJG therefrom a 1/3 interest in the well located thereon. ALSO EXCEPriM therefrmn the Westerly 55 feet as conveyed to the County of Riverside by deed recorded August 21, 1985 as Instrument No. 187127. ALSO EXCEPTING therefrom that portion lying within that portion of the Northwest quarter of Section 29, TcwT ship 4 South, Range 6 East, San Bernardino Base and Meridian, more particularly described as follows: CCII-U: C NG at the Northwest corner of said Section 29, thence South o0' oil O1" East, 55.00 feet along the West line of said Section 29; thence North 89' 58, 50; East, 90.00 feet to the true point of beginning; thence continuing North 89, 58, 50" East, 218.06 feet to the beginning of a tangent curve, concave Southerly, having a radius of 1945.00 feet, a line radial to said point bears South oo' of 10" East; thence Southeasterly along said curve through a central angle of 38' 45' 52" an arc distance of 1315.92 feet; thence South 05' 15' 22" Fast, 33.09 feet; thence South 40' 44 ' 34" West, 10.65 feet to the beginning of a tangent curve, concave Easterly, having a radius of 1044.00 feet, a line radial to said point bears South 49' 15' 26" East; thence Southwesterly along said curve through a central angle of 40' 49' 55" an arc distance of 744.01 feet; thence South 00' 05' 21" Fast, 58.58 feet; thence South 44' 56' 24" West, 32.54 feet; thence South 89' 58' 10" West, 1155.81 feet; thence North 45' 01' 26" West, 32.53 feet; thence North 00' 01' 01" West, 1188.20 feet; thence North 44' 58' 55" East 32.53 feet to the true point of beginning. Page 1 of 4 183069 PARCEL 3: The Northw�estt quarter of the Northwest quarter of Section 29, Township 4 South, Range 6Bernardino Lase and Meridian, according to Official Plat thereof. EXCEPTM4G the Southerly 100 feet of the Westerly 200 feet thereof; ALSO EXCEPTING the Nord] half of the Northwest quarter of the Northwest quarter Of Section 29. ALSO EXCEPTING therefrom the Westerly 55 feet as conveyed to the County of Riverside by deed recorded August 21, 1985 as Instrument No. 187126. ALSO EXCEPTING therefrom that portion lying within that portion of the Northwest quarter of Section 29, Township 4 South, Range 6 East, San Bernardino Base and Meridian, more particularly described as follows: CUIMENCING at the Northwest corner of said Section 29, thence South 00' 01, 01" Fast, 55.00 feet along the West line of said Section 29; thence North 89' 58' 50"East, 90.00 feet to the true point of beginning; thence continuing North 89. 58, 50" Fast, 218.06 feet to the beginning of a tangent curve, concave Southerly, having a radius of 1945.00 feet, a line radial to said point bears South 00. 01, 10" East; thence Southeasterly along said curve through a central angle of 38' 45' 52" an arc distance of 1315.92 feet; thence South 05' 15' 22" East, 33.09 feet; thence South 40' 44' 34" West, 10.65 feet to the beginning of a tangent curve, concave Easterly, having a radius of 1044.00 feet, a line radial to said point bears South 49. 15' 26" East; thence Southwesterly along said curve through a central angle of 40' 49' 55" an arc distance of 744.01 feet; thence South 00' 05' 21" Fast, 58.58 feet; thence South 44' 56' 24" West, 32.54 feet; thence South 89' 58' 10" West, 1155.81 feet; thence North 45, 01' 26" West, 32.53 feet; thence North 00' 01' 01" West, 1188.20 feet; thence North 44' 58' 55", East, 32.53 feet to the true point of beginning. PARCEL 4: The North half of the Northwest quarter of the Northwest quarter of Section 29, Township 4 South, Range 6 East, San Bernardino Base and Meridian. According to the Official Plat thereof. EXCEPTING therefrom the Westerly 55 feet as conveyed to the County of Riverside by deed recorded August 21, 1985 as Instrument No. 187125. ALSO EXCEPTING therefrom that portion lying within that portion of the Northwest quarter of Section 29, Township 4 South, Range 6 East, San Bernardino Base and Meridian, more particularly described as follows: Page 2 of 4 181069 CCx M4CING at the Northwest comer of said Section 29, thence South 00. 01, Ol" Fast, 55.00 feet along the West line of said Section 29; thence North 89. 58' 50" Fast, 90.00 feet to the true point of beginning, thence aontirniir,g North 89' 58' 50 East, 218.06 feet to the beginning of a tangent curve, concave Southerly, having a radius of 1945.00 feet, a line radial to said point bears South 00' 01, 10" East; thence Southeasterly along said curve through a central angle of 38' 45' 52" an am distance of 1315.92 feet; thence South 05' 15' 22" East, 33.09 feet; thence South 40' 44' 34" West, 10.65 feet to the beginning of a tangent curve, concave Easterly, having a radius of 1044.00 feet, a line radial to said point bears South 49' 15' 26" East; thence Southwesterly along said curve through a central angle of 40' 49' 55" an arc distance of 744.01 feet; thence South 00' 05' 21" East, 58.58 feet; thence South 44' 56' 24" West, 32.54 feet; thence South 89' 58, 10" West, 1155.81 feet; thence North 45. O1' 26" West, 32.53 feet; thence North 00' 01' 01" West, 1188.20 feet; thence North 44' 58' 55"1 East 32.53 feet to the true point of beginning. PARCEL, 5: That portion of the Northeast quarter of the Northwest quarter of Section 29, Township 4 South, Range 6 Fast, San Bernardino Base and Meridian, according to Official Plat thereof, lying Southwesterly of the Southern Pacific Railroad Cbnpany right of way, 200 feet in width as reserved in and deed recorded January 23, 1912, in Book 652, Page 138 of Deeds, Riverside County Records. ALSO EXCEFrING therefrvn that portion lying within that portion of the Northwest quarter of Section 29, Township 4 South, Range 6 Fast, San Bernardino Base and Meridian, more particularly described as follows: COMMENCING at the Northwest corner of said Section 29, thence South 00' oil ol" East, 55.00 feet along the West line of said Section 29; thence North 89. 58' 50" East, 90.00 feet to the true point of beginning; thence continuing North 89. 58' 50 Fast, 218.06 feet to the beginning of a tangent cove, concave Southerly, having a radius of 1945.00 feet, a line radial to said point bears South 00' oil 10" East; thence Southeasterly along said curve through a central angle of 38' 451 52" an arc distance of 1315.92 feet; thence South 05' 15' 22" East, 33.09 feet; thence South 40• 44' 34" West, 10.65 feet to the beginning of a tangent curve, concave Easterly, having a radius of 1044.00 feet, a line radial to said point bears South 49' 15' 26" East; thence Southwesterly along said curve through a central angle of 40' 49' 55" an arc distance of 744.01 feet; thence South 00' 05' 21" East, 58.58 feet; thence South 44' 56' 24" West, 32.54 feet; thence South 89' 58' 10" West, 1155.81 feet; thence North 45' Oil 26" West, 32.53 feet; thence North 00' 01' 01" West, 1188.20 feet; thence North 44' 58' 55", East 32.53 feet to the true point of beginning. PARCEL 6: The North one-half of the Southeast quarter of the Northwest quarter of Section 29, Township 4 South, Range 6 East, San Bernardino Base and Meridian, according to official Plat thereof. Page 3 of 4 181069 PARCEL, 7: The Northerly 100 feet of the Easterly 200 feet of the Southwest quarter of the NorUT-est quarter of Section 29, Township 4 South, Range 6 East, San Bernardino Base and Meridian. PARCEL 8: That portion of the Northwest quarter of Section 29, Township 4 South, Range 6 Fast, San Bernardino Base and Meridian, more particularly described as follows: CCMMENCING at the Northwest corner of said Section 29, then South 00' O1' Olio East, 55.00 feet along the West line of said Section 29; thence North 89. 58' 50" East, 90.00 feet, to the true point of beginning; thence continuing North 89' 58' 50" East, 218.06 feet to the beginning of a tangent curve, concave Southerly, having a radius of 1945.00 feet, line radial to said point bears South 00, 01, 10" East; then Southeasterly along said curve through a central angle of 38. 45' 52" an arc distance of 1315.92 feet; thence South 05' 15' 22" East, 33.09 feet; thence South 40' 44' 34" West, 10.65 feet to the begIrTW)J of a tangent curve, concave Easterly, having a radius of 1044.00 feet, a line radial to said point bears South 49' 15' 26" East; then Southwesterly along said curve thrmx�i a .entral angle of 40' 49' 55" an arc distance of 744.01 feet; then South 00' 05' 21" East, 58.58 feet; then South 44' 56' 24" West, 32.54 feet; then South 89' 58' 10" West, 1155.81 feet; then North 45' Ol' 26" West, 32.53 feet; then North 00' 01' 01" West, 1188.20 feet; then North 44' 58' 55" East 32.53 feet to the true point of beginning. Page 4 of 4 O b V f . �r w n � $ YN a _ Y yy r � as ti e ti 000 s / ►. ao a + dyQD So S ` 61 0 / $ ova a`n H � - W Ci 181069 (Property owned by Henry Melby, Trustee of the B. H. Fortner Testamentary Trust) Real property located in the unincorporated area of the County of Riverside, State of California, described as : The East 1400 feet, as measured along the South line of that portion of the Northeast quarter of Section 29, Township 4 South, Range 6 East, SAN BERNARDINO BASE AND MERIDIAN, as shown by United States Government Survey, which lies Southwesterly of the Southwesterly line of the strip of land 200 feet wide reserved by the Southern Pacific Railroad Company in Deed recorded March 23, 1912 in Book 347, page 127 of Deeds, Riverside County Records. H. Melby 181069 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE UNINCORPORATED AREA OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL I: THE NORTHERLY 455 FEET OF THE SOUTHWEST QUARTER OF SECTION 29, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY APPROVED FEBRUARY 29, 1856; EXCEPTING THEREFROM 50 PERCENT OF ALL OIL, GAS, AND OTHER HYDROCARBON SUBSTANCES AND ALL OTHER MINERALS UNDERLYING SAID LAND AS RESERVED IN DEED FROM CHESTER W. FROUDE AND GLADYS R. FROUDE, HUSBAND AND WIFE, TO BLANCHE STEPHEN, AN UNMARRIED WOMAN; ALSO EXCEPTING THEREFROM THE WESTERLY 55 FEET THEREOF (MEASURED AT RIGHT ANGLES) CONVEYED TO THE COUNTY OF RIVERSIDE BY DOCUMENT RECORDED JULY 25, 1985, AS INSTRUMENT NO. 163780 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, PARCEL 2: THE SOUTHWEST QUARTER OF SECTION 29, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY; EXCEPTING THEREFROM THE SOUTH 1470 FEET AND THE NORTH 455 FEET THEREOF; EXCEPTING THEREFROM THE WESTERLY 55 FEET THEREOF (MEASURED AT RIGHT ANGLES CONVEYED TO THE COUNTY OF RIVERSIDE BY DOCUMENT RECORDED JULY 25, 1985, AS INSTRUMENT NO. 163781 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. McLeod-Coucli EXHIBIT "3" 181069 The South. half of the Southeast quarter of the Northwest quarter of Section 29 , Township 4 South, Range 6 East, San Bernardino Base and Meridian. Together with a 20 foot easement for ingress and egress along the South line of the Southwest quarter of the Northwest quarter of Section 29, Township 4 South, Range 6 East, San Bernardino Base and Meridian. Debonne ^ 1 EXHIBIT- RECORDING REQUESTED BY AND Y WHEN RECORDED RETURN TO: Cc City of Palm Desert rn L7 c/o Best, Best & Krieger (DSP) w �L 39-700 Bob Hope Drive, Suite 312 O V-1 Rancho Mirage, CA 92270 U. o N s LU W W DEVELOPMENT AGREEMENT ENTERED INTO BETWEEN THE CITY OF PALM DESERT AND MONTEREY PALMS, A CALIFORNIA LIMITED PARTNERSHIP 4; 195008 DEVELOPMENT AGREEMENT THIS DEVELOPMENT ("Agreement") is entered into on the •�' � j4 , day of 6- 1993, between MONTEREY PALMS, A California Limited Partnership ("Owner") , and the CITY OF PALM DESERT, a municipal corporation organized and existing under the laws of the State of California (the "City") . Owner and the City are sometimes collectively referred to herein as 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 65864-65869 . 5 ("Development Agreement Law") authorize the City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and reducing the economic costs of such development. C. Pursuant to Government Code Section 65865, the City has adopted rules . and regulations establishing procedures and requirements for consideration of development agreements. D. Owner is the owner of the real property described on Exhibit "A" , attached hereto and incorporated herein by this reference (the "Property") . The Property is currently located within the unincorporated area of Riverside County, within the -1- LOC/112392/6305/010EVEL.A 195008 City' s sphere of influence. The City has initiated proceedings for the annexation of the Property into the corporate boundaries of the City in accordance with the Cortese-Knox Act (Government Code Section 56000, et seq. ) , has certified and approved a negative declaration pursuant to the California Environmental Quality Act for prezoning, and has approved certain pre-annexation zoning for the Property. Such annexation proceedings will be completed following approval of this Agreement, and this Agreement shall not be effective until such time as the annexation proceedings are completed. E. owner' s property is currently zoned W-2-20 under the County of Riverside Land Use Ordinance and has a general plan designation of M (Industrial/Manufacturing) . Prior to approving such zoning, the County performed all required environmental analysis in accordance with CEQA. F. owner intends to use its property for industrial and/or limited commercial uses and seeks certainty in the approval of the industrial or commercial uses of its property and with respect to the development of the Property. G. In partial consideration of Owner' support for the annexation of the Property into the City, the City has requested Owner to consider entering into this Agreement relating to the Property and proceedings have been taken in accordance with the development agreement law and the City ' s rules and regulations. H. The City Council has found that this Agreement is consistent with the City' s general plan, as amended (the "General Plan") , and any applicable Specific Plan. -2- LDC/112392/6305/01DEVEL.A 195008 I . On " eGemew 11 , 1992 , the City Council of the City adopted Ordinance No. approving this Agreement with Owner. J. The "Development Criteria" as defined and specified below implement the goals and policies of the City' s General Plan and provide balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the City, and impose appropriate standards and requirements with respect to land development and usage of the Property. K. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. This Agreement has undergone extensive review by the City's staff, the Planning Commission of the City, and the City Council and has been found to be fair, just and reasonable and in the best interest of the citizens of the City and the public health, safety and welfare. IN CONSIDERATION OF THE RECITALS AND THE MUTUAL COVENANTS AND CONDITIONS OF THIS AGREEMENT, the parties agree as follows: AGREEMENT 1. DEFINITIONS. 1 . 1 "Agreement" is this Development Agreement. 1. 2 "Agreement Date" is the date this Agreement is executed by the City. -3- LDC/112392/6305/01DEVEL.A 195008 1 . 3 "CEQA" is the California Environmental Quality Act, Public Resources Code Section 21000, et seq. 1. 4 "City" is the City of Palm Desert, California. 1 . 5 "County" is the County of Riverside, California. 1. 6 "Development Criteria" are: (a) All of those ordinances, resolutions, codes, rules, regulations and official policies of the City governing the development and use of the Property as of the Agreement Date, including, without limitation, the zoning approved by the City as part of the annexation of the Property to the City, which zoning shall be SI Service Industrial , the permitted uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings, the provisions for reservation of dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. Specifically, but without limitation, such Development Criteria includes Zone Change 92 . 1 adopted by the city council of the City on or about May 28 , 1992 . To the extent any of the foregoing are amended from time to time with the consent of Owner, the Development Criteria shall include such matters as so amended. Notwithstanding the immediately preceding sentence, if this Agreement is required by law to be amended in order for the Development Criteria to include such amendments, "Development Criteria" shall not include such amendments unless and until this Agreement is so amended. 1. 7 "Effective Date" is that date which is the later to occur of the following: (a) the expiration date for the filing of a -4- LOC/112392/6305/010EVEL.A 195008 referendum petition challenging the ordinance approving this Agreement if no such petition is filed by such date, (b) the date that the results of a referendum election are declared approving this AgreemenE, if a referendum petition is filed within the applicable period, or (c) the date the Property is annexed into the City. 1 . 8 "Owner" is Monterey Palms, A California Limited Partnership and its successors in interest to all or any part of the Property. 1. 9 "Property" is all of the real property and any improvements thereon described in Exhibit "A" attached hereto and incorporated herein by this reference. 2 . TERM. Unless earlier terminated as provided in this Agreement, this Agreement will commence on the date the Property is annexed into the City and will continue for a period of ten (10) years thereafter. 3 . RESTRICTIONS ON DEVELOPMENT AND USE. The development and use of the Property, including zoning, the density or intensity of use, the maximum height and size of proposed buildings, building setback requirements, parking requirements and provisions for reservation or dedication of land for public purposes, will be governed by the Development Criteria as the same exists on the Agreement Date. The City acknowledges and agrees that the Development Criteria specifically permit the development and use of the Property for such uses as are permitted -5- LOC/112392/6305/01DEVEL.A 195008 in the SI Service Industrial provided for in the City' s Municipal Code as of the Agreement Date. Except with regard to those aspects of the development of the Property which are addressed in this Agreement, the parties acknowledge and agree that other aspects of the development of the Property may require the exercise of discretion by the City and that those aspects of the development of the Property will be subject to the City' s reasonable review and approval as set forth in the City's ordinances, resolutions, rules and regulations, as they exist from time to time; provided, however, that those ordinances, resolutions, rules and regulation are consistent with the Development Criteria and this Agreement and provided further that the City exercises its discretion in a manner which is consistent with this Agreement. 4 . DEVELOPMENT AND USE. 4 . 1 Owner will have the vested right to develop its Property to the extent covered by and in accordance with the Development Criteria and this Agreement without regard to future ordinances, resolutions, rules, regulations and policies of the City or referenda of the voters of the City including, without limitation, those with respect to moratoria for utility service, other than ordinances, resolutions, rules, regulations and policies of the City which limit or condition the rate, timing or sequencing of development of the Property and which are required solely as a result of then existing shortages of utility service capacity or facilities. -6- LDC/112392/6305/01DEVEL.P 195008 4 . 2 on the request of Owner from time to time, the City will accept applications for, diligently process and issue, in accordance with the Development Criteria, any land use approvals and permits, subdivision approvals, building permits (including, without limitation, building permits for public improvements) , certificates of occupancy, business licenses and other permits which are necessary for the development or use of the Property in accordance with this Agreement, on payment of: (i) the City' s usual and customary fees and charges which are in effect as of the Agreement Date, to cover its costs of processing any such applications and issuing any such approvals, permits and certificates ("Processing Fees and Charges") , and; (ii) the Development Impact Fees, at the time that the Processing Fees and Charges and the Development Impact Fees are normally payable as provided in the Municipal Code of the City. 4 . 3 In connection with subdivision mapping of property immediately to the north of the Property, discussions have included that Dinah Shore Drive is proposed to be extended across the Property to the northerly projection of Portola Drive, as required by the provisions of Parcel Map No. 24255. The City acknowledges that no agreement exists between it and Owner that Owner is to dedicate or pay, either directly or indirectly as for example by inclusion in an assessment district or by reimbursement agreement, for the cost of so extending Dinah Shore Drive from the northerly boundary of the Property to the northerly extension of Portola Avenue and that Owner's only requirement in this regard shall be to perform conditions for the dedication of a right of way for Dinah -7- LDC/112392/6305/01DEVEL.A it 195008 Shore Drive and to provide street improvements, all only in connection with applications to subdivide or improve portions of the Property adjacent to Dinah Shore Drive. In addition, the parties acknowledge that no agreement exists between City and Owner with reference to portions of the subdivision map of the property immediately to the north of the Property that owner will consent or sign a final subdivision map as to portions of the map which appear to encroach onto or include a portion of the Property. 4 . 4 The City's present plan is to extend the East one-half of Portola Avenue northerly from its present terminus to a point near the Southern Pacific Railroad right of way. The City agrees to do so at no cost to Owner provided that Owner will be required to dedicate one-half of the right of way in connection with the subdivision mapping of portions of the Property abutting Portola and to construct and pay for street improvements for those portions of Portola Avenue adjacent to the Property in connection with and as a condition to approvals for the development of portions of the Property abutting Portola, all in accordance with the Development Criteria. 4 . 5 Notwithstanding provisions herein concerning the zoning applicable to the Property, City acknowledges that it may consider permitting commercial zoning on portions of property abutting Portola Avenue (or the northerly extension thereof from its present terminus) . City agrees that it will , in good faith, consider allowing a portion of the Property that will abut Portola Avenue after its northerly extension to be changed to a commercial zoning designation. -8- LDC/112392/6305/01DEVEL.A 195008 5. DEVELOPMENT IMPACT FEES . 5. 1 "Development Impact Fees" . The total development impact fees, including traffic mitigation fees, drainage fees, sewer connection fees, construction taxes and all other applicable development impact or linkage assessments, fees and charges which will be imposed on Owner with respect to the Property (collectively "Development Impact Fees") shall be those in force and effect as of the Agreement Date; provided, however, this section shall not be constructed to limit the authority of the City to increase the amount of the Development Impact Fees on a uniform city-wide basis so long as the amount of any increase, fee or charge after the Effective Date of this Agreement shall not exceed the increase in the reasonable cost of providing the improvement or service for which the fee or charge is imposed. The City also will not impose on or exact from any subsequent owner, developer, lessee or occupant of the Property, or any part thereof, any fees, taxes, charges or other impositions in substitution of any of the Development Impact Fees. 5 . 2 The parties agree that nothing in the Section 5 will be deemed to prohibit or limit in any way the imposition of fees by governmental agencies which are not sponsored by or under the control of the City including, without limitation, the State of California and the government of the United States. 6. ACCESS TO PROPERTY. 6. 1 In connection with the approval of the alignment of Dinah Shore Drive between the northerly boundary of the Property and the northerly extension of Portola Avenue, the City agrees that there -9- LDC/112392/6305/01DEVEL.A 195008 shall be a minimum distance between the southerly line of Dinah Shore Drive at Portola Avenue and the southerly boundary line of the Property at Portola Avenue of 500 feet; provided, however, if the subdivision map of that portion of the Property located at the southeast corner thereof includes an east/west access street at Portola Avenue approximately coterminous with the southerly boundary line of the Property as mentioned in subsection 6 . 2 , then the 500 feet shall be measured from the northerly line of said access street, north to the southerly line of Dinah Shore Drive at Portola Avenue. The foregoing matters are depicted on the map attached hereto as Exhibit "B" . 6 . 2 The City shall permit an east/west access street at Portola Avenue approximately coterminous with the southerly boundary line of the Property if desired by Owner in connection with its subdivision mapping of the portion of the Property, as shown on Exhibit "B" hereto. 6. 3 The City shall permit at least two crossing points across the extension of Dinah Shore Drive within the Property and across the extension of a proposed east/west street (which the Owner MacLeod Couch Land Co. proposes to use as the principal access into their Property as shown on Exhibit "B" hereto; such access roadway is currently designed to proceed in an East/West direction, to approximately the Easterly boundary line of the MacLeod Couch property "MacLeod Street") . The two crossing points in Dinah Shore Drive are in addition to that which will exist at the intersection of Dinah Shore Drive and Portola Avenue and at the northerly boundary line of the Property at Dinah Shore Drive. The two -10- LDC/112392/6305/01DEVEL.A 195008 crossing points in MacLeod Street will be in the interior of the Property and will be in addition to any streets which are an extension of any street from the property abutting the Property and located to the north of the Property. 7 . PUBLIC IMPROVEMENTS AND SERVICES. 7 . 1 Owner shall not be required by the City to construct any public improvements or pay or make any dedications or reservations for any public improvements with respect to the Property until , and in connection with, the development of the Property or a portion thereof by Owner. Further, if only a portion of the Property is developed at a particular time, then only those public improvements, dedications, or reservations with respect to and adjacent to the developed portion of the Property shall be required by the City; provided, however, that non-adjacent public improvements may be required by the City in connection with the development of all or a portion of the Property if such public improvements are required to mitigate impacts identified in a traffic study done by the City with respect to the portion of the Property to be developed. Further, City shall not, without the prior written consent of Owner, include the Property within any assessment district, community services district or community facilities district formed pursuant to the Landscaping and Lighting Act of 1972 , the Mello Roos Community Facilities Act of 1982 , or any successor statutes or other bond or assessment acts adopted in connection with the development or maintenance of public improvements. -11- LDC/112392/6305/01DEVEL.A l 195408 7 . 2 The proposed MacLeod Street is currently proposed to proceed in an East/West direction, to approximately the Easterly boundary line of the MacLeod Couch property and to thereafter proceed Northeasterly to intersect Dinah Shore Drive at right angles. City hereby acknowledges that no agreement exists to which it is a party that has finally agreed on the exact alignment of the extension of MacLeod Street through the Property and that the City will consider other alignments of MacLeod Street through the Property in connection with the subdivision process relating to the Property. 7 . 3 The City may desire that a boundary wall be constructed on or near and parallel to the southerly boundary line of the Property. No part of the cost of said wall shall be required by City to be paid by Owner unless, as between Owner and the owner of the property abutting the Property on the south, Owner seeks and obtains development approvals for its Property first in time. 8 . COMPLIANCE. The City will periodically review this .Agreement as provided in Section 65865. 1 of the Government Code and the City Municipal Code, to ascertain Owner' good faith compliance with the provisions of this Agreement. 9 . DEFAULT BY OWNER. If the City does not find good faith compliance with the provisions of this Agreement by owner, then the City will have all of the remedies which are provided in the City Municipal Code and will comply with all of the procedures which are provided in Section 65865. 1 of the Government Code and the City Municipal Code. -12- LDC/112392/6305/010EVEL.A 185008 10. DEFAULT BY THE CITY. If the City fails to perform any of its obligations as provided in this Agreement and fails to cure its nonperformance within 30 days after notice of nonperformance is given by Owner, then the City will be in default and Owner will have all of the remedies which are available to it at law or in equity; provided, however, that if the City ' s failure to perform cannot reasonably be cured within such 30 day period, then the City will not be in default of this Agreement if it commences to cure its nonperformance within such 30 day period and thereafter diligently and in good faith prosecutes such cure to completion. Without limiting the effect of the foregoing, the parties acknowledge and agree that the subject matter of this Agreement is unique and that money damages may be inadequate to compensate Owner and therefore, at the election of Owner, this Agreement may be specifically enforced. 11. INDEMNIFICATION. (a) Owner will defend, indemnify and hold the City and its elected officials, officers and employees free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker' s compensation claims) which results from (i) any obligation which arises from the development of the Property including, without limitation, obligations for the payment of money for material and labor; (ii) any failure on the part of Owner to take any action which she is required to take as provided in this Agreement; (iii) any action taken by Owner which -13- LDC/112392/6305/01DEVEL.A 195008 it is prohibited from taking as provided in this Agreement and (iv) any claim which results from any willful or negligent act or omission of Owner. (b) The City will defend, indemnify and hold Owner and its trustees, beneficiaries, partners, shareholders, directors, officers and employees free and harmless from any and all loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker' s compensation claims) which results from (i) any failure on the part of the City to take any action which it is required to take as provided in this Agreement, (ii) any action taken by the City which it is prohibited from taking as provided in this Agreement and (iii) any claim which results from any willful or negligent act or omission of the City. (c) Included in the scope of the foregoing indemnifications will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject of the applicable indemnification and all of the associated legal fees and court costs. Without limiting the effect of the foregoing, the indemnifying party will have the right to defend against any claim with respect to which it is indemnifying the other party, using legal counsel of its choice. 12 . SUPERSEDING STATE OR FEDERAL LAW. If any state or federal law or regulation which is enacted or adopted after the Effective Date of this Agreement or any other action of any governmental entity which is not under the City ' s control, prevents or precludes compliance with any provision of -14- LOC/112392/6305/01DEVEL.A 195008 this Agreement, then such provision of this Agreement will be modified or suspended only to the extent and for the time it is necessary to achieve compliance with such law, regulation or other governmental action and the remaining provisions of this Agreement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. On the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance which removes the effect of the same on this Agreement, the provisions of this Agreement will be automatically restored to their full original effect and any amendment to this Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 13 . SUCCESSORS AND ASSIGNS . All of the provisions of this Agreement will inure to the benefit of and will bind the parties and their respective successors and assigns and all other persons or entities which acquire all or any part of the Property. Without limiting the effect of the foregoing, Owner will have the right to assign any of their rights or delegate any of their obligations as provided in this Agreement to or for the benefit of any person or entity which owns or leases any part of the Property. -15- LDC/112392/6305/O/DEVEL.A 195008 14 . EQUITABLE SERVITUDES. All of the provisions of this Agreement will be enforceable as equitable servitudes and will constitute covenants running with the land as provided in the applicable law. 15 . NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of joint venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners. 16 . NOTICES AND OTHER COMMUNICATIONS . All notices or other communications which are required or permitted to be given to the parties will be in writing and will be given either by personal service or by mailing the same by certified or registered mail , postage prepaid, return receipt requested, or overnight mail delivery service, addressed as follows: CITY COPY CITY OF PALM DESERT Best, Best & Krieger 73-510 Fred Waring 39700 Bob Hope Drive, #312 Palm Desert, CA 92260 Rancho Mirage, CA 92270 Attn: Carlos Ortega Attn: Douglas S . Phillips Owner COPY Monterey Palms Crandall & Traver c/o Gale Messick 43-645 Monterey Avenue 935 Fountain Springs Lane Suite D Glendora, CA 91740 Palm Desert, CA 92260 Attn: Lynn D. Crandall -16- LDC/112392/6305/010EVEL.A 195008 If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it will be deemed given as of the date of receipt, rejection or return undelivered. Addressees to which notices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 16. 17 . ESTOPPEL CERTIFICATES . At the request of either party, the other party will , within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, except as is expressly provided in such and c no default in the performance of the estoppel certificate a ( ) requesting party' s obligations as provided in this Agreement exists, except as is expressly provided in such estoppel certificate. 18 . APPLICABLE LAW. This Agreement will be construed and enforced as provided in California law. 19. VENUE. Any legal action with respect to this Agreement will be brought in either Riverside Superior Court or in the United States District Court for the Central District of California. -17- LDC/112392/6305/01DEVEL.A 195008 20 . ATTORNEYS ' FEES. If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in such action will be entitled to recover from the losing party all attorneys ' fees, court costs and necessary disbursements in connection with such action. 21. PARAGRAPH HEADINGS . The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 22 . CONSTRUCTION. In all cases, the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. 23 . SURVIVAL. Each and every covenant in this Agreement will survive the execution and delivery of this Agreement for the benefit of the parties and their successors and assigns. 24 . CALENDAR PERIODS. All references in this Agreement to "years" , "quarters" , "months" and "days" will be deemed to be to references to calendar years, quarters, months and days. 25. SEVERABILITY. Every provision of this Agreement is and will be construed to be a separate and independent covenant. If any provision of this Agreement or the application of the same is, to any extent, found -18- LDC/112392/6305/01DEVEL.A 195008 to be invalid or unenforceable, then the remainder of this Agreement or the application of such provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Agreement will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 26. FURTHER ASSURANCES. Whenever and as often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or property in order to achieve the intent of this Agreement. 27 . COVENANT OF GOOD FAITH. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 28 . COUNTERPARTS . This Agreement may be executed in counterparts, each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 29 . INCORPORATION OF RECITALS. The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereof. Each recital of fact concerning the parties will be conclusive between -19- LDC/112392/6305/01DEVEL.A 195008 them and such facts will be incontestable in the event of any dispute between them with respect to such facts . Neither party will introduce any evidence in a court or administrative proceeding which would in any way serve to dispute any such recited fact. 30. EXHIBITS. Any Exhibit to this Agreement is incorporated by reference as though fully set forth hereof. 31. AMENDMENT. No amendment or waiver of any term of this Agreement will be binding on the City unless and until it has been approved and has become effective as provided in Section 65868 of the Government Code and pursuant to the City Municipal Code and Regulation, or on Owner, unless and until it has been executed by Owner. 32 . RECORDATION. No later than 10 days after the Effective Date of this Agreement, the City will , at its cost, record this Agreement in the Official Records of the Riverside County Recorder, as provided in Section 65868 . 5 of the Government Code and as provided by the City Municipal Code. 33 . AGREEMENT BY OWNERS RE NEGATIVE DECLARATION, NORTH SPHERE OF PREZONING. ANNEXATION OF OWNERS ' PROPERTY INTO THE CITY OF PALM DESERT. Neither owner nor their agents, consultants, servants, attorneys or representatives shall in any way object to or take any actions on behalf of Owner whatsoever in opposition to or challenge to the Negative Declaration for City' s Case No. C/Z 92-1, the North Sphere Pre-zoning or the annexation of the Property or Owner's -20- LOL/112392/6305/01DEVEL.A 195008 Property into the City of Palm Desert. Further, Petitioner and/or Owner at the request of City, shall take all reasonable steps to support the City ' s proposed annexation before any public body including, but not limited to, the Local Agency Formation Commission. CITY CITY OF PALM DESERT By By: ATTEST: / r; By SHEILA GI LIGAN, -,` ty Clerk City of P lm De99( t APPROVED AS TO FORM AND SUBSTANCE: By: Q �U Dougl s S .-Phillips Deputy City Attorney Owner: MONTEREY PALMS, a California Limited Partnership By: APPROVED AS TO FORM AND SUBSTANCE: Lynn D. Crandall Attorney for Owner -21- LDC/112392/6305/01DEVEL.A 195008 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) n �� 1993 , before me, (name of notary) L. a notary public, personally appe red Cvh personally known to me (of 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. - SYLVIAMUCF�MId( "lW3TNE9£y.,mj{{� a official seal. M'Ltia[wbA*lM NOTARY F'JE:., SlA1E OF CNfCI1M RIVERSIDE COUNTY M.CrnaExDires Aup.S,tYG1 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On �'L , , .� •� 1 , 1993 , before me, (name of notary) a l ., a notary public, personally appeared 1r . ? c ,, ct1 t; n �t ti, l, . C , , 11 aa:Il, 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 hefsh-e/they executed the same in iris/+mr/their authorized capacity(ies) , and that by l4rs7twr/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 . OFncKL yLR"TAD GMIRMCOUNIM @MV =[.01 iVw 14,19" -22- LDC/112392/6305/01DEVEL.A 1 195008 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On 1993 , 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 . STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On 1993 , before me, (name of notary) a notary public, personally appeared I 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 . -23- LDC/112392/6305/01DEVEL.A I 195008 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On 1993 , before me, (name of notary) a notary public, personally appeared I 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 . STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On 1993 , before me, (name of notary) a notary public, personally appeared I 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 . -24- LDC/112392/6305/01DEVEL.A 195008 EXHIBIT "A" That property located in the County of Riverside, California E described as: The Southeast quarter of Section 29 , Township 4 South, Range 6 East, San Bernardino Base and Meridian according to the official plat thereof. Except the South 1, 470 feet thereof. Said land is also shown as Parcel 3 of Record of Surveys recorded in Book 40, Page 69 of Record of Surveys, in the office of the County Recorder of said County. \ EXHIBIT'"B" I \ \ I 195008 I ANT I SOGTy�RsTgT� 9,y \ \ NOT TO SCALE l y%y Aq �qr o W sy n Rq� I J I u W " N 2628.80' 1/2 SECTION LINEIJ m ACCESS m MONTEREY POINT PROPOSED MocLEOD RD. PALMS ACCESS (72 ACRES) POINT APN 653-260-005 I 0 0 n 2631.80' ACCESS POINT 8 0 h I it J.F.Dovldoon Aowooletoo.Inc NOTE, N....._.e... ...n.�..a TWO CROSSING POINTS WITHIN MONTEREY PALMS BOUNDARIES ON PROPOSED Mae LEDO ROAD ROUTE OF SAID PROPOSED ROAD WITHIN SAID BOUNDARIES NOT YET DETERMINED ;i GATE 12/01/92 P.N. 9212680 l _ r S PRE-ANNEXATION AGREEMENT co THIS PRE-ANNEXATION AGREEMENT (hereinafter referred to as "Agreement") is made and entered into this )J� day of December, 1992, by and between THE CITY OF PALM DESERT, a municipal corporation (hereinafter referred to as "City"); and MC PROPERTIES, a partnership, and MACLEOD-COUCH LAND COMPANY, a partnership (hereinafter collectively referred to as "Property Owner"). 1. RECITALS: This Agreement is predicated upon the following facts: 1.1 Property Owners. MC PROPERTIES and MACLEOD-COUCH LAND COMPANY are owners of the real property described on EXHIBIT "A" attached hereto and incorporated by reference (hereinafter "Property"), which real property is the subject matter of this Agreement. The Property consists of approximately 72 acres and is presently not within the boundaries of the City. 1.2 Intent of Parties. The parties desire to enter into this Agreement prior to annexation to provide for zoning, development standards, and guidelines which will be effective upon annexation. 1.3 Zoning. The zoning for the Property shall be commercial/industrial use, as more specifically described in EXHIBIT "D" attached hereto and incorporated herein by this reference. 1.4 Mutual Agreement. The parties have mutually agreed to enter into this Agreement and proceedings have been taken in accordance with the City's rules and regulations. 1.5 City Council Findings. The City Council has found that the Pre-Annexation Agreement is consistent with the City's general plan, as well as all other applicable policies and regulations of the City. 1.6 City Approval. On December 17, 1992, the City Council adopted Ordinance No. 05 approving this Agreement with Property Owner. 2. DEFINITIONS: In this Agreement, unless the context otherwise requires: 2.1 Pr iec : is the development as represented by the Pre-Annexation Zoning (CZ-92-1) approved by the City on May 28, 1992, by Ordinance No. 683. 2.2 Propgrty Owner: means the person, persons or entity having a legal or equitable interest in the real property as described in EXHIBIT "A" and includes Property Owner's successors in interest. 2.3 Real Property: is the real property described in EXHIBIT "A," and shown on the map attached hereto as EXHIBIT "B" and incorporated herein by this reference. W9677.I!A ANNEX.DLR 1MS1111092 I _ . 1'456'7 2.4 Effective Date: is the date this Agreement is approved by the City Council as set forth in paragraph 1.6 above. 3. EXHIBITS: The following documents are referred to in this Agreement, and attached hereto and are incorporated herein as though set forth in full: EXHIBIT DESIGNATION DESCRIPTION A Legal Description of Real Property B Map Showing Property Location C Permitted Uses Square Footage Calculations D Zoning Designation 4. GENERAL PROVISIONS: 4.1 Duration of Agreement. The term of this Agreement shall commence upon the Effective Date and shall expire ten (10) years thereafter, unless extended by written mutual agreement. 4.2 Assignment. The rights and obligations of Property Owner under this Agreement may be transferred or assigned, provided such transfer or assignment is made as a part of the transfer, assignment, sale or lease of all or a portion of the Property. Any such transfer or assignment shall be subject to the provisions of this Agreement and the control and limitations contained herein. During the term of this Agreement, any such assignee or transferee shall observe and perform all of the duties and obligations of Property Owner contained in this Agreement as such duties and obligations pertain to the portion of the Property so transferred or assigned. Property Owner shall give to the City a notice within thirty (30) days after any such sale, assignment or transfer. 4.3 Amendment or Cancellation of Agreement. This Agreement may be amended from time to time by the mutual consent of the parties hereto. The term "this Agreement" or "Pre-Annexation Agreement" herein shall include any such amendment properly approved and executed. 4.4 Annexation. City agrees that the zoning described in EXHIBIT "D" shall remain in effect throughout the term of this Agreement unless modified by mutual agreement of the parties hereto. 4.5 Enforcement. Unless amended or cancelled as provided in Subsection 4.3, this Agreement is enforceable by any party to it despite a change in the applicable subdivision or building regulations adopted by City which alter or amend the rules, regulations or policies governing density and design as they exist as of the effective date of this Agreement. M/96-n.1/A ANNEX.DLR/1MS/1I IM 2 4.6 Hold Harmless. Property Owner agrees to and shall hold the City, its officers, agents, employees and representatives harmless from liability for damage or claims or damage for personal injury including death and claims for property damage which may arise from the direct or indirect operations of Property Owner or those of its contractors, subcontractors, agents, employees or other persons acting on its behalf which relate to the Project. Property Owner agrees to and shall defend the City and its officers, agents, employees and representatives from actions for damages caused or alleged to have been caused by reason of Property Owner's activities in connection with the Project. This hold harmless agreement applies to all damages and claims for damages suffered or alleged to have been suffered by reason of the operations referred to in this paragraph, regardless of whether or not the City prepared, supplied or approved plans or specifications, or both, for the Project. Property Owner further agrees to indemnify, hold harmless, pay all costs and provide a defense for the City in any action by a third party challenging the validity of the Agreement. 4.7 Binding Effect of Agreement. The burdens of this Agreement bind and the benefits of the Agreement inure to the parties' successors in interest. 4.8 Notices. All notices, demands and correspondence required or provided for under this Agreement shall be in writing and delivered in person or dispatched by certified mail, postage prepaid. Notice required to be given to City shall be addressed as follows: The City of Palm Desert 73510 Fred Waring Drive Palm Desert, California 92260 ATTENTION: City Manager and Assistant City Manager and Director of Community Development Notices required to be given to Property Owner shall be addressed as follows: MacLeod-Couch Land Company 777 South Pacific Coast Highway Suite 204 Solana Beach, California 92075 ATTENTION: Myron T. MacLeod W%77.I/A ANNEX.DLR/J MS/111092 3 I . 12456: With a copy to: SCHLECHT, SHEVLIN & SHOENBERGER, A Law Corporation 801 East Tahquitz Canyon Drive, #100 Palm Springs, California 92262 ATTENTION: James M. Schlecht, Esq. A party may change its address by giving notice in writing to the other party. Thereafter. notices, demands and other pertinent correspondence shall be addressed and transmitted to the new address. 5. CONFLICTS OF LAW: 5.1 Conflict of City and State or Federal Laws. In the event that state or federal laws or regulations enacted after this Agreement have been entered into or the action or inaction of any other affected governmental jurisdiction prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall: 5.1.1 Notice and Copes: provide the other party with written notice of such state or federal restriction, and provide a copy of such regulation or policy and a statement of conflict with the provisions of this Agreement; 5.1.2 Modification Conferences: within thirty (30) days meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. 5.2 Council Hearings. Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or state law or regulation upon this Agreement, the matter shall be scheduled for hearing before the Council. Ten (10) days written notice of such hearing shall be given. The Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation. Property Owner, at the hearing, shall have the right to offer oral and written testimony. Any modification or suspension shall be taken by the affirmative vote of not less than a majority of the authorized voting members of the Council. Any suspension or modification may be subject to judicial review in conformance with subsection 8.3 of this Agreement. 5.3 Cooperation in Securing Permits. The City shall cooperate with the Property Owner in the securing of any permits which may be required as a result of such modifications or suspensions. Property Owner shall be responsible for the payment of the costs and fees for such permits. M79677.1/A ANNFX.DUt/JMS/111092 4 1;2456'7 6. DEVELOPMENT OF THE PROPERTY: 6.1 Permitted Uses. For the term of this Agreement, the Property may be developed for commercial and industrial uses as more particularly set forth in the EXHIBIT "C." 6.2 Timing of Development. The parties acknowledge that Property Owner cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Property Owner, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465 that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that Property Owner shall have the right to develop the Property in such order and at such rate and at such times as Property Owner deems appropriate within the exercise of its subjective business judgment. 6.3 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require subsequent development approvals and may demonstrate that changes are appropriate and mutually desirable in the existing development approvals. In the event Property Owner finds that a change in the existing development approvals is necessary or appropriate, Property Owner shall apply for a subsequent development approval to effectuate such change and City shall process and act on such application in accordance with the existing Land Use Regulations. Unless otherwise required by law, a change to the existing development approvals shall be deemed "minor" and not require an amendment to this Agreement provided such change does not: (a) Alter the permitted uses of the Property as a whole; or (b) Increase the density or intensity of use of the Property as a whole; or (c) Increase the maximum height and size of permitted buildings; or (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or (e) Constitute a project requiring a subsequent or supplemental Environmental Impact Report pursuant to Section 21166 of the Public Resources Code; or 6.4 Rules. Regulations, Official Policies. The City rules, regulations, ordinances, laws, general plans, and official policies governing development, density, permitted uses, growth management, environmental consideration, and design criteria for purposes of this Agreement shall be those in force and effect upon the commencement of the term of this Agreement, provided that the City shall not alter the zoning designation set forth on EXHIBIT "D." M/9677.I/A ANNEx.DLR/1MSn I IM 5 12�56: 6.4.1 Application of Subsequently Enacted Rules, Regulations, Etc Except as set forth in Section 4.5, the City may, hereafter, during the term of this Agreement, apply only such newer City enacted or modified rules, regulations, ordinances, laws, general or specific plans, and official policies which are not in conflict with those in effect on the date of this Agreement and application of which would not prevent development in accordance with subsections 6. 1 and 6.2. However, this section shall not preclude the application to the Property of changes in City laws, regulations, plans or policies specifically mandated and required by changes in state or federal laws or regulations. In such an event, the provisions of Section 5 of this Agreement are applicable. 6.4.2 Application of Subsequently Revised Fees and/or Imlrovement Standards. Application, processing and inspection fees, improvement standards as set forth in the City subdivision regulations and construction standards and specifications that are revised during the term of this Agreement shall apply to the Project pursuant to this Agreement provided that: (a) such fees, standards and specifications apply to all public works within the City, (b) their application to the Property is prospective only as to applications for building and other development permits or approvals of tentative subdivision maps not yet accepted for processing, and (c) their application would not prevent development in accordance with subsections 6.1 and 6.2. 7. DEVELOPMENT PROGRAM: 7.1 Cam. The City hereby agrees that it will accept from Property Owner for processing and review all development applications for development permits or other entitlements for the use of the Property in accordance with this Agreement, provided that said applications are submitted in accordance with City rules and regulations. The City waives any requirement for minimum site size otherwise provided in the zoning set forth in EXHIBIT "D." 7.2 Duty to Pay Development Fees. Property Owner hereby agrees to pay the requisite development fees at the time such fees are customarily required by the City. 7.3 Cooperation in Installation of Traffic Signals. Traffic lights are proposed to be installed by certain owners at the intersection of Monterey Avenue and the roadway which the Property Owner proposes to use as the principal access into their property. Such access roadway is currently designed to proceed in an east/west direction, to approximately the easterly boundary line of the Property Owner's property and to thereafter proceed northeasterly to intersect Dinah Shore Drive at a right angle. The area where such northeasterly turn in the roadway is proposed is owned by Monterey Palms. The City agrees to cooperate in good faith to obtain the placement of such traffic lights and the installation of a left turn lane or lanes at such intersection with Monterey. If the City requests the installation of the traffic signal prior to the time the Property, or some portion thereof, is developed, the City shall be responsible for the cost to install the traffic lights and left turn lane or lanes, except that Property Owner agrees to participate in an assessment district for such installation if the City elects to form one. Otherwise, the Property Owner shall be responsible for such costs in all other events, including development of the Property. Ml967I.1/A ANNEX.DLR/IMS/111692 6 L 121}567 7.4 Subdivision. City agrees property owner may divide the Property into lots and/or parcels not exceeding ten (10) in number without the necessity of filing a Specific Plan on the Property. 8. ENFORCED DELAY, DEFAULT, REMEDIES AND TERMINATION: 8.1 General Provisions. In the event of default or breach of this Agreement or of any of its terms or conditions, the party alleging such default or breach shall give the breaching party not less than thirty (30) days Notice of Default in writing. The time of notice shall be measured from the date of certified mailing. The Notice of Default shall specify the nature of the alleged default and, where appropriate, the manner and period of time in which said default may be satisfactorily cured. During any period of curing, the party charged shall not be considered in default for the purposes of termination or institution of legal proceedings. If the default is cured, then no default shall exist and the noticing party shall take no further action. 8.1.1 Option to Institute Legal Proceedings or to Terminate. After proper notice and the expiration of said cure period, the noticing party to this Agreement, at its option, may institute legal proceedings pursuant to Subsection 8.5 hereof. 8.1.2 Waiver. Failure or delay in giving Notice of Default pursuant to this section shall not constitute a waiver of any default. Except as otherwise expressly provided in this Agreement, any failure or delay by the other party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies or deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 8.2 Enforced Delay. Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, casualties, acts of God, governmental restrictions imposed or mandated by other 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 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. Such an extension shall commence to run from the time of commencement of cause. 8.3 Institution of Legal Action. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to enforce any covenants or agreements herein or to enjoin any threatened or attempted violation thereof; to recover damages for any default; or to obtain any remedies consistent with the purposes of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, or in the Federal District Court in the Central District of California. M/9677.I1A ANNEx.DLWJMS1111092 7 1 - _ , 12156: 8.4 Apolicable Laws/Attomeys' Fees. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Should any action be brought in any court of competent jurisdiction, the prevailing party in such action shall be entitled to recover all attorneys' fees, court costs and necessary disbursements in connection with such litigation. 8.5 Costs of Collection. In the event that it becomes necessary for the prevailing party of any action contemplated in paragraph 8.4 to enforce a judgment rendered against the losing party, the prevailing party shall be entitled to recover from the losing party the costs incurred in enforcing such judgment including, but not limited to attorneys fees. This provision is intended to be severable from the other provisions of this Agreement and is intended to survive any such judgment and is not to be deemed merged into such judgment. 9. ENCUMBRANCES AND RELEASES ON REAL PROPERTY: 9.1 Discretion to Encumber. The parties hereto agree that this Agreement shall not prevent or limit Property Owner, in any manner. at Property Owner's sole discretion, from encumbering the Property or any portion of any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. City acknowledges that the lenders providing such financing may require certain modifications and City agrees, upon request, from time to time, to meet with Property Owner 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 mortgagees or trust deed beneficiaries of the Property shall be entitled to the following rights and privileges. 9.2 Entitlement to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust, and their successors and assigns, or any mortgage or deed of trust encumbering the Property, or any part thereof, which mortgagee, beneficiary, successor or assign has requested in writing to the City, shall be entitled to receive written notification from the City of any default by Property Owner in the performance of Property Owner's obligations under this Agreement which is not cured within thirty (30) days. 9.3 Property Subject to Pro Rata Claims. Any mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the property, or part thereof, subject to any pro rats claims for payments or charges against the Property, or part thereof, secured by such mortgage which accrue prior to the time such mortgagee comes into possession of the property, or part thereof. 9.4 Releases. City hereby covenants and agrees that upon payment of all fees required under this Agreement with respect to the Property, or any portion thereof, City shall execute and deliver to County Recorder appropriate release or releases of further obligations in form and substance acceptable to the County Recorder or as may otherwise be necessary to effect such release. M/9677.1/A ANNEC.DLR/1Ms/111092 8 10. MISCELLANEOUS PROVISIONS: 112-1567 10.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, and "may" is permissive. If there is more than one signer of this Agreement, their obligations are joint and several. The time limits set forth in this Agreement may be extended by mutual consent of the parties in accordance with the procedures for.adoption of an agreement. 10.2 Severability. The parties hereto agree that the provisions are severable. If any provision of this Agreement is held invalid, the remainder of this Agreement shall be effective and shall remain in full force and effect unless amended or modified by mutual consent of the parties. 10.3 Entire Agreement. Waivers and Amendments. This Agreement constitutes the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiation or previous agreements between the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the City or of Property Owner. All amendments hereto must be in writing signed by the appropriate authorities of the City and Property Owner. Upon the completion of performance of this Agreement or its earlier revocation and termination, a statement evidencing said completion or revocation shall be signed by the appropriate agents of Property Owner and the City. 10.4 Project is a Private Undertaking. It is specifically understood and agreed to by and between the parties hereto that: (a) the subject development is a private development; (b) the City has no interest or responsibilities for or duty to third parties concerning any improvements until such time and only until such time that the City accepts the same pursuant to the provisions of this Agreement or in connection with the various subdivision map approvals; (c) Property Owner shall have full power over and exclusive control of the Property subject only to the limitations and obligations of Property Owner under this Agreement; and (d) the contractual relationship between the City and Property Owner is such that Property Owner is an independent contractor and not an agent of the City. 10.5 Incorporation of Recitals. The recitals are specifically incorporated into this Agreement. IN WITNESS WHEREOF, this Agreement has been executed by the parties on the day and year first above written, as authorized i;y No. 695 of the City Council. dirtance "CITY" THE CITY OF PALM DE T, a municipal corporation BY "� City Manager NV%77.17A ANNEX.DLR71MS7 111092 9 12,156'7 I HEREBY APPROVE the form and legality of the foregoin greement this `day of December, 1992. i DAVI J. ER IN, City Attorney "PROPERTY OWNER" MC PROPERTIES, a partnership An rew J . 'Mac eod BY . -M ys a o ty y T. M e B J n of C MACLEOD COUCH LAND COMPANY, a partners/hip ���.4r�L2e�� Andrew J. Mac eoo(.d�, BY s c eo Y ti� yro a eo B Y LA�2 e c 10 1� 15IG ALL-PURPOSE CERTIFICATE State of California ) County of Riverside ) 1` }5 ` On mC1rLh --); I VI before me, 0—)1C )e Ile ' Notary Public in and for said State, personally appeared R r-1- P /} . l+✓Yi . personally known to me(or proved to me on the base of satLsfactory evidence)to be the person(e)whose name(a) is/are subscribed to the within instrument and acknowledged to me that he/she/they-executed the same in his/her/their-authorized capaciry i"),and that by his/her/their-signature(&) on the instrument the person(s} or the entity upon behalf of which the person(4acted,executed the instrument. WITNESS my hand and official seal. orrKtAL sFAL MtCHELLE E.SKRAAISTAD \ A C pvomnm%va� WAL 0"lot MSignature� 1t[' .l Q > �'� '}'� l 7 .(Jro EXRA XRANo o�ry"S (Seal)) 1tit..F / STATE OF CALIFORNIA ss COUNTY OF RIVERSIDE ) On 2 L4, 19 �23 , before me, VAUGHN DISHMAN, a Notary Public in and foSt said State, personally appeared DAVID J. ERWIN, personally known to me o * < Larto � � to be thp- person N whose name(sa is/ g subscribed to the within instrument and acknowledged to me that he/she/t executed the same in his/h /their authorized capacity(i , and that by his/fir/their signatures (?q on the instrument the person(() , or the entity upon behalf of which the person(S.), acted, executed the instrument. WITNESS my hand and official seal. VAUGHN DISHMAN NV, ,a = Notary blic R RSIn(CpUtYry "'LXAC@Mnv s,1��i CERTIFICATE OF ACKNOWLEDGMENT Prz- gru't-txa,;'� 15 «i w ci'l.y �P r'i1 K 67 . ...................................................................... State of California OnT-Zbn&" q 1993 55. before me. Iddlel 5apk'.. r�u c Inamr and udr,q ut hLrrl Countyof 3��fto ND�pr pwhl� y personal)} appeared personally known tome - - - - - - - - - - - - - - - to be the persongp whose name*is,se subscribed to the within instrument SAPHIRE MANN 3 and acknowledged to me that he executed the same in his herir 0 Comm.A95004.1 Q authorized ca achy nW,and that by his.(z signawregl on the instru- c IOTARY PU3lP-GALIFC::L P L MyCGAN01EQ0coul5.+A9sn ment the person(, or the entity upon behalf of which the person(,$ aced. executed the instrument. WITNESS my hand andofficial seal. Notary's Signature CERTIFICATE OF ACKNOWLEDGMENT "' "] ....................................................................................................................... :• State of California On before me, $$. (dale) Iname and fide of oRiren County of /V o�- -j PA-tal%e personally appeared r rlNret T Mae.Lwd, Gee" foad+wt, /19C.40YOZ ias • personally known to me to be the person(%whose name(* is/Me subscribed to the within instrument SAPHIRE MANN ; and acknowledged to me that he.�slmhvq executed the same in his l Comm.10950040 n OTARY PUBLIC eAL710rJ1UG authorized capacity(*O,and that by his; ' Sr signature Ml on the insiru- s VE00 lll� ment the erson or the entity upon behalf of which the person* acted. W°o.vn.e.P+..ran.S.,oar P �� Y P executed the instrument. WITNESS my hand and official seal. Notary's Signature e, ............. C"/'t-Afl./ta'X"'A'ez CERTIFICATE OF ACKNOWLEDGMENT ....................................................................................................................... State of California On F�'u'^-� /o 1993 before me. �Qple;'� M°nn Iname and tide of of(iarn SS. County of �'e�� Now � � pe onally appeared �i7dA tA� T!y/ael�ai eae�F� ,i� eel. personally known to me to be the person(o whose name(fq is/aW subscribed to the within instrument and acknowledged to me that heisin dial+executed the same in his ht r 0 SAPHIRE MANN authorized capacity(icm,and that by his/heahttir signature* on the instru- Coem.s959o<O ment the rson or the entity upon behalf of which the personi� acted. torARYRuute-cAuvoRenA� Pe (%, °AMO�OOCO 7^ executed the instrument. thCa,n,n.Emlrr Nr.S.+acts : WITNESS my hand and official seal. Notary's Signature CERTIFICATE OF ACKNOWLEDGMENT 7 Yam/ 1`4551 - - - - - - - - - - - - - ..................................M..................XMM.........................................................._ ...... State of California On rr6rw'47/0, /993 before SS. dates (name and(ide ,d nffi,en County of !w } lyo au,, personally appeared lea, f uruy�sw) /Y/.c Pr ies — personally known to me 1 t l to be the persona) whose name{p is,4pe subscribed to the within instrument SAPHIRE MANN ; and acknowledged tome that hshe ;Vy executed the same in I;.her Wviir Comm.I11959040 n authorized cap acity and that by herti� g r signature(* on the instru. Q OTARY PUBLIC CALIFORN LI SANOIEGOCOUFM ment the personi&l, or the entity upon behalf of which the persongo acted, W Comm.E.0bqs Mar.$.I BOB" executed the instrument. WITNESS my hand and official seal. Notary's Signature CERTIFICATE OF ACKNOWLEDGMENT Pre- Aem,vr 4o,1 jreemt«' Wink. G;dl er PP"All Dhe.,P 1` 15(3 r ...................................................................................................................... •State of California OnsBruQ 199J before me, �Aiu^� Manna SS. ldate) (name and tide of ufficen • 1 County of. Pie�o } WD4xry P7wWie p , personally appeared John Je tE.eAvd A Aiatw MAcled C.UALandCo personally known to me to be the persondc)whose name*) isle subscribed to the within instrument and acknowledged to me that he. •y executed the same in his hc_eh.rer SAPHIRE MANN authorized capacity(fo:i�,and that by his%h signature(o on the insuu- yMCYomm.0 �9MpAN7q�� ment the person(t7. or the entity upon behalf of which the person(;) acted, PUBLIC-SAN txE00 COUNTY executed executed the instrument. WITNESS my hand and official seal. Notary's CERTIFICATE OF ACKNOWLEDGMENT �rx-/�nn�7ra{i4w A.�r�snwaa< aJ,f i Ci�y of Pr/m Z56 i ...................................................................................................................... :• State of California On before me. SaPh%re Mann, Ss ldatel (name and tide of offix, `/R.t'7�7 e County of D rND'i-rJe� /7,i,b/•'[, ersonally appeared v7 r r/Nren T Mac Lead, (�<neiaGPu7�Ety, YflxJAaCbu1JLZa -F Co, . personally known to me SAPHIRE MANN to be the personal whose name* is/aw subscribed to the within instrument Comm.CS,13040 dAltY and acknowledged to me that hel�ry executed the same in his ht�'tr frruC.CAIIFORNI � CANC$:OCO�NTY � authorized capacity(iry.and that by his/hertthoir signature(i@) on the instru- ment the person*, or the entity upon behalf of which the personal acted. executed the instrument. WITNESS my hand and official seal. Notary's Signature ' 12 }567 fin- N>tn�,raa4e.�/QS�eenrvt.f cJ,� A�f..e yJeeA,,.f CERTIFICATE OF ACKNOWLEDGMENT jt.}56 ............................................................................. State of California pnl�ru /D /9 93 before me, —'�LgA4"e Na1-11 SS dares (name and tide of of t,eri County of 5r 7.1e�gfl htl4.v /fix QzQ ersonally appeared }if�a,,,� T. /ylr�C.�ocG6uu.-•.�P�.fx�. /1'Iae4mGC�.lir�eCo personally known to me(or proved i to be the personal whose name* is/er subscribed to the within instrument and acknowledged to me that he,'shwbey executed the same in his hsrfEe;ir SAPHIRE MANN ; authorized capacitvpa(,and that by his;hr-si nature RV �959000 p g W7 on the ins[ru- NOTARYPUBnC CALIFprpBM_' ment the person(JO, or the entity upon behalf of which the person(W acted. 9AN Moo COUNTY (7 pmyco .Expm1/.r.S.tepp+ executed the instrument. WITNESS my hand and official seal. : Notary's Signature CERTIFICATE OF ACKNOWLEDGMENT 224567 ...................................................................................................................... State of California On before meMn� t yy, Ss. ate name and tide of officer) ( County of, S pally appeared • G/,t , T Nlxl,sa? �cn.+.��,t rfaf e /Ilae(eod Csuc% LA.w01-0; personally known to me(or proved to me on the basis of satisfactory evidence) to be the person(#whose name*) isl!!;subscribed to the within instrument and acknowledged to me thatt/sheA4W executed the same in 1W her r0ir SAPHIRE MANN authorized capacitv(ttL and that by�her/t1VT signature(fo on the instru- Comm.M9W0 ment the person(5f, or the entity upon behalf of which the person(;i acted. ARYRueue. • BAN NEOO couNfY�'""t') executed the instrument. WITNESS my hand and official seal. L Notary's Signature EXHIBIT "A11 124567 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE UNINCORPORATED AREA OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: H PAI 653 - 9 60 -- 007 - 3 THE NORTHERLY 455 FEET OF THE SOUTHWEST QUARTER OF SECTION 29, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY APPROVED FEBRUARY 29, 1856; EXCEPTING THEREFROM 50 PERCENT OF ALL OIL, GAS, AND OTHER HYDROCARBON SUBSTANCES AND ALL OTHER MINERALS UNDERLYING SAID LAND AS RESERVED IN DEED FROM CHESTER W. FROUDE AND GLADYS R. FROUDE, HUSBAND AND WIFE, TO BLANCHE STEPHEN, AN UNMARRIED WOMAN; ALSO EXCEPTING THEREFROM THE WESTERLY 55 FEET THEREOF (MEASURED AT RIGHT ANGLES) CONVEYED TO THE COUNTY OF RIVERSIDE BY DOCUMENT RECORDED JULY 25, 1985, AS INSTRUMENT NO. 163780 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. 'J PARCEL 2: R P/✓ & S-3 - ;(a0 - 00 -f THE SOUTHWEST QUARTER OF SECTION 29, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY; EXCEPTING THEREFROM THE SOUTH 1470 FEET AND THE NORTH 455 FEET THEREOF; EXCEPTING THEREFROM THE WESTERLY 55 FEET THEREOF (MEASURED AT RIGHT ANGLES CONVEYED TO THE COUNTY OF RIVERSIDE BY DOCUMENT RECORDED JULY 25, 1985, AS INSTRUMENT NO. 163781 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. EXHIBIT "A" NV%77.I1A ANNEX.DLR/JMSl111072 P.C.(3) -'Y\'L/Y1 WlYS�S.4�r..�1-'-y�1�.1`L � •'��® I .: c; is �.�. . . '',• Y • •.� i -i. � •. P:G:{3)- � �. S.I. • i :;:_ S.I. d=.:.�' •� ! ��• �.m.r pec>P�ierr - .I i P.C.D. 13 i 1• •iii .,u euau .�Yr ..................... .. - 1 � I 1 � I I � I 1 12 �56'7 EXHIBIT IIC" PERMITTED USES SQUARE FOOTAGE CALCULATIONS RETAIL Total Retail Buildings 287,100 Square Feet HOTEL 6 Floors @ 15,600 Square Feet (l84 Rooms) 93,600 Square Feet FO FICE 11 Buildings @ various sizes 326,200 Square Feet PARKING STRUCTURE 2 Levels @ 60,000 Square Feet 120,000 Square Feet LIGHT INDUSTRIAL 11 Buildings @ various sizes (1 story with mezzanine) 317,867 Square Feet 7.5% Buffer 85,857 Square Feet TOTAL 1,230,624 Square Feet EXHIBIT "C" M/9677.1/A ANNEX.DLR/1M5/111092 1. �56 / EXHIBIT "D" ZONING PLANNED COMMUNITY DEVELOPMENT CHAPTER 25-23 PALM DESERT MUNICIPAL CODE INCLUDING USES ALLOWED IN THE FOLLOWING ZONES: PC1, PC2, PC3, PC4, O-P AND SI (SERVICE INDUSTRIAL DISTRICT) EXHIBIT "D" M/9677.VA ANNFX.DMIMSI111092 COMPLETE THIS INFORMATION 12456 i Recording Requested By: cc m m I WHEN RECORDED MAIL TO: 29 C,4 �Pes-c) 34 ICJ —P-,cb � � < 4 Y kd-rie.1 )o M ; rctoJ� ICa , ct ba cc W SPACE ABOVE THIS LINE FOR RECORDER' S USE ONLY THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Additional recording fee applies) BEST, BEST & KRIEGER RECEwED A PMTNER P w UN . F®IONN.�TIONS LAWYERS APR 19 1993 ARTHUR L.UTTLEWORTH' DOUGLAS S.PHILLIPS' MATT H.MORRIS MARSHALL S.RUDOLPH SUITE 312 GLEN E.STEPHENS- ANTONIA GRAPHOS JEFFREY V.DUNN KIM A.BYRENS 39700 BOB HOPE DRIVE I WILLIAM R.DGWOLFE' GREGORY K.WILKINSON STEVEN C.D.BAUN CYNTHIA M.GERMANO BARTON C.GAUT' WYNNE S.FURTH BRANT H.OVEIRIN MARY E.GILSTRAP C MMUNDY DBE DPMEMT DEPARTMINT POST OFFICE BOX 1335 PAUL T.SEUER' DAVID L.BARON ERIC L.GARNER NGUYEN D.PHAN CITY OF PALM DESFR7 RANCHO MIRAGE.CALIFORNIA 92270 DALLAS HOLMES' EUGENE TANA" DENNIS M.COTA DANIEL C.PARKER.JR. TELEPHONE(619)56B-2611 CHRISTOPHER L.CARPENTER' BASIL T.CHAPMAN JULIE HAYWARD BIGGS GINEVRA C.MARUM TELECOPIER(619)340.6698 RICHARD T.ANOERSON' TIMOTHY M.CONNOR RACHELLE J.NICOLLE CHARLES E.KOLLER JOHN D.WAHLIN' VICTOR L.WOLF ROBERT W.HARGREAVES GLENN P.SABINE MICHAEL D.HARRIS' DANIEL E.OLIVIER JANICE L.WEIS CHRISTINE L.RICHARDSON W.CURT EALY' DANIEL J.M[HUGH SHARYL WALKER JOANE GARCIA-COL30N THOMAS S.SLOVAK- HOWARD 0.GOLDS PATRICK W.PEARCE PHILIP J.KOEHLER JOHN E.BROWN' STEPHEN P.DEITSCH KIRK W.SMITH DIANE C.WIESE MICHAEL T.RIDDELL' MARC E.EMPEY JASON D.DABAREINER STEVEN S.KAUFHOLD MEREDITH A.JURY' JOHN R.ROTTSCHAEFER KYLE A.SNOW REBECCA MARES DURNEV OF COUNSEL MICHAEL GRANT' MARTIN A.MUELLER MARK A.EASTER ALLISON C.HARGRAVE DAMES B.COMMON J.BAUM, J.MICHAEL SUMMEROUR DIANE L.FINLEY DOROTHY 1.ANDERSOX ANNE T.THOMAS' VICTORIA N.KING MICHELLE OUELLETTE G.HENRY WELLES D.MARTIN NETHER" JEFFERY J.CRANDALL PETER M.BARMAOK JAMES R.HARPER GEORGE M.REYES SCOTT C.SMITH DAVID P.PHIPPEN,SR. DINA O.HARRIS WILLIAM W.FLOYD,JR. JACK B.CLARKE.JR, KENNETH R.WEISS MICHAEL A.CRISTE' BRIAN M.LEWIS SUSAN C.NAUSS _ GREGORY L.HARDKE JEANNETTE A.PETERSON CHRISTOPHER DODSON OFFICES IN KENDALL H.MALVEY BRADLEY E.NEUFELD BERNIE L.WILLIAMSON RIVERSIDE 1>IO6B8-1430 CLARK H.ALSOP' KANDY LEE ALLEN ELAINE E.HILL RAYMOND BEST(1868-195>) DAVID J.ERWIN' ELISE K.TRAYNUM KEVIN K.RANDOLPH JAMES H.KRIEGER(1913-1975) PALM SPRINGS(619)325.7264 MICHAEL J.ANDELSON' WILLIAM O.OAHLING,JR, JAMES B.GILPIN EUGENE BEST(1893-1981) ONTARIO(7141 989-SM4 •PRVErmGNu CdiN}IATCw . April 15, 1993 r'• H � Cr) IT c.� Cynthia Ludvigsen, Esq. " m P. O. Box 409 398 W. Fourth Street, Suite 203 cJ San Bernardino, CA 92402-0409 Re: Annexation 30 Development Agreement - Rancho Mirage Industrial Park Dear Ms. Ludvigsen: I have forwarded the fully executed Development Agreement to the recorder's office and I will provide you with a conformed face sheet with the instrument number and date recorded when I receive it back from the recorder. The agreement at paragraph 4 . 8 on pages 13 and 14, as well as paragraph 4. 9 on pages 14 and 15, require that the City: (1) approve new parcel maps within ninety days of completion of annexation proceedings; (2) consider extensions of the Parcel Maps 24255 and 27419 for an additional 8 years in accordance with Government Code Section 66452. 6 (a) ; (3) process an approved lot Si line adjustments for the four odd-shaped or odd-sized lots, two within Parcel Map 24255 and the other two within Parcel Map 27419. The City has agreed to waive all fees, charges and costs in connection with these three items. I am sending a copy of this letter to Ray Diaz, with a copy of pages 13, 14 and 15 from the agreement, for his information. If you have any suggestions on how to proceed on the new parcel aps DSP28882 wa)v . a\( c�N Nr� cry w Ha*+�,1 LAW OFFICES OF . "2EST, BEST 6. KRIEG Cynthia Ludvigsen, Esq. April 15, 1993 Page 2 and lot line adjustments, please let me know. I am sure the City will cooperate to get this done as quickly as possible. The dismissal in the underlying action has been filed. I believe that once the agreement is recorded, the parcel maps and lot line adjustments approved, there is nothing further to be done until the City considers the extension of the parcel maps under Government Code Section 66452.6 (a) . Very truly yours, DOUGLAS S. PHILLIPS of Best, Best & Krieger DSP:pam cc: Ray Diaz David J. Erwin DSP28882 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: DEVELOPMENT AGREEMENT ENTERF_D INTO BC'TWEEN THE CITY OF PALM DESERT AND RANCHO Mll"CrE INDUSTRIAL PARK RUMEN INTERNATIONAL CORPI HENRY MELBY, TRUSTEE OF THE B.H. FOR TNER TESTAMENTARY TRUST, MC- PROPERTIES,, MACLEOD-COUCH LAND CO AND BERNARD AND JEANR'ETT DEBONNE TABLE OF CONTENTS RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 . DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 5 2 . TERM. . . . . . . . . . . . . . . . . . . . . . . . . . 7 3 . RESTRICTIONS ON DEVELOPMENT AND USE. . . . . . . . . . . 7 4. DEVELOPMENT AND USE . . . . . . . . . . . . . . . . . . . 9 5. COMPLIANCE. . . . . . . . . . . . . . . . . . . . . 15 6 . DEFAULT BY OWNERS. . . . . . . . . . . . . . . . . . . . 15 7 . TIMING OF DEVELOPMENT . . . . . . . . . . . . . . . . . 15 8. DEFAULT BY THE CITY . . . . . . . . . . . . . . . . . . 16 9 . INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . 17 10 . SUPERSEDING STATE OR FEDERAL LAW. . . . . . . . . . . 