HomeMy WebLinkAboutORD 1068ORDINANCE NO. 1068
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING A DEVELOPMENT
AGREEMENT WHICH WILL PROVIDE FOR AMONG OTHER
MATTERS MODIFIED DEVELOPMENT STANDARDS AND
PROVISIONS REQUIRING THAT GOLF COURSE IMPROVEMENTS
BE CARRIED OUT IN A TIMELY MANNER.
CASE NO. DA 04-01 AS IT RELATES TO CASE NOS. C/Z 04-01 TT 31836
AND PP 04-01
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the
16th day of March, 2004, hold a duly noticed public hearing to consider the request of PDCC
DEVELOPMENT LLC; and
WHEREAS, the Planning Commission by its Resolution No. 2255 has recommended
approval of Case No. DA 04-01; and
WHEREAS, at said public hearing, said City Council heard and considered all testimony
and arguments of all interested persons.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm Desert,
California, as follows:
That the above recitations are true and correct and constitute the findings of the
City Council in this case.
2. That Development Agreement 04-01, Exhibit "A" attached, is hereby approved.
3. The City Clerk of the City of Palm Desert, California, is hereby directed to
publish this ordinance in the Desert Sun, a newspaper of general circulation in
the city of Palm Desert, California, and shall be in full force and effect thirty (30)
days after its adoption.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City
Council, held on this 8th day of July , 2004, by the following vote, to wit:
AYES: BENSON, CRITES, FERGUSON, TELLY, SPIEGEL
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
ROBERT A. SPIEGEL, May6r
ems:
City of Palm Desert, California
RECORDING REQUESTED` -BY, AND i '
WHEN RECORDED, MAX +Tip: 19PA 2;
City Clerk's Office
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
FOR THE BENEFIT OF THE
CITY OF PALM DESERT
- NO FEE -
6103 OF THE GOVT. CODE
1 C E
A
DOC ## 2005-0923097
is 11/07/2005 08:00A Fee:NC
Page 1 of 32
Recorded in Official Records
County of Riverside
Larry W. Ward
Assessor, County Clerk & Recorder
1111111111111111111111111111111111111111111111111111111
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RE-RECORDING
Palm Desert County Club Development Agreement
between
The City of Palm Desert
and
PDCC Development, LLC
and
Dahoon Investment Company, Inc.
(Title of Document)
To Include a Certified Copy of Ordinance No. 1068
to M
TC
ORDINANCE NO. 1068
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING A DEVELOPMENT
AGREEMENT WHICH WILL PROVIDE FOR AMONG OTHER
MATTERS MODIFIED DEVELOPMENT STANDARDS AND
PROVISIONS REQUIRING THAT GOLF COURSE IMPROVEMENTS
BE CARRIED OUT IN A TIMELY MANNER.
CASE NO. DA 04-01 AS IT RELATES TO CASE NOS. C/Z 04-01 TT 31836
AND PP 04-01
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the
16th day of March, 2004, hold a duly noticed public hearing to consider the request of PDCC
DEVELOPMENT LLC; and
WHEREAS, the Planning Commission by its Resolution No. 2255 has recommended
approval of Case No. DA 04-01; and
WHEREAS, at said public hearing, said City Council heard and considered all testimony
and arguments of all interested persons.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm Desert,
California, as follows:
That the above recitations are true and correct and constitute the findings of the
City Council in this case.
2. That Development Agreement 04-01, Exhibit "A" attached, is hereby approved.
3. The City Clerk of the City of Palm Desert, California, is hereby directed to
publish this ordinance in the Desert Sun, a newspaper of general circulation in
the city of Palm Desert, California, and shall be in full force and effect thirty (30)
days after its adoption.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City
Council, held on this 8th day of July , 2004, by the following vote, to wit:
AYES: BENSON, CRITES, FERGUSON, KELLY, SPIEGEL
NOES:
NONE
ABSENT:
NONE
ABSTAIN:
NONE
ATTEST-
SS'
RACHELLE D. KLA SSEN, City Clerk
City of Palm Desert, California
ROBERT A. SPIEGEL, Ma Vr
EACH DOCUMENT TO WHICH THIS CERTIFICATE 18
ATTACHED. IS CERTIFIED TO BE A FULL, TRUE AND
CORRECT COPY OF THE ORIGINAL ON FILE AND ON
RECORD IN MY OFFICE.
WHEN RECORDED RETURN TO:
The City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: City Manager
27383 (SI
DOG a 20OS-0700947
09/21/2005 08:00A Fee:NC
Page i of 30
Recorded in official Records
County of Riverside
Larry W. Ward
Assessor, County Clerk & Recorder
I 111111111111111111111111111111111111111111111111111
PALM DESERT COUNTRY CLUB
DEVELOPMENT AGREEMENT
between
THE CITY OF PALM DESERT
a California charter city
and
PDCC DEVELOPMENT, LLC
a California limited liability company
and
DAHOON INVESTMENT COMPANY, INC.
a California corporation
[Dated as of May_, 2004 for reference purposes only]
0; :C Wd 3
VO ., ~s_ a -,�C RECEIVED
G 3 A :,:. v OCT — 6 2005
RMPUBUCCV\231373. I
CITY OF PALM DESERT
CITY MANAGER
aL
PALM DESERT COUNTRY CLUB DEVELOPMENT AGREEMENT
This Palm Desert, Country Club Development Agreement ("Agreement") is.entered into
and effective on the date it is recorded with the Riverside County Recorder ("Effective Date") by
and between (i) the CITY OF PALM DESERT, a California charter city ("City"), and (ii) PDCC
DEVELOPMENT, LLC, a California limited liability company ("PDCC Development") and
DAHOON INVESTMENT COMPANY, INC., a California corporation, ("Owner")
RECITALS
WHEREAS, to strengthen the public planning process, encourage private participation in
comprehensive planning and reduce the economic risk of development, the Legislature of the
State of California adopted Section 65864 et seq. of the Government Code authorizing any city,
county or city and county to enter into a development agreement with an applicant for a
development project, establishing certain development rights in the property which is the subject
of the development project application. ("Development Agreement Law"); and
WHEREAS, City has adopted an ordinance and regulations establishing procedures and
requirements for the approval of development agreements, pursuant to California Government
Code Section 65865 ("Development Agreement Procedures"); and
WHEREAS, Owner owns certain real property ("Property") owned in fee by Owner and
legally described in the attached Exhibit "A"; and
WHEREAS, PDCC Development, the majority of which is owned by Owner, owns the
rights to develop certain portions of the Property as a residential subdivision accompanied with
improvements to the existing golf courses; and
WHEREAS, PDCC Development and Owner have requested City to enter into a
development agreement for the development of the Property; and
WHEREAS, Owner and PDCC Development propose to develop the Property as a
residential subdivision accompanied with improvements to the existing golf courses ("Project");
and
WHEREAS, by electing to enter into this Agreement, City shall bind future City Councils
of City by the obligations specified herein, and limit the future exercise of certain governmental
and proprietary powers of City; and
WHEREAS, the terms and conditions of this Agreement have undergone extensive
review by City and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the City and the public health, safety and
welfare will be served by entering into this Agreement; and
WHEREAS, City has found that the provisions of this Agreement and its purposes are
consistent with the objectives, policies, and general land uses and programs specified in City's
General Plan; and
WHEREAS, all actions taken and approvals given by City have been duly taken or
approved in accordance with all applicable legal requirements for notice, public hearings,
findings, votes and other procedural matters in accordance with the Development Agreement
Law and Development Agreement Procedures; and
WHEREAS, all actions taken by the City have been duly taken in accordance with all
applicable legal requirements, including the California Environmental Quality Act (Public
Resources Code Section 21000, et seq.) ("CEQA"); and
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, City and Owner (each herein sometimes called a "Party" and
jointly the "Parties") do hereby agree as follows:
ARTICLE 1
GENERAL PROVISIONS
1.1 Binding Effect of Agreement. The Property is hereby made subject to
this Agreement.
1.2 Ownership of Property. Owner represents, covenants and warrants that
it is the owner of fee simple title to the Property.
1.3 Term. The term ("Term") of this Agreement shall commence on the
Effective Date and shall continue for a period of seven (7) years thereafter unless this Term is
modified or extended pursuant to the terms of this Agreement. The Zoning Modifications
(Exhibit "B") shall survive the termination of this Agreement for residential lots on which
certificates of occupancy have been issued prior to such termination.
1.4 Assignment, Sale and Transfer of Interest in the Property and this
Agreement. Owner shall have the right to assign, sell or transfer the Property in whole or in
part at any time during the term of this Agreement; provided, however, that any such
assignment, sale or transfer shall include the assignment and assumption of the rights, duties
and obligations arising under or from this Agreement. No sale, transfer or assignment of any
right or interest under this Agreement shall be made unless made together with the sale,
transfer or assignment of all or a part of the Property.
1.5 Amendment or Cancellation of Agreement. Except as otherwise
provided herein, this Agreement may be amended or canceled in whole or in part only by written
consent of all parties in the manner provided for in California Government Code Section 65868;
provided, however, City's Director of Community Development may, in his/her sole discretion,
make and approve minor technical, non -substantive modifications to this Agreement as
requested by Owner.
1.6 Termination. This Agreement shall be deemed automatically terminated
and of no further effect upon the occurrence of any of the following events:
1.6.1 Expiration of the Term of this Agreement as set forth in Section 1.3.
1.6.2 Entry of a final judgment setting aside, voiding or annulling the adoption
of the ordinance adopting this Agreement.
1.6.3 The adoption of a referendum measure pursuant to California
Government Code Section 65867.5, overriding or repealing the ordinance adopting this
Agreement.
Termination of this Agreement shall not constitute termination of any Development
Approvals (hereinafter defined) granted for the Project prior to such termination. Upon the
termination of this Agreement, no party shall have any further right or obligation hereunder,
except with respect to: (i) any obligation to have been performed prior to such termination, (ii)
any default in the performance of the provisions of this Agreement which occurred prior to such
termination, or (iii) any obligations which are specifically set forth herein as surviving the
termination of this Agreement.
1.7 Notices.
(a) As used in this Agreement, "notice" includes, but is not limited to, the
communication of notice, request, demand, approval, statement, report, acceptance, consent,
waiver, appointment or other communication required or permitted hereunder.
(b) All notices shall be in writing and shall be considered given either: (i)
when delivered in person to the recipient named below; or (ii) on the date of delivery shown on
the return receipt, after deposit in the United States mail in a sealed envelope as either
registered or certified mail with return receipt requested, and postage and postal charges
prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in
the records of the telegraph company after transmission by telegraph to the recipient named
below; or (iv) on the date of delivery by facsimile transmission to the recipient named below. All
notices shall be addressed as follows:
If to City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: City Manager and City Attorney
Telephone: (760) 346-0611
Facsimile: (760) 340-0574
With a copy to: Best Best & Krieger LLP
74-760 Highway 111, Suite 200
Indian Wells, California 92210
Attention: City Attorney for City of Palm Desert
Telephone: (760) 568-2611
Facsimile: (760) 340-6698
If to Owner or
PDCC Development: Dahoon Investment Company, Inc.
77-200 California Drive
Palm Desert, CA 92211
Telephone: 626.643.7516
With a copy to: Sullivan, Hill, Lewin, Rez & Engel
550 West C Street, Suite 1500
San Diego, CA 92101
Attn: Madeline Clark Cahill
Telephone: (619) 233-4100
Facsimile: (619) 231-4372
(c) Any Party may, by notice given at any time, require subsequent notices to
be given to another person or entity, whether a party or an officer or representative of a party, or
to a different address, or both. Notices given before actual receipt of notice of change shall not
be invalidated by the change.