18 11. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . 19 12 . EQUITABLE SERVITUDES . . . . . . . . . . . . . . . . . . 19 13. NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. . . 20 14. NOTICES AND OTHER COMMUNICATIONS. . . . . . . . . . . . 20 15 . ESTOPPEL CERTIFICATES. . . . . . . . . . . . . . . . . . 21 16 . APPLICABLE. LAW. . . . . . . . . . . . . . . . . . . . . 21 17 . VENUE. . . . . . . . . . . . . . . . . . . . . . . . . . 21 18 . ATTORNEYS' FEES. . . . . . . . . . . . . . . . . . . . . 22 19 . PARAGRAPH HEADINGS. . . . . . . . . . . . . . . . . . . 22 iU. CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . 22 21 . SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . 22 22 . CALENDAR PERIODS. . . . . . . . . . . . . . . . . . . . 22 23 . SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . 22 24. FURTHER ASSURANCES . . . . . . . . . . . . . . . . . 23 25 . COVENANT OF GOOD FAITH. . . . . . . . . . . . . . . . . 23 i 5 a ' 26 . COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . 23 27 . INCORPORATION OF RECITALS. . . . . . . . . . . . . . . . 23 28 . EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . 24 29 . AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . 24 30. RECORDATION. . . . . . . . . . . . . . . . . . . . . . . 24 31 . AGREEMENT BY OWNERS RE NEGATIVE DECLARATION, NORTH SPHERE OF PREZONING, ANNEXATION OF OWNERS' PROPERTY INTO THE CITY OF PALM DESERT . . . . . . . . 24 ii v DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ( "Agreement" ) is entered into on ' �1 , 199 , between RANCHO MIRAGE INDUSTRIAL PARR, RUYEN INTERNATIONAL CORP. , HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST, MC-PROPERTIES, A CALIFORNIA PARTNERSHIP; MACLEOD-COUCH LAND CO. , A CALIFORNIA PARTNERSHIP, BERNARD AND JEANNETT DEBONNE ( "Owners" ) , and the CITY OF PALM DESERT, a municipal corporation organized and existing under the laws of the State of California (the "City" ) . Owner and the City are sometimes collectively referred to herein as 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 65864-65869 .5 ( "Development Agreement Law" ) authorize the City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging; private participation and comprehensive planning and reducing the economic costs of such development. C. Pursuant to Government Code Section 65865, the Ciiy has adopted rules and regulations establishing procedures and requirements for consideration of d D. Owners are the owners of the real property described on Exhibits "1", 02", "3 " and "4 " , a! ! ached hereto and incorporated herein by this reference (the "Property" ) . The Property is currently located within the unincorporated area of Riverside County, within the City sphere of influence. The City has initiated proceedings for the annexation of the Property into the corporate boundaries of the City in accordance with the Cortese- Knox Act (Government Code Section 56000, et seq. ) , has certified and approved a negative declaration pursuant to the California Environmental Quality Act for prezoning, and has approved certain pre-annexation zoning for the property (C/Z 92-1) . Such annexation proceedings will be completed following approval of this Agreement, and this Agreement shall not be effective until such time as the annexation proceedings are completed. E. Owners ' properties are currently zoned as follows under the County of Riverside Land Use Ordinance and General Plans Name Legal Description of Property 99A Rancho Mirage See Exhibit 1 Attached C-P-S and IP Industrial Park Ruyen International See Exhibit 1 Attached C-P-S and IP Corp. Henry Malby, Trustee of the B.H. Fortner Testamentary Trust See Exhibit 2 Attached IP MC Properties/ MacLeod-Couch Land Co. See Exhibit 3 Attached Bernard and Jeannett DeBonne See Exhibit 4 Attached IP Prior to approving such zoning, the County performed all required environmental analysis in accordance with CEQA. r"irage.da4/ts/12-28-92 2 F. On July 28, 1992, the County of Riverside approved Tentative Commercial Parcel Map 24255, subject to conditions, with respect to certain property owned by Rancho Mirage Industrial Park and Ruyen International Corp. legally described as : Assessor's Parcel Nos . 653-250-005, 653-250- 006, 653-250-010, 653-250-014, 653-250-015, 653-250-016, 653-250-017 , 653-250-018, and 653-250-019 ( hereafter referred to as the RMIP/Ruyen Property) . Prior to approving P.M. 24255, the County performed all required environmental analysis in accordance with CEQA. G. The County of Riverside has previously approved Parcel Map 27419, subject to conditions, with respect to certain property owned by Henry Melby, as Trustee of the H.H. Fortner Testamentary Trust, legally described as : Assessor's Parcel No. 653-250-011 Prior to approving Parcel Map 27419, the County performed all required environmental analysis in accordance with CEQA. H. Owners intend to use their property for industrial, commercial or for less intensive commercial and/or residential uses, and seek certainty in the approval of the industrial, commercial, or residential uses of their property and with respect to the development of their property. I. In partial consideration of, and in order to implement that certain Settlement Agreement and Mutual Release between the City and Rancho Mirage Industrial Park dated DeC em ber 17 , 19921 the City and Owners have entered into this Agreement relating to The Property, and proceedings have been taken in accordance with the development agreement law and the City's rules and regulations . mirage.dWts/12-28.92 3 J. The City Council has found that this Agreement is consistent with the City's general plan, as amended (the "General Plan") , and any applicable Specific Plan. R. On DUembu 11 , 1992, the City Council of the City adopted ordinance No. 9_01 approving this Agreement with Owners . L. The "Development Criteria" as defined and specified below implement the goals and policies of the City's General Plan and provide balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the City, and impose appropriate standards and requirements with respect to land development and usage of The Property. M. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time ratheir 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. This Agreement has undergone extensive review by the City's staff, the Planning Commission of the City, and the City Council and has been found to be fair, just and reasonable and in the best interest of the citizens of the City and the public health, safety and welfare. IN CONSIDERATION OF THE RECITALS AND THE MUTUAL COVENANTS AND CONDITIONS OF THIS AGREEMENT, the parties agree as follows: ruirage.da4/t '12-29-92 4 AGREEMENT 1 . DEFINITIONS. 1. 1 "Agreement" is this Development Agreement. 1 .2 "Agreement Date" is the date this Agreement is executed by the City. 1 . 3 "CEQA" is the California Environmental Quality Act, Public Resources Code Section 21000, et sees . 1 . 4 "City" is the City of Palm Desert, California. 1.5 "County" is the County of Riverside, California. 1 . 6 "Development Criteria" are: (a) As to Assessor's Parcel Nos. : 653-250-005, 653-250- 006, 653-250-010, 653-250-OL4, 653-250-015, 653-250-016, 653-250- 017, 653-250-018, and 653-250-019 (RMIP/Ruyen Property) : The County of Riverside approved zoning (C-P-S and I-P) approved by CZ 5017 and permitted by EIR 166 as well as the conditions of approval for Tentative Commercial Parcel Map 24255, amended no. 2, with respect to Assessor's Parcel Nos. 653-250-005, 653-250-006, 653-250-010, 653-250-014, 653-250-015, 653-250-016, 653-250-017, 653-250-018, and 653-250-019 approved by the County of Riverside on July 28, 1992; (b) As to Assessor's Parcel No. : 653-250-011-5 (Property of the B.H. Fortner Testamentary Trust: The County of Riverside Conditions of Approval with respect to Tentative Parcel Map No. 27419 (Fortner Trust) approved by the County on July 21, 1992; mirage da4/tc/12-28 82 5 (c) The terms and conditions of any additional pre- annexation agreements entered into by the City and the owners of the Properties specified on Exhibits "1" , "2" , "3" and "4 " . (d) Subject to 1 .6 (a) , (b) and (c) above, all of those ordinances, resolutions, codes, rules, regulations and official policies of the City governing the development and use of the Property including, without limitation, the permitted uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings, the provisions for reservation of dedication of land for public purposes, and the design, improvement and construction standards and . pecifications otherwise applicable to the development of the Property, as they may now exist or as they may be changed from time to time by the City. 1 . 7 "Effective Date" is that date which is the later to occur of the following: (a) the expiration date for the filing of a referendum petition challenging the ordinance approving this Agreement if no such petition is filed by such date, (b) the date that the results of a referendum elec:Lion are declared approving this Agreement, if a referendum petition is filed within the applicable period, or (c) the date the Property is annexed into the City. 1.8 "Owners" are Rancho Mirage Industrial Park, Ruyen International Corp. , Henry Melby, Trustee of the B.H. Fortner Testamentary Toast, MC-Properties/MacLeod-Couch Land Co. and Bernard and Jeannett DeBonne and their successors in interest to all or any part of the Property. rairag, 4a4/ts112-28 92 6 1. 9 "Property" is all of the real property and any improvements thereon described in Exhibits "l" , "211 , "3" and "4 " , attached hereto and incorporated herein by this reference. 2 . TERM. 2 . 1 Unless earlier terminated as provided in this Agreement, this Agreement will commence on the date the Property is annexed into the City and will conti,,ue for a period of ten ( 10) years thereafter. 2 .2 In accordance with Government Code 565865(b) , the Property shall be annexe,1 into the City within one ( 1) year after the date the Agreement is signed unless such time period is extended by further agreement of the parties . However, City will exercise its best efforts to complete annexation of the Property, in accordanc-e with the terms and conditions of this Agreement and any additional pre-annexation agreements entered into between City and Owners, within six months from the effective date of this Agreement. 3 . RESTRICTIONS ON DEVELOPMENT AND USE. The development and use of the Property, including the density or intensity of use, the maximum height and size of proposed buildings, building setback requirements, parking requirements and provisions for reservation or dedication of land for public purposes, will be governed by the Development Criteria as defined in Paragraph 1 .6 (a) (b) (c) and (d) above. The City acknowledges and agrees that the: Development Criteria specifically permit the development and use of the Rancho Mirage Industrial Park - Ruyan International Corp. Property as allowed under the CountY's C-P-S nirape.da4ltsl12-29-92 and I-P zones (County of Riverside EIR No. 166 and CZ 5017) . The City further acknowledges and agrees that the Development Criteria specifically permit the division of Assessor's Parcel No. 653-250- 006, owned by Rancho Mirage Industrial Park and Ruyen International Corp. , (consisting of one hundred sixty nine point and four tenths [ 169 . 4] acres) into one hundred ( 100) commercial lots, subject to the conditions of County's Commercial Parcel Map No. 24255, amendment no. 2 . The City finally acknowledges and agrees that the Development Criteria specifically permit the division of that Property owned by Henry Melby as Trustee of the B.H. Fortner Testamentary Trust legally described on Exhibit 2 as permitted by Riverside County Parcel Map No. 27419, subject to those conditions imposed by the County. Except with regard to those aspects of the development of the Property which are address.- I in This Agreement, the parties acknowledge and agree that other aspects of the development of the Property, such as signage, architectural review and art in public places, may require the exercise of discretion by the City and that those aspects of the development of the Property will be subject to the City's reasonable review and approval as set forth in the City's ordinances, resolutions, rules and regulations, as they exist at the time of approval. However, zoning and land use designations are fixed by this Agreement, as are tract maps and use permits specifically named and mentioned in this Agreement and such aspects of development are hereby fixed and are not subject to ordinances, resolutions, rules, regulations and policies in effect at the time of development. mirage.dWts/12 28-92 8 4 . DEVELOPMENT AND USE . 4. 1 Rancho Mirage Industrial Park, Ruyen International Corp. , Henry Melby, Trustee of the B.H. Fortner Testamentary Trust, MC- Properties/MacLeod-Couch Land Co. and Bernard and Jeannett DeBonne will have the vested right to develop their Property to the extent covered by and in accordance with the Development Criteria and this Agreement . 4 .2 Traffic lights are proposed to be installed by certain Owners at the intersection of Monterey Avenue and the roadway which the Owners MC-Properties/MacLeod-Couch Land Co. propose to use as the principal access into their Property. Such access roadway is currently designed to proceed in an East/West direction, to approximately the Easterly boundary line of the MC- Properties/MacLeod-Couch property and to thereafter proceed Northeasterly to intersect Dinah Shore Drive at right angles . The area where such Northeasterly turn in the roadway is proposed is owned by Monterey Palms, a California Limited Partnership ( "Monterey Palms" ) . To the extent that such principal access roadway crosses or must be constructed on property owned by Monterey Palms, City shall cooperate with MC-Properties/MacLeod- Couch Land Co. to acquire the necessary right-of-way through the exercise of City's powers of eminent domain if MC-Properties and/or MacLeod-Couch are, after reasonable efforts, unable to purchase the right-of-way necessary for the conLtruction and maintenance of the roadway: City shall be reimbursed for the costs of any such eminent domain proceedings by MC-Properties/MacLeod-Couch. The City agrees to cooperate in good faith to obtain the placement of nirage.dWtsll. 28 02 9 traffic lights and the installation of a left turn lane or lanes at such intersection with Monterey. If the City requests the installation of the traffic signal prior to the time the MC- Properties/MacLeod-Crouch property, or some portion thereof, is developed, the City shall be responsible for the cost to install the traffic lights and left turn lane or lanes. Otherwise, MC- Properties/MacLeod-Couch shall be responsible for such costs and agree to ;participate in an assessment district for such improvements if the City elects to form one. 4 . 3 Dinah Shore Drive is proposed to be extended to the Northerly projection of Portola Drive, as required by the provisions of Parcel Map No. 24255 . This means that a portion of such extended Dinah Shure Drive must c- ;•oss over and/or be constructed on property owned by Monterey Palms. Additionally, certain cul-de-sacs must be extended into or constructed upon property owned by Monterey Palms in connection with the development of Parcel Map Nos . 24255 and 27419 . The City agrees that the MC- Properties/MacLeod-Couch principal access roadway may be designed so that it intersects with Dinah Shore Drive at the conjunction of said road with such extended Dinah Shore Drive. The City shall not be responsible for the cost to extend Dinah Shore Drive. To the extent that the extension of Dinah Shore Drive is situated or must be constructed upon property :weed by Monterey Palms, and/or to the extent that any cul-do-sac must be , onstructed or is situated upon property owned by Monterey Palms as required by Parcel Map 24255, if Rancho Mirage Industrial Park and/or Ruyen are reasonably unable to purchase such right-of-way from Monterey Palms, City shall reirage.daOts/12 18-92 10 cooperate with Rancho Mirage Industrial Park and/or Ruyen by acquiring such right-of-way under the power of eminent domain. The costs of any such eminent domain action and any award made to Monterey Palms in such action shall be paid by Rancho Mirage Industri . l Park and/or Ruyen. 4 . 3 . 1 To the extent that the conditions of Parcel Map 27419 require that any streets or cul-de-sacs be constructed and/or maintained by Henry Melby, Trustee of the B. H. Fortner Testamentary Trust, upon property owned by Monterey Palms, if the said Henry Melby is reasonably unable to purchase such right-of-way from Monterey Palms, City shall cooperate with Henry Melby by acquiring such right-of-way under the power of eminent domain. The costs of any such eminent domain action and any award made to Monterey Palms in such action shall be paid by Henry Melby. 4 .4 Portola Avenue shall be constructed and extended at the expense of the City or other third parties other than Owners, from its present terminus to the Easterly terminus of Dinah Shore Drive as reflected by the Conditions of Approval to the aforesaid Parcel Map No. 24255 . Said terminus is located at the Easterly boundary of the Monterey Palms property Northerly of its South boundary. This construction and extension shall occur on or before the development of the property adjacent to the extended portion of Portola Avenue but in all events it shall be completed no later than the date on which Dinah Shore Drive is constructed and completed by Rancho Mirage Industc-itil Park and Ruyen as required by the conditions of approval for Parcel Map 24255 . It is agreed that the City may use any means in its discretion to fund the cost of mirage i,4/[s/12 28 92 11 the extension of Portola Avenue as called for in this paragraph so long as Owners are not required to fund this improvement either directly or indirectly through fees, assessments or any other means. For purposes of this Paragraph 4 .4, "Construction of and extension of ructola Avenue" may be accomplished by the City by the construction of the east one-half street section of extended Porto]a Avenue, which proposed one-half street extension is located on property currently owi !d by the Palm Desert Redevelopment Agency. This construction and xtension is found and is deemed by the City as "an acceptable service level" with respect to the extended Portola Avenue as called for under the terms of that certain settlement agreement betwoen }rancho Mirage Industrial Park and the City of Rancho Mirage with reLipect to a settlement of that action entitled Rancho Mirage Industrial Park. et al. v. City of Rancho Mirage, Case No. Indio 65168, filed in the Superior Court, County of Riverside, or as may be required under the Conditions of Approval relative to Parcel Map Nos. 24295 and/or 27419 . The City shall indemnify and save R in, ho Mirage Industrial Park and/or Ruyen free and harmless frnm any suit brought wh.i n challenges this finding. The City shall require that the west one-half of the Portola Avenue extension be completed upon development of the property west of and adjacent to such extension, pursuant to the terms of this paragraph. As none of Owners, properties are adjacent to the proposed extension of Portola Avenue, Owners in no event shall be required to pay for or otherwise share, either mirage.d, 1/ts/12-28-92 12 directly or indirectly, in the cost of the construction and extension of Portola Avenue. 4.5 To the extent not alreadyaccomplished, i P City shall Y prezone the Rancho Mirage Industrial Park - Ruyen International Corp. Property so that zoning proposed by the City shall conform essentially with the zoning which has been established by the County pursuant to IcLverside County Change of Zone 5017. 4 . 6 Thy General Plan of the City, as adopted by the City at the time of annexation, shall be consistent with all zoning permitted by the County's Change of Zone 5017 (C/Z 5017) , this Development Agreement and any other pre-annexation agreement entered into between the City, MC-Properties/MacLeod-Couch Land Co. and Bernard and Jeannett DeBonne. 4 . 7 Prior to annexation, Owners properties shall be pre- zoned in accordance with this Agreement and shall be thus zoned upon annexation to City. City and Owners Henry Melby, Trustee of the B.H. Fortner Testamentary Trust, MC-Properties/MacLeod-Couch Land Co. and Bernard and Jeannett DeBonne all agree that City and such Owners may determine to enter into additional future pre-annexation agreements. City agrees to negotiate with such Owners, in good faith, with respect to such future pre-annexation agreements . Those agreements, if entered into, shall contain a term of ten ( 10) years from the date the Property is annexed into the City, unless earlier terminated as provided in those agreements . 4 . 8 In conn,:ction with County's Parcel Map No. 24255 and County's Parcel Map No. 27419 , upon annexation to the City, the mirage.da4/ts/12-28 92 13 City shall approve new parcel maps within ninety (90) days of completion of annexation proceedings, upon the same terms and conditions as those maps approved by the County. Fees, costs and all other charges of any ki,id or nature whatsoever relative to such new parcel maps shall be waived by the City. It is understood by 1 the parties that the purpose of this paragraph is to give the developccs :f Parcel Map Nos. 24255 and 27419 a full two-year initial period of time to develop their properties following completion of the annexation proceedings . la addition, City agrees that after expiration of the initial two (2) year period of time after annexation Owners may apply to extend Parcel Maps Nos. 24255 and 27419 for an additional eight ( 8) years in accordance with Government Code Section 66452 . 6 (a) . Fees, costs and all other charges of any kind or nature whatsoever relative to such extensions or applications therefore shall be waived by City. 4 . 9 Because of current property boundaries, Parcel Maps Nos . 24255 and 27419 create four odd-shaped or odd-sized lots, two located within the boundaries of each parcel map. Owners Rancho Mirage Industrial Park, Ruyen, and Henry Melby, Trustee of the B. H. Fortner Testamentary Trust, desire to trade land so that each will have two standard size and shape lots within the boundaries of their respective parcel maps . Therefore, City agrees to process and approve lot line adjustments for those four lots within six months after completion of annexation of the properties to the City and agrees to waive all fees, charges and costs which otherwise would be charged to Owners for these lot line adjustments. Owners Rancho Mirage Industrial Park, Ruyen and Henry Melby, Trustee of rair2pe.da4/ts/12-29 92 14 the B. H. Fortner Testamentary Trust will file applications for these lot line adjustments within 45 days after completion of annexation. 5. COMPLIANCE. The City will periodically review this Agreement as providers in Section 65865 . 1 of the Government Code and the City Municipal Code, to ascertain Owners ' good faith c,mpliance with the provisions of this Agreement. Owners will be given notice of such periodic reviews, which shall occur no more frequently than once every two years, and shall be given the opportunity to participate in these reviews and to request a hearing before the City Council on any recommendations or conclusions made by City staff at the conclusion of such reviews . 6 . DEFAULT BY OWNERS. If the City does not rind g•-iod faith comi-Liaace with the provisions of this Agreement by Owners, then the City will have all of the remedies which are provided in the City Municipal Code and will comply with all of the procedures which are provided in Section 65865. 1 of the Government Corse and the City Municipal Code. In the event of default by an Owner or Owners, City may enforce this Agreement only as against the defaulting Owner or Owners and has no rights or remedies as against those owners not in default. 7 . TIMING OF DEVELOPMENT. The parties acknowledge that Owners cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owners, such as market orientation and r•1rs9e.da4/ts/12-28-92 15 demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. -City of Camarillo ( 1984) 37 Cal. 3d 465 that the fai are of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties ' agreement, it is the parties ' intent to cure that deficiency by acknowledging and providing that Owners shall have the right to develop the Property in such order and at such rate and at such times as Owners deem appropriate within the exercise of their subjective business judgmt..:t. 8. DEFAULT BY 'eflE CITY. If the City fails to perform any of its obligations as provided in this Agreement and fails to cure its nonperformance within 30 days after n)tice of nonperformance is given by Owners, then the City will be in default and Owners will have all of the remedies which are available to them, individually or collectively, at law or in equity; provided, however, that if the City's failure to perforri, cannot reasonably be cured within such 30 day period, then the City will not be in default of this Agreement if it commences to cure its nonperformance within such 30 day period and thereafter diligently and in good faith prosecutes such cure to completion. Without limiting the effect of the foregoing, the parties acknowledge and agree that the sub::act matter of this Agreement is unique and that money damages may be inadequate to compensate Owners and therefore, at the election of Owners, this Agreement may be specifically enforced. rnirage.da4/ts/12-28-92 16 This agreement is severable and is enforceable by the owners individually only as to that Owner's property which is subject to this agreement. 9 . INDEMNIFICATION. (a) Owners will defend, indemnify and hold the City and its elected officials, officers acid employees free and harmless from any loss, cost or liability ( including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any failure on the part of Owners to take ajiy action which they are required to take as provided in this Agreement; ( ii) any action taken by Owners which they are prohibited from taking as provided in this Agreement and (iii) any claim which results from any willful or negligent act or omission of owners. (b) The City will defend, indemnify and hold Owners and their trustees, beneficiaries, shareholders, directors, officers and employees free and harittless from any and all loss, cost or liability ( including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims ) which results from (i) any failure on the part of the City to take any action which it is required to take as provided in this Agreement, ( ii) any action taken by the City which it is prohibited from taking as provided in this Agreement and ( iii ) any claim which results from any willful or negligent act or omission of the City. rvirage.da41ts/12-28-92 17 (c) Included in the scope of the foregoing indemnifications will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject of the applicable indemnification and all of the associated legal fees and court costs . Without limiting the effect of the foregoing, the Lnd, anifying party will have the right to defend against any claim with respect to which it is indemnifying the other party, using legal counsel of its choice. 10. SUPERSEDING STATE OR FEDERAL. LAW. If any state or federal law or regulation which is enacted or adopted afte,_ the Effective Date of this Agreement or any other action of any governmental entity which is not under the City's control, prevents or precludes compliance with any provision of this Agreement, Shen such provision of this Agreement will be modified or suspended only to the extent and for the time it is necessary to achieve compliance with such law, regulation or other governmental action and the remaining provisions of this Agreement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. On the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance which removes the effect of the same on this Agreement, the provisions of this Agreement will be automatically restored to their fell original effect and any amendment to this rairago.da4/ts/12-28-92 18 Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 11 . SUCCESSORS AND ASSIGNS. All of the provisions of this Agreement will inure to the benefit of and will bind the parties and their respective successors and assigns and all other persons or entities which -acquire all or any part of the Property. Without limiting the effect of the foregoing, Owners will have the right to assign any of their rights or delegate any of their obligations as provided in this Agreement to or for the benefit of any person or entity which owns or leases any part of the Property. 12 . EQUITABLE SERVITUDES OF ASSIGNMENT. All of the provisions of this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land as provided in the applicable law. The rights and obligations of Owners under this Agreement may be transferred or assigned, provided such transfer or assignment is made in connection with the transfer, assignment, sale or lease of all or a portion of the Property. During the terms of this Agreement, any such assignee or transferee shall observe and perform all of the duties and obligations of the particular Owner making such assignment contained in this Agreement as such duties and obligations pertain to the portion of the Property so transferred or assigned. Owners shall give to the City a notice within thirty (30) days after any such sale, assignment or transfer. m irage.dWts/12-28-92 19 13 . NEGATION OF AGENCY, JOINT VENTURE OR PARTNrRSHIP. The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of joint ventur• , or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners . 14 . NOTICES AND OTHER COMMUNICATIONS. All notices or other communications which are required or permitted to be given to the parties will be in writing and will be given either by personal service or by mailing the same by certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service, addressed-. as follows: CITY COPY CITY OF PALM DESERT Best, Best & Krieger 73-510 Fred Waring 39700 Bob Hope Drive, #312 Palm Desert, CA 92260 Rancho Mirage, CA 92270 Attn: Carlos Ortega Attn: Douglas S. Phillips Owners COPY Rancho Mirage Industrial Park Cynthia Ludvigsen Ruyen International Corp. P. o. Box 409 323 W. Court St. , #403 San Bernardino, CA 92402 San Bernardino, CA 92401 Attn: H. M. Peccorini Henry Melby, Trustee of the Steve Fortner B. H. Fortner Testamentary Trust 1033 Cornell Dr. 121 W. Lexington Burbank, CA 91504 Glendale, CA 91209-3310 MC Properties/ James M. Schlecht MacLeod-Couch Land Co. Schlecht Shevlin 777 ;o. Pacific Coast Highway Shoenberger, a Law Corp. Suite 204 Box 1906 Solano Beach, . CA 92075 Palm Springs, CA 92263 -mirage.da4/ts!id-28.92 20 Mr. & Mrs. Bernard DeBonne Dick Smith P. 0. Box 1935 Smith, Peroni 6 Fox Palm :iesert, CA 92261 960 Tahquitz Canyon Way Suite 103 Palm Springs, CA 92262 If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it will be deemed given as of the date of ri:. eipt, rejection or return undelivered. Addressees to which notices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 13. 15 . ESTOPPEL CERTIFICATES. At the request of either party, the other party will, within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, except as is expressly provided in such estoppel certificate and (c) no default in the performance of the requesting party's obligations as provided in this Agreement exists, except as is expressly provided in such estoppel certificate. 16 . APPLICABLE LAW. This Agreement will be construed and enforced as provided in California law. 17 . VENUE. Any legal action with respect to this Agreement will be brought in either Riverside Superior Court or in the United States District Court for the Cantr3l District of California. ratrage.da0te/12.28-92 21 18. ATTORNEYS' FEES. If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in such action will be entitled to recover frr,m the losing party all attorneys ' fees, court costs and necessary disbursements in connection with such action. 19 . PARAGRAPH HEADINGS. The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 20. CONSTRUCTION. In all cases, the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. 21 . SURVIVAL. Each and every covenant in this Agreement will survive the execution and delivery of this Agreement for the benefit of the parties and their successors and assigns . 22 . CALENDAR PERIODS. All references in this Agrp��ment to "years" , "quarters", "months" and "days" will be deemed to be to references to calendar years, quarters, months and days. 23. SEVERABiLITY. Every provision of this Agreement is and will be construed to be a separate and independent covenant. If any provision of this Agreement or the application of the same is, to any extent, found reirage.&4/te/12 2e-92 22 to be invalid or unenforceable, then the remainder of this Agreement or the application of such provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Agreement will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenf,/rceability. 24 . FURTHER ASSURANCES. Whenever and as often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or proper in order to achieve the intent of this Agreement. 25. COVENANT OF GOOD FAITH. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 26 . COUNTERPARTS. This Agreement may be executed in counterparts, each of which will be deemed to be an origi .tl for all purposes and all such counterparts will constitute one and the same agreement. 27 . INCORPORATION OF RECITALS. The "Recitals " in this Agreement are material and are incorporated by reference as though fully set forth hereof. Each recital of fact concerning the parties will be conclusive between reirage.da4/te/12-28 92 2 3 them and such facts will be incontestable in the event of any dispute between them with respect to such facts . Neither party will introduce any evidence in a court or administrative proceeding which would in any way serve to dispute any such recited fact. 28 . EXHIBITS. Any Exhibits to this Agreement are incorporated by reference as though fully set forth herein. 29. AMENDMENT. No amendment or waiver of any term of this Agreement will be binding on the City unless and until it has been approved and has become effective as provided in Section 65868 of the Government Code and pursuant to the City Municipal Code and Regulation, or on Owners, unless and until it has been executed by Owners. 30. RECORDATION. No later than 10 days after the Effective Date of this Agreement, the City will, at its cost, record this Agreement in the Official Records of the Riverside County Recorder, as provided in Section 65868.5 of the Government Code and as provided by the City Municipal Code. 31 . AGREEMENT BY OWNERS RE NEGATIVE DECLARATION. NORTH SPHERE OF PREZONING. ANNEXATION OF OWNERS' PROPERTY INTO THE CITY OF PALM DESERT. Neither Petitioner nor Owners nor their agents, consultants, servants, attorneys or representatives shall in any way object to or take any actions whatsoever in opposition to or challenge the Negative Declaration for City's Case No. C/Z 92-1, the North Sphere Pre-zoning or the annexation of Petitioner's property or Owners ' reirage.dWtel12-28.92 24 Property into the City of Palm Desert. Further, Petitioner and/or Owners at the request of City, shall take all reasonable steps to support the City' s proposed annexation before any public body, including, but not limited to, the Local Agency Formation Commission. CITY CITY PALM DE By: 1 �Y1/� CMS By: APTSB �LA GI IGAN, t ty Clerk City of alm Des APPRO AS TO FORM A�D^SUBSTANCE: By: /Vv `"BS Douglas-V. Phillips Deputy City Attorney OWNERS: ; RUYEN INT RN TI CORP , a RANCHO MIRAG DUST L PARK, a Californi i p rtnership, Delawar o , By SUSCO, i rni Corpor t n al Partner By` PF16corini, Assistan c etary By: (� H. ec o ini, President By BRION CORPORATION, a California Co io�, General Partner By: C Shin Hsu, President ( Signature Page Continues) 25 HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST By.*�4 MC-Properties, a California Partnership By L2 MacLeod-Couch Land Co. , a California Partnershitp By. ARODEBONNIE ANNETT DEBONNE APPROVED AS TO FORM AND SUBSTANCE: c Cyn is Ludvigsen Attbtney for Owners, Rancho Mirage Industrial Park and Ruyen International, (Inc. JAMES M. SCHL CHT Attorney for Owners, MC-Properties and Macleod-Couch Land Co. rai rage.da4/ts112.28-92 26 ALL-PURPOSE CERTIFICA" State of California ) County of Riverside ) On before me, Y\E I�77. �L(y-�,Yy C}G�Notary Public in and for said State, personally appeared e-«VI\ Cl 1 yJP 11 CrY1 personally(mown to me(or proved to me on the basis of satisfactory evidence)to be the person(4. -whose name(ois/aresubscribed to the within instrument and acknowledged to me that he/she/thc*executed the same is that b / (� halfofwhic the per on( )-actcapaed, exe ,and yrument their si afore on the instrument the person(a),or the entity upon behalf of which the persons}acted, executed the instrument. WITNESS my hand and official seal. sw MCHELLE E.SKA"TAO � NPd[IaNrGNPNAkL CiW fuRn�1 ItI (scal)) Signatur C, C( Y1 0 � VERSIo TV My Expirg 14m ALL-PURPOSE CERTIFICATE State of California ) County of Riverside ) On-jQqLY♦'' a\ -before me, �Y 1 (r;�'1P� I�� S�(�+Y1'1� appeared � F Cl _ �°�a Notary Public in and for said State, personally personally own tome or proved to me to the wit on the basis of sa[is actory evidence)to be th / epexecutedth e ershin instrument and acknowledged to me that he/she p ose names that by-his/her/their signature °n the instrumesameinitis/oa }is/ase subscnbed ( her/tieirauthorized the instrument. instrument the p ( capacity(ics ersons),or the entity upon behalf of ),and which the person(s)acted,executed WITNESS my hand and official seal. NICHE KRM�STAD Signature �� l(� ,^Q :"E a1Nt]►AL O f a#4Q OVElmoccouazviNy mmlffinn x i Nov. 11, 1995 STATE OF CALI RNIA ) COUNTY OF gg )ss. E0 9 before me, .(On - - i d personalty appeared l' — 9 personalty known to me(or proved to me on the basis of satisfactory evidence)to be the persons)whose name(s) is/are subscribed to the within W. instrument and acknowledged to me that hefshe,Mey-executed the same in his/herppeirauthorized capacity(ies), and that by his/herMteirsignature(s) on the instrument the person(s) or the entity upon behalf of which the t7 Person(s) acted, executed the Instrument. e WITNESS my hand and official seal. CAROL K. DE J A NNEY Co 8 Signature .et--��a(! .�Qht�t „ . ' NOTARY PUBLIC 9CALFORNIA s_ M SAN RERNgR01N0 COUNTY Ci 4 F.0 ��,p/�1�. p,f/ __ Y Comemission Expires March 1, 1996 I /y } STATE OF CALIF RNIA }ss. ,• COUNTY•OF U } ' 0 l before me,. 0 personally appeared e personally known to me (or proved 8 a to me on the basis of satisfactory evidence)to be the person(s) whose name(s) is/amsubscribed to the within instrument and acknowledged to me that he/eheftherexecuted the same in hisAwAheir authorized capacity ies), 21 and that by his/he0their signature(s) on the instrument the person(s) or the entity upon behalf of which the m cD � person(s)acted, executed the instrument. CAROL K. DENNEY WITNESS m hand and official seal. a T COMM. m 959961 'Aw -}; NOTARY PUBLIC - CALIFORNIA CZ Signatur SAN BERNARDINO COUNTY tA 0 / e ^ —71 pJ�,•2�� �Y Commission Expires March 11, 1996 LJ is CERTIFICATE OF ACKNOWLEDGMENT ..............................................................................................................11.''.......... State of Califomia On 67RR6# J, 1993 before me, 5f4PµneE MAA}N. NoTRA r' ' SS. (date) (name and title of officer) County of SFFn[ 171tGo �itPvu� rsonall appeared Y PP I I tVADAI T lrl�'�DI��EIJCIcM-•f pt(fIIEIQ, 1�1.�. PR�yE12r,�s , personally known to me to be the person(*whose nand is/ape subscribed to the within instrument and acknowledged to me that he/sheMW executed the same in his/hnabr r SAPHIRE MANN authorized capacity(ky,and that by his/h=Mticsignature(s)on the ins[uu- 0. Comm.1195Boad meet the person( or the entity upon behalf of which the person(9) aard 0 IOTARYPUBLIC•CALIFORNU SMI)IEGOCOUNTY � executed the instrument. � [1 WCa E+Pbn,Mu.6.f°96'' WITNESS my hand -and }�official seal. State Of California County Of Los Angeles ) On February 10, 1993,before me,RANDALL MELSY,personally appeared HENRY MELSY,personally known to me,or(proved to me on the basis of satisfactory evidence)to be the person whose name is subscribed to the within Instrument, and acknowledged to me that he executed the same In his authorized whiccaph t ty(Is$),and that by his signatu►e on the Instrument the behalf of which th person(A Or the entity upon n(s)acted, executed the InstrumertL WITNES and and official seal. Notarys Signature S _.. O p��I A p DAU ELey N04"MRt PoI fA MyC LOSPAfNG IIE9 LehTV£ CERTIFICATE OF ACKNOI'-',EDGMENT De.✓ F � .cY— ........ .................. m .•• "••• •••••••••... On Irll {eµ It IQy3 before me, SS (date) riAPK(RF nIANy nl07AR County of DIG60 •• State of California d (name and title of officer): lll{{{ 1 m ' Quvyt,IG yy� rsonally appeared i 4�ckOrl7TflAp c /�r� a�(�v'f�2ipt,+�AtsalrR T I!A � � l.Af.Ie�o. Personally known to me • to be the person(}whose name actoryevl e ) (*) is/3w subscribed to the within instrument and acknowledged to me that he/sf }c SAPHIRE MANN authorized ca acit executed the same in n the instr r U ; P y(�,and that by his hl signature( on the ins[ru- Cotnm.Y85G04G• e� ARYPUSLIC-cAuFoRN ment the�1 person(a), or the entity upon behalf of which the person(g acted. ` SANGIEGOCOUNTY (I • Mrc« E-1: 1, executed the instrument. WITNESS my hand and official seal. Notary's Signature ...................: State of Californ+a RIGHT THUMBPRINT(OPnONALI W Riverside i County of e On 3/19/93 before me, Martha A. Hesse, Notary � (DATE) (NAME.TITLE OF OFFICER-I.E., ;3 DOE.NOTARYPUBLICJPU ,1 C personally appeared Bernard Debonne CAPAWY CLAIMED BY SIGNERS) (NAME(S)OF SIGNERIS)) CIC INDNIDUAL(S) ❑ CORPORATE OFFICER(S) ❑ PARTNER(S) (TITLE(S)l C3tpersonally known to me -OR- ❑ proved to me on the basis of satisfactory evidence ❑ ATTORNEY IN FACT to be the personX whose nameW is/4 sub- ❑ TRUSTEE(S) i scribed to the within instrument and acknowledged ❑ GUARDIAN/CONSERVATOR to me that he/ executed the same in ❑ OTHER: C !. pi er# authorized capacity(ies):, and that by 1 esignature(Ax on the instrument the on*, or the entity upon behalf of which the on acted,executed the instrument. SIGNEfl IS flEPflESENTING: (NAME OF PERSONS)OR ENTITY(IES)) -..,sess my hand and official seal. \,f tC (SEAU (SIGNATURE OF NOTARY) / ATTENTION NOTARY:The information requested below is OPTIONAL It could,however,prevent frauduient attachment at this certificate to arty unauthorized document. THIS CERTIFICATE Title or Type of Document Dev. Agreement MUST BE ATTACHED TO THE DOCUMENT Number of Pages Date of Document DESCRIBED AT RIGHT: Signer(s) Other Than Named Above WOLCOTTS FORM 63240—ALL PURPOSE ACKNOWLEDGMENT WITH SIGNER CAPACIrY/REPRESENTATION/RNGERPRINT—Rev,12-92 01992 WOLCOTIS NORMS.INC. s State of r Al i fnrni a RIGHT THUMBPRINT(OPTIONAL) County D' exside i 3/31/93 before me,Martha A. Hesse, Notary Public On e (DATE) C(NAME.TITLE OF OFFICER-I.E_'JANE DOE.NOTARY PUBUC-) ~ personally appeared Jeannette Debonne (NAME(S)OF SIGNER(S)) PACITY CLAIMED By SIGNER(S) INDIVIDUAL(S) _ ❑ CORPORATE OFFICER(S) 1 personal) known to me OR- p ❑ PARTNER(S) (TITLE($)) y ❑ roved to me on the basis of satisfactory evidence ❑ ATTORNEY IN FACT to be the person* whose name sub- El TRUSTEE(S) scribed to the within instrument and acknowledged d ❑ GUARDIAN/CONSERVATOR r to me that Kshe/fh4 executed the same in G f�{her/tt+dc authorized aci,rV,• ca,1�.,��aL P lryeSl,ft and that by El OTHER: Wher/tpw�r signature(s) on the instrument the =u^ c r)a persons', or the entity upon behalf of which the v personX acted, executed the instrument. (NAME OF P SIGNER IS PER REPRESENTING: °�f Ccmm.ti�Gc;.;,,r�123,199 Witness my hand and official seal. $ON(S)OR ENTITYpES)) (SIGNATURE OF NOTARY) ATTENTION NOTARY:The informa0on requested below is OPTIONAL.It could,however,Prevent frau THIS CERTIFICATE dulent attachment of this certiflcete to any unauthorized document.MUST BE ATTACHED Title or Type of Document Development Agreement City of P.D TO THE DOCUMENT Number of Pages pate Of Document DESCRIBED AT RIGHT: Signer(s) Other Than Named Above LCOTTS FORM 63240—ALL PURPOSE ACONOWLFGGMENT WITH SIGNER CAPALITY/REPRESENTATIOWFINGERPRINT—Rry 12.92 C1992 WOLCOTTS FORMS.INC. Legal Description PARCEL 1: m6East, San et quarter of the Northwest quarter of Section 29, Township 4 South, BeriKrdrno a,c,� and thereof. merid-lan, according to the Official Plat EXCEPrIM therefrvn the Northerly 100 feet of the Easterly 200 feet thereof. AISO EXCEPTING therefrom the Westerly 55 feet as conveyed to the County of Riverside, by deed remrdeud August 21, 1985 as Instrzent Records. No. 187127, of Official PARCEL 2: 7be Southerll 100 feet of the Westerly 200 feet of the Northwest quarter of the Northwest quarter of Section 29, TOwnchip 4 South, e 6 West, San Bernardino Base and Meridian, according to the Official Plat thereof. EXCEP17M therefrom a 1/3 interest in the well located thereon. ALSO EXCEPrj24G therefrom the Westerly 55 feet as conveyed to the County of Riverside by deed recorded August 21, 1985 as in:5 nest No. 187127. ALSO EXCEPTING therefrom that portion lying within that portion of the Northwest quarter of Section 29, TOnship 4 South, Range 6 East, San Bernardino Base and Meridian, more particularly described as follows: ODMM4CING at the Northwest corner of said Section 29, thence South 00. 01, 01" East, 55.00 feet along the West line of said Section 29; thence North 89' 58, 50; East, 90.00 feet to the true point of beginning; thence eontinuirKj North 89' 58, 50" East, 218.06 feet to the beginning of a Largest curve, concave Southerly, having a radius of 1945.00 feet, a line radial to said point bears South 00, 01, 10" East; thence Southeasterly along said curve through a central angle of 38' 45' 52" an arc distance of 1315.92 feet; thence South 05' 15' 22" East, 33.09 feet; thence South 40' 44 34 West, 10.65 feet to the beginning of a tangent curve, concave Easterly, having a radius of 1044.00 feet, a line radial to said Point bears South 49. 15' 26" East; thence Scuthwcstesly along said curve through a central angle of 40' 49' 55" an arc distance of 744.01 feet; thence South 00, 05' 21" East, 58.58 feet; thence South 44' 56' 24" West, 32.54 feet; thence South 89' 58' 10" West, 1155.81 feet; thence North 45. 01' 26" West, 32.53 feet; thence North 00' 01 ' 01" West, 1188. 20 feet; thence North 44' 58' 55" East 32.53 feet to the true point of beginning. Page 1 of 4 Ruyen EXH I B'� _ r PARCEL, 3: ,.hegN0 Ea,t,quartar of the oorthurst quarter of Section 29, ,Township 4 South e 6 Pie and Meridian, aavrci' � f• inq to official Plat 1XCEP1'ING the Southerly 100 feet of the Westerly 200 feet thereof; ALSO EXCEPTING the North half of the Nortlrrct quarter of the Northwest quarter of Section 29. ALSO EXCEPTING therefrom the Westerly 55 feet as conveyed to the County of Riverside by deed recordod Aurfust 21, 1985 as Instnrent No. 187126. quarterALSO EXCEPrING o oo�9� that l�rtion lying within that portion of the Northwest Meridian, more , Tcwrthip 4 Scuth, Rirrie 6 East, San Bernardino Base and particularly dc---criknd as follows: OIIMENCD4 at the Northwest corner of said Section 29, thence South 00' 01, Ol" East, 55.00 feet along the West line of said Section 29; thence North 89, 58' 50" East, 90.00 feet to the true point of bc.3inning; thence mntinuirig North 89' 58' having 218.06 feet to the beginning of a tangent curve concave Southerly, 10"� a radius of 1945.00 feet, a line radial to said point bears South oo' oil East; thence Southeasterly along said curve through 45' 52" an arm distance of 1315.92 foot; thencexa central angle of .09 10 feet; thence South 40' 44 ' 34" %;t South OS' 15' 22" East, gent curve, concave Easterly, havingt .Of 65 feet to the beginning d a tangent Point bears South 49' 15' 26" Ftst; thenceScu h-rzterly alongline radial to said a central angle of 40' 49' 55" an arc distance of 744 01 feet;thence curveid * 05' 21" East, 58.58 feet; thence South 44' S6' 24" nth 00' 89' 58' 10" West, 1155.81 feet; thence No to 32.54 feet; thence South North 00' 01, O1" North 45' O1 26 West, 32.53 feet; thence West, 1188.20 feet; thence North 44. 58' S5", East, J2.53 feet to the true point of boginning. PA$CEI, 4: 'Ihe North half of the Northwest gukarter of the Notthti�t'1bwnship 4 South, Range 6 East, quarter of Section 29, San Ckn,1rdino al Se and the Official Plat thereof. Meridian. According to EXCEPPING therefrom the Westerly 55 feet as conveyed to the County of Riverside by deal recorded August 21, 1985 as Instnnrent No. 187125. ALSO EXCEpyING therefron that portion lyir�g within that portion of the Northwest quarter of Section 29, Tturnhip 4 Sa;th, R.vre 6 Fzst, &�n Bernardino Meridian, more particularly dcrcri1•.,d as follcks: Pace and Y EXHIBIT, Page 2 of 4 WIM LACING at the Northwest corner of said Section 29, thence South 00. 01' 01" Fast, 55.00 feet along the West line of said Section 29; thence North 89' S8' SO" East, 90.00 feet to the true point of toginnung, thence coat' r 50 East, 218.06 feet to the Ong North 89' 58 having a radius of 1945.00 feet aUlineradial totan3ent curve concave Southerly, 10" East; thence Southeasterly along said eve point beats South 00' 38 ' 45' 52" an arc distance of 1315.92 feet; thence through 05• central angle of ]8' feet; thence South 40' 44 ' 34" Wrst, 10.65 feet to the Fart, 33.09 curve, concave Easterl hav' 9ing of a tangent Y. urg a radius of 1044.00 feet, a line radial to said point bears South 49' 15' 26" Fast; thence SouthwestP-rly along said curve through a central angle of 40' 49 ' 55" an arc distance of 744.01 feet; thence South 00' 05' 21" Fast, 58.58 feet; thc'oe South 44' 56' 24" West, 32.54 feet; thence South 89' 58, 10" West, 1155.81 feet; thence North 45' 01' 26" West, 32.53 feet; thence North 00, 01, 01" W�,t, 1188.20 feet; thence North East 32.53 feet to the true point of beginning. 44 58' 5511, PARCEL 5: That portion of the Northeast quarter of the Northwest quarter of Section 29, TWship 4 South, Range 6 Fast, San BC17,<11dino Bate and Meridian, accord' Official Plat fway,thereof, lying Southwe,terlY of the Southern Pacific Railroad 23ng to , 191any right of way, 200 feet in width as reserved in and deed recorded January 23, 1912, in Book 652, Page 138 of Cceds, Riverside County Records. ALSO ExC Of S therefran that portion quarter of Sect lying within that portion of the Northwest Section 29, Tbwn^,hip 4 South, Rarxge 6 East, San Bernardino Base and Meridian, more particularly descril �ji as follows: COh4-ENCING at the Northwest corner of said Section 29, thence South 00' 01' 01" East, 55.00 feet along the West line of said Section 29; thence North 89' S8' 50" East, 90.00 feet to the true point of ta3inning; thence continuing North 89' 58 ' 50" East, 218.06 feet to the beginning of a tangent curve, concave Southerly, having a radius of 1945.00 feet, a line radial to said point bears South 00. Ol ' 10" East; thence Southeasterly along said curve 45' 52" an arc distance of 1315.92 [cet; thence South 05' 15' 2211 „ 3Faslt o33.09 feet; thence South 40' 44 ' 34" West, 10.65 feet to the begunn.rng of a tangent curve, concave Easterly, having a radius of 1044.00 feet, a line radial to said Point 9 2G1di Southwesterly 74 0 along central angle of 400 4955ar arc stance of l feet thence South 00* ce South 89' 58' 10 twest, 58 feet;11155.81 feet thence North645' 01'�26" West, 322..53 feet; thence North 00' 01' 01" West, 1188.20 feet; thence North 44' 58' 55", East 32.53 feet to the true point of beginninq. PARCEL 6: The North one-half of the Southeast rPlartp-r of the Northwest quarter of Section 29, Township 4 South, Rurr;c 6 E)5t, San C217vu'dine Bice and Meridian, according to official Plat thercof. EXHIBIT Pagc 3 of 4 PARCEL. 7: The Northerly 100 feet of the Easterly 200 feet of the Southwest quarter of the Northwest quarter of Section 29, Ttx.nship 4 South, Range 6 East, San Bernardino Base and Meridian. PARCEL 8: That portion of the Nortlr-Kest q 3IUtCx of Section 29, TOWnship 4 South Range 6 Wit, San Bernardino Base and Mearidian, More p--trticularly described as follows: CCKI NCING at the Northwest corner of said Section 29, then South 00' 01, Ol"East, 55.00 feet along the Wc;t line of said Section 29; thence North 89' 50"58' East, 90.00 feet, to the true point of bagirnirg; theme continuing North 89, 58,50" East, 218.06 fcct to the tcginning of a tarrlont curve, concave Southerly, having a radius of 1945.00 foot, line radial to said point bears South 00. Ol' 10" ,East; then-Southeasterly along said curve through a central angle of 38' 45' 52" an arc distance of 1315.92 feet; thence South 05' 15' 22" East, 33.09 feet; thence South 40' 44 ' 34" West, 10.65 foot to the beginnirq of a tangent curve, concave Easterly, having a radius of 1044 .00 feet, a line radial to said point bears South 49' 15' 26" East; then SouthWC trrly along said curve through a central angle of 40. 49' 55" an arc distance of 744 .01 foot; then South 00' 05, 21" East, 58.58 feet; then South 44 ' 56' 24" West, 32.54 feet; then South 89' 58' 10" West, 1155.81 feet; then North 45' 01 ' 26" West, 32.53 feet; then North 004 01' 01" West, 1188.20 feet; then North 44 ' 58' 55" East 32.53 feet to the true point of beginning. Rage 4 of 4 A N O � _ . 0 -------- ------- 019 ............. ti L'A Know-------- 't In r1l 4 4m (Property owned by Henry Melby, Trustee of the B. H. Fortner Testamentary Trust) Real property located in the unincorporated area of the County of Riverside, State of California, described as: The East 1400 feet, as measured along the South line of that portion of the Northeast quarter of Section 29, Township 4 South, Range 6 East, SAN BERNARDINO BASE AND MERIDIAN, as shown by United States Government Survey, which lies Southwesterly of the Southwesterly line of the strip of land 200 feet wide reserved by the Southern Pacific Railroad Company in Deed recorded March 23, 1912 in Book 347, page 127 of Deeds, Riverside County Records . H. Melby LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE UNINCORPORATED AREA OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL I: THE NORTHERLY 455 FEET OF THE SOUTHWEST QUARTER OF SECTION 29, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY APPROVED FEBRUARY 29, 1856; EXCEPTING THEREFROM 50 PERCENT OF ALL OIL, GAS, AND OTHER HYDROCARBON SUBSTANCES AND ALL OTHER MINERALS UNDERLYING SAID LAND AS RESERVED IN DEED FROM CHESTER W. FROUDE AND GLADYS R. FROUDE, HUSBAND AND WIFE, TO BLANCHE STEPHEN, AN UNMARRIED WOMAN; ALSO EXCEPTING THEREFROM THE WESTERLY 55 FEET THEREOF (MEASURED AT RIGHT ANGLES) CONVEYED TO THE COUNTY OF RIVERSIDE BY DOCUMENT RECORDED JULY 25, 1985, AS INSTRUMENT NO. 163780 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. PARCEL 2: THE SOUTHWEST QUARTER OF SECTION 29, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY; EXCEPTING THEREFROM THE SOUTH 1470 FEET AND THE NORTH 455 FEET THEREOF; EXCEPTING THEREFROM THE WESTERLY 55 FEET THEREOF (MEASURED AT RIGHT ANGLES CONVEYED TO THE COUNTY OF RIVERSIDE BY DOCUMENT RECORDED JULY 25, 1985, AS INSTRUMENT NO. 163781 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. McLeod-Couch EXHIBIT "3" The South. half of the Southeast quarter of the Northwest quarter of Section 29, Township 4 South, Range 6 East, San Bernardino Base and Meridian. Together with a 20 foot easement for ingress and egress along the South line of the Southwest quarter of the Northwest quarter of Section 29, Township 4 South, Range 6 East, San Bernardino Base and Meridian. Debonne " 1 EXHIBIT. V C n t OR oOu ps�ffl naSaN 73-510 UUFRED WARING DRIVE, PALM DESERT, CALIFORNIA 92260-2578 TELEPHONE (619) 346-0611 FAX (619) 340-0574 September 13, 1993 H.M. Peccorini 323 West Court Street Suite 403 First American Building San Bernardino, California 92401 Re: Your letter of August 20, 1993 Dear Mr. Peccorini : Please be advised that I have had the city attorney look into the matter presented in your August 20, 1993 letter. He looked at the development agreement as well as California Government Code. The city attorney advises that Government Code Section 57202 (effective date of change of organization or reorganization) is applicable to the question at hand. Pursuant to Government Code Section 57202 (c) then the effective date for the annexation would be December 21 , 1992 which was the date of recordation through the Riverside County Recorder' s Office. The city council had approved the annexation pursuant to its Resolution No. 92-118 on December 17 , 1992 . I trust this is the information which you required. Should you have any further questions , please do not hesitate to contact me. Very truly yours, RARAMON A. DIAZ ASSISTANT CITY MANAGE / DIRECTOR OF COMMUNITY DEVELOPMENT RAD:SRS/tm Enclosure FAXED TO ADDRESSEE AND THOSE NOTED BELOW December 22, 1992 City Clark (619-340-0574) City of Palm Desert 73510 Fred Waring Drive j' Palm Desert, California 92260 r Subject: LAFCO 92-34-4--Annexation 30 to City of Palm Desert Please be notified that the above-listed reorganization has been recorded through the Riverside County Recorder's Office as follows: �- Date of Recordation: December 21, 1992 Recordation Number: 484434 Resolution Number: 92-118 Please be aware of the above effective date of the change of * organization. The Riverside Local Agency Formation Commission will forward your copy of the notice of completion once it becomes available through the County Recorder's Office. Attached please find a copy of the plat map. Please note that the State Board of Equalization has been notified by mail this date. By this letter, I am also informing the sheriff's Offica, Fire Department, Information Services, survey Department and California Highway Patrol. Sincerely, SQa,p�rn�Gt C..Ci1214 ���� Barbara Ann Beegle _ 44 Staff Assistant c: Information Serv!=es, W. Greer (275-3645) Sheriff's Department, Capt. Scully (789-9373) Fire Department, Mike Harris (657-6041) California Highway Patrol, Capt. S.H. Russell (688-8003) Transp. Dept. , Map Book Section, Karen Petrie (275-2063) Transportation Department, Survey, Michael Jacob (mail) Attachment as noted RIVERSIDE LOCAL AGENCY FORMATION COMMISSION • 3403 TENTH FIREET. SUITE ego • luvsrtSIDE. CA 92501 - PHONE 17141 388.0831 FAX(714) 369.8479 • LAW OFFICES OF H. M. PECCORINI AUG 2 3 199_.: M. M. PECCORINI SUITE 003 FIRST AMERICAN BUILDING TELEPHONE JUIIE PECCORINI ]I<-B BB-S]31 323 WEST COURT STREET rnkMUXIIYOEYROPII 11 MYFrIG:f� SAN BERNARDINO. CALIFORNIA 92401 bry OF YALm of FlT� T -689-RIER ]IA-609-<9]3 August 20 , 1993 Mr. Ray Diaz City of Palm Desert 73-510 Fred Waring Palm Desert, CA 92260 Re : My Client: Rancho Mirage Industrial Park Riverside County Tentative Parcel Map 24255 Rancho Mirage Industrial Park, etc. vs . City of Palm Desert, etc. et al. Riverside Superior Court No. INDIO 67366 Dear Mr . Diaz : According to the Development Agreement between the City of Palm Desert and Rancho Mirage Industrial Park, et al. , the City was to approve a new Tentative Parcel Map relative to the Rancho Mirage Industrial Park pro- perty within ninety ( 90 ) days- after the completion of annexation proceedings by the City. This new Map was to be approved upon the same terms and conditions as the Map approved by the County of Riverside . Please refer to Paragraph 4 . 8 of the Development Agreement. I have been informed that the Certificate of Completion as to the subject annexation was approved by the City Council on December 21 , 1992 and filed with the State Board of Equalization on January 5 , 1993 . While those dates may have some significance, it is equally true that such annexation proceedings were not completed until after the expiration of the various lawsuit statutes of limitations and the expiration of the time in which a Referendum Petition could have been filed relative to such annexation proceedings . Additionally, the Development Agreement itself was not finally executed until March 31 , 1993 . In light of all such matters , I would suggest that the date of the completion of the subject annexation proceedings would not be before March 3 , 1993 . Mr. Diaz City of Palm Desert August 20 , 1993 Page 2 I have been further informed by Jerry Appleget of Engi- neering Design Center, Rancho Mirage Industrial Park ' s engineers with reference to the above-captioned Parcel Map, that the City does not require any further action on the part of Rancho Mirage Industrial Park as to the new Tentative Parcel Map and that, accordingly,. such Map shall be approved in its current form. The only problem appears to be the date of such approval . In light of the provisions of the Development Agreement and all of the matters specified in the second paragraph of this letter, I believe such approval .should be made as of June 29 , 1993 , to wit: 90 days following the "completion" of the annexation proceedings . Please advise me as to your concurrence in this matter so we may have our engineers complete the processing of the new Tentative Parcel Map at the earliest possible date. If you have any questions or comments , please— call me at your earliest convenience. Very/trui /rs, PECCORI..I HMP/cd R1_r,F_VVEr LAW OFFICES OF H. M. PECCORINI AUG 2 3 1993 N. M. PECCORINI SUITE 403 FIRST AMERICAN BUILDING TELEPHONE JULIE PECCORINI 914-BBB-S731 323 WEST COURT STREET MM?AUNM DEVELOPMENT DEPAPRIEI1 NON DL PALM IIE$FW TELECOPIER SAN BERNARDINO, CALIFORNIA 92401 714-886-4973 August 20 , 1993 Mr. Ray Diaz City of Palm Desert 73-510 Fred Waring Palm Desert, CA 92260 Re: My Client: Rancho Mirage Industrial Park Riverside County Tentative Parcel Map 24255 Rancho Mirage Industrial Park, etc . vs . City of Palm Desert, etc . et al . Riverside Superior Court No. INDIO 67366 Dear Mr. Diaz : According to the Development Agreement between the City of Palm Desert and Rancho Mirage Industrial Park, et al. , the City was to approve a new Tentative Parcel Map relative to the Rancho Mirage Industrial Park pro- perty within ninety ( 90 ) days after the completion of annexation proceedings by the City. This new Map was to be approved upon the same terms and conditions as the Map approved by the County of Riverside. Please refer to Paragraph 4 . 8 of the Development Agreement. I have been informed that the Certificate of Completion as to the subject annexation was approved by the City Council on December 21, 1992 and filed with the State Board of Equalization on January 5 , 1993 . While those dates may have some significance, it is equally true that such annexation proceedings were not completed until after the expiration of the various lawsuit statutes of limltat,ons and the expiration of the time iii w:iich a Referendum Petition could have been filed relative to such annexation proceedings. Additionally, the Development Agreement itself was not finally executed until March 31, 1993 . In light of all such matters, I would suggest that the date of the completion of the subject annexation proceedings would not be before March 3 , 1993 . Mr. Diaz City of Palm Desert August 20 , 1993 Page 2 I have been further informed by Jerry Appleget of Engi- neering Design Center, Rancho Mirage Industrial Park' s engineers with reference to the above-captioned Parcel Map, that the City does not require any further action on the part of Rancho Mirage Industrial Park as to the new Tentative Parcel Map and that, accordingly,. such Map shall be approved in its current form. The only problem appears to be the date of such approval. In light of the provisions of the Development Agreement and all of the matters specified in the second paragraph of this letter, I believe such approval .should be made as of June 29 , 1993 , to wit: 90 days following the "completion" of the annexation proceedings. Please advise me as to your concurrence in this matter so we may have our engineers complete the processing of the new Tentative Parcel Map at the earliest possible date. If you have any questions or comments, please call me at your earliest convenience j Very tr u'rs PECCORIPY HMP/cd ORDINANCE NO. 697 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF y PALM DESERT, CALIFORNIA, APPROVING A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND MONTEREY PALMS FOR THE FUTURE DEVELOPMENT OF REAL PROPERTY LOCATED WITHIN ANNEXATION NO. 30 . CASE NO. DA 92-4 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the City Council of the City of Palm Desert, California, did on the 3rd day of December, 1992 , hold a duly noticed public hearing to consider the request of Monterey Palms to consider the above mentioned project; and WHEREAS, the planning commission did hold a duly noticed public hearing on this matter on December 1 , 1992 and has recommended approval of said development agreement; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89 , " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No. 683, and no further documentation is necessary; 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 city council did find the following: 1 . That the development agreement is consistent with the provisions of Section 25 . 37 Development Agreements . NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows : 1 . That the above recitations are true and correct and constitute the findings of the city council in this case. 2 . That the city council does hereby approve the Development Agreement, Exhibit 'A' , between the City of Palm Desert and Monterey Palms. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council, held on this day of 1992 , by the following vote, to wit: AYES : NOES : ABSENT: ABSTAIN: RICHARD S. KELLY, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California w 1 • � 1 i RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: EXHIBIT A Lynn D. Crandall Crandall & Traver 43-645 Monterey Avenue, Suite D Palm Desert, CA 92260 DEVELOPMENT AGREEMENT ENTERED INTO BETWEEN THE CITY OF PALM DESERT AND MONTEREY PALMS, A CALIFORNIA LIMITED PARTNERSHIP a DEVELOPMENT AGREEMENT THIS DEVELOPMENT ("Agreement") is entered into on the day of , 1992, between MONTEREY PALMS, A California Limited Partnership ("Owner") , and the CITY OF PALM DESERT, a municipal corporation organized and existing under the laws of the State of California (the "City") . Owner and the City are sometimes collectively referred to herein as 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 65864-65869. 5 ("Development Agreement Law") authorize the City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and reducing the economic costs of such development. C. Pursuant to Government Code Section 65865, the City has adopted rules and regulations establishing procedures and requirements for consideration of development agreements. D. Owner is the owner of the real property described on Exhibit "A" , attached hereto and incorporated herein by this reference (the "Property") . The Property is currently located within the unincorporated area of Riverside County, within the -1- LDC/112392/6305/01DEVEL.A city' s sphere of influence. The City has initiated proceedings for the annexation of the Property into the corporate boundaries of the City in accordance with the Cortese-Knox Act (Government Code Section 56000, et seg. ) , has certified and approved a negative declaration pursuant to the California Environmental Quality Act for prezoning, and has approved, certain pre-annexation zoning for the Property. Such annexation proceedings will be completed following approval of this Agreement, and this Agreement shall not be effective until such time as the annexation proceedings are completed. E. owner's property is currently zoned W-2-20 under the County of Riverside Land Use Ordinance and has a general plan designation of M (Industrial/Manufacturing) . Prior to approving such zoning, the County performed all required environmental analysis in accordance with CEQA. F. Owner intends to use its property for industrial and/or limited commercial uses and seeks certainty in the approval of the industrial or commercial uses of its property and with respect to the development of the Property. G. In partial consideration of Owner' support for the annexation of the Property into the City, the City has requested Owner to consider entering into this Agreement relating to the Property and proceedings have been taken in accordance with the development agreement law and the City's rules and regulations. H. The City Council has found that this Agreement is consistent with the City's general plan, as amended (the "General Plan") , and any applicable Specific Plan. -2- LDC/112392/6305/O1DEVEL.A i I. On , 1992, the City Council of the City adopted Ordinance No. , , approving this Agreement with Owner. J. The "Development Criteria" as defined and specified below implement the goals and policies of the City's General Plan and provide balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the City, and impose appropriate standards and requirements with respect to land development and usage of the Property. K. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. This Agreement has undergone extensive review by the City's staff, the Planning Commission of the City, and the City Council and has been found to be fair, just and reasonable and in the best interest of the citizens of the City and the public health, safety and welfare. IN CONSIDERATION OF THE RECITALS AND THE MUTUAL COVENANTS AND CONDITIONS OF THIS AGREEMENT, the parties agree as follows: AGREEMENT 1. DEFINITIONS. 1. 1 "Agreement" is this Development Agreement. 1.2 "Agreement Date" is the date this Agreement is executed by the City. -3- LOC/112392/6305/01DEVEL.A e c 1. 3 "CEQA" is the California Environmental Quality Act, Public Resources Code Section 21000, et AR . 1. 4 "City" is the City of Palm Desert, California. 1. 5 "County" is the Country of Riverside, California. 1. 6 "Development Criteria" are: (a) All of those ordinances, resolutions, codes, rules, regulations and official policies of the City governing the development and use of the Property as of the Agreement Date, including, without limitation, the zoning approved by the City as part of the annexation of the Property to the City, which zoning shall be SI Service Industrial,. the permitted uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings, the provisions for reservation of dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. :specifically, but without limitation, such Development Criteria includes Zone Change 92. 1 adopted by the city council of the City on or about May 28, 1992 . To the extent any of the foregoing are amended from time to time with the consent of Owner, the Development Criteria shall include such matters as so amended. Notwithstanding the immediately preceding sentence, if this Agreement is required by law to be amended in order for the Development Criteria to include such amendments, "Development Criteria" shall not include such amendments unless and until this Agreement is so amended. 1.7 "Effective Date" is that date which is the later to occur of the following: (a) the expiration date for the filing of a -4- LDC/112392/6305/01DEVEL.A referendum petition challenging the ordinance approving this Agreement if no such petition is filed by such date, (b) the date that the results of a referendum election are declared approving this Agreement, if a referendum petition is filed within the applicable period, or (c) the date the Property is annexed into the City. 1.8 "Owner" is Monterey Palms, A California Limited Partnership and its successors in interest to all or any part of the Property. 1.9 "Property" is all of the real property and any improvements thereon described in Exhibit "A" attached hereto and incorporated herein by this reference. 2 . TERM. Unless earlier terminated as provided in this Agreement, this Agreement will commence on the date the Property is annexed into the City and will continue for a period of ten (10) years thereafter. 3 . RESTRICTIONS ON DEVELOPMENT AND USE. The development and use of the Property, including zoning, the density or intensity of use, the maximum height and size of proposed buildings, building setback requirements, parking requirements and provisions for reservation or dedication of land for public purposes, will be governed by the Development Criteria as the same exists on the Agreement Date. The City acknowledges and agrees that the Development Criteria specifically permit the development and use of the Property for such uses as are permitted -5- LDC/112392/6305/OiDEVEL.A i in the SI Service Industrial provided for in the City's Municipal Code as of the Agreement Date. Except with regard to those aspects of the development of the Property which are addressed in this Agreement, the parties acknowledge and agree that other aspects of the development of the Property may require the exercise of discretion by the City and that those aspects of the development of the Property will be subject to the City's reasonable review and approval as set forth in the City's ordinances, resolutions, rules and regulations, as they exist from time to time; provided, however, that those ordinances, resolutions, rules and regulation are consistent with the Development Criteria and this Agreement and provided further that the City exercises its discretion in a manner which is consistent with this Agreement. 4 . DEVELOPMENT AND USE. 4 . 1 owner will have the vested right to develop its Property to the extent covered by and in accordance with the Development Criteria and this Agreement without regard to future ordinances, resolutions, rules, regulations and policies of the City or referenda of the voters of the City including, without limitation, those with respect to moratoria for utility service, other than ordinances, resolutions, rules, regulations and policies of the City which limit or condition the rate, timing or sequencing of development of the Property and which are required solely as a result of then existing shortages of utility service capacity or facilities. -6- LDC/112392/6305/010EVEL.A 4 .2 On the request of Owner from time to time, the City will accept applications for, diligently process and issue, in accordance with the Development Criteria, any land use approvals and permits, subdivision approvals, building permits (including, without limitation, building permits for public improvements) , certificates of occupancy, business licenses and other permits which are necessary for the development or use of the Property in accordance with this Agreement, on payment of: (i) the City's usual and customary fees and charges which are in effect as of the Agreement Date, to cover its costs of processing any such applications and issuing any such approvals, permits and certificates ("Processing Fees and Charges") , and; (ii) the Development Impact Fees, at the time that the Processing Fees and Charges and the Development Impact Fees are normally payable as provided in the Municipal Code of the City. 4 . 3 In connection with subdivision mapping of property immediately to the north of the Property, discussions have included that Dinah Shore Drive is proposed to be extended across the Property to the northerly projection of Portola Drive, as required by the provisions of Parcel Map No. 24255. The City acknowledges that no agreement exists between it and Owner that Owner is to dedicate or pay, either directly or indirectly as for example by inclusion in an assessment district or by reimbursement agreement, for the cost of so extending Dinah Shore Drive from the northerly boundary of the Property to the northerly extension of Portola Avenue and that Owner' s only requirement in this regard shall be to perform conditions for the dedication of a right of way for Dinah -7- LDC/112392/6305/01DEVEL.A Shore Drive and to provide street improvements, all only in connection with applications to subdivide or improve portions of the Property adjacent to Dinah. Shore Drive. In addition, the parties acknowledge that no agreement exists between City and Owner with reference to portions of the subdivision map of the property immediately to the north of the Property that Owner will consent or sign a final subdivision map as to portions of the map which appear to encroach onto or include a portion of the Property. 4 . 4 The City' s present plan is to extend the East one-half of Portola Avenue northerly from its present terminus to a point near the Southern Pacific Railroad right of way. The City agrees to do so at no cost to Owner provided that Owner will be required to dedicate one-half of the right of way in connection with the subdivision mapping of portions of the Property abutting Portola and to construct and pay for street improvements for those portions of Portola Avenue adjacent to the Property in connection with and as a condition to approvals far the development of portions of the Property abutting Portola, all in accordance with the Development Criteria. 4. 5 Notwithstanding provisions herein concerning the zoning applicable to the Property, City acknowledges that it may consider permitting commercial zoning on portions of property abutting Portola Avenue (or the northerly extension thereof from its present terminus) . City agrees that it will, in good faith, consider allowing a portion of the Property that will abut Portola Avenue after its northerly extension to be changed to a commercial zoning designation. -8- LDC/112302/6305/OiDEVEL.A 5. DEVELOPMENT IMPACT FEES. 5. 1 "Development Impact Fees" . The total development impact fees, including traffic mitigation fees, drainage fees, sewer connection fees, construction taxes and all other applicable development impact or linkage assessments, fees and charges which will be imposed on Owner with respect to the Property (collectively "Development Impact Fees") shall be those in force and effect as of the Agreement Date; provided, however, this section shall not be constructed to limit the authority of the City to increase the amount of the Development Impact Fees on a uniform city-wide basis so long as the amount of any increase, fee or charge after the Effective Date of this Agreement shall not exceed the increase in the reasonable cost of providing the improvement or service for which the fee or charge is imposed. The City also will not impose on or exact from any subsequent owner, developer, lessee or occupant of the Property, or any part thereof, any fees, taxes, charges or other impositions in substitution of any of the Development Impact Fees. 5. 2 The parties agree that nothing in the Section 5 will be deemed to prohibit or limit in any way the imposition of fees by governmental agencies which are not sponsored by or under the control of the City including, without limitation, the State of California and the government of the United States. 6. ACCESS TO PROPERTY. 6. 1 In connection with the approval of the alignment of Dinah Shore Drive between the northerly boundary of the Property and the northerly extension of Portola Avenue, the City agrees that there -9- LDC/112392/6305/01DEVEL.A shall be a minimum distance between the southerly line of Dinah , Shore Drive at Portola Avenue and the southerly boundary line of the Property at Portola Avenue of 500 feet; provided, however, if the subdivision map of that portion of the Property located at the southeast corner thereof includes an east/west access street at Portola Avenue approximately coterminous with the southerly boundary line of the Property as mentioned in subsection 6.2, then the 500 feet shall be measured from the northerly line of said access street, north to the southerly line of Dinah Shore Drive at Portola Avenue. The foregoing matters are depicted on the map attached hereto as Exhibit "B" . 6.2 The City shall permit an east/west access street at Portola Avenue approximately coterminous with the southerly boundary line of the Property if desired by Owner in connection with its subdivision mapping of the portion of the Property, as shown on Exhibit "B" hereto. 6. 3 The City shall permit at least two crossing points across the extension of Dinah Shore Drive within the Property and across the extension of a proposed east/west street (which the Owner MacLeod Couch Land Co. proposes to uc as the principal access into their Property as shown on Exhibit "B" hereto; such access roadway is currently designed to proceed in an East/West direction, to approximately the Easterly boundary line of the MacLeod Couch property "MacLeod Street") . The two crossing points in Dinah Shore Drive are in addition to that which will exist at the intersection of Dinah Shore Drive and Portola Avenue and at the northerly boundary line of the Property at Dinah Shore Drive. The two. -10- LDC/112392/6305/OIDEVEL.A crossing points in MacLeod Street will be in the interior of the Property and will be in addition to any streets which are an extension of any street from the property abutting the Property and located to the north of the Property. 7 . PUBLIC IMPROVEMENTS AND SERVICES. 7 . 1 Owner shall not be required by the City to construct any public improvements or pay or make any dedications or reservations for any public improvements with respect to the Property until , and in connection with, the development of the Property or a portion thereof by Owner. Further, if only a portion of the Property is developed at a particular time, then only those public improvements, dedications, or reservations with respect to and adjacent to the developed portion of the Property shall be required by the City; provided, however, that non-adjacent public improvements may be required by the City in connection with the development of all or a portion of the Property if such public improvements are required to mitigate impacts identified in a traffic study done by the City with respect to the portion of the Property to be developed. Further, City shall not, without the prior written consent of Owner, include the Property within any assessment district, community services district or community facilities district formed pursuant to the Landscaping and Lighting Act of 1972, the Mello Roos Community Facilities Act of 1982, or any successor statutes or other bond or assessment acts adopted in connection with the development or maintenance of public improvements. -11- LDC/112392/6305/01DEVEL.11 7 . 2 The proposed MacLeod Street is currently proposed to proceed in an East/West direction, to approximately the Easterly boundary line of the MacLeod Couch property and to thereafter proceed Northeasterly to intersect Dinah Shore Drive at right angles. City hereby acknowledges that no agreement exists to which it is a party that has finally agreed on the exact alignment of the extension of MacLeod Street through the Property and that the City will consider other alignments of MacLeod Street through the Property in connection with the subdivision process relating to the Property. 7 . 3 The City may desire that a boundary wall be constructed on or near and parallel to the southerly boundary line of the Property. No part of the cost of said wall shall be required by City to be paid by Owner unless, as between Owner and the owner of the property abutting the Property on the south, Owner seeks and obtains development approvals for its Property first in time. 8 . COMPLIANCE. The City will periodically review this Agreement as provided in Section 65865. 1 of the Government Code and the City Municipal Code, to ascertain Owner' good faith compliance with the provisions of this Agreement. 9. DEFAULT BY OWNER. If the City does not find good faith compliance with the provisions of this Agreement by Owner, then the City will have all of the remedies which are provided in the City Municipal Code and will comply with all of the procedures which are provided in Section 65865. 1 of the Government Code and the City Municipal Code. -12- LDC/112392/6305/01DEVEL.A ' 10. DEFAULT BY THE CITY. If the City fails to perform any of its obligations as provided in this Agreement and fails to cure its nonperformance within 30 days after notice of nonperformance is given by owner, then the City will be in default and Owner will have all of the remedies which are available to it at law or in equity; provided, however, that if the City's failure to perform cannot reasonably be cured within such 30 day period, then the City will not be in default of this Agreement if it commences to cure its nonperformance within such 30 day period and thereafter diligently and in good faith prosecutes such cure to completion. Without limiting the effect of the foregoing, the parties acknowledge and agree that the subject matter of this Agreement is unique and that money damages may be inadequate to compensate Owner and therefore, at the election of Owner, this Agreement may be specifically enforced. 11. INDEMNIFICATION. (a) Owner will defend, indemnify and hold the City and its elected officials, officers and employees free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any obligation which arises from the development of the Property including, without limitation, obligations for the payment of money for material and labor; (ii) any failure on the part of Owner to take any action which she is required to take as provided in this Agreement; (iii) any action taken by Owner which -13- LDC/112392/6305/OiDEVEL.A it is prohibited from taking as provided in this Agreement and (iv) any claim which results from any willful or negligent act or omission of Owner. (b) The City will defend, indemnify and hold Owner and its trustees, beneficiaries, partners, shareholders, directors, officers and employees free and harmless from any and all loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any failure on the part of the City to take any action which it is required to take as provided in this Agreement, (ii) any action taken by the City which it is prohibited from taking as provided in this Agreement and (iii) any claim which results from any willful or negligent act or omission of the City. (c) Included in the scope of the foregoing indemnifications will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject of the applicable indemnification and all of the associated legal fees and court costs. Without limiting the effect of the foregoing, the indemnifying party will have the right to defend against any claim with respect to which it is indemnifying the other party, using legal counsel of its choice. 12 . SUPERSEDING STATE OR FEDERAL LA4I. If any state or federal law or regulation which is enacted or adopted after the Effective Date of this Agreement or any other action of any governmental entity which is not under the City ' s control, prevents or precludes compliance with any provision of -14- LDC/112392/6305/01DEVEL.A A this Agreement, then such provision of this Agreement will be modified or suspended only to the extent and for the time it is necessary to achieve compliance with such law, regulation or other governmental action and the remaining provisions of this Agreement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. On the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance which removes the effect of the same on this Agreement, the provisions of this Agreement will be automatically restored to their full original effect and any amendment to this Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 13 . SUCCESSORS AND ASSIGNS. All of the provisions of this Agreement will inure to the benefit of and will bind the parties and their respective successors and assigns and all other persons or entities which acquire all or any part of the Property. Without limiting the effect of the foregoing, Owner will have the right to assign any of their rights or delegate any of their obligations as provided in this Agreement to or for the benefit of any person or entity which owns or leases any part of the Property. -15- LDC/112392/6305/01DEVEL.A 14 . EQUITABLE SERVITUDES . All of the provisions of this Agreement will be enforceable as equitable servitudes and will constitute covenants running with the land as provided in the applicable law. 15. NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of joint venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners. 16. NOTICES AND OTHER COMMUNICATIONS. All notices or other communications which are required or permitted to be given to the parties will be in writing and will be given either by personal service or by mailing the same by certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service, addressed as follows: CITY COPY CITY OF PALM DESERT Best, Best & Krieger 73-510 Fred Waring 39700 Bob Hope Drive, #312 Palm Desert, CA 92260 Rancho Mirage, CA 92270 Attn: Carlos Ortega Attn: Douglas S. Phillips Owner COPY -_ Monterey Palms Crandall & Traver c/o Gale Messick 43-645 Monterey Avenue 935 Fountain Springs Lane Suite D Glendora, CA 91740 Palm Desert, CA 92260 Attn: Lynn D. Crandall -16- LDC/112392/6305/OIDE9eL.A If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it will be deemed given as of the date of receipt, rejection or return undelivered. Addressees to which notices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 16. 17 . ESTOPPEL CERTIFICATES. At the request of either party, the other party will, within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, except as is expressly provided in such estoppel certificate and (c) no default in the performance of the requesting party' s obligations as provided in this Agreement exists, except as is expressly provided in such estoppel certificate. 18 . APPLICABLE LAW. This Agreement will be construed and enforced as provided in California law. 19. VENUE. Any legal action with respect to this Agreement will be brought in either Riverside Superior Court or in the United States District Court for the Central District of California. -17- lDC/112392/6305/010CWI A 20. ATTORNEYS' FEES. If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in such action will be entitled to recover from the :losing party all attorneys' fees, court costs and necessary disbursements in connection with such action. 21. PARAGRAPH HEADINGS. The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 22 . CONSTRUCTION. In all cases, the language: in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. 23 ., SURVIVAL. Each and every covenant in this Agreement will survive the execution and delivery of this Agreement for the benefit of the parties and their successors and assigns. 24 . CALENDAR PERIODS. All references in this Agreement to "years" , "quarters" , "months" and "days" will be deemed to be to references to calendar years, quarters, months and days. 25. SEVERABILITY. Every provision of this Agreement is and will be construed to be a separate and independent covenant. If any provision of this Agreement or the application of the same is, to any extent, found -18- LDC/112392/6305/01DEVEL.A a to be invalid or unenforceable, then the remainder of this Agreement or the application of such provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Agreement will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 26. FURTHER ASSURANCES. Whenever and as often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or property in order to achieve the intent of this Agreement. 27 . COVENANT OF GOOD FAITH. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 28 . COUNTERPARTS. This Agreement may be executed in counterparts, each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 29. INCORPORATION OF RECITALS. The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereof. Each recital of fact concerning the parties will be conclusive between -19- LDC/112392/6305/01DML.A n them and such facts will be incontestable in the event of any dispute between them with respect to such facts. Neither party will introduce any evidence in a court or administrative proceeding which would in any way serve to dispute any such recited fact. 30. EXHIBITS. Any Exhibit to this Agreement is incorporated by reference as though fully set forth hereof. 31. AMENDMENT. No amendment or waiver of any term of this Agreement will be binding on the City unless and, until it has been approved and has become effective as provided in Section 65868 of the Government Code and pursuant to the City Municipal. Code and Regulation, or on Owner, unless and until it has been executed by Owner. 32 . RECORDATION. No later than 10 days after the Effective Date of this Agreement, the City will, at its cost, record this Agreement in the Official Records of the Riverside County Recorder, as provided in Section 65868. 5 of the Government Code: and as provided by the City Municipal Code. 33 . AGREEMENT BY OWNERS RE NEGATIVE DECLARATION, NORTH SPHERE OF PREZONING, ANNEXATION OF OWNERS' PROPERTY INTO THE CITY OF PALM DESERT. Neither Owner nor their agents, consultants, servants, attorneys or representatives shall in any way object to or take any actions on behalf of Owner whatsoever in opposition to or challenge to the Negative Declaration for City's Case No. C/Z 92-1, the North Sphere Pre-zoning or the annexation of the Property or Owner's -20- LOC/112392/6305/01DE9EL.A b Property into the City of Palm Desert. Further, Petitioner and/or Owner at the request of City, shall take all reasonable steps to support the City's proposed annexation before any public body including, but not limited to, the Local Agency Formation Commission. CITY CITY OF PALM DESERT By: By: ATTEST: By: SHEILA GILLIGAN, City Clerk City of Palm Desert APPROVED AS TO FORM AND SUBSTANCE: By: Douglas S. Phillips Deputy City Attorney Owner: MONTEREY PALMS, a California Limited Partnership By: APPROVED AS TO FORM AND SUBSTANCE: Lynn D. Crandall Attorney for Owner -21- LDC/112392/6305/01DEVEL.A f STATE OF CALIFORNIA ) i COUNTY OF RIVERSIDE ) On , 1992, before me, (name of notary) a notary public, personally appeared I 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 signatures) 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 1992, before me, (name of notary) a notary public, personally appeared r 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 rapacity(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. -22- LDC/112392/6305/01DEVEL.A • STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On , 1992, before me, (name of notary) a notary public, personally appeared I 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. STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On , 1992, 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 signatures) 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. -23- LOC/112392/6305/01DEVEL.A { STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On 1992, 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 names) 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.. STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On , 1992, before me, (name of notary) a notary public, personally appeared I personally known to me (or proved to me cn 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 c:apacity(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. -24- LDC/112392/6305/01DEVEL.A i EXHIBIT "A" That property located in the County of Riverside, California described as: The Southeast quarter of Section 29, Township 4 South, Range 6 East, San Bernardino Base and Meridian according to the official plat thereof. Except the South 1,470 feet thereof. Said land is also shown as Parcel 3 of Record of Surveys recorded in Book 40, Page 69 of Record of Surveys, in the office of the County Recorder of said County. d ORDINANCE NO. 696 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND RANCHO MIRAGE INDUSTRIAL PARK A CALIFORNIA LIMITED PARTNERSHIP, RUYEN INTERNATIONAL CORPORATION; HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST; AND BERNARD AND JEANETT DEBONNE, FOR THE FUTURE DEVELOPMENT OF REAL PROPERTY LOCATED WITHIN ANNEXATION NO. 30 . CASE NO. DA 92-3 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the City Council of the City of Palm Desert, California, did on the 3rd day of December, 1992, hold a duly noticed public hearing to consider the request of Rancho Mirage Industrial Park, a California Limited Partnership, Ruyen International Corporation; Henry Melby, Trustee of the B.H. Fortner Testamentary Trust; and Bernard and Jeanett DeBonne, to consider the above mentioned project; and WHEREAS, the planning commission did hold a duly noticed public hearing on this matter on December 1, 1992 and has recommended approval of said development agreement; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No. 683, and no further documentation is necessary; 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 city council did find the following: 1 . That the development agreement is consistent with the provisions of Section 25. 37 Development Agreements . NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows : 1 . That the above recitations are true and correct and constitute the findings of the city council in this case. 2 . That the city council does hereby approve the Development Agreement, Exhibit 'A' , between the City of Palm Desert and Rancho Mirage Industrial Park, A California Limited Partnership, Ruyen International Corporation; Henry Melby, Trustee of the B.H. Fortner Testamentary Trust; and Bernard and Jeanett DeBonne. Y ORDINANCE NO. 696 PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council , held on this day of 1992 , by the following vote, to wit: AYES : NOES : ABSENT: ABSTAIN: RICHARD S . KELLY, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California 2 ,)ZAi J, -Aq, JA rG +JJ. J�+ .Y +. i .i . * NW-24-1992 01s22PM FROM nthia/Ludulaaen/Httu. ?0 16193406698 P.02 UKINI IC"T1 • a. MEMORANDUM DATE: November 24, 1992 TO: Cindy Ludvigsen FROMs 11. M. Peccorini Res Changes to DEVELOPMENT AGREEMENT These are the changes to the Development Agreement we have diecuseeds 1. Add at end of Paragraph 4 .4 as a separate, but unnumbered paragraph: For purposes of this Paragraph 4 .4 , "Construction of and extension of Portola Avenue" may be accomplished by the City by the construction of the east one-half street section of extended Portola Avenue, which proposed one-half street extension is located on property currently owned by the Palm Desert Redevelopment Agency. This construction and extension is found and is deemed by the City as "an acceptable service level" with respect to the extended Portola Avenue As called for under the terms of that certain settlement agreement between Rancho Mirage Industrial Park and the City of Rancho Mirage with respect to a settlement of that action entitled Rancho Mirage industr&Al Park# at al V. City o Rancho Mira a Cats No. div 65168 file in the Superior Court, County of Riverside, r as may be required under the Conditions of Approval relative to Parcel Maps Noe. 24255 and/or 274193 T * City shall indemnify and Savo Rancho Mirage Industrial Park �pnd/or Ruyenlfree and harmless from any suit brought which challenges th S finding. The City Shall require that the west one-half of the Portola Avenue extension be completed upon development of the property west of and adjacent to such extension, pursuant to the terms of this Paragraph. On no event shall Rancho Mirage industrial Park and/or Ruyenrbe required to pay for or otherwise share, either directly or indirectly, in the cost: of the construction and extension of Portola Avenue 2. Delete Paragraph 7 of the Development Agreement as it now exists and substitute the following: "7 TIMING OF DEVELOPMENT. The parties acknowledge that `S Owners cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend C. upon numerous factors which are not within the control of Owners, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in srdBe construction Co v. cit of ca rillo ( 1984 ) 37 ca1.3d 463 thtt the a ura o t e parties theseaa to provid. - 1 - " , SENT dY:Xerox ietecopier rutu -ca—a[ a corm o '���o�• °° " , NOV`24—i%2 01:23PM FF^m Cynthia/LuduISIsen/Rtty, P. 0XINl 1-tlr' VVi for the timing of development'frdeV0l0pMentatoaprevail adopted overiDucha pave restricting the timing P parties' agsaemsnt, it is the parties' haee�ners to oshallhhaveefi- cienoy by acknowledging and -providing t the right to develop the Property in such order and at such rate and at such times as owners deem appropriate ci of their subjective business judgment.' 3 . Change Paragraph 1.2 of the Development Agreement as follows: l�, ^BQUYTA2L8 BERVaUDES 0 AS_$ Gz ii[ rNT. All of the provi- S sions o! this Agreement $ha,L be enforceable as equitable servi- . p tudes and shall constitute Iaw. $The running nd o the land as ``NY)✓ provided in the applicable law. The rights and obligations of � owners under this Agreement may be transferred or assigned, pro- vidd such ES' theetraaaferraaseignment�ssn lee eor leas•nsfer or ainmnt it; dofiall ore at portion ion hof \� terms of this Agreement, any such as- the PrOp@sty. During the signee or transferee $hall observe and perform all of the duties C and obligations of the particular Owner making such assignment contained in this Agreement: as such duties and obligations pertain to the portion of the Property to transferred or assigned, Owners shall cgive eato the ci t'y a ftortransf iwithin thirty (30) days after any suh LAW OFFICES OF BEST, BEST 6 KRIE06 November 13, 1992 Page 2 "For purposes of this paragraph, "Construction of and extension of Portola Avenue" may be accomplished by the City, by the construction of the east one-half street section of extended Portola Avenue, which proposed one- half street extension is located on property currently owned by the Palm Desert Redevelopment Agency. This construction and extension is found and is deemed by the City as "an acceptable service level" with respect to the extended Portal& Avenue as called for under the terms of that certain settlement agreement between Rancho Mirage Industrial Park and the City of Rancho Mirage with respect to a settlement of that action entitled Rancho Mirage Industrial Park, at al. 1 2"" of"W'ha rea& o , Case No. Indio 65168 filed in the superior Court, County of Riverside. The City will indemnify and save Rancho Mirage Industrial Park harmless from any suit brought which challenges this finding. The City shall require that the west one-half of the Portola Avenue extension be completed upon development of the property west of and adjacent to such extension, pursuant to the terms of this paragraph. " awtatet t • RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: EXHIBIT DEVELOP.VENT AGREEMENT ENTERED INTO BETWEEN THE CITY OF PALM DESERT AND RANCHO MIRAGE INDUSTRIAL PARK RUMEN INTERNATIONAL CORP., HENRYMELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST, .,—BERNARD AND JEANNETT DEBONNE,at - TABLE OF CONTENTS RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 . DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 4 2 . TERM. . . . . . . . . . . . . . . . . . . . . . . . . . 6 3. RESTRICTIONS ON DEVELOPMENT AND USE. . . . . . . . . . . 7 4 . DEVELOPMENT AND USE. . . . . . . . . . . . . . . . . . . 8 5. COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . 10 6 . DEFAULT BY OWNERS. . . . . . . . . . . . . . . . . . . . 11 7 . DEFAULT BY THE CITY. . . . . . . . . . . . . . . . . . . 11 8. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . 11 9 . SUPERSEDING STATE OR FEDERAL LAW. . . . . . . . . . . 13 10. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . 13 11. EQUITABLE SERVITUDES. . . . . . . . . . . . . . . . 14 12 . NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. . . 14 13 . NOTICES AND OTHER COMMUNICATIONS. . . . . . . . . . . . 14 14 . ESTOPPEL CERTIFICATES. . . . . . . . . . . . . . . . . . 15 15. APPLICABLE LAW. . . . . . . . . . . . . . . . . . . . . 15 16 . VENUE. . . . . . . . . . . . . . . . . . . . . . . . . . 15 17 . ATTORNEYS' FEES. . . . . . . . . . . . . . . . . . . . . 16 18 . PARAGRAPH HEADINGS. . . . . . . . . . . . . . . . . . . 16 19 . CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . 16 20 . SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . 16 21 . CALENDAR PERIODS. . . . . . . . . . . . . . . . . . . . 16 22 . SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . 16 23 . FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . 17 24 . COVENANT OF GOOD FAITH. . . . . . . . . . . . . . . . . 17 25 . COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . 17 26 . INCORPORATION OF RECITALS. . . . . . . . . . . . . . . . 17 27 . EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . 18 28 . AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . 18 29 . RECORDATION. . . . . . . . . . . . . . . . . . . . . . . 18 30 . AGREEMENT BY OWNERS RE NEGATIVE DECLARATION, NORTH SPHERE OF PREZONING, ANNEXATION OF OWNERS' PROPERTY INTO THE CITY OF PALM DESERT . . . . . . . . . 18 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGSM ( "Agreement" ) is entered into on -1 1992 , between RANCHO MIRAGE INDUSTRIAL PARK, RUYEN INTERNATIONAL CORP. , HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST, MACLEOD COUCH LAND CO.1 BERNARD AND JEANNETT DEBONNE AND MONTERBY PALM ( "Owners" ) , and the CITY OF PALM DESERT, a municipal corporation organized and existing under the laws of the State of California (the "City") . Owner and the City are sometimes collectively referred to herein as 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 65864-65869.5 ( "Development Agreement Lawn ) authorize the City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and reducing the economic costs of such development. C. Pursuant to Government Code Section 65865, the City has adopted rules and regulations establishing procedures and requirements for consideration of development agreements . D. Owners are the owners of the real property described on Exhibit "A" , attached hereto and incorporated herein by this DSP27663/October 29, 1992 reference (the "Property" ) . The Property is currently located within the unincorporated area of Riverside County, within the City sphere of influence. The City has initiated proceedings for the annexation of the Property into the corporate boundaries of the City in accordance with the Cortese-Knox Act (Government Code Section 56000, et seq. ) , has certified and approved a negative declaration pursuant to the California Environmental Quality Act for prezoning, and has approved certain pre-annexation zoning for the property (C/Z 92-1) . Such annexation proceedings will be completed following approval of this Agreement, and this Agreement shall not be effective until such time as the annexation proceedings are completed. E. Owners ' properties are currently zoned as follows under the County of Riverside Land Use Ordinance and General Plan: Name Le«al Descriution of Property Zonil Rancho Mirage Se��t r • ...:.,. : ... �....., Industrial Park Ni :.«:, ... . .: a•.: Ruyen International Corp. Henry Melby, Trustee of the B.H. Fortner Testamentary Trust, MacLeod Couch Land Co g W h, Bernard and Jeannett DeBonne 5 81ib3� " r .. .. .w x:.x�: w oe,ue r, ment-eve I Prior to approving such zoning, the County performed all required environmental analysis in accordance with CEQA. F. On July 28, 1992, the County of Riverside approved Tentative Commercial Parcel Map 24255, subject to conditions, with DSP27663/octobor 29, 1992 —2— respect to certain property owned by Rancho Mirage Industrial Park and Ruyen International Corp. legally described as: Assessor's Parcel Nos . 653-250-005, 653-250- 006, 653-250-010, 653-250-014, 653-250-015, 653-250-0161 653-250-017 , 653-250-018, and 653 250 019 (hereafter recta-re8 ;tq gs tha RMTkfRu . PSpr to agpxavinq Is14. 2255, t2euay gesiFcssmed alz araaasr xvnmata a+i�aysis acardaneRIP � t CEQl4 ; G. The County of Riverside has previously approved Parcel Map 27419, subject to conditions, with respect to certain property owned by Henry Melby, as Trustee of the B.H. Fortner Testamentary Trust, legally described as: AsBssRf'$ Pa s? a(i .$ ' Prior to approving Parcel Map 27419, the County performed all required environmental analysis in accordance with CEQA. H. Owners intend to use their property for industrial, commercial or for less intensive commercial and/or residential uses, and seek certainty in the approval of the industrial, commercial, or residential uses of their property and with respect to the development of their property. I . In partial consideration of, and in order to implement that certain Settlement Agreement and Mutual Release between the City and Rancho Mirage Industrial Park dated October _, 1992, the City and Owners have entered into this Agreement relating to The Property, and proceedings have been taken in accordance with the development agreement law and the City's rules and regulations. DSP27663/0ctob t 29, 1992 —3— J. The City Council has found that this Agreement is consistent with the City's general plan, as amended (the "General Plan" ) , and any applicable Specific Plan. R. On , 1992, the City Council of the City adopted Ordinance No. approving this Agreement with Owners . L. The "Development Criteria" as defined and specified below implement the goals and policies of the City's General Plan and provide balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the City, and impose appropriate standards; and requirements with respect to land development and usage of The Property. M. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. This Agreement has undergone extensive review by the City's staff, the Planning Commission of the city, and the City Council and has been found to be fair, just and reasonable and in the best interest of the citizens of the City and the public health, safety and welfare. IN CONSIDERATION OF THE RECITALS AND THE MUTUAL COVENANTS AND CONDITIONS OF THIS AGREEMENT, the parties agree as follows: AGREEMSIIT 1. DEFINITIONS. 1. 1 "Agreement" is this Development Agreement. DSP27663/0ctobiiix 29. 1992 -4 1. 2 "Agreement Date" is the date this Agreement is executed by the City. 1 . 3 "CEQA" is the California Environmental Quality Act, Public Resources Code Section 21000, et seq. 1.4 "City" is the City of Palm Desert, California. 1.5 "County" is the County of Riverside, California. 1 . 6 "Development Criteria" are: (a) As to Assessor's Parcel Nos . : 653-250-005, 653-250- 006, 653-250-010, 653-250-014, 653-250-015, 653-250-016, 653-250- 017, 653-250-018, and 653-250-019j� _• The County of Riverside approved zoning (C-P-S and I-P) approved by CZ 5017 and permitted by EIR 166 as well as the conditions of approval for Tentative Commercial Parcel Nap 24255, amended no. 2, with respect to Assessor's Parcel Nos . 653-250-005, 653-250-006, 653-250-010, 653-250-014, 653-250-015, 653-250-016, 653-250-017, 653-250-018, and 653-250-019 approved by the County of Riverside on July 28, 1992; (b) As to Assessor's Parcel No. : $ W. (Property r of the B.H. Fortner Testamentary Trust: The County of Riverside Conditions of Approval with respect to Tentative Parcel Map No. 27419 (Fortner Trust) approved by the County on ; (c) The terms and conditions of any additional pre- annexation agreements entered into by the City and the Owners of the Properties specified on Exhibit A. (d) Subject to 1 .6(a) , (b) and (c) above, all of those ordinances, resolutions, codes, rules, regulations and official ➢SP27663/octabor 29, 1992 —5— policies of the City governing the development and use of the Property including, without :Limitation, the permitted uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings, the provisions for reservation of dedication of land for public purposes, and the design, improvement and construction standards and specifications otherwise applicable to the development of the Property, as they may now exist or as they may be changed from time to time by the City. 1. 7 "Effective Date" is that date which is the later to occur of the following: (a) the expiration date for the filing of a referendum petition challenging the ordinance approving this Agreement if no such petition is filed by such date, (b) the date that the results of a referendum election are declared approving this Agreement, if a referendum petition is filed within the applicable period, or (c) the date the Property is annexed into the City. 1 . 8 "Owners" are Rancho Mirage Industrial Park, Ruyen International Corp. , Henry Melby, Trustee of the B.H. Fortner Testamentary Trust, MacLeod Couch Land Co. , Bernard and Jeannett DeBonne nd Monterey Palms and their successors in interest to all or any part of the Property. 1.9 *Property" is all of the real property and any improvements thereon described in Exhibit "A" attached hereto and incorporated herein by this reference. 2 . TERM. 2 . 1 Unless earlier terminated as provided in this Agreement, this Agreement will commence on the date the Property is annexed DSP27663/0cwber 29, 1992 -6- 0 into the City and will continue for a period of ten ( 10) years thereafter. 2 pity trill exercise its best 'eprts to ,compete annexation of the> Propertyr 3 a aecrsrdaszc ; th. the t tms at�r3 conditions &f ttzls P,greement and aA� �ddi�.3,ona� pre�x�nexatla agF sste a tez i ' into between CEty L axsr,. A sac months fxOm the effectivr�`date of thi$ Agx�emant,, 3 . RESTRICTIONS ON DEVELOPMENT AND USE. The development and use of the Property, including the density or intensity of use, the maximum height and size of proposed buildings, building setback requirements, parking requirements and provisions for reservation or dedication of land for public purposes, will be governed by the Development Criteria as defined in Paragraph 1 .6 (a) (b) (c) and (d) above. The City acknowledges and agrees that the Development Criteria specifically permit the development and use of the Rancho Mirage Industrial Park - Ruyen International Corp. Property as allowed under the County's C-P-S and I-P zones (County of Riverside EIR No. 166 and CZ 5017) . The City further acknowledges and agrees that the Development Criteria specifically permit the division of Assessor's Parcel No. 653-250- 006 , owned by Rancho Mirage Industrial Park and Ruyen International Corp. , (consisting of one hundred sixty nine point and four tenths [ 169 .4] acres) into one hundred ( 100) commercial lots, subject to the conditions of County's Commercial Parcel Map No. 24255, amendment no. 2 . The City finally acknowledges and agrees that the Development Criteria specifically permit the division of that Property owned by Henry Melby as Trustee of the B.H. Fortner DSP27663/October 29, 1992 —7— Testamentary Trust legally described on Exhibit "A" as permitted by Riverside County Parcel Map No. 27419, subject to those conditions imposed by the County. Except with regard to those aspects of the development of the Property which are addressed in this Agreement, the parties acknowledge and agree that other aspects of the development of the Property, sYit i ik9 'i9igAdg , a3cc Ito& i�al �'vr ear y. pLAsw$ ` may require the exercise of discretion by the City and that those aspects of the development of the Property will be subject to the City's reasonable review and approval as set forth in the City's ordinances, resolutions, rules and regulations, as they existEkii+9 : #s ab�xOvtal.. `--- -- ..v 111 _., � {,> i Sate" IC peYiGesW�.r�f @ frleR silk csr+e 4 . DEVELOPMENT AND USE. 4 . 1 Rancho Mirage Industrial Park, Ruyen International Corp. and Henry Melby, Trustee of the B.H. Fortner Testamentary Trust will have the vested right to develop their Property to the extent covered by and in accordance with the Development Criteria and this Agreement. 4 . 2 Traffic lights are proposed to be installed by certain Owners at the intersection of Monterey Avenue and the roadway which the Owner MacLeod Couch Land Co. proposes to use as the principal access into their Property. Such access roadway is currently DSP27663/October 29, 1992 —8 D . designed to proceed in an East/West direction, to approximately the Easterly boundary line of the MacLeod Couch property and to thereafter proceed Northeasterly to intersect' Dinah Shore Drive at right angles . The area where such Northeasterly turn in the roadway is proposed is owned by Monterey Palms. The City agrees to oppose neither the placement of such traffic lights nor the installation of a left turn lane or lanes at such intersection with Monterey. The City, .however, shall not be responsible for the cost to install the traffic lights or left turn lane or lanes. 4 . 3 Dinah Shore Drive is proposed to be extended to the Northerly projection of Portola Drive, as required by the provisions of Parcel Map No. 24255. The City agrees that the MacLeod Couch access road may be designed so that it intersects with Dinah Shore Drive at the conjunction of said road with Dinah Shore Drive. The City shall not be responsible for the cost to extend Dinah Shore Drive. 4 . 4 Portola Avenue shall be constructed and extended at the expense of the City or other third parties other than Owners, from its present terminus to the Westerly terminus of Dinah Shore Drive as reflected the Conditions of Approval to the aforesaid Parcel Map No. 2� Said terminus is located at the Easterly boundary o"a Monterey Palms property Northerly of its South boundary. This #7W grid extension shall occur on or before the development of the property adjacent to the extended portion of Portola Avenue but #j evens ' fir consp e-. 4 krg 3taaOYtp M zaq 13u r ,7Pe I tat u rad; Y D9P27663/October 29, 1992 —9— t he ccntoi�c of approval fog arc2 Map455, ; It is agreed that the City may use any means in its discretion to fund the cost of the extension of Portola Avenue as called for in this paragraph so long as Owners are not required to fund this improvement eilzher dfrectl ors_: cirly thiecres9. f®sa nssessme t csr a by .other means � T,�--�� ,�-'�,;y, r-�- • �-a,.� .��,.� iti, j...v,� �7L.�..�..,-., 0-7 4 . 5 To the extent not: already accomplished, City shall prezone the Rancho Mirage Industrial Park - Ruyen International Corp. Property so that zoning proposed by the City shall conform essentially with the zoning which has been established by the County pursuant to Riverside County Change of Zone 5017 . 4 .6 The General Plan of: the City, as adopted by the City at the time of annexation, shall be consistent with all zoning permitted by the County's Change of Zone 5017 (C/Z 5017) , this Development Agreement and -any other pre-annexation agreement entered into between theCity, MacLeod ouch Land Co. , Bernard and Jeannett DeBonne add Monterey Palms. \ 4 . 7 . 7 iQ7G IN , City and Owners Henry Melby, Trustee of the B.H. Fortner Testamentary Trust, MacLeod Couch Land Co. , Bernard and Jeannett DeBonne and Monterey Palms all agree that City and such Owners may determine to enter into additional future pre-annexation agreements . City agrees to negotiate with such Owners, in good faith, with respect to such future pre-annexation agreements . Those agreements, if entered into, shall contain a term of ten ( 10) DSP27663/Octob r 29. 1992 -1 0- D years from the date the Property is annexed into the City, unless earlier terminated as provided in those agreements . 4 . 8 In connection with County's Parcel Map No. 24255 and County's Parcel Map No. 27419, upon annexation to the City, the City shall approve new parcel maps within ninety (90) days of completion of annexation proceedings, upon essentially the same terms and conditions as those maps approved by the County. lwo resetive to. aucti'=nea ilffid;:by the-:City. It is understood by the parties that the purpose of this paragraph is to give the developers of Parcel Map Nos. 24255 and 27419 a two- (2) y x initials period of time ';to develop their properties following completion of the annexation proceedings. , City than after es1r�t3on + F period tt true eEter annexetaLohs £ � is i� 1r�7�' :�$E�ttery '"xitSt� �e# 'Y�"s [x��a:•�=e�fi k viz ttrd 33iti� #13i �pfl . IT a,:a ,,:,...,a 4 Now. rh �r serve psi na fcx �,k a 10.1 AM a xA+re ' . aa)jstxexsrs t "' ♦ months after dr�pletion aE as�metx�a�t ��' a�� �,,,�� ��y �ro DSP27663/octabor 29, 1992 -11- would,i c azgod a Owners for' ttteso Id I3�e ad ust*0 t$ il+rnera rand �ge 3r $trial €Perk,..'Rn' tesry Megr Trustee" o'f the TT. Poxtaex Testae�ttiryf Trust w13 €iie . agglica3ona for these lot Lone. ac2justmetts within 45 daps after compet34n '©f annexation: S . COMPLIANCE. The City will periodically review this Agreement as provided in Section 65865 . 1 of the Government Code and the City Municipal Code, to ascertain Owners , good faith compliance with the provisions of this Agreement., s 1vgglt'; LB! be per3ad#c x vfevs� QW;z h shad a uux acsx :� , i si ar eYe�T- 7wQ $r and s bps $ X►eYiF15gSx" ,'"Cy'" .." s4' qa BII x�Ca QAS 4t G� udCtT7asRes _. cs� cNMI, r�E �1s �evle+ 6 . DEFAULT BY OWNERS. If the City does not find good faith compliance with the provisions of this Agreement by Owners, then the City will have all of the remedies which are provided in the City Municipal Code and will comply with all of the procedures which are provided in Section 65865. 1 of the Government Code and the City Municipal Code. mg t 2t F f T thisri �Y as eq tbNih . haslte` re�m$dles ia$ agatu $eia� 7 . DEFAULT BY THE CITY. If the City fails to perform any of its obligations as provided in this Agreement and fails to cure its nonperformance OSP27663/October 29, 1992 -12- 0 within 30 days after notice of nonperformance is given by Owners, then the City will be in default and Owners will have all of the remedies which are available to he the' 'M �nd�sridua��y r- ;n cc ectzvel'y at law or in equity; provided, however, that if the City's failure to perform cannot reasonably be cured within such 30 day period, then the City will not be in default of this Agreement if it commences to cure its nonperformance within such 30 day period and thereafter diligently and in good faith prosecutes such cure to completion. Without limiting the effect of the foregoing, the parties acknowledge and agree that the subject matter of this Agreement is uniquey^; sabdmeaesayaito �i9otcor6► t#sl _Owners, this Agreement may be specifically enforced. .:.� :. :.. , u Hµm �k'erN��� OR, xr QAyy 7its thi 8 r r 8 . INDEMNIFICATION. (a) Owners will defend, indemnify and hold the City and its elected officials, officers and employees free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any ebligatken whieh avises from the development ..a t..e a avt.c. 1 2...L tatlea ehl qa .tea.. freLm the any failure on the part of Owners to take any action which; required to take as provided in this Agreement; (ii-1) any action taken by D9P27663/October 29, 1992 —1 3— Owners which he-4-9 they aze prohibited from taking as provided in this Agreement and {iv}(iii;, any claim which results from any willful or negligent act or omission of Owners . (b) The City will defend, indemnify and hold Owners and their trustees, beneficiaries, shareholders, directors, officers and employees free and harmless from any and all loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any failure on the part of the City to take any action which it is required to take as provided in this Agreement, (ii) any action taken by the City which it is prohibited from taking as provided in this Agreement and (iii) any claim which results from any willful or negligent act or omission of the City. (c) Included in the scope of the foregoing indemnifications will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject. of the applicable indemnification and all of the associated legal fees and court costs. Without limiting the effect of the foregoing, the indemnifying party will have the right to defend against an, claim with respect to which it is indemnifying the other party, using legal counsel of its choice. 9 . SUPERSEDING STATE OR FEDERAL W. If any state or federal law or regulation which is enacted or adopted after the Effective Date of this Agreement or any other action of any governmental entity which is not under the City's control, prevents or precludes compliance with any provision of D6P27667/October 29, 1992 -14- • this Agreement, then such provision of this Agreement will be modified or suspended only to the extent and for the time it is necessary to achieve compliance with such law, regulation or other governmental action and the remaining provisions of this Agreement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. On the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance which removes the effect of the same on this Agreement, the provisions of this Agreement will be automatically restored to their full original effect and any amendment to this Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 10. SUCCESSORS AND ASSIGNS. All of the provisions of this Agreement will inure to the benefit of and will bind the parties and their respective successors and assigns and all other persons or entities which acquire all or any part of the Property. Without limiting the effect of the foregoing, Owners will have the right to assign any of their rights or delegate any of their obligations as provided in this Agreement to or for the benefit of any person or entity which owns or leases any part of the Property. 11. EQUITABLE SERVITUDES. D9P27663/October 29, 1992 -15- • All of the provisions of this Agreement will be enforceable as equitable servitudes and will constitute covenants running with the land as provided in the applicable law. 12 . NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of join venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners . 13 . NOTICES AND OTHER COMMUNICATIONS . All notices or other communications which are required or permitted to be given to the parties will be in writing and will be given either by personal service or by mailing the same by certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service, addressed as follows: CITY COPY CITY OF PALM DESERT Best, Best & Krieger 73-510 Fred Waring 39700 Bob Hope Drive, #312 Palm Desert, CA 92260 Rancho Mirage, CA 92270 Attn: Carlos Ortega Attn: Douglas S. Phillips Owners COPY Attn, Attn: If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it D6P27663/October 29, 1992 -16- J will be deemed given as of the date of receipt, rejection or return undelivered. Addressees to which notices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 13 . 14 . ESTOPPEL CERTIFICATES. At the request of either party, the other party will, within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, except as is expressly provided in such estoppel certificate and (c) no default in the performance of the requesting party's obligations as provided in this Agreement exists, except as is expressly provided in such estoppel certificate. 15 . APPLICABLE LAW. This Agreement will be construed and enforced as provided in California law. 16 . VENUE. Any legal action with respect to this Agreement will be brought in either Riverside Superior Court or in the United States District Court for the Central District of California. 17 . ATTORNEYS' FEES. If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in such action will be entitled to recover from the losing party all attorneys' fees, court costs and necessary disbursements in connection with such action. DSP27663/octobrr 29, 1992 -1 7- • 18 . PARAGRAPH HEADINGS . The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 19 . CONSTRUCTION. In all cases, the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. 20. SURVIVAL. Each and every covenant in this Agreement will survive the execution and delivery of this Agreement for the benefit of the parties and their successors and assigns. 21. CALENDAR PERIODS. All references in this Agreement to "years", "quarters" , "months" and "days" will be deemed to be to references to calendar years, quarters, months and days. 22 . SEVERABILITY. Every provision of this Agreement is and will be construed to be a separate and independent covenant. If any provision of this Agreement or the application of the same is, to any extent, found to be invalid or unenforceable, then the remainder of this Agreement or the application of such provision to circumstances other than those to which it: is invalid or unenforceable, will not be affected by the same and each provision of this Agreement will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to DSP27663/October 29, 1992 -1 8- this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 23 . FURTHER ASSURANCES. Whenever and as often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or property in order to achieve the intent of this Agreement. 24 . COVENANT OF GOOD FAITH. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 25. COUNTERPARTS. This Agreement may be executed in counterparts, each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 26 . INCORPORATION OF RECITALS. The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereof. Each recital of fact concerning the parties will be conclusive between them and such facts will be incontestable in the event of any dispute between them with respect to such facts . Neither party will introduce any evidence in a court or administrative proceeding which would in any way serve to dispute any such recited fact. DSP27667/October 29. 1992 -1 9 r y 27 . EXHIBITS. Any Exhibit to this Agreement is incorporated by reference as though fully set forth hereof. 28 . AMENDMENT. No amendment or waiver of any term of this Agreement will be binding on the City unless ZLnd until it has been approved and has become effective as provided in Section 65868 of the Government Code and pursuant to the City Municipal Code and Regulation, or on Owners, unless and until it has been executed by Owners . 29. RECORDATION. No later than 10 days after the Effective Date of this Agreement, the City will, at its cost, record this Agreement in the Official Records of the Riverside County Recorder, as provided in Section 65868 .5 of the Government Code and as provided by the City Municipal Code. 30 . AGREEMENT BY OWNERS RE NEGATIVE DECLARATION, NORTH SPHERE OF PREZONING. ANNEXATION OF OWNERS' PROPERTY INTO THE CITY OF PALM DESERT. Neither Petitioner nor Owners nor their agents, consultants, servants, attorneys or representatives shall in any way object to or take any actions whatsoever in opposition to or challenge the Negative Declaration for Cit;y's Case No. C/Z 92-1, the North Sphere Pre-zoning or the annexation of Petitioner's property or Owners' Property into the City of Palm Desert. Further, Petitioner and/or Owners at the request of City, shall take all reasonable steps to support the City's proposed annexation before any public body ➢6P27663/Octobor 29, 1992 -20- 1 including, but not limited to, the Local Agency Formation Commission. CITY CITY OF PALM DESERT By: By: ATTEST: By: SHEILA GILLIGAN, City Clerk City of Palm Desert APPROVED AS TO FORM AND SUBSTANCE: By: Douglas S. Phillips Deputy City Attorney OWNERS: RANCHO MIRAGE INDUSTRIAL PARR by Susco, a california Corporation, General Partner By: H. M. Peccorini, President RUYEN INTERNATIONAL CORP. By. H. M. Peccorini, Assistant Secretary (Signature Page Continues) HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST By: D6P27667/DctoWr 29, 1992 -21- 1 MACLEOD COUCH LAND CO. By: BERNARD DEBONNE JEANNETT DEBONNE �S9N�FE�-ph7�4g BY APPROVED AS TO FORM AND SUBSTANCE: Cynthia Ludvigsen Attorney for Owners r ftaac2ics, a �g Is�terssatifcsrtalF'; inc.: DSP27663/October 29, 1992 —2 2— r, Jr ORDINANCE NO. 695 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND MC PROPERTIES, A PARTNERSHIP, AND MACLEOD COUCH LAND COMPANY, A PARTNERSHIP, PERTAINING TO THE FUTURE DEVELOPMENT OF A 70 . 67 ACRE SITE ON THE EAST SIDE OF MONTEREY AVENUE, 2666 FEET SOUTH OF GERALD FORD DRIVE. CASE NO. DA 92-2 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the City Council of the City of Palm Desert, California, did on the 3rd day of December, 1992, hold a duly noticed public hearing to consider the request of MC Properties, A Partnership, and MacLeod Couch Land Company, A Partnership, to consider the above mentioned project; and WHEREAS, the planning commission did hold a duly noticed public hearing on this matter on December 1 , 1992 and has recommended approval of said development agreement; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89 , " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No. 683 , and no further documentation is necessary; 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 city council did find the following: 1 . That the development agreement is consistent with the provisions of Section 25 . 37 Development Agreements . NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows : 1 . That the above recitations are true and correct and constitute the findings of the city council in this case. 2 . That -the city council does hereby approve the Development Agreement, Exhibit 'A' , between the City of Palm Desert and MC Properties, A Partnership, and MacLeod Couch Land Company, A Partnership. ORDINANCE NO. 695 PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council, held on this day of , 1992, by the following vote, to wit: AYES: NOES : ABSENT: ABSTAIN: RICFL9RD S. KELLY, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California 2 Jclvl JI •A2r Uh V4V r EXHIBIT PIMANNEXAnON AGREEMENT THIS PRE-ANNEXATION AGREEMENT (hereinafter referred to as "Agreement") is made and entered into this _ day of December, 1992, by and between THE CITY OF PALM DESERT, a municipal corporation (hereinafter referred to as "City"); and MC PROPERTIES, a partnership, and MACLEOD-COUCH LAND COMPANY, a partnership (hereinafter collectively referred to as "Property Owner"), 1, RECITALS: This Agreement is predicated upon the following facts: 1.1 Pronerty Qwners, MC PROPERTIES and MACLEOD-COUCH LAND COMPANY are owners of the real property described on EXHIBIT "A" attached hereto and incorporated by reference (hereinafter "Property"), which real property is the subject matter of this Agreement. The Property consists of approximately 72 acres and is presently not within the boundaries of the City. 1.2 Intent of Parties. The parties desire to enter into this Agreement prior to annexation to provide for zoning, development standards, and guidelines which will be effective upon annexation. 1.3 Zsniug• The zoning for the Property shall be commercial/industrial use, as more specifically described in EXHIBIT "D" attached hereto and incorporated herein by this reference. 1.4 Mutual Agreement. The parties have mutually agreed to enter into this Agreement and proceedings have been taken in accordance with the City's rules and regulations. 1.5 City Council Findinga. The City Council has found that the Pre-Annexation Agreement is consistent with the City's general plan, as well as all other applicable policies and regulations of the City. L6 City Avproval, On December 17, 1992, the City Council adopted Ordinance No. approving this Agreement with Property Owner, 2. DEFINITIONS: In this Agreement, unless the context otherwise requires: 2.1 2Mjec is the development as represented by the Pre-Annexation Zoning (CZ-92-1) approved by the City on May 28, 1992, by Ordinance No. 683. 2,2 Prgpaty Owner: means the person, persons or entity having a legal or equitable interest in the real property as described in EXHIBIT "A" and includes Property Owner's successors in interest. 2.3 Real Prooertv: is the real property described in EXHIBIT "A," and shown on the map attached hereto as EXHIBIT "B" and incorporated herein by this reference. , M'9677.UA ANNEt.DLRl7MV LA M2 ; 2.4 Effective Date: is the date this Agreement is approved by the City Council as set forth in paragraph 1.6 above. 3. FXHMIT,S: The following documents are referred to in this Agreement, and attached hereto and are incorporated herein as though set forth in full: EXHIBIT DESIGNATION DESCRDMCj�j A Legal Description of Real ?roperty B Map Showing Property Location C Permitted Uses Square Footage Calculations D Zoning Designation 4. GENERAL PROVISIONS: 4.1 Duration of Ag;= ent. The term of this Agreement shall commence upon the Effective Date and shall expire ten (10) years thereafter, unless extended by written mutual agreement. 4.2 As ignmep1. The rights and obligations of Property Owner under this Agreement may be transferred or assigned, provided such transfer or assignment is made as a part of the transfer, assignment, sale or lease of all or a portion of the :Property. Any such transfer or assignment shall be subject to the provisions of this Agreement and the:control and limitations contained herein. During the term of this Agreement, any such assignee or transferee shall observe and perform all of the duties and obligations of Property Owner contained in this Agreement a9 such duties and obligations pertain to the portion of the Property so transferred or assigned. Property Owner shall give to the City a notice within thirty (30) days after any such sale, assignment or transfer. 4.3 Amendment or Cancellation of Agreement. This Agreement may be amended from time to time by the mutual consent of the parties hereto. The term "this Agreement" or "Pre-Annexation Agreement" herein shall include any such amendment properly approved and executed. 4.4 . City agrees that the zoning described in EXHI1 fr "D" shall remain in effect throughnut the term of this Agreement unless modified by mutual agreement of the parties hereto. 4.5 Enforcement. Unless amended or cancelled as provided in Subsection 4.3, this Agreement is enforceable by any party to it despite a change in the applicable subdivision or building regulations adopted by City which alter or amend the rules, regulations or policies governing density and design as they exist as of the effective date of this Agreement. MMV.UA AXM.DW7YMI I1M 2 4.6 Hold Harmless. Property Owner agrees to and shall hold the City, its officers, agents, employees and representatives harmless from liability for damage or claims or damage for personal injury including death and claims for property damage which may arise from the direct or indirect operations of Property Owner or those of its contractors, subcontractors, agents, employees or other persons acting on its behalf which relate to the Project. Property Owner agrees to and shall defend the City and its officers, agents, employees and representatives from actions for damages caused or alleged to have been caused by reason of Property Owner's activities in connection with the Project. This hold harmless agreement applies to all damages and claims for damages suffered or alleged to have been suffered by reason of the operations referred to in this paragraph, regardless of whether or not the City prepared, supplied or approved plans or specifications, or both, for the Project. Property Owner further agrees to indemnify, hold harmless, pay all costs and provide a defense for the City in any action by a third party challenging the validity of the Agreement. 4.7 Binding Effect of Agreement. The burdens of this Agreement bind and the benefits of the Agreement inure to the parties' successors in interest. 4.8 Notices, All notices, demands and correspondence required or provided for under this Agreement shall be in writing and delivered in person or dispatched by certified mail, postage prepaid. Notice required to be given to City shall be addressed as follows: The City of Palm Desert 73510 Fred Waring Drive Palm Desert, California 92260 ATTENTION: City Manager and Assistant City Manager and Director of Community Development Notices required to be given to Property Owner shall be addressed as follows: MacLeod-Couch Land Company 777 South Pacific Coast highway Suite 204 Solana Beach, California 92075 ATTENTION: Myron T. MacLeod rvssn.u��err�c.nuvnes nton 3 JCIYi DI •nci vA c ..r✓.c. .c. .. .. ,...n . ,.. ...... ... . } With a copy to: SCHLECHT, SHEVLIAI & SHOEMIERGER, A Law Corporation got East Tahquitz Canyon Drive, #100 Palm Springs, California 92262 ATTENTION: James M. Schlecht, Esq. A party may change its address by giving notice in writing to the other party. Thereafter, notices, demands and other pertinent correspondemce shall be addressed and transmitted to the new address. 5. CONFLICTS OF LAW: 5,1 Conflict of City and State or Federal Laws. In the event that state or federal laws or regulations enacted after this Agreement have been entered into or the action or inaction of any other affected governmental jurisdiction prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits appraved by the City, the parties shall: 5.1.1 Notice and Copies: provide the other party with written notice of such state or federal restriction, and provide a copy of such regulation or policy and a statement of conflict with the provisions of this Agreement; 5.1.2 hfodifla&gon Conference : within thirty (30)days meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. 5.2 Council Hearings. Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or state taw or regulation upon this Agreement, the matter shall be scheduled for hearing before the Council. Ten (10) days written notice of such hearing shall be given. The Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation. Property Owner, at the hearing, shall have the right to offer oral and written testimony. Any modification or suspension shall be taken by the affirmative vote of not less than a majority of the authorized voting members of the Council. Any suspension or modification may be subject to judicial review in conformance with subsection 8.3 of this Agreement. 5.3 CggRmWon in Securing Permits. The City shall cooperate with the Property Owner in the securing of any permits which may be required as a result oi'such modifications or suspensions. Property Owner shall be responsible for the payment of the costs and fees for such permits. MM77.11A.A21M.DLWAW111M 4 6. DEVELDINENT OF THE PROPERTY: 6.1 Permitted Uses. For the term of this Agreement, the Property may be developed for commercial and industrial uses as more particularly set forth in the EXHIBIT "C." 6.2 Timing of Devel ment. The parties acknowledge that Property Owner cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Property Owner, such as market orirattation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465 that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that Property Owner shall have the right to develop the Property in such order and at such rate and at such times as Property Owner deems appropriate within the exercise of its subjective business judgment. 6.3 rhangEs 2nd Amendment . The parties acknowledge that refinement and further development of the Project will require subsequent development approvals and may demonstrate that changes are appropriate and mutually desirable in the existing development approvals. In the event Property Owner finds that a change in the existing development approvals is necessary or appropriate, Property Owner shall apply for a subsequent development approval to effectuate such change and City shall process and act on such application in accordance with the existing Land Use Regulations. Unless otherwise required by law, a change to the existing development approvals shall be deemed "minor" and not require an amendment to this Agreement provided such change does not: (a) Alter the permitted uses of the Property as a whole; or (b) Increase the density or intensity of use of the Property as a whole; or (c) Increase the maximum height and size of permitted buildings; or (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or (e) Constitute a project requiring a subsequent or supplemental Environmental Impact Report pursuant to Section 21166 of the Public Resources Code; or 6.4 Rules, Sauladnns- Official Policies. The City rules, regulations, ordinances, laws, general plans, and official policies governing development, density, permitted uses, growth management, environmental consideration, and design criteria for purposes of this Agreement shall be those in force and effect upon the commencement of the term of this Agreement, provided that the City shall not alter the zoning designation set forth on BXHIBIT "D." w9M.uA ANW1X,DLRA WLl1®r 5 otiYi tlY ;Xerox , e (ecop;ar iucu —c»—ac o•acrm O oJrY++OY' J+»+++ ,» » . y , r 6.4.1 ,Application of W=uenfly EnRctAd Rules. Regulations Etc. Except as set forh in Section 4.5, the City may, hereafter, during the term of this Agreement, apply only such newer City enacted or modified rules, regulations, ordinances, laws, general or specific plans, and official policies which are not in conflict with those in effect on the date of this Agreement and application of which would not prevent development in accordance with subsections 6.1 and 6.2. However, this section shall not preclude the application to the Property of changes in City laws, regulations, plans or policies specifically mandated and required by charges in state or federal laws or regulations. In such an event, the provisions of Section 5 of this Agreement are applicable. 6.4.2 Application of Subacguently.Revised Fees and/or Improvement Standards. Application, processing and inspection fc=, improvement standards as set forth in the City subdivision regulations and construction standards and specifications that are revised during the term of this Agreement shall apply to the Project pursuant to this Agreement provided that: (a) such fees, standards and specifications apply to all public works within the City, (b) their application to the Property is prospective only as to applications for building and other development permits or approvals of tentative subdivision maps not yet accepted for processing, and (c) their application would not prevent development in accordance with subsections 6.1 and 6.2. 7, DEVELOPMENT PROGRAM: 7.1 City. The City hereby agrees that it will accept from Property Owner for processing and review all development applications for development permits or other entitlements for the use of the Property in accordance with this Agreement provided that said applications are submitted in accordance with City rules and regulations. The City waives any requirement for minimum site size otherwise provided in the zoning set forth in 1:XEIIBIT "D." 7.2 Duty to Pay Develonmenr Fees. Property Owner hereby agrees to pay the requisite development fees at the time such fees are customarily required by the City, 7.3 Cooner�n in InsWl_ation of Trams signal. Traffic lights are proposed to be installed by certain owners at the intersection of Monterey Avenue and the roadway which the Property Owner proposes to use as the principal access into their property. Such access roadway is currently designed to proceed in an cast/west direction, to approximately the easterly boundary line of the Property Owner's property and to thereafter proceed northeasterly to intersect Dinah Shore Drive at a right angle. The area where such northeasterly turn in the roadway is proposed is owned by Monterey Palms. The City agrees to cooperate in good :faith to obtain the placement of such traffic lights and the installation of a left turn lane or lanes at such intersection with Monterey. If the City requests the installation of the traffic signal prior to the time the Property, or some portion thereof, is developed. the City shall be responsible for the cost to install the traffic lights and left turn lane or lanes, except that Property Owner agrees to participate in an assessment district for such installation if the City elects to form one. Otherwise, the Property Owner shall be responsible for such costs in all other events,,including development of the Property. wssn.uA ANNEX.01-RIP I1IM 6 , 7A Subdivision. City agrees property owner may divide the Property into lots and/or parcels not exceeding ten (10) in number without the necessity of filing a Specific Plan on the Property. 8. ENFORCED DELAY, DEFAULT REMEDIES AND TERMINATION: 8.1 Ceneral Provisions, In the event of default or breach of this Agreement or of any of its terms or conditions, the party alleging such default or breach shall give the breaching parry not less than thirty (30)days Notice of Default in writing. The time of notice shall be measured from the date of certified mailing. The Notice of Default shall specify the nature of the alleged default and, where appropriate, the manner and period of time in which said default may be satisfactorily cured. During any period of curing, the party charged shall not be considered in default for the purposes of termination or institution of legal proceedings. If the default is cured, then no default shall exist and the noticing party shall take no further action. 8.1.1 Qoon to Institute I dal ProceWings or to TerminatL. After proper notice and the expiration of said cure period, the noticing party to this Agreement, at its option, may institute legal proceedings pursuant to Subsection 8.5 hereof. 8.1.2 Waiver. Failure or delay in giving Notice of Default pursuant to this section shall not constitute a waiver of any default. Except as otherwise expressly provided in this Agreement, any failure or delay by the other party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies or deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 8.2 Enforced sedy. Extensicm of Time of Performance, In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, casualties, acts of Clod, governmental restrictions imposed or mandated by other 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 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. Such an extension shall commence to run from the time of commencement of cause, 8.3 Institution not Legal Action, In addition to any other rights or remedies, either party may institute legal action to clue, correct or remedy any default, to enforce any covenants or agreements herein or to Ooin any threatened or attempted violation thereof; to recover damages for any default; or to obtain any remedies consistent with the purposes of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, or in the Federal District Court in the Central District of California. rv9an.trtnxrr®c.uuunes utan 7 8.4 Applicable aws/A orneA' Fees. This Agreement shall be construed and enforced in , accordance with the laws of the State of California. Should any action be brought in any court of competent jurisdiction, the prevailing party in such action shall be entitled to recover all attorneys' fees, court costs and necessary disbursements in connection with such litigation. 8.5 Coasts of Collection. In the event that it becomes necessary for the prevailing party of any action contemplated in paragraph 8.4 to enforce a judgment rendered against the losing party, the prevailing party shall be entitled to recover from the losing party the costs incurred in enforcing such judgment including, but not limited to attorneys fees. This provision is intended to be severable from the other provisions of this Agreement and is intended to survive any such judgment and is not to be deemed merged into such judgment. 9. ENCUMBRANCES AND RELEASES CIN REAL PROPERTY: 9.1 Discretion to Encumber. The parties hereto agree that this Agreement shall not prevent or limit Property Owner, in any manner, at Property Owner's sole discretion, from encumbering the Property or any portion of any improvement therecm by any mortgage, deed of trust or other security device securing financing with respect to the Property. City acknowledges that the lenders providing such financing may require certain modifications and City agrees, upon request, from time to time, to meet with Property Owner 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 mortgagees or trust deed beneficiaries of the Property shall be entitled to the following rights and privileges. 9.2 Entitlement to Written Notice of yh. The mortgagee of a mortgage or beneficiary of a deed of trust, and their successors and assigns, or any mortgage or deed of trust encumbering the Property, or any part thereof, which mortgagee, beneficiary, successor or assign has requested in writing to the City, shall be entitled to receive written notification from the City of any default by Property Owner in the performance of Property Owner's obligations under this Agreement which is not cured within thirty (30) days. 9.3 ProMM Subject to Pro Rats Claims. Any mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure:of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the property, or put thereof, subject to any pro rats claims for payments or charges against the Property, or part thereof, secured by such mortgage which accrue prior to the time such mortgagee comes into possession of the property, or part thereof. 9.4 Releams. City hereby covenants and agrees that upon payment of all fees required under this Agreement with respect to the Property, or any portion thereof, City shall execute and deliver to County Recorder appropriate release or releases of further obligations in form and substance acceptable to the County Recorder or as may otherwise be necessary to effect such tetease. M19M.LA ANNaX.OLYIlM9lIJIM 8 r ' 10. MISCELLANEOUS PROVISIONS: 10.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, and "may" is permissive. If there is more than one signer of this Agreement, their obligations are joint and several. The time limits set forth in this Agreement may be extended by mutual consent of the parties in accordance with the procedures for adoption of an agreement. 10.2 Sey=bility, The parties hereto agree that the provisions are severable. If any provision of this Agreement is held invalid, the remainder of this Agreement shall be effective and shall remain in full force and effect unless amended or modified by mutual consent of the parties. 10.3 Entire Agreement Waivers and Amen menu. This Agreement constitutes the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiation or previous agreements between the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the City or of Property Owner. All amendments hereto must be in writing signed by the appropriate authorities of the City and Property Owner. Upon the completion of performance of this Agreement or its earlier revocation and termination, a statement evidencing said completion or revocation shall be signed by the appropriate agents of Property Owner and the City. 10.4 Proiect is a Priv9teU9d2X&% IIe. It is specifically understood and agreed to by and between the parties hereto that: (a) the subject development is a private development; (b) the City has no interest or responsibilities for or duty to third parties concerning any improvements until such time and only until such time that the City accepts the same pursuant to the provisions of this Agreement or in connection with the various subdivision map approvals; (c)Property Owner shall have full power over and exclusive control of the Property subject only to the limitations and obligations of Property Owner under this Agreement; and (d) the contractual relationship between the City and Property Owner is such that Property Owner is an independent contractor and not an agent of the City. 10.5 Tn,��,,,,�ration of Recitals. The recitals are specifically incorporated into this Agreement. IN WITNESS WHEREOF, this Agreement has been executed by the parties on the day and year first above written, as authorized by Resolution No. of the City Council. "CITY" _ THE CITY OF PALL ERT, a municipal corporati BY (f`� City Manager MNn.vA_ecnmt.at.ans*Mon 9 t I HEREBY APPROVE the form and lepaity of the foregoing Agreement this day of December, 1992. OL DAVID J. ERWIN, Ci omey "PROPFRTY 0 MC PROPERT a partnership BY BY MACLEOD-COUCH LAND C DU PANY, a partnership BY AO BY wsen.uA_ANM.auunearuiw: 10 EI MIT "A" LEGAL DESCRIPTION THE LAND REFERRF.D TO REREIN IS SITUATED IN THE UNINCORPORATED AREA OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOI LOWS! PARCEL1 THE NORTHERLY 455 FEET OF THE SOUTHWEST QUARTER OF SECTION 29, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY APPROVED FEBRUARY 29, 1856; EXCEPTING THEREFROM 50 PERCENT OF ALL OIL, GAS, AND OTHER HYDROCARBON SUBSTANCES AND ALL OTHER MINERALS UNDERLYING SAID LAND AS RESERVED IN DEED FROM CI4ESTER W. FROUDE AND GLADYS R. FROUDE, HUSBAND AND WIFE, TO BLANCHE STEPHEN, AN UNMARRIED WOMAN; ALSO EXCEPTING THEREFROM THE WESTERLY 55 FEET THEREUV (MEASURED AT RIGHT ANGLES) CONVEYED TO THE COUNTY OF RIVERSIDE BY DOCUMENT RECORDED TULY 25, 1995, AS INSTRUMENT NO. 163790 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. PARCEL 2: THE SOUTHWEST QUARTER OF SECTION 29, TOWNSHIP A SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY; EXCEPTING THEREFROM THE SOUTH 1470 FEET AND THE NORTH 455 FEET THEREOF; EXCEPTING THEREFROM THE WESTERLY 55 FEET THEREOF (MEASURED AT RIGHT ANGLES CONVEYED TO THE COUNTY OF RIVERSIDE BY DOCUMENT RECORDED IDLY 25, 1985, AS INSTRUMENT NO. 163781 OF OFFICIAL RECORDS Or RIVERSIDE COUNTY, CALIFORNIA, E KMIT "A" WN77.1'A ANfiIIX.DL➢1RMII IM 1 �\ ioz is D i =. S�tE7�cT A�coPatr)• ��;,.��:�.: - - —I�f 1 ! 4 ) I ................ .. YY� 4 1• 0 I y ' 1 1 I ,I 4 1 11 L-uUS2 e EXHIBIT "01 PERMITTED USES SQUARE FOOTAGE CALCULATIONS HETAII, Total Retail Buildings 287,100 Square Feet MOTEL 6 Floors ® 15,600 Square Feet (184 Rooms) 93,600 Square Feet OFF 11 Buildings ® various sizes 326,200 Square Feet PARKING TRSy UCTURE 2 Levels Q 60,000 Square Feet 120,000 Square Feet LIGHT INDUSTRIAL 11 Buildings ® various sizes (I story with mezzanine) 317,867 Square Feet 7.5% Buffer 85,857 Square Feet TOTAL 1,230,624 Square Feet EXHIBIT "C" Atnen.»��rn+IDc.DWlMaii�ovl 1 A EXHIBIT "D" &)NING PLANNED COMMUNITY DEVELOPMENT CHAPTER 25-23 PALM DESERT NfUNICIPAL CODE INCLUDING USES ALLOWED IN THE FOLLOWING ZONES: PC I, PC2, PC3, PC4, 0-P AND SI (SERVICE INDUSTRIAL DISTRICT) EXHIIT T" MI%77.1/A ANNW,bLL7MlllJl ➢I c ORDINANCE NO. 694 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND A.J. LOU AKA ALYCE LAZAR PERTAINING TO THE FUTURE DEVELOPMENT OF A 75 ACRE SITE LOCATED ON THE NORTH SIDE OF DINAH SHORE DRIVE. CASE NO. DA 92-1 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the City Council of the City of Palm Desert, California, did on the 3rd day of December, 1992, hold a duly noticed public hearing to consider the request of A.J. Lou aka Alyce Lazar to consider the above mentioned project; and WHEREAS, the planning commission did hold a duly noticed public hearing on this matter on December 1, 1992 and has recommended approval of said development agreement; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89 , " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No . 683, and no further documentation is necessary; 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 city council did find the following: 1 . That the development agreement is consistent with the provisions of Section 25 . 37 Development Agreements . NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows : 1 . That the above recitations are true and correct and constitute the findings of the city council in this case. 2 . That the city council does hereby approve the Development Agreement, Exhibit 'A' , between the City of Palm Desert and A.J. Lou aka Alyce Lazar. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council , held on this day of , 1992, by the following vote, to wit: AYES: -- NOES : ABSENT: ABSTAIN: RICHARD S. KELLY, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California � 1 Y RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: PAUL T. SELZER, ESQ. BEST, BEST & KRIEGER 600 E. TAHQUITZ CANYON WAY PALM SPRINGS, CALIFORNIA 92262 DEVELOPMENT AGREEMENT ENTERED INTO BETWEEN THE CITY OF PALM DESERT AND ALYCE LAZAR DE030655.11/06/92 ID(HISIT TABLE OF CONTENTS RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. TERM. . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3. RESTRICTIONS ON DEVELOPMENT AND USE. . . . . . . . . . . . . . . . . . . . . . 5 4. DEVELOPMENT AND USE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 5. DEVELOPMENT IMPACT FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 6. UNDERGROUNDING OF UTILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 7. ACCESS TO PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8. THIRD PARTY PERMITS AND APPROVALS AND UTILITIES. . . . . . . . . . . 9 9 PUBLIC IMPROVEMENTS AND SERVICES. . . . . . . . . . . . . . . . . . . . . . . . 10 10. COMPLIANCE. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 11. DEFAULT BY LAZAR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 12. DEFA ULT BY THE CITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 14. SUPERSEDING STATE OR FEDERAL LAW. . . . . . . . . . . . . . . . . . . . . . . 13 15. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 16. EQUITABLE SERVITUDES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 17. NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. . . . . . . 14 18. NOTICES AND OTHER COMMUNICATIONS. . . . . . . . . . . . . . . . . . . . . . . 14 y 19. ESTOPPEL CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 20. APPLICABLE LA W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 21. VENUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 M30655:11/04/92 e • 22. ATTORNEYS' FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 23. PARAGRAPH HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 24. CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 25. SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 26. CALENDAR PERIODS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 27. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 28. FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 29. COVENANT OF GOOD FAITH.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 30. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 31. REPRESENTATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 32. INCORPORATION OF RECITALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 33. EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 34. AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 35. RECORDA TION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 DE030655:11/04/92 DEVELOPMENT AGREEMENT THIS DEVELOPMENT ("Agreement") is entered into on 1992 , between ALYCE LAZAR aka A.J. LOU, a married woman, as her sole and separate property ("Lazar") , and the CITY OF PALM DESERT, a municipal corporation organized and existing under the laws of the State of California (the "City") . Lazar and the City are sometimes collectively referred to herein as 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 65864-65869. 5 ("Development Agreement Law") authorize the City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and reducing the economic costs of such development. C. Pursuant to Government Code Section 65865, the City has adopted rules and regulations establishing procedures and requirements- for consideration of development agreements. D. . Lazar is the owner of the real property described on Exhibit "A", attached hereto and incorporated herein by this reference (the "Property") . The Property is currently located DE030655:11/04/92 i within the unincorporated area of Riverside County. The City has initiated proceedings for 'the annexation of the Property 8 (Annexation No. 32 Palm Desert:) into the corporate boundaries of the City in accordance with the Cortese-Knox Act (Government Code Section 56000, et seq. ) , has certified and approved a negative declaration pursuant to the California Environmental Quality Act for pre-zoning, and has approved certain pre-annexation zoning for the Property (C/Z 92-1) . Such annexation proceedings will be completed following approval of this Agreement, and this Agreement shall not be effective until such time as the annexation proceedings are completed. E. The Property is currently zoned for high intensity industrial uses under the County's Land Use Ordinance and General Plan. Prior to approving such industrial zoning, the County performed all required environmental analysis in accordance with CEQA. F. Lazar intends to use the Property for commercial and/or for industrial uses, and seeks certainty in the approval of the commercial and industrial use and development of the Property. G. In partial consideration of Lazar's support for the annexation of the Property into the City, the City requested Lazar to consider entering into this Agreement relating to the Property and proceedings have been taken in accordance with the Development Agreement Law and the City's rules and regulations. H. The City Council has found that this Agreement is consistent with the City's General Plan, as amended (the "General Plan") , and any applicable Specific Plan. DPA0655:11/04/92 -2- , I. On , 199_, the City Council of the City adopted Ordinance No. approving this Agreement with Lazar. J. The Development Criteria implements the goals and policies of the City's General Plan and provides balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the City and to impose appropriate standards and requirements with respect to land development and usage. K. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. This Agreement has undergone extensive review by the City's staff, the Planning Commission of the City, and the City Council and has been found to be fair, just and reasonable and in the best interest of the citizens of the City and the public health, safety and welfare. IN CONSIDERATION OF THE RECITALS AND THE MUTUAL COVENANTS AND CONDITIONS OF THIS AGREEMENT, the parties agree as follows: 1. DEFINITIONS. 1. 1 "Agreement" is this Development Agreement. 1. 2 "Agreement Date" is the date this Agreement is executed by the City. 1. 3 "CEQA" is the California Environmental Quality Act, Public Resources Code Section 2100, at se . orn30655:77/04/92 _3- 1.4 "City" is the City of Palm Desert, California. 1. 5 "County" is the County of Riverside, California. 1.6 "Development Criteria" are all of those ordinances, resolutions, codes, rules, regulations and official policies of the City governing the development and use of the Property as of the Agreement Date, including, without limitation, the zoning approved by the City as part of the annexation of the Property to the City, the permitted uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings, the provisions for reservation of dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. Specifically, but without limitation, such Development Criteria includes the Amendment to the General Plan adopted by the City Council on 19_, as Oro mace No. , and Zone Change. adopted by the City Council on , 19 , by Ordinance No. To the extent any of the foregoing are amended from time to time with the consent of Lazar, the Development Criteria shall include such matters as so amended. Notwithstanding the immediately preceding sentence, if this Agreement is required by law to be amended in order for the Development Criteria to include such amendments, "Development Criteria" shall not include such amendments unless and until this Agreement is so amended. 1.7 "Effective Date" is that date which is the later to occur of the following: (a) the expiration date for the filing of a referendum petition relating to this Agreement if no such petition DE030655:11/D4/92 -4- is filed by such date, (b) the date that the results of a referendum election are declared approving this Agreement if a referendum petition is filed within the applicable period, or (c) the date the Property is annexed into the City. 1.8 "Lazar" is Alyce Lazar, a married woman as her sole and separate property, and her successors in interest to all or any part of the Property. 1.9 "Property" is all of the real property and any improvements thereon described in Exhibit "A" attached hereto and incorporated herein by this reference. 2 . TERM. Unless earlier terminated as provided in this Agreement, this Agreement will commence on the Ef�Cective Date and will continue until December 31, 2012 . 2� Y:S 3 . RESTRICTIONS ON DEVELOPMENT AND USE. The development and use of the Property, including the density or intensity of use, the maximum height and size of proposed buildings, building setback requirements, parking requirements and provisions for reservation or dedication of land for public purposes, will be governed by the Development Criteria as the same exists on the Agreement Date. The City acknowledges and agrees that the Development Criteria specifically permits the use of the Property for all commercial developments and uses or other uses or developments permitted in the PC planned commercial district, regional center .zone (PC 3) , provided for in the City's Municipal Code as of the Agreement Date. Notwithstanding the foregoing, the City and Lazar acknowledge and agree that Lazar intends to develop DE030655:11/04/92 -5- and use all or a portion of the north-half of the Property for industrial uses and developments. Accordingly, Lazar and the City contemplate that Lazar may make application at some future date for modification of the planned commercial district zoning on the Property, to the extent necessary and applicable; to permit industrial uses and developments on all or a portion of the north- half of the Property. The City acknowledges that the use of all or a portion of the north half of the Property for industrial uses and developments is consistent with the General Plan and the City will, subject to all requirements of the law and local ordinances, expeditiously process any request by Lazar to change all or a portion of the north-half of the Property to permit industrial uses and developments. Except with regard to any aspect of the development of the Property which is addressed in this Agreement including, without limitation, Development Impact Fees (as defined in Section 5) and Public Improvements (as defined in Section 8) , the parties acknowledge and agree that certain specific aspects of the development of the Property pursuant to this Agreement will require the exercise of discretion by the City and that those aspects of the development of the Property will be subject to the City's reasonable review and approval as set forth in subsection 4 .2 and in the City's ordinances, resolutions, rules and regulations, as they exist from time to time; provided, however, that those ordinances, resolutions, rulers and regulations are consistent with the Development Criteria and this Agreement and provided further DE030655:11/04/92 -6- that the City exercises its discretion in a manner which is consistent with this Agreement. 4 . DEVELOPMENT AND USE. 4 . 1 Lazar will have the vested right to develop the Property in accordance with the Development Criteria and this Agreement, without regard to future ordinances, resolutions, rules, regulations and policies of the City or referenda of the voters of the City including, without limitation, those with respect to moratoriums for utility service, other than ordinances, resolutions, rules, regulations and policies of the City which limit or condition the rate, timing or sequencing of development of the Property and which are required solely as a result of then existing shortages of utility service capacity or facilities. . 4.2 On the request of Lazar from time to time, the City will accept applications for, diligently process and issue, in accordance with the Development Criteria, any land use approvals and permits, subdivision approvals, building permits (including, without limitation, building permits for public improvements) , certificates of occupancy, business licenses and other permits which are necessary for the development or use of the Property in accordance with this Agreement, on payment of (i) the City's usual and customary fees and charges which are in effect as of the Agreement_Date, • to cover its costs of processing any such applications and issuing any such approvals, permits and certificates ("Processing Fees and Charges") , and (ii) the Development Impact Fees (as defined in Section 5) , at the time that DE030655:11/04/92 -7- " I the Processing Fees and Charges and the Development Impact Fees are normally payable as provided in the Municipal Code of the City. 5. DEVELOPMENT IMPACT FEES. 5. 1 "Development Impact Fees" . The total development impact fees, including traffic mitigation fees, drainage fees, sewer connection fees, construction taxes and all other applicable development impact or linkage assessments, fees and charges which will be imposed on Lazar with respect to the Property (collectively "Development Impact Fees") shall be those in force and effect as of the Agreement Date; provided, however, this section shall not be construed to limit the authority of the City to increase the amount of the Development Impact Fee on a uniform city-wide basis so long as the amount of any increase, fee or;' charge after the Effective Date of this Agreement shall not exceed the increase in the reasonable cost of providing the improvement or service for which the fee or charge is imposed. The City also will not impose on or exact from any subsequent owner, developer, lessee or occupant of the Property, or any part thereof, any fees, taxes, charges or other impositions in substitution of any of the Development Impact Fees. 5.2 The parties agree that nothing in this Section 5 will be deemed to prohibit or limit in any way the imposition of fees by governmental agencies which are not sponsored by or under the control of the City including, without limitation, the State of California and the federal government of the United States. DE030655:11/04/92 -H- J D i 6. UNDERGROUNDING OF UTILITIES. The City shall not impose or reach agreement with any other governmental jurisdiction to impose on Lazar at any time during the term of this Agreement, in connection with the development of the Property, a requirement or condition that Lazar underground or pay for the undergrounding of any electrical transmission lines, telephone lines or related poles or structures existing or hereafter constructed within the south half of the right-of-way of Dinah Shore Drive. 7. ACCESS TO PROPERTY The City acknowledges and agrees to allow three points of full access (left and right turn in and out) to the Property from Dinah Shore Drive. Such points of full access shall include the existing signaled access at the east boundary line of the Property, a full access point at the west boundary line of the Property, and a full access point at or near the mid-point of the Property. In addition to the full access points described above, the City also shall allow right in/right out-type access points along Dinah Shore Drive. In the event Lazar is required to pay for all or part of the costs of a signal at either or both of the two full access points in connection with the development of the Property, Lazar shall receive a credit in the amount of her signalization costs against any signalization fees otherwise imposed by the City. 8. THIRD PARTY PERMITS AND APPROVALS AND UTILITIES. The City will use all appropriate efforts to assist Lazar or any developer or user of a portion of the Property in obtaining all other permits and approvals which are required by governmental DE030655:11/06/92 -9- entities other than the City, which have jurisdiction over the ' development or operation of the Property, and all utility connections and services including, without limitation, electrical, gas, telephone, cable television, which are required for the development or operation of the Property. 9. PUBLIC IMPROVEMENTS AND SERVICES. Lazar shall not be required by the City to construct any public improvements or pay or make any dedications or reservations for any public improvements with respect to the Property until, and in connection with, the development of the Property or a portion thereof by Lazar. Further, if only a portion of the Property is developed at a particular time, then only those public improvements, dedications, or reservations with respect to and adjacent to the developed portion of the Property shall be required by the City; provided, however, that non-adjacent public improvements may be required by the City in connection with the development of all or a portion of the Property if such public improvements are required to mitigate impacts identified in a traffic study done by the City with respect to the portion of the Property to be developed. At: no time shall Lazar be required to construct any public improvements or peiy or make any dedications or reservations for any public improvements with respect to the Property on the south half of Dinah Shore Drive. Further, the City shall not, without the prior written consent of Lazar, include the Property within any assessment district, community services district or community facilities district formed pursuant to the Landscaping and Lighting Act of 1972, the Mello Roos Community DE030655:11/04/92 -1 0- J A Facilities Act of 1982 , or any successor statutes or other bond or assessment acts adopted in connection with the development or maintenance of public improvements or with the supply of community or public services provided to other parts of the City without special charge or assessment. 10. COMPLIANCE. The City will periodically review this Agreement as provided in Section 65865. 1 of the Government Code and Section 25. 37 . 070 of the Municipal Code, to ascertain Lazar's good faith compliance with the provisions of this Agreement. 11. DEFAULT BY LAZAR. If the City does not find good faith compliance with the provisions of this Agreement by Lazar then the City will have all of the remedies which are available to it at law or in equity and will comply with all of the procedures which are provided in Section 65865. 1 of the Government Code. 12. DEFAULT BY THE CITY. If the City fails to perform any of its obligations as provided in this Agreement and fails to cure its nonperformance within 30 days after notice of nonperformance is given by Lazar, then the City will be in default and Lazar will have all of the remedies which are available to her at law or in equity; provided, however, that if the City's failure to perform cannot reasonably be cured within such 30 day period, then the City will not be in default of this Agreement if it commences to cure its nonperformance within such 30 day period and thereafter diligently and in good faith prosecutes such cure to completion. Without DE030655:11/04/92 -1 1- limiting the effect of the foregoing, the parties acknowledge and 1 agree that the subject matter of this Agreement is unique and that money damages may be inadequate to compensate Lazar and therefore, at the election of Lazar, this Agreement may be specifically enforced. 13 . INDEMNIFICATION. (a) Lazar will defend, indemnify and hold the City and its elected officials, officers and employees free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any obligation which arises from the development of the Property including, without limitation, obligations for the payment of money for material and labor; (ii) any failure on the part of Lazar to take any action which she is required to take as provided in this Agreement; (iii) any action taken by Lazar which she is prohibited from taking as provided in this Agreement and (iv) any claim which results from any willful or negligent act or omission of Lazar. (b) The City will defend, indemnify and hold Lazar and her trustees, beneficiaries, shareholders, directors, officers and employees free and harmless from any and all loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any failure on the part of the City to take any action which it is required to take as provided in this Agreement, (ii) any action DE030655:11/04/92 -12 a taken by the City which it is prohibited from taking as provided in this Agreement and (iii) any claim which results from any willful or negligent act or omission of the City. (c) Included in the scope of the foregoing indemnifications will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject of the applicable indemnification and all of the associated legal fees and court costs. Without limiting the effect of the foregoing, the indemnifying party will have the right to _defend against any claim with respect to which it is indemnifying the other party, using legal counsel of its choice. 14 . SUPERSEDING STATE OR FEDERAL LAW. If any state or federal law or regulation which is enacted or adopted after the Effective Date of this Agreement or any other action of any governmental entity which is not under the City' s control, prevents or precludes compliance with any provision of this Agreement, then such provision of this Agreement will be modified or suspended only to the extent and for the time it is necessary to achieve compliance with such law, regulation or other governmental action and the remaining provisions of this Agreement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. on the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance which removes the effect of the same on this DE030655:11/04/92 -1 3- 1 • Agreement, the provisions of this Agreement will be automatically restored to their full original effect and any amendment to this Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 15. SUCCESSORS AND ASSIGNS. All of the provisions of this Agreement will inure to the benefit of and will bind the parties and their respective successors and assigns and all other persons or entities which acquire all or any part of the Property. Without limiting the effect of the foregoing, Lazar will have the right to assign any of her rights or delegate any of her obligations as provided in this Agreement to or for the benefit: of any person or entity which owns or leases any part of the Property. 16. EQUITABLE SERVITUDES. All of the provisions of this Agreement will be enforceable as equitable servitudes and will constitute covenants running with the land as provided in the applicable law. 17. NEGATION OF AGENCY, JOIN ' VENTURE OR PARTNERSHIP. The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of join venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners. 18. NOTICES AND OTHER COMMUN7:CATIONS. All notices or other communications which are required or permitted to be given to the parties will be in writing and will be DE030655:11/04/92 -14- a given either by personal service or by mailing the same by certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service, addressed as follows: CITY COPY CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 Attn: Ramon Diaz Attn: LAZAR COPY Alyce Lazar Best, Best & Krieger 334 Hermosa Place 600 E. Tahquitz Canyon Way Palm Springs, CA 92262 Palm Springs, CA 92262 Attn: Paul T. Selzer If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it will be deemed given as of the date of receipt, rejection or return undelivered. Addressees to which notices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 17 . 19. ESTOPPEL CERTIFICATES. At the request of either party, the other party will, within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, except as is expressly provided in such estoppel certificate and (c) no default in the performance of the requesting party's obligations as provided in this Agreement DE030655:11/04192 -1 5- c exists, except as is expressly provided in such estoppel certificate. 20. APPLICABLE LAW. This Agreement will be construed and enforced as provided in California law. 21. VENUE. Any legal action with respect to this Agreement will be brought in either Riverside Superior Court or in the United States District Court for the Central District of California. 22 . ATTORNEYS' FEES. If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in such action will be entitled to recover from the losing party all attorneys' fees, court costs and necessary disbursements in connection with such action. 23. PARAGRAPH HEADINGS. The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 24. CONSTRUCTION. In all cases, the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. DE030655:11/04/92 -16- 25. SURVIVAL. Each and every covenant in this Agreement will survive the execution and delivery of this Agreement for the benefit of the parties and their successors and assigns. 26. CALENDAR PERIODS. All references in this Agreement to "years", "quarters", "months" and "days" will be deemed to be to references to calendar years, quarters, months and days. 27. SEVERABILITY. Every provision of this Agreement is and will be construed to be a separate and independent covenant. Without limiting the effect of Section 13. , if any provision of this Agreement or the application of the same is, to any extent, found to be invalid or .unenforceable, then the remainder of this Agreement or the application of such provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Agreement will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 28. FURTHER ASSURANCES. Whenever and as often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or property in order to achieve the intent of this Agreement. DE030655:11/00/92 -17- I c r 29. COVENANT OF GOOD FAITH. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 30. COUNTERPARTS. This Agreement may be executed in counterparts, each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 31. REPRESENTATION. The parties hereto acknowledge and agree that Best, Best & Krieger has prepared this Agreement at the request of both parties. Best, Best & Krieger has a long-standing relationship with both Lazar and the City and has advised each to seek separate, independent counsel of their own choosing for the purpose of informing them of the legal consequences. of this Agreement, and the advisability of executing it. 32. INCORPORATION OF RECITALS. The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereof. Each recital of fact concerning the parties will be conclusive between them and such facts will be incontestable in the event of any dispute between them with respect to such facts. Neither party will introduce any evidence in a court or administrative proceeding which would in any way serve to dispute any such recited fact. DE030655:11/04/92 -18- a 33 . EXHIBITS. Any Exhibit to this Agreement is incorporated by reference as though fully set forth hereof. 34 . AMENDMENT. No amendment or waiver of any term of this Agreement will be binding on the City unless and until it has been approved and has become effective as provided in Section 65868 of the Government Code and in Section 25. 37 . 080 of the Municipal Code, or on Lazar unless and until it has been executed by Lazar. 35. RECORDATION. No later than 10 days after the Effective Date of this Agreement, the City will, at its cost, record this Agreement in the Official Records of the Riverside County Recorder, as provided in Section 65868. 5 of the Government Code and in Section 25. 37.090 of the Municipal Code. CITY CITY OF PALM DESERT By: By: ATTEST: By: City Clerk APPROVED AS TO FORM AND SUBSTANCE: By: City Attorney Alyce Lazar DE030655.11/04/92 -19- f I THAT CERTAIN PARCEL OF LAND IM THE VNINCORPORATTD ARIA Or j RIVERSIDE COUMSY, STATE OF CALIFORMIA, BLIM6 A Pumas or ERS SECTION 19, TOw11SRIP R SOUTH, RANGE S EAST, SAN ➢ERNARDINO SAME AND KERMAN, AB INOWN BY UNITED STATES GOVERNMENT SURVEY SAID PORTION REINO MORE PARTICULARLY DESCRIBED AS FOLLOW: CCMMENCIND AT THE SOUTREAS: CORNLE OF SAID SECTION 11; 771ENCE �2 6 I9' 37' 04' w 127R.5] PRE! ALONG "s SOUTH 41ws 0► "SO 32CTION 19 TO THI TROII 90Q/T! OF BICINNINO: THENCE N 0' a' SO- I 2041.62 ►EET TO THE: $0011HESTERLY LINE OF THE 200 ►OOT HIDE; StGHT•OF-WAY OP TIE SOMZM PACIFIC AAILROAD, AS RESERVED IN AN INSTRUMENT AECOROEIi MARCH 21, 1912 IN BOOR 347, PAGE 127 of DEEDS. RECORDS OP SAID COUNTY( TNSHCL N S40 33, "' W 1II6.31 FEET ALONG SAID GwOVTHMBSTSRLY LIHII To THE MEET LIMP. OP TNII EAST HAL► OP SAID SECTION 19t THIMN I O' 03' $_0• N S3006.73 FEET ECTION 1l9t THENCE NAIO 19'M32104' E1114019 3.71 SAID FL FEET ALONG SAIDNE SOUTH LINE TO THE.TRUE POINT OP MEOIMRINO. T]1C HEREINABOVE DSSCRI➢EO PARCEL CONTAINS 77.89 ACRES Of LAND. MORE OR I.YSB. . E"ISIT 'A- "A" R OF�CF�V� December 16, 1992 "�Qy 1��799� f �A-� yFy Ms. Sheila Gilligan, City Clerk City of Palm Desert 73-510 Fred Waring Drive Palm Desert, Ca. 92260 Exhibit B, Development Agreement Monterey Palms & City of Palm Desert Dear Ms. Gilligan, Gale Messick, the general partner of Monterey Palms, phoned me yesterday and asked me to give you theses copies of Exhibit B. He wants to be sure they are incorporated into his development agreement for tomorrow night's City Council meeting. The copy he received from the City of Palm Desert showed Exhibit B as a blank page. This exhibit should have been (possibly was) part of the agreement reviewed by the Planning Commission (12/l/92) and the City Council (12/3/92) . Thank you for your attention to this matter. Very truly yours, ` Mary K. Stoltzman enc. Exhibit B from J.F. Davidson cc: Steve Smith Gale Messick EXHIBIT'B". I I I �NTF I S RST OGT qpF yFRN \ \ NOT TO SCALE Ike 1) W do OWN ci,�/c N qy _� yF ROgp �I =I W N (n 2628.80 1/2 SECTION LINE � n d m ACCESS � MONTEREY POINT PROPOSED MacLEOD RD. PALMS ACCESS (72 ACRES) POINT I ' APN 653-260-005 8 e 2631.86 ACCESS POINT 8 0 I � _ SECTIONI _ — J.F.Davidson Pumocletoos In.. NOT + _ 1 .�n n.�o......n.n.. .. � TWO CROSSING POINTS WITHIN MONTEREY PALMS BOUNDARIES ON PROPOSED Mac LEDO ROAD ROUTE OF SAID PROPOSED ROAD WITHIN SAID BOUNDARIES DATE 12/01/92 NOT YET DETERMINED P.N.9212880 � � o Ji \ ` r � � (.0 \47 Cl) \ / \, \ ) ( » ) A / ) Cl) { \ O C j ' 2 § O n _ \ . 49 / Jr i �j■ / \ q ( \ m� ^ j / / �\ 0 Co �a RECEIVE® , DEC 14 1992 PAWWNCM ANfMEM OF PMA 8MRT December 10, 1992 File No. 92003-01 City of Palm Desert, Planning Department, Mr. Stephen Smith Palm Desert Civic Center, 73-510 Fred Waring Drive Palm Desert, CA 92260 Subject: BILL FOR SERVICES COMPLETED PHASE I ENVIRONMENTAL ASSESSMENT Portion of Riverside County Assessor's Parcel No.: 618-490-022; Property Owner: A. J. Lou Property Location: South adjacent to Southern Pacific Railroad property, which is south adjacent to Interstate 10; west adjacent to Carver Properties' development, which is west adjacent to Monterey Avenue; in an unincorporated portion of Riverside County; California. Township Location: Portion of Section 19, of T4S-R6E, Relative to SBBM; Thomas Guide Location: Riverside County, Page 193, B-3 (1993) Dear Mr. Smith: Please remit the balance of $1550 for the completed fixed-fee Phase I Environmental Assessment. The corresponding report of December 7, 1992 was hand-delivered December 8, 1992. Below is a breakdown of charges. Proposed Fixed Fee: $2100.00 Extras: none Write-off: none Total Fee: $2100.00 Retainer: $550.00 Balance Due: $1550.00 Respectfully submitted, W. S. /M/ccCCANN d William S. McCann, P.E. Principal Engineer W. S. McCANN, P.O. Box 8003, Moreno Valley, CA 92552-8003; 714-924-3525 -TTt(3D z -\ m CL CD { 0 \ �17 m It ( \� J E§ CD \� CD \ \ 0 CD g \ ± \ � /� / 0 ( 6 % x c 2 § (In ƒ \. % a � � I \ CD ] a ,• CD ƒ \ ) ` ■ 2 § CID CL o kk \ . 0 T \\ i 23 K� ( \ CD E — a — . k INCD . 9 d (o k § � . n m . ) k . § § e § m z \ \ \ - ) k § ) ( AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS THIS AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS ("Agreement") , is made and entered into this day of November, 1992, by and between the CITY OF PALM DESERT, a municipal corporation ("Buyer") and A.J. LOU aka ALYCE LAZAR, a married woman as her sole and separate property ("Seller") . RECITALS A. Seller owns certain real property located in unincorpo- rated Riverside County, California consisting of approximately 77 acres of unimproved land that is more particularly described on Exhibit "A" attached hereto and incorporated herein (the "Seller' s Property") . B. Seller desires to sell, and Buyer desires to purchase, a 10+/- net acre portion of the Seller' s Property (the "Sales Property") , which is described in a metes and bounds legal description on Exhibit "B-1" attached hereto and depicted on a map attached hereto as Exhibit 11B-211 . C. The parties desire by this Agreement to provide the terms and conditions for the sale and purchase of the Sales Property. NOW THEREFORE, in consideration of the mutual covenants, promises and agreements herein contained, the parties hereto do hereby agree as follows. 1. PURCHASE PRICE The total purchase price for the Sales Property shall be One Million Three Hundred Six Thousand Eight Hundred Dollars ($1, 306,800) (the "Purchase Price") , based on a price of Three Dollars ($3 . 00) per square foot of land within the Sales Property. The entire Purchase Price shall be paid to Seller in cash at the close of the escrow described below. 1.1 Deposit. Buyer shall deposit into the escrow described below (the "Escrow") the sum of Twenty Thousand Dollars ($20, 000) upon the opening of Escrow. 1.2 Balance of the Purchase Price. At least one business day prior to the close of Escrow, Buyer shall deposit into Escrow the balance of the Purchase Price in cash by wire transfer, cashier's check or certified check. 2. ESCROW 2 .1 Opening. The purchase and sale of the Sales Property shall be completed through an escrow to. be opened at First American DE030658:11/04/92 1 1 Title Insurance Company or another escrow company mutually accept- able to the parties (the "Escrow Holder") . Within five (5) days after the mutual execution of this Agreement, Buyer or Seller shall deposit with the Escrow Holder one fully executed counterpart of this Agreement, which shall constitute the escrow instructions. The date of delivery to Escrow Holder of such fully executed counterpart, together with the deposit described in Section 1. 1, shall be deemed the opening of escrow ("Opening of Escrow") and Escrow Holder shall notify Buyer and Seller in writing of the Opening of Escrow date and its acceptance of the escrow instruc- tions. 2 .2 Closing. Escrow shall close, if at all, on or before December 8, 1992 (the "Close of Escrow") . 2.3 Costs. Seller shall pay all usual escrow costs and charges normally paid by a seller in an escrow closing in Riverside County, including without limitation one-half of the escrow fee, and the premium for the CLTA owner's title insurance policy to be delivered to Buyer. Buyer shall pay one-half of the escrow fee and such other costs and charges normally paid by a buyer in an escrow closing in Riverside County. 2.4 Prorations. Current real property taxes, and bonds and assessments that are currently due and payable, shall be prorated at the Close of Escrow on the basis of a thirty (30) day month. 2.5 Additional Documents. Buyef and Seller shall execute such additional escrow instructions as Escrow Holder may reasonably require to act as Escrow Holder, but in no event shall said additional escrow instructions increase the rights of one party against the other party hereto or modify the terms and conditions of this Agreement without the express written acknowledgment of both parties. Seller shall deposit into Escrow an executed Grant Deed in a form sufficient to convey title to Buyer. 2 .6 Possession. Seller shall deliver possession of the Sales Property to Buyer upon the Close of Escrow. 2.7 Title to the Sales Property. Seller shall, at the Close of Escrow provided for in this Agreement, by Grant Deed, convey to Buyer fee simple title to the Sales Property. Seller shall provide Buyer with an Owner's C.L.T.A. Standard Coverage Policy of Title Insurance in an amount equal to the Purchase Price of the Sales Property issued by First American Title Company or another title company mutually acceptable to the parties (the "Title Company") showing fee title to the Sales Property vested in Buyer in the condition required by this Agreement. 2.8 No Map. The parties acknowledge and agree that the conveyance of the Sales Property shall be by grant deed using a metes and bounds legal description, without benefit of any parcel or other subdivision map. The parties acknowledge and agree that the conveyance of the Sales Property to Buyer is exempt from a parcel map requirement pursuant to Government Code Section 66428 . DE03D658:11/04/92 -2 3. BUYER'S CONDITIONS OF PURCHASE Buyer's obligation to acquire the Sales Property pursuant to this Agreement shall be subject to the satisfaction of the following conditions, which are for Buyer's benefit only. In the event any of the following conditions are not satisfied within the specified time limit(s) , Buyer may, at its sole option, either waive such conditions or terminate this Agreement. Any condition not objected to or disapproved in writing within the specified time limit(s) shall be deemed satisfied. (If Buyer elects to terminate this Agreement pursuant to this section, the Deposit shall be returned to Buyer, less all Escrow fees and expenses incurred. ) 3.1 Approval of Title. Title to the Sales Property shall be in the condition required by this Agreement as of Close of Escrow. Within ten (10) days after execution of this Agreement by Seller and Buyer, Seller shall deliver to Buyer a current preliminary title report from the Title Company ("PTR") disclosing the status of title to the Sales Property. Buyer shall have ten (10) days after receipt of the PTR in which to reasonably object to any exception disclosed therein which materially and adversely affects Buyer' s development or use of the Sales Property. Any such reasonable objection must be in writing and must. be received by Seller (with a copy to Escrow) within ten (10) days following Buyer's receipt of the PTR. In the event that Seller cannot, within the fifteen (15) days following such notification by Buyer, cause any such reasonable objection to title to be removed, Buyer shall promptly elect, in writing, either to terminate this Agreement and all rights and obligations hereunder, or to waive its objection to title. The parties acknowledge and agree that the Sales Property shall be conveyed in all events subject to the liens of current taxes, assessments, and bonds of record. Further, the parties specifically agree that Seller's obligation to cure any such reasonable objection to title shall not require the expenditure of any funds by Seller. Seller shall be allowed to cure all monetary liens or encumbrances objected to Buyer prior to or at Close of Escrow. 3.2 Inspections. Buyer or Buyer's agent shall have the right to physically inspect and to conduct geological and other tests, including an environmental investigation (hereinafter collectively called "Inspections") on the Sales Property. All Inspections shall be done at the Buyer' s sole cost and expense. Upon completion of such Inspections, the Sales Property shall be returned to its original condition. Buyer shall have the right, in its reasonable discretion, to disapprove of the physical condition of the Sales Property based on the Inspections within twenty (20) days from the date of this Agreement. If Buyer fails to provide Seller with written notice of any objection to the physical condition of the Sales Property within said 20 day Inspection period, Buyer shall be deemed to have waived any objection to the physical condition of the Sales Property. Any disapproval of the physical condition of the Sales Property by Buyer shall be based on the discovery of a material adverse physical condition which affects the developability or use of the Sales Property, and which was not DE030658:11/04/92 -3 known or apparent to Buyer or Seller at the time of entering into this Agreement. 4. DEVELOPMENT Buyer agrees to schedule for consideration through its regular public hearing process a pre-annexation development agreement in substantially the same form as that attached hereto as. Exhibit "C" . 5. RIGHT OF ENTRY Buyer, its agents, and employees are hereby granted the right to immediately and at all times enter on the Sales Property for the purpose of conducting toxic and geological studies and surveying work as may be required or allowed pursuant to Section 3. 2 . Buyer shall indemnify and hold Seller harmless from any loss, cost, or expense for physical damage to the Sales Property or third party injury caused by Buyer or Buyer's agents or employees in connection with foregoing activities conducted on the Sales Property. 6. SELLER'S REPRESENTATIONS. WARRANTIES. Seller hereby makes the following representations and warranties, and agrees that such representations and warranties shall survive the Close of Escrow. 6.1 Seller owns fee simple title in and to the Sales Property and has full right, power, and authority to execute this Agreement and to convey its interest in the Sales Property to Buyer as provided herein. 6.2 Seller has no actual knowledge of the existence of any underground tanks or of any toxic substances or hazardous materials (as those terms are defined under federal, state or local laws) located on or under the Sales Property. Seller makes this warranty without having undertaken a toxic investigation or inspection of the Sales Property and without any obligation to undertake any such toxic investigation or inspection pursuant to this Agreement. 6.3 Seller is not a foreign person under Section 1445 Internal Revenue Code and will execute a Certificate of Non-foreign status and deposit same into the escrow prior to Close of Escrow. 6.4 This Agreement has been duly executed by Seller and constitutes the valid and binding agreement of Seller enforceable against Seller in accordance with its terms. 7. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer hereby makes the following representations and warranties and agrees that such representations and warranties shall survive the Close of Escrow. 7.1 Buyer hereby represents and warrants that the person or persons executing this Agreement have the full authority and power DED30658:11/04/92 -4 - to enter into this Agreement on behalf of Buyer to purchase- the Sales Property from Seller, and to take all actions required of it by the terms of this Agreement. 7.2 This Agreement has been duly executed by Buyer and constitutes the valid and binding agreement of Buyer and enforceable against Buyer in accordance with its terms. 7.3 Buyer acknowledges and warrants that it has authority pursuant to Section 66428 (a) of the Government Code, as a govern- mental agency, to acquire land based on a metes and bounds legal description without need of a parcel map. S. CONDITION OF SALES PROPERTY. The Sales Property shall be conveyed to Buyer in an "as is" condition, with no warranty, express or implied, by the Seller (except as set forth in Section 6.2) as to the condition of the soil, its geology, or the presence of known or unknown faults, toxic waste or hazardous substances or conditions, as the same may be defined under any local, state or federal laws, regulations or ordinances. Buyer shall have access to all data and information on the Sales Property in the possession of Seller, but without warranty or representation by Seller as to the completeness, correctness or validity of such data and information. It shall be the sole responsibility of Buyer, at its expense, to investigate and determine the suitability of the soil and environmental conditions of the Sales Property for Buyer' s use thereof. Seller shall not be responsible for (i) the discovery or cleanup of any hazardous materials or toxic wastes or substances, of any kind or nature, if any, which may be located on or about the Sales Property at the time of the conveyance of the Sales Property by Seller to Buyer pursuant to this Agreement, or (ii) any damages to Buyer or to any third party arising from or relating to any such hazardous materials or toxic wastes. Further, Buyer hereby releases Seller and agrees to defend, indemnify and hold Seller free and harmless from and against any claims or damage caused by, or costs or expenses incurred in connection with, including litigation expenses and attorneys' fees, any such hazardous materials or substances or toxic wastes, or any other environmental condition affecting the Sales Property from any and all sources and with respect to any and all persons or properties whatsoever. 9. ACCESS In order to provide Buyer access to the Sales Property from Dinah Shore Drive and/or Miriam Way, Seller shall dedicate to the City for street and utility purposes a 30 foot wide strip of land over and across Seller' s Property in a location to be mutually agreed upon by the parties prior to Buyer's development or use of the Sales Property. Such offer of dedication shall be in the normal and customary form used by the City of Palm Desert, subject to the review and approval of same by Seller's attorney. DE030658:11/04/92 -5 10. DE-ANNEXATION In the event of Buyer's termination of this Agreement pursuant to Section 3, or Buyer's unexcused failure to purchase the Sales Property and the resulting termination of this Agreement by Seller, Buyer shall have no right to complete the annexation of the Property into the City of Palm Desert pursuant to Annexation No. 32 Palm Desert, without the prior written approval of Seller, which approval may be withheld at the sole discretion of Seller. In such event, Buyer shall take such steps as may be necessary and appropriate to exclude the Property from Annexation No. 32 Palm Desert prior to completion of such annexation. 11. NOTICES Unless otherwise provided herein, any notice, tender, or delivery to be given hereunder by either party to the other may be effected by personal delivery in writing or by registered or certified mail, postage prepaid, return receipt requested, and shall be deemed communicated as of mailing. Mailed notices shall be deemed communicated as of mailing. Mailed notices shall be addressed as set forth below, but each party may change his address by written notice in accordance with this paragraph. Buyer: Seller: City of Palm Desert Alyce Lazar 73510 Fred Waring Drive 334 Hermosa Place Palm Desert, CA 92260 Palm Springs, CA 92262 Attn: Ramon Diaz Copy to: Best, Best & Krieger 600 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: Attn: Paul T. Selzer 12 . GENERAL PROVISIONS 12. 1 Entire Agreement. This Agreement supersedes any prior oral or written agreement and contains the entire agreement of the parties on the matters covered hereby. No amendment of this Agreement and no other agreement, statement, or promise made by any party or to any employee, officer, or agent of any party to this Agreement shall be binding. All obligations of Buyer and Seller under this Agreement and Escrow shall be joint and several. 12.2 Time is of the Essence. Time is of the essence of this Agreement and the escrow referred to herein. 12.3 Captions and Construction. The caption appearing at the commencement of the paragraphs hereof are descriptive only and for convenience in reference. Should there be any conflict between any such caption and the paragraph at the head of which it appears, the DE030658:11/04/92 -6 paragraph shall control and govern in the construction of this Agreement. This Agreement shall be construed as a whole and in accordance with its fair meaning. organization is for convenience and shall not be used in construing meaning. 12.4 Buyer' s Performance. Performance of any duty imposed on Buyer by this Agreement is conditioned on Seller's full performance of all duties imposed on Seller in this Agreement. 12.5 Seller's Performance. Performance of any duty imposed on Seller by this Agreement is conditioned on Buyer's full performance of all duties imposed on Buyer in this Agreement. 12.6 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be deemed an original, but all of which, when taken together, shall constitute one and the same instrument. 12.7 Successors and - Assigns. This Agreement may not be assigned by either party without the prior written consent of the other. Each covenant and condition contained in this Agreement shall inure to the benefit of and be binding on the parties to this Agreement, their respective heirs, personal representatives, assigns, and other successors in interest. 12.8 Attorneys' Fees. If any party shall bring an action against another arising out of this Agreement, then the party in whose favor the final judgment is entered shall be entitled to have and recover from the party its reasonable attorneys ' fees and other reasonable expenses in connection with such action or proceedings, in addition to its recoverable court costs. 13. WAIVER OF CONFLICT The parties hereto acknowledge and agree that Best, Best & Krieger has prepared this Agreement at the request of both parties. Best, Best & Krieger has a long-standing relationship with both Lazar and the City and has advised each to seek _ separate, independent counsel of their own choosing for the purpose of informing them of the legal consequences of this Agreement, and the advisability of executing it. To the extent each party has not sought such separate legal advice, each party waives any actual or potential conflict of interest arising out of the preparation of this Agreement by Best, Best & Krieger. 14. BROKERS AND FINDERS Buyer and Seller warrant that the execution of this Agreement was not induced or procured through any person, firm, or corporation acting as a broker or finder. Each party agrees to indemnify and hold the other harmless from and against any damage, liability or cost, including without limitation, reasonable attorneys' fees, arising from or in connection with any claim by any other person, firm, or corporation based upon their having acted as broker or DE030658:11/04/92 -7 finder for or in connection with this transaction on behalf of such party. 15. LIQUIDATED DAMAGES THE PARTIES ACKNOWLEDGE THAT BUYER'S UNEXCUSED FAILURE TO PURCHASE THE SALES PROPERTY MAY RESULT IN DAMAGES TO SELLER, IN AN AMOUNT NOT READILY ASCERTAINABLE BY THE PARTIES. THE BUYER AND SELLER MUTUALLY AGREE THAT THE DEPOSIT AMOUNT OF $20, 000 IS A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WOULD SUFFER IN THE EVENT OF UNEXCUSED FAILURE OF BUYER TO PURCHASE THE SALES PROPERTY. IN THE EVENT OF SUCH DEFAULT BY BUYER, SELLER SHALL BE RELEASED FROM HER OBLIGATION TO SELL THE SALES PROPERTY TO BUY AND BY PLACING THEIR INITIALS HERE, BUYER ( ) AND SELLER ( _) ,AGREE THAT ESCROW HOLDER SHALL IMMEDIATELY PAY AND DELIVER TO SELLER WITHOUT ANY DEDUCTION, OFFSET OR RECOUPMENT (OR ANY RIGHT THEREOF) WHATSOEVER, AS LIQUIDATED DAMAGES TO SELLER, THE DEPOSIT DESCRIBED IN SECTION 1. 1 ABOVE. IN WITNESS WHEREOF, the parties hereto executed this Agreement on the -dates set forth opposite their respective signatures hereto, which more recent date shall be deemed the date of this Agreement for all purposes. BUYER: CITY OF PALM DESERT Executed this day By: of , 199_, at , California Executed this day By: of , 199_, at California ATTEST: SELLER: Executed this ?' day H of 2w/�7� , 1991-r- Alycdj Lazar at f California I DE030658:11/04/92 -8- 'TNA! CLRTAIN PAACLL OP LAMP fl1 Tot ow2HfOMMATED ARRA OF RIYf�SIDt COUR?Y. STAR Of CALIrORNIRr ,LING A PORTION at SRTION 19# foNNSNIP • SOU", RAMOS C SACl, SAN RSRNASDINO BY OVIT20 DIANg AS SAID ppOoRTION ISEINO MORERWN PARTICULARLY SDESCRIIED FAS OLLOYS: COMMENCING AT TNL SOUT ZM CORNER Of SAID SECTION 191 TRENCL S S9' 32- Ot' N 1294.53 raT AIANO 1142 Sot" "No Of CAI* 311CTION 19 TO THE TROS POINT of SZ0INtI0t1TNEs200 r00T O�f so* E 20.1.62 PEET TO THE SOOTIoIESSER Rt6lIT-Or-NAY Of THL OOUTHERN rACIf2t RAILROAD. AS RZSZLV IN AN INSTRUMENT RECORDED MARCH 23, 1912 IN Door. 347. PAGE 127 of DEEDS. RECORDS Or SAID COUNTY, Tmzwz N SO 12• 310 N 1918.31 FEET AtANO BALD SOUTHNSSTOLY LIMN TO TSS NEST LIHf. Of THS CAST HALP Or SAID SECTION 191 THENCE S O' 03' $_0• N S3006.73 ECTION 19;. THENCE NA99*3210 • 9 ERLY 1)•�7•SAID FEET AWNG SAIDf SOUTH LINE TO ?HZ, TRUE POINT Or BEGINNINO. THt HERCINA90Vt DCSCRISED PARCEL CONTAINS 17.39 ACRES Of LAND, MORE OR LE59. , I EXHIBIT 'A• . 1r��*1'T� ��1Z is u � .: . _ � �� `. • • �- �\ R Il R e + THAT CERTAIN PARCEL OF LAND IN THE UNINCORPORATED AREA OF RIVERSIDE COUNTY, STATE OF CALIFORNIA, BEING A PORTION OF SECTION 19, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 19; THENCE S 890 32' 04" W 1294.53 FEET ALONG THE SOUTH LINE OF SAID SECTION 19 TO THE SOUTHEAST CORNER OF THAT PARCEL OF LAND DESCRIBED IN INSTRUMENT 279607 RECORDED SEPTEMBER 28, 1988, O.R.; THENCE N 00 03' 50" E 1550.93 FEET TO THE TRUE POINT OF BEGINNING; SAID POINT BEING 490.69 FEET SOUTHERLY OF THE NORTHEAST CORNER OF SAID PARCEL DESCRIBED IN INSTRUMENT 279607 RECORDED SEPTEMBER 28, 1988, O.R. AS MEASURED ALONG THE EASTERLY LINE OF SAID PARCEL; THENCE CONTINUING N 00 03' 50" E 490.69 FEET TO THE SOUTHWESTERLY LINE OF THE 200 FOOT WIDE RIGHT-OF-WAY OF THE SOUTHERN PACIFIC RAILROAD, AS RESERVED IN AN INSTRUMENT RECORDED MARCH 23, i912 IN BOOK 347, PAGE 127 OF DEEDS, RECORDS OF RIVERSIDE COUNTY; THENCE N 540 32' 31" W 946.90 FEET ALONG SAID SOUTHWESTERLY LINE; THENCE PERPENDICULAR TO LAST MENTIONED COURSE, S 350 27' 29" W 400.00 FEET; THENCE S 540 32' 31" E 1231.10 FEET PARALLEL TO THE SOUTHWESTERLY LINE OF SAID RAILROAD RIGHT-OF-WAY TO THE TRUE POINT OF BEGINNING. THE HEREINABOVE DESCRIBED PARCEL CONTAINS 10.00 ACRES OF LAND, MORE OR LESS. Il r� EXHIBIT EXHIBIT �� y�cTF9 \ ys N JO al . .z, ti� 3t•y �' a^ o° tsv C'j P 2 gos N C� 10.00 ACRES N \ SO• p°° 3a, in ?3t m m O O m w I o + T.P.0.8. 0 o m o APN 618-490-022 " W 1 � 1�60 0 2 � z S 09032.04•M 1294.53' WM C/L DINAH SHORE DRIVE SE CDR. SEC. 19 EXHIBIT t / v %id, th RECEIVED DEC 0 4 1992 •ABM VESERTOTYNnt '^'MANAGF.a December 2, 1992 REME:IVE® D City Manager EC 0 4 1992 City of Palm Desert t°RMUN2':'CID OEPARrM:M 73510 Fred Waring Drive crv°vruM�tter Palm Desert, California 92260 Subject: LAFCO 92-34-4--Annexation 30 to City of Palm Desert Dear Sir or Madam: According to our records, resolutions for the above-listed proposal have not been filed with the Riverside Local Agency Formation Commission. Conducting authority proceedings must be completed by your agency within one year of adoption of the LAFCO resolution approving the proposal. In order for the annexation to be effective for property tax purposes for fiscal year 1993-94 , LAFCO must receive your agency's resolutions and SBE processing fee prior to December 31, 1992 . Please also be aware that the SBE processing fee must include a ten percent increase when filing during the month. of December as per instructions from the State Board of Equalization. If you plan to file after December 31, 1992, do not include the ten percent increase. If you have any questions or concerns, do not hesitate to contact our office. Sincerely, Barbara Ann Beegle Staff Assistant RIVERSIDE LOCAL AGENCY FORMATION COMMISSION• 3403 TENTH STREET. SUITE 620• RIVERSIDE. CA 92501-3676 ! PHONE(714) 369-0631 FAX(714)369-8479 LAW OFFICES OF 9EST, BEST & KRIEG t t December 3, 1992 MEMORANDUM TO: RAMON DIAZ DAVID J. ERWIN, CITY ATTORNEY CITY OF PALM DESERT FROM: DOUGLAS S. PHILLIPS, DEPUTY CITY ATTORNEY�� RE: ANNEXATION 30 This is an update on Annexation 30. First, we need to change the legal description on the Lazar Development Agreement to delete the 10 acres that the City or the Agency purchased or will purchase. I enclose an amended legal description which I want Dan Olivier to approve so that we can include it in the Development Agreement presented to the Council tomorrow, December 3 , 1992. I have revised the Rancho Mirage Industrial Park Compromise Settlement and Agreement and I enclose the revised agreement for your review and comment. I have sent it to Cindy Ludvigsen for her comment as well. This needs to be finalized by the 17th of December for signature at that time. With respect to the Price Club suit, I have called their corporate counsel, Paul Peterson, who tells me: 1. That he is not aware that Price Club was filing this action and that it was his understanding that the Price Club would not be filing the action against the City of Palm Desert; 2 . That his understanding from Rutan & Tucker was that the possibility of prevailing in the action was quite low. The attorney, Paul Peterson, is checking with Don Howells, Price Club's OSP29916 r t t vice president to confirm whether the suit was authorized by Price Club and if not hopefully the Price Club will take action immediately to dismiss it. I spoke with Dave Aleshire of Rutan and Tucker on December 2 and December 3, 1992 . Mr. Aleshire advises that the Price Club, at the last minute authorized the suit in order to keep their options open. I advised Mr. Aleshire that because of agreements that we had reached with the County, there were little or no funds that could be used to assist. It appears that Price Club's primary goal here is to gain some assistance in getting out of their agreement with Rancho Mirage which requires Price Club to pay for 1.5 million dollars of the 2 million dollar cost to underground the power poles on the south side of Dinah Shore across from the Price Club site. This undergrounding is on City of Rancho Mirage property and was required by Rancho Mirage of the Price Club when the Price Club sought to widen Dinah Shore as required by the conditions of approval from the County of Riverside. I have offered to represent Price Club against Rancho Mirage in order to attempt to have a court declare the agreement illegal and void. I also have sent to Rutan and Tucker a copy of the agreement between the City of Palm Desert and the County of Riverside reflecting that all or most of the increment will be going back to the County. Mr. Aleshire will speak to his client today or tomorrow to find out what, in fact, his client wants and if possible, I would like to arrange a meeting next week between the Mayor, the Annexation Subcommittee and representatives from Price Club (with or without counsel, as you see fit) to attempt to resolve this matter. In the meantime, I am OSP29916 r checking to see how valid this lawsuit really is on the merits. Our statute of limitations argument will probably not prevail because the statute of limitations is extended for the Thanksgiving holiday. If you would, Dave and Ray, please discuss this with Bruce and the Council in closed session under pending litigation. In any event, unless Price Club obtains an injunction stopping the annexation, we should proceed. Finally, Ray, assuming that the Council approves the Annexation on December 17th, would you please confirm that LAFCO signed off on it by year end even with the Price Club suit pending, assuming Price Club fails to get a temporary restraining order or preliminary injunction. Please note that under current negotiations with Cindy Ludvigsen, her lawsuit will not be dismissed until the referendum period ends on the ordinance adopting the development agreement (January 16, 1993 is the effective date of the ordinance) . The Ludvigsen suit under our current negotiations would be dismissed within 10 days of January 16, 1993 . If you need to push this date of dismissal up in order to get LAFCO to sign off on the annexation, please let me know. DSP:pam enclosures DSP29916 COMPROMISE AGREEMENT AND RELEASE THIS AGREEMENT is executed as of December 17, 1992, by and between RANCHO MIRAGE INDUSTRIAL PARK, a California limited partnership (hereinafter "Petitioner") , RUYEN INTERNATIONAL CORPORATION, a California corporation (hereinafter referred to as "Co-Owner") , and the CITY OF PALM DESERT, a municipal corporation (hereinafter "City") , and is made with reference to the following facts: RECITALS A. Petitioner, RANCHO MIRAGE INDUSTRIAL PARK, is a limited partnership organized and existing under the laws of the State of California. RUYEN INTERNATIONAL CORPORATION is a California corporation. Petitioner and Co-Owner conduct business within the County of Riverside. Petitioner and Co-Owner own certain real property located within the unincorporated area of the County of Riverside near the city limits of the City of Palm Desert, California. This property is located near the intersection of Monterey Avenue and Interstate Highway 10. It is within the Sphere of Influence of the City of Palm Desert as adopted by the Riverside County Local Formation Commission and is included within the area of the so-called "North Sphere Pre-zoning" approved by the City of Palm Desert. B. City is a California general law city located within the County Of Riverside, State of California. C. On May 28, 1992 , the City Council of the City certified and approved a Negative Declaration, pursuant to the California DSP27669 r Environmental Quality Act, Public Resources Code Sections 21000 et sea. , for a pre-zoning of several hundred acres South of Interstate 10 known as the North sphere of. p Pre-zoning. This pre-zoning P g includes approximately 172 acres owned by Petitioner and Co-Owner. The purpose of the prezone was to fix zoning for property within the City of Palm Desert's Sphere of Influence which the City intends to annex. D. On June 4 and 5, 1992 , City filed a Notice of Determination for approval of a Negative Declaration for the North Pre-zoning with the Riverside County Clerk pursuant to Public Resources Code Section 21152 . This Notice of Determination stated that the City Council found that the Pre-zoning had no potential impacts on the environment. E. The North Sphere Pre-zoning, also known as C/Z 92-1, the project which the City approved, is a project pursuant to the California Environmental Quality Act. F. On July 1, 1992 , Petitioner filed a Petition for Alternative and Peremptory Writs of Mandate (CCP 51085) , for Violation of California Environmental Quality Act (Public Resources Code 521100, et sea. ) against City in the Riverside County Superior Court, Case No. Indio 67366 (hereinafter the "petition") , seeking to set aside the City's Notice of Determination filed on June 4 and 5, 1992 approving a Negative Declaration for City case no. C/Z 91- 1, seeking to set aside City's approval of the North Sphere Pre- zoning project and, finally, seeking payment of attorneys' fees and costs. DSP27669 -2- G. This Agreement consists of a compromise and settlement by the parties of Petitioner's claims against City embodied in the petition, and a release given by Petitioner and Co-Owner to City relinquishing their claims against City. This Agreement is not, and shall not be treated as, an admission of liability by either Petitioner, Co-Owner or City for any purpose. H. This Compromise Agreement and Release is effective only if the City of Palm Desert Annexation No. 30 is approved in accordance with the terms and conditions of the Development Agreement attached hereto as Exhibit 1 and further provided that no referendum to challenge the Development Agreement is filed within thirty days of the adoption of the ordinance approving the Development Agreement attached hereto as Exhibit 1. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and subject to the conditions contained herein, the parties do agree as follows: 1. City, Petitioner, Co-Owner, and other property owners not a party to Superior Court Case No. 67366 shall enter into that Development Agreement attached hereto as Exhibit 1. 2 . Neither Petitioner, nor Co-owner, nor their agents, consultants, servants, attorneys or representatives shall in any way object to or take any actions whatsoever in opposition to or challenge the Negative Declaration for City's Case No. C/Z 92-1, the North Sphere Pre-zoning or the annexation of Petitioner's property or Co-Owner's Property into the City of Palm Desert, provided that the City of Palm Desert Annexation 30 is approved in DSP27669 -3- accordance with the terms and conditions of the Development Agreement attached hereto as Exhibit 1 and further provided that no referendum to challenge the Development Agreement is filed within thirty days after the City ordinance approving the Development Agreement is adopted. Further, Petitioner and/or Co-Owner at the request of City, shall take all reasonable steps to support the City's proposed annexation before any public body including, but not limited to, the Local Agency Formation Commission. 3 . Provided that the Development Agreement attached hereto as Exhibit 1 is executed by all parties to it, and further provided that the City of Palm Desert Annexation No. 30 is approved in accordance with the terms and conditions of the Development Agreement, and further provided that no referendum to challenge the Development Agreement is filed within thirty days after it is approved, Petitioner shall dismiss the Petition with prejudice within forty days of adoption by the City of Palm Desert of the ordinance approving the Development Agreement attached hereto as Exhibit 1. 4 . Execution and final approval of the Development Agreement attached hereto as Exhibit 1 constitutes a compromise and settlement any and all past, present or future claims, demands, obligations or causes of action which Petitioner and Co-Owner have or which may later accrue to or be acquired by them against City, City's predecessors and successors in interest, City's past, present and future officers, agents and employees, arising from the claims embodied in the Petition and agree that this compromise and settlement shall constitute a bar to all such claims. DSP27669 -4- 5. Upon execution and final approval of the Development Agreement attached hereto as Exhibit 1, Petitioner and Co-Owner shall release and discharge City, City's predecessors and successors in interest, City's past, present and future officers, agents and employees from, and relinquish any and all past, present or future claims, demands, obligations or causes of action which Petitioner and/or Co-Owner have or which may later accrue to or be acquired by them against City arising from the claims embodied in the Petition. 6. Each individual signing this Agreement on behalf of any corporation represents and warrants that he has the right, power, legal capacity and authority to enter into and perform each of the obligations specified under this Agreement, and that no further approval or consent of any person, board of directors or entities is necessary for them to enter into and perform each of the obligations under this Agreement. 7. The parties hereto represent and warrant that they have not heretofore assigned or transferred, or purported to assign or transfer, to any person, firm, or corporation whatsoever, any claim, debt, liability, demand, obligation, cost, expense, action or causes of action, covered by this Agreement, and each party acknowledges and agrees that this warranty and representation is an essential and material term of this Agreement without which none of the consideration received in connection herewith would have been made or delivered. The foregoing warranty and representation shall survive the delivery of this Agreement, and each of .the parties hereto shall indemnify and hold the other harmless from any claims, DSP27669 -5- demands, or actions which have been assigned or transferred, or purported to have been assigned or transferred, in violation of the foregoing representation and warranty. 8. In the event a party hereto commences a legal action against another party hereto on account of a breach, default or dispute in connection with the terms or conditions of this Agreement or the subject matter hereof, the prevailing party shall be entitled to recover all costs incurred including, but not limited to, reasonable attorneys' fees. 9. Each party warrants and represents that in executing this Agreement, they have relied upon legal advice from the attorney of their choice; that the terms of this Agreement have been read and its consequences, including risks, complications and costs, have been completely explained to them by that attorney; and that they fully understand the terms of this Agreement. Each party further acknowledges and represents that, in executing this release, it has not relied on any inducements, promises or representations made by any party or any person or entity representing or serving any party. 10. Each party to this Agreement shall cooperate fully in the execution of any and all other documents and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement. 11. Each party to this Agreement shall bear all attorneys' fees and costs arising from that party's own counsel in connection with the Lawsuit and this Agreement. DSP27669 -6- 12 . This instrument contains the entire agreement of the parties relating to the subject hereof and there have been no representations, warranties or agreements, oral or written, except as are contained herein. 13 . This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement, binding on the parties hereto notwithstanding that all of the parties are no signatories to the original or the same counterpart. IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the day of September, 1992 . PETITIONER: RANCHO MIRAGE INDUSTRIAL PARK, a California limited partnership By: SUSCO , a California corporation, general partner By: H.M. PECCORINI, President OSP27669 -7- RUYEN INTERNATIONAL CORP. By: H.M. PECCORINI, Assistant Secretary CITY: CITY OF PALM DESERT, a municipal corporation By: JEAN BENSON, Mayor ATTEST: SHEILA GILLIGAN, City Clerk APPROVED AS TO FORM AND CONTENT: BEST, BEST & KRIEGER By: David J. Erwin Cynthia Ludvigsen Attorney for Petitioner RANCHO MIRAGE INDUSTRIAL PARK and Co-Owner RUYEN INTERNATIONAL, INC. DSP27669 -8- RECEIVED 1 DEC 0 2 1992 RUTAN & TUCKER 2 ROGER A. GRABLE (State Bar No. 47919) DAVID J. ALESHIRE (State Bar No. 65022) MUNNI oa".,w°�"i°i`su"""au" 3 JOHN L. FELLOWS III (State Bar No. 103968) 611 Anton Boulevard, Suite 1400 4 Costa Mesa, California 92626 Telephone: (714) 641-5100 5 Attorneys for Petitioner The 6 Price Company 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF RIVERSIDE 10 1i THE PRICE COMPANY, a .California 1 CASE NO. : corporation, ) 12 ) Petitioner, ) NOTICE OF COMMENCEMENT OF 13 ) ACTION; PROOF OF SERVICE vs. ) PURSUANT TO PUBLIC RESOURCES 14 ) CODE SS 21167.5 AND 21167 .7 RIVERSIDE LOCAL AGENCY FORMATION) 15 COMMISSION, CITY OF PALM DESERT, ) and DOES 1 through 50, ) 16 inclusive, ) ) 17 Respondents. ) 18 ) 19 DOES 51 through 100, inclusive, ) 20 Real Party in Interest. ) ) 21 TO ALL PARTIES HEREIN AND TO THE ATTORNEY GENERAL OF THE 22 STATE OF CALIFORNIA: 23 NOTICE IS HEREBY GIVEN that on November 30, 1992, the 24 attached Petition for Writ of Mandate ("Petition") was filed in 25 the Superior Court of the State of California for the County of 26 Riverside. Therein, Petitioner The Price Company seeks to, among 27 other things, invalidate a defective Negative Declaration which 28 was certified as legally adequate by the Riverside Local Agency euuiewis2oiaooiuonsii.i ii aan -1 ACTION OF COMMENCEMENT OF I Formation Commission on October 22, 1992, in connection with the 2 Commission' s approval of LAFCO 92-34-4- -Annexation 30 to the City 3 of Palm Desert . Invalidation is sought on numerous grounds, 4 including the incompletness of the environmental documentation 5 and the lack of evidentiary support for the conclusions of the 6 Negative Declaration. A copy of this petition is attached hereto 7 as Exhibit A. 8 DATE: November 30, 1992 . RUTAN & TUCKER ROGER A. GRABLE 9 DAVID J. ALESHIRE JOHN L.�OL= LI.DWs z z z 10 QS By: 11 John L. Fellows III Attorneys for Petitioner The 12 Price Company 13 14 15 16 17 is - 19 20 21 22 23 24 25 26 27 28 -2- PROOF OF SSRVICB BY MAIL STATE OF CALIFORNIAI COUNTY OF ORAXQX I am employed by the law office of Rutan & Tucker in the County of Orange, State of California. I am over the age of 18 and not a party to the above-captioned action. My business address is. 611 Anton Boulevard, Suite 1400, Costa Mesa, California 92626 . In the course of my employment with Rutan & Tucker, I have, through first-hand personal observation, become readily familiar with 2Rutan & Tucker' s practice for collection and processing of correspondence for mailing with the United States Postal Service. On November 30, 1992 , 1 placed copies of the attached documents entitled: NOTICE OF COMMENCEMENT OF ACTION; PROOF OF SERVICE PURSUANT TO PUBLIC RESOURCES CODE §§ 21167. 5 AND 21167 .7 in envelopes addressed as set forth below. I then sealed those envelopes and placed them in an out-box for collection by other personnel of Rutan & Tucker and for ultimate posting and placement in the United States mail later that same day. If the customary business practices of Rutan & Tucker with regard to collection and processing of correspondence and mailing were followed, and I am confident that they were, those envelopes were posted and placed in the United States mail at Costa Mesa, California, that same day. Daniel E. Lungren, Attorney General Office of the Attorney General 1515 K Street, Suite 511 Sacramento, CA 95814 Riverside Local Agency Formation Commission 3403 Tenth Street, Suite 620 Riverside, CA 92501-3676 City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Executed on November 30, 1992, at Costa Mesa, California. (X) (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. H (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Y�e�,ex__o-e EILEfiN GILBE T 1 RUTAN & TUCKER 2 ROGER A. GRABLE (State Bar No. 47919) DAVID J. ALESHIRE (State Bar No. 65022) 3 JOHN L. FELLOWS III (State Bar No. 103968) 611 Anton Boulevard, Suite 1400 4 Costa Mesa, California 92626 Telephone: (714) 641-5100 5 Attorneys for Petitioner The Price Company 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF RIVERSIDE 10 11 THE PRICE COMPANY, a California 1 CASE NO. : corporation, ) 12 ) PETITION FOR WRIT OF MANDATE Petitioner, ) 13 ) vs. ) 14 1 RIVERSIDE LOCAL AGENCY FORMATION) 15 COAMQISSION, CITY OF PALM DESERT, ) and DOES 1 through 50, ) 16 inclusive, 1 17 Respondents. ) 18 DOES 51 through 100, inclusive, ) ) 19 Real Parties in Interest. ) I 20 21 Petitioner, The Price Company, a California corporation 22 ("Price") , petitions this Court for a writ of mandate under 23 California Code of Civil Procedure Sections 1094 . 5 and/or 1085, 24 and alleges as follows: 25 1 . Petitioner THE PRICE COMPANY ( "Price") is a 26 corporation in good standing, organized and existing under the 27 laws of the State of California. 28 PETITION FOR WRIT OF PSW:ne13201-OWIU utt1.1 a aaroa -1- MANDATE EXHIBIT A 1 2 . Respondent RIVERSIDE LOCAL AGENCY FORMATION COMISSION 2 ("LAPCO") is a public agency formed and existing under and by 3 virtue of the provisions of the Cortese-Knox Local Government 4 Reorganization Act (Government Code Section 56000 et sea. ) and is 5 responsible for, among other things, determinations relating to 6 spheres of influence and the annexation of real property for 7 other public agencies located within the County of Riverside. g 3 . Respondent, the CITY OF PALM DESERT ( "City") is a city 9 duly organized and existing in the County of Riverside pursuant 10 to the laws of the State of California. 11 4. The true names and capacities of the Respondents 12 identified herein as DOES 1 through 50, inclusive, whether 13 individual , corporate, governmental, associate or otherwise are 14 unknown to Price, who therefore sues those Respondents by such 15 fictitious names. Price will amend its Petition when the same 16 have been ascertained. Price is informed and believes and on 17 that basis alleges that such Respondents are in some manner 1s responsible for the acts or omissions alleged herein and that the 19 injury, damage or loss to Price was proximately caused by such 20 acts or omissions. 21 5. The true names and capacities of the Real Parties in 22 Interest identified herein as DOES 51 through 100, inclusive, 23 whether individual, corporate, governmental, associate or 24 otherwise are unknown to Price, who therefore sues those Real 25 Parties in Interest by such fictitious names. Price will amend 26 its Petition when the same have been ascertained. Price is 27 informed and believes and on that basis alleges that such Real 28 Parties in Interest are in some manner responsible for the acts tvurot�wtmotm.t ttnom -2- I or omissions alleged herein and that the injury, damage or loss 2 to Price was proximately caused by such acts or omissions. 3 6. On or about July 10, 1992, the City submitted to LAFCO 4 an application for City of Palm Desert Annexation No. 30 (the 5 "Annexation") , which proposed to annex certain property to the 6 City. The property to be annexed is more particularly described 7 on Exhibit A to the City' s Resolution No. 92-49, which was a adopted on or about May 28, 1992 . 9 7. On October 22, 1992, LAFCO held a hearing on the 10 proposed Annexation. In connection with the hearing, prior to 11 acting on the City' s application requesting approval of the 12 Annexation, LAFCO considered the environmental documentation, the 13 Negative Declaration prepared by the City and the de minimis 14 finding prepared by the City. 15 S. At the October 22 hearing, LAFCO certified the 16 Negative Declaration and determined that there was no evidence 17 before the Commission that the proposed project would have a 18 potential for adverse effect on wildlife resources. 19 9 . Following certification of the Negative Declaration, 20 LAFCO approved LAFCO 92-34-4- -Annexation 30 to the City of Palm 21 Desert. 22 10 . By letter dated October 21, 1992, which was hand- 23 delivered to LAFCO on or about the date of the LAFCO hearing held 24 October 22, 1992, Petitioner objected to the approval of the 25 environmental documentation submitted for LAFCO's consideration 26 in connection with the proposed Annexation, on the ground that 27 the Negative Declaration submitted for consideration by LAFCO was 28 legally inadequate. A true and correct copy of Petitioner' s pana�noisw�•000�umsrn.� ninon -3- 1 letter of October 21 is attached as Exhibit A and incorporated by 2 this reference. 3 11 . Petitioner' s representative was present at the LAFCO 4 hearing on October 22 and raised orally all objections to the 5 adequacy of the environmental documentation and the adequacy of 6 the Negative Declaration that were set forth in Petitioner' s 7 letter. 8 12 . The environmental documentation and the Negative 9 Declaration prepared in connection with LAFCO 92-34-4- -Annexation 10 30 to the City of Palm Desert is deficient, legally inadequate 11 and violates the provisions of the California Environmental 12 Quality Act in that, by way of example and not by way of 13 limitation, 14 A. The initial Study is illegible in part. i5 B. Several items are not checked as to significance 16 probability (yes, no, maybe) . 17 C. Mandatory findings of significance are not 18 determined clearly by the record. 19 D. The project description in the Initial Study is 20 inadequate. 21 E. The environmental setting is not described. 22 F. No meaningful opportunity was provided for input 23 from the affected landowners, such as Petitioner. 24 G. The determination of significant effect, as 25 defined by Section 15064 of the State CEQA Guidelines is flawed 26 because several issue areas are identified as having significant 27 impacts, but insufficient mitigation is proposed; the 28 determination rests in significant part upon an unspecified rSmewis201-0001k:023rn.1 II/M2 -4- 1 Environmental Impact Report to be completed at an unspecified 2 future date. 3 H. The conclusions are unsupported by the 4 documentation presented and do not meet the legal standards 5 required for findings. Meaningful supportive data to validate 6 those conclusions are not included. 7 13 . The above-described actions taken by LAFCO and the 8 City are arbitrary, capricious, lacking in evidentiary support, 9 are an abuse of discretion and not in conformance with the 10 requirements of law in that, by way of example and not by way of 11 limitation, 12 A. The Initial Study was legally inadequate for the 13 reasons alleged in paragraph 12. 14 H. The Negative Declaration was legally inadequate 15 for the reasons alleged in paragraph 12 . 16 14. Price has exhausted all administrative remedies 17 available to it or required to be exhausted as a prerequisite to 18 the filing of this action, and has performed all conditions 19 precedent to the filing of this action. 20 15 . Price has requested that Respondents and each of them 21 undertake and discharge their duties as required by law and, 22 despite their present ability to do so, Respondents have failed 23 and refused to perform such duties. 24 16 . Price has a beneficial interest in the outcome of this 25 action, since real property owned by Price is within the 26 territory to be annexed by the Annexation. 27 28 r�iewisw�000i�tonui.� unom - 5- I WHEREFORE, Petitioner The Price Company prays for judgment 2 as follows: 3 1. That this Court issue its peremptory writ of mandate 4 compelling Respondent LAFCO 5 A. to vacate and set aside its approval and 6 certification of the Negative Declaration approved and certified 7 by LAFCO in connection with its approval of the Annexation . 8 B. to undertake no further proceedings relating to 9 the Annexation until and unless new environmental documentation to and subsequent environmental review is prepared in process in 11 compliance with the California Environmental Quality Act . 12 2. That this Court award Petitioner its costs of suit 13 incurred herein and, as permitted or required by law, its 14 litigation expenses (including reasonable attorneys, fees) 15 incurred herein. 16 3 . That this Court order such other and further relief as 17 it deems just and proper. is 19 DATE: November 30, 1992 . RUTAN & TUCKER ROGER A. GRABLE 20 DAVID J. ALESHIRE JOHN L. FELLOWS III 21 L 22 By: '1 P' John-L. Fellows, III 23 Attorneys for Petitioner/ Plaintiff The Price Company 24 25 26 27 28 rsxu:i�oisxoi000inoxsiyi.� iinom -6- VERIFICATION STATE OF CALIFORNIA, COUNTY OF ORANGE I have read the foregoing PETITION FOR WRIT OF MANDATE and know its contents. (X] OF THE TH ER 8 PARAGRAPHS BELOW, CHECK APPLICABLE PARAGRAPH ( ] I am a party to this action. The matters stated in it are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true. ( J lam () an Officer () a Partner U a of The Price Company, a California corporation, a party to action, and am authorized to make this verification for and on its behalf, and I make this verification for that reason. I have read the foregoing document and know its contents. I am informed and believe and on that ground allege that the matters stated in it are true. [XI I am one of the attorneys for a party to this action. Such party is absent from the aforesaid county where such attorneys have their offices, and I make this verification for and on behalf of that party for that reason. I have read the foregoing document and know its contents. I am informed and believe and on that ground allege that the matters stated in it are true. Executed on November 30, 1992 at Costa Mesa, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. AL 4,14- a'n" John L. Fellows �sau�ew�s=o�-000��tou��i.i t�nmo� RUTAN & TUCKER ATTORNLYS AT LAW A PAiTNOOSNIO INCLVOLNO IOOIC{SIONAL GONOOOATIONO W{I..Y.I.f• YMO.AA N•SIT. OANA Or TNi WGOT. OVITE 1A00 I4W{TY L WYN rAN[JI ..I[.TI ruY.rMNirC W{ wq\IMr 11.•IAATKMw. O[OY 1.wro IAYIf O su°i .Y O pOL lYlq V I'OUIO Oil ANTON OOVL[VARO YnO Y YCYY[. Co.*,I o[u\[1 •Iit...S l CV•NrI AwY{Ir[LOOY 4rIPYY OiON I.M.(°Mi \t:y[.N(.°Ww W+PO A Yrtt\ wuM.I.CYM. COSTA MLSA CANtCNMIA 02020.105a JNY O Y.I.YM.J.. ..CW\t.r•0'.Y YKM{\w..T•wOJ IM.{f.NIHTr M.YT/OIIYM1(/11M.1 .111.r[e.Yw1 Y.Y..I III All .n4.0..IAN OIPECT ALL MAIL T0: P. 0. SOR I010 O.WO S t1y.MYAaMo lll TY[OOIif r,.49.10� IOR I.YVI[AI[.O \IY O.TYINIIIY N[I{I , IAAC .MAN A/awYOq. f.M.A.04"611 COSTA ME1A. CAU/OONIA 02000'IOOO YVC T.T\IO yti. ..\Aw I.W,." .KA,Mml.Moll TNWI 0 iINA.YITI. NA" YY yOTi. M1°w MTI.N( WS ..oWuu.' .".r---ago TELEPHONE I7M1 041`6100 wTviw A.fNS Wa({ ALM •OIf.T 4 SA MY [rw�&,..MLAII MLW /TEM[Y 4/\\IO /\.IM 0.OAYT ..Icw.OIA.LA' ..'ALL I....I. ¢i3l S2SVfH .n•N..n..aY[. Yu.. I.NN (O.A.I I.n.o..n• W Y.Ilii. .puT I s[. ..... IA. VOLA[II "I...L T...O 0 gAAL.IIP• rn41••.IOIwN ♦ELECOPICP 17141 S46•0032 AOM•Y. .Vaxwa•[wL O.WO 0.•.MM.• I...N I .oeO•Aw. :w,I p.r(N CVnN10 f ILLKr INw.. illew.m WrNO In..AL ull I ...0 .�NA[L O .uI.Y M.... •I.L..f. • w,fYTAY eIIO'.01J1 I Iwx.�W.\ I W.,+.HILL. •10.v.'' •A.i••1 A.pO.VI I I `VC.[..00.:iI.In O[01 JtY[. [Nlll pAw.w1I .....{.1 .....{.Y .......` Y ..n[.iwt Jtw4eY •r0.0'w 0.— a. 0 bNur.. OVN r wA+Low.. . ...... ...[4 V.T. .iN O.w.JTP p.Y.owe••• ........ ....fv.0u .Mdr I .ew'N LOr1.I...I.Ml..rn MWO J A....../ `.he1•AYM.M CC—a.10. October 21, 1992 °e°�> 616090 .-ILL n, Riverside Local Agency Formation Commission 3403 Tenth Street, Suite 620 Riverside CA 92501-3676 Re: LAFCO 92-34-4 (Annexation 30--Palm Desert) Honorable Members of the Commissions We have been retained by the Price Club to represent them in connection with the above referenced annexation. In this regard we respectfully request that the Commission continue its consideration of this matter for at least sixty (60) days. our client had engaged in some preliminary discussions with the City of Pala Desert with respect to the possibility of annexation to the City but had no idea that the City intended to pursue annexation without further notice to them. This application caught them completely by surprise. A number of issues were raised in their preliminary meetings with the City. Until these issues can be fully explored, we cannot adequately address the issues which the Commission will be asked to consider at its public hearing. Fairness dictates that we be given a realistic opportunity to review the application and materials submitted by the City of Palm Desert so that the interests of our client can be adequately addressed at your hearing. In this regard, as discussed briefly below, the little time we have had to review these materials reveals some material deficiencies. In light of these deficiencies, an in depth review of the balance of the materials submitted seems clearly warranted. A preliminary review of the environmental documentation submitted by the City reveals serious concerns which should be addressed before the Commission takes any action on this P3ZIWM$M40uN LTn. 10121M FX4131T A RUTAN 6, TUCKL. . AYTOANZVD AT LAW wr.lww.rnM+........... <M.Wri.i. Riverside Local Agency Formation Commission October 21, 1992 Page 2 application. This environmental documentation consists of a Negative Declaration approved by the City in May Of 1992. This Negative Declaration only considered the prezoninng of the property. Annexation waonlys tangentially. g . The ci Declaration did not reveal that the itYintndedto conduct no further environmental evaluation of the annexation. In fact issues relating to annexation were not addressed in the supporting record. Some of the apparent deficiencies in the documentation submitted to justify the Negative Declaration include the followings 1. The Initial Study fails to meet the format requirements and standards of inclusion provided for in Section 15063 of the State Guidelines implementing the California Environmental Quality Act (°CEQAN) . These inadequacies include the following: a. The Initial Study contained in the LAFCO files is illegible in part. Many pages do not reflect the three columns of the environmental checklist. Most are unreadable due to copy quality. b. Several items are not checked as to significance probability (yes, no, maybe) . c. Mandatory findings of significance are not determined clearly by the record. d. A description of the project, including location, is not provided in the Initial Study. e. The environmental setting is not described. f. The name of the preparer and a date of actual preparation/signature are not clearly indicated. g. No meaningful opportunity was provided for input from the affected landowners. 2. The determination of significant effect as defined in Section 25064 of the State Guidelines, is flawed for the following reasons: a. Several issue areas (e.g. transportation, police, utilities, air quality, aesthetics) are referenced rs2w'mou201.00KWW". 101M RUTAN & Tuc:,_a ATTOI.M[Y� AT LAW Riverside Local Agency Formation Commission October 21, 1992 Page 3 as having significant impacts. Mitigation is proposed in most cases, but is inadequate and fails to meet requirements of CEQA and the State Guidelines. of particular concern is the attempt to reference a "future EIR" to be prepared by the County of Riverside which, it is asserted, will address all impacts, establish mitigation measures and set forth overriding considerations with respect to this project. No title, date or abbreviated report is attached or included for reference. The referenced proposed EIR is uncertified and is identified as being for "future" consideration. b. No statement of overriding considerations is included in the City record furnished to LAFCO. C. The documentation lacks a clear, positive presentation of impacts, effects and mitigation measures. d. The conclusions are unsupported by the documentation presented and do not meet the legal standards required for findings. Meaningful supportive data to validate these conclusions are not included. If such studies do not exist, a complete EIR should have been required. Given these deficiencies, at best, the project should have been deferred until the referenced County EIR was completed, certified and usable as a portion of the data base. Alternatively, the City should have performed the necessary studies and developed the mitigation program as required by law. Based on the foregoing, we believe a continuance of this matter is justified in order for our client to have an adequate opportunity to complete its evaluation of the materials submitted and to address these matters with the City of Palm Desert and the Commission. FOZ5M01 f201-=1%01$M. IORt/P2 1u icy �c 7� l � �y RVTAN 6 TUCK1.. ATTQRNRrs AT LAW •w ". re.�...n.wo.,....rs M. Riverside Local Agency Formation Commission October 21, 1992 Page 4 Thank you for your consideration. Very truly yours, RUTAN b ER Rog ble RAG rpwmotsaotmotuwun. t�ttros CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT TRANSMITTAL LETTER I . TO: Honorable Mayor and City Council II . REQUEST: Approval of preannexation development agreement as it pertains to the future development of a 75 acre site located on the north side of Dinah Shore Drive approximately 1295 feet west of Monterey Avenue. III . APPLICANT: A.J. Lou aka Alyce Lazar 334 Hermosa Place Palm Springs, California 92262 IV. CASE NO: DA 92-1 V. DATE: December 3, 1992 VI . CONTENTS : A. Staff Recommendation B. Discussion C . Draft Ordinance No. and Development Agreement D. Legal Notice ---------------------------------------------------------------------- A. STAFF RECOMMENDATION: Waive further reading and pass Ordinance No. to second reading. B. DISCUSSION: This matter was before planning commission at its December 1 , 1992 meeting. Staff will report to council the planning commission comments and action. At this time we do not have a development proposal for this property. Prior to being annexed into the city the owner wishes to enter into this development agreement which will control development and limit conditions and fees the city may impose on this property until December 31, 2012 . Prepared by: Reviewed and Approved by: SRS/tm ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND A.J. LOU AKA ALYCE LAZAR PERTAINING TO THE FUTURE DEVELOPMENT OF A 75 ACRE SITE LOCATED ON THE NORTH SIDE OF DINAH SHORE DRIVE . CASE NO. DA 92-1 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the City Council of the City of Palm Desert, California, did on the 3rd day of December, 1992 , hold a duly noticed public hearing to consider the request of A.J. Lou aka Alyce Lazar to consider the above mentioned project; and WHEREAS, the planning commission did hold a duly noticed public hearing on this matter on December 1, 1992 and has recommended approval of said development agreement; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1 , Ordinance No. 683, and no further documentation is necessary; 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 city council did find the following: 1 . That the development agreement is consistent with the provisions of Section 25 . 37 Development Agreements . NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows : 1 . That the above recitations are true and correct and constitute the findings of the city council in this case. 2 . That the city council does hereby approve the Development Agreement, Exhibit 'A' , between the City of Palm Desert and A.J. Lou aka Alyce Lazar. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council, held on this day of 1992 , by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: RICHARD S. KELLY, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California � a CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT TRANSMITTAL LETTER I . TO: Honorable Mayor and City Council II . REQUEST: Approval of preannexation development agreement as it pertains to the future development of a 70 . 67 acre site located on the east side of Monterey Avenue, 2666 feet north of Gerald Ford Drive. III . APPLICANT: Mc Properties, A Partnership MacLeod Couch Land Company, A Partnership 777 S . Pacific Coast, #204 Solano Beach, California 92075 IV. CASE NO: DA 92-2 V. DATE: December 3 , 1992 VI . CONTENTS : A. Staff Recommendation B. Discussion C .. Draft Ordinance No. and Development Agreement D. Legal Notice ---------------------------------------------------------------------- A. STAFF RECOMMENDATION: Waive further reading and pass Ordinance No. to second reading. B. DISCUSSION: This matter was before planning commission at its December 1 , 1992 meeting . Staff will report to council the planning commission comments and action. At this time we do not have a development proposal for this property. Prior to being annexed into the city the owners wish to enter into this development agreement which will control development and limit conditions and fees the city may impose on this property. Prepared by: Reviewed and Approved by: SRS/tm i ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND MC PROPERTIES, A PARTNERSHIP, AND MACLEOD COUCH LAND COMPANY, A PARTNERSHIP, PERTAINING TO THE FUTURE DEVELOPMENT OF A 70 . 67 ACRE SITE ON THE EAST SIDE OF MONTEREY AVENUE, 2666 FEET SOUTH OF GERALD FORD DRIVE. CASE NO. DA 92-2 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the City Council of the City of Palm Desert, California, did on the 3rd day of December, 1992, hold a duly noticed public hearing to consider the request of MC Properties, A Partnership, and MacLeod Couch Land Company, A Partnership, to consider the above mentioned project; and WHEREAS, the planning commission did hold a duly noticed public hearing on this matter on December 1, 1992 and has recommended approval of said development agreement; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No . 683, and no further documentation is necessary; 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 city council did find the following: 1 . That the development agreement is consistent with the provisions of Section 25 . 37 Development Agreements . NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows : 1 . That the above recitations are true and correct and constitute the findings of the city council in this case. 2 . That the city council does hereby approve the Development Agreement, Exhibit 'A' , between the City of Palm Desert and MC Properties , A Partnership, and MacLeod Couch Land Company, A Partnership. i 1 ORDINANCE NO. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council , held on this day of 1992 , by the following vote, to wit: AYES : NOES : ABSENT: ABSTAIN: RICHARD S. KELLY, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California 2 � w CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT TRANSMITTAL LETTER I . TO: Honorable Mayor and City Council II . REQUEST: Approval of preannexation development agreement as it pertains to the future development of real property located within Annexation No. 30 . III . APPLICANTS : Rancho Mirage Industrial Park A California Limited Partnership Ruyen International Corporation c/o Mike Peccorini 327 W. Court Street, No. 403 San Bernardino, California 92401 Henry Melby, Trustee of the B.H. Fortner Testamentary Trust P.O. Box 10310 Glendale, California 91209 Bernard and Jeanett DeBonne P.O. Box 1935 Palm Desert, California 92261 IV. CASE NO: DA 92-3 V. DATE: December 3, 1992 VI . CONTENTS : A. Staff Recommendation B. Discussion C . Draft Ordinance No. and Development Agreement D. Legal Notice ---------------------------------------------------------------------- A. STAFF RECOMMENDATION: Waive further reading and pass Ordinance No. to second reading. B. DISCUSSION: This matter was before planning commission at its December 1, 1992 meeting. Staff will report to council the planning commission comments and action. STAFF REPORT DA 92-3 DECEMBER 3 , 1992 At this time we do not have a development proposal for this property. Prior to being annexed into the city the owners wish to enter into this development agreement which will control development and limit conditions and fees the city may impose on this property. Prepared by: Reviewed and Approved by: SRS/tm 2 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND RANCHO MIRAGE INDUSTRIAL PARK A CALIFORNIA LIMITED PARTNERSHIP , RUYEN INTERNATIONAL CORPORATION; HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST; AND BERNARD AND JEANETT DEBONNE, FOR THE FUTURE DEVELOPMENT OF REAL PROPERTY LOCATED WITHIN ANNEXATION NO. 30 . CASE NO. DA 92-3 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the City Council of the City of Palm Desert, California, did on the 3rd day of December, 1992, hold a duly noticed public hearing to consider the request of Rancho Mirage Industrial Park, a California Limited Partnership, Ruyen International Corporation; Henry Melby, Trustee of the B.H. Fortner Testamentary Trust; and Bernard and Jeanett DeBonne, to consider the above mentioned project; and WHEREAS, the planning commission did hold a duly noticed public hearing on this matter on December 1, 1992 and has recommended approval of said development agreement; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No. 683, and no further documentation is necessary; 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 city council did find the following: 1 . That the development agreement is consistent with the provisions of Section 25 . 37 Development Agreements . NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows : 1 . That the above recitations are true and correct and constitute the findings of the city council in this case. 2 . That the city council does hereby approve the Development Agreement, Exhibit 'A' , between the City of Palm Desert and Rancho Mirage Industrial Park, A California Limited Partnership, Ruyen International Corporation; Henry Melby, Trustee of the B.H. Fortner Testamentary Trust; and Bernard and Jeanett DeBonne. I ORDINANCE NO. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council , held on this day of , 1992 , by the following vote, to wit: AYES : NOES : ABSENT: ABSTAIN: RICHARD S . KELLY, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California 2 t 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260-2578 TELEPHONE(619)346-0611 FAX(619)340-0574 PLANNING COMMISSION MEETING NOTICE OF ACTION Date: December 3, 1992 A. J. Lou aka Alyce Lazar 334 Hermosa Place Palm Springs , California 92262 Re : ✓A 92-1 Preannexation Development Agreement The Planning Commission of the City of Palm Desert has considered your request and taken the following action at its meeting of December 1 , 1992 . PLANNING COMMISSION ADOPTED RESOLUTION NO. 1596 FORWARDING DA 92-1 PREANNEXATION DEVELOPMENT AGREEMENT TO CITY COUNCIL WITHOUT COMMENT. CARRIED 5-0 . Any appeal of the above action may be made in writing to the Director of Community Development, City of Palm Desert, within fifteen ( 15 ) days of the date of the decision. f is� p G"y�Cv� RAMON A. DIAZ , SECRETARY PALM DESERT PLANNING COMMISSION RAD/tm cc : Coachella Valley Water District Public Works Department Building & Safety Department Fire Marshal I PLANNING COMMISSION RESOLUTION NO. 1596 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, FORWARDING TO CITY COUNCIL A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND A.J. LOU AKA ALYCE LAZAR PERTAINING TO THE FUTURE DEVELOPMENT OF A 75 ACRE SITE LOCATED ON THE NORTH SIDE OF DINAH SHORE DRIVE . CASE NO. DA 92-1 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 1st day of December, 1992, hold a duly noticed public hearing to consider the request of A.J. Lou aka Alyce Lazar to consider the above mentioned project; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89 , " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No. 683 and no further documentation is necessary; and 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 Preannexation Development Agreement Exhibit 'A' attached hereto is hereby forwarded to city council for action. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 1st day of December, 1992 , by the following vote, to wit: AYES : COX, JONATHAN, WHITE, WHITLOCK, SPIEGEL NOES : NONE ABSENT: NONE ABSTAIN: NONE e'i ROBERT SPIEGE , , man ATTEST: e."', - 46 RAMON A. DIAZ , S`ecy6jary Palm Desert Planniftg Commission i eJ 73-510 FRED WARING DRIVE, PALM DESERT, CALIFORNIA 92260-2578 TELEPHONE(619)346-0611 FAX(619)340-0574 PLANNING COMMISSION MEETING NOTICE OF ACTION Date: December 3, 1992 MC Properties , A Partnership MacLeod Couch Land Company, A Partnership 777 S. Pacific Coast #204 Solano Beach, California 92075 Re: ADA 92-2 The Planning Commission of the City of Palm Desert has considered your request and taken the following action at its meeting of December 1, 1992 . PLANNING COMMISSION ADOPTED RESOLUTION NO. 1597 FORWARDING DA 92-2 PREANNEXATION DEVELOPMENT AGREEMENT TO CITY COUNCIL WITHOUT COMMENT. CARRIED 5-0. Any appeal of the above action may be made in writing to the Director of Community Development, City of Palm Desert, within fifteen ( 15) days of the date of the dec ' ion. RAM N�A�p1AZ , EC ARY PALM DESERT PLANNI COMMISSION RAD/tm cc : Coachella Valley Water District Public Works Department Building s Safety Department Fire Marshal PLA—*ING COMMISSION RESOLUTION 1. 1597 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, FORWARDING TO CITY COUNCIL A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND MC PROPERTIES , A PARTNERSHIP, AND MACLEOD COUCH LAND COMPANY, A PARTNERSHIP, PERTAINING TO THE FUTURE DEVELOPMENT OF A 70 . 67 ACRE SITE ON THE EAST SIDE OF MONTEREY AVENUE, 2666 FEET SOUTH OF GERALD FORD DRIVE . CASE NO. DA 92-2 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 1st day of December, 1992, hold a duly noticed public hearing to consider the request of MC Properties A Partnership and MacLeod Couch Land Company A Partnership to consider the above mentioned project; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No . 683 and no further documentation is necessary; and 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 Preannexation Development Agreement Exhibit 'A' attached hereto is hereby forwarded to city council for action . PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 1st day of December, 1992 , by the following vote, to wit: AYES: COX, JONATHAN, WHITE, WHITLOCK, SPIEGEL NOES: NONE ABSENT: NONE ABSTAIN: NONE RROBERT SPIEGE , n ATTEST: RAMON A. DIAZ , ec ary g Palm Desert Planni Commission �. Mo 7 oq rd DM N 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260-2578 TELEPHONE(619)346-0611 FAX(619)340-0574 PLANNING COMMISSION MEETING NOTICE OF ACTION Date : December 3, 1992 Rancho Mirage Industrial Park Bernard and Jeanett DeBonne A California Limited Partnership P.O. Box 1935 Ruyen International Corporation Palm Desert, California 92261 c/o Mike Peccorini 327 W. Court Street, No. 403 San Bernardino, California 92401 Henry Melby, Trustee of the S.H. Fortner Testamentary Trust P.O. Box 10310 Glendale, California 91209 Re: V///DA 92-3 Preannexation Development Agreement The Planning Commission of the City of Palm Desert has considered your request and taken the following action at its meeting of December 1, 1992 . PLANNING COMMISSION ADOPTED RESOLUTION NO. 1598 FORWARDING DA 92-3 PREANNEXATION DEVELOPMENT AGREEMENT TO CITY COUNCIL WITHOUT COMMENT. CARRIED 5-0 . Any appeal of the above action may be made in writing to the Director of Community Development, City of Palm Desert, within fifteen ( 15) days of the date of the decision. AZ , V ARY PALM DESERT PLANNCOMMISSION RAD/tm cc: Coachella Valley Water District Public Works Department Building & Safety Department Fire Marshal t PLANNING COMMISSION RESOLUTION NO. 1598 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, FORWARDING TO CITY COUNCIL A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND RANCHO MIRAGE INDUSTRIAL PARK, A CALIFORNIA LIMITED PARTNERSHIP, RUYEN INTERNATIONAL CORPORATION; HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST; AND BERNARD AND JEANETT DEBONNE, AS IT PERTAINS TO . THE FUTURE DEVELOPMENT OF REAL PROPERTY LOCATED WITHIN ANNEXATION NO. 30 . CASE NO. DA 92-3 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 1st day of December, 1992 , hold a duly noticed public hearing to consider the request of Rancho Mirage Industrial Park, a California Limited Partnership, Ruyen International Corporation; Henry Melby, Trustee of the B.H. Fortner Testamentary Trust; and Bernard and Jeanett DeBonne, to consider the above mentioned project; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1 , Ordinance No . 683 and no further documentation is necessary; and 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 Preannexation Development Agreement Exhibit 'A' attached hereto is hereby forwarded to city council for action . PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 1st day of December, 1992 , by the following vote, to wit: AYES: COX, JONATHAN, WHITE, WHITLOCK, SPIEGEL NOES : NONE ABSENT: NONE ABSTAIN: NONE // RO�ERT SPIEGEL C ATTEST: RAM ON A. DIAZ , Efecpcjary Palm Desert PlanniM Commission l ANT M rdum Dw&N 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260-2578 TELEPHONE(619)346-0611 FAX(619)340-0574 PLANNING COMMISSION MEETING NOTICE OF ACTION Date: December 3, 1992 Monterey Palms c/o Gale Messick P.O. Box 1315 Glendora, California 91740 Re: V/A 92-4 Preannexation Development Agreement The Planning Commission of the City of Palm Desert has considered your request and taken the following action at its meeting of December 1 , 1992 . PLANNING COMMISSION ADOPTED RESOLUTION NO. 1599 FORWARDING DA 92-4 PREANNEXATION DEVELOPMENT AGREEMENT TO CITY COUNCIL WITHOUT COMMENT. CARRIED 5-0 . CARRIED 5-0 . Any appeal of the above action may be made in writing to the Director of Community Development, City of Palm Desert, within fifteen ( 15 ) days of the date of the decision. RAM N A. DIAZ , C ARY PALM DESERT PLANNI COMMISSION RAD/tm cc: Coachella Valley Water District Public Works Department Building & Safety Department Fire Marshal PLANNING COMMISSION RESOLUTION NO. 1599 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, FORWARDING TO CITY COUNCIL A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND MONTEREY PALMS FOR THE FUTURE DEVELOPMENT OF REAL PROPERTY LOCATED WITHIN ANNEXATION NO. 30 . CASE NO. DA 92-4 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 1st day of December, 1992, hold a duly noticed public hearing to consider the request of Monterey Palms to consider the above mentioned project; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No. 683 and no further documentation is necessary; and 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 Preannexation Development Agreement Exhibit 'A' attached hereto is hereby forwarded to city council for action. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this lst day of December, 1992 , by the following vote, to wit : AYES : COX, JONATHAN, WHITE, WHITLOCK, SPIEGEL NOES: NONE ABSENT: NONE ABSTAIN: NONE ROB RT SPIEGEL, Cria rman ATTEST: RA N A. DfAZ gec ary Palm Desert Planni Commission MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 1 , 1992 no, the type of use would not change only the type of ownership. Mr. Joy also clarified that the subdivision was still one lot, it would just create air space units . Commissioner White noted that this was equivalent to an apartment complex being subdivided into condominiums only in a commercial setting; Mr. Joy concurred and said that in a commercial situation, the number of units that would be critical in an apartment situation did not exist in this case. Chairman Spiegel opened the public testimony and asked the applicant to address the commission. MS . LYDIA SHINOHARA, Pacific Engineering & Associates at 41-230 Carlotta Drive in Palm Desert, stated that she was present on behalf of the applicant . She concurred with the presentation and recommendation of staff and was present to answer any questions . Chairman Spiegel asked if anyone wished to address the commission in FAVOR or OPPOSITION to the proposal; there was no one and the public testimony was closed. Commissioner White stated that it looked like a straight forward matter and moved for approval . Action: Moved by Commissioner White, seconded by Commissioner Whitlock, adopting the findings as presented by staff . Carried 5-0 . Moved by Commissioner White, seconded by Commissioner Whitlock, adopting Planning Commission Resolution No. 1595, approving PM 27666, subject to conditions . Carried 5-0 . 1 �•1 Case No. DA 92-1/Preannexation Development Agreement - �J A.J. LOU aka ALYCE LAZAR, Applicant Request for adoption of a resolution recommending to city council approval of a preannexation development agreement as it pertains to the future development of a 75 acre site on the north side of Dinah Shore Drive, 1295 feet west of Monterey Avenue. 5 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 1, 1992 Mr . Diaz stated that per the city attorney it was possible to simultaneously hold the public hearing for the four development agreements because they were interrelated. He said the city attorney assured staff that what was in the development agreement just distributed was the same as in the two agreements previously. He said that commission could hold separate hearings for each agreement or hear them at the same time. Commission determined that it would be acceptable to hear the four development agreement hearings simultaneously. The city attorney advised Chairman Spiegel to read all four items for the record, which he did. D. Case No. DA 92-2/Preannexation Development Agreement - MC PROPERTIES, A PARTNERSHIP, AND MACLEOD COUCH LAND COMPANY, A PARTNERSHIP, Applicants Request for adoption of a resolution recommending to city council approval of a preannexation development agreement as it pertains to the future development of a 70 . 67 acre site on the east side of Monterey Avenue, 2666 feet north of Gerald Ford Drive. E. Case No. DA 92-3 - RANCHO MIRAGE INDUSTRIAL PARK/RUYEN INTERNATIONAL CORPORATION, HENRY MELBY/TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST, AND BERNARD AND JEANETT DEBONNE, Applicants Request for adoption of a resolution recommending to city council approval of a preannexation development agreement as it pertains to the future development of real property located within Annexation No. 30 . F. Case No. DA 92-4/Preannexation Development Agreement - MONTEREY PALMS, Applicant Request for adoption of a resolution recommending to city council approval of a preannexation development agreement between the City of Palm Desert and 6 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 1, 1992 Monterey Palms for future development of a 72 acre site within Annexation #30 . Mr. Diaz informed commission that the purpose of the development agreements was to solidify the development rights in terms of potential uses, as well as some of the public infrastructure and where the major access points might be and where signalization might occur in the future for the properties involved. All of the development agreements merely solidified what was already allowed as part of the preannexation zoning, which was done a couple of months ago for all of the parcels . In effect what was allowed under the development agreements was what was allowed under the present zoning. The one exception was the six story, 240 room hotel that was being requested by the MacLeod Couch development agreement, case no. DA 92-2 . Within that area the hotel would have to be developed in the same manner in terms of distance from the highway as the Marriott, which was seven stories and 972 rooms . All of the uses identified in every development agreement would have to go through the public hearing aspect of the precise plan process . At that time the design would be reviewed. The only thing the city could not do was say they could not have the use, which they could not do anyway because it was in the zoning. Access from Monterey Avenue and the signalization had been determined through the hearings that took place. In the case of DA 92-3, Rancho Mirage Industrial Park, it was determined after long, strenuous hearings with the County of Riverside, as well as the courts of Riverside County in litigation between the City of Rancho Mirage, Riverside County and the property owner. The development agreements would simplify exactly where access would be off Monterey, where the signals would be off Monterey and they answered the questions as to whether flyovers off Monterey would be included. All the agreements set forth the fact that none of the property owners who did not abut Portola Avenue would be responsible for the extension of Portola Avenue . That was not a problem. He said the city' s policy has always been that properties that are adjacent to the street when they develop would provide that street. The major property owner on the west side of Portola Avenue north of the extension of Gerald Ford Drive was the City of Palm Desert, so when the city developed that property, it would have to install that street . He indicated that the city might be precluded from establishing an assessment district to extend Portola Avenue, but based on recent experiences with assessment districts for streets, he was not sure the city would want to do that. The 7 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 1, 1992 only time assessment districts had been done in Palm Desert was when the property owners had come together and agreed to pay for it. If these property owners changed their minds and decided to do an assessment district to extend Portola, it could be done. The agreements would give comfort to property owners that the city would not limit the uses of their land for a period of time and would not place conditions of approval that were not connected with their development, which had always been the city' s policy. It would also give the city assurances that this was how the property would develop in terms of uses and in terms of access . If at any time there were changes, they could be discussed. Staff recommended approval of all the agreements . He indicated that Mr. Phillips would advise commission on how to adopt the resolutions to send them forth to city council . In terms of the overall annexation for the entire area, which included the Price Club and Home Base, this was the next step. He noted that the property had been prezoned and they had been before the Local Agency Formation Commission. He stated that there was litigation involved in the entire process--litigation that was challenging the preannexation zoning based on the California Environmental Quality Act. The approval of the development agreements would satisfy and settle that litigation. The next step would be for city council to approve the development agreements and they had reviewed them as part of the litigation. In terms of instruction given to staff by council, these agreements were consistent with those instructions in the past. If council approved the agreements and adopted appropriate resolutions, then the city would go back to the Local Agency Formation Commission for the last approval and the area would be in the city by the end of December. The reason that December was the critical time was that the County Assessor stipulated that if a property was not annexed into a city by December 31, then that city loses all of the property tax from that area for the next year. The sales tax would be gained because that was up to the Board of Equalization, which was up to the state. He said that staff was prepared to answer any questions and recommended approval . Commissioner White asked if the development agreement encompassed the cost of expanding the bridge over Monterey and putting in a bridge over the proposed Portola Avenue. Mr. Diaz replied that Riverside County had taken the lead on the Monterey interchange expansion and they were responsible for establishing that assessment district, so the agreements would not cover that. Under the present general plan, the current 8 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 1 , 1992 circulation element did not have a bridge across Interstate 10 at Portola. Portola ended at Dinah Shore and when the general plan was amended, the city could extend it. He said that the cost of those bridges were not included in the development agreements . He indicated that these properties were not precluded from building that bridge, but the appropriate hearings would have to done. He confirmed that the development agreements would not exclude these property owners from being part of that. Commissioner White asked if the usual fees for parks, art in public places, etc. , were included in the development agreements, or just understood under the city ordinances in effect. Mr. Diaz replied that it was his understanding that the fees in effect at the time the properties came in for development would be imposed. Mr. Phillips said that it was addressed in some degree in the development agreements; he informed commission that the city could not impose an impact fee on these property owners that were not imposed city-wide. Commissioner Jonathan asked what the commission ' s options were in terms of moving this along to council . He noted that in the past they had passed along a case to city council without comment and asked if this was an option in this case. Mr. Phillips concurred that was an option; he said that commission could approve the development agreements, deny them, send them to council with comments or send them to council without comments . Chairman Spiegel indicated that they would go to city council whether or not the commission acted on them; Mr. Phillips replied that commission could continue the item, but staff and the city would be put in a difficult position. Mr. Diaz said that if there were concerns, the commission should raise them now--he felt that the concerns would come up when the precise plans actually came to the commission at a public hearing. Mr. Phillips requested that commission take some type of action so that the matter could proceed to meet the year-end deadline. Chairman Spiegel asked for clarification on the comment that the development agreements would alleviate the commission' s ability to limit the use of the land; Mr. Diaz said that the city knew what uses could be used on the land and basically every use spelled out in the agreements were within the Palm Desert Zoning Ordinance and was consistent with the city' s policy in terms of the DA 92-3 area where the city stated in the past that they would abide by any county approvals for that length of time. From that standpoint the city was not 9 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 1 , 1992 limited. The property was prezoned for the most part regional commercial and planned industrial, which would allow everything but housing. He stressed that it did not limit the city and gave them comfort. He stated that the agreements solved the problem of future access and signalization on Monterey, which were tied-in with county approvals . Chairman Spiegel opened the public testimony and asked if any of the applicants wished to address the commission. MS . CYNTHIA LUDVIGSON, representing Rancho Mirage Industrial Park, said that under this agreement her client had an approved parcel map under Riverside County and under the agreement the city agreed to accept that parcel map with its terms and conditions as a valid parcel map. There would be no new fees or terms of conditions which could be added. She noted that the Fortner property also had a tract map approved by the County of Riverside and that map would also be accepted. One of the conditions in Rancho Mirage Industrial Park' s parcel map was a contribution for the bridge at Monterey. She informed commission that the contribution was over $1 million, which was to be made to fund the overpass and bridge reconstruction. Other fees and conditions related to traffic impacts and mitigation measures and parks were the ones to be accepted by the city. She stated that her clients wanted to be assured that the parcel map they have approved would not need to be repeated. There was extensive litigation on the parcel map with the County and they did not want to subject themselves to any more. She said she was present to answer any questions . Mr. Diaz clarified that even without the development agreements, the parcel maps and tentative maps approved by the county would have to be honored by the city. Commissioner White asked if there were any differences between the fees recommended by the county and what the city would normally expect to receive from such a property. Mr. Diaz replied that the county fees covered virtually everything the city did, i .e . drainage and signalization; the only different fee might be art in public places, but when the precise plan of design came before commission for approval, it could be discussed then. He noted that the art fee was not a fee that would be placed on a subdivision map normally. Commissioner White asked if the fees the county expected to receive would 10 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 1, 1992 be the same as the fees the city would expect to receive and if that had come directly into Palm Desert. Mr. Diaz answered that he did not know the exact differences in the amount of the fees . He said that it was the type of fees that were there and the amount of the fees would be Palm Desert' s . Mr. Phillips concurred. Chairman Spiegel asked if anyone wished to address the commission in FAVOR or OPPOSITION. There was no one and the public testimony was closed. Commissioner Jonathan stated that historically development agreements were Pandora' s boxes and what seemed innocuous often turned out not to be. He was not comfortable dealing with the detail presented to the commission, including a revised 26 page agreement that they were just handed and he had not had the opportunity to read. His feeling regarding development agreements was that if council wanted the commission to really get serious about them, then they should be handled properly with study sessions where they could hear from the attorneys in detail, they should know what ' s going on and what each party was getting or not getting. If not, in the interest in deferring to staff and to council, he suggested moving this item to the city council to let them deal with it. In that regard they could pass the agreement along without comment or recommendation. Mr. Diaz indicated that the agreement distributed to commission brought into account the two development agreements the commission had before the meeting and there were no changes to them. Council and staff was very interested in the commission' s comments and concerns with the agreements . He noted that timing was a problem, but if commission wanted, the meeting could be recessed for half an hour or so to allow the commission to read the larger agreement so that the commission could be comfortable with the fact that it contained what the city attorney said it did. If there were specific concerns and issues with each of the development agreements, staff and commission could go through them. He did not want to rush the judgement. Commissioner Jonathan stated that for him, that would not be sufficient. For him to be critical and give a meaningful opinion would require a far greater amount of time--a study session with give and take and possibly meeting jointly with the city council, staff and legal counsel . He knew how much 11 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 1, 1992 went into the agreements and there were other agendas being played out and he was not aware of what they were. He was not uncomfortable sending it to council because he felt they were aware of the other agendas . He said he could not give an affirmative recommendation that the agreements were appropriate. He noted that he did not even know what the goals and objectives of the city were with regard to the property, much less whether these agreements would accomplish those goals . He stated that he personally felt out of the loop, but because he did not want to hold the agreements up, he favored sending them on to city council without comment. Commissioner Whitlock felt that commission had to be able to rely upon legal counsel and staff in many instances and this was one of those instances where counsel and staff were the experts . They spent the time on the documents and if they felt the agreements were appropriate for the commission to move it forward, she felt the commission should do so. She concurred with Commissioner Jonathan in that she was not comfortable in making comments because she did not have the experience of staff and counsel . She noted that they only had a few days for reviewing the agreements and it was during a holiday. She favored moving the agreements forward without specific comments . Commissioner White said that he was not apart of the March 17 or April 21 discussions concerning the development agreements . He was uncomfortable also and although he was in the legal profession he did not deal with development agreements and they were very complicated. There were many times things which were done in agreements for reasons perhaps the people directly involved understood, but others didn' t and for that reason he felt it was a good idea for the commission to pass the agreements to council, who were more familiar with the specific details . Commissioner Cox echoed the concerns of the other commissioners and while she was new on the commission, she read the material that was in the packet, but had not had the opportunity to read the new agreements . She agreed with sending the item to city council without comment. Chairman Spiegel said that he assumed that the agreements were presented to the planning commission because that was the proper procedure. The comment on hidden agendas was appropriate and there was no way he or the other commissioners 12 I MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 1, 1992 could know what those agendas were. The only action that would be unacceptable to staff and counsel would be a continuance, which would allow the commission to obtain more information on the agreements . But because of the time frame, that was not feasible. He also felt it would be inappropriate for him to vote in favor or opposition to the agreements because he did not understand them. He agreed with Commissioner Jonathan that the commission was out of the loop. Commissioner Jonathan proposed a motion to send all the agreements to city council without comment. Mr. Phillips advised the commission to adopt a resolution to that effect for each separate agreement. Action: Moved by Commissioner Jonathan, seconded by Commissioner Cox, adopting Planning Commission Resolution No. 1596, forwarding DA 92-1/Preannexation Development Agreement to city council without comment. Carried 5-0 . Action: Moved by Commissioner Jonathan, seconded by Commissioner Cox, adopting Planning Commission Resolution No. 1597, forwarding DA 92-2/Preannexation Development Agreement to city council without comment. Carried 5-0 . Action: Moved by Commissioner Jonathan, seconded by Commissioner Cox, adopting Planning Commission Resolution No. 1598, forwarding DA 92-3/Preannexation Development Agreement to city council without comment . Carried 5-0 . Action: Moved by Commissioner Jonathan, seconded by Commissioner Cox, adopting Planning Commission Resolution No. 1599, forwarding DA 92-4/Preannexation Development Agreement to city council without comment. Carried 5-0. Chairman Spiegel felt it was important that city council know the feelings of the planning commission. If the state said an item had to come before them, it would, but they should let commission know what was going on. 13 • CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT TO: Planning Commission DATE: December 1 , 1992 CASE NO: DA 92-4 Preannexation Development Agreement REQUEST: Approval of a resolution recommending to the city council approval of a development agreement between the City of Palm Desert and Monterey Palms for future development of a 72 acre site within Annexation #30 . APPLICANT: Monterey Palms c/o Gale Messick P.O. Box 1315 Glendora, California 91740 I . BACKGROUND: Planning commission will recall processing the prezoning of this area on March 17 , 1992 and April 21, 1992 . The prezoning was confirmed by the city council and the annexation processed through LAFCO. LAFCO approved the annexation October 22 , 1992 subject to the city council holding a protest hearing. The protest hearing will be held December 17, 1992 . Several property owners in the area to be annexed have requested that the city enter into a preannexation development agreement which will assure their future development rights among other matters . Failure of the city to enter into the development agreements could result in the annexation being terminated due to protests . II . CEQA REVIEW: The prezoning and decision to process the annexation of this area were reviewed for compliance with CEQA. This development agreement allows for future development of the property with uses and are subject to terms which are consistent with the zoning imposed by the prezone ordinance #683 (Case C/Z 92-1) . The environmental assessment conducted for Ordinance No. 683, C/Z 92-1, is hereby adopted by reference. Therefore, no further documentation is necessary at this time. Of course, when a specific development project is submitted additional environmental review will be necessary. STAFF REPORT DA 92-4 DECEMBER 1, 1992 III . RECOMMENDATION: That planning commission adopt its Resolution No. recommending to the city council approval of the preannexation development agreement between the City of Palm Desert and Monterey Palms, Exhibit 'A' attached to the draft resolution. IV. ATTACHMENTS : A. Draft Resolution B. Development Agreement C . Legal Notice Prepared by Reviewed and Approved by SRS/tm 2 PLANNING COMMISSION RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL APPROVAL OF A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND MONTEREY PALMS FOR THE FUTURE DEVELOPMENT OF REAL PROPERTY LOCATED WITHIN ANNEXATION NO. 30 . CASE NO. DA 92-4 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 1st day of December, 1992, hold a duly noticed public hearing to consider the request of Monterey Palms to consider the above mentioned project; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No. 683 and no further documentation is necessary; 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 preannexation development agreement: 1 . The provisions of the development agreement are consistent with the requirements of Chapter 25 . 37 of the Zoning Ordinance (development agreement) . 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 Preannexation Development Agreement Exhibit 'A' attached hereto 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 December, 1992, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ROBERT SPIEGEL, Chairman ATTEST: RAMON A. DIAZ, Secretary Palm Desert Planning Commission 1 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: EXHIBIT A Lynn D. Crandall Crandall & Traver 43-645 Monterey Avenue, Suite D Palm Desert, CA 92260 DEVELOPMENT AGREEMENT ENTERED INTO BETWEEN THE CITY OF PALM DESERT AND MONTEREY PALMS, A CALIFORNIA LIMITED PARTNERSHIP DEVELOPMENT AGREEMENT THIS DEVELOPMENT ("Agreement") is entered into on the day of , 1992, between MONTEREY PALMS, A California Limited Partnership ("Owner") , and the CITY OF PALM DESERT, a municipal corporation organized and existing under the laws of the State of California (the "City") . Owner and the City are sometimes collectively referred to herein as 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 65864-65869.5 ("Development Agreement Law") authorize the City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and reducing the economic costs of such development. C. Pursuant to Government Code Section 65865, the City has adopted rules and regulations establishing procedures and requirements for consideration of development agreements. D. Owner is the owner of the real property described on Exhibit "A", attached hereto and incorporated herein by this reference (the "Property") . The Property is currently located within the unincorporated area of Riverside County, within the -1- LDC/112392/6305/01DEVEL.A City's sphere of influence. The City has initiated proceedings for the annexation of the Property into the corporate boundaries of the City in accordance with the Cortese-Knox Act (Government Code Section 56000, et seq. ) , has certified and approved a negative declaration pursuant to the California Environmental Quality Act for prezoning, and has approved certain pre-annexation zoning for the Property. Such annexation proceedings will be completed following approval of this Agreement, and this Agreement shall not be effective until such time as the annexation proceedings are completed. E. Owner's property is currently zoned W-2-20 under the County of Riverside Land Use Ordinance and has a general plan designation of M (Industrial/Manufacturing) . Prior to approving such zoning, the County performed all required environmental analysis in accordance with CEQA. F. Owner intends to use its property for industrial and/or limited commercial uses and seeks certainty in the approval of the industrial or commercial uses of its property and with respect to the development of the Property. G. In partial consideration of Owner' support for the annexation of the Property into the City, the City has requested Owner to consider entering into this Agreement relating to the Property and proceedings have been taken in accordance with the development agreement law and the City' s rules and regulations. H. The City Council has found that this Agreement is consistent with the City' s general plan, as amended (the "General Plan") , and any applicable Specific Plan. -2- LOC/112392/6305/OIDEVEL.A I. On , 1992, the City Council of the City adopted Ordinance No. approving this Agreement with Owner. J. The "Development Criteria" as defined and specified below implement the goals and policies of the City's General Plan and provide balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the City, and impose appropriate standards and requirements with respect to land development and usage of the Property. K. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. This Agreement has undergone extensive review by the City's staff, the Planning Commission of the City, and the City Council and has been found to be fair, just and reasonable and in the best interest of the citizens of the City and the public health, safety and welfare. IN CONSIDERATION OF THE RECITALS AND THE MUTUAL COVENANTS AND CONDITIONS OF THIS AGREEMENT, the parties agree as follows: AGREEMENT 1. DEFINITIONS. 1. 1 "Agreement" is this Development Agreement. 1. 2 "Agreement Date" is the date this Agreement is executed by the City. -3- LDL/112392/6305/01DEVEL.A 1. 3 "CEQA" is the California Environmental Quality Act, Public Resources Code Section 21000, et sec . 1. 4 "City" is the City of Palm Desert, California. 1. 5 "County" is the County of Riverside, California. 1. 6 "Development Criteria" are: (a) All of those ordinances, resolutions, codes, rules, regulations and official policies of the City governing the development and use of the Property as of the Agreement Date, including, without limitation, the zoning approved by the City as part of the annexation of the Property to the City, which zoning shall be SI Service Industrial, the permitted uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings, the provisions for reservation of dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. Specifically, but without limitation, such Development Criteria includes Zone Change 92 . 1 adopted by the city council of the City on or about May 28 , 1992 . To the extent any of the foregoing are amended from time to time with the consent of Owner, the Development Criteria shall include such matters as so amended. Notwithstanding the immediately preceding sentence, if this Agreement is required by law to be amended in order for the Development Criteria to include such amendments, "Development Criteria" shall not include such amendments unless and until this Agreement is so amended. 1.7 "Effective Date" is that date which is the later to occur of the following: (a) the expiration date for the filing of a -4- LDC/112392/6305/01DEVEL.A referendum petition challenging the ordinance approving this Agreement if no such petition is filed by such date, (b) the date that the results of a referendum election are declared approving this Agreement, if a referendum petition is filed within the applicable period, or (c) the date the Property is annexed into the City. 1.8 "Owner" is Monterey Palms, A California Limited Partnership and its successors in interest to all or any part of the Property. 1. 9 "Property" is all of the real property and any improvements thereon described in Exhibit "A" attached hereto and incorporated herein by this reference. 2 . TERM. Unless earlier terminated as provided in this Agreement, this Agreement will commence on the date the Property is annexed into the City and will continue for a period of ten (10) years thereafter. 3 . RESTRICTIONS ON DEVELOPMENT AND USE. The development and use of the Property, including zoning, the density or intensity of use, the maximum height and size of proposed buildings, building setback requirements, parking requirements and provisions for reservation or dedication of land for public purposes, will be governed by the Development Criteria as the same exists on the Agreement Date. The City acknowledges and agrees that the Development Criteria specifically permit the development and use of the Property for such uses as are permitted -5- LDC/112392/6305/01DEVEL.A in the SI Service Industrial provided for in the City's Municipal Code as of the Agreement Date. Except with regard to those aspects of the development of the Property which are addressed in this Agreement, the parties acknowledge and agree that other aspects of the development of the Property may require the exercise of discretion by the City and that those aspects of the development of the Property will be subject to the City's reasonable review and approval as set forth in the City' s ordinances, resolutions, rules and regulations, as they exist from time to time; provided, however, that those ordinances, resolutions, rules and regulation are consistent with the Development Criteria and this Agreement and provided further that the City exercises its discretion in a manner which is consistent with this Agreement. 4 . DEVELOPMENT AND USE. 4 . 1 Owner will have the vested right to develop its Property to the extent covered by and in accordance with the Development Criteria and this Agreement without regard to future ordinances, resolutions, rules, regulations and policies of the City or referenda of the voters of the City including, without limitation, those with respect to moratoria for utility service, other than ordinances, resolutions, rules, regulations and policies of the City which limit or condition the rate, timing or sequencing of development of the Property and which are required solely as a result of then existing shortages of utility service capacity or facilities. -6- LDC/112392/6305/01DEVEL.A 4 . 2 On the request of Owner from time to time, the City will accept applications for, diligently process and issue, in accordance with the Development Criteria, any land use approvals and permits, subdivision approvals, building permits (including, without limitation, building permits for public improvements) , certificates of occupancy, business licenses and other permits which are necessary for the development or use of the Property in accordance with this Agreement, on payment of: (i) the City's usual and customary fees and charges which are in effect as of the Agreement Date, to cover its costs of processing any such applications and issuing any such approvals, permits and certificates ("Processing Fees and Charges") , and; (ii) the Development Impact Fees, at the time that the Processing Fees and Charges and the Development Impact Fees are normally payable as provided in the Municipal Code of the City. 4 . 3 In connection with subdivision mapping of property immediately to the north of the Property, discussions have included that Dinah Shore Drive is proposed to be extended across the Property to the northerly projection of Portola Drive, as required by the provisions of Parcel Map No. 24255. The City acknowledges that no agreement exists between it and Owner that Owner is to dedicate or pay, either directly or indirectly as for example by inclusion in an assessment district or by reimbursement agreement, for the cost of so extending Dinah Shore Drive from the northerly boundary of the Property to the northerly extension of Portola Avenue and that owner's only requirement in this regard shall be to perform conditions for the dedication of a right of way for Dinah -7- LDC/112392/6305/OIDEVEL.A Shore Drive and to provide street improvements, all only in connection with applications to subdivide or improve portions of the Property adjacent to Dinah Shore Drive. In addition, the parties acknowledge that no agreement exists between City and Owner with reference to portions of the subdivision map of the property immediately to the north of the Property that Owner will consent or sign a final subdivision map as to portions of the map which appear to encroach onto or include a portion of the Property. 4 .4 The City' s present plan is to extend the East one-half of Portola Avenue northerly from its present terminus to a point near the Southern Pacific Railroad right of way. The City agrees to do so at no cost to Owner provided that Owner will be required to dedicate one-half of the right of way in connection with the subdivision mapping of portions of the Property abutting Portola and to construct and pay for street improvements for those portions of Portola Avenue adjacent to the Property in connection with and as a condition to approvals for the development of portions of the Property abutting Portola, all in accordance with the Development Criteria. 4 .5 Notwithstanding provisions herein concerning the zoning applicable to the Property, City acknowledges that it may consider permitting commercial zoning on portions of property abutting Portola Avenue (or the northerly extension thereof from its present terminus) . City agrees that it will, in good faith, consider allowing a portion of the Property that will abut Portola Avenue after its northerly extension to be changed to a commercial zoning designation. -a- LDC/112392/6305/01DEVEL.A 5. DEVELOPMENT IMPACT FEES. 5. 1 "Development Impact Fees". The total development impact fees, including traffic mitigation fees, drainage fees, sewer connection fees, construction taxes and all other applicable development impact or linkage assessments, fees and charges which will be imposed on Owner with respect to the Property (collectively "Development Impact Fees") shall be those in force and effect as of the Agreement Date; provided, however, this section shall not be constructed to limit the authority of the City to increase the amount of the Development Impact Fees on a uniform city-wide basis so long as the amount of any increase, fee or charge after the Effective Date of this Agreement shall not exceed the increase in the reasonable cost of providing the improvement or service for which the fee or charge is imposed. The City also will not impose on or exact from any subsequent owner, developer, lessee or occupant of the Property, or any part thereof, any fees, taxes, charges or other impositions in substitution of any of the Development Impact Fees. 5.2 The parties agree that nothing in the Section 5 will be deemed to prohibit or limit in any way the imposition of fees by governmental agencies which are not sponsored by or under the control of the City including, without limitation, the State of California and the government of the United States. 6. ACCESS TO PROPERTY. 6. 1 In connection with the approval of the alignment of Dinah Shore Drive between the northerly boundary of the Property and the northerly extension of Portola Avenue, the City agrees that there -9- LDC/112392/6305/01DEVEL.A shall be a minimum distance between the southerly line of Dinah Shore Drive at Portola Avenue and the southerly boundary line of the Property at Portola Avenue of 500 feet; provided, however, if the subdivision map of that portion of the Property located at the southeast corner thereof includes an east/west access street at Portola Avenue approximately coterminous with the southerly boundary line of the Property as mentioned in subsection 6.2, then the 500 feet shall be measured from the northerly line of said access street, north to the southerly line of Dinah Shore Drive at Portola Avenue. The foregoing matters are depicted on the map attached hereto as Exhibit "B" . 6. 2 The City shall permit an east/west access street at Portola Avenue approximately coterminous with the southerly boundary line of the Property if desired by owner in connection with its subdivision mapping of the portion of the Property, as shown on Exhibit "B" hereto. 6. 3 The City shall permit at least two crossing points across the extension of Dinah Shore Drive within the Property and across the extension of a proposed east/west street (which the Owner MacLeod Couch Land Co. proposes to use as the principal access into their Property as shown on Exhibit "B" hereto; such access roadway is currently designed to proceed in an East/West direction, to approximately the Easterly boundary line of the MacLeod Couch property "MacLeod Street") . The two crossing points in Dinah Shore Drive are in addition to that which will exist at the intersection of Dinah Shore Drive and Portola Avenue and at the northerly boundary line of the Property at Dinah Shore Drive. The two -10- LDC/112392/6305/01DE9EL.A crossing points in MacLeod Street will be in the interior of the Property and will be in addition to any streets which are an extension of any street from the property abutting the Property and located to the north of the Property. 7 . PUBLIC IMPROVEMENTS AND SERVICES. 7 . 1 Owner shall not be required by the City to construct any public improvements or pay or make any dedications or reservations for any public improvements with respect to the Property until, and in connection with, the development of the Property or a portion thereof by Owner. Further, if only a portion of the Property is developed at a particular time, then only those public improvements, dedications, or reservations with respect to and adjacent to the developed portion of the Property shall be required by the City; provided, however, that non-adjacent public improvements may be required by the City in connection with the development of all or a portion of the Property if such public improvements are required to mitigate impacts identified in a traffic study done by the City with respect to the portion of the Property to be developed. Further, City shall not, without the prior written consent of Owner, include the Property within any assessment district, community services district or community facilities district formed pursuant to the Landscaping and Lighting Act of 1972, the Mello Roos Community Facilities Act of 1982, or any successor statutes or other bond or assessment acts adopted in connection with the development or maintenance of public improvements. -11- LDC/112392/6305/01DEVEL.A 7. 2 The proposed MacLeod Street is currently proposed to proceed in an East/West direction, to approximately the Easterly boundary line of the MacLeod Couch property and to thereafter proceed Northeasterly to intersect Dinah Shore Drive at right angles. City hereby acknowledges that no agreement exists to which it is a party that has finally agreed on the exact alignment of the extension of MacLeod Street through the Property and that the City will consider other alignments of MacLeod Street through the Property in connection with the subdivision process relating to the Property. 7 . 3 The City may desire that a boundary wall be constructed on or near and parallel to the southerly boundary line of the Property. No part of the cost of said wall shall be required by City to be paid by Owner unless, as between Owner and the owner of the property abutting the Property on the south, Owner seeks and obtains development approvals for its Property first in time. 8 . COMPLIANCE. The City will periodically review this Agreement as provided in Section 65865. 1 of the Government Code and the City Municipal Code, to ascertain Owner' good faith compliance with the provisions of this Agreement. 9 . DEFAULT BY OWNER. If the City does not find good faith compliance with the provisions of this Agreement by Owner, then the City will have all of the remedies which are provided in the City Municipal Code and will comply with all of the procedures which are provided in Section 65865. 1 of the Government Code and the City Municipal Code. -12- LDC/112392/6305/01DEVEL.A 10. DEFAULT BY THE CITY. If the City fails to perform any of its obligations as provided in this Agreement and fails to cure its nonperformance within 30 days after notice of nonperformance is given by Owner, then the City will be in default and Owner will have all of the remedies which are available to it at law or in equity; provided, however, that if the City's failure to perform cannot reasonably be cured within such 30 day period, then the City will not be in default of this Agreement if it commences to cure its nonperformance within such 30 day period and thereafter diligently and in good faith prosecutes such cure to completion. Without limiting the effect of the foregoing, the parties acknowledge and agree that the subject matter of this Agreement is unique and that money damages may be inadequate to compensate Owner and therefore, at the election of Owner, this Agreement may be specifically enforced. 11. INDEMNIFICATION. (a) Owner will defend, indemnify and hold the City and its elected officials, officers and employees free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any obligation which arises from the development of the Property including, without limitation, obligations for the payment of money for material and labor; (ii) any failure on the part of Owner to take any action which she is required to take as provided in this Agreement; (iii) any action taken by Owner which -13- LDC/112392/6305/01DEVEL.A it is prohibited from taking as provided in this Agreement and (iv) any claim which results from any willful or negligent act or omission of Owner. (b) The City will defend, indemnify and hold Owner and its trustees, beneficiaries, partners, shareholders, directors, officers and employees free and harmless from any and all loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any failure on the part of the City to take any action which it is required to take as provided in this Agreement, (ii) any action taken by the City which it is prohibited from taking as provided in this Agreement and (iii) any claim which results from any willful or negligent act or omission of the City. (c) Included in the scope of the foregoing indemnifications will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject of the applicable indemnification and all of the associated legal fees and court costs. Without limiting the effect of the foregoing, the indemnifying party will have the right to defend against any claim with respect to which it is indemnifying the other party, using legal counsel of its choice. 12 . SUPERSEDING STATE OR FEDERAL LAW. If any state or federal law or regulation which is enacted or adopted after the Effective Date of this Agreement or any other action of any governmental entity which is not under the City's control, prevents or precludes compliance with any provision of -14- LDC/112392/6305/01DEVEL.A this Agreement, then such provision of this Agreement will be modified or suspended only to the extent and for the time it is necessary to achieve compliance with such law, regulation or other governmental action and the remaining provisions of this Agreement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. On the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance which removes the effect of the same on this Agreement, the provisions of this Agreement will be automatically restored to their full original effect and any amendment to this Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 13 . SUCCESSORS AND ASSIGNS. All of the provisions of this Agreement will inure to the benefit of and will bind the parties and their respective successors and assigns and all other persons or entities which acquire all or any part of the Property. Without limiting the effect of the foregoing, Owner will have the right to assign any of their rights or delegate any of their obligations as provided in this Agreement to or for the benefit of any person or entity which owns or leases any part of the Property. -15- LOC/112392/6305/OIDEVEL.A 14 . EQUITABLE SERVITUDES. All of the provisions of this Agreement will be enforceable as equitable servitudes and will constitute covenants running with the land as provided in the applicable law. 15. NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of joint venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners. 16. NOTICES AND OTHER COMMUNICATIONS. All notices or other communications which are required or permitted to be given to the parties will be in writing and will be given either by personal service or by mailing the same by certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service, addressed as follows: CITY COPY CITY OF PALM DESERT Best, Best & Krieger 73-510 Fred Waring 39700 Bob Hope Drive, #312 Palm Desert, CA 92260 Rancho Mirage, CA 92270 Attn: Carlos Ortega Attn: Douglas S. Phillips Owner COPY Monterey Palms Crandall & Traver c/o Gale Messick 43-645 Monterey Avenue 935 Fountain Springs Lane Suite D Glendora, CA 91740 Palm Desert, CA 92260 Attn: Lynn D. Crandall -16- LDC/112392/6305/01DEVEL.A If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it will be deemed given as of the date of receipt, rejection or return undelivered. Addressees to which notices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 16. 17 . ESTOPPEL CERTIFICATES. At the request of either party, the other party will, within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, except as is expressly provided in such estoppel certificate and (c) no default in the performance of the requesting party's obligations as provided in this Agreement exists, except as is expressly provided in such estoppel certificate. 18 . APPLICABLE LAW. This Agreement will be construed and enforced as provided in California law. 19 . VENUE. Any legal action with respect to this Agreement will be brought in either Riverside Superior Court or in the United States District Court for the Central District of California. -17- LDC/112392/6305/01DEVEL.A 20. ATTORNEYS ' FEES. If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in such action will be entitled to recover from the losing party all attorneys' fees, court costs and necessary disbursements in connection with such action. 21. PARAGRAPH HEADINGS. The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 22 . CONSTRUCTION. In all cases, the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. 23 . SURVIVAL. Each and every covenant in this Agreement will survive the execution and delivery of this Agreement for the benefit of the parties and their successors and assigns. 24. CALENDAR PERIODS. All references in this Agreement to "years", "quarters", "months" and "days" will be deemed to be to references to calendar years, quarters, months and days. 25. SEVERABILITY. Every provision of this Agreement is and will be construed to be a separate and independent covenant. If any provision of this Agreement or the application of the same is, to any extent, found -18- LDC/112392/6305/01DEVEL.A to be invalid or unenforceable, then the remainder of this Agreement or the application of such provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Agreement will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 26. FURTHER ASSURANCES. Whenever and as often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or property in order to achieve the intent of this Agreement. 27 . COVENANT OF GOOD FAITH. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 28. COUNTERPARTS. This Agreement may be executed in counterparts, each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 29 . INCORPORATION OF RECITALS. The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereof. Each recital of fact concerning the parties will be conclusive between -19- LDC/112392/6305/01DEVEL.A them and such facts will be incontestable in the event of any dispute between them with respect to such facts. Neither party will introduce any evidence in a court or administrative proceeding which would in any way serve to dispute any such recited fact. 30. EXHIBITS. Any Exhibit to this Agreement is incorporated by reference as though fully set forth hereof. 31. AMENDMENT. No amendment or waiver of any term of this Agreement will be binding on the City unless and until it has been approved and has become effective as provided in Section 65868 of the Government Code and pursuant to the City Municipal Code and Regulation, or on Owner, unless and until it has been executed by Owner. 32 . RECORDATION. No later than 10 days after the Effective Date of this Agreement, the City will, at its cost, record this Agreement in the Official Records of the Riverside County Recorder, as provided in Section 65868 . 5 of the Government Code and as provided by the City Municipal Code. 33 . AGREEMENT BY OWNERS RE NEGATIVE DECLARATION, NORTH SPHERE OF PREZONING ANNEXATION OF OWNERS ' PROPERTY INTO THE CITY OF PALM DESERT. Neither Owner nor their agents, consultants, servants, attorneys or representatives shall in any way object to or take any actions on behalf of Owner whatsoever in opposition to or challenge to the Negative Declaration for City's Case No. C/Z 92-1, the North Sphere Pre-zoning or the annexation of the Property or Owner' s -20- LDC/112392/6305/01DEVEL.A Property into the City of Palm Desert. Further, Petitioner and/or Owner at the request of City, shall take all reasonable steps to support the City's proposed annexation before any public body including, but not limited to, the Local Agency Formation Commission. CITY CITY OF PALM DESERT By: By: ATTEST: By: SHEILA GILLIGAN, City Clerk City of Palm Desert APPROVED AS TO FORM AND SUBSTANCE: By: Douglas S. Phillips Deputy City Attorney Owner: MONTEREY PALMS, a California Limited Partnership By: APPROVED AS TO FORM AND SUBSTANCE: Lynn D. Crandall Attorney for Owner -21- LDC/112392/6305/01DEVEL.A STATE OF CALIFORNIA ) I ) COUNTY OF RIVERSIDE ) On , 1992, 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. STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On 1992, 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. -22- LDC/112392/6305/01DEVEL.A STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On 1992, 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. STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On , 1992 , 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. -23- LDC/112392/6305/01DEVEL.A STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On , 1992, 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 signatures) 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 , 1992, 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. -24- LDC/112392/6305/01DEVEL.A EXHIBIT "A" That property located in the County of Riverside, California described as: The Southeast quarter of Section 29, Township 4 South, Range 6 East, San Bernardino Base and Meridian according to the official plat thereof. Except the South 1,470 feet thereof. Said land is also shown as Parcel 3 of Record of Surveys recorded in Book 40, Page 69 of Record of Surveys, in the office of the County Recorder of said County. EXHIBIT "B" { t CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT TO: Planning Commission DATE: December 1, 1992 CASE NO: DA 92-3 Preannexation Development Agreement REQUEST: Approval of a resolution recommending to city council approval of a preannexation development agreement between the City of Palm Desert and Rancho Mirage Industrial Park, a California Limited Partnership, Ruyen International Corporation; Henry Melby, Trustee of the B.H. Fortner Testamentary Trust; and Bernard and Jeanett DeBonne, as it pertains to the future development of real property located within Annexation No. 30 . APPLICANTS: Rancho Mirage Industrial Park A California Limited Partnership Ruyen International Corporation c/o Mike Peccorini 327 W. Court Street, No. 403 San Bernardino, California 92401 Henry Melby, Trustee of the B.H. Fortner Testamentary Trust P.O. Box 10310 Glendale, California 91209 Bernard and Jeanett DeBonne P.O. Box 1935 Palm Desert, California 92261 I . BACKGROUND: Planning commission will recall processing the prezoning of this area on March 17 , 1992 and April 21, 1992 . The prezoning was confirmed by the city council and the annexation processed through LAFCO. LAFCO approved the annexation October 22 , 1992 subject to the city council holding a protest hearing. The protest hearing will be held December 17 , 1992 . Several property owners in the area to be annexed have requested that the city enter into a preannexation development agreement which will assure their future development rights among other matters . Failure of the city to enter into the development agreements could result in the annexation being terminated due to protests . f STAFF REPORT DA 92-3 DECEMBER 1, 1992 II . CEQA REVIEW• The prezoning and decision to process the annexation of this area were reviewed for compliance with CEQA. This development agreement allows for future development of the property with uses and are subject to terms which are consistent with the zoning imposed by the prezone ordinance #683 (Case C/Z 92-1) . The environmental assessment conducted for Ordinance No. 683, C/Z 92-1, is hereby adopted by reference. Therefore, no further documentation is necessary at this time. Of course, when a specific development project is submitted additional environmental review will be necessary. III . RECOMMENDATION: That planning commission adopt its Resolution No. recommending to the city council approval of the preannexation development agreement between the City of Palm Desert and Rancho Mirage Industrial Park, a California Limited Partnership, Ruyen International Corporation; Henry Melby, Trustee of the B.H. Fortner Testamentary Trust; and Bernard and Jeanett DeBonne, Exhibit 'A' , attached to the draft resolution. IV. ATTACHMENTS : A. Draft Resolution B. Development Agreement C. Legal Notice Prepared by Reviewed and Approved by SRS/tm 2 PLANNING COMMISSION RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL APPROVAL OF A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND RANCHO MIRAGE INDUSTRIAL PARK, A CALIFORNIA LIMITED PARTNERSHIP , RUYEN INTERNATIONAL CORPORATION; HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST; AND BERNARD AND JEANETT DEBONNE, AS IT PERTAINS TO THE FUTURE DEVELOPMENT OF REAL PROPERTY LOCATED WITHIN ANNEXATION NO. 30 . CASE NO. DA 92-3 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 1st day of December, 1992, hold a duly noticed public hearing to consider the request of Rancho Mirage Industrial Park, a California Limited Partnership, Ruyen International Corporation; Henry Melby, Trustee of the B.H. Fortner Testamentary Trust; and Bernard and Jeanett DeBonne, to consider the above mentioned project; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No. 683 and no further documentation is necessary; 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 preannexation development agreement: 1 . The provisions of the development agreement are consistent with the requirements of Chapter 25 . 37 of the Zoning Ordinance (development agreement) . 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 Preannexation Development Agreement Exhibit 'A' attached hereto is hereby recommended to city council for approval . e PLANNING COMMISSION RESOLUTION NO. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 1st day of December, 1992, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ROBERT SPIEGEL, Chairman ATTEST: RAMON A. DIAZ, Secretary Palm Desert Planning Commission 2 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: EXHIBIT DEVELOPMENT AGREEMENT ENTERED INTO BETWEEN THE CITY OF PALM DESERT AND RANCHO MIRAGE INDUSTRIAL PARK RUMEN INTERNATIONAL CORP., HENRYMELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST, 9 BERNARD AND JEANNETT DEBONNE AhUar LAW OFFICC8 OF BEST, BEST a KRIEQ. November 13, 1992 Page 2 i 'c_ cY, _ ; �/ 41 "For purposes of this paragraph, "Construction of and extension of Portola Avenue" may be accomplished by the City, by the construction of the east one-half street section of extended Portola Avenue, which proposed one- half street extension is located on property currently owned by the Palm Desert Redevelopment Agency. This construction and extension is found and in deemed by the City as "an acceptable service level" with respect to the extended Portola Avenue as called for under the terms of that certain settlement agreement between Rancho Mirage Industrial Park and the City of Rancho Mirage with respect tv a settlement of that action entitled Rancho Mirage—dustrial Park at al v. City of Rancho Mirage, Came No. Indio 68168 filed in the Superior Court, County of Riverside. The City will indemnity and save Rancho Mirage Industrial Park harmless from any suit brought which challenges this finding. The City shall require that the want one-half of the Portola Avenue extension be completed upon development of the property west of and adjacent to such extension, pursuant to the terms of this paragraph. " oevzeeez DEVELOPMENT AGREEMENT THIS DEVELOPMENT ( "Agreement" ) is entered into on -1 1992, between RANCHO MIRAGE INDUSTRIAL PARK, RUYEN INTERNATIONAL CORP. , HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST, MACLEOD COUCH LAND CO. " BERNARD AND JEANNETT DEBONNE AND 11ONEPEREY PA"(6 ( "Owners" ) , and the CITY OF PALM DESERT, a municipal corporation organized and existing under the laws of the State of California (the "City" ) . Owner and the City are sometimes collectively referred to herein as 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 65864-65869.5 ( .Development Agreement Law" ) authorize the City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and reducing the economic costs of such development. C. Pursuant to Government Code Section 65865, the City has adopted rules and regulations establishing procedures and requirements for consideration of development agreements. D. Owners are the owners of the real property described on Exhibit "A" , attached hereto and incorporated herein by this DSP27663/October 29, 1992 reference (the "Property" ) . The Property is currently located within the unincorporated area of Riverside County, within the City sphere of influence. The City has initiated proceedings for the annexation of the. Property into the corporate boundaries of the City in accordance with the Cortese-Knox Act (Government Code Section 56000, et seq. ) , has certified and approved a negative declaration pursuant to the California Environmental Quality Act for prezoning, and has approved certain pre-annexation zoning for the property (C/Z 92-1) . Such annexation proceedings will be completed following approval of this Agreement, and this Agreement shall not be effective until such time as the annexation proceedings are completed. E. Owners ' properties are currently zoned as follows under the County of Riverside Land Use Ordinance and General Plan: Name Legal Description of Property Zaniner Rancho Mirage $ $ � a r . Industrial Park "" 1,�.:..: Ruyen International SeRWiN : Corp. Henry Melby, Trustee of the B.H. Fortner Testamentary Trusts 2< A MacLeod Couch Land Co S Bernard and Jeannett DeBonne 38 ERt3M ,:xs Mente�-ey Palms Prior to approving such zoning, the County performed all required environmental analysis in accordance with CEQA. F. On July 28, 1992, the County of Riverside approved Tentative Commercial Parcel Map 24255, subject to conditions, with DSP27663/October 29, 1992 —2— respect to certain property owned by Rancho Mirage Industrial Park and Ruyen International Corp. legally described as: Assessor's Parcel Nos . 653-250-005, 653-250- 006 , 653-250-010, 653-250-014, 653-250-015, 653-250-016, 653-250-017 , 653-250-018, and 653 250-019 (hereafter referred <to as < fire RMTIyf Ru 1 A111Property; Prirsr to appxev£ng p 1€. 24255: the County performed aZI rsqu�red BIT�r ronme ital aril ys1 z ac rdatice �,r th; C - G. The County of Riverside has previously approved Parcel Map 27419, subject to conditions, with respect to certain property owned by Henry Melby, as Trustee of the B.H. Fortner Testamentary Trust, legally described as : leis g$ox':8 st,- x wa- vat Prior to approving Parcel Map 27419, the County performed all required environmental analysis in accordance with CEQA. H. Owners intend to use their property for industrial, commercial or for less intensive commercial and/or residential uses, and seek certainty in the approval of the industrial, commercial, or residential uses of their property and with respect to the development of their property. I . In partial consideration of, and in order to implement that certain Settlement Agreement and Mutual Release between the City and Rancho Mirage Industrial Park dated October _, 1992, the City and Owners have entered into this Agreement relating to The Property, and proceedings have been taken in accordance with the development agreement law and the City's rules and regulations. DSP27663/Dccabsr 79, 1992 —3— J. The City Council has found that this Agreement is consistent with the City's general plan, as amended (the "General Plan" ) , and any applicable Specific Plan. K. On , 1992, the City Council of the City adopted Ordinance No. approving this Agreement with Owners . L. The "Development Criteria" as defined and specified below implement the goals and policies of the City's General Plan and provide balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the City, and impose appropriate standards and requirements with respect to land development and usage of The Property. M. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. This Agreement has undergone extensive review by the City's staff, the Planning Commission of the City, and the City Council and has been found to be fair, just and reasonable and in the best interest of the citizens of the City and the public health, safety and welfare. IN CONSIDERATION OF THE RECITALS AND THE MUTUAL COVENANTS AND CONDITIONS OF THIS AGREEMENT, the parties agree as follows: AGREEMENT 1 . DEFINITIONS. 1 . 1 "Agreement" is this Development Agreement. DSP27663/October 29, 1992 -4 1 . 2 "Agreement Date" is the date this Agreement is executed by the City. 1 . 3 "CEQA" is the California Environmental Quality Act, Public Resources Code Section 21000, et seq. 1 .4 "City" is the City of Palm Desert, California. 1 . 5 "County" is the County of Riverside, California. 1. 6 "Development Criteria" are: (a) As to Assessor's Parcel Nos . : 653-250-005, 653-250- 006, 653-250-010, 653-250-014, 653-250-015, 653-250-016, 653-250- 017, 653-250-018, and 653-250-019 xa The County of Riverside approved zoning (C-P-S and I-P) approved by C2 5017 and permitted by EIR 166 as well as the conditions of approval for Tentative Commercial Parcel Map 24255, amended no. 2, with respect to Assessor's Parcel Nos. 653-250-005, 653-250-006, 653-250-010, 653-250-014, 653-250-015, 653-250-016, 653-250-017, 653-250-018, and 653-250-019 approved by the County of Riverside on July 28, 1992; (b) As to Assessor's Parcel No. : j (Property of the B.H. Fortner Testamentary Trust: The County of Riverside Conditions of Approval with respect to Tentative Parcel Map No. 27419 (Fortner Trust) approved by the County on ; (c) The terms and conditions of any additional pre- annexation agreements entered into by the City and the Owners of the Properties specified on Exhibit A. (d) Subject to 1.6(a) , (b) and (c) above, all of those ordinances, resolutions, codes, rules, regulations and official D9P27663/October 29. 1992 -5- policies of the City governing the development and use of the Property including, without limitation, the permitted uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings, the provisions for reservation of dedication of land for public purposes, and the design, improvement and construction standards and specifications otherwise applicable to the development of the Property, as they may now exist or as they may be changed from time to time by the City. 1. 7 "Effective Date" is that date which is the later to occur of the following: (a) the expiration date for the filing of a referendum petition challenging the ordinance approving this Agreement if no such petition is filed by such date, (b) the date that the results of a referendum election are declared approving this Agreement, if a referendum petition is filed within the applicable period, or (c) the date the Property is annexed into the City. 1 .8 "Owners" are Rancho Mirage Industrial Park, Ruyen International Corp. , Henry Melby, Trustee of the B.H. Fortner Testamentary Trust, MacLeod Couch Land Co. , Bernard and Jeannett DeBonne nd Monterey Palms and their successors in interest to all or any part of the Property., 1.9 "Property" is all of the real property and any improvements thereon described in Exhibit "A" attached hereto and incorporated herein by this reference. 2 . TERM. 2 . 1 Unless earlier terminated as provided in this Agreement, this Agreement will commence on the date the Property is annexed D6P27663/October 29, 1992 -6- into the City and will continue for a period of ten ( 10) years thereafter. 22 pity +dill eierGise its best 'effort3 to compjgte annexetfon of the ' Propertyr irr acc+ zcance witi� they terms anet Gos�d�Ltons o this:. pigxeeaient tad any atldiCian� gse-annexaticsn agreements eaered into betwaen GEC �I Ltersr wrth7t $fix mssnttis from the effective clots 6€ this;rigreeme . 3 . RESTRICTIONS ON DEVELOPMENT AND USE. The development and use of the Property, including the density or intensity of use, the maximum height and size of proposed buildings, building setback requirements, parking requirements and provisions for reservation or dedication of land for public purposes, will be governed by the Development Criteria as defined in Paragraph 1 .6 (a) (b) (c) and (d) above. The City acknowledges and agrees that the Development Criteria specifically permit the development and use of the Rancho Mirage Industrial Park - Ruyen International Corp. Property as allowed under the County's C-P-S and I-P zones (County of Riverside EIR No. 166 and CZ 5017) . The City further acknowledges and agrees that the Development Criteria specifically permit the division of Assessor's Parcel No. 653-250- 006 , owned by Rancho Mirage Industrial Park and Ruyen International Corp. , (consisting of one hundred sixty nine point and four tenths ( 169 .4] acres) into one hundred ( 100) commercial lots, subject to the conditions of County's Commercial Parcel Map No. 24255, amendment no. 2 . The City finally acknowledges and agrees that the Development Criteria specifically permit the division of that Property owned by Henry Melby as Trustee of the B.H. Fortner DSP27663/Octabor 29, 1992 -7- Testamentary Trust legally described on Exhibit "A" as permitted by Riverside County Parcel Map No. 27419, subject to those conditions imposed by the County. Except with regard to those aspects of the development of the Property which are addressed in this Agreement, the parties acknowledge and agree that other aspects of the development of the Property, such ers sgnage achtecLtrl xevw a axe puEtie „ . p18C@fi may require the exercise of discretion by the City and that those aspects of the development of the Property will be subject to the City's reasonable review and approval as set forth in the City's ordinances, resolutions, rules and regulations, as they exist .___ te .:__ � to ng' end tarot use des g3aaU sate fI WEB X R�' 1 are tact maps ertsd 'user p� t. s ......... h#� Aq er n s ec t aspens try �a OO pal ice l4xi c at trey; ti t $ revr #l : 4 . DEVELOPMENT AND USE. 4 . 1 Rancho Mirage Industrial Park, Ruyen International Corp. and Henry Melby, Trustee of the B.H. Fortner Testamentary Trust will have the vested right to develop their Property to the extent covered by and in accordance with the Development Criteria and this Agreement. 4 . 2 Traffic lights are proposed to be installed by certain Owners at the intersection of Monterey Avenue and the roadway which the Owner MacLeod Couch Land Co. proposes to use as the principal access into their Property. Such access roadway is currently DSP27663/0ctob� 29, 1992 —8 designed to proceed in an East/West direction, to approximately the Easterly boundary line of the MacLeod Couch property and to thereafter proceed Northeasterly to intersect Dinah Shore Drive at right angles . The area where such Northeasterly turn in the roadway is proposed is owned by Monterey Palms . The City agrees to oppose neither the placement of such traffic lights nor the installation of a left turn lane or lanes at such intersection with Monterey. The City, however, shall not be responsible for the cost to install the traffic lights or left turn lane or lanes. 4 .3 Dinah Shore Drive is proposed to be extended to the Northerly projection of Portola Drive, as required by the provisions of Parcel Map No. 24255 . The City agrees that the MacLeod Couch access road may be designed so that it intersects with Dinah Shore Drive at the conjunction of said road with Dinah Shore Drive. The City shall not be responsible for the cost to extend Dinah Shore Drive. 4 .4 Portola Avenue shall be constructed and extended at the expense of the City or other third parties other than Owners, from its present terminus to the Westerly terminus of Dinah Shore Drive as reflected by the Conditions of Approval to the aforesaid Parcel Map No. 24255. Said terminus is located at the Easterly boundary olthe Monterey Palms property Northerly of its South boundary. This cq cin snf extension shall occur on or before the development of the property adjacent to the extended portion of Portola Avenue ter t�►aII � daM� Q•� '-Tdh�.Cj1., A��f,..� 8#ar.� (I#.'�09{S �+"���+��Cted :�"� comgaed byta3ne#o`MirageM.nflusal I?� Rn �tgxed by DSP27663/October 29, 1992 —9 the errn on o .:a rova3 for•iarcellHa . 2,4.25�.' It is agreed that the City may use any means in its discretion to fund the cost of the extension of Portola Avenue as called for in this paragraph so long as Owners are not required to fund this improvement eit:", t1l. o2 iE .ndzictly thrc�ugt fees, asaessmeat ax any at2er means ; ,�- /,,�, ✓ r. � .- � , _ai � �/•'' c�/w��� ' r,/!� sPsy7�+-i.-�_ 4 .5 To the extent not already accomplished, City shall prezone the Rancho Mirage Industrial Park - Ruyen International Corp. Property so that zoning proposed by the City shall conform essentially with the zoning which has been established by the County pursuant to Riverside County Change of Zone 5017 . 4 .6 The General Plan of the City, as adopted by the City at the time of annexation, shall be consistent with all zoning permitted by the County's Change of Zone 5017 (C/Z 5017) , this Development Agreement and any other pre-annexation agreement entered into between the City, MacLeod Couch Land Co. , Bernard and Jeannett DeBonne ariont Monterey Palms. 4 .7 Pry crrwZ 04en R( i# F3 2 ��WOW zany t Acccs :0* t= w s 1S ze r z: sac "0m'. ,:. ... upan annexatanc tr ;Aizy City and Owners Henry Melby, Trustee of the B.H. Fortner Testamentary Trust, MacLeod Couch Land Co. , Bernard and Jeannett DeBonne and Monterey Palms all agree that City and such Owners may determine to enter into additional future pre-annexation agreements . City agrees to negotiate with such Owners, in good faith, with respect to such future pre-annexation agreements . Those agreements, if entered into, shall contain a term of ten ( 10) OSP27663/October 29, 1992 —10— years from the date the Property is annexed into the City, unless earlier terminated as provided in those agreements . 4 . 8 In connection with County's Parcel Map No. 24255 and County's Parcel Map No. 27419, upon annexation to the City, the City shall approve new parcel maps within ninety ( 90) days of completion of annexation proceedings, upon =__=-t_=_'_; the same terms and conditions as those maps approved by the County. Fees: relative to such new parcel maps shall be waived by the City. It is understood by the parties that the purpose of this paragraph is to give the developers of Parcel Map Nos . 24255 and 27419 a twe--( 2 ) ysaac 1. t£aZ period of time,:to develop their properties following completion of the annexation proceedings. City 8t3reeS `t2iat 8f ter eXF7dt ir o7E gpioe 'caf tame after annxat�© ; Eses rsa�rfwr� *�ors + Plals$ 23C� « 2A25 bc1 274i>3 ftFt �!# �Y40ki,(�t#WI�#kN oft" accrsrdnc� t C;orernmsritbde VSeati* ss N#"r :s 0 Olt 2455 <snlT41g ctedt # slii peCf.. fits cis lacated xa3 th x ti da es cif k TOM �OR m,< . ..... .. H PositarZr � BlesM. tft W ams' ari��' Irav�` standard siz�r and sPtaper �pts a�; � '�"�E��+ s�r zsepee £ve parcel maps« <'1'heareazstKE and approve Yvb rise ad justmsnts µfax 'tAdtss.:.MZ.. �# monthsate> compeion of j,.r..$..,. ROM ,.0SP27663/October 29, 1992 would be chezged tes Qwaers for those lctt dine actjtzstanent� t7sers ranohrtSixage Zndu'strial'parkf Ruyen 'end Heary Melby, 7+rustee of thQ M ! M l�orner `Testamentary Trust a* 1J file apgieati#ons far these =lot ions . adjustments within 4$ dal►s aiher! co�aplet3on ;of annexation ': 5 . COMPLIANCE. The City will periodically review this Agreement as provided in Section 65865. 1 of the Government Code and the City Municipal Code, to ascertain Owners , good faith compliance with the provisions of this Agreement.4 hers sg,E3.1. gib: hall, rs€ �ucf periodic rev ewsF rahich sha111 oc xx cur mwxe dreg Stan Q every two years, and shah be gv�tY 4p�p4tC. i;W C in .............z�vetrs and to regueat <a heaznq bs#skax on aay rea r conci�siatt$, mach Isyrta L32e cono2usion �� such tev rs 6 . DEFAULT BY OWNERS . If the City does not find good faith compliance with the provisions of this Agreement by Owners, then the City will have all of the remedies which are provided in the City Municipal Code and will comply with all of the procedures which are provided in Section 65865. 1 of the Government Code and the City Municipal Code. tI t of k tau t by act 4h�ne� az r, wnz =Yra thi$ ...... aga�nsf: the sae na ;�iq�xs;<or re�di�ss ;es a9air�s� see €��xt`��r 7 . DEFAULT BY THE CITY. If the City fails to perform any of its obligations as provided in this Agreement and fails to cure its nonperformance DSP27663/0ctober 29, 1992 —1 2— within 30 days after notice of nonperformance is given by Owners, then the City will be in default and Owners will have all of the remedies which are available to } —them: ndiviivally or collect' ',vely at law or in equity; provided, however, that if the City's failure to perform cannot reasonably be cured within such 30 day period, then the City will not be in default of this Agreement if it commences to cure its nonperformance within such 30 day period and thereafter diligently and in good faith prosecutes such cure to completion. Without limiting the effect of the foregoing, the parties acknowledge and agree that the subject matter of this Agreement is unique and that money damages may be inadequate to compensate Owners and therefore, at the election nf .Owners, this Agreement may be specifically enforced. � This a $anent is 3.ndiwf#uaiXy on3y �h to that L?N3€e7�"''# p�tr, �► 8. INDEMNIFICATION. (a) Owners will defend, indemnify and hold the City and its elected officials, officers and employees free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any obligation wh eh aE see es t .Eial and !a ny failure on the part of Owners to take any action which she ...". <..° req uired to take as provided in this Agreement; (ii}) any action taken by D9P27663/October 29, 1992 —1 3— Owners which s4e-4-s—they are prohibited from taking as provided in ..................... this Agreement and { }j3iij any claim which results from any willful or negligent act or omission of Owners . (b) The City will defend, indemnify and hold Owners and their trustees, beneficiaries, shareholders, directors, officers and employees free and harmless from any and all loss, cost or liability ( including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from ( i) any failure on the part of the City to take any action which it is required to take as provided in this Agreement, (ii) any action taken by the City which it is prohibited from taking as provided in this Agreement and ( iii) any claim which results from any willful or negligent act or omission of the City. (c) Included in the scope of the foregoing indemnifications will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject of the applicable indemnification and all of the associated legal fees and court costs . Without limiting the effect of the foregoing, the indemnifying party will have the right to defend against any claim with respect to which it is indemnifying the other party, using legal counsel of its choice. 9 . SUPERSEDING STATE OR FEDERAL LAW. If any state or federal law or regulation which is enacted or adopted after the Effective Date of this Agreement or any other action of any governmental entity which is not under the City' s control, prevents or precludes compliance with any provision of DSP17663/Octab� 29, 1992 —14 this Agreement, then such provision of this Agreement will be modified or suspended only to the extent and for the time it is necessary to achieve compliance with such law, regulation or other governmental action and the remaining provisions of this Agreement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. On the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance which removes the effect of the same on this Agreement, the provisions of this Agreement will be automatically restored to their full original effect and any amendment to this Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 10 . SUCCESSORS AND ASSIGNS. All of the provisions of this Agreement will inure to the benefit of and will bind the parties and their respective successors and assigns and all other persons or entities which acquire all or any part of the Property. Without limiting the effect of the foregoing, Owners will have the right to assign any of their rights or delegate any of their obligations as provided in this Agreement to or for the benefit of any person or entity which owns or leases any part of the Property. 11 . EQUITABLE SERVITUDES. DS?27663/October 29, 1992 1 S_ i All of the provisions of this Agreement will be enforceable as equitable servitudes and will constitute covenants running with the land as provided in the applicable law. 12 . NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of join venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners . 13 . NOTICES AND OTHER COMMUNICATIONS. All notices or other communications which are required or permitted to be given to the parties will be in writing and will be given either by personal service or by mailing the same by certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service, addressed as follows: CITY COPY CITY OF PALM DESERT Best, Best 6 Krieger 73-510 Fred Waring 39700 Bob Hope Drive, •312 Palm Desert, CA 92260 Rancho Mirage, CA 92270 Attn: Carlos Ortega Attn: Douglas S. Phillips owners COPY Attn: Attn: If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it DeP27663/October 29, 1992 -16- will be deemed given as of the date of receipt, rejection or return undelivered. Addressees to which notices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 13 . 14 . ESTOPPEL CERTIFICATES. At the request of either party, the other party will, within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, except as is expressly provided in such estoppel certificate and (c) no default in the performance of the requesting party's obligations as provided in this Agreement exists, except as is expressly provided in such estoppel certificate. 15 . APPLICABLE LAW. This Agreement will be construed and enforced as provided in California law. 16 . VENUE. Any legal action with respect to this Agreement will be brought in either Riverside Superior Court or in the United States District Court for the Central District of California. 17 . ATTORNEYS' FEES. If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in such action will be entitled to recover from the losing party all attorneys' fees, court costs and necessary disbursements in connection with such action. DSP27667/October 29, 1992 -17- 18 . PARAGRAPH HEADINGS. The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 19 . CONSTRUCTION. In all cases, the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. 20 . SURVIVAL. Each and every covenant in this Agreement will survive the execution and delivery of this Agreement for the benefit of the parties and their successors and assigns. 21. CALENDAR PERIODS. All references in this Agreement to "years", "quarters" , "months" and "days " will be deemed to be to references to calendar years, quarters, months and days . 22 . SEVERABILITY. Every provision of this Agreement is and will be construed to be a separate and independent covenant. If any provision of this Agreement or the application of the same is, to any extent, found to be invalid or unenforceable, then the remainder of this Agreement or the application of such provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Agreement will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to DSP27663/October 29, 1992 -1 8 this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 23 . FURTHER ASSURANCES . Whenever and as often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or property in order to achieve the intent of this Agreement. 24 . COVENANT OF GOOD FAITH. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 25. COUNTERPARTS. This Agreement may be executed in counterparts, each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 26 . INCORPORATION OF RECITALS. The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereof. Each recital of fact concerning the parties will be conclusive between them and such facts will be incontestable in the event of any dispute between them with respect to such facts . Neither party will introduce any evidence in a court or administrative proceeding which would in any way serve to dispute any such recited fact . 09P27667/October 39. 1992 -19- 27 . EXHIBITS. Any Exhibit to this Agreement is incorporated by reference as though fully set forth hereof. 28 . AMENDMENT. No amendment or waiver of any term of this Agreement will be binding on the City unless and until it has been approved and has become effective as provided in Section 65868 of the Government Code and pursuant to the City Municipal Code and Regulation, or on Owners, unless and until it has been executed by Owners . 29 . RECORDATION. No later than 10 days after the Effective Date of this Agreement, the City will, at its cost, record this Agreement in the Official Records of the Riverside County Recorder, as provided in Section 65868 . 5 of the Government Code and as provided by the City Municipal Code. 30 . AGREEMENT BY OWNERS RE NEGATIVE DECLARATION. NORTH SPHERE OF PREZONING, ANNEXATION OF OWNERS' PROPERTY INTO THE CITY OF PALM DESERT. Neither Petitioner nor Owners nor their agents, consultants, servants, attorneys or representatives shall in any way object to or take any actions whatsoever in opposition to or challenge the Negative Declaration for City's Case No. C/Z 92-1, the North Sphere Pre-zoning or the annexation of Petitioner's property or Owners ' Property into the City of Palm Desert. Further, Petitioner and/or Owners at the request of City, shall take all reasonable steps to support the City's proposed annexation before any public body DSP27663/October 29, 1992 -20- including, but not limited to, the Local Agency Formation Commission. CITY CITY OF PALM DESERT By: By: ATTEST: By: SHEILA GILLIGAN, City Clerk City of Palm Desert APPROVED AS TO FORM AND SUBSTANCE: By: Douglas S. Phillips Deputy City Attorney OWNERS: RANCHO MIRAGE INDUSTRIAL PARR by Susco, a california Corporation, General Partner By: H. M. Peccorini, President RUYEN INTERNATIONAL CORP. By: H. M. Peccorini, Assistant Secretary (Signature Page Continues) HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST By: DSP27663/October 29, 1992 -21- MACLEOD COUCH LAND CO. By: BERNARD DEBONNE JEANNETT DEBONNE Bye APPROVED AS TO FORM AND SUBSTANCE: Cynthia Ludvigsen Attorney for Owners; to ctic �qet jnc Et # * y fl11- wi—, X7tl'CeCi�?LtAT�, ZA�r . D9P27663/October 29, 1992 —2 2 EXHIBIT "A" TABLE OF CONTENTS RECITALS . . . . . . . . . . . . . 1 . DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 4 2 . TERM. . . . . . . . . . . . . . . . . . . . . . . . . . 6 3 . RESTRICTIONS ON DEVELOPMENT AND USE. . . . . . . . . . . 7 4 . DEVELOPMENT AND USE. . . . . . . . . . . . . . . . . . . 8 5 . COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . 10 6 . DEFAULT BY OWNERS. . . . . . . . . . . . . . . . . . . . 11 7 . DEFAULT BY THE CITY. . . . . . . . . . . . . . . . . . . 11 8 . INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . 11 9 . SUPERSEDING STATE OR FEDERAL LAW. . . . . . . . . . . 13 10 . SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . 13 11. EQUITABLE SERVITUDES. . . . . . . . . . . . . . . . . . 14 12 . NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. . . 14 13 . NOTICES AND OTHER COMMUNICATIONS. . . . . . . . . . . . 14 14 . ESTOPPEL CERTIFICATES. . . . . . . . . . . . . . . . . . 15 15 . APPLICABLE LAW. . . . . . . . . . . . . . . . . . . . . 15 16 . VENUE. . . . . . . . . . . . . . . . . . . . . . . . . . 15 17 . ATTORNEYS' FEES. . . . . . . . . . . . . . . . . . . . . 16 18 . PARAGRAPH HEADINGS. . . . . . . . . . . . . . . . . . . 16 19 . CONSTRUCTION. . . . . . . . . . . . . . . . . . . . 16 20 . SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . 16 21 . CALENDAR PERIODS. . . . . . . . . . . . . . . . . . . . 16 22 . SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . 16 23 . FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . 17 24 . COVENANT OF GOOD FAITH. . . . . . . . . . . . . . . . . 17 25 . COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . 17 26 . INCORPORATION OF RECITALS. . . . . . . . . . . . . . . . 17 27 . EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . 18 28 . AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . 18 29 . RECORDATION. . . . . . . . . . . . . . . . . . . . . . . 18 30 . AGREEMENT BY OWNERS RE NEGATIVE DECLARATION, NORTH SPHERE OF PREZONING, ANNEXATION OF OWNERS' PROPERTY INTO THE CITY OF PALM DESERT . . . . . . . . . 18 l NW-24-1992 01:22PM FROM nthfe/LUduiasen/Atty. TO 1619340669e P.02 �UK1N1 MEMORANDUM DATE: November 24, 1992 TO: Cindy Ludvigsen noms X. M. Peccorini Rai Changes to DEVELOPMENT AGREEMENT These are the changes to the Development Agreement we have discussed: 1. Add at end of Paragraph 4 .4 as a separate, but unnumbered paragraph: For purposes of this Paragraph 4 .4 , "Construction of and extension of Portola Avenue" may be accomplished by the City by the construction of the east one-half street section of extended Portola Avenue, which proposed one-half street extension is located on property currently owned by the Palm Desert Redevelopment Agency. This construction and extension is found and is deemed by the City as "an acceptable service level" with respect to the extended Portola Avenue As called for under the terms of that certain settlement agreement between Rancho Mirage Industrial Park and the City of Rancho Mirage with respect to a settlement of that action entitled Rancho Mirage Indyst�l Park et al V. City of Recn�ho Mirage, Case No. die 6516 file in the Superior Court, County of Riverside,tor as may be required under the Conditions of Approval relative to Parcel Maps Nos. 24255 and/or 27419] The City shall indemnify and save Rancho Mirage KOO Industrial Park rind/or Ruyelfree and harmless from any suit brought which challenges th S finding. The City Shall requirs that the west one-half of the Portola Avenue extension be completed upon development of the property west of and adjacent to such extension, pursuant to the terms of this Paragraph. Gin no event Shall Rancho Mirage industrial Park and/or Ruyen 'be required to pay for or otherwise share, either directly or indirectly, in the cost of the construction and extension of Portola Avenu 2. Delete Paragraph 7 of the Development Agreement as it now exists and substitute the following: "? TIMING OF DEVELOPMENT. The parties acknowledge that t' �'�s�. owners cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend �3. upon numerous factors which are not within the control of Owners, such as market orientation and demand, interest rates, absorption, completion and other similar factors , since the California Supreme PY Court held in ardee Construction CO v. City of ea rillo ( 1984 ) 37 Lal.3d 46S thet the a ura o t a parties therein to provide - 1 - JCIYi Vi -AG. �A � 9 , c. ry.G, rV&4 . . i .♦ �. I ,r ... ... .. . . . . NW-24-1992 01,23PM FROM Cynthia/LudU19$@n/P.tt9. TO 161Q340E699 F.03 RiNi •L 1—r a•. wa • 4�. i for the timing of develo ment resulted in a later adopted initia- tive restricting the timing of development to prevail over such parties' agreement, it is the parties' eowners to cshallhhaveat defi- ciency by acknowledging and providing that the right to develop the Property in such order andhin at such rate and at such times as owners deem appropriate ci of their subjective business judgment. " 3 . Change Paragraph 12 of the Development Agreement as follows. 12. " t U1 VL SERVITUDES 0 ASS GNMENT. All of the provi- S sions o! th s Agreement sha 1 be enforceable as equitable servi- tudes and shall con covlawenants runningandtobligationsh the land aof provided in the applicable owners under this Agreement may be transferred or assigned, pro- ` is the ion ebzansferraaseignment�seeleeor leasedofiall orconne atportionhof \4 �� an- the Property. During the terms of this Agreement, any such tie Signea or transferee shall observe and perform all of the duties C and obligations of the particular owner making such assignment contertain rement AS such duties and obliation ortionhOf thee heeproperty so transferred of assigned, pawners to the he p shall give to the City a notice within thirty ( 30) days alter any such sale, assignment or transfer. " r�� I ,f r si:.� CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT TO: Planning Commission DATE: December 1, 1992 CASE NO: DA 92-2 Preannexation Development Agreement REQUEST: Approval of a resolution recommending to city council approval of a preannexation development agreement as it pertains to the future development of a 70 . 67 acre site on the east side of Monterey Avenue, 2666 feet north of Gerald Ford Drive. APPLICANT: MC Properties, A Partnership MacLeod Couch Land Company, A Partnership 777 S . Pacific Coast #204 Solano Beach, California 92075 I . BACKGROUND: Planning commission will recall processing the prezoning of this area on March 17, 1992 and April 21, 1992 . The prezoning was confirmed by the city council and the annexation processed through LAFCO. LAFCO approved the annexation October 22, 1992 subject to the city council holding a protest hearing. The protest hearing will be held December 17 , 1992 . Several property owners in the area to be annexed have requested that the city enter into a preannexation development agreement which will assure their future development rights among other matters . Failure of the city to enter into the development agreements could result in the annexation being terminated due to protests . II . CEQA REVIEW: The prezoning and decision to process the annexation of this area were reviewed for compliance with CEQA. This development agreement allows for future development of the property with uses and are subject to terms which are consistent with the zoning imposed by the prezone ordinance #683 (Case C/Z 92-1 ) . The environmental assessment conducted for Ordinance No. 683, C/Z 92-1 , is hereby adopted by reference. Therefore, no further documentation is necessary at this time . Of course, when a specific development project is submitted additional environmental review will be necessary. STAFF REPORT DA 92-2 DECEMBER 1, 1992 III . RECOMMENDATION: That planning commission adopt its Resolution No. recommending to the city council approval of the preannexation development agreement between the City of Palm Desert and MC Properties, A Partnership, and MacLeod Couch Land Company, A Partnership, Exhibit 'A' attached to the draft resolution. IV. ATTACHMENTS : A. Draft Resolution B. Development Agreement C. Legal Notice Prepared by Reviewed and Approved by /tm 2 PLANK. _ ; COMMISSION RESOLUTION N(,. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL APPROVAL OF A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND MC PROPERTIES, A PARTNERSHIP, AND MACLEOD COUCH LAND COMPANY, A PARTNERSHIP, PERTAINING TO THE FUTURE DEVELOPMENT OF A 70. 67 ACRE SITE ON THE EAST SIDE OF MONTEREY AVENUE, 2666 FEET SOUTH OF GERALD FORD DRIVE. CASE NO. DA 92-2 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 1st day of December, 1992 , hold a duly noticed public hearing to consider the request of MC Properties A Partnership and MacLeod Couch Land Company A Partnership to consider the above mentioned project; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No. 683 and no further documentation is necessary; 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 preannexation development agreement: 1 . The provisions of the development agreement are consistent with the requirements of Chapter 25 . 37 of the Zoning Ordinance (development agreement) . 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 Preannexation Development Agreement Exhibit 'A' attached hereto 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 December, 1992 , by the following vote, to wit: AYES : NOES : ABSENT: ABSTAIN: ROBERT SPIEGEL, Chairman ATTEST: RAMON A. DIAZ, Secretary Palm Desert Planning Commission SENT BY:Xerox Telecopier 7020 ; 11-24-92 ; 3:29PM ; 6193406698- 6193400574;# 4 PRE-ANNEXAMN AGREEMENT THIS PRE-ANNEXATION AGREEMENT (hereinafter referred to as "Agreement") is made and entered into this _ day of December, 1992, by and between THE CITY OF PALM DESERT, a municipal corporation (hereinafter referred to as "City"); and MC PROPERTIES, a partnership, and MACLEOD-COUCH LAND COMPANY, a partnership (hereinafter collectively referred to as "Property Owner"). 1, RECITALS: This Agreement is predicated upon the following facts: 1.1 Property Qwners. MC PROPERTIES and MACLEOD-COUCH LAND COMPANY are owners of the real property described on EXHIBIT "A" attached hereto and incorporated by reference (hereinafter "Property"), which real property is the subject matter of this Agreement. The Property consists of approximately 72 acres and is presently not within the boundaries of the City. 1.2 Intent of P ies. The parties desire to enter into this Agreement prior to annexation to provide for zoning, development standards, and guidelines which will be effective upon annexation. 1.3 Z ring. The zoning for the Property shall be commercial/industrial use, as more specifically described in EXHIBIT "D" attached hereto and incorporated herein by this reference. 1.4 Mutual Agreement. The parties have mutually agreed to enter into this Agreement and proceedings have been taker. in accordance with the City's rules and regulations. 1.5 City Council Findings. The City Council has found that the Pre-Annexation Agreement is consistent with the City's general plan, as well as all other applicable policies and regulations of the City. 1,6 CityAA22roval. On December 17, 1992, the City Council adopted Ordinance No. approving this Agreement with Property Owner. 2. DEFINITIONS: In this Agreement, unless the context otherwise requires: 2.1 Pmjw: is the development as represented by the Pre-Annexation Zoning (CZ-92-1) approved by the City on May 28, 1992, by Ordinance No. 683. 2.2 Proygjy Owner: means the person, persons or entity having a legal or equitable interest in the real property as described in EXHIBIT "A" and includes Property Owner's successors in interest. 2.3 Real Propgrty: is the real property described in EXHIBIT "A," and shown on the map attached hereto as EXHIBIT "B" and incorporated herein by this reference. M'9677.4/A gARI <.DLB/JMS!111992 SENT BY:Xerox Telecopier 7020 ; 11-24-92 ; 3:30PM 6193406698� 6193400574;# 5 2.4 Effective Date: is the date this Agreement is approved by the City Council as set forth in paragraph 1.6 above. 3. HIBIT : The following documents are referred to in this Agreement, and attached hereto and are incorporated herein as though set forth in full: EXHIBIT DESIGNATIQN DESCRIPTION A Legal Description of Real Property B Map Showing Property Location C Permitted Uses Square Footage Calculations D Zoning Designation 4. GENERAL PROVISIONS: 4.1 Duration of Ag; ment. The term of this Agreement shall commence upon the Effective Date and shall expire ten (10) years thereafter, unless extended by written mutual agreement. 4.2 Assignment. The rights and obligations of Property Owner under this Agreement may be transferred or assigned, provided such transfer or assignment is made as a part of the transfer, assignment, sale or lease of a1 or a portion of the Property. Any such transfer or assignment shall be subject to the provisions of this Agreement and the control and limitations contained herein. During the term of this Agreement, any such assignee or transferee shall observe and perform all of the duties and obligations of Property Owner contained in this Agreement as such duties and obligations pertain to the portion of the Property so transferred or assigned. Property Owner shall give to the City a notice within thirty (30) days after any such sale, assignment or transfer. 4.3 Arnendmgnt or Cancellation of Agreement. This Agreement may be amended from time to time by the mutual consent of the parties hereto. The term "this Agreement" or "Pre-Annexation Agreement" herein shall include any such amendment properly approved and executed. 4.4 Annexation. City agrees that the zoning described in EXHIBIT "D" shall remain in effect throughout the term of this Agreement unless modified by mutual agreement of the parties hereto. 4.5 Enforcement. Unless amended or cancelled as provided in Subsection 4.3, this Agreement is enforceable by any party to it despite a change in the applicable subdivision or building regulations adopted by City which alter or amend the rules, regulations or policies governing density and design as they exist as of the effective date of this Agreement. W9677.:/A ANNPX.DLR/IMR/S I IM 2 j SENT 8Y:Xerox Telecopier 7020 ; 11-24-92 ; 3:31PM 6193406698y 61934005741# 6 4.6 Hold Harmless. Property Owner agrees to and shall hold the City, its officers, agents, employees and representatives harmless from liability for damage or claims or damage for personal injury including death and claims for property damage which may arise from the direct or indirect operations of Property Owner or those of its contractors, subcontractors, agents, employees or other persons acting on its behalf which relate to the Project. Property Owner agrees to and shall defend the City and its officers, agents, employees and representatives from actions for damages caused or alleged to have been caused by reason of Property Owner's activities in connection with the Project. This hold harmless agreement applies to all damages and claims for damages suffered or alleged to have been suffered by reason of the operations referred to in this paragraph, regardless of whether or not the City prepared, supplied or approved plans or specifications, or both, for the Project. Property Owner further agrees to indemnify, hold harmless, pay all costs and provide a defense for the City in any action by a third party challenging the validity of the Agreement. 4.7 Binding Effect of Agreement. The burdens of this Agreement bind and the benefits of the Agreement inure to the parties' successors in interest, 4,8 Notices. All notices, demands and correspondence required or provided for under this Agreement shall be in writing and delivered in person or dispatched by certified mail, postage prepaid. Notice required to be given to City shall be addressed as follows: The City of Palm Desert 73510 Fred Waring Drive Palm Desert, California 92260 ATTENTION; City Manager and Assistant City Manager and Director of Community Development Notices required to be given to Property Owner shall be addressed as follows: MacLeod-Couch Land Company 777 South Pacific Coast Highway Suite 204 Solana Beach, California 92075 ATTENTION; Myron T. MacLeod W%77.I/A nNNYX.DLWA15/1 11092 3 SENT BY:Xerox Telecopier 7020 :11-24-92 : 3:31PM : 6193406696- 6193400574:ii 7 With a copy to: , • SCHLECHT, SHEVLIN & SHOENBERGER, A Law Corporation 801 East Tahquitz Canyon Drive, #100 Palm Springs, California 92262 ATTENTION: James M. Schlecht, Esq. A party may change its address by giving notice in writing to the other party. Thereafter, notices, demands and other pertinent correspondence shall be addressed and transmitted to the new address. 5. CONFLICTS OF LAW: 5.1 Conflict of City and State or Federal Laws. In the event that state or federal laws or regulations enacted after this Agreement have been entered into or the action or inaction of any other affected governmental jurisdiction prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall: 5.1.I Notice and ies: provide the other party with written notice of such state or federal restriction, and provide a copy of such regulation or policy and a statement of conflict with the provisions of this Agreement; 5.1.2 Modification Cgn&rence : within thirty (30) days meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. 5.2 Council Hearing6, Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or state law or regulation upon this Agreement, the matter shall be scheduled for hearing before the Council. Ten (10) days written notice of such hearing shall be given. The Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation. Property Owner, at the hearing, shall have the right to offer oral and written testimony. Any modification or suspension shall be taken by the affirmative vote of not less than a majority of the authorized voting members of the Council. Any suspension or modification may be subject to judicial review in conformance with subsection 8.3 of this Agreement. 5.3 Coo2m ion in Securing Permits. The City shall cooperate with the Property Owner in the securing of any permits which may be required as a result of such modifications or suspensions. Property Owner shall be responsible for the payment of the costs and fees for such permits. W967 !.;A ANNF1X.DLJWM5/111092 4 SENT BY:Xerox Telecopier 7020 :11-24-92 : 3:32PM 6193405698y 6193400574:# 8 6. DEVELOPMENT OF THE PROPERTY: 6.1. Pgrnlitted Uses. For the term of this Agreement, the Property may be developed for commercial and industrial uses as more particularly set forth in the EXHIBIT "C." 6.2 Timing of Devellppment. The parties acknowledge that Property Owner cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Property Owner, such as market orientation and demand, interest rates, absorption, completion and other similar factors, Since the California Supreme Court held in Pardee Construction Co v City of Camarillo (1984) 37 Ca1.3d 465 that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that Property Owner shall have the right to develop the Property in such order and at such rate and at such times as Property Owner deems appropriate within the exercise of its subjective business judgment. 63 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require subsequent development approvals and may demonstrate that changes are appropriate and mutually desirable in the existing development approvals. In the event Property Owner finds that a change in the existing development approvals is necessary or appropriate, Property Owner shall apply for a subsequent development approval to effectuate such change and City shall process and act on such application, in accordance with the existing Land Use Regulations. Unless otherwise required by law, a change to the existing development approvals shall be deemed "minor" and not require an amendment to this Agreement provided such change does not: (a) Alter the permitted uses of the Property as a whole; or (b) Increase the density or intensity of use of the Property as a whole; or (c) Increase the maximum height and size of permitted buildings; or (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or (e) Constitute a project requiring it subsequent or supplemental Environmental Impact Report pursuant to Section 21166 of the Public Resources Code; or 6.4 Rules- Rggulations. Official Policies. The City rules, regulations, ordinances laws general plans, and official policies governing development, density, permitted uses, growth management, environmental consideration, and design criteria for purposes of this Agreement shall be those in force and effect upon the commencement of the term of this Agreement, provided that the City shall not alter the zoning designation set forth on EXHIBIT "D." M/9677.1/A ANN4M.OLR/7MW 111092 5 . SENT BY:XerOX Telecopier 7020 ; 11-24-92 ; 3:32PM 6193406698y 6193400574;# 9 6.4.1 Application of Subseghently Enacted Rules. Regulations, Etc. Except as set forth in Section 4.5, the City may, hereafter, during the term of this Agreement, apply only such newer City enacted or modified rules, regulations, ordinances, laws, general or specific plans, and official policies which are not in conflict with those in effect on the date of this Agreement and application of which would not prevent development in accordance with subsections 6.1 and 6.2. However, this section shall not preclude the application to the Property of changes in City laws, regulations, plans or policies specifically mandated and required by changes in state or federal laws or regulations. In such an event, the provisions of Section 5 of this Agreement are applicable, 6.4.2 Application of Subsgguently Revised Fees and/or Improvement Standards. Application, processing and inspection fees, improvement standards as set forth in the City subdivision regulations and construction standards and specifications that are revised during the term of this Agreement shall apply to the Project pursuant to this Agreement provided that: (a) such fees, standards and specifications apply to all public works within the City, (b) their application to the Property is prospective only as to applications for building and other development permits or approvals of tentative subdivision maps not yet accepted for processing, and (c) their application would not prevent development in accordance with subsections 6.1 and 6.2. 7. DEVELOPMENT PROGRAM: 7,1. C&, The City hereby agrees that it will accept from Property Owner for processing and review all development applications for development permits or other entitlements for the use of the Property in accordance with this Agreement, provided that said applications are submitted in accordance with City rules and regulations. The City waives any requirement for minimum site size otherwise provided in the zoning set forth in EXHIBIT "D." 7.2 Duty to Pay Development Fees. Property Owner hereby agrees to pay the requisite development fees at the time such fees are customarily required by the City. 7.3 Coo2Cratio13 in Installation of Tmffic Signals, Traffic lights are proposed to be installed by certain owners at the intersection of Monterey Avenue and the roadway which the Property Owner proposes to use as the principal access into their property. Such access roadway is currently designed to proceed in an cast/west direction, to approximately the easterly boundary line of the Property Owner's property and to thereafter proceed northeasterly to intersect Dinah Shore Drive at a right angle. The area where such northeasterly turn in the roadway is proposed is owned by Monterey Palms. The City agrees to cooperate in good faith to obtain the placement of such traffic lights and the installation of a left turn lane or lanes at such intersection with Monterey. If the City requests the installation of the traffic signal prior to the time the Property, or some portion thereof, is developed, the City shall be responsible for the cost to install the traffic lights and left turn lane or Imes, except that Property Owner agrees to participate in an assessment district for such installation if the City elects to form one. Otherwise, the Property Owner shall be responsible for such costs in all other events, including development of the Property. W96T7J/A ANNFLY.DLRJM9l111692 6 SENT SY:Xerox Telecopier 7020 : 11-24-92 ; 3:33PM 61934056984 6193400574;#10 7.4 Subdivision. City agrees property owner may divide the Property into lots and/or parcels not exceeding ten (10)-in number without the necessity of riling a Specific Plan on the Property. 8. ENFORCED DELAY DEFAULT REMEDIES AND TERMINATION: 8,1 Czgneral Provisions. In the event of default or breach of this Agreement or of any of its terms or conditions, the party alleging such default or breach shall give the breaching party not less than thirty (30) days Notice of Default in writing. The time of notice shall be measured from the date of certified mailing. The Notice of Default shall specify the nature of the alleged default and, where appropriate, the manner and period of time in which said default may be satisfactorily cured. During any period of curing, the party charged shall not be considered in default for the purposes of termination or institution of legal proceedings. If the default is cured, then no default shall exist and the noticing party shall take no further action. 8.1.1 Option to Institute Legal Proceedings or to Terminate. After proper notice and the expiration of said cure period, the noticing party to this Agreement, at its option, may institute legal proceedings pursuant to Subsection 8.5 hereof. 8.1.2 41_ 'aiver. Failure or delay in giving Notice of Default pursuant to this section shall not constitute a waiver of any default. Except as otherwise expressly provided in this Agreement, any failure or delay by the other party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies or deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 8.2 FnforCed Delay., Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, casualties, acts of God, governmental restrictions imposed or mandated by other 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 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. Such an extension shall commence to run from the time of commencement of cause. 8.3 Institution of Laal Action. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to enforce any covenants or agreements herein or to enjoin any threatened or attempted violation thereof; to recover damages for any default; or to obtain any remedies consistent with the purposes of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, or in the Federal District Court in the Central District of California. NU%r.I lA Ar''NLX.uLR1JMW111092 7 SENT BY:Xerox Telecopier 7020 :11-24-92 ; 3:34PM 6193406698y 6193400574411 8A A2plicable Laws/Attorneys' Fees. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Should any action be brought in any court of competent jurisdiction, the prevailing party in such action shall be entitled to recover all attorneys' fees, court casts and necessary disbursements in connection with such litigation. 8.5 Costs of Collection. In the event that it becomes necessary for the prevailing party of any action contemplated in paragraph 8.4 to enforce a judgment rendered against the losing party, the prevailing party shall be entitled to recover from the losing party the costs incurred in enforcing such ,judgment including, but not limited to attorneys fees. This provision is intended to be severable from the other provisions of this Agreement and is intended to survive any such judgment and is not to be deemed merged into such judgment. 9. ENC1ZMnRANCFS AND RELEASES ON REAL PROPERTY: 9,1 Discretion to Encumber. The parties hereto agree that this Agreement shall not prevent or limit Property Owner, in any manner, at Property Owner's sole discretion, from encumbering the Property or any portion of any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. City acknowledges that the lenders providing such financing may require certain modifications and City agrees, upon request, from time to time, to meet with Property Owner 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 mortgagees or trust deed beneficiaries of the Property shall be entitled to the following rights and privileges. 9.2 Rntitlement to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust, and their successors and assigns, or any mortgage or deed of trust encumbering the Property, or any part thereof, which mortgagee, beneficiary, successor or assign has requested in writing to the City, shall be entitled to receive written notification from the City of any default by Property Owner in the performance of Property Owner's obligations under this Agreement which is not cured within thirty (30) days. 9.3 PropeM Subiect to Pro Rata Claims, Any mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the property, or part thereof, subject to any pro rats claims for payments or charges against the Property, or part thereof, secured by such mortgage which accrue prior to the time such mortgagee comes into possession of the property, or part thereof. 9.4 Releases. City hereby covenants and agrees that upon payment of all fees required under this Agreement with respect to the Property, or any portion thereof, City shall execute and deliver to County Recorder appropriate release or releases of further obligations in form and substance acceptable to the County Recorder or as may otherwise be necessary to effect such release. W9677.1/A ANNLX.DLWJM3-'1 I IM S SENT BY:Xerox Telecopier 7020 ;11-24-92 ; 3:35PM 6193066964 6193400594;#12 10. MISCELLANEOUS ERQY!6-1O-M: , 10.1 Rules of CongnXlion, The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, and "may" is permissive. If there is more than one signer of this Agreement, their obligations are joint and several. The time limits set forth in this Agreement may be extended by mutual consent of the parties in accordance with the procedures for adoption of an agreement. 10.2 Sglily• The parties hereto agree that the provisions are severable, If any provision of this Agreement is held invalid, the remainder of this Agreement shall be effective and shall remain in full force and effect unless amended or modified by mutual consent of the parties. 10.3 Entire Agreement, Waivers and Amendments. This Agreement constitutes the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiation or previous agreements between the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the City or of Property Owner. All amendments hereto must be in writing signed by the appropriate authorities of the City and Property Owner. Upon the completion of performance of this Agreement or its earlier revocation and termination, a statement evidencing said completion or revocation shall be signed by the appropriate agents of Property Owner and the City. 10.4 PMject is_a Private Undertalcina. It is specifically understood and agreed to by and between the parties hereto that: (a) the subject development is a private development; (b) the City has no interest or responsibilities for or duty to third parties concerning any improvements until such time and only until such time that the City accepts the same pursuant to the provisions of this Agreement or in connection with the various subdivision map approvals; (c) Property Owner shall have full power over and exclusive control of the Property subject only to the limitations and obligations of Property Owner under this Agreement; and (d) the contractual relationship between the City and Property Owner is such that Property Owner is w independent contractor and not an agent of the City. 10,5 IncoMgration of Recitals. The recitals are specifically incorporated into this Agreement. IN WITNESS WHEREOF, this Agreement has been executed by the parties on the day and year first above written, as authorized by Resolution No. of the City Council. "CITY" THE CITY OF PALM DESERT, a municipal corporation BY City Manager nVvd7'. 9 SENT BY:Xerox Telecopier 7020 ;11-24-92 ; 3:35PN1 6193406698� 6193400574:#13 I HEREBY APPROVE the form and legality of the foregoing Agreement this _ day of December, 1992. DAVID J. ERWIN, City Attomey "PROPERTY OWNER" MC PROPERTIES, a partnership BY BY MACLEOD-COUCH LAND COMPANY, a partnership BY BY W%77.1/A_AWM.DLR/JMS1111091 10 SENT BY:Xercx Telecopier 7020 :11-24-92 : 3:35PM : 61934056984 6193400574:#14 EXHIBIT "A" LEGAL DESCRIPTION TI4E LAND REFERRED TO HEREIN IS SITUATED IN THE UNINCORPORATED AREA OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL THE NORTHERLY 455 FEET OF THE SOUTHWEST QUARTER OF SECTION 29, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY APPROVED FEBRUARY 29, 1856; EXCEPTING THEREFROM 50 PERCENT OF ALL OIL, GAS, AND OTHER HYDROCARBON SUBSTANCES AND ALL OTHER MINERALS UNDERLYING SAID LAND AS RESERVED IN DEED FROM CHESTER W. FROUDE AND GLADYS R. FROUDE, HUSBAND AND WIFE, TO BLANCHE STEPHEN, AN UNMARRIED WOMAN; ALSO EXCEPTING THEREFROM THE WESTERLY 55 FEET THEREOF (MEASURED AT RIGHT ANGLES) CONVEYED TO THE COUNTY OF RIVERSIDE BY DOCUMENT RECORDED JULY 25, 1985, AS INSTRUMENT NO. 163780 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. PARCEL 2: THE SOUTHWEST QUARTER OF SECTION 29, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY; EXCEPTING THEREFROM THE SOUTH 1470 FEET AND THE NORTH 455 FEET THEREOF; EXCEPTING THEREFROM THE WESTERLY 55 FEET THEREOF (MEASURED AT RIGHT ANGLES CONVEYED TO THE COUNTY OF RIVERSIDE BY DOCUMENT RECORDED JULY 25, 1985, AS INSTRUMENT NO. 163781 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. EXHIBIT "A" M195TI-VA ANNEX.U1.27MN111092 SENT BY:Xerox Telecopier 7020 ; 11-24-92 ; 3:25PM ; 61934056984 61193400574;#15 1Z 31. _ y I _ ^0' rare :r. •.\ ._ .' �'I �pRIY Wj]j IY.W�41My.yy�i:i,J1��'\i'1li�iJ 1. `r.` •.•^•\'^— . .. ;� i � �, ., .'. . : I•�'�;I�i Via'.`, _ :•y, f�;• �I 1� ' N r� 'FYI �• ;\ s i� 71 �SuB=cT peppERrr P.C.O. ••wt „ rvvr�a.�+�++�+� l IY� ....olun o.o.xr• t i I r � � s CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT TO: Planning Commission DATE: December 1, 1992 CASE NO: DA 92-1 Preannexation Development Agreement REQUEST: Preannexation development agreement resolution recommending to the city council approval of a preannexation development agreement as it pertains to the future development of a 75 acre site on the north side of Dinah Shore Drive, 1295 feet west of Monterey Avenue. APPLICANT: A.J. Lou aka Alyce Lazar 334 Hermosa Place Palm Springs, California 92262 I . BACKGROUND: Planning commission will recall processing the prezoning of this area on March 17, 1992 and April 21, 1992 . The prezoning was confirmed by the city council and the annexation processed through LAFCO. LAFCO approved the annexation October 22 , 1992 subject to the city council holding a protest hearing. The protest hearing will be held December 17 , 1992 . Several property owners in the area to be annexed have requested that the city enter into a preannexation development agreement which will assure their future development rights among other matters . Failure of the city to enter into the development agreements could result in the annexation being terminated due to protests . II . CEQA REVIEW The prezoning and decision to process the annexation of this area were reviewed for compliance with CEQA. This development agreement allows for future development of the property with uses and are subject to terms which are consistent with the zoning imposed by the prezone ordinance #683 (Case C/Z 92-1 ) . The environmental assessment conducted for Ordinance No. 683, C/Z 92-1, is hereby adopted by reference. Therefore, no further documentation is necessary at this time. Of course, when a specific development project is submitted additional environmental review will be necessary. STAFF REPORT DA 92-1 DECEMBER 1, 1992 III . RECOMMENDATION: That planning commission adopt its Resolution No. recommending to the city council approval of the preannexation development agreement between the City of Palm Desert and A.J. Lou aka Alyce Lazar, Exhibit 'A' , attached to the draft resolution. IV. ATTACHMENTS : A. Draft Resolution B. Development Agreement C . Legal Notice Prepared by Reviewed and Approved by SRS/tm 2 PLANNING COMMISSION RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL APPROVAL OF A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND A.J. LOU AKA ALYCE LAZAR PERTAINING TO THE FUTURE DEVELOPMENT OF A 75 ACRE SITE LOCATED ON THE NORTH SIDE OF DINAH SHORE DRIVE . CASE NO. DA 92-1 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 1st day of December, 1992, hold a duly noticed public hearing to consider the request of A.J. Lou aka Alyce Lazar to consider the above mentioned project; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89, " in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1 , Ordinance No. 683 and no further documentation is necessary; 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 preannexation development agreement: 1 . The provisions of the development agreement are consistent with the requirements of Chapter 25 . 37 of the Zoning Ordinance (development agreement) . 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 Preannexation Development Agreement Exhibit 'A' attached hereto 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 lst day of December, 1992 , by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ROBERT SPIEGEL, Chairman ATTEST: RAMON A. DIAZ , Secretary Palm Desert Planning Commission RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: PAUL T. SELZER, ESQ. BEST, BEST & KRIEGER 600 E. TAHQUITZ CANYON WAY PALM SPRINGS, CALIFORNIA 92262 DEVELOPMENT AGREEMENT ENTERED INTO BETWEEN THE CITY OF PALM bESERT AND ALYCE LAZAR DE030655:11/04/92 EXHIBIT TABLE OF CONTENTS RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. TERM. . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 5 3. RESTRICTIONS ON DEVELOPMENT AND USE. . . . . . . . . . . . . . . . . . . . . . 5 4. DEVELOPMENT AND USE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 5. DEVELOPMENT IMPACT FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 6. UNDERGROUNDING OF UTILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 7. ACCESS TO PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8. THIRD PARTY PERMITS AND APPROVALS AND UTILITIES. . . . . . . . . . . 9 9. PUBLIC IMPROVEMENTS AND SERVICES. . . . . . . . . . . . . . . . . . . . . . . . 10 10. COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Il. DEFAULT BY LAZAR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 12. DEFAULT BY THE CITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 14. SUPERSEDING STATE OR FEDERAL LAW. . . . . . . . . . . . . . . . . . . . . . . 13 15. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 16. EQUITABLE SERVITUDES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 17. NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. . . . . . . 14 I& NOTICES AND OTHER COMMUNICATIONS. . . . . . . . . . . . . . . . . . . . . . . 14 19. ESTOPPEL CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 20. APPLICABLE LA W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 21. VENUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 DE030655:11/04/92 22. ATTORNEYS' FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 23. PARAGRAPH HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 24. CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 25. SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 26. CALENDAR PERIODS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 27. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 2x FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 29. COVENANT OF GOOD FAITH. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3a COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 31. REPRESENTATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 32. INCORPORATION OF RECITALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 33. EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 34. AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 35. RECORDATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 DE030655:11/04/92 DEVELOPMENT AGREEMENT THIS DEVELOPMENT ("Agreement") is entered into on 1992 , between ALYCE LAZAR aka A.J. LOU, a married woman, as her sole and separate property ("Lazar") , and the CITY OF PALM DESERT, a municipal corporation organized and existing under the laws of the State of California (the "City") . Lazar and the City are sometimes collectively referred to herein as 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 65864-65869 . 5 ("Development Agreement Law") authorize the City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and reducing the economic costs of such development. C. Pursuant to Government Code Section 65865, the City has adopted rules and regulations establishing procedures and requirements for consideration of development agreements. D. . Lazar is the owner of the real property described on Exhibit "A" , attached hereto and incorporated herein by this reference (the "Property") . The Property is currently located 0E030655.11/04/92 within the unincorporated area of Riverside County. The City has initiated proceedings for the annexation of the Property S (Annexation No. 32 Palm Desert) into the corporate boundaries of _.-- the City in accordance with the Cortese-Knox Act (Government Code Section 56000, et seg. ) , has certified and approved a negative declaration pursuant to the California Environmental Quality Act for pre-zoning, and has approved certain pre-annexation zoning for the Property (C/Z 92-1) . Such annexation proceedings will be completed following approval of this Agreement, and this Agreement shall not be effective until such time as the annexation proceedings are completed. E. The Property is currently zoned for high intensity industrial uses under the County's Land Use Ordinance and General Plan. Prior to approving such industrial zoning, the County performed all required environmental analysis in accordance with CEQA. F. Lazar intends to use the Property for commercial and/or for industrial uses, and seeks certainty in the approval of the commercial and industrial use and development of the Property. G. In partial consideration of Lazar's support for the annexation of the Property into the City, the City requested Lazar to consider entering into this Agreement relating to the Property and proceedings have been taken in accordance with the Development Agreement Law and the city' s rules and regulations. H. The City Council has found that this Agreement is consistent with the city's General Plan, as amended (the "General Plan") , and any applicable Specific Plan. DE^10655:11/06/92 -2 I , On , 199_, the City Council of the City adopted ordinance No. approving this Agreement with Lazar. J. The Development Criteria implements the goals and policies of the City's General Plan and provides balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the City and to impose appropriate standards and requirements with respect to land development and usage. K. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City' s future exercise of certain governmental powers, to the extent permitted by law. This Agreement has undergone extensive review by the city' s staff, the Planning Commission of the City, and the City Council and has been found to be fair, just and reasonable and in the best interest of the citizens of the City and the public health, safety and welfare. IN CONSIDERATION OF THE RECITALS AND THE MUTUAL COVENANTS AND CONDITIONS OF THIS AGREEMENT, the parties agree as follows: 1. DEFINITIONS. 1. 1 "Agreement" is this Development Agreement. 1.2 "Agreement Date" is the date this Agreement is executed by the City. 1. 3 "CEQA" is the California Environmental Quality Act, Public Resources Code Section 2100, et se,a. V n30655:Y1/04/92 —3 1.4 "City" is the .City of Palm Desert, California. 1. 5 "County" is the County of Riverside, California. 1. 6 "Development Criteria" are all of those ordinances, resolutions, codes, rules, regulations and official policies of the City governing the development and use of the Property as of the Agreement Date, including, without limitation, the zoning approved by the City as part of the annexation of the Property to the City, t pe rmitted ermitted uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings, the provisions for reservation of dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. Specifically, but without limitation, such Development Criteria includes the Amendment to the General Plan adopted by the City Council on 19_, as Grd 4 aaee No. , and Zone Change. adopted by the City Council on , 19_, by Ordinance No. To the extent any of the foregoing are amended from time to time with the consent of Lazar, the Development Criteria shall include such matters as so amended. Notwithstanding the immediately preceding sentence, if this Agreement is required by law to be amended in order for the Development Criteria to include such amendments, "Development Criteria" shall not include such amendments unless and until this Agreement is so amended. 1.7 "Effective Date" is that date which is the later to occur of the following: (a) the expiration date for the filing of a referendum petition relating to this Agreement if no such petition DE030655:11104/92 _4- is filed by such date, (b) the date that the results of a referendum election are declared approving this Agreement if a referendum petition is filed within the applicable period, or (c) the date the Property is annexed into the City. 1. 8 "Lazar" is Alyce Lazar, a married woman as her sole and separate property, and her successors in interest to all or any part of the Property. 1.9 "Property" is all of the real property and any improvements thereon described in Exhibit "A" attached hereto and incorporated herein by this reference. 2. TE . Unless earlier terminated as provided in this Agreement, this Agreement will commence on the Effective Date and will continue until December 31, 2012 . 3 . RESTRICTIONS ON DEVELOPMENT AND USE. The development and use of the Property, including the density or intensity of use, the maximum height and size of proposed buildings, building setback requirements, parking requirements and provisions for reservation or dedication of land for public purposes, will be governed by the Development Criteria as the same exists on the Agreement Date. The City acknowledges and agrees that the Development Criteria specifically permits the use of the Property for all commercial developments and uses or other uses or developments permitted in the PC planned commercial district, regional center zone (PC 3) , provided for in the city's Municipal Code as of the Agreement Date. Notwithstanding the foregoing, the City and Lazar acknowledge and agree that Lazar intends to develop DE03065501/04/92 _5_ and use all or a portion of the north-half of the Property for industrial uses and developments. Accordingly, Lazar and the City contemplate that Lazar may make application at some future date for modification of the planned commercial district zoning on the Property, to the extent necessary and applicable; to permit industrial uses and developments on all or a portion of the north- half of the Property. The City acknowledges that the use of all or a portion of the north half of the Property for industrial uses and developments is consistent with the General Plan and the City will, subject to all requirements of the law and local ordinances, expeditiously process any request by Lazar to change all or a portion of the north-half of the Property to permit industrial uses and developments. Except with regard to any aspect of the development of the Property which is addressed in this Agreement including, without limitation, Development Impact Fees (as defined in Section 5) and Public Improvements (as defined in Section 8) , the parties acknowledge and agree that certain specific aspects of the development of the Property pursuant to this Agreement will require the exercise of discretion by the City and that those aspects of the development of the Property will be subject to the City' s reasonable review and approval as set forth in subsection 4 . 2 and in the City' s ordinances, resolutions, rules and regulations, as they exist from time to time; provided, however, that those ordinances, resolutions, rules and regulations are consistent with the Development Criteria and this Agreement and provided further DE030655:11/04/92 -6- that the City exercises its discretion in a manner which is consistent with this Agreement. 4. DEVELOPMENT AND USE. 4 . 1 Lazar will have the vested right to develop the Property in accordance with the Development Criteria and this Agreement, without regard to future ordinances, resolutions, rules, regulations and policies of the City or referenda of the voters of the City including, without limitation, those with respect to moratoriums for utility service, other than ordinances, resolutions, rules, regulations and policies of the City which limit or condition the rate, timing or sequencing of development of the Property and which are required solely as a result of then existing shortages of utility service capacity or facilities. 4.2 On the request of Lazar from time to time, the City will accept applications for, diligently process and issue, in accordance with the Development Criteria, any land use approvals and permits, subdivision approvals, building permits (including, without limitation, building permits for public improvements) , certificates of occupancy, business licenses and other permits which are necessary for the development or use of the Property in i _ accordance with this Agreement, on payment of ( ) the cit y's usual and customary fees and charges which are in effect as of the Agreement Date, to cover its costs of processing any such applications and issuing any such approvals, permits and certificates ("Processing Fees and Charges") , and (ii) the Development Impact Fees (as defined in Section 5) , at the time that DE030655:11/04/92 _7 the Processing Fees and Charges and the Development Impact Fees are normally payable as provided in the Municipal Code of the City. 5. DEVELOPMENT IMPACT FEES. 5 . 1 "Development Impact Fees" . The total development impact fees, including traffic mitigation fees, drainage fees, sewer connection fees, construction taxes and all other applicable development impact or linkage assessments, fees and charges which will be imposed on Lazar with respect to the Property (collectively "Development Impact Fees") shall be those in force and effect as of the Agreement Date; provided, however, this section shall not be construed to limit the authority of the City to increase the amount of the Development Impact Fee on a uniform city-wide basis so long as the amount of any increase, fee or.: charge after the Effective Date of this Agreement shall not exceed the increase in the reasonable cost of providing the improvement or service for which the fee or charge is imposed. The City also will not impose on or exact from any subsequent owner, developer, lessee or occupant of the Property, or any part thereof, any fees, taxes, charges or other impositions in substitution of any of the Development Impact Fees. 5.2 The parties agree that nothing in this Section 5 will be deemed to prohibit or limit in any way the imposition of fees by governmental agencies which are not sponsored by or under the control of the City including, without limitation, the State of California and the federal government of the United States. DE030655:11/04/92 -$ 6. UNDERGROUNDING OF UTILITIES. The City shall not impose or reach agreement with any other governmental jurisdiction to impose on Lazar at any time during the term of this Agreement, in connection with the development of the Property, a requirement or condition that Lazar underground or pay for the undergrounding of any electrical transmission lines, telephone lines or related poles or structures existing or hereafter constructed within the south half of the right-of-way of Dinah Shore Drive. 7 . ACCESS TO PROPERTY The City acknowledges and agrees to allow three points of full access (left and right turn in and out) to the Property from Dinah Shore Drive. Such points of full access shall include the existing signaled access at the east boundary line of the Property, a full access point at the west boundary line of the Property, and a full access point at or near the mid-point of the Property. In addition to the full access points described above, the City also shall allow right in/right out-type access points along Dinah Shore Drive. In the event Lazar is required to pay for all or part of the costs of a signal at either or both of the two full access points in connection with the development of the Property, Lazar shall receive a credit in the amount of her signalization costs against any signalization fees otherwise imposed by the City. 8. THIRD PARTY PERMITS AND APPROVALS AND UTILITIES. The City will use all appropriate efforts to assist Lazar or any developer or user of a portion of the Property in obtaining all other permits and approvals which are required by governmental DE030655:11/04/92 -y- entities other than the City, which have jurisdiction over the development or operation of the Property, and all utility connections and services including, without limitation, electrical, gas, telephone, cable television, which are required for the development or operation of the Property. 9. PUBLIC IMPROVEMENTS AND SERVICES. Lazar shall not be required by the City to construct any public improvements or pay or make any dedications or reservations for any public improvements with respect to the Property until, and in connection with, the development of the Property or a portion thereof by Lazar. Further, if only a portion of the Property is developed at a particular time, then only those public improvements, dedications, or reservations with respect to and adjacent to the developed portion of the Property shall be required by the City; provided, however, that non-adjacent public improvements may be required by the City in connection with the development of all or a portion of the Property if such public improvements are required to mitigate impacts identified in a traffic study done by the City with respect to the portion of the Property to be developed. At no time shall Lazar be required to construct any public improvements or pay or make any dedications or reservations for any public improvements with respect to the Property on the south half of Dinah Shore Drive. Further, the City shall not, without the prior written consent of Lazar, include the Property within any assessment district, community services district or community facilities district formed pursuant to the Landscaping and Lighting Act of 1972, the Mello Roos Community OE030655:11/04/92 -1�- Facilities Act of 1982 , or any successor statutes or other bond or assessment acts adopted in connection with the development or maintenance of public improvements or with the supply of community or public services provided to other parts of the City without special charge or assessment. 10. COMPLIANCE. The City will periodically review this Agreement as provided in Section 65865 . 1 of the Government Code and Section 25. 37. 070 of the Municipal Code, to ascertain Lazar' s good faith compliance with the provisions of this Agreement. 11. DEFAULT BY LAZAR. If the City does not find good faith compliance with the provisions of this Agreement by Lazar,,, then the City will have all of the remedies which are available to it at law or in equity and will comply with all of the procedures which are provided in Section 65865. 1 of the Government Code. 12 . DEFAULT BY THE CITY. If the City fails to perform any of its obligations as provided in this Agreem ent and fails to cure its nonperformance within 30 days after notice of nonperformance is given by Lazar, then the City will be in default and Lazar will have all of the remedies which are available to her at law or in equity; provided, however, that if the City's failure to perform cannot reasonably be cured within such 30 day period, then the City wil l not be in default of this Agreement if it commences to cure its nonperformance within such 30 day period and thereafter diligently and in good faith prosecutes such cure to completion. Without DE030655:11/04/92 -1 1- limiting the effect of the foregoing, the parties acknowledge and agree that the subject matter of this Agreement is unique and that money damages may be inadequate to compensate Lazar and therefore, at the election of Lazar, this Agreement may be specifically enforced. 13. INDEMNIFICATION. (a) Lazar will defend, indemnify and hold the City and its elected officials, officers and employees free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any obligation which arises from the development of the Property including, without limitation, obligations . for the payment of money for material and labor; (ii) any failure on the part of Lazar to take any action which she is required to take as provided in this Agreement; (iii) any action taken by Lazar which she is prohibited from taking as provided in this Agreement and (iv) -any iv claim which results from any willful or negligent act or omission of Lazar. (b) The City will defend, indemnify and hold Lazar and her trustees, beneficiaries, shareholders, directors, officers and employees free and harmless from any and all loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any failure on the part of the City to take any action which it is required to take as provided in this Agreement, (ii) any action DE030655:11/04/92 -1 2 taken by the City which it is prohibited from taking as provided in this Agreement and (iii) any claim which results from any willful or negligent act or omission of the City. (c) Included in the scope of the foregoing indemnifications will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject of the applicable indemnification and all of the associated legal fees and court costs. Without limiting the effect of the foregoing, the indemnifying party will have the right to defend against any claim with respect to which it is indemnifying the other party, using legal counsel of its choice. 14. SUPERSEDING STATE OR FEDERAL LAW. If any state or federal law or regulation which is enacted or adopted after the Effective Date of this Agreement or any other action of any governmental entity which is not under the City' s control, prevents or precludes compliance with any provision of this Agreement, then such provision of this Agreement will be modified or suspended only to the extent and for the time it is necessary to achieve compliance with such law, regulation or other governmental action and the remaining provisions of this Agreement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its .intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. On the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance which removes the effect of the same on this DE030655:17/06/92 -1 3- Agreement, the provisions of this Agreement will be automatically restored to their full original effect and any amendment to this Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 15. SUCCESSORS AND ASSIGNS. All of the provisions of this Agreement will inure to the benefit of and will bind the parties and their respective successors and assigns and all other persons or entities which acquire all or any part of the Property. Without limiting the effect of the foregoing, Lazar will have the right to assign any of her rights or delegate any of her obligations as provided in this Agreement to or for the benefit of any person or entity which owns or leases any part of the Property. 16. EQUITABLE SERVITUDES. All of the provisions of this Agreement will be enforceable as equitable servitudes and will constitute covenants running with the land as provided in the applicable law. 17. NEGATION OF AGENCY JOINT VENTURE OR PARTNERSHIP. The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of join venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners. 18. NOTICES AND OTHER COMMUNICATIONS. All notices or other communications which are required or permitted to be given to the parties will be in writing and will be DE030655:11/04/92 -14- given either by personal service or by mailing the same by certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service, addressed as follows: CITY COP CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 Attn: Ramon Diaz Attn: LAZAR COPY Alyce Lazar Best, Best & Krieger 334 Hermosa Place 600 E. Tahquitz Canyon Way Palm Springs, CA 92262 Palm Springs, CA 92262 Attn: Paul T. Selzer If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it will be deemed given as of the date of receipt, rejection or return undelivered. Addressees to which notices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 17 . 19. ESTOPPEL CERTIFICATES. At the request of either party, the other party will, within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, except as is expressly provided in such estoppel certificate and (c) no default in the performance of the requesting party's obligations as provided in this Agreement DE030655-11/04/92 -1 5 exists, except as is expressly provided in such estoppel certificate. 20. APPLICABLE LAW. This Agreement will be construed and enforced as provided in California law. 21. VENUE. Any legal action with respect to this Agreement will be brought in either Riverside Superior Court or in the United States District Court for the Central District of California. 22. ATTORNEYS' FEES. If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in such action will be entitled to recover from the losing party all attorneys' fees, court costs and necessary disbursements in connection with such action. 23. PARAGRAPH HEADINGS. The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 24. CONSTRUCTION. In all cases, the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. DE03065501/06/92 -16- 25. SURVIVAL. Each and every covenant in this Agreement will survive the execution and delivery of this Agreement for the benefit of the parties and their successors and assigns. 26. CALENDAR PERIODS. All references in this Agreement to "years", "quarters" , "months" and "days" will be deemed to be to references to calendar years, quarters, months and days. 27. SEV BABILITY. Every provision of this Agreement is and will be construed to be a separate and independent covenant. Without limiting the effect of Section 13 . , if any provision of this Agreement or the application of the same is, to any extent, found to be invalid or .unenforceable, then the remainder of this Agreement or the application of such provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Agreement will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 28. FIMTHER ASSURANCES. Whenever and as often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to - be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or property in order to achieve the intent of this Agreement. DE030655:11/04/92 17- 29 . COVENANT OF GOOD FAITH. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 30. COUNTE RPARTS. This Agreement may be executed in counterparts, each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 31. REPRESENTATION. The parties hereto acknowledge and agree that Best, Best & Krieger has prepared this Agreement at the request of both parties. Best, Best & Krieger has a long-standing relationship with both Lazar and the City and has advised each to seek separate, independent counsel of their own choosing for the purpose of . informing them of the legal consequences of this Agreement, and the advisability of executing it. 32. INCORPORATION OF RECITALS. The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereof. Each recital of fact concerning the parties will be conclusive between them and such facts will be incontestable in the event of any dispute between them with respect to such facts. Neither party will introduce any evidence in a court or administrative proceeding which would in any way serve to dispute any such recited fact. DE0 M5*11/04/92 -18- 33 . EXHIBITS. Any Exhibit to this Agreement is incorporated by reference as though fully set forth hereof. 34. AMENDMENT. No amendment or waiver of any term of this Agreement will be binding on the City unless and until it has been approved and has become effective as provided in Section 65868 of the Government Code and in Section 25. 37. 080 of the Municipal Code, or on Lazar unless and until it has been executed by Lazar. 35. RECORDATION. No later than 10 days after the Effective Date of this Agreement, the City will, at its cost, record this Agreement in the Official Records of the Riverside County Recorder, as provided in Section 65868. 5 of the Government Code and in Section 25.37 .090 of the Municipal Code. CITY CITY OF PALM DESERT By: By: ATTEST: By: City Clerk APPROVED AS TO FORM AND SUBSTANCE: By: City Attorney Alyce Lazar DE030655:11/04/92 -19- CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT MEMORANDUM TO: Planning Commission FROM: Stephen R. Smith, Associate Planner DATE: November 25, 1992 SUBJECT: Public Hearing Items C, D, E and F We apologize for not getting the text of the development agreements to you earlier, but negotiations have been ongoing up until the last minute. Please review the agreements and if you have any questions you may contact City Attorney Doug Phillips at 568-2611 on Friday, or myself on Monday or Tuesday. Stephen R. Smith Associate Planner /tm pd I ad2010199 pru city PROOF OF PUBLICATION (2013.5 CCU Proof of PublicafioD of: 09784 This space is for the County Clerk's Filing Start' CITY OF PALM DESERT DA 92-1 cD - f N C7 rn r h L� J ca CITY OF PALM DESERT LEGAL NOTICE Co CASE NO.DA 92-1 ,O [NOTICE IS HEREBY GIVEN that o public hearing will be held before the Palm Desert Planning Commission: ..,�. Co to consider a request by AJ. LOU AKA ALYCE l t7 LAZAR, for approval of a development agreement rrT CCrl n and negative declaration of environmental impact asit pertains thereto for the future development of a 75 acre site located on the north side of Dinah Shore Drive approximately 1295 feet west of Monterey Avenue, also particularly described as: APN 618-490-022 I SAID public hearing will be held on Tuesday,l December 1, 1992, at 7:00 .m. in the Council Chamber at the Palm Desert Civic Center, 73-510I STATE OF CALIFORNIA, Waring Drive,Palm Desert,California,at which time and place all interested persons are invited to County of Riverside,I am a citi- attend and be heard.Written comments concerning all ren of the United States and a re- items covered by this public hearing notice shall be sident of the County aforesaid,I accepted up to the date of the hearing. Information am over the age of eighteen years, concerning the proposed project and/or negative declaration is available for review in the department and not a party to or interested in of community development/planning at the above 6 the above-entitled matter.I am the address between the hours of 8:00 a.m. and 5:001 the er of the p.m. Monday through Friday. If you challenge the principalclerkofwspperofgcn- ra osed actions in court, ou m be limited to Desert Past,a newspaper of gen- r raising y % oral circulation,printed and pub- the only those issues you or someone else raised at the public hearing described in this notice,or in written . lished weekly in the City of Palm r correspondence delivered to the planning commission. Desert County of Riverside, and i (or city council)at,or prior to,the public hearing, which newspaper has been ad- RAMON A DIAZ,Secretary new Palm Desert Planning Commission: judged a spy of general 09784(PUB NOV 11 1992) circulation by the superior Court of the County of Riverside,State of California, under the date of 10/5.1964.Case(slumber 83658; that the notice, of which the an- nexed is a printed copy (set in type trot smaller than nonpareil), - has been published in each regu- lar and entire issue of said news- papa and not in any supplement thereof on the following date,to- wit 11/11 all in the year 1992.I certify (or declare)under penalty of per- jury that the foregoing is true and correct. s Dated at Palm Desert Califomia, this 11/11/92 T� I, Wd SZ 1ION N 1N3W1NVd30 30NVN13 12I3S33 Y♦3Vrl 39 ) 110 (Signed) pd 1 ad2 010199 pra city PROOF OF PUBLICATION (2015.5 CC.P) Proof of Publication of: 09786 Ms space is for the County Clerk's CITY OF PALM DESERT Mng Stamp DA 92-2 ea cn rJ rn rt � r— r N Cj � r-1 N � < v CITY OF PALM DESERT - - CO LEGAL NOTICE, CASE NO.DA 924 rsI i NOTICE 15 HEREBY GIVEN that a public hearing M CIl will be held before the Palm Desert Planning Commission to consider a request by MC PROPER- TIES, APARTNERSHIP AND MACLEOD COUCH LANDCOMPANY,A PARTNERSHIP,forapproval of a development agreement and negative declaration of environmental impact as it pertains thereto for the future development on a 70.67 acre site on the east I side of Monterey Avenue 2666 feet north of Gerold Ford Drive,also particularly described as: , APN 653-260.007 AND 008 STATE OF CALIFORNIA, SAID public hearing will be held on Tuesday, I December 1, 1992, at 7:00 p.m. in the Council County of Riverside,I am a citi- Chamber at the Palm Desert Civic Center,73-510 zen of the United States and a re- Fred Waring Drive,Palm Desert,California,at which sident of the County aforesaid;I time and place all interested persons are invited to am over the age of eighteen years, attend and be heard.Written comments concerning all items covered by this public hearing notice shall be and not a party to or interested in accepted up to the date of the hearing.Information the above-entitled matter.I am the concerning the proposed project and/or negative principal clerk of the primerof the declaration is available for review in the department Desert Post,a newspaper of gen- of community development/planning at the above lcirculation. rioted and Ub- address between the hours of 8:00 a.m..ond 5:00 met P P p.m.Monday through Friday. li you challenge the lished weekly in the City of Palm proposed,actions in court, you maybe limited to Desert County of Riverside, and raising only those issues you or someone else raised at 111 which newspaper has been ad- the public hearing described in this notice,or in written 1 correspondence delivered to the planning commission judged a newspaper of general (or city council)at,or prior to,the public hearing., circulation by the Superior Court RAMON A DIAZ,Secretary of the County of Riverside,State Palm Desert.Planning Commission 09786(PUB NOV I1, 1992) of California, under the date of 10/5,19tS4,Case Numbs 83658; that the notice, of which the an- nexed is a printed copy (set in type not smaller than nonpareil), has been published in each regu- lar and entire issue of said news- paper and not in any supplement thereof on the following date,to- wit: 11/11 all in the year 1992.I certify (or declare)under penalty of per- jury that the foregoing is true and cortacL Dated at Palm Desert California, this 11/11/92 To h Wd SZ RAN Z6r 1N3i1l8'Fd30 39N"13 1>j3S3© W1YJ 3® U10 y U (Si pd 1 ad2 010199 pru city PROOF OF PUBLICATION (20115 CC.P) Proof of Publication of:09775 This space;s for the Coumy Clerk's Filing Stamp CITY OF PALM DESERT DA 92-3 CITY OF PALM DESERT A LEGAL-NOTICE N CASE Not DA'92-3 -`{ NOTICE IS HEREBY GIVEN that,public hearing „� O will be held before the Palm Desert Planning rT r �' Commission to consider o request by RANCH L� f7 y{ MIRAGE INDUSTRIAL PARK A CALIFORNIA LIMIT- N C9 ` ED PARTNERSHIP; RUYEN INTERNATIONAL COR- PORATION; HENRYMELBY,TRUSTEE OF THE B.H. C i O FORTNER TESTAMENTARY, TRUST; MACLEOD t,z ` COUCH LAND COMPANY; AND BERNARD AND I .1 M JEANETT DEBONNE,for approval of a development , T agreement and negative declaration of enviroomen- e' ml impact as it pertains thereltoo for the future i rTl Ul F development of 0,alsor°Property described as: � u7 I(f Annexation 65i- 0- 30, Particularly I, MA, 015, 1 APN 653-250.005, 006,and 8 016,and O1,6 SAID public hearing will be. held'^the Council December 1, 1992, at 7-00 P' 73-510 Chamber at the PaPalm eDe er1,art 1vic Californiar at which t Fred Waring Drive, time and place all interested persons are invited to , and and be heard.Written comments concerning j all items covered by this public hearing notice shall be ormation STATE OF CALIFORNIA, 1 accepted up to proposed he dote f tro ectaand/orf negative ! concerning the proposed P County of Riverside,I am a citi- dfclommun;s Jevolble for review in the file above zen of the United States and a re- of community development/p g sident of the County aforesaid;I kkF address between IFra hours of if' o a.m. and SA0 I pp.,. Monday through Fri cry. ma be challenge dihto ! am over the age of eighteen years, proposed actions in court, y Y I and not a party to or interested in F. only those issues you or someone also n wirm,t the above-entitled matter.I am the ` the public hearing described in this notice,or in written principal clerk of theprinterof the I correspondence delivered to thetplanninge hearing.commission l 1 (or city council),q or prior RAMON A public Secretary Desert Post,a newspaper of gen- II Palm Desert Planning Commission eral circulation,printed and pub- 1 09775(PUB NOV 11 1992) - lished weekly in the City of Palm Desert County of Riverside, and which newspaper has been ad- judged a newspaper of general circulation by the Superior Court of the County of Riverside,State of California, under the date of 10/5,1964,Case Number 83658; that the notice, of which the an- nexed is a printed copy (set in type not smaller than nonpareil), - has been published in each regu- lar and entire issue of said news- paper and not in any supplement thereof on the following date,to- wit: 11/11 all in the year 1992.I certify (or declare)under penalty of per- jury that the foregoing is true and correct Dated at Palm Desert California, this 11/11/92 Z� h Wd Sz (ION N r 1W?p(llird3ti 30NVN13 I 1a3;3G �+�sd 301.1i0 / f pd I ad2 010199 pre city PROOF OF PUBLICATION (20115 C.C.P) Proof of Publication of: 09777 This space is for the County Clerk's Filing Stange CrrY OF ppI( DESERT � , co DA 92-4 N < G at n r— N p� r7 Vi R < p � rT Z1 CO CITY OF PALM DESERT � LEGAL NOTICE CASE NO.DA 92.4 rrT Gfj NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert -Planning Commission to consider a request by MONTEREY PALMS for approval of a development agreement and negative declaration of environmental impact as it pertains thereto for the future development of real property located within Annexation No. 30, also porticulorly described as: APN 653-260-005 SAID public hearing will be held on Tuesday, December 1, 1992, at 7:00 p.m. in the Council Chamber at the Palm Desert Civic Center;73-510 Fred Waring Drive,Palm Desert,California,at which time and place all interested persons are invited to STATE OF CALIFORNIA, attend and be heard.Written comments concerning County Of Riverside,I am a Citi- oll items covered by this public hearing notice shall be ren of the United States and a re- accepted up to the date of the hearing. Information concerning the proposed project and/or negative sident of the County aforesaid;I _ declaration is available for review in the department and over the age of eighteen years, Of community development/planning at the above and not a pasty to or interested in address between the hours of 8:00 a.m. and 5:00 andnove-etr ty to or irate Iam the p.m. Monday through Friday. If you challenge the the proposed actions in court, you may be limited to principal clerk of theprinterof the raising only those issues you or someone else raised at I Desert Post,a newspaper of gen- thepublichearingdescribedinthisnotice,or in written eralcirculation,printedandpub- correspondence delivered to the planning commission (or city council)at,or prior to,the public hearing. I lished weekly in the City of Palm RAMON A DIAZ,Secretary J Desert County of Riverside, and Palm Desert Planning Commission I which newspaper has been ad- 09777(PUB NOV 11, 1992) _ judged a newspaper of general circulation by the Superior Court of the County of Riverside,State of California, under the date of 1015.1964,Case Number 83658; that the notice, of which the an- nexed is a printed copy (set in type not smaller than nonpareil), has been published in each regu- lar and entire issue of said news- paper and not in any supplement thereof on the following date,to- wit 11/11 all in the year 1992-I certify (or doclare)under penalty of per- jury that the foregoing is true and conecL Dated at Palm Desert California, this 11/11/92 Z� h Wd SZ PION Z6. 1N31.11iiV430 30NVNIJ MS30 NIVd 30 1,110 (Signed) LAW OFFICES OF LYNN D. CRAN DALL ATTORNEYS AT LAW LYNN O. CRANOALL 43-645 MONTEREY AVENUE, SUITE 0 TELEPHONE 1619) 345-7SS7 LIS J R. ragVER PALM DESERT, CALIFORNIA 92260 TELECOPIER (619) 713-3589 L ISA A.A. SEGO ELIZABETH OLIVIER November 24, 1992 PERSONALLY DELIVERED Mr. Steven Smith Planning Department City of Palm Desert City Hall Re: Messick Development Agreement Dear Steve: Delivered herewith is the final form of development agreement which has been discussed between us and Doug Phillips. Please call me if further corrections are required. Very truly yours, LAW OFFICES OF LYNN D. CRANDALL Lyn AD randall LDC:afz Enclosures 6305. 01 11/24/92 10:08 ECK 1 714 784 7956 FATCO RIVERSIDE 0 001/002 *yt AMEX,Cy y R. FirstAmerican Rtle Insurance Company • 96?r FOUFiiEET(Tli START.(P.O.BOX 98S) R1�EASI�IE.CPLFORFAA -0888 • pt4)B&F1800 DATE: November 24, 1992 RECEIVED TO: Ramon Diaz NOV 2 4 1992 ATTN• ERIB ""WDEYEIffiMERT DEPARTMERT DRY Di PAtAI DESERT FAX NO. 619 340-0574 FROM: LOU MORRISO_T., CSEO PHONE NO. : 714 787-1728 RE: Our Escrow No. 1962336S Your Ref. : THIS TRANSMISSION CONSISTS OF 2 PACES, INCLUDING THIS COVER SHEET. THE FOLLOWING ARE BEING TRANSMITTED HEREWITH: OPENL'QG LETTER NOTIFICATION. WE AWAIT FUNDS FOR CLOSING ESCROW. OUR FAX NUMBER FOR THE ESCROW DEPARTMENT IS 714-784-7956. SENT BY:Xerox Telecopier 7020 ;11-24-92 : 3:07PM 5193406698- 6193400574;# 2 BEST, BEST & KRIEGER AAMRi[MM..CJKINB NCNl.DNI aM1 `wa L.IIWYERB ARTHUR L.LITTLEWORTM• DOUGLAS B.PHILLIP9• MATT H.NORM$ MARSHALL S.RUDOLPH SUITE 312 GLEN E.ATEPMEM- ANTONM ORAPHOS JEFFREY V.DUNN KIM A SIREN G 54700 BDE MOPE DRIVE WILLIAM A.D.WOLFE• GREGORY X.WAKIMOON RTEVEM C.OABAUN GYNTHM M.OEIIMANO Poor OFFICE BOR IWO PATON-OAUT• WYNNE H.MRTH GRANT H.DVEIRIN MARY E.GILBiRAP RANCHO MIRAGE.CAUVORNIA 92270 PAUL T BELIEI• DAVID L.IMAON ERIC L,GARNER NOUVEN 0,PHAN DALLAS HOLWIi. EUGENE TANAKA GENNIS M.OOTA DANIEL C.FARMER.JR. TEUEPMONE(619)668-2611 CHRISTOPHER L.CARPENTER•BASIL T.CHAPMAN JUuE HILYWARD am" OINEVIIA 0.MARUM TELECOPIER(619)2404m 6 RICHARD T.ANDERRON• TIMOTHY M.CONNOR RACMELL1 J.NICOLLE CHARLEG E.KOU LR JOHN D.WANLIN' VICTOR L.WOLF ROBERT W.HARGREAVES GLENN P.PAINE MICHAEL O.HARRIB` DANIEL 9.OLIVIER JANICE L.WEM CHRMTINE L.RICHARDSON W.CURT EALY• DANIEL J.MNHU0H SHARYL WALKER JOAME GMaA•COlJ1ON THOMAR B.OWVAK• HOWARD B.GOLDS PATIIICK W.PEARCE PHILIP J.KOEHLER JOAN E.BROWN. STEPREN P.OEITRCH KIRK W.SMITH DUNE C.W WBE MMMAEL T.RID091.0 MARC L EM►EY JASON 0.DABAREINER STEVEN B.KAUPHOLD MEREDITH A.JURY- JOHN R.ROTTSOMACFER KYLE A.KNOW NERECCA MARES DURNEY OF COUNSEL MICHAEL GRAN" MARTIN A.MURi FM MARK A.ENTER ALLISON 0.HARGRAVE JAMES S.6OMMOM fAMM J.BAUM• J.MIGHAEL SUMMEROUR DIANE L.FINLEY DOROTHY 1,AN99F"M ANNE T.THOMAP WCTOIMA N.KING MICHELLE OUELLETTE O•HENRY WELL" 0.MARTIN NETHERY• JEFFERY J.CRANOALL PMA M.SARMACK JAMES R.HARPER DECADE M.REYES 9COTT O•BMITH DAVID P.PHIPPEN,SR. OINA 0.HARRM WILLI"W.FLOYO,JR. JACIL B.C4NKE.JR. KENNETH R.WEISS MMHAEL A.DRBiE• BRIM M.LEWIS SUSAN C,MAURO GREGO"L,MANURE JEANNETTE A.PETERSON CHRISTOPMER COMM OFFICES IN KENDALL N.M..VEY BRADLEY E.NEUFELD BERNIE L.WIWAMSON RIVERSIDE(71<)SSR.IASO CLARK H.PLSOP• KANDY LEE ALLEN ELAINE E.HILL RAYMOND BEST(INO.19571 PALM SPRIHOO Wi013ES150A CAVID J.ERWIN• ELSE K.T. AYIIUM KEWN K.RANDOLPH JAMES M.KRIEGER u916 1975I MICHAEL J.ANDELSON• WILLIAM D.DAHUNO,JR. JAMES B.GILPIN EUGENE REST(IOS-ID41) ONTARIO(710I 989-SBRA •A.AY[.bOM4 aaRRn.x.w November 24, 1992 VIA TELECOPY Steve Smith City of Palm Desert 73-510 Fred waring Drive Palm Desert, CA 92260 Re: Annexation 30 Development Agreements Dear Steve: Enclosed is a fax I received from Cynthia Ludvigsen today, November 24, 1992. I have the following comments: 1. The words in brackets have been added. I have no problem with these changes. 2 . I am not sure why they want to delete paragraph 7 (this deal with the City's default) but I have no problem with the now paragraph 7. By the way, this new paragraph is from the Couch agreement. 3. The new paragraph 12 combines paragraphs 10 and 11. Again, I have no problem with this paragraph. Please give me a call once you have reviewed the enclosed. Very truly Yours, DOUG 555 S. PHILLIPS of Best, Best & Krieger DSP:pam enclosures Ds>2essr SENT BY:Xerox Telecoppier 7020 ;11-24-92 ; 3:08PM 6193406698 ' 51934005744 3 NW-24-19M 01:22PM FZ nthfa/Ludv19sen/Rtty. T 16193406698 P.02 .,UK1N1 t V MINORANDUM DATE: November 24, 1992 '� . TO: Cindy Ludvigsen FROMI If. M. Peccorini Re: Changes to DEVELOPMENT AGREEMENT ° These are the changes to the Development Agreement we have diecuseed: 1. Add at end of Paragraph 4 .4 as a separate, but unnumbered Paragraph-. For purposes of this Paragraph 4 .4 , "Construction of and extension of Portola Avenue" may be accomplished by the City by the construction of tha east one-half street section of extended Portola Avenue, which proposed one-half street extension is located. on property currently owned by the Palm Desert Redevelopment Agency. This construction and extension is found and is deemed by the City as "an acceptable service level" with respect to the extended Portola Avenue as called for under the terms of that certain settlement agreement between Rancho Mirage Industrial Park and the City of Rancho Mirage with respect to a settlement of that action entitled Rancho Mirage industr&;gl Park et al V. City of Rancho Mirage, case No. idio 65168 file in the Superior Court, County of Riverside,Lor as may be required under the Conditions of Approval relative to Parcel Maps Noe. 242SS and/or 27419] The City shall indemnify and save Rancho Mirage Industrial Park �nd/or Ruyenlfree and harmless from any suit brought which challenges th a finding. The City $hall require that the west one-half of the Portola Avenue extension be completed upon development of the property west of and adjacent to such extension, pursuant to the terms of this Paragraph. Gin no event shall Rancho Mirage Industrial Dark and/or Ruyen 'be required to pay for or otherwise share, either directly or indirectly, in the cost of the construction and extension of Portola Avenue �g 2. Delete Paragraph 7 of the Development Agreement as it now exists and substitute the following: Z�Owner:7 TIMING OFDEVELOPMENT. The parties acknowledge that Nsp cannot et thi$ time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owner$, s such as market orientation and demand, interest rates, absorption, completion and other similar factors . Since the California supreme Court hold in ardee Construction Ca v. tit of ca rillo ( 1984 ) 37 tal.3d 465 that the a ura o t e gartiea therein to provide • 1 • SENT BY:Xerox Telecopier 7020 ; 11-24-92 3;06PM 6i9340669Ay 6193400574;z 4 NOU-24-1992 01-123PM Fr- 4 Cynthia/Ludutgsen/Rtty, T[ 1619340669e P,03 OKiNl • l-rlr- vvo �• � tor ted for the timing of the initia- tive pert restricting the timing nt to parties' agreement, it 3s the parties' eOwnerscshalkhhavedefi- ciency by acknowledging and providing that the right to develop the Property in such order andhin at such rate and at such times as owners deem appropriate ci of their subjective business judgment. " 3 . Change Paragraph 12 of the Development Agreement as follows: 12 . " S1I HL SERVITUDES 0 Al GNPSF,NT. All of the provi- S sions of th s Agreement sha 1 be enforceable as equitable sarvi- � p tudes and shall constitute covenants sunning with the land as �Vn�Y of provided in the applicable law. bTherrnsfQrreddorbassignade pro- vati ided under this Agreement may \ such transfer or assignment is made in connection with @5 the tzarsfer, assignment, sale or lease of all or a portion of \� �j� Property. During the terms of this Agreement, any such as- the signae or transferse shall observe and perform all of the duties C and obligations of the particular Owner making such assignment to portionhis of theeement as property soch duties transferreddorbassigned. powner$ to the p shall suchveato the Citmentnoritransferce =..^thirty t30) days after any ..vls'ly r i SENT BY:Xerox Telecopier 7020 : 11-24-92 ; 3:29PM 61834066984 51934005744 2 SCHLECHT, SHEVLIN b. SHOENBERGER JAMES M. SCH:ECHr A LAW CORPORATION ICLUNe..c (610) 320-7161 JOHN C 6MEVLIN LAWYr RS1 TC LGCOP�cP (6191 323-1759 JDN A fi.JOHNSON POST OPPICE SOX 2744 TCLECpwICw 1619) 325•AA23 DANIEL T.J0�1rv3CN JOSERM A. Mails 001 EAST TAMOIJITS CANYON WAY, SUITE 100 C,COUMGGL AL-ENO PERWEP PALM SPRING$. CALIFORNIA 92263.27AA DONALD& NCNELLEY BONNIE 6ARLANO 3J86 CFA(d W NCAiTI MUR KAREN S. HELNUT� IN PRO,wr.GR TO (L6//.1 R 6RAO SEVER J SIMON A. HOUSMAN TCRi L.VOLLNCOLE November 23, 1992 Douglas S. Phillips, Esq. Best, Best & Krieger 39700 Bob Hope Drive Suite 312 Rancho Mirage, CA 92270 RE: CITY OF PALM DESERT AND OUR CLIENTS MACLEOD-COUCH LAND COMPANY AND MC PROPERTIES Dear Doug: Enclosed herewith is another revised copy of the proposed Pre-Annexation Agreement. The only changes are that we filled in the most of the blanks on page 1 and we have again revised paragraph 7.3 on page 6 simply to reflect that the property we have been discussing is owned by two of our clients, i.e. MacLeod-Couch Land Company and MC Property, both partnerships. They are the in the definitions as the "Property Owner" so we have used that term in 7.3 instead of using the names. I want to again confirm that even though this Pre-Annexation Agreement is being processed as a development agreement in terms of the public hearing process, it is my understanding that it will become annexed to the overall development agreement for the annexation area and be incorporated in that agreement. SENT BY:Xerox Telecopier 7020 ; 11-24-92 ; 3:25PM ; 6193405698y 6193400574;# 3 SCHLECHT, SHEVLIN & SHOENBERGER A LAW CORPORATION LAWYERS Do you want the agreement signed by our clients in advance of the public hearings, or do you wait untk after those hearings are complete? Best wishes. V truly ur , JA �M. SCHLECHT 7 S/rs e: Myron MacLeod Cynthia Ludvigson 11/24/92 10:08 FAX 1 714 784 7956 FATC0 RIVERSIDE 16002/002 ,46,( AMERrCa FirstAmerican Title Insurance Company Ike 3625 FOURTEENTH STREET,(P,O.BOX 986) RIVERSIDE,CAUPORNIA92502-0986 • (714)6841600 TO: CITY OF PALM DESERT A. J. LOU DAN OLIVIER FROM: Sina Ludwig, CS£0 RE: Escrow No. 1962336S DATE: November 24, 1992 This is to notify all parties that fully executed identical escrow instructions were received in escrow on November 24, 1992; therefore, in accordance with the terms of the Agreement, OPENING date of escrow is established to be November 23. 1992, Sina Ludwig, CSEO Escrow Officer TO: CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, GA 92260 A. J. LOU 334 Hermosa Place Palm Springs, CA 92262 BEST, BEST & KRIEGER 600 E. Tahquits Canyon Way Palm Springs, CA 92263 ATTN: Dan Olivier 11-23-92 09:21AM FROM BEST BEST & KRIEGER TO 3411006 r002/008 Ilk BEST, BEST & KRIEGER A IAATNI9 11IVCWpfD'2I0OONLL.A EATKWR LAWYERS ARTHUR L.LITTLEWORTN• OOOOLA.8.PHILLIPS. MATT H.MORRIY MAMRAI I R.RULCLP11 GOO EAST TAHOUIT2 CANYON WAY GLEN E.STEPHENS- ANTONIA GRAPHOS JEFFREY V,DUNN KIM A.RYRENS PE6'1 OFFICE BOX 2710 WILLIAM R.MWOLFE• GREGORY K.WILKINR(1N RTFVFN C.f AA11N CYNTHIA M.GERMANO PALM SPRINGS.CALIFORNIA 92263 SARTON C.GAUT' WVMRL S.FURTH URANI H.OVEIRIN MARY E.OI1-3TKAP TELEPHONE(6191 3264264 PAUL T.6ELEER• DAVID L.BARON ERIC L,GARNER NGUYEN D.PHN A DALLAS HOLME6' EUGENE TANA" DENNIS M.OJTA DANIEL C.PARKER,dR. IELECOPIER(BIG)325-0360 CHRISTOPHER L.CARPENTER'BASIL T.CHAPSIAN JIPJE HAYWARO WUOJ GINEVRAC MAYJM RICHARD T.ANDERSON- TIMOTHY M.CONNOR RACHELLE J.NICOLLL CHARLES E.KOU1K JOHN D.WF IN' VICTOR L.VJDIF' ROBERT W.HARGREAVES GUNN P.SABINE MICHAEL D.HARR6' DANIEL L.OLIVIER JARICE L.WEIS OYRI3RNE L. RICHAIaH:ON W.CURT EALY' DANIEL J.MAHLON SHARK WALKER )DAME CARCIA-COLSON THOMAS*R", HOWARD B.GOLDS PATRICK W.PEARCE PI IILIP J.KOEHLER JOHN E.BROWN' STEPHEN P.DEITSCH KIRK W.SMITH DIANE C WIESE MICHAEL T.RIDDELL• MARC E EMPEY JAION O.DAGAREINL'R STEVPN S.KAUONDLU MEREDITH A.JURY' JOIN R.ROTTSCHAEFER KYLE A.SNOW REBECCA MARES OURNILY 01'COUNSEL MICHAEL GRANT- MARTIN A.MUELLER MARK A 1ASTFR ALL IRON C.HARGRAVE IMAIO O.C[}RIWN FRANCJS J.MM• J.MICHAEL SUMMEROUR DIANE L.RNLEY COROTHY 1.ANDEMION .NNF.T THnMAR• VICTORIA N.KINn MICHELLE OUELLETTE G.HE NRY WCLLCS O.MARTIN NE EH ERY' JEFFERY J.CRANDALL PETER M.BARMACK JAMCS R.HARPEP GCURGE M.REYES SCOTTC.SMITH DAVID P.PHIPPEN,SR. DINA D.HARMS WILLIAM W.FLOYD.JR. JACK B,CLARKE,JR. KENNETH R.WEI66 MICHAEL A.CRISTE' BRIAN M.LEWIS SUSAN C.NALJSS OPCOORY L.HAROKE JEANNETTE A.PETERSON CHRISTUPHEH DODSON OFFICES IN KENDALL H.Abe VEV 9RADLEY E.NEUFELD BERNIE L W111IAMSON CLARK H.ALSOP KANDY LEE ALLEN EIAME C.HILL RAYMOND BEST IIBI,a 19571 RIVERSIDE O19NfD6-1450 DAVID J.ERWIN• ELSE K.TRAY.VUM KEVIN K.RANOOLPH JAMES H.KRIEGER 119ia 1919 RANCHO MIRAGE(SIOSS8.25I1 MICHAEL J.AHMLD.N- WILLIAM C.OA.LINO, A. JNAES B.41LIF. CUOCNC OC6T(JIMI 1 D911 ONTARIO 411.1 GBS.ABDA •A PROICWONAL CWPGW TIOV November 23, 1992 VIA FACSIMILE RECEIVED Mr. Bruce Altman Mr. Ray Diaz NOV 2 3 1992 Mr. Steve Smith City of Palm Desert COMMDNDY DEVEUIPMEM DEPAMMEif CITY 1 73510 Fred Waring Drive OFP°A 06ERi Palm Desert, CA 92260 Re: Agreement of Purchase Agreement and Escrow Instructions Between City of Palm Desert and Alyce Lazar Gentlemen: On Friday afternoon Doug Phillips called me on behalf of Steve Smith regarding concerns staff had with Section 3 . 2 of the Agreement of Purchase and Sale relating to inspections. Because of the revised date for close of escrow on or before November 25, 1992, I was required to limit the inspection period to on or before November 23 , 1992. The provision also states that if Buyer fails to provide Seller with written notice of any objection to the physical condition of the . Sales Property within the inspection period, Buyer shall be deemed to have waived this condition to close of escrow. The provision simply means a waiver of a condition of close of escrow; not a waiver of any right Buyer may have for indemnity against Seller pursuant to Section 8. 1 if, after close of escrow, Buyer discovers a condition of the property that existed prior to close of escrow that results in a liability to Buyer. If it would make the City more comfortable, please feel free to strike Section 3. 2 entirely from the Agreement. DE031670 11-23-92 09;21AM FROM BEST BEST & KRIEGEE TO 3417098 F003/008 U\W OFFICES OF BEST, BEST 6 KRIEGER Mr. Bruce Altman Mr. Ray Diaz Mr. Steve Smith November 23, 1992 Page 2 Should you have any questions, please do not hesitate to contact me. I will be calling later this morning to insure that all is okay and that the document has been signed and is on its way up to escrow. Sincerely, BEST & GER Daniel E. Olivier DEO/ks cc: Doug Phillips, Esq. DE031670 I ;-23-92 09:21AM FROM BEST 2ES'T & KPIEGER TO 3411098 ?004/0H I1/80/01 1E:10 PAS 'A 764 7050 FATCO RIVERSIDE ga00:/000 1962326 FIRST AnRICAN TITLE INSURANCE COM?ANY 3625 FOURTEENTH STREET, (P.O. BOX OaG) g VERSIDE, CALIFORNIA 92502 (Ally 909) 767••1700 FIRST AMERICAN TITLE INSURANCE COMPANY ATTENTION: SIN& LUDWIG D YOUR NO. DATED AS OF I40VEM8ER B, 1.902 AT 7.30 A.M. IN RESPONSE TO Tiiir A80VE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE, THIS COMPANY HEREBY REPORT& THAT IT IS PREPARED TO ISSUE, OR CAUSE TO BE ISSUED, AS OF THE DOTS HISREOr, A POLICY OR POLICIES OF TITLE INSURANCE DX9CRIA1NG T4E LAND AND THE ESTATE OR INTEREST THEREIN KEREINAF7ER SET FORTH, ItiSURING AGAINST LOSS ;CHICK MAY BE SUSTAINED BYRVASON OF ANY DECLCT, LIEN OR ENCUMBRANCE NOT SHOWN OR REFERRED TO AS AN EXCEPTION BELOW OR NOT EXCLUDED "OR COVERAGE PURSUANT TO THE PRINTED SCHEDULES, CONDITIONS AM STIPULA41ONS OF SAID POLICY FCRMS. THE pp-WTED EXCEPTIONS AND EXCLUSIONS FROM: THE COVERAGE OP SAID POLICY OR POLICIES A9.F. SET FORM IN EXHIBIT A ATTACHED. COPIES OF THE POLICY FORMS SHOULD BE READ. THEY ARE AVAILABLE FRO(4 TiiS orrICE WHICH ISSUED THIS REPORT. SO ELYyFFOORT (AND An THE pMC9 OFLFACILITATIN OR AG THE ISSUANCEOFIA POLICY OF TITLE INSURANCE AND NO LIABILITY IS ASSUMED HERESY. IF IT IS DESIRED THAT LIABILITY BE ASSUMED PRIOR TO THE ISSUANCE OF A DOLICY OF TITLE INDURl"CE, A EIN"R OR OObiMTTMENT SHOULD BE RESTED. J�EM � TITLE dFFICER PAGE 1 R��EI�/ED Nov 2 3 1992 y,,.Y11N Sam D �TYEYf p ESER1 11-20-92 09:27AM FROM REST BEST & KRIEGER TO ?911098 P008/008 11/20/02 16:13 PAX 11 784 7068 FATCO RIVERSIDE @COS/008 196Z336 TITLE TO SAID ESTATE OR MCKE51 AT THE DATE HEREOF I3 VESTED IN. A.J. LOU, A 3MIHD •Om3I, AO Ma SOLN AND MHQARATm ImaD3aTY . THE ESTATE O& INTPREST IN THE LAND V.RRI9ZNAFTER DESCRIBED OR REFERRED TO COVERED BY THIS REPORT IS: IN FEE THE LAND REFERRED TO IN TKIS REPORT IS SITUATED IN THE UNINCORPORATED AREA OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: THAT CERTAIN PAACSL OF LAND IN THE UNINCORPORATED AREA OF RI4HRtIDt COMITY, STATZ Oa CALIPORNIA, BN WG A PORTION OF SECTION 10, TOWNBRIP 4 SODTII, RANGE 6 E28T, SAY SERNAIMT90 BASE AND XHRIDIAN, AS BROWN BY UNITED STATES OOVERNIENT SURVEY SAID PORTION BEING X092 PARTICULARLY DXBCRI98D AS POLLoms: OOXX=Z B; AT THE 800THEAST CORPSE OF SAID SECTION 19, THENCE GOUTS 90 DECREER 32' 04" WEST 1294.53 FORT ALONG THE SOUTH LINE OF BALD SECTION 19 TO THE SOUTHEAST CORNER BY THAT PARCEL OF LAND DESCRIBED IN INSTRUMENT NO. 279607 RECORDED SUPTERBOR 19, ll60 OF OT82CXAZ 24COMba OP AIVSlWOYDJI COUNTY, CALIPOANSAp THENCE NORTR 0 DEGRBHO 02l 80" Z"T SSSO.03 FEET TO TRN TRUE POINT OP SDOINKING1 RAID POINT BEING 400.69 F2RT SOUTHERLY OF THE NO1tTHEAST CORNER OY 6AID PARCBL D37COIITaBD IN INDTRUxn3IT 90. 270507 RECORDED REPTWMZR 28, i968, OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIPORNIA, AS MEASURED ALCNG THE EASTERLY LINE OF MAID NAROHLI THENCE CONTINUING NORTH 0 DEGREES 021 60" EAST 490.69 F228T TO THE MOUTRYEBTERLY LINE OF TUB 200 FOOT WIDE RIGHT-OF-WAY OF TER SOUTHERN PACIFIC RAILROAD# AS RESERVED IN AN INSTRUMENT RECORDED MARCH 23, 1912 IN SOON 347 PAGE 127 OF 0XID8, RECORDS OP RIVERSIDE COUNTS, CRLIFORNIA; TELNCM NORTH 04 DZMCZB 32' 31" WEST 046.90 PSET ALONG THE SOUTHWESTERLY LIME; THENCE PERPENDICULAR TO LAST MENTIONED COURSE, BOOTH 35 DEGREES 27' 29" WEST 400.00 FEET; THEHCM SOUTH 54 DHOREZB 32' 'St" EAST 1231.10 FEET PARALLEL TO THE 80UTH1IEBTERLY LINE OF SAID RAILROAD RIORT-OP-WAY TO THE TRUE FONT OF 53GEM11 We PAGE 2 H-23-92 99:21AM FROM BEST BEST & KRINER TO 3411008 D006!008 i - 11!20:02 15:14 FAX 14 794 7080 FATCO RIVERSIDE 2 004/000 i i 1962336 PAT ME DATE RINTED EXCEPTI�FAN EXCEPTIONS CONTAINED N RA GE IN ADDITION POLICY THE FORM WOULD BE AS FOLLOWS* 1, GENERAL AND SPECIAL COUNTY TAXES FOR THE FISCAL YEAR 1992-93. FIRST INSTALLMENT $10,133.77. SECOND INSTALLMENT $10, 133.77. COOK NO. 061-146. ASSESSMENT NO. 619-490-022-0. (PORTION OF BOND AMOUNT INCLUDED) - 2. THE LISP OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO CHAP += 3.5 COMXEGCZNG WITH SECTION 75 OF THE C.AY.IFORNIA Rnmm AND TAXATION CODE. 3. C TREASURER OF THE WUNTV OF BOND. TILE0 IN THE OFFICE OF THE RIVERSIDE. BOIM AMOUNT TO FOLLOW. 4. AN EAgEMLVT IN FAVOR OF THE PUBLIC OVER ANY PORTIOA OF THE HEREIN D29C.RIHED PROPERTY INCLUDED WITHI*: PUBLIC ROADS. 5. AN EASEMENT FOR EITHER OR BOTH POLE LINES, CONDUITS OR UNDERGRPACIFICUND TELEFHONE IAKDS AND TELEGRAPH COMPANY, PU RPOSES,IN NSTRUMCHT RECORDED JANUARY 23 , 191E IN BOOK 344 PACE 277 OF DEEDS, RECORDS OF RIVERSIDE COUNTY, CALIPOPXl:A- 6. COVENANTS, CONDITIONS AND RESTRICTIONS IN DOCUMENT RECORDED JANUARY 20, 1927 IN SOOX 704 PAGE 91 OF DEEDS, RECORDS OF RIVER IDZ CALIFORNIA, BUT BASED$UPON RACE,((COLOR, REL LION R. NEAITTON AL OZTINO RIGINCTIONS IF ANY7. AN EASEMWT FOR ZITHER OR BOTH POLE LINES, CONDUITS OR UNDERGROUND FACILITIES .AND INCIDENTAL PURPOSES, IN FAVOR OF POSTAL TELSGRAPM CABI=E COMPANY, IN INSTRUMENT RECORDED JULY 11, 1935 IN BOOK 237 ?ACeE 321 OF OFFICIAL RzcoRas GF RLvMSIDE COUNTY, CALIFORNIA. 8. AN EASEMENT FOR EITHER OR 80TH POLE LINES, CONDUITS OR UNDERGROUND FACILITIES AND INCIDENTAL ]PURPOSES, IN FAVOR OF SOUTHERN CALIFORNIA TELEPHONE COMPANY, A CORPORATION, IN INSTRUMENT RECORDED FEBRUARY 26, 194E IN BOOR 532 PAGE 247 OF OFFICIAL RECORDS OF RIVERSIDE CO*JNTY, CALIFORNIA' 9. THE EFFECT OF A LOT LINE ADLTUST14MT NO. 2421 AS EVIDENCED BY DOCUMENT, RECORDED SEPTEXBER 4, 1987 AS INSTRUMENT NO, 258711 OF OFFICIAL RFCOP.DS OF RIVERSIDE COUNTY, CALIFORNIA. PAGE 3 11-23-92 09;27AM FRONT EESP BEST & KRiEGER TO 3411098 R0011/008 11/20/02 LE'16 FAX A4 784 7950 FAT(T RINIR.SIDE 14008/008 1962336 10, ANY INTEREST VF THE SPOUSE, IF ANY OF A.J. LOU WHICH SHS NAY HAVE ACQoiAEn by THE DEED TO HER RECORDED SEPTP319ER 28, 1986 AS INSTRUMENT No. 279607 OF OFFICIAL RECORDS OP RIVERSIDE COUNTY, CALIFORNIA. NOT21 Ws WLLL REQUIRE A 40ITCLAIM DEED TRox THE BDOVS= DRIOit TO TIE ISSDANCS OF ANY PoLiC! OF TITLE XNOOEANCB. 11. THE LAND DESCRIBED HEREIN APPEARS mo CONATITtTTE A 11SUSDIVISION" OF LAND WITtClN THE MEANING OF THM SUDDTVISSON MAP ACT. (GOVERNMENT CODE 66410, ET SEQ) OR LOCAL ORDINANCES- WE WILL REQUIRE THAT A CERTIFICATE OF COMPLIANCE (GOVERNMENT CODE E6499.35) SxECUSFv BY THE COUNTY OF RIVERSIDE (IF THE LAND IS 6ITOATEO WITHIN THE BOUNDARTES OF .AN INCORPORATED CITY, THE CERTIFICATE :LUST BE ISSUED BY THAT CITY; IF WITHIN AN UNZNCOIIPORATBD AREA OF THE COUNTY, THE CERTIFICATE MUST BE ISSUED BY THE COUNTY) OR A FINAL SUBDIVISION MAP OR PARCEL MAP BE RECORDED IN THE OFFICE OF THE RIVERSIDE COUNTY RECORDER PRIOR TO ISSUING ANY POLICY OF TITLE INSURANCE. NOTE: FOR PURPOSE OF POLICY I56VANCZ THIS ITEM WILL 8E ELIMINATED IF THE CITY OF PALM DESERT, A MUNICIPAL eCRI+OPATION, ACQUIRSC SAID PROPERTY. 12. PRIOR TO THE ISSUANCE OF tt POLICY or TITLE INSURANCE WE WILL. RE¢UZI1E THAT A LOT LINE An,7USTMEHT BE RECORDED TO PERFECT THE LEGAL DESCRIPTION CONTAINED HEREIN. NOTE: FOR PURPOSE OF POLICY ISSUANCE THIS ITEM WILL BE ELIMINATED IF THE CITY OF PALM DESERT, A MUNICIPAL CORPORATION, ACQUIRER SAID PROPERTY. 13. IN ORDER TO COMPLETE THIS REPORT WE WILL REQVIRE A STATM4ENT OF INFORMATION FROM A.J. LOU TO DETERMIVX IF THERE ARE ANY LIENS, DECREES OR OTHER MATTERS WHICH MAY AFFECT THE TITLE OR IMPOSE LIENS OR ENCUNHRANCES THEREON. NOTE: THE FORM OF POLICY OF TITLE INSURANCE CONTEMPLATED BY THIS REPORT IS: ALTA STANDARD COVERAGE POLICY WITH REGIONAL EXCEPTIONS * + r r + PLAT ATTACHED/TMK/LAN PAOA 4 i I 1. 1-23 °2 U9:i ?S 'GM BEST BEST r KP IETEP, N 341 OP FO08/008 t 11/20:92 13:17 FAX 14•J6a_T,¢,Q6 . FATCO, RIVERSIDE f{�000/OOE i EXHIBIT MRST AMERICANN THY RgamuL M COW some rounamn& -Bgg4s..te00 A Riwnih,611Nom402 1 ' L�'Y1` '7N MW mtrmmM rot to A tumov { ter?, - , dthokMdnpaLd Maan.pove a w 'C ply/ not roN Wan k by mp'OU1A07C other Sr than oHwteUcn torn.0otkrd looetinn A M.rr pn T a xWeW Cad. aw �'4r �rF AmMkMTtCAc>�tEW1yy� hhhahity fpr Iwo w danaw Whim Q nNc fR:m muwd p upon 4 • I l 1 10.60 Was \ f w + T.P.0.0. b APN 518 -490--022' W I . OT •fly~ {i6'fi7G a00to • i/tt1t�11 � • ' j 1 1j-20-O•_' Ol :FB:M BRON BEST BE4T & KRIEGER TO 3400594 ?00'/003 iBEST, BEST & KRIEGER I A vAATrveAeHP.rvcwWrvo er:meee�ww mcopPni crv. i LAWYERS I 600 EAST TAHOUITZ CANYON WAY GLEN L 6 PHEN WORYH' M70NI 6 6 PHII LIPS* JEFF H.MORR19 KIM AHALC S.flpOOLPH GLEN E.ff,OVII b' GREGO A K.WILKINSONS STEVEN v.DUNN CYN A.A M.OE POST OFFICE BOX NIA 2710 WILUAM R.OAUT' E• W YNNE S K.WIL STEVEN , O EIRI N MARY A M.WERMANA PALM SPRINGS.CAUPORNIA 92263 RARTON C.SELZER' WVNNL 6.BARON ERICRANT N.GARNER MARY C_GICBTRAP PHAN TELEPHONE(619) 325-7264 DALLAS HOU,Ir• OAV!D E BAAK DEN I GARNER DANINOUVEN O.ARKE CHRIST HOLM L. BASIL T. CIIA" OENN:WXYWARD GAMER C.PARKER.JR. TELECOPIER(6191 325-0366 RICHA D 1.A L. RSONCARPe NTER• TIMOTHY M.CONN JULIE LUE J.NI OLLE CHARLGINEV q D.MARIIM JOHN I). 1.ANDER60N• TIMOTHY M.OLV ROOHELLE J.ARGREE GLENN PG E.BILLER NE MICH E D.HART VICTOR L.OLIvi JANICEROBER W.WEM HARGREAVE6 CHRES INe I. IC WI CURT W.HARR16• DANIEL C.WHICH H ICn JANICE L.WALKER JOANC GA CI RIC LION N TH OURS EAl Y• HOWARDDANIEL S.COLDS PATRIC W.PEP JWANE J.KOE LER OCEAN TNOMAS SOWN' • HOWARO S.OOLOS KIRK WK W.PEARCE DIANE J.WI E E MICH E BROWN' MARCSTEP E.EMPTYP.OEITvC41 NIRN W..DAB DAME L. .KAU MEREDIT T. .JURY L• JOHN E.ROTTSJA30N.S AAOAPEINER STEVEN S.MARES OLO ME IIAEL 1 A.JURY' JINN R.ROTTSCILEA KYLEMAR A.SNOW RERECCq MARES OA E DE B CORL FRANCIS GRANT- MABnH E MU MME MARK A.FINUYEA&TE DOROALIJISTH O. ANDERSO JgME$8.CORISON ANNE T. J. MAS' J. TORIA N. KIND OUR DIANE L. OUEY 0.HENRY 1,ANDEREON ANNe T.TNNETHC VICTORIA N.RAN PETERMICHE M. ARNEA U W.HENRY WELLER D ORGEMART M X EY ERY• SCOTT C S ITHNOgLL DAYIO P. EMMAOB JAMES R.ARRIS GEDRAE M. FLO JACK CTT O.SMITH DAYIA P. R.WEISS N,$R AINA O.HARRIS MICHAE W. RISTE JR. BRIA D.OLARKE,JF. K£NNET .R.U55 GREGO L I LRISTE' JEANN M.LEW:9 CHRISSUSA C.NAU38 _ KENDALL L.HARDKE JEADLEY E.A.PEIEO BERNIE L.WIL DAMSON OFFICES w NENDAL H. H. IVIE" 3RADLET E. LLEN D BERNIE L.HI LLIAMSpN RIVEft51pf(>1 W686 190U GLMIX . RWIN' ELISE LEE ALLEN ELAINE K. HILL RAYMONO REEL UWFdL 198>) DAV@ a.E.INO FUSE K. 0.OA1HrRAYIN M JAIVE %.R ILPIN H EUGEE H.EST[18 (1!05II 1)vsb; RANCHO MIRAGE(619)568 0.0594 2613 MIG)•a€L J.ANOCL bDPfe WRLIAM O.OAH,LVNO,JR, lAME3 3.DILPIN FUOENE BEST❑393-:9b1) ONiAR:O i>14I p6O�666A A ACWFCIIA046i CCgAWe'�ory November 20, 1992 I HARP. DELIVERY i ` Mr. Steve Smith City of Palm Desert 73310 Fred Waring Drive Palm Desert, CA 92260 Re: A.J. Lou aka Alyce Lazar/City of Palm Desert Dear Steve: Enclosed for execution by the appropriate officer of the City of Palm Desert are three counterpart originals of the Agreement of Purchase and Sale and Escrow Instructions between the City of Palm Desert ("City") and A.J. Lou dated November 20, 1992. Once fully executed, please cause one counterpart original to be returned to me, forward one to the escrow holder, and retain one for your own files. i Also enclosed are incorporating escrow instructions dated for reference as of November 18, 1992, prepared by First American Title Insurance Company and signed by A.J. Lou. Please cause the appropriate officer of the City to execute the instructions where indicated and once executed, return to the escrow holder. Also enclosed please find a signed Grant Deed from A.J. Lou aka Alyce Lazar conveying the subject property to the City, and a Quitclaim Deed from Seymour Lazar, releasing any interest in the property to the City. Please prepare certificates of acceptance for both deeds and have the deeds and certificates returned to the escrow holder. i jDEW1634 1 :-80-92 01 : 561M FROM 5E1T P E 0 T 6 HE1EGE11 TO 1101574 PGG3lG03 LAW OFFICES OF BEST, BEST & KRIEGER i I Mr. Steve Smith I November 20, 1992 Page 2 i i I I have arranged for pick up of all signed documents by First. American Title Insurance Company at your office at 4 : 30 p.m. Should you have any questions, please do not hesitate to contact me. i Sincerely, i BEST, BEST & KRIEGER 4 Daniel E. Olivier I DEO/k:s Enclosure cc: Doug Phillips, Esq. (letter only) Ray Diaz (letter only) Sins. Ludwig (letter only) i I 1 I l I I I I i I i I oeo3t6s9 i I • ll,-1�9? 03: 01FM FROM FEST BEST & KRIEGER TO 3400674 B001i011 I C0 BEST, BEST & KRIEGER _ A PAATNEFre4P wnuelNn Pao^ceaDNA.comwAT,nre LAWYERS ARTGLEN L. PHENS-ORTH• OOUGLAS S.PHILLIPS• MATT H.MORRiS MARSRALL 6.RUg01 I',I 600 EAST TAHOWTZ CANYON WAY 3 GLEN C,9 DK WOS• AN TO NIA GRAPHOY JEFFREY V.DUNN KIM A.BYRENS POST OFFICE SOX 2710 1 WILLIAIA ft.DeiVOLFc. GREGORY K.WILKINSON STEVEN C.DpBAUN CYNTHIA M.GERMANO BART T.ON C.GAUT• WYNNE S.FURTH GRANT H.OVEIRIN MANY C,GILSIRAP PALM SPRINGS,CALIFORNIA 92269 PALLS HEOLME• pgv10 L.BARON ERIC L.GARNER NGUYEN 0.PHAN TELEPHONE(619)325.7264 CHRI T PHER L. EUGENE TANAKA DENNIS M,COTA DANIEL C.PARKER.JR.RICHARD 1.A L.CARPENTER• BASIL T.CHAPMAN JULIE HAYWARD BIGGS GINEVHA C�MARUM TELECOPIER(619)325 0365 RICHARD T.ANOERGONI TIMOTHY M.CONNOR RACHELLE J.NICOLLE OINEVRCHAPELLS E MARUM JOHN 0.WAHLIN• VICTOR L.WOLF ROBERT w.HAROREAVE9 CLENN P.E KOLL ER MICHAEL 0.HARRIS• DANIEL E.OUVIEfl JAN"L,WEIS CHRISTINE L.RICH4!TD9UN BINE THOW.CURT LACY• pANIEL 1.MCHUBH SHARYL WALKER IOANE GARCIA-COLSON JOHN C. S.OWN. • HOWARD B,GCLOS PATRICK W.PEARCE PHILIP J.KOEHLER JOHN E.SHOWN. STEPHEN P.DEITSCH KIRK W,SMITH DIANE C.WIESE 1 MICHAEL i,RInDELL' MARC E.EMPEY JASON O.DABAREINER STEVEN S.KAUFHOLO MEREDITH A.JURY- JOHN R.ROTTSCHAEFER KYLE A.SNOW REBECCA MARES OURNFY MICHAEL GRANT' MARTIN A.MUELLER MARK A.CASTER ALLISON C.HARGRAVE OF COUNSEL NNE T, J.BAUM• J.MICHAEL iUMM£RgUR DIANE L FINLEY DOROTHY I.ANDERSON JAMES B.CDRISON ANNE T.TH 1,T11 VICTORIA N.KING MICHELLE OUELLEITF G.HENRY W ELLCS 0.MARTIN N EY ERV• IEFFERY J.ORANOALL PMIY M.BARMACK JAMES R.HARPER G ILWAM W REYES SCOTT C,SMITH DAVID P.PHIPPEN,SR. DINA 0,HARRIS WILLJAFn W.F'LI JR. JACK S.CLARKE,JR. KENNETH R.WEISS i IAIf uAEL A.CRI STE• OMAN M.LEWIS NUSAN C.NAUSS _ GREGORY L.HARDKE JEANNETTE A.PETERSON CHRISTOPHER GODSON KENDAL,H.MACYEY BRADLEY E.NEUFELD BERNIE L.WILLIAMSON CLARK H.ALSOP• OFFICES IN DAVID J.ERWIN^ RANDY LEE ALLEN ELAINE E.HILL RAYMOND BEST(1866 1957) RIVERSIDE I71 O6A6J450 ELISE K,TRAYNUM KEVIN K.RANDOLPN JAMES H_KRIEGER 11413-IU701 RANCHO MIRAGE 1619S93SpO11 MICHAEL J.ANDELSON• WILLIAM 0.DAHUNG.JR, JAMES B.GILPIN E4:GFNE BE21 UBOdamAn ONTARIO(P I A)9B1-8584 •<eROFCePaHµ CORbnAVON P_ EASE DELIVER ME-FOLLOKNGMATERIAL AS SOON A POS L LE TO: Carlos Ortega - 340-0574 Doug Phillips - 340-6698 Sims Ludwig - 714-784-7956 FROM: DANIEL E. OLIVIER DATE: 11/19192 NUMBER OF PAGES 11 (INCLUDING COVER PAGE) TIME: 2:55 p.m. I ##b#b##b#b#bb###b##4b##bp###b#b##bb#IA####*###krt•IIybWW#iNF#bFFWk#•/# MESSAGE: MATERIAL: Revised Agreement of Purchase and Sale and Escrow Instrurtions WEARE TRANSMITTING FROM/PLEASE RESPOND TO: Telecopier No. (619) 325-0365 _ ORIGINAL WILL NOT FOLLOW ORIGINAL/COPY WILL FOLLOW BY (check one of the following): REGULAR MAIL CERTIFIED MAIL, RETURN RECEIPT REQUESTED FEDERAL EXPRESS OTHER: EXPRESS MAIL PLEASE NOTIFY AAREN STEWART IMMEDIATELY IF YOU DO NOT RECEIVE ALL COPIES AT (619) 325-7264. DE0118M 03; 0to`M FF:OM Bag;' P,:�T ( K;iE,,,r, 10 3'10057L OQ?/Uil L 1�. L 1 LLt + _ V _ JL.1't i BEST, BEST & KRIEGER A(AKTNE,TrbI1(I..0 .Kormst+,; P,ow.. LAWYERS ARTNUR L LITTLEwORTN• OOUOLAB B.PHILUP9• MATT H.MORP19 MARZHALL S.P.UDDLI+H 600 EAST TAHQU1TZ CANYON WAY GLEN E.SrzPHCN9' AN 'A ORAPH09 JEFFREv v,pUAN KIM A.BYRENS POST OFFICE BOX 2710 WILLI".R.ORWOLFE• GREGORY K.WILKINSON STEVEN C. x's CYNT.BYRENHIA M. F.RMAND BARTON ULT, E GAU7ZER' WYNNE S.FYRTN BRANi H,OVCInIN MARY E.GIL6TgM' PALM SPRINW.CALIFORNIA$2263 PALLS SELMES DAMN E BARON ERIC L GARNER NGUYEN 0.PHAN TELEPHONE(619)325.7264 CHRIST PHER I,• ELBENE CHAPMTANAK DENNIS M.COTA DANIEL C.PARKER—IR TELEGOPIER(6lW 026-0966 RICHARDPT,A L.CA9PENrER• pASIL T.CNAPMAN JULIE HAI WARD BIGGS GINEVRA C.MARUM JOHN 0, T.HL,N- IJN' TIMOTHY M.CONNOR RACHELLE J.NICOLLE CHARLES E.KOLU:R JOHND WAry LIH• VICTOR L.WOLF ROBERT W.HAROREAVES GUNN P.SABINE MICHAEL 0.HARRY, DANIEL E.ELMER JANICE L.WEIS CHR15TINE L.RICHARLISON W.CURT EALY• DANIEL J.MLHUGH SHARYL WALKER .IOANE GARCIA COLSUN THOMAS S.SLOVAK' HOWARD B.BOLDS PATRICK W.PEARCE PHILIP J.KOEHLER JOHN E.BROWN. STEPHEN R DCIT60N KIRK W.SMITH DIME C,WIESE MICHAEL T.RIDDELL• MARC E.EMPEY JASON O.DABAREINER STCVEN R KAUFHDLO MEREOITH A.JURY' JOHN R.ROTTSCHAEFER KYLE A.SNOW RFBECCA MARES UURNE• MICHAEL GRANY• MARTIN A.MUELLER MARK A.FASTER ALLISBN f.,HARGHAVE OF COUNSEL FRANANNE T. J.BAUM' J.MICHAEL KING OUR OIANE L.FINUY DOROTHY 1.ANOERSON JAMES B.CORISON ANNE T.iHOMAS• VICTORIA N.KIND MICH ELLE OUELLETTE n.HENRY WELLE6 D OPGE M NEYES J[(FQRY J.GRANUALL PETER M.BARMACK JAMES R.HARPER GECKOS M.RCY[S SCOTT C.SMITH DAVID P PHIPPEN,SR DINA 0.HARRIS WIL(JAM W.FLOYD,JR, JACK S.CLARKE.JR. KENNETH R.WEIS% MICHAEL A.COISTE• BRIAN W.LEWIS SUSAN C.NAUSS ORECORY L.HAROKE JEANNETTE A,PETERSON CHRMTOPIER DKI KCNDALL H.MacvtY BRADLEY E.NEUFELD BERNIE L.WILLIAMSON OFFICES IN CLARK 11.ALSOP• KANDY LEE ALLEN ELAINE E.HILL RAYMOND BEST 08HB 1967) RIVERSIDE OI 4I6BS.1450 DAVID J.ERWIN• ELISE K.TRAYNUM KEVIN K.RANDOLPH JAMES H.KRIEGER 11913.19751 RANCHO MIRACL(610:66a VC,I MICHAEL J.ANDELSON' WILLIAM D.DAHLING.JR, JAMES B.GILPIN EUOCNE BEST(I111JBMU ONTARIO 171 A)959.8"4 •1[POr(15 MINA'S:GRFDIMTgyI November 19, 1992 i i ' l VIA FACSIMILE I Mr. Carlos Ortega City of Palm Desert 73510 Fred Waring Drive Palm Desert, CA 92260 Re: Agreement of Purchase and Sale and Escrow Instructions Between City of Palm Desert and Alyce Lazar II Dear Mr. Ortega: ` Pursuant to our telephone conversations yesterday and earlier today, enclosed please find the revised Agreement of Purchase and Sale and Escrow Instructions between the City of Palm Desert and Alyce Lazar. As you recall, we discussed the elimination of the "As-Is" provision in favor of Seller and the inclusion of the indemnification language which you forwarded to US. We also agreed that with these changes the City would close before Thanksgiving. Accordingly, I have modified Buyer's conditions of purchase to shorten the time for the inspection of the property (Section 3 . 2) and to specify that with respect to title (3 . 1) Buyer approves of exceptions 1 through 9 as set forth in the preliminary title report forwarded to you earlier. As you will note, items 1 through 9 are standard utility easements and the like. Further, I have not modified the proration provision because Buyer is not a tax-exempt agency until the property is annexed into the City. You will also note that Seller's representation regarding the DE031550 0:1 : 015i FROM BEST BEST £, I{R1EGF.k TO 040051 B003,i011 I LAW OFFICES OF i BEST, BEST & KRIEGER Mr. Carlos Ortega i November 19, 1992 Page 2 existence of toxic substances is set forth in Section 6. 2 of the j Agreement. 1 With these modifications, we expect the City will be in a position to execute the enclosed Agreement tomorrow. Escrow will be forwarding incorporating escrow instructions tomorrow also. Please contact me as soon as you have had the opportunity to review the enclosed revised Agreement. I Sincerely, BEST & KRIEGER Daniel E. Olivier DEO/PCs Enclosure cc: Doug Phillips, Esq. (w/enclosure) Seymour Lazar (w/enclosure) ' Sina Ludwig, First American Title Ins. Co. (w/enclosure) I I i i i I i I I DE031550 i1-1U-q J'. : 0!PM a?OM BEST "EST & i(iiEGEP TO 3400574 P004/01 ! AGREEMENT OF PURCHASE AND BALE AND ESCROW INSTRUCTIONS THIS AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS ( "Agreement") , is made and entered into this day of November, 2992, by and between the CITY OF PALM DESERT, a municipal corporation ("Buyer") and A.J. LOU aka ALYCE LAZAR, a married woman as her sole and separate property ("Seller") . RECITALS A. Seller owns certain real property located in unincorpo- rated Riverside County, California consisting of approximately 77 acres of unimproved land that is more particularly described on Exhibit "A" attached hereto and incorporated herein (the "Seller's Property") . B. Seller desires to sell, and Buyer desires to purchase, a 10+/- net acre portion of the Seller's Property (the "Sales Property") , which is described in a metes and bounds legal description on Exhibit "B-1" attached hereto and depicted on a map attached hereto as Exhibit 11B-211 . C. The parties desire by this Agreement to provide the terms and conditions for the sale and purchase of the Sales Property. NOW THEREFORE, in consideration of the mutual covenants, promises and agreements herein contained, the parties hereto do hereby agree as follows. 1. PURCHASE PRICE The total purchase price for the Sales Property shall be One Million Three Hundred Six Thousand Eight Hundred Dollars ($1, 306,800) (the "Purchase Price" ) , based on a price of Three Dollars ($3 . 00) per square foot of land within the Sales Property. The entire Purchase Price shall be paid to Seller in cash at the close of the escrow described below. j 1. 1 Deposit. Buyer shall deposit into the escrow described ' i below (the "Escrow") the sum of Twenty Thousand Dollars ($20, o00) upon the opening of Escrow. 1.2 Balance of the Purchase Price. At least one business day prior to the close of Escrow, Buyer shall deposit into Escrow the balance of the Purchase Price in cash by wire transfer, cashier's III check or certified check. 2. ESCROW 2.1 Opening. The purchase and sale of the Sales Property shall be completed through an escrow to be opened at First American DE030658;11/04/92 II-1+-K 03: 01FM FROM BEST BEST & KR,IEGER TO 4005.141 F005%01I Title Insurance Company or another escrow company mutually accept- able to the parties (the "Escrow Holder") . Within three (3) days i after the mutual execution of this Agreement, Buyer or Seller shall deposit with the Escrow Holder one fully executed counterpart of this Agreement, which shall constitute the escrow instructions. The date of delivery to Escrcw Holder of such fully executed counterpart, together with the deposit described in Section 1. 1, shall be deemed the opening of escrow ("opening of Escrow") and Escrow Holder shall notify Buyer and Seller in writing of the opening of Escrow date and its acceptance of the escrow instruc- tions. 2.2 Closing. Escrow shall close, if at all, on or before i November 25 , 1992 (the "Close of Escrow") . i 2.3 Costs. Seller shall pay all usual escrow costs and charges normally paid by a seller in an escrow closing in Riverside County, including without limitation one-half of the escrow fee, and the premium for the CLTA owner' s title insurance policy to be delivered to Buyer. Buyer shall pay one-half of the escrow fee and such other costs and charges normally paid by a buyer in an escrow l closing in Riverside County. ! 2 .4 Prorations. Current real property taxes, and bonds and assessments that are currently due and payable, shall be prorated at the Close of Escrow on the basis of a thirty (30) day month. 2.5 Additional Documents. Buyer and Seller shall execute such additional escrow instructions as Escrow Holder may reasonably require to act as Escrow Holder, but in no event shall said additional escrow instructions increase the rights of one party against the other party hereto or modify the terms and conditions of this Agreement without the express written acknowledgment of both parties. Seller shall deposit into Escrow an executed Grant Deed in a form sufficient to convey title to Buyer. 2. 6 Possession. Seller shall deliver possession of the Sales Property to Buyer upon the Close of Escrow. I ! 2.7 Title to the Bales Property. Seller shall , at the Close of Escrow provided for in this Agreement, by Grant Deed, convey to Buyer fee simple title to the Sales Property. Seller shall provide Buyer with an Owner's C.L.T.A. Standard Coverage Policy of Title Insurance in an amount equal to the Purchase Price of the Sales Property issued by First American Title Company or another title company mutually acceptable to the parties (the "Title Company") showing fee title to the Sales Property vested in Buyer in the condition required by this Agreement. 2.8 No Map. The parties acknowledge and agree that the conveyance of the Sales Property shall be by grant deed using a metes and boun0s legal description, without benefit of any parcel ! or other subdivision map. The parties acknowledge and agree that the conveyance of the Sales Property to Buyer is exempt from a parcel map requirement pursuant to Government Code Section 66428. 0E030658:11/04/92 -2 11 -19-92 03: 01PM FROM BEST BEST & KRIEGER TO 3400574 POOGM I i 3 . BUYER'8 CONDITIONS OF PURCHASE iBuyer's obligation to acquire the Sales Property pursuant to this ! Agreement shall be subject to the satisfaction of the following ! conditions, which are for Buyer 's benefit only. In the event any I of the followir..g conditions are not satisfied within the specified time limit(s) , Buyer may, at its sole option, either waive such conditions or terminate this Agreement. Any condition not objected to or disapproved in writing within the specified time limit(s) shall be deemed satisfied. (If Buyer elects to terminate this I Agreement pursuant to this section, the Deposit shall be returned to Buyer, less all Escrow fees and expenses incurred. ) I 3.1 Approval of Title. Title to the Sales Property shall be in the condition required by this Agreement as of Close of Escrow. Seller has delivered to Buyer a current preliminary title report from the Title Company ("PTR") dated as of November 5, 1992 i disclosing the status of title to the Sales Property. Buye, approves of exceptions 1 through 9 as set forth in Schedule B of the PTR, and the Sales Property shall be conveyed by Seller subject to only such exceptions and such other matters as may be approved in writing by Buyer. The parties acknowledge and agree that the Sales Property shall be conveyed in all events subject to the liens of current taxes, assessments, and bonds of record. 3.2 Inspections. Buyer or Buyer' s agent shall have the right to physically inspect and to conduct geological and other tests (hereinafter collectively called "Inspections") on the Sales Property. All Inspections shall be done at Buyer 's sole cost and expense. Upon completion of such Inspections, the Sales Property shall be returned to its original condition. Buyer shall have the right, in its reasonable discretion, to disapprove of the physical condition of the Sales Property based on the Inspections on or before November 23 , 1992 . If Buyer fails to provide Seller with written notice of any objection to the physical condition of the Sales Property within said Inspection period, Buyer shall be deemed to have waived this condition to Close of Escrow. Any disapproval of the physical condition of the Sales Property by Buyer shall be based on the discovery of a material adverse physical condition which affects the developability or use of the Sale Property, and which was not known or apparent to Buyer or Seller at the time of entering into this Agreement. i 9. DMLOPMENT AGREEMENT. Buyer agrees to schedule for consideration through its regular public hearing process a pre-annexation development agreement in substantially the same form as that attached hereto as Exhibit S. RIORT OF ENTRY. Buyer, its agents, and employees are hereby granted the right to immediately and at all times enter on the Sales Property for the I purpose of conducting physical inspection work as may be required or allowed pursuant to Section 3 . 2. Buyer shall indemnify and hold 0EC30658:I1/04/92 -3 iHP-y 13: 0, M POM HE rHT & IP,IEH rn 3400574 PO07/Oil I Seller harmless from any loss, cost, or expense for physical damage to the Sales Property or third party injury caused by Buyer or Buyers agents or employees in connection with foregoing activities conducted on the Sales Property. ! 6. SELLER'S REPRESENTATIONS WARRANTIES. Seller hereby makes the following representations and warranties, and agrees that such representations and warranties shall survive I the Close of Escrow. 6.1 Seller owns fee simple title in and to the sales Property and has full right, power, and authority to execute this Agreement and to convey its interest in the Sales Property to Buyer as provided herein. 6.2 Seller has no actual knowledge of the existence of any underground tanks or of any toxic substances or hazardous materials (as those terms are defined under federal, state or local laws) located on or under the Sales Property. 6.3 Seller is not a foreign person under Section 1445 Internal Revenue Code and will execute a Certificate of Non-foreign status and deposit same into the escrow prior to Close of Escrow. 6.4 This Agreement has been duly executed by Seller and constitutes the valid and binding agreement of Seller enforceable against Seller in accordance with its terms. i 7. BUYER`S REPRESENTATIONS AND WARRANTIES. Buyer hereby makes the following representations and warranties and agrees that such representations and warranties shall survive the Close of Escrow. 7.1 Buyer hereby represents and warrants that the person or persons executing this Agreement have the full authority and power to enter into this Agreement on behalf of Buyer to purchase the Sales Property from Seller, and to take all actions required of it by the terms of this Agreement. 7.2 This Agreement has been duly executed by Buyer and constitutes the valid and binding agreement of Buyer and enforceable against Buyer in accordance with its terms. 7.3 Buyer acknowledges and warrants that it has authority pursuant to Section 66428 (a) of the Government Code, as a govern- mental agency, to acquire land based on a metes and bounds legal description without need of a parcel map. i 8. INDEMNIFICATION. 8. 1 Seller agrees to indemnify Buyer against, and to hold Buyer harmless and, at the option of Buyer, defend Buyer with counsel approved by it, from all liabilities, losses, damages, DE030658;11/04/92 -4- G-9 03: 01PM FROM BEST BEST & KRiEGFR i0 3400574 Poo8A 11 costs and expenses, including without limitation legal fees and disbursements, incurred by Buyer subsequent to the date of this Agreement by reason of any claims or litigation relating to the Property and arising from acts, omissions, or occurrences that took place prior to the Close of Escrow. 8.2 Buyer agrees to indemnify Seller against, and to hold Seller harmless and, at the option of Seller, defend Seller with ! counsel approved by it, from all liabilities, losses, damages, costs and expenses, including without limitation legal fees and disbursements, incurred by Seller by reason of any claims or litigation relating to the Property and arising out of acts, omissions, or occurrences that take place subsequent to the Close of Escrow. 8.3 Each party agrees to give to the other written notice of any third party claim that may give rise to a claim for indemnification hereunder within thirty (30) days after learning of such third party claim; provided, however, that the failure to give timely notice as hereinabove provided shall not defeat any claim for indemnification hereunder except to the extent that the party to whom such notice was owing is prejudiced by the lack of such timely notice. 9. ACCESS In order to provide Buyer access to the Sales Property from Dinah Shore Drive and/or Miriam Way, Seller shall dedicate to the City for street and utility purposes a 30 foot wide strip of land over and across seller's Property in a location to be mutually agreed upon by the parties prior to Buyer's development or use of the Sales Property. Such offer of dedication shall be in the normal and customary form used by the City of Palm Desert, subject to the review and approval of same by Seller's attorney. 10. DE-ANNEXATION ! In the event of Buyer' s termination of this Agreement pursuant to Section 3 , or Buyer 's unexcused failure to purchase the Sales Property and the resulting termination of this Agreement by Seller, Buyer shall have no right to complete the annexation of the Property into the City of Palm Desert pursuant to Annexation No. 32 Palm Desert, without the prior written approval of Seller, which approval may be withheld at the sole discretion of Seller. In such event., Buyer shall take such steps as may be necessary and appropriate to exclude the Property from Annexation No. 32 Palm ' Desert prior t6 completion of such annexation. 11. NQTICEB Unless otherwise provided herein, any notice, tender, or delivery to be given hereunder by either party to the other may be effected by personal delivery in writing or by registered or certified mail, postage prepaid, return receipt requested, and shall be deemed communicated as of mailing. Mailed notices shall be deemed DE030658:11/04/92 _5 11-i -03 03: 01PM FROM BEST BEST & ka1EGEk Ti! 3400674 P009/Oil i communicated as of mailing. Mailed notices shall be addressed as set forth below, but each party may change his address by written notice in accordance with this paragraph. ' Buyer: Seller: City of Palm Desert Alyce Lazar 73510 Fred Waring Drive 334 Hermosa Place Palm Desert, CA 92260 Palm Springs, CA 92262 Attn: Ramon Diaz Copy to: Best, Best & Krieger 600 E. Tahquitz Canyon Way — Palm Springs, CA 92262 Attn: Attn: Paul T. Selzer 12 . t1ENERAL PROV*SrONS 12 .1 Entire Agreement. This Agreement supersedes any prior oral or written agreement and contains the entire agreement of the parties on the matters covered hereby. No amendment of this Agreement and no other agreement, statement, or promise made by any party or to any employee, officer, or agent of any party to this Agreement shall be binding. All obligations of Buyer and Seller under this Agreement and Escrow shall be joint and several. 12.2 Time is of the Essence. Time is of the essence of this Agreement and the escrow referred to herein. 12.3 Captions and Construction. The caption appearing at the commencement of the paragraphs hereof are descriptive only and for convenience in reference. Should there be any conflict between any such caption and the paragraph at the head of which it appears, the paragraph shall control and govern in the construction of this Agreement. This Agreement shall be construed as a whole and in accordance with its fair meaning. Organization is for convenience and shall not be used in construing meaning. j I 12.4 Buyer's Performance. Performance of any duty imposed on Buyer by this Agreement is conditioned on Seller' s full performance Of all duties imposed on Seller in this Agreement. 12.5 Sellers Performance. Performance of any duty imposed on Seller by this Agreement is conditioned on Buyer's full performance of all duties imposed on Buyer in this Agreement. 12 .6 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be deemed an original, but all of which, when taken together, shall. constitute one and the same instrument. 12 .7 Successors and Assigns. This Agreement may not be assigned by either party without the prior written consent of the OE030658:11/04/92 -6- i i, 1-1�-92 00 : 01PM FROM BEST BEST & Ht EGER TO '400574 PO10/01i other. Each covenant and condition contained in this Agreement shall inure to the benefit of and be binding on the parties to this Agreement, their respective heirs, personal representatives, I assigns, and other successors in interest. j 12 .8 Attorneys, Fees. If any party shall bring an action against another arising out of this Agreement, then the party in j whose: favor the final judgment is entered shall be entitled to have and recover from the party its reasonable attorneys' fees and other reasonable expenses in connection with such action or proceedings, in addition to its recoverable court costs. 13. WAIVER OF CONFLICT The parties hereto acknowledge and agree that Best, Best & Krieger has prepared this Agreement at the request of both parties. Best, Best & Krieger has a long-standing relationship with both Lazar and the city and has advised each to seek separate, independent counsel of their own choosing for the purpose of informing them of the legal consequences of this Agreement, and the advisability of executing it. To the extent each party has not sought such separate legal advice, each party waives any actual or potential conflict of interest arising out of the preparation of this Agreement by Best, Best & Krieger. 14 . BROKERS AND FINDERS I Buyer and Seller warrant that the execution of this Agreement was not induced or procured through any person, firm, or corporation acting as a broker or finder. Each party agrees to indemnify and hold the other harmless from and against any damage, liability or cost, including without limitation, reasonable attorneys ' fees, arising from or in connection with any claim by any other person, i firm, or corporation based upon their having acted as broker or finder for or in connection with this transaction on behalf of such party. i 15 . LIOUIDATED DAMAGES I THE PARTIES ACKNOWLEDGE THAT BUYER'S UNEXCUSED FAILURE TO PURCHASE THE SALES PROPERTY MAY RESULT IN DAMAGES TO SELLER, IN AN AMOUNT NOT READILY ASCERTAINABLE BY THE PARTIES. THE BUYER AND SELLER MUTUALLY AGREE THAT THE DEPOSIT AMOUNT OF $20, 000 IS A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WOULD SUFFER IN THE EVENT OF UNEXCUSED FAILURE OF BUYER TO PURCHASE THE SALES PROPERTY. IN THE EVENT OF SUCH DEFAULT BY BUYER, SELLER SHALL BE RELEASED FROM HER i OBLIGATION TO SELL THE SALES PROPERTY TO BUYER AND BY PLACING THEIR j INITIALS HERE, BUYER ( AND SELLER ( ) AGREE THAT ESCROW HOLDER SHALL IMMEDIATELY PAY AND DELIVER TO SELLER WITHOUT ANY j DEDUCTION, OFFSET OR RECOUPMENT (OR ANY RIGHT THEREOF) WHATSOEVER, ! AS LIQUIDATED DAMAGES TO SELLER, THE DEPOSIT DESCRIBED IN SECTION j 1. 1 ABOVE. i 0EO30658:11104/92 -7- -•1's-92 03 : 01FM FROM BEST BEST & KRIEGER TO 3400574 PO11/011 IN WITNESS WHEREOF, the parties hereto executed this Agreement on the dates set forth opposite their respective signatures hereto, which more recent date shall be deemed the date of this Agreement for all purposes. BUYER: CITY OF PALM DESERT Executed this day By: of , 199_, at California Executed this day By: of 199 , at , California ATTEST: SELLER: Executed this day of , 199 , Alyce Lazar i at _ , California i DE030656:11/04/92 -$- i FROM 11 . 18. 1992 1513 P. L r Novembct• 189 1992 rile No. 92003-01 City of I'+tLu De:,art Planning Department Palm Desert. Civic Center 73-510 Fred Waring Drive Pahn Desert, C.A. 92260 AlAn.: Mr. Slephe.n Smith Subject: PROPOSAL. FOR PROFESSIONAL. SERVICES PHASE 1 ENVIRONMENTAL. ASSESSMENT Riverside C,ourdy Assessor's Parcel No.: 618-490-022 Owner: A. J. Lou Town hit, Lucatiul,: Portion of Sertiou 19, of T4S-RGF Kebtlive to SBBM; South Adjacenl Southern Pacific. Railroad, Which is South Adjacent lntrr;:lalr• 10; West of Alarltorry Avenue; To the North of the City of hancPw Miraoh Uninuorpu: ated Porliun of Riverside County, CA, Thomas Guide Location: River Side County, Page 193, 11-3 (1993) Dear Mr. Smith: I This letter present:: the Ru1)jecl proposal as you requested. 11' any information herein is not in accord With the knowledl;r of the City of Palm Desert, We shoald he advkc.l of the differrvic •:: to facilitate rvvir;Iou of our Proposal. Tbc aropc of walk below i:: recoit III oodell its it fil•st. t:rhaac &i::7r•r.::un nl of the likelihood of exi:;ling contamination of tllc site and subsurfac r and the putential for futurr• contamination al the situ bocao.-w of off site sourer>u. Scope 0 Research of eonlaarivatr source:' or releasos within a I mile vndiur: of the site. The resenrr.h will in[:lude tit(' review of the CERCI.IS, COR'1'1{SL:, ASPIS, LUST Auld abnul nillo oche+r g'ovrruin.:nl at;rney database.: by a subcontractor. o Research of auutawivato soureea: and releases and possibly ground water quality in proximity to the sit(' through the RiVe!'Ni9lr County Environau•nl. il Health Deparlmrnl, Hazardous Material,: BrAuu:h. W. S. McCANN, P.O. Box 8003, Moreno Valley, CA 92552-8003; 714-924-3525 11 . 18. 1992 IF: 15 P. 5 FROM AGREEMENT FOR CON St1ETlNC SFRVICSS By signing Ibis egreemmnt your t1re Client., authorize W. S. McCann, t.hr Cnul;ull;uil, perforuf Colfsulting service~ on yo.n• belfalf as outlincrl below. Type of roa:;ult.ing se.rvicos: PHASE t YNVIRONMVNTAI. ASSESSMENT Site/1'raprrty Lacal.ion: f> 1'ortiun of APN No. 618-490•• _......_.. d ill , cost 11 lnlarllVicos in the will o+be. ilPt•nlus rpteopoxnlcoflNovcmi,wl. 18,t1992owrhich i. �11'p l ar Or this p • .. . Agreement. 2. The Client will make available to the Consultant any informaIit'll in his pur,::r>,sirrn regarding e•xislint; nnnditinns of t.Lu site Afoot authorizr ;. Consultant to a::(! 4411 informal.inn ::.+ilplicl. Consultant s11a11 not be liable• for' any htrurroct adviec, judge nt or docision bu;and on any inaccurat in rnru,nli„„ flll•nkhPd by 11,e Client or any government tfgencics. 3. This At;mcmeelt iS entered into solely rue the benefit, of the client and Consulta I and in no way is intolo3eJ l0 1)efleflt or exten.l any vighl or inleree;l to any third party. 4. Limitation of Liability: W. S. McCann':: total lial.):lily fur this projcrl shall br lim to the professional feel eollcoted for the: projreol. 5. Other Corldition:: I lulvc rcrld the. Aar•cr'rn<•rrt and uudIni„1 tLat, Ill, velainors t Ue submitted initiate the selected optional investigalirntos: indicated bclnu, Furth I undel•stauel ILat the: I.Alnnca of the total fcc for the Phasa 1 14nvirunmr•nt:d Assrr:,rn will be fully Payable upon submission of the report. Acceptor] by Consultant At:r:epteddbb •..__Client W. S. McCall Name: ,�Ll`. _.._ —•- v pr+nt � Date: November, 18, 1992 Piz or, File No.: Site: fart of APN No. F18-49Q (172.. Address: ? 5/0_(`✓p ...- Selected 'Optious: W. S. MCCANN, P.O. Box 900-1, Mn""") U»lle•y, CA 9T.5=+2-A001t; 7iA-U2d :I525 CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT W2 MEMORANDUM TO: Carlos L. Ortega, Redevelopment Agency Executive Director FROM: Stephen R. Smith, Associate Planner DATE: November 16, 1992 SUBJECT: Agreement of Purchase and Sale and Escrow Instructions for Acquisition of Lazar Property Attached are three copies of the above noted documents . Sheila indicated that you should review the items and sign them, then forward them to her for the Mayor's signature. Escrow is scheduled to close by December 8, 1992 . ofif STE� R. SMITH ASSOCIATE PLANNER V /tm Attachments bN agreement or instrument to which the Buyer is a party, or which affects the Property or any part thereof, and the sale of the Property herein contemplated does not require the consent of any party not a signatory hereto. The Buyer has the full power and authority to enter into this Agreement and consummate the transaction contemplated hereby. The execution, delivery and performance of this Agreement has been duly and validly authorized by the Buyer, and no other action by the Buyer is requisite to the valid and binding execution, delivery, and performance of this Agreement by the Buyer. (b) There is no pending litigation or, to the best of the Buyer 's knowledge, threatened litigation, which does or will materially adversely affect the Buyer' s ability to con- summate this transaction. 13 . The Buyer ' s Contingencies. For the benefit of the Buyer, the Close of Escrow and the Buyer ' s obligation to consummate the purchase of the Property shall be contingent upon and subject to written notice to the Escrow Holder by the Buyer of the occurrence of all of the following (or the Buyer ' s written waiver thereof, it being agreed that the Buyer can waive any or all such contingencies) on or before the dates specified below or, if no date is specified, prior to the Close of Escrow: (a) That as of the Close of Escrow the represen- tations and warranties of the Seller contained in this Agreement are all true and correct. (b) The Seller ' s delivery of all documents pursuant to Section 4 hereof. (c) The Buyer' s approval , prior to the Close of Escrow, of all inspections, tests, surveys, and other studies to be conducted by the Buyer, including any environmental site assessments. If Escrow fails to close for any reason the Buyer ' s deposit, if any, shall immediately be refunded to the Buyer. The Buyer' s approval of any such inspection of the Property shall not alter or diminish the Seller 's representations or warranties under this Agreement, and the Seller acknowledges and agrees that the Buyer is nonetheless relying on the Seller' s representations and warranties made herein, unless such representation or warranty is specifically waived in whole or in part by the Buyer in writing. (d) The Title Company ' s commitment to issue in favor of the Buyer of a CLTA Standard Coverage Owner ' s Policy of Title Insurance with liability equal to the Purchase Price - 8 - 920507 sas 8541.jar not been consummated) , the Seller, if the Seller has actual knowledge thereof, shall notify the Buyer of such fact. In such event, the Buyer shall have the option to terminate this Agreement upon written notice to the ler ten (10) days after receipt of the Seller's notice. I fathisthan Agreement is terminated, the Escrow Holder shall return any cash deposit held by the Escrow Holder to the Buyer, whereupon neither Party shall have any further rights or obligations hereunder except for the payment of any Escrow cancellation fees, which shall be paid by both parties hereto in equal portions. 10. Indemnification. (a) Subject to Section 8 indemnify the Buyer against , the Seller agrees to , and to hold the Buyer harmless and, at the option of the Buyer, defend the Buyer with counsel approved by it, from all liabilities, losses, damages, costs and expenses, including without limitation legal fees and disburse- ments, incurred by the Buyer subsequent to the date of this Agreement by reason of any claims or litigation relating to the Property and arising from acts, omissions, or occurrences that took place prior to the Close of Escrow. (b) The Buyer agrees to indemnify the Seller against, and to hold the Seller harmless and, at the option of the Seller, defend the Seller with counsel approved by it, from all liabilities, losses, damages, costs and expenses, including without limitation legal fees and disbursements, incurred by the Seller by reason of any claims or litigation relating to the Property and arising out of acts, omissions, or occurrences that take place subsequent to the Close of Escrow. (c) Each party agrees to give to the other writ- ten notice of any third party claim that may give rise to a claim for indemnification hereunder within thirty (30) days after learning of such third party claim; provided, however, that the failure to give timely notice as hereinabove provided shall not defeat any claim for indemnification hereunder except to the extent that the party to whom such notice was owing is prejudiced by the lack of such timely notice. 11. Warranties and Rejoresentations of the Seller. The Seller hereby represents and warrants to the Buyer the following, it being expressly understood and agreed that all such representations and warranties are to be true and correct as of the Close of Escrow, all of which shall survive the Close of Escrow: hat Property is freeaandTclearoofhanyest andoalle hazardous oore toxic the 920507 sas B541.jer - 5 - AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS THIS AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS ("Agreement") , is made and entered into this day of November, 1992, by and between the CITY OF PALM DESERT, a municipal corporation ("Buyer") and A.J. LOU aka ALYCE LAZAR, a married woman as her sole and separate property ("Seller") . RECITALS A. Seller owns certain real property located in unincorpo- rated Riverside County, California consisting of approximately 77 acres of unimproved land that is more particularly described on Exhibit "A" attached hereto and incorporated herein (the "Seller' s Property") . B. Seller desires to sell, and Buyer desires to purchase, a 10+/- net acre portion of the Seller' s Property (the "Sales Property") , which is described in a metes and bounds legal description on Exhibit "B-1" attached hereto and depicted on a map attached hereto as Exhibit 11B-211 . C. The parties desire by this Agreement to provide the terms and conditions for the sale and purchase of the Sales Property. NOW THEREFORE, in consideration of the mutual covenants, promises and agreements herein contained, the parties hereto do hereby agree as follows. 1. PURCHASE PRICE The total purchase price for the Sales Property shall be One Million Three Hundred Six Thousand Eight Hundred Dollars ($1, 306,800) (the "Purchase Price") , based on a price of Three Dollars ($3 . 00) per square foot of land within the Sales Property. The entire Purchase Price shall be paid to Seller in cash at the close of the escrow described below. 1.1 Deposit. Buyer shall deposit into the escrow described below (the "Escrow") the sum of Twenty Thousand Dollars ($20, 000) upon the opening of Escrow. 1.2 Balance of the Purchase Price. At least one business day prior to the close of Escrow, Buyer shall deposit into Escrow the balance of the Purchase Price in cash by wire transfer, cashier' s check or certified check. 2 . ESCROW 2. 1 Opening. The purchase and sale of the Sales Property shall be completed through an escrow to be opened at First American DE030658:11104/92 Title Insurance Company or another escrow company mutually accept- able to the parties (the "Escrow Holder") . Within five (5) days after the mutual execution of this Agreement, Buyer or Seller shall deposit with the Escrow Holder one fully executed counterpart of this Agreement, which shall constitute the escrow instructions. The date of delivery to Escrow Holder of such fully executed counterpart, together with the deposit described in Section 1. 1, shall be deemed the opening of escrow ("Opening of Escrow") and Escrow Holder shall notify Buyer and Seller in writing of the Opening of Escrow date and its acceptance of the escrow instruc- tions. 2.2 Closing. Escrow shall close, if at all, on or before December 8 , 1992 (the "Close of Escrow") . 2 .3 Costs. Seller shall pay all usual escrow costs and charges normally paid by a seller in an escrow closing in Riverside County, including without limitation one-half of the escrow fee, and the premium for the CLTA owner's title insurance policy to be delivered to Buyer. Buyer shall pay one-half of the escrow fee and such other costs and charges normally paid by a buyer in an escrow closing in Riverside County. 2.4 Prorations. Current real property taxes, and bonds and assessments that are currently due and payable, shall be prorated at the Close of Escrow on the basis of a thirty (30) day month. 2.5 Additional Documents. Buyer and Seller shall execute such additional escrow instructions as Escrow Holder may reasonably require to act as Escrow Holder, but in no event shall said additional escrow instructions increase the rights of one party against the other party hereto or modify the terms and conditions of this Agreement without the express written acknowledgment of both parties. Seller shall deposit into Escrow an executed Grant Deed in a form sufficient to convey title to Buyer. 2 .6 Possession. Seller shall deliver possession of the Sales Property to Buyer upon the Close of Escrow. 2.7 Title to the Sales Property. Seller shall, at the Close of Escrow provided for in this Agreement, by Grant Deed, convey to Buyer fee simple title to the Sales Property. Seller shall provide Buyer with an Owner's C.L.T.A. Standard Coverage Policy of Title Insurance in an amount equal to the Purchase Price of the Sales Property issued by First American Title Company or another title company mutually acceptable to the parties (the "Title Company") showing fee title to the Sales Property vested in Buyer in the condition required by this Agreement. 2.8 No Map. The parties acknowledge and agree that the conveyance of the Sales Property shall be by grant deed using a metes and bounds legal description, without benefit of any parcel or other subdivision map. The parties acknowledge and agree that the conveyance of the Sales Property to Buyer is exempt from a parcel map requirement pursuant to Government Code Section 66428. DE030658:11/04/92 -2- 3. BUYER'S CONDITIONS OF PURCHASE Buyer's obligation to acquire the Sales Property pursuant to this Agreement shall be subject to the satisfaction of the following conditions, which are for Buyer's benefit only. In the event any of the following conditions are not satisfied within the specified time limit(s) , Buyer may, at its sole option, either waive such conditions or terminate this Agreement. Any condition not objected to or disapproved in writing within the specified time limit(s) shall be deemed satisfied. (If Buyer elects to terminate this Agreement pursuant to this section, the Deposit shall be returned to Buyer, less all Escrow fees and expenses incurred. ) 3.1 Approval of Title. Title to the Sales Property shall be in the condition required by this Agreement as of Close of Escrow. Within ten (10) days after execution of this Agreement by Seller and Buyer, Seller shall deliver to Buyer a current preliminary title report from the Title Company ("PTR") disclosing the status of title to the Sales Property. Buyer shall have ten (10) days after receipt of the PTR in which to reasonably object to any exception disclosed therein which materially and adversely affects Buyer's development or use of the Sales Property. Any such reasonable objection must be in writing and must be received by Seller (with a copy to Escrow) within ten (10) days following Buyer' s receipt of the PTR. In the event that Seller cannot, within the fifteen (15) days following such notification by Buyer, cause any such reasonable objection to title to be removed, Buyer shall promptly elect, in writing, either to terminate this Agreement and all rights and obligations hereunder, or to waive its objection to title. The parties acknowledge and agree that the Sales Property shall be conveyed in all events subject to the liens of current taxes, assessments, and bonds of record. Further, the parties specifically agree that Seller's obligation to cure any such reasonable objection to title shall not require the expenditure of any funds by Seller. Seller shall be allowed to cure all monetary liens or encumbrances objected to Buyer prior to or at Close of Escrow. n 3.2 Inspections. Buyer or Buyer' s agent shall have the right ' I to physically inspect and to conduct geological and other tests, including an environmental investigation (hereinafter collectively called "Inspections") on the Sales Property. All Inspections shall be done at the Buyer's sole cost and expense. Upon completion of such Inspections, the Sales Property shall be returned to its original condition. Buyer shall have the right, in its reasonable discretion, to disapprove of the physical condition of the Sales Property based on the Inspections within twenty (20) days from the date of this Agreement. If Buyer fails to provide Seller with written notice of any objection to the physical condition of the Sales Property within said 20 day Inspection period, Buyer shall be deemed to have waived any objection to the physical condition of the Sales Property. Any disapproval of the physical condition of the Sales Property by Buyer shall be based on the discovery of a material adverse physical condition which affects the developability or use of the Sales Property, and which was not DE030658:11/04/92 -3- known or apparent to Buyer or Seller at the time of entering into this Agreement. 4. DEVELOPMENT AGREEMENT. Buyer agrees to schedule for consideration through its regular public hearing process a pre-annexation development agreement in substantially the same form as that attached hereto as Exhibit "C" . 5. RIGHT OF ENTRY Buyer, its agents, and employees are hereby granted the right to immediately and at all times enter on the Sales Property for the purpose of conducting toxic and geological studies and surveying work as may be required or allowed pursuant to Section 3 . 2 . Buyer shall indemnify and hold Seller harmless from any loss, cost, or expense for physical damage to the Sales Property or third party injury caused by Buyer or Buyer's agents or employees in connection with foregoing activities conducted on the Sales Property. 6. SELLER'S REPRESENTATIONS. WARRANTIES. Seller hereby makes the following representations and warranties, and agrees that such representations and warranties shall survive the Close of Escrow. ` 6. 1 Seller owns fee simple title in and to the Sales Property and has full right, power, and authority to execute this Agreement and to convey its interest in the Sales Property to Buyer as provided herein. 6.2 Seller has no actual knowledge of the existence of any underground tanks or of any toxic substances or hazardous materials (as those terms are defined under federal, state or local laws) q located on or under the Sales Property. Seller makes this warranty { without having undertaken a toxic investigation or inspection of the Sales Property and without any obligation to undertake any such toxic investigation or inspection pursuant to this Agreement. 6.3 Seller is not a foreign person under Section 1445 Internal Revenue Code and will execute a Certificate of Non-foreign status and deposit same into the escrow prior to Close of Escrow. 6.4 This Agreement has been duly executed by Seller and constitutes the valid and binding agreement of Seller enforceable against Seller in accordance with its terms. 7. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer hereby makes the following representations and warranties and agrees that such representations and warranties shall survive the Close of Escrow. 7.1 Buyer hereby represents and warrants that the person or persons executing this Agreement have the full authority and power DE030658:11/04/92 -4- to enter into this Agreement on behalf of Buyer to purchase the Sales Property from Seller, and to take all actions required of it by the terms of this Agreement. 7.2 This Agreement has been duly executed by Buyer and constitutes the valid and binding agreement of Buyer and enforceable against Buyer in accordance with its terms. 7.3 Buyer acknowledges and warrants that it has authority pursuant to Section 66428 (a) of the Government Code, as a govern- mental agency, to acquire land based on a metes and bounds legal description without need of a parcel map. 8. CONDITION OF SALES PROPERTY. The Sales Property shall be conveyed to Buyer in an "as is" condition, with no warranty, express or implied, by the Seller (except as set forth in Section 6.2) as to the condition of the soil, its geology, or the presence of known or unknown faults, toxic waste or hazardous substances or conditions, as the same may be defined under any local, state or federal laws, regulations or ordinances. Buyer shall have access to all data and information on the Sales Property in the possession of Seller, but without warranty or representation by Seller as to the completeness, correctness or validity of such data and information. It shall be the sole responsibility of Buyer, at its expense, to investigate and determine the suitability of the soil and environmental conditions of the Sales Property for Buyer's use thereof. Seller n shall not be responsible for (i) the discovery or cleanup of any hazardous materials or toxic wastes or substances, of any kind or nature, if any, which may be located on or about the Sales Property at the time of the conveyance of the Sales Property by Seller to Buyer pursuant to this Agreement, or (ii) any damages to Buyer or to any third party arising from or relating to any such hazardous materials or toxic wastes. Further, Buyer hereby releases Seller and agrees to defend, indemnify and hold Seller free and harmless from and against any claims or damage caused by, or costs or expenses incurred in connection with, including litigation expenses and attorneys' fees, any such hazardous materials or substances or toxic wastes, or any other environmental condition affecting the Sales Property from any and all sources and with respect to any and all persons or properties whatsoever. 9. ACCESS In order to provide Buyer access to the Sales Property from Dinah Shore Drive and/or Miriam Way, Seller shall dedicate to the City for street and utility purposes a 30 foot wide strip of land over and across Seller' s Property in a location to be mutually agreed upon by the parties prior to Buyer's development or use of the Sales Property. Such offer of dedication shall be in the normal and customary form used by the City of Palm Desert, subject to the review and approval of same by Seller' s attorney. DE030658:11/04/92 -5- 10. DE-ANNEXATION In the event of Buyer's termination of this Agreement pursuant to Section 3, or Buyer's unexcused failure to purchase the Sales Property and the resulting termination of this Agreement by Seller, Buyer shall have no right to complete the annexation of the Property into the City of Palm Desert pursuant to Annexation No. 32 Palm Desert, without the prior written approval of Seller, which approval may be withheld at the sole discretion of Seller. In such event, Buyer shall take such steps as may be necessary and appropriate to exclude the Property from Annexation No. 32 Palm Desert prior to completion of such annexation. 11. NOTICES Unless otherwise provided herein, any notice, tender, or delivery to be given hereunder by either party to the other may be effected by personal delivery in writing or by registered or certified mail, postage prepaid, return receipt requested, and shall be deemed communicated as of mailing. Mailed notices shall be deemed communicated as of mailing. Mailed notices shall be addressed as set forth below, but each party may change his address by written notice in accordance with this paragraph. Buyer: Seller: City of Palm Desert Alyce Lazar 73510 Fred Waring Drive 334 Hermosa Place Palm Desert, CA 92260 Palm Springs, CA 92262 Attn: Ramon Diaz Copy to: Best, Best & Krieger 600 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: Attn: Paul T. Selzer 12. GENERAL PROVISIONS 12. 1 Entire Agreement. This Agreement supersedes any prior oral or written agreement and contains the entire agreement of the parties on the matters covered hereby. No amendment of this Agreement and no other agreement, statement, or promise made by any party or to any employee, officer, or agent of any party to this Agreement shall be binding. All obligations of Buyer and Seller under this Agreement and Escrow shall be joint and several. 12.2 Time is of the Essence. Time is of the essence of this Agreement and the escrow referred to herein. 12.3 Captions and Construction. The caption appearing at the commencement of the paragraphs hereof are descriptive only and for convenience in reference. Should there be any conflict between any such caption and the paragraph at the head of which it appears, the DE030658:11/04/92 -6- paragraph shall control and govern in the construction of this Agreement. This Agreement shall be construed as a whole and in accordance with its fair meaning. Organization is for convenience and shall not be used in construing meaning. 12.4 Buyer's Performance. Performance of any duty imposed on Buyer by this Agreement is conditioned on Seller's full performance of all duties imposed on Seller in this Agreement. 12 .5 Seller' s Performance. Performance of any duty imposed on Seller by this Agreement is conditioned on Buyer's full performance of all duties imposed on Buyer in this Agreement. 12.6 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be deemed an original, but all of which, when taken together, shall constitute one and the same instrument. 12.7 Successors and Assigns. This Agreement may not be assigned by either party without the prior written consent of the other. Each covenant and condition contained in this Agreement shall inure to the benefit of and be binding on the parties to this Agreement, their respective heirs, personal representatives, assigns, and other successors in interest. 12.8 Attorneys' Fees. If any party shall bring an action against another arising out of this Agreement, then the party in whose favor the final judgment is entered shall be entitled to have and recover from the party its reasonable attorneys' fees and other reasonable expenses in connection with such action or proceedings, in addition to its recoverable court costs. 13. WAIVER OF CONFLICT The parties hereto acknowledge and agree that Best, Best & Krieger has prepared this Agreement at the request of both parties. Best, Best & Krieger has a long-standing relationship with both Lazar and the City and has advised each to seek separate, independent counsel of their own choosing for the purpose of informing them of the legal consequences of this Agreement, and the advisability of executing it. To the extent each party has not sought such separate legal advice, each party waives any actual or potential conflict of interest arising out of the preparation of this Agreement by Best, Best & Krieger. 14. BROKERS AND FINDERS Buyer and Seller warrant that the execution of this Agreement was not induced or procured through any person, firm, or corporation acting as a broker or finder. Each party agrees to indemnify and hold the other harmless from and against any damage, liability or cost, including without limitation, reasonable attorneys ' fees, arising from or in connection with any claim by any other person, firm, or corporation based upon their having acted as broker or DE030658:11/04192 -7- finder for or in connection with this transaction on behalf of such party. 15. LIQUIDATED DAMAGES THE PARTIES ACKNOWLEDGE THAT BUYER'S UNEXCUSED FAILURE TO PURCHASE THE SALES PROPERTY MAY RESULT IN DAMAGES TO SELLER, IN AN AMOUNT NOT READILY ASCERTAINABLE BY THE PARTIES. THE BUYER AND SELLER MUTUALLY AGREE THAT THE DEPOSIT AMOUNT OF $20, 000 IS A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WOULD SUFFER IN THE EVENT OF UNEXCUSED FAILURE OF BUYER TO PURCHASE THE SALES PROPERTY. IN THE EVENT OF SUCH DEFAULT BY BUYER, SELLER SHALL BE RELEASED FROM HER OBLIGATION TO SELL THE SALES PROPERTY TO BUYER AND BY PLACING THEIR INITIALS HERE, BUYER ( ) AND SELLER ( N,4 - ) AGREE THAT ESCROW HOLDER SHALL IMMEDIATELY PAY AND DELIVER TO SELLER WITHOUT ANY DEDUCTION, OFFSET OR RECOUPMENT (OR ANY RIGHT THEREOF) WHATSOEVER, AS LIQUIDATED DAMAGES TO SELLER, THE DEPOSIT DESCRIBED IN SECTION 1. 1 ABOVE. IN WITNESS WHEREOF, the parties hereto executed this Agreement on the dates set forth opposite their respective signatures hereto, which more recent date shall be deemed the date of this Agreement for all purposes. BUYER: CITY OF PALM DESERT Executed this day By: of , 199_, at California Executed this day By: of 199_, at , California ATTEST: SELLER: Execu ed this 71- day &," of £v 199 a lyc Lazar at n S , California DE030658:11/04/92 ! CERTAIN PARCEL OF' IN TRt UNINCORPORATED ASRA OF THA j - THA ICE COUNTY, STATE OF CALIFORNIA, BEING A PORTION OF . RIVERS 56CIION 19, T09111S"IF 4 SOUTH, MHOS 6 SAST, BAN SERHARDINO . SASD AND NzatDIAM, AS SHOWN STATES PORTION BEING MOREPAR7'ICULAELY DESCRIBED AS FOLLOWS-. COMMENCING AT THE SOU?REAV CORNER OF SAID SECTION 191 T11£aCE N S 69' 32' 040 M 1294.5I ►EE! A14NO IAE SOUTH LINE OF SAID SECTION 19 TO THI ?ROB POIN! OF 5E61NNIN01 TNCNCE N O' O ' SO' I 204i.6RIGNT`OFPNFAY OF SO{MHERNTO THE PA LY N E CIFICRAILRO D, AS MRSENVID IN AN INSTRUMENT RECORDED MARCH 23, 1912 IN SOUR 347, PADS 127 of DEEDS. RECORDS OF SAID COUNTY THENCE is S4' 32' 31' N 1648.31 FEET A14NO SAID 60UTN►'SETSaLY LINE TO THE Nft? LINK OF THE CAST HALF OF SAID SECTION 193 THENCE S O' 03' SO• W 3006.73 FEET ALONO SAID WESTERLY LILAC TO SAID SOUTH LINS OF SECTION 191 THENCE N 09, 32' 04' E 1341.74 FEE? ALONG SAID SOUTH LINE To THE. TRUE POINT OF SMINNINO. Tl1E H£RCINABOVC DEBCRIBED PARCEL CONTAINS 77.29 ACRES OF LAND, RDAC OR LESS. . EXHIBIT 'A' "A" THAT CERTAIN PARCEL OF LAND IN THE UNINCORPORATED AREA OF RIVERSIDE COUNTY, STATE OF CALIFORNIA, BEING A PORTION OF SECTION 19, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 19; THENCE S 890 32' 04" W 1294.53 FEET ALONG THE SOUTH LINE OF SAID SECTION 19 TO THE SOUTHEAST CORNER OF THAT PARCEL OF LAND DESCRIBED IN INSTRUMENT 279607 RECORDED SEPTEMBER 28, 1988, O.R.; THENCE N 00 03' 50" E 1550.93 FEET TO THE TRUE POINT OF BEGINNING; SAID POINT BEING 490.69 FEET SOUTHERLY OF THE NORTHEAST CORNER OF SAID PARCEL DESCRIBED IN INSTRUMENT 279607 RECORDED SEPTEMBER 28, 1988, O.R. AS MEASURED ALONG THE EASTERLY LINE OF SAID PARCEL; THENCE CONTINUING N 00 03' 50" E 490.69 FEET TO THE SOUTHWESTERLY LINE OF THE 200 FOOT WIDE RIGHT-OF-WAY OF THE SOUTHERN PACIFIC RAILROAD, AS RESERVED IN AN INSTRUMENT RECORDED MARCH 23, 1912 IN BOOK 347, PAGE 127 OF DEEDS, RECORDS OF RIVERSIDE COUNTY; THENCE N 540 32' 31" W 946.90 FEET ALONG SAID SOUTHWESTERLY LINE; THENCE PERPENDICULAR TO LAST MENTIONED COURSE, S 350 27' 29" W 400.00 FEET; THENCE S 540 32' 31" E 1231 .10 FEET PARALLEL TO THE SOUTHWESTERLY LINE OF SAID RAILROAD RIGHT-OF-WAY TO THE TRUE POINT OF BEGINNING. THE HEREINABOVE DESCRIBED PARCEL CONTAINS 10.00 ACRES OF LAND, MORE OR LESS. EXHIBIT EXHIBIT ys ��R'OOO as9 Cam( P B 90 C� 10.00 ACRES N \ 00 Sy 32 P 3a� - 01 N � n a23a a 0 m w 0 N in T.P.O.B. 0 O N O � Z O APN 618-490-022 cu W 0 1 m 2 In to 5�• 'a S 89032'04'N 1294.53' R/M C —.__l�� —RM DINAH SHORE DRIVE SE COR. SEC. 19 EXHIBIT ` ra L ° ! « § ƒ A - ) 2 § § « o ■ .. �o Z # » & _] ■ 7 R ƒ / { § ■ 2 = I � (A E § ` � . la = _ CD \ \\ � k § IF °ID kCD ` � Ln § rLn '} Ln C ° @ , CL » 80 0 g2 _ al 2 / � � ` � � kc 2 co » � m rD a }ƒ { 2 ] 2 !a CD o L \ 0 ■ CL \ \\ \ 3 CD . / CD 9 � 7o / k § § ) § k § n mo $ c 2 = g § » / § f 7 Ln f � / g � (D y 2 , A r t�, =x �*au7v P1e�se; prticeS �„Ct�l r' 'h ICi"eci�AIAP i return Ito;=Ste�ie"� Smi the for ajr ��w P.:t�asestTe�, eirk[gw�►�hat e F E 'y «? `w . Y a ro,� d BEST, BEST & KRIEGER ��CEIVED •OMfNEPSMIO IMCWdND 1AYEM[N4 CORRFAiRN9 LAWYERS NOV 19 199Z ARTHUR I.UTTLEWRTH• DOUGLAS S.PHILLIPS• MATT H.MORRIS MARSHALL S.RUDOLPH SUITE 312 GLEN E.WILLIAM R ED.WOLFE• REGRI Y K.WILKINSON ARSON STEVEN C.DaBAUN CYNTXM M.GERMANO C(XIpMC OOF FUMLM EM BOB HOPE DRIVE BARTON C.GAUT• WYNNE S.FURTH BRANT H.DVEIRIN MARY E.GILSTRAP ERT Df pMM POST OFFICE 80%1356 PAUL T.SELZER• DAVID L.BARON ERIC L.GARNER NGUYEN O.PHAN RANCHO MIRAGE, CAUFORNIA 92270 DALLAS HOLMES• EUGENE TANA" DENNIS M.OOTA DANIEL C.PARKER.JR. TELEPHONE(619)568-2611 CHRISTOPHER L.CARPENTER'BASIL T.CHAPMAN JULIE HAYWARD BIGGS OINEVRA C.MARUM TELECOPIER(619)340-6698 RICHARD 1.ANDERSON• TIMOTHY W CONNOR RACHELLE J.NICOLLE CHARLES E.KOLLER JOHN D.WAHLIN• VICTOR L.WOLF ROBERT W.HARGREAVES GLENN P.SABINE MICHAEL O.HARRIS• DANIEL E.OLIVER JANICE L.WEIS CHRISTINE L.RICHARDSON W.CURT EALY• DANIEL J.McHUGH SHARYL WALKER JOANE GARCIA-COLSON THOMAS S.SLOVAK• HOWARD B.GOLDS PATRICK W.PEARCE PHILIP J.KOEHLER JOHN E.BROWN' STEPHEN P.OEITSCH KIRK W.SMITH MANE C.WIESE MICHAEL T.RIDDELL• MARC E.EMPEY JASON O.OASAREINER STEVEN S.KAUFHOLD MEREDITH A.JURY' JOHN R.ROTTSCHAEFER KYLE A.SNOW REBECCA MARES DURNEY OF COUNSEL MICHAEL GRANT' MARTIN A.MUELLER MARK A.FASTER ALLISON C.HARGRAVE JAMES B.CORISON FRANCIS J.BAUM• J.MICHAEL SUMMEROUR DIANE L.FINLEY DOROTHY 1.ANDERSON ANNE T.THOMAS• VICTORIA N.KING MICHELLE OUELLETTE G.HENRY WELLES O.MARTIN NETHER" JEFFERY J.CRANDALL PETER M.SARMACK JAMES R.HARPER GEORGE M.REYES SCOTT C.SMITH DAVID P.PHIPPEN,SR. DINA O.HARRIS WIWAM W,FLOYD,JR. JACK B.CLARKE.JR. KENNETH R.WEISS MICHAEL A CRISTE• BRAAN M.LEWIS SUSAN C.NAUSS GREGORY L.HAROKE JEANNETTE A.PETERSON CHRISTOPHER DODSON OFFICES IN KENDALL H.M.cVEY RADLEY E.NEUFELD BERNIE L.WILLIAMSON RIVERSIDE 0 1 41686-1 4 00 CLARK H.ALSOP• KANDY LEE ALLEN ELAINE E.HILL RAYMOND BEST 11868-19 37) PALM SPRINGS 1619132 W DAVID J.ERWIN• ELISE K.TRAYNUM KEVIN K.RANDOLPH JAMES H.KRIEGER(1913-1WD) MICHAEL J.ANDELSON• WILLIAM O.DAHLING,JR. JAMES B.GILPIN EUGENE BEST(18911981) ONTARIO(714)989-8584 •IYgF.9 fLRVORATON November 13, 1992 o cfl N o Lynn Crandall Attorney at Law 7` 43-645 Monterey, Suite D C) 3 0 Palm Desert, CA 92260 w Re: Messick Preannexation Development Agreemeng Dear Lynn Per our telephone conversation on November 12, 1992 , I enclose a copy of the latest drafts of development agreements which are being negotiated between the City and Couch MacLeod, Rancho Mirage Industrial Park, et al. , and Seymour Lazar. Please note that the Planning Commission Public Hearing for recommendation on the agreements is scheduled for December 1, 1992, with a public hearing being scheduled before the City Council on December 3 , with a second reading, scheduled for December 17, 1992. The protest hearing on Annexation 30 is also scheduled for December 17. Ray Diaz and Steve Smith from the City of Palm Desert and I are working on this matter together. We would appreciate a draft agreement from you at your earliest convenience. Very truly yours, �BEST, BEST & KRIEGER Dougl s S. Phillips DSP:ma cc: Ray Diaz DSP29346 j8gNP; BY:Xerox Telecopier 7020 :+1-13-92 : 4:16PM : 5193406696- 6193400574:# 2 BEST, BEET & KRIEGER A FAIIN.FSgM.N01Lp"AMRAI6YL OORORATKM LAVVVER8 ANTHUR L,LITTLEWORTN' DOUGLAS 4,PHILLIPS- MATT H.MORRIS MARSHALL S.AUOOL►N SUITE 812 OLEN E.STEPHENS. ANTOMA DRAPHO9 JEFFREI'V.CUNN KIM A.9YREN9 $9700 600 HOPE DRIVE WILLIAM R,D.VJCLFE' OREOORY K.WILMNSON STEVEN C.W6AUM CYNTHIA M.GERMANO PRINT OFFICE SIDX 1660 RANTCN C.GAUT- WVNME S.FURTH ORANT H,OVEIRIN MARY E,*%&TRA► RANCHO POST OFFICE E box ism D2270 PAUL T.9EL2EN' DAVID L.SAMON ERIC L.OARNER NGUYEN D.PMAN DALLAA HOLMES' "MERE TANAKA CENNIS M.COTA DANIEL C.PARKER,JR. TELEPHONE(619)6G6.2611 CHRISTOPHER L.CARPENTER'SASIL T,CHAPMAN JULIE HAYWARD 111001 OINEVRA C.NARUN TELpCOPI@((61D)]40-66►5 RICHARD T.ANDERSOM TIMOTHY M.CONNOR RACHELLE J.MCOLLE CMANILEO E.KOf I.v JOHN D WAHLIN' VICTOR L.WOLF ROOERT W.HARGREAVES GLENN P.RAVINE MICHAEL D.MARRNS' DANIEL E.OLIVER JANKXC L.WM CHRBTWE L,RICHAROSON W.CURT EALY' DANIEL J.McHUIIH SMARYL WALKER JOAKE OAROIA,*LSON THOMAS 9-SLOVAK' HDWARD S.COLDS PATRICK W.PEAIICE PHILIP J.KOEHLER JOHN 9.SROWN• STEPHEN P,OER9CH KIRK W.SMITH DIANE C.WIEnE MICHAEL T.RIOCCLL• MARC E,EMPEY JASON 0.DASAAONCR STEVEN S.KAUFMOLD MERECITH A,JURT' JOHN R.ROTT9CHAM ER KYLE A SNOW REBECCA MARES CURREY OF COUNSEL MICHAEL ORANT' MARTIN A.MUELLER MARK A.CASTER ALMSON 0.HARGRAVE JAME9 R.CMISDN FRANCIS J.SAUM' J.MICHAEL SUMMEROUR DIANE L.FINLEY DOROTHY I ANDEASON ANNE 7,THOMAS' VICTORIA N.KIM MICHELLE OUELLETTE D.HENRY WELJES O.MARTIN NETHER" JETPERY J.CRANDALL PETER M.SARMACK JAMES R.HARPER DEC MIME M.REYES SCOTT 0.SMITH DAVID P.►MIPPEN,511. DINA O.MAIMB WILLIAM W.FLOM,JR, JACK V,CLARKE,JR. KENNETH R.WEISS MICMACL A.CRISE•T MAN M.LEWIS SUSAN C.NAUSS OW40MY L.HAROKC JEANNETTE A,PETERSON CNNISTOPHEA 0009" OFFICEO IN KENDALL M,M..VEY RRADLEY E.NEUFELO SERVE L.YOLLIAMOON RPKRl10!(71 ANVRi•)410 CLARK M.ALSDP' KANDY LEE ALLEN CLAIMS E.HILL RAYMOND REST 1111e•1977) PALM RIVERSIDE 4ASSIO1/-TES4 DAvo J ERWIN• FUSE K,TRAYNUM KEVIN K.RANDOLPH JAMEO H.KRIEGER(1911.197Z) MICHAEL J.ANDEL90N' WILT AM 0.OAHUNO.JR. JAMES R.GILPIN EUGENE BEST(111.3-19511 ONTARIO(714)DSO-MBA 'A RK 41111 .Am.9PATMN November 13 , 1992 VIR TELECOPY Steve smith City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Re: Annexation 30 Development Agreements Dear Steve: Pursuant to our telephone conversation of November 12, 1992E I enclose: 1. An additional sentence to be added to the Rancho Mirage Industrial Park Development Agreement at paragraph 4 .4, to read as follows: "For purposes of this paragraph, "Construction of and extension of Portola Avenue" may be accomplished by the City, by the construction of the east one-half street section of extended Portola Avenue, which proposed one- half street extension is located on property currently owned by the Palm Desert Redevelopment Agency. This construction and extension is found and is deemed by the City as "an acceptable service level" with respect to the extended Portola Avenue as called for under the terms of that certain settlement agreement between Rancho Mirage Industrial Park and the City of Rancho Mirage with respect to a settlement of that action entitled Rancho xirage Industrial Park, et al. asv2l�7 ,SENT BY:Xerox Telecop;er 7020 !+1-13-92 ; 4:18PM 6193406698y 6193400574;# 3 uw orr;cca or INEST, BEST & KRIEGER Steve Smith November 13, 1992 Page 2 V. City of Rancho Mirgcre, Case No. Indio 65i6e filed in the Superior Court, County of Riverside. The city will indemnify and save Rancho Mirage industrial Park harmless from any suit brought which challenges this finding. The City shall require that the west one-half of the Portola Avenue extension be completed upon development of the property west of and adjacent to such extension, pursuant to the terms of this paragraph. " 2. A copy of the Macleod Couch proposed development agreement; 3. A revised paragraph 7.3 to the Macleod Couch development agreement. If the additional language to paragraph 4.4 is acceptable to you and to Ray, please let me know and I will forward it to Cynthia Ludvigeen. Also, if you would, let me know if you have any problems with the Macleod Couch agreement. Finally, I understand that Mr. Messick will be forwarding a development agreement which an attorney in Riverside is preparing an behalf of Monterey Palms. should you have any questions of comments, please let me know. Very truly yours, DOUG S S. PHILLIPS of Best, Best & Krieger DSP:pam enclosures i)WU57 RECEIVED NOV 10 1992 BEST, BEST & KRIEGER •PAFT.Crs.IV INcwolNc PAOFessoNa NVI...na.s IMMUNITY DEVELOPMEW NPARTIE11.4 LAWYERS OW OF PALM DESERT ARTHUR L.LITTLEWORTH' DOUGLAS S.PHILLIPS' MATT H.MORRIS MARSHALL S.RUDOLPH 600 EAST TAHOUITZ CANYON WAY GLEN E.STEPHENS' ANTONIA GRAPHOS JEFFREY V.DUNN KIM A.BYRENS POST OFFICE BOX 2710 WILLIAM q.UaWOLFE' GREGORY K.WILKINSON STEVEN C.D BAUN CYNTHIA M.GERMANO PALM SPRINGS.CALIFORNIA 92263 BARTON C.GAUT' WYNNE S.PURTH BRANT H.OVEIRIN MARY E.GILSTRAP TELEPHONE(619)325-]264 PAUL T.SELZER' DAVID L.BARON ERIC L.GARNER NGUYEN O.PHAN DALLAS HOLM ES' EUGENE TANAKA DENNIS M.COTA DANIEL C.PARKER,JR, TELECOPIER(619)325.0365 CHRISTOPHER L.CARPENTER'BASIL T.CHAPMAN JULIE HAYWARD BIGGS GINEVRA C.MARUM RICHARD T.ANDERSON' TIMOTHY M.CONNOR RACHELLE J.NICOLLE CHARLES E.KOLLER JOHN D.WAHLIN' VICTOR L.WOLF ROBERT W.HARGREAVES GLENN P.SABINE MICHAEL D.HARRIS' DANIEL E.OLIVIER JANICE L.WCIS CHRISTINE L.RICHARDSON W.CURT EALY' DANIEL J.McHUGH SHARYL WALKER JOANE GARCIA-COLSON THOMAS S.SLOVAK- HOWARD B.GOLDS PATRICK W.PEARCE PHILIP J.KOEHLER JOHN E.BROWN' STEPHEN P.DEITSCH KIRK W.SMITH DIANE C.WIESE MICHAEL T.RIDDELL' MARC E.EMPEY JASON O.DABAREINER STEVEN S.KAUFHOLD MEREDITH A.JURY' JOHN R.ROTTSCHAEFER KYLE A.SNOW REBECCA MARES GURNEY OF COUNSEL MICHAEL GRANT' MARTIN A.MUELLER MARK A.CASTER ALLISON C.HARGRAVE JAMES D.CORISON FRANCIS J.BAUM' J.MICHAEL SUMMEROUR DIANE L.FINLEY DOROTHY L ANDERSON ANNE T.T'DMAS' VICTORIA N.KING MICHELLE OUELLETTE G.HENRY WELLES D.MARTIN NETHERY' JEFFERY J.CRANDALL PETER M.BARMACK JAMES R.HARPER GEORGE M.REYES SCOTT C.SMITH DAVID P.PHIPPEN,SR. DINA O.HARRIS WILLIAM W.FLOYD.JR. JACK B.CLARKE,JR. KENNETH R.WEISS MICHAEL A.CRISTE' BRAAN M.LEWIS SUSAN C.NAUSS GREGORY L.HARDKE JEANNETTE A.PETERSON CHRISTOPHER DODSON OFFICES IN KCNDALL H.MacVEY BRADLEY E.NEUFELD BERNIE L.WILLIAMSON RIVERSIDE f>Itl686-1450 CLARK H.AL6E P- KANDY LEE ALLEN ELAINE E.HILL RAYMOND BEST(1868-1957) DAVID J.ERWIN' ELISE K.TRAYNUM KEVIN K.RANDOLPH JAMES H.KRIEGER(1913-1975) RANCHO MIRAGE(619)568-2611 MICHAEL J.ANDELSON' WILLIAM D.DAHLING,JR. JAMES S.GILPIN EUGENE BEST(1893-1991) ONTARIO 010 989-8584 A PFOFIYS W.L MPPCRAT November 5, 1992 HAND DELIVERY r Mr. Ray Diaz City of Palm Desert 73510 Fred Waring Drive Palm Desert, CA 92260 Re: Lazar Dear Ray: Enclosed please find three counterpart originals of the Agreement of Purchase and Sale and Escrow Instructions which has been revised pursuant to your discussions with Mr. Lazar. Please note that the changes to the body of the Agreement are the deletion of Section 2 .9 entitled "Location of Sales Property", the modification of Section 4, the deletion of Section 15 entitled "Further Negotiations" , the inclusion of revised Exhibits "B-111 and "B-211 , and the fixing of close of Escrow on or before December 8, 1992 . Also enclosed is a blacklined copy of the proposed Development Agreement (Exhibit 11C11) showing the revisions to it. Please review the Agreement and if it is satisfactory, please cause the three counterpart originals to be executed by the City. Mrs. Lazar has already executed all three counterparts. Once executed, please return one counterpart to this office and forward another directly to Sina Ludwig at the Riverside office of First American Title Insurance Company. Escrow has been opened with respect to this transaction (escrow number 1962336-S) . DE031128 LAW OFFICES OF BEST, BEST & KRIEGL.. Mr. Ray Diaz November 5, 1992 Page 2 If you have any questions or comments, please do not hesitate to contact me. Sincerely, B S , BEST & KR R Daniel E. Olivier DEO/ks Enclosure cc: Seymour Lazar Doug Phillips, Esq. (w/enclosure) DE031128 M E M O R A N D U M TO: DJE, FILE FROM: DSP DATE: October 27, 1992 RE: CITY OF PALM DESERT/ANNEXATION 30 LETTER FROM JIM SCHLECHT Paragraph 7 . 3 should read: "7. 3 Cooperation In Installation Of Traffic Signals. Traffic lights are proposed to be installed by certain owners at the intersection of Monterey Avenue and the roadway which the Owner McCloud Couch Land Company proposes to use as the principle access into their property. Such access roadway is currently designed to proceed in an east/west direction to approximately the easterly boundary line of the McCloud Couch property and to thereafter proceed northeasterly to intersect Dinah Shore Drive at a right angle. The area where such northeasterly turn in the roadway is proposed is owned by Monterey Palms. The City agrees to cooperate in good faith to obtain the placement of such traffic . lights and the installation of a left turn lane or lanes at such intersection with Monterey Avenue. If the City requests the installation of the traffic signal prior to the time the property, or some portion thereof, is developed, Property Owner shall not be responsible for the cost to install the traffic lights and left turn lane or lanes, except that Property Owner agrees to participate in an assessment district for such installation if the City elects to form one. Otherwise, the Property Owner shall be responsible for such costs}" is �L 014� eNr�p , JWCA. Ckk) CO p DSP28750 -1- a I RUTAN & TUCKER ATTORNEYS AT LAW A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS •MED w MOO.[' IOwSnN BANK OF THE WEST, SUITE 1400 aR•efTH L Ns •MC41 wOeLRrS CI• PTICORLn• D•V.A+.OVMn•N J•...P.ROVBC RWILLIAM P.elu MAna MEs L....rS 611 ANTON BOULEVARD DM NOCNHCR C•wOL L.D.MMlcw •PD A.CU...IT [LSO.L•HPM•R SCOTT P.PrH OHf STEWART P....... MARLEONARD A Nvc N CAP"'N COSTA MESA, CALIFORNIA 92626-1998 n fl1Ml IN.,. n RICHAR D.MCOCWLL• JOMHa HDRLa cn+ MINe.uJT.....AM +.LMEs rnn Al PATRI K M CLL M C.A.L W.IM L,cczOTTI E•THr NNRRATH ClnNAMI cx MUFOz LFO..W....L JR. a .P DIRECT ALL MAIL TO: P. O. BOX 1960 AD e.Ncos..O.E lOeAX I.MLr[R AL4CE.JR' JO[L D. VPLPSCRO IM D. OMPSON BXLIL•A.V•SD VCZ OM ETEVc.• .IC.OLB COSTA MESA, CALIFORNIA 9262E-1950 JArnC TAIL.A MAc nlf. S.e•HCPOn PrOC.•PD PAS.SOT I...A.O.BPOCMrNGTO. MAPS V• LIOTEH[ M W.SAT•IL[ wMARSHALL M.OS[RT[ eA.. •N PIDIXr IvEAII DALI. TELEPHONE I7I91 691-$100 STEPHEN M.ADS: ISSA 0.PART V RODER•.oRAl LL'LM e•...lX (213) 625-Ts66 JSIIPL1 w[PT.c MEP L A.TnOMPSON EDWARD D.lVS[3MA I-' •RY MLORBC' POS(RT..OW.. MEB O. T...•...SAunO[w• ILIP M.PRINCE TELECOPIER ()14) 546-9035 •DAM.. OLMLIO [u`R•M L.XU[Nne(eNs VID C.LANSTW —.14.1 J.CP•.[ JCIIP[Y A.ODLDI•PB P[N 81[VCRS MICAIIORD[ ICLL=W9U ,AMIOI?ID eN=TZ S. DTT HAEL D.RueEx c w ICR r • W.RurAN IIeSO-1.1.1 ry M YA\11 SAO.•IL M•P •O.R N• Rom Us M[s a ucw[P.sP.neee'109or E wA R Poc.L I.PIPET ll' ooewM• INE JENSON AILFORD W. DAHL.8P.UOIP-18ee1 ... A r 1KIERIsoH •IL4Hu I.S.P.D.CIPPUTH N• GIST .. ROODIR HOWELL 118Le'198Sr .MSYTLP STA.WOLCDTY RIC..R...MM MT[NOCD AD...I 8.SOW[P LOAN SARHER SMITH DAVIO+.•ICEMIPL LRNCST W.KLATC.'I November 4, 1992 A PD[!lP..LD�S G.°LLENSCPOeP VIA OVERNIGHT COURIER VZFCEIVE® City Clerk NOV 2 4199Z City of Palm Desert 73-510 Fred Waring Drive cal"ux��"DESST l� Palm Desert, CA 92260 Re: Palm Desert Annexation No. 30 (LAFCO 92-34-4) Dear City Clerk: We hereby request that we be provided notice of any hearing by the City of Palm Desert with respect to the above referenced annexation or any other matter related thereto agendized for consideration by the City Council of Palm Desert. Very truly yours, RretAa"G UCKER R able RAG cc: Mr. Don Howells David Aleshire, Esq. P52,0T71O15201-0001\2020502. 11104/92 C I!, 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260.2578 TELEPHONE(619)346-0611 FAX(619)340-0574 November 3, 1992 CITY OF PALM DESERT LEGAL NOTICE CASE NO. ANNEXATION NO. 30 LAFCO NO. 92-34-4 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert City Council to consider a resolution approving an annexation of approximately 499 acres to the City of Palm Desert, generally located south of Interstate 10 and the southerly line of the Southern Pacific Railroad right-of-way, east and west of Monterey Avenue. The annexation was initiated by the City of Palm Desert by resolution of the city council . The distinctive short form designation of the proposed annexation is LAFCO No. 92-34-4 , Annexation 30 to the City of Palm Desert. The reasons for the proposed annexation include: i) The proposed annexation is consistent with the City Of Palm Desert' s sphere of influence and the spheres of influence of all other affected local agencies ; and ii) The area to be annexed is adjacent to and substantially surrounded by the City of Palm Desert and, therefore, represents a logical expansion of the city' s boundary. M i N+L to I © I \ ri L �• SOYTHULT Like Or TM[ . joVTMt•N F�PW MWLROAO RIOMT'O/-WAY. v.sr 1, {IM DINAH SHORE- D!!•rlt'a'^' r ,r • 24 PROP 03ED i PALM D r^ CITY LIY=� �ryFgSr9lFl 490.lJ iL • 0 >8�Y'Ss•.v ears.sO' � •.� a r y + r Y i w K !! �1 Ctpy PA M DESERT �Zo � I I i SAID public hearing will be held on Thursday, December 17 , 1992 , at 7 : 00 p.m. in the Council Chamber athe Palm Desert Civic Center, 73-510 Fred California,C Waring Drive, Palm Desert, at which time and place all interested persons are invited to attend and be heard. Any land owner within the territory may file a written protest against the proposal with the City Clerk at any time prior to the conclusion of the hearing. PUBLISH: Desert Post SHEILA R. GILLIGAN, . City Clerk November 10, 1992 City of Palm Desert, California PUBLISH: Desert Post RAMON A. DIAZ, Secretary November 11, 1992 Palm Desert Planning Commission November ii,-i991 Fazm-ueserc rranni-ng-commission 73-510 FRED WARIN3 DRIVE, PALM DESERT,CALIFORNIA 92260-2578 TELEPHONE(619)346-0611 FAX(619)340-0574 CITY OF PALM DESERT LEGAL NOTICE CASE NO. DA 92-4 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert City Council to consider a request by MONTEREY PALMS for approval of a development agreement and negative declaration of environmental impact as it pertains thereto for the future development of real property located within Annexation No. 30, also particularly described as : APN 653-260-005 I_ 1 P.C.(3) _ oln.n Snore W ?a _(y1L4M1INlNl4'[:tIl:YJLllML+UN[lI Ij:- - ?` � _ .a 1i 1 is nla I \\ y 1YI 1T S.I. Jr S.I. `\ T.;D. 1 I 1 P.C.D. i 1 :ISUBJECT 1 P.c:(Y) P, i PROPERTY 1 SAID public hearing will be held on Thursday, December 3 , 1992 , at 7 : 00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8 : 00 a.m. and 5 : 00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post. SHEILA R. GILLIGAN, City Clerk November 11 , 1992 City of Palm Desert, California CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT MEMORANDUM TO: City Manager FROM: Assistant City Manager/Director of Community Development DATE: November 6, 1992 SUBJECT: Lazar Acquisition Acquiring the ten acres from Mr. Lazar on its face appears complicated, however, once the process begins it is relatively simple. There will eventually be a joint powers agreement between the Riverside County, Palm Desert, and the Redevelopment Agencies of both jurisdictions . The joint powers will ultimately own the property, repaying the city. The city will initially acquire the property. This is necessary because the redevelopment agency is not empowered to acquire property outside the city. The city will make a finding that it is its intention to sell the property to the agency when it becomes part of the city and that in the event the property is not annexed it will be sold. The city will be repaid by the agency and the agency will be reimbursed the county' s share of the costs through appropriate channels . It is important to note that the city is not buying the property; in the long term it is just forwarding the funds to the agency and joint powers authority. If anything goes wrong, we will simply dispose of the property. i � MON A. DIAZ ASSISTANT CITY MAN GER, DIRECTOR OF COMM NITY DEVELOPMENT/PLANNING /tm ! a Cynthia Ludvigsen— -- - _...,._ Attorney at Law P.O.Box 409 398 W.Fourth Street,Suite 203 San Bernardino,CA 92402-0409 (714)865.6820 Fax (714)SM-6976 TELECOMMUNICATION COVER PAGE DATE: November 4, 1992 PLEASE DELIVER THE FOLLOWING PAGE S) TO: NAME: Doug Phillips TELECOPIER NO: (619) 340,-6698 VOICE CONTACT NO..: C FROM: CYNTHIA LUDVIGSEN TELECOPIER NO: (714) 885-6976 SHORT FILE TITLE: TOTAL NUMBER OF PAGES (INCLUDING COVER PAGE) : MESSAGE (If Any) : I If you do not receive all of the pages, please call back as soon as possible at: (714) 885-6820 Operator: Tricia Cordova . Time Sent: 4:20 PLEASE NOTE: Thi s message is intended only for the use of the individual or entity to which it is addressed. This message may contain information which is intended to be confidential and exempt I from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, �I you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited! If you have received this communication in error, please notify us immediately by telephone (collect if necessary) at: (714) 885-6820 to arrange for return via postal delivery, at our expense. Thank you. T0'd B69900£6T9T 01 -n'44b/uaS6cnpnjiaty�ufi0 W021d Wd82:S0 266T-b0-OON Cynthia Ludvigsen Attarne at. VIA PAX AND MAIL P.O.Boa 409 396 W.Fourth Street,Suite 203 San Bernardino,CA 92402-0409 (714)665.6620 Fax (714)M-6976 November 4, 1992 Doug Phillips Post Office Box 1555 Rancho Mirage.. CA 92270 Dear Doug: Pursuant to our telephone conversation, I have enclosed the additional changes my client has requested in the previous redlined draft of the development agreement. In addition, as I explained, my client feels he is not in a position at this time to agree to a half-width for Portola drive. His position is that if his property develops first then a full- width Portola is required as otherwise the streets which they have widened to 100 feet will suddenly dump into an half-width street and that is not workable. On the other hand, if some of the other owners in the area develop first and widen and extend Dinah Shore first, then he believes the Portola extension will not be of such great importance. Because it is impossible to predict the order of development, my client believes he cannot agree to a half-width for I Portola at this time. As we discussed, I have not yet received any comments on the development agreement from Couch MacLeod or their attorney. I do have a call in .to Mr. Schlecht and hope to hear form him soon. I have left a message for Ray Diaz . I look forward to hearing from you both. I Very truly yours, CYNTHIA LUDVIGSEN III CL:tC cct H. M. Peccorini Z0'd 869900£6T9T Oi -F7 .U/uas61npnj/e?41uFO WONd Wd8Z:90 Z66T-b0-OON o� C 92 9 : 12 No .001 P :0 main action and an award m de Lo MOn e e h a t,on shall be id b Rancho Mirage Industrial ..perk and/or_ R� u�yen,_ 4.3.1 To the extent that the conditions of parcel Map Ire that an Streets or cul-de-sacs be constructed and/or maintained b Henr Melb Trustee of the g. H. Fortner Testamentar Treat, upon roperty owned by Montere Palms, if the said Henr MelA is reasonebl unable to urcha a such si t of way from Monterey Palma, City shall cooperate with Henry Melby by nceluirinq such right of way under the power of eminent domain. The coats of en Such eminent domain action and an award made to Monterev Palms in such option shall be paid by Henry Melby. -----------add at end of Paragraph 4.8: ` Pees eo$ta and all other charges of any kind or nature whatsoever relative to such extenaion or a lieation therefor shall be waived b the city. (HOTS: that Gov't Code 565865.1 requires periodic review at least every twelve months) Relative to Paragraphs 5 and 6: 1 think we need to have some language or a separate paragraph which specifies that the Owners' only obligations are to comply with the provisions of the Settlement Agreement and to develop their respective properties within the ten-year period provided for in the Agreement. The provision for development Should clearly $pacify that commencement of development is not required at any specific time. 20,d 86990V£6T9T 0i 'fi4,4d/uas6tnpn-/ety,}uMD WOad Wd6z:SO Z66T-VO-(ION 9�52 No':001 and maint Hance of such roadwa m n co erate with MacLeod Couch d Co. b ac uirin sue right of a. 8ez the ewer of eminent domain. The costs of any such eminent domain roceedin s and an award made to Mont Palms in ce section with such action shall be aid b MacLe Couch Lnnd , 4.3 Dinah Shore Drive is proposed to be extended to the Northerly projection of Portola Drive, as required by the'p�visions - Of Parcel Map No, 24255. This means that mon a ort' Of Dihw shore Drive must cross over'proge owned by Monte re Palms, Additionally, certain cul-de-sacs must be extended intoWroperty ~ ~ owned by Monterey Palms in connection with the development of Parcel Ma s N s. 24255 and 27419. The City agrees that the MacLeod access r Cou oa a be designed so that it intersects''with // Dinah Shore Drive at the conjunction of said road wit 4 Shore Drive, The City shall not be responsible for the cost to extend Dinah Shore Drive. To the extent that the extension of Dinah Shore Drive is actuated or must be constructed upon property owned by Monterey Palms and/or to the extent that any cul-de-sac must be constructed or is situated Mon proverty owned �v Mont zev palms as required by Parcel Map 24255, if Rancho _ i a a duetrial Park and or Ru en are reasonably unable to purchase such right of way from Monterey Palms, City shall ccc erate with Rancho Mir��xnduetrial Park and/or Ruyan by acquiring such right of way under the tower of eminent domain,- The costgw b0'd 86990b£6T9T Ol 'h,�I.divas6inpn-1ieiq:.ufi0 WONd Wd6Z:S0 Z66T-b0-f10N KINI ) t�-:.1-,7:14-88��A9 No-v 0A 92 = „ 9 11 No .UUlasP., v 2. TERM. 2.1 Unless earlier terminated as provided in this Agreement, this Agreement will commence on the date the property is annexed into the City and will continue for a period of ten (10) years thereafter. e o ar sh 1 b annexe into the Citv within a rafter the A regiment Date unless such date is hereafter extended b further agreement of the parties. F see Gov't Ccde § 65865 b -•---- 4.2 Traffic lights are proposed to be installed by certain Owners at the intersection of Monterey Avenue and the roadway which the Owner, MacLeod Couch Land Co. , proposes to use as the principal access into their property, Such access roadway is currently designed to proceed in an East/West direction, to approximately the Easterly boundary line of the MacLeod Couch property and to thereafter proceed Northeasterly to intersect Dinah Shore Drive at right angles. The area where such North- easterly turn in the roadway is proposed is owned by Monterey Palms,_a _California Limited partnership (hereinafter Monterey. Palms) . The City agrees to oppose neither the placement of such traffic lights nor the installation of a left turn lane or lanes at such intersection with Monterey. The City, however, shall not be responsible for the cost to install the traffic lights or left turn lane or lanes. To the extent that such principal access roadway crosses or must be constructed on property owned 1w Mentarwv Palma. ,f MAcL@od Couch Land Co. is reasonably unable to purchase all of the right of way necessary for the construction G0'd 86990b26ti9T Ol '6�1d/uas6cnpn-)/atyjuR3 WO'J8 Wd0£:20 Z66i-00-nON fe-ccoy-)'v j✓o J (� g z .., - _-� r _ w-t- c�a.•-•-u jam_ �. tA - - < � 4o 2 v A 7-V t r /to-- jz�' � � . BEST, BEST & KRIEGER A IMI IYIHIP INCLLI F1 UAPWK NMOC POK,& LAWYERS ARTHUR L.LITTLEWORTH• DOUGLAS S.PHILLIP3• MATT H.MORRIS MARSHALL S.RUDOLPH SUITE 312 GLEN E.STEPHENS' ANTONIA GRAPHOS JEFFREY V.DUNN KIM A.SYRENS 39700 808 HOPE DRIVE WILLIAM R.INWOLFE' GREGORY K.WILKINSON STEVEN C.WBAUN CYNTHIA M.GERMANO POST OFFICE BOX 1365 BARTON C.GAUT' WYNNE S.FURTH GRANT H.OVEIRIN MARY E.GILSTRAP RANCHO MIRAGE.CALIFORNIA 922]D PAUL T.SEUIER' DAVID L.BARON ERIC L.GARNER NGUYEN D.PHAH DAL AS HOLMES' EUGENE TANAKA DENNIS M.COTA DANIEL C.PARKER.JR. TELEPHONE(61%568-2611 CHRISTOPHER L.CARPENTER'BASIL T.CHAPMAN JUUE HAYWARD BIGGS GINEVRA C.MARUM TELECOPIER(619)340-6698 RICHARD T.ANDERSON' TIMOTHY M.CONNOR RACHELLE J.HICOLLE CHARLES E.KOLLER JOHN D.WAHUN' VICTOR L.WOLF ROBERT W.HARGREAVES GLENN P.SABINE MICHAEL D.HARRIS' DANIEL E.OUWER JANICE L.WEIS CHRISTINE L.RICHARDSON W.CURT EALY' DANIEL J.McHUGH SHARYL WALKER JOANE GARCIA{OLSON THOMAS S.SLOVAK' HOWARD B.GOLDS PATRICK W.PEARCE PHIUP J.KOEHLER JOHN E.BROWN' STEPHEN P.DEITSCH KIRK W.SMITH DIANE C.WIESE MICHAEL T.RIDDELL' MARC E.EMPEY JASON D.DABAREINER STEVEN S.KAUFHOLD MEREDITH A.JURY' JOHN R.ROTTSCNAEFER KYLE A.SNOW REBECCA MARES GURNEY COUNSEL MICHAEL GRANT' MARTIN A.MUELLER MARK A.EASTER ALLISON C.HARGRAW IA OF OF B.COUNSEL N FRANCIS J.BAUM' J.MICHAEL SUMMEROUR DIANE L.FINLEY DOROTHY 1.ANDERSON ANNE T.THOMAS- VICTORIA N.KING MICHELLE OUELLETTE G.HENRY WELLES O.MARTIN NETHERY' JEFFERY J.CRANDALL PETER M.BARMACK JAMES R.HARPER GEORGE M.REYES SCOTT C.SMITH DAVID P.PHIPPEN.SR. DINA O.HARRM WILLIAM W.FLOM.JR. JACK S.CLARKE.JR. KENNETH R.WEISS MICHAEL A.CRISTE' BRIAN M.LEWIS SUSAN C.NAUSS _ GREGORY L.HAROKE JEANNETTE A.PETERSON CHRMTOPHER DODSON OFFICES IN KENDALL H.MFCVEY BRADLEY E.NEUFELD BERNIE L.WILLIAMSON RIVERSIDE IT O68S145p CLARK H.ALROP' KANDY LEE ALLEN EWNE E.HILL RAYMOND BEST(I 86 19573 DAVID J.ERWIN' ELISE K.TRAVNUM KEWN K.RANDOLPH JAMES H.KRIEGER 11913.1975) PALM SPRINGS 161913267264 MICHAEL J.ANDELSON' WILLIAM D.OAHUNG.JR. JAMES S.GILPIN EUGENE BEST 11893-1981) ONTARIO 17141989-8S84 -AMGP.`.ATIGN November 4, 1992 a co v Cynthia Ludvigsen, Esq. i< ;r- 0 P. O. Box 409 c 398 W. Fourth Street, Suite 203 r- San Bernardino CA 92402-0409 m °' Ei - < Re: Annexation 30 Development Agreement - Rancho Mirage- Industrial Park - s JM s Dear Ms. Ludvigsen: 'T' o This is to advise that we have scheduled consideration of the development agreement between your client Rancho Mirage Industrial Park, and the City of Palm Desert for Public Hearing before the Planning Commission on December 1, 1992 and anticipate that the City Council will hold the public hearing for first reading of the ordinance on December 3, and for adoption December 17, 1992. Steve Smith should advise me early next week on that date. The staff advises that agenda packets go out on November 24, 1992 for the December 1, 1992 Planning Commission Meeting. Please mark your calendars accordingly, and I will be in touch with you with respect to the agreement that we have been discussing. Very truly yours, DOUG S�PHILLIPS of Best, Best & Krieger DSP:ma cc: Ray Diaz Steve Smith I David J. Erwin, Esq. DSP28M NOTICE OF DETERMINATION ;r Negative Declaration To : W Clerk of the Board of Supervisors () Secretary of Resources Countv of Riverside 1416 Ninth St. , Rm. 1311 4080 Lemon Street Sacramento. CA 95814 Riverside. CA 92502 RECEIVED FROM: City of Palm Desert OCT - 8 1992 73-510 Fred Waring Drive Palm Desert, CA 92260 caxwuaem of PNX e SUBJECT: Filing of Notice of Determination in compliance with Section 21108 or 21152 of the public resources code. --------------------------------------------------------------------------- Project Title/Common Name: North Sphere Prezoning Date of Protect Approval : May 28. 1992 State Clearinahouse Number ( if submitted) : N/A Contact Person: Steve Smith - Associate Planner Protect Location: South of Interstate 10 - both sides of Monterey Avenue., to Palm Desert and Rancho Mirage city limits Project Description: Prezoning of area to facilitate annexation of area to the City of Palm Desert This is to advise that the City of Palm Desert has made the following determinations regarding the above described project: I . The project ( )will . (X ) will not, have a significant effect on the environment. 2. An environmental impact report was prepared for this project pursuant to the provisions of CEQA. A copy of the environmental Impact report may be examined at the above city hall address. X A negative declaration was prepared for this project Pursuant to the provisions of CEQA. A copy of the negative declaration may be examined at the above city hall address. 3. Mitigation measures ( ) were. O(X) were not, made a condition of the approval of the project. 4. A statement of overriding considerations ( ) was, (X ) was not, adopted for this project. COUNTY CLERK GOUV^ CIFI;x b NeC Dna4vse'++•'}.'..:CM`� 'naYon Signa ure Tit a lV PRT�v JUN 41992 WILUAM E.CONERLY Date Received for Filing COON ERK Removed J covati Nvarsc e,sn orCeWn a 8V EZ _FJA41�ORT44-0'v' (Please return date-stamped copy in the e -lo d envelo ems) ounryetRw - i o!CalhmiA J F' ��— ZZ ;n 'J i 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260-2578 TELEPHONE(619)346-0611 FAX(619)340-0574 November 3, 1992 CITY OF PALM DESERT LEGAL NOTICE CASE NO. ANNEXATION NO. 30 LAFCO NO. 92-34-4 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert City Council to consider a resolution approving an annexation of approximately 499 acres to the City of Palm Desert, generally located south of Interstate 10 and the southerly line of the Southern Pacific Railroad right-of-way, east and west of Monterey Avenue. The annexation was initiated by the City of Palm Desert by resolution of the city council . The distinctive short form designation of the proposed annexation is LAFCO No. 92-34-4, Annexation 30 to the City of Palm Desert . The reasons for the proposed annexation include: i) The proposed annexation is consistent with the City of Palm Desert ' s sphere of influence and the spheres of influence of all other affected local agencies ; and ii) The area to be annexed is adjacent to and substantially surrounded by the City of Palm Desert and, therefore, represents a logical expansion of the city' s boundary. I u� b �• SOUrk L LINE 0I THE i �ourN49N Pauw NAILAWAO OF-WAY. {IM DINAH SHORE- 3A!'u•W r PROPOM i PALM OL21 IN CITY LIMI Fq S Y f N TAlF 498.93 A. jo fars�s•r�ss•W szasss• � � •.� i 'arY �y, � r, r w Mw n } lgrto !z� X OF CITY PALM DESERT ' Iio � SAID public hearing will be held on Thursday, December 17 , 1992 , at 7 : 00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Any land owner within the territory may file a written protest against the proposal with the City Clerk at any time prior to the conclusion of the hearing. PUBLISH: Desert Post SHEILA R. GILLIGAN, City Clerk November 10, 1992 City of Palm Desert, California i I I I S RST oGTyF q'F Rq, \ \ NOT TO SCALE y W Z 0 0 w NQy \ \ �O ss, I R4� I W °'QF• <'4°40 ZI ZI 10 \ W �G V) cli 2628.80 1/2 SECTION LINE n m ACCESS MONTEREY POINT PROPOSED MacLEOD RD. PALMS ACCESS (72 ACRES) POINT APN 653-260-005 0 0 L 2631.80' ACCESS POINT 8 0 r Q c I FF' GERM n SECTION LINE�J FORD — J.F. Davidson Assoclates. Inc. NOTE_ .�� � TWO CROSSING POINTS WITHIN MONTEREY PALMS BOUNDARIES ON PROPOSED Mac LEOD ROAD ROUTE OF SAID PROPOSED ROAD WITHIN SAID BOUNDARIES DATE 12/01/92 NOT YET DETERMINED _ P.N. 9212880 _ LOCATION MAP DINAH SHORE I CAMEL AVE. STREET OLD 35TH AVE. ------ir------ ---------- i I SITE of I NEW 35 AVE. NEIGHBORHOOD ------ "-'- ---- -'- `J PARK J GERALD FORD LEGEND: s TRAFFIC SIGNA7- ' m RIGHT TURNS AND LEFT TURNS IN ONLY (NO LEFT TURNS ;)UT) ONLY MACLEOD COMMERCIAL. p O MEDIANGHTS BREAK) nrt M - AccEss DRIVEWA, Palm Desert, California EXHIBIT A r�_ Robert Kahn, John Kain -� k Associates, Inc. @V RAM 73.510 FRED WARING DRIVE, PALM DES ERT,CAL IFORNIA TELEPHONE(619)346-0611 FAX(619)340-0574 CITY OF PALM DESERT LEGAL NOTICE CASE NO. DA 92-1 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning Commission to consider a request by A.J. LOU AKA ALYCE LAZAR, for approval of a development agreement and negative declaration of environmental impact as it pertains thereto for the future development of a 75 acre site located on the north side of Dinah Shore Drive approximately 1295 feet west of Monterey Avenue, also particularly described as : APN 618-490-022 1 .(3) P.C.(3) mn Lo.. ,An4 -i � .. L . . U J U1✓li All) `•� 21 1 ' • Iv . .� \SECT :j PROPERTY VDC 1 P.C.D. t —I J PA. 1 j 1 SAID public hearing will be held on Tuesday, December 1, 1992, at 7 :00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8 : 00 a.m. and 5:00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post RAMON A. DIAZ, Secretary November 11, 1992 Palm Desert Planning Commission 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260-2578 TELEPHONE(619)346-0611 FAX(619)340-0574 CITY OF PALM DESERT LEGAL NOTICE CASE NO. DA 92-2 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning Commission to consider a request by MC PROPERTIES, A PARTNERSHIP AND MACLEOD COUCH LAND COMPANY, A PARTNERSHIP, for approval of a development agreement and negative declaration of environmental impact as it pertains thereto for the future development on a 70 . 67 acre site on the east side of Monterey Avenue 2666 feet north of Gerald Ford Drive, also particularly described as : APN 653-260-007 AND 008 a a(z II P.C.(3) i omen Sh,'.o. u1WL.WUIG'41 1 I S.I. I j e I ju t:.aL............ YY11 SUBJECT -I M - PROPERTY ( SAID public hearing will be held on Tuesday, December 1, 1992, at 7 : 00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be .accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8: 00 a.m. and 5 : 00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post RAMON A. DIAZ, Secretary November 11, 1992 Palm Desert Planning Commission '77 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260-2578 TELEPHONE(619)346-0611 FAX(619)340-0574 CITY OF PALM DESERT LEGAL NOTICE CASE NO. DA 92-3 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning Commission to consider a request by RANCHO MIRAGE INDUSTRIAL PARK, A CALIFORNIA LIMITED PARTNERSHIP; RUYEN INTERNATIONAL CORPORATION; HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST; MACLEOD COUCH LAND COMPANY; AND BERNARD AND JEANETT DEBONNE, for approval of a development agreement and negative declaration of environmental impact as it pertains thereto for the future development of real property located within Annexation No. 30, also particularly described as : APN 653-250-005, 006 , 007, 010, 011, 014 , 015, 016 , and 018 ly 1 L P.C.0) o P. I Dinah snore Dr 1 i � 1 f l :i SUBJECT ;i PROPERTY_—�� =: .o P .D i —I a J11I m3............. 6 vvu 1 YI 1 I SAID public hearing will be held on Tuesday, December 1, 1992 , at 7 : 00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8 : 00 a.m. and 5 : 00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post RAMON A. DIAZ, Secretary November 11, 1992 Palm Desert Planning Commission 73.510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260.2578 ! TELEPHONE(619)346-0611 FAX(619)340-0574 i CITY OF PALM DESERT LEGAL NOTICE CASE NO. DA 92-4 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning Commission to consider a request by MONTEREY PALMS for approval of a development agreement and negative declaration of environmental impact as it pertains thereto for the future development of real property located within Annexation No. 30, also particularly described as : APN 653-260-005 P.C.(3) P.0.(3) ��.._llLMlf4L 4i':i WYYlulWl4ly'Utll'. . _ _ tot. S.I. CAD i P.C.D. I. , i r i i ! SUBJECT ! PROPERTY SAID public hearing will be held on Tuesday, December 1, 1992 , at 7 : 00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8 : 00 a.m. and 5 : 00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post RAMON A. DIAZ, Secretary November 11, 1992 Palm Desert Planning Commission f 73.510 FRED WAKING DRIVE, PALM DESERT,CALIFORNIA 92260.2578 TELEPHONE(619)346-0611 FAX(619)340-0574 CITY OF PALM DESERT LEGAL NOTICE CASE NO. DA 92-1 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert City Council to consider a request by A.J. LOU AKA ALYCE LAZAR, for approval of a development agreement and negative declaration of environmental impact as it pertains thereto for the future development of a 75 acre site located on the north side of Dinah Shore Drive approximately 1295 feet west of Monterey Avenue, also particularly described as : APN 618-490-022 I— Oo , cP.C.(3)---- m no,<o,. •:�qtl PPP 1 ;1 SU JECT :1 PROPERTY S.I. y :: 1 1 1 P.C.D. I• 1 ..................... 1 �I1 1 � 'I 1 ' SAID public hearing will be held on Thursday, December 3, 1992, at 7 : 00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8 : 00 a.m. and 5 : 00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised At the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post SHEILA R. GILLIGAN, City Clerk November 11 , 1992 City of Palm Desert, California • ; t 73.510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260-2578 i TELEPHONE(619)346-0611 FAX(619)340-0574 CITY OF PALM DESERT LEGAL NOTICE CASE NO. DA 92-2 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert City Council to consider a request by MC PROPERTIES, A PARTNERSHIP AND MACLEOD COUCH LAND COMPANY, A PARTNERSHIP, for approval of a development agreement and negative declaration of environmental impact as it pertains thereto for the future development on a 70. 67 acre site on the east side of Monterey Avenue 2666 feet north of Gerald Ford Drive, also particularly described as : APN 653-260-007 AND 008 C04 P.C.(3) P.C.(3) —lY.1W4LL-a1;'y,+..N11•`LtM'Ul']j S']0 i 1 — — 1 "I of P 1 I i SUBJECT i n.c:ls) I PROPERTY °J' 1 SAID public hearing will be held on Thursday, December 3, 1992 , at 7 :00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8 : 00 a.m. and 5 : 00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post SHEILA R. GILLIGAN, City Clerk November 16 1992 City of 0m Desert, California •�� a.,!• ���� Off} p�1��ri �C� 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260.2578 TELEPH0N E(619)346-0611 FAX(619)340-0574 CITY OF PALM DESERT LEGAL NOTICE CASE NO. DA 92-3 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert City Council to consider a request by RANCHO MIRAGE INDUSTRIAL PARK, A CALIFORNIA LIMITED PARTNERSHIP; RUYEN INTERNATIONAL CORPORATION; HENRY MELBY, TRUSTEE OF THE B.H. FORTNER TESTAMENTARY TRUST; MACLEOD COUCH LAND COMPANY; AND BERNARD AND JEANETT DEBONNE, for approval of a development agreement and negative declaration of environmental impact as it pertains thereto for the future development of real property located within Annexation No. 30, also particularly described as : APN 653-250-005, 006, 007, 010, 011, 014 , 015, 016 , and 018 P.C.0) N 1 omen 5tio.e o/. _iM1lYlW.W IIY':N`l:'[Y_Iu11W,i1kY4'Aill .1-.` — Sf lxe. . ;i PROPERTY I "I P .D S.I. III 1 II 4 i 1 I i SAID public hearing will be held on Thursday, December 3, 1992 , at 7 : 00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8:00 a.m. and 5 : 00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post SHEILA R. GILLIGAN, City Clerk November 11, 1992 City of Palm Desert, California 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260.2578 TELEPHONE(619)346-0611 FAX(619)340-0574 i CITY OF PALM DESERT LEGAL NOTICE CASE NO. DA 92-4 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert City Council to consider a request by MONTEREY PALMS for approval of a development agreement and negative declaration of environmental impact as it pertains thereto for the future development of real property located within Annexation No. 30, also particularly described as : APN 653-260-005 X 0 - I t P.C.(3) P.C.(3) I WWI Sh.'e D, IRA It I 1 C S.I. T..iD I 1 I I I I I P.C.D. .I. i t SUBJECT PROPERTY P't' I SAID public hearing will be held on Thursday, December 3, 1992 , at 7 : 00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8 : 00 a.m. and 5 : 00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post SHEILA R. GILLIGAN, City Clerk November 11, 1992 City of Palm Desert, California