ARTICLE 2
DEVELOPMENT OF THE PROPERTY
2.1 Development Approvals. For the purpose of this Agreement, the term
"Development Approvals" means the following entitlements issued or approved by City for
development and/or use of the Project:
(a) ZOA 04-01
(b) TT 31836;
(c) PP 04-01
(d) Zoning Modifications (Exhibit "B")
2.2 In order to conform the residential portion development of the Project to
the development standards that were implemented in developing the existing residential
developments of Palm Desert Country Club, certain modifications to the Palm Desert zoning
standards with respect to lot size and set backs need to be implemented. These modifications
("Zoning Modifications") are listed on Exhibit "B", and are approved only for the Project.
2.3 As part of the Project, and in consideration for the Development
Approvals, including the Zoning Modifications, Owner and PDCC Development have committed
to certain "Club House and Golf Course Improvements" to be developed in two phases in the
total estimated amount up to $6.8 million. The Club House and Golf Course Improvements are
detailed on Exhibit "C" with a specific phasing plan contained in Exhibit "D", dividing such
improvements into "Phase I" and "Phase 11", all as is more particularly described on attached
Exhibit "D". Owner's and PDCC Development's performance and maintenance of the Club
House and Golf Course Improvements shall be the subject of separate improvement and
maintenance agreements, Owner's and PDCC Development's execution and performance of
which are a condition of the continued validity of this Agreement. The final tract map for lots 1
through 54 shall not be approved by the City and recorded until all of the Phase I Improvements
are substantially completed and approved by the City of Palm Desert. The final tract maps for
the remaining lots shall not be approved by the City and recorded until either (a) all of the Phase
II Improvements are substantially completed and approved by the City of Palm Desert; or (b) in
the City's reasonable discretion, Owner and PDCC Development post a bond for the benefit of
the City equal to one hundred twenty-five percent (125%) of the costs necessary to complete
the Phase 11 Improvements, as such cost amount is evidenced by a certified statement from
Owner and PDCC Development to the City ("Owner's Statement") detailing the cost of the
remaining the Phase II Improvements, based on the percentage of completion of the Phase II
Improvements as of the date the Owner's Statement is issued.
2.4 Rights to Develop. Subject to the terms, conditions, and covenants of
this Agreement, Owner's right to develop the Project in accordance with the Development
Approvals (and subject to the Conditions of Approval) shall be deemed vested upon execution
of (1) this Agreement; (2) the improvement agreement referenced in Section 2.3; and (3) the
maintenance agreement referenced in Section 2.3 in a form reasonably acceptable to the City
that guarantees the long term maintenance of the Club House and Golf Course Improvements
which vesting shall expire upon the earlier of the following occurrences: (a) termination of this
Agreement; (b) an uncured material default by Owner of this Agreement; or (c) as to a particular
phase, parcel, or lot comprising a portion of the Project, the earlier of the final approved City
inspection of the completed development on such phase, parcel, or lot, or the issuance by the
City of a certificate of occupancy for such phase, parcel, or lot. Except for the expiration set
forth in clause (a) of the preceding sentence, the expiration of the vesting right set forth in the
preceding sentence shall not terminate the obligations of Owner under this Agreement. Except
as explicitly modified by this Agreement, the Project shall remain subject to the following, to the
same extent it would without this Agreement:
0) all ordinances, regulations, rules, laws, plans, policies, and guidelines of
the City and its City Council, Planning Commission, and all other City boards, commissions, and
committees existing on the Effective Date of this Agreement (collectively, the "Existing
Development Regulations");
(ii) all amendments or modifications to Existing Development Regulations
after the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans,
policies, and guidelines of the City and its City Council, Planning Commission, and all other City
boards, commissions, and committees enacted or adopted after the Effective Date of this
Agreement (collectively, "New Laws"), except such New Laws which would prevent or materially
impair Owner's ability to develop the Project in accordance with the Development Approvals,
unless such New Laws are (A) adopted by the City on a City wide -basis and applied to the Site
in a non-discriminatory manner, (B) required by a non -City governmental entity to be adopted by
or applied by the City (or, if adoption is optional, the failure to adopt or apply such non -City
governmental law or regulation would cause the City to sustain a loss of funds or loss of access
to funding or other resources), or (C) New Laws the City reserves the right to apply under this
Agreement
(iii) all subsequent development approvals and the conditions of approval
associated therewith, including but not limited to any further site development permits, tract
maps, and building permits;
(iv) the payment of all fees or exactions in the categories and in the amounts as
required at the time such fees are due and payable, which may be at the time of issuance of
building permits, or otherwise as specified by applicable law, as existing at the time such fees
and costs are due and payable; and
(v) the reservation or dedication of land for public purposes or payment of
fees in lieu thereof as required at the time such reservations or dedications or payments in lieu
are required under applicable law to be made or paid.
ENO
2.4.1 Additional Applicable Codes and Regulations. Notwithstanding any
other provision of this Agreement, the City also reserves the right to apply the following to the
development of the Project:
Building, electrical, mechanical, fire and similar building codes based upon uniform
codes adopted in, or incorporated by reference into, the Palm Desert Municipal Code, as
existing on the Effective Date of this Agreement or as may be enacted or amended thereafter,
applied to the Project in a nondiscriminatory manner.
In the event of fire or other casualty requiring construction of more than fifty (50%)
percent of any building previously constructed hereunder, nothing herein shall prevent the City
from applying to such reconstruction, all requirements of the City's Building, Electrical,
Mechanical, and similar building codes based upon uniform codes adopted in, or incorporated
by reference into, the Palm Desert Municipal Code, solely to the extent applicable to all
development projects in the City.
This Agreement shall not prevent the City from establishing any new City fees on a City-
wide basis and applied to the Project in a non-discriminatory manner, including new
development impact fees, or increasing any existing City fees, including existing development
impact fees, and to apply such new or increased fees to the Project or applicable portion thereof
where such new or increased fees may be charged.
2.4.2 Owner's Obligations. Conditions of Approval. The Owner shall comply
with the Conditions of Approval for the Development Approvals. Owner acknowledges that
additional conditions of approval beyond those set forth in Exhibit "F" may be applicable to the
Project if imposed in conjunction with future Project approvals. Failure to comply with the
Conditions of Approval shall be a material breach of this Agreement and grounds for its
termination.
2.4.3 Project Approvals Interdependent. All approvals required for the
Project which may be or have been granted, and all land use entitlements or approvals
generally which have been issued or will be issued, by the City with respect to the Project,
constitute interdependent actions and approvals by the City. If any material provision of this
Agreement or the application of any such provision of this Agreement to a particular situation is
held by a court of competent jurisdiction to be invalid or unenforceable, or if this Agreement
terminates prior to completion of the Project, then all Project Approvals are automatically
rescinded, and pursuant to Municipal Code section 25.37.110 the zoning of the Property shall
revert to the zoning which existed prior to the Project Approvals.
2.5 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 Development
Approvals, except that minor modifications to the Development Agreement, as determined by
the Director of Community Development to not be a substantial change in the proposed Project
or conditions of approval, can be approved by the Director of Community Development. In the
event Owner finds that a non -minor modification in the Development Approvals is necessary or
appropriate, Owner shall apply for a subsequent development approval to effectuate such
change and City shall process and act on such application except as otherwise provided by this
Agreement.
2.6 Modification or Suspension by State or Federal Law. In the event that state or
federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or
preclude compliance with one or more of the provisions of this Agreement, such provisions of
this Agreement shall be modified or suspended as may be necessary to comply with such state
or federal laws or regulations, provided, however, that this Agreement shall remain in full force
and effect to the extent it is not inconsistent with such laws or regulations and to the extent such
laws or regulations do not render such remaining provisions impractical to enforce.
2.7 Intent and Purpose. The parties acknowledge and agree that City is restricted in
its authority to limit its police power by contract and that the foregoing limitations, reservations
and exceptions are intended to reserve to City all of its police power which cannot be so limited.
This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to City
all such power and authority which cannot be restricted by contract.
The provisions of this Agreement and benefits to be received by City and Owner
hereunder are in the best interests of City and the health, safety, morals and welfare of its
taxpayers and residents and are in accordance with the public purposes set forth in federal,
state and local laws and regulations, including California Government Code Section 565865.
The parties hereby acknowledge that implementation of this Agreement and the resulting
development of the Property will result in substantial public benefits that justify City's decision to
execute this Agreement. These benefits include, but are not limited to, furtherance of the goals
and objectives of the City's General Plan and the City's Redevelopment Plan applicable to the
Property, and the strengthening of the City's land use and social structure by stimulating
economic activity and job creation within the City.
ARTICLE 3
REMEDIES
3.1 Remedies. Each of the parties hereto may pursue any remedy at law or equity
available for the breach of any provision of this Agreement, including, without limitation,
proceedings in order to sue for damages or claim any damages for any breach of this
Agreement or for any cause of action which arises out of this Agreement.
3.2 Specific Performance. The parties acknowledge that although money damages
are available to the parties for a breach of this Agreement, such money damages and other
remedies at law generally are inadequate and specific performance and other non -monetary
relief, including temporary and permanent injunctive relief, are particularly appropriate remedies
for the enforcement of this Agreement and should be available for the following reason: Owner
has invested significant time and resources and performed extensive planning and processing
of the Project in agreeing to the terms of this Agreement and will be investing even more
significant time and resources in reliance upon the terms of this Agreement, and it is difficult and
impracticable to determine the sum of money which would adequately compensate Owner for
such efforts; the parties acknowledge and agree that any injunctive relief may be ordered on an
expedited, priority basis.
ARTICLE 4
MISCELLANEOUS PROVISIONS
4.1 Recordation of Agreement. This Agreement and any amendment or
cancellation thereof shall be recorded with the Riverside County Recorder within the period
required by Government Code Section 65868.5.
4.2 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the parties with respect to the subject matter hereof, and there
are no oral or written representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein. No testimony or evidence
of any such representations, understandings or covenants shall be admissible in any
proceeding of any kind or nature to interpret or determine the terms or conditions of this
Agreement.
4.3 Severability. If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not rendered impractical to perform
taking into consideration the purposes of this Agreement.
4.4 Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of
California, without regard to conflicts of laws principles (if applicable). This Agreement shall be
construed as a whole according to its fair language and common meaning to achieve the
objectives and purposes of the parties hereto, and the rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed in interpreting
this Agreement, all parties having been represented by counsel in the negotiation and
preparation hereof.
4.5 Time of Essence. Time is of the essence in the performance of the provisions
of this Agreement as to which time is an element.
4.6 Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Agreement by the other party, or the failure by a party to exercise its rights
upon the default of the other party, shall not constitute a waiver of such party's right to insist and
demand strict compliance by the other party with the terms of this Agreement thereafter.
4.7 No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit of the parties and their successors and assigns. No other person
shall have any right of action based upon any provision of this Agreement.
4.8 Force Majeure. Neither party shall be deemed to be in default where failure or
delay in performance of any of its obligations under this Agreement is caused by floods,
earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor
difficulties beyond the party's control, (including the parry's employment force), government
regulations, court actions (such as restraining orders or injunctions), the other party's breach of
this Agreement, or other causes beyond the party's control.
Without limiting the generality of the foregoing, upon the initiation of any legal
proceeding by a third party to challenge the modifications to the Existing Development
Approvals as described in this Agreement or to challenge any action taken by City in connection
therewith, the Term of this Agreement shall automatically be extended to the longer of the
period set forth in Section 1.3 or until final resolution of all such proceedings, including any
appeals filed in connection therewith.
4.9 Mutual Covenants. The covenants contained herein are mutual covenants and
also constitute conditions to the concurrent or subsequent performance by the party benefited
thereby of the covenants to be performed hereunder by such benefited party.
4.10 Successors in Interest. The burdens of this Agreement shall be binding upon,
and the benefits of this Agreement shall inure to, all successors in interest to the parties to this
Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and
constitute covenants running with the land. Each covenant to do or refrain from doing some act
hereunder with regard to development of the Property: (a) is for the benefit of and is a burden
upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c)
is binding upon each party and each successor in interest during Ownership of the Property or
any portion thereof.
4.11 Counterparts. This Agreement may be executed by the parties in counterparts,
which counterparts shall be construed together and have the same effect as if all of the parties
had executed the same instrument.
4.12 Project as a Private Undertaking. It is specifically understood and agreed by
and between the parties hereto that the development of the Project is a private development,
that neither party is acting as the agent of the other in any respect hereunder, and that each
party is an independent contracting entity with respect to the terms, covenants and conditions
contained in this Agreement. No partnership, joint venture or other association of any kind is
formed by this Agreement. The only relationship between City and Owner is that of a
government entity regulating the development of private property and the owner of such
property.
4.13 Further Actions and Instruments. Each of the parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the conditions of this
Agreement. Upon the request of either party at any time, the other party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms
of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to
evidence or consummate the transactions contemplated by this Agreement. The provisions of
this section shall not require the taking of any actions which are prohibited by law or, except as
expressly set forth in this Agreement, impair the lawful discretion of City as to those matters to
which the law imparts discretion to City.
4.14 Attorneys' Fees. If legal action is brought by either party against the other for
breach of this Agreement, or to compel performance under this Agreement, the prevailing party
shall be entitled to an award of reasonable attorneys' fees and litigation costs in addition to all
other relief to which it may be entitled.
4.15 Subsequent Amendment to Authorizing Statute. This Agreement has been
entered into in reliance upon the provisions of the Development Agreement Law in effect as of
the Effective Date. Accordingly, to the extent the subsequent amendment to the Development
Agreement Law would affect the provisions of this Agreement, such amendment shall not be
applicable to the Agreement unless necessary for this Agreement to be enforceable.
CITY:
CITY OF PALM DESERT
a California charter city
By:
- lZa��2�
Bu ord A. Crites
Its: Mayor
ATTEST,~
Bye
APPROVEb-A
BEST BEST &
M
, City Attorney
[Remaining Signatures on Following Page]
SIGNATURE PAGE TO
PALM DESERT COUNTRY CLUB DEVELOPMENT AGREEMENT
OWNER:
DAHOON INVESTMENT COMPANY, INC.
a California corporation
By..
Its: C
M
Its:
PDCC DEVELOPMENT:
PDCC DEVELOPMENT, LLC
a California limited liability mpany
By:
Its:
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
On 2005, before me, the undersigned notary public, personally appeared
:SqMA personally known to me OR proved to me on the basis of satisfactory
evi ence td be the persorX w ose nam is re subscribed to th 'thin instrument and
acknowledged to me that a he/they executed the same in Per/the' authorized
capac!Wes and that b�i 7her their signature on the instrument the perso or the entity
upon behalf of which the persoV4*j,,
acted, exebuted the instrument.
WIT W4S my hand and officya2
ature of Notary Public
ANNE E. DAVIS
Commksilon # 1423752
NO��
*,My Conn. Expka Jun 12, 2W7
EXHIBIT "A" TO
PALM DESERT COUNTRY CLUB DEVELOPMENT AGREEMENT
Legal Description of Property
[Attached behind this page]
EXHIBIT "A"
PARCEL 1:
LOT A OF TRACT 3860 AS SHOWN BY MAP ON FILE IN BOOK 60, PAGES 55 THROUGH 57
INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
PARCEL 2:
LOTS A AND B OF TRACT 4079 AS SHOWN BY MAP ON FILE IN BOOK 66, PAGES 67
THROUGH 69 INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
PARCEL 3:
LOTS 72, 73, 261 AND 405 OF TRACT 2137, A.S SHOWN BY MAP ON FILE IN BOOK 41,
PAGES 29 THROUGH 36 INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
PARCEL 4:
LOT 199 OF TRACT 2137, AS SHOWN BY MAP Or' FILE IN BOOK 41, PAGES 29 THROUGH 36
INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF LOT 262 OF SAID TRACT 2137;
THENCE NORTH 0° 8' 10" EAST ALONG THE WEST LINE OF SAID LOT 262, 70 FEET TO THE
MOST NORTHWESTERLY CORNER THEREOF;
THENCE SOUTH 450 0' 31" WEST, 40 FEET;
THENCE SOUTH 33° 59' EAST, 50.31 FEET, TO THE POINT OF BEGINNING.
PARCEL 5:
LOT 453 OF TRACT 2137, AS SHOWN BY MAP ON FILE IN BOOK 41, PAGES 29 THROUGH
36, INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORDER OF LOT 454 OF SAID TRACT 2137;
THENCE ALONG THE EASTERLY LINE OF SAID LOT 454, SOUTH 360 21' 15" EAST, 101.37
FEET TO THE SOUTHEASTERLY CORNER OF SAID LOT 454;
THENCE NORTH 430 10' 31" EAST, A DISTANCE OF 2 FEET TO A POINT•;
THENCE NORTHWESTERLY IN A DIRECT LINE, TO THE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF LOT 392, AS SHOWN BY SAID MAP;
THENCE NORTH 800 30' 141' EAST, 102.80 FEET ON THE SOUTHERLY LINE OF SAID LOT TO
THE SOUTHEAST CORNER THEREOF;
THENCE SOUTH 330 04' 58" WEST, 15 FEET ON THE SOUTHWESTERLY EXTENSION OF THE
SOlT!'HEASTERLY . LINE OF SAID LOT;
THENCE NORTHWESTERLY, IN A DIRECT LINE, T-0 THE POINT OF BEGINNING.
PARCEL 6:
LOTS 3, 5, 6, 7 AND 466 OF TRACT 2283 AS SHOWN BY MAP ON FILE IN BOOK 42,
j PAGES 82 THROUGH 89 INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
PARCEL 7:
LOT 2 OF TRACT 2283, AS SHOWN BY MAP ON FILE IN BOOK 42, PAGES 82 THROUGH 89
INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF LOT 287, SHOWN BY MAP ON SAID TRACT;
THENCE NORTH 860 49' 53" EAST, 30 FEET ON THE EASTERLY EXTENSION OF THE NORTH
LINE OF SAID LOT 287;
THENCE SOUTH 80 02' 43" WEST, 62.91 FEET TO THE SOUTHEAST CORNER OF SAID LOT
287;
THENCE NORTH 320 35' 25" WEST, 71.96 FEET ON THE NORTHEASTERLY LINE OF SAID
LOT287, TO THE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 2;
THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 2, NORTH 870 27' 23" EAST, 366.59
FEET;
THENCE NORTH 280 37' 50" WEST, 80.28 FEET;
THENCE NORTH 810 20' 50" WEST, 139.78 FEET;
THENCE SOUTH 670 45' 56" WEST, 161.33 FEET;
THENCE SOUTH 400 32' 05" WEST, 62.00 FEET TO THE POINT OF BEGINNING.
PARCEL 8:
LOT 4 OF TRACT 2283, AS SHOWN BY MAP ON FILE IN BOOK 42, PAGES 82 THROUGH 89
INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF LOT 246 OF SAID TRACT 2283;
THENCE ALONG THE NORTHERLY LINE OF SAID L:IT 246, NORTH 400 36' 15" WEST, A
DISTANCE OF 92.20 FEET TO THE NORTHWESTERLY CORNER OF SAID LOT 246;
THENCE SOUTH 830 18' 30" EAST, A DISTANCE OF 60.41 FEET TO THE NORTHWESTERLY
CORNER OF LOT 248 OF SAID TRACT NO. 2283;
THENCE ALONG THE WESTERLY LINE OF SAID LOI' 248, SOUTH 00 00' 10" EAST, A
DISTANCE OF 62.96 FEET TO THE POINT OF BEGINNING.
PARCEL 9:
LOTS H, I, J AND K. OF TRACT 4871, AS SHOWN BY MAP ON FILE IN BOOK 77, PAGES
16 THROUGH 18 INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
EXCEPTING THAT PORTION OF LOT J OF TRACT 4871, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF LOT 166 OF SAID TRACT 4871;
THENCE SOUTH 430 27' EAST, 74.20 FEET TO AN INTERSECTION WITH A NORTHERLY
PROLONGATION OF THE EASTERLY LINE OF SAID LOT 166;
THENCE SOUTH 240 09' 34" WEST, 9.89 FEET TO THE MOST EASTERLY CORNER OF SAID
LOT 166,
THENCE NORTH 360 20' 44" WEST, 78.57 FEET TO THE POINT OF BEGINNING.
' ORDINANCE NO. 1068
EXHIBIT "B" TO
PALM DESERT COUNTRY CLUB DEVELOPMENT AGREEMENT
ZONING MODIFICATIONS
Exhibit "B"
DEVELOPMENT STANDARDS
CODE
EXISTING
REQUIREMENTS
PDCC DEV.
PROPOSED
R-1 9,0001 PR
STANDARDS
R-1 9,000 LOTS
Front Setback
207as approved
14-20 feet
10-15 feet
Rear Setback
15'/as approved
10-20 feet
11-22 feet
Side Setbacks
14' total, 5' minimum/ 5' + 3'
5' + 5'
as approved
.
Max. Building Height
18724'
13-18 feet
18,
Min. Lot Area
9,000/or as approved 6,000
9,000 sq.ft.gross/
5,000 sq.ft.net
Max. Site Coverage
35%/40%
---
20-37%
ORDINANCE NO. 1068
PROPOSED
PR-6 LOTS
10-15 feet
5-20 feet
5' + 5'
18,
4,691 sq.ft. .
38.7%
I
ram.
ORDINANCE NO. 1068
EXHIBIT "C' TO
PALM bESERT COUNTRY CLUB DEVELOPMENT AGREEMENT
Description of Project and Existing Development Approvals — Golf Course
Improvements
[Attached behind this page] -
ORDINANCE NO..1068
EXHIBIT C
PALM DESERT COUNTRY CLUB
GOLF COURSE RENOVATION SUMMARY
New Automated Irrigation System throughout.27 Holes
• Relocated Green Complexes as necessary to accommodate new
residential development
• New Practice Putting Green at Clubhouse
• New Short Game Area near Clubhouse
• Reshape Fairway Landing Areas as necessary
• New Water Features (Water falls) — Holes 9 & 18
• Rebuild Existing Lakes — Holes 1, 7 and 13
• Remodel Bunkering throughout 27 Holes
• Relocate New Tee Complexes as necessary to accommodate new
residential development
• New Concrete Cart Trails as necessary and appropriate, throughout 27 holes
• Tree Beautification Program/Tree Removal Sind Relocation of Palm Trees
• Relocate Golf Course maintenance facility to near #14 Tee boxes adjacent to City Park
CLUB HOUSE REMODEL SUMMARY
• Remodel interior of Clubhouse with overall reconfiguration within existing Clubhouse of
the following primary Clubhouse components:
■ Golf Shop
• Administrative Offices
• Kitchen
• Bar/Grill
• Toilets
• Men's Lockers (approximately 100)
• Ladies Lockers (approximately 50)
• Members Only;Room (expected Occupancy of 50-75)
• Utilities, HVAC
• Entry
• Upgrade Clubhouse Exterior
■ Paint
■ Enhanced Clubhouse entrance
• New Water Feature at entrance
• Relocate Cart Storage Barn and incorporate with other Clubhouse and Golf
Course Activities
i
ORDINANCE NO. 1068
EXHIBIT D
CLUB HOUSE AND GOLF COURSE IMPROVEMENTS
PHASE I IMPROVEMENTS
A.
Club House remodel, including exterior, interior, landscaping and parking lot
B.
Relocate cart storage barn
C.
Improve 9-hole executive golf course
D.
Initial improvements to the irrigation system
This phase of improvements will cost approximately $3,600,000.
PHASE II IMPROVEMENTS
A.
Improve 18-hole championship golf course
B.
Complete all irrigation improvements
C.
Relocate maintenance facility
This phase of improvements will cost approximately $3,223,000.
Total Golf Course and Club House Improvements to cost up to $6,823,000 million.
ORDINANCE NO. 1068
EXHIBIT "E" TO
PALM DESERT COUNTRY CLUB DEVELOPMENT AGREEMENT
Second Phase Residences
(Depiction of Lots)
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ORDINANCE NO. 1068
EXHIBIT "F" TO
PALM DESERT COUNTRY CLUB DEVELOPMENT AGREEMENT
CONDITIONS OF APPROVAL
[Attached behind this page]
A—�_ " ORDINANCE NO. 1068
'RESOLUTION NO. 04-42 i
Exhibit "F"
. CONDITIONS OF APPROVAL
CASE NOS. TT 31836 AND PP 04-01
Department of Community Development:
1. The development of the property shall conform substantially with exhibits on file
with the Department of Community Development, as modified by the following
conditions.
2. Construction of a portion of said project shall commence within one year from
the date of final approval unless an extension of time is granted; otherwise said
approval shall become null, void and of no effect whatsoever.
3. The development of the property described herein and as defined in the
development agreement shall be subject to the restrictions and limitations set
forth herein which are in addition to state., -.and federal statutes now in force, or
which hereafter may be in force.
4. Prior to issuance of a building permit for construction of any use contemplated
by this approval, the applicant shall first obtain permits and/or clearance from
the following agencies:
Coachella Valley Water District
Palm Desert Architectural Commission
City Fire Marshal
Public Works Department
Evidence of said permit or clearance from the above agencies shall be presented
to the Department of Building and Safety at the time of issuance of a building
permit for the use contemplated herewith.
5. Access to trash/service .areas shall be placed so as not to conflict with parking
areas. Said placement shall be approved by applicable trash company and
Department of Community Development and shall include a recycling program.
6. Project is subject to Art in Public Places program per Palm. Desert Municipal
Code Chapter 4.10. Method of co'mplience shall be established prior to
completion of the Architectural Review Commission process..
7. Applicant agrees to maintain the landscaping required to be installed pursuant
to these conditions. Applicant will enter into an agreement to maintain said
landscaping for the life of the project, which agreement shall be notarized and
tl
RESOLUTION NO. 04-4�_
ORDINANCE NO. 1068
which agreement shall be recorded. It is the specific intent of the parties that
this condition and agreement run with the land and bind successors and
assigns. The final landscape plan shall include a long-term maintenance program
specifying among other matters appropriate watering times, fertilization and
pruning for various times of the year for the specific materials to be planted, as
well as periodic replacement of materials. All to be consistent with the Property
Maintenance Ordinance (Ordinance No. 801) and the approved landscape plan.
The maintenance program shall be reviewed annually.
8. That the project shall operate consistent with the provisions of a development
agreement which must be adopted by the City Council, otherwise this approval
shall be null and void.
9. That the applicant shall file necessary map(s) to eliminate property line
encroachments and setback deficiencies on existing residences pursuant to the
letter dated March 10, 2004 from Randy Case.
10. That all recommended traffic mitigation measures contained in the traffic analysis
prepared by George Dunn Associates shall be conditions of this application.
11. All onsite utilities shall be underground.
12. That all units shall comply with development standards prescribed in the R-1 9,000
and PR-6 zone categories except as modified pursuant to Development Agreement
04-01.
13. The project shall be subject to all applicable fees at time of issuance of permits
including, but not limited to, TUMF and School Mitigation fees.
14. The applicant/property owner agrees to defend (with counsel chosen by the City),
indemnify, and hold harmless the City of Palm Desert, its agents, officers and
employees from any claim, action or proceeding to attack, set aside, void, or annul
the approval of this application and any other challenge pertaining to this project.
This indemnification shall include any award of attorney fees.
The City shall promptly notify the applicant of any claim, action or proceeding and
shall cooperate fully in the defense.
15. That the applicant shall provide a tree removal plan to be approved by the City
Arborist. Said tree removal plan shall provide an assessment of the condition of
trees by a certified arborist and a tree protection plan for remaining trees.
0
.Oak ..t
' RESOLUTION NO. 04-42' rr ORDINANCE NO. 1068
16. That any newly cleated lots not presently within the dome Owner Association area
shall be annexed into the Home Owner Association area.
17. That routine movement of golf course maintenance equipment in and out of the new
golf course maintenance facility shall be via a path system to be established
between the 13th and 14th fairways.
18. That Lot 71 be relocated 20 feet to the north.
19. That the developer shall provide appropriate fencing in the rear yard of dwelling at
77-160 Indiana.
20. That the access driveway to the maintenance facility. be expanded by ten feet to the
east into the park and that any excess land not needed for the driveway be offered
to the property owner to the west of the driveway.
21. That pursuant to the noise mitigation measures identified in the acoustical analysis
prepared by Gordon Bricken & Associates that the developer shall provide an eight -
foot high wall along the west side of the access driveway and that trash trucks
serving the facility shall be limited to the hours of 7:0.0 a.m. until 5:00 p.m.
22. That four window areas in the dwelling west of the access driveway, 77-880
California, be dual glazed.
23. Should a Conservation Easement come to exist, the City shall have the right to
provide input on the organization that will become the holder of said Easement.
24. The golf course plans, as per a letter from Mr. Case, would go before the City's
Landscape Beautification Committee for its input and approval at the appropriate
stages of the project.
Department of Public Works:
1. Drainage fees, in accordance with Section 26.49 of the Palm Desert Municipal Code
and Palm Desert Ordinance Number 653, shall be paid prior to recordation of final
map.
2. Storm drain/retention area design and construction shall be contingent upon a
drainage study prepared by a registered civil engineer that is reviewed and
approved by the Department of Public Works prior to start of construction. Project
is required to retain onsite a 25 year storm. The maintenance of the retention
area(s) shall be by the golf course owner/developer.
yu
ORDINANCE NO. 1068- t
RESOLUTiON NO. 04-42
3. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17
and 79-55, shall be. paid prior to recordation of final map.
4. Full public improvements, as required by Sections 26.40 and 26.44 of the Palm
Desert Municipal Code, shall be installed in accordance with applicable City
standards.
• Standard 6' curbside sidewalk shall be installed in areas being developed
where no sidewalk currently exists, and shall extend across the fairways
including the following locations.
• Along the south side of New York Avenue east to California in area #'s 2 &
8.
• On both sides of Tennessee Avenue at the project entrance in area #1.
• Along the west side of Elkhorn Trail in area #6.
• Along the north side of California Avenue between Virginia Avenue and
Tennessee Avenue.
5. As required under Palm Desert Municipal Code Section 26.28, and in
accordance with Sections 26.40 and 26.44, complete improvement plans and
specifications shall be submitted to the Director of Public Works for checking
and approval before construction of any improvements is commenced. Offsite
improvement plans shall be reviewed and approved by the Director of Public
Works and a surety posted to guarantee the installation of required offsite
improvements prior to recordation of the final map. Such offsite improvements �
shall include, but not be limited to, curb and gutter, asphalt paving and concrete
sidewalk in an appropriate size and configuration. "As -built" plans shall be submitted
to, and approved by, the Director of Public Works prior to the acceptance of the,
improvements by the City.
6. improvement plans for utility systems shall be approved by the respective provider
or service districts with "as -built" plans submitted to the Department of Public Works
prior to project final. Utility plans shall be submitted to the Public Works Department
for improvements in the public'right-of-way prior to issuance of any permits.
7. All public improvements shall be inspected by the Department of Public works and
a standard inspection fee shall be paid prior to issuance of grading permits.
8. Landscaping maintenance of any common areas shall be provided by the
homeowners association. Landscape treatment shall be water efficient in nature and
shall be in accordance with the City of Palm Desert landscape design standards.
Applicant shall be responsible for executing a declaration of Conditions, covenants
and Restrictions, which declaration shall be approved by the City of Palm Desert
and recorded with the County Recorder. The declaration shall specify: a) the
6
RESOLUTION NO. 04-42'
ORDINANCE NO. 1068
applicant shall oversee the formation of a property owners association; b) the
property owners association shall be formed prior to the recordation of the map; and
c) the aforementioned landscaping shall be the responsibility of the property owners
association. Landscaping plans shall be submitted for review simultaneously with
grading plans.
9. In accordance with Palm Desert Municipal code Section 26.44, complete grading
plans and specifications shall be submitted to the Director of Public Works for
checking and approval prior to issuance of any permits.
10. Traffic safety striping shall be installed to the specifications of the Director of Public
Works. A traffic control plan must be submitted to, and approved by, the Director of
Public Works prior to the placement of any pavement markings.
11. Full improvements of interior streets based on residential street standards in
accordance with Section 26.40 of the Palm Desert Municipal Code shall be
provided: 'Applicant shall be responsible for acquiring all necessary easements for
off -site roadway improvements.
12. Complete tract map shall be submitted as required by ordinance to the Director of
Public Works for checking and approval prior to the issuance of any permits.
13. Any and all offsite improvements shall be preceded by the approval of plans and the
issuance of valid encroachment permits by the Department of Public Works.
14. A complete preliminary soils investigation, conducted by a registered soils engineer,
shall be submitted to, and approved by, the Department of Public Works prior to the
issuance of a grading permit.
15. Pad elevations, as shown, on the tentative map, are subject to review and
modification in accordance with Chapter 26 of the Palm Desert Municipal Code.
16. Applicant shall comply- with provisions of Palm Desert Municipal Code Section
24.12, Fugitive Dust Control as well as Section 24.20, Storm Water Management
and Discharge Control.
17. Prior to the start of construction, the applicant shall submit satisfactory evidence to
the Director of Public Works of intended compliance with the National Pollutant
Discharge Elimination System (NPDES) General Construction Permit for storm
water discharges associated with construction. Developer must contact Riverside
County Flood Control District for informational materials.
7
RESOLUTION NO. 04-4 ORDINANCE NO. 1068
18. Lot line on Lot,84 shall be adjusted prior to grading permit issuance to correct the
encroachment of adjoining residence.
Riverside Count' Fire Department:
1. With respect to the conditions of approval regarding the above referenced plan
check, Fire Department recommends the following fire protection measures be
provided in accordance with City Municipal Codes, appropriate NFPA Standards,
CFC, and CBC and/or recognized fire protection standards.
The Fire Department is required to set a minimum fire flow for the remodel or
construction of all commercial buildings per UFC article 87.
2. A fire flow of 1500 gpm for a 1-hour duration at 20 psi residual operating
pressure must be available before any combustible material is placed on the job
site.
3. Provide, or show there exists, a water system capable of providing a gpm flow
of 1,500 gpm for single family dwellings.
4. The required fire flow shall be available from a wet barrel Super Hydrant(s)
(4"x2-1 /2"x2-1 /2"), located not less than 25' nor more than 200' from any
portion of a single family dwelling measured via vehicular travelway.
5. Water plans must be approved by the Fire Marshal and include verification that
the water system will produce the required fire flow.
6. All buildings shall be accessible by an all-weather roadway extending to within
150' of .all portions of the exterior walls of the first story. The roadway shall
be not -less than 24' of unobstructed width and 13'6" of vertical clearance.
Where parallel parking is required on both sides of the street, the roadway must
be 36' wide and 32' wide with parking on one side. Dead-end roads in excess
of 150' shall be provided with a minimum 45' radius turn -around 56' in
industrial developments.
7. Whenever access into private property is controlled through use of gates,
barriers or other means, provisions shall be made to install a "Knox Box" key
over -ride system to allow for emergency vehicle access. Minimum gate width
shall be 16" with a minimum vertical clearance of 13'6".
8. A second access is required. This can be accomplished by two main access
points from a main roadway or an emergency gate from an adjoining
development. {
i
8
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: Carlos L. Ortega
Tele: (760)346-0611
Fax: (760) 340-0574
EXEMPT FROM RECORDING FEE PER
GOVERNMENT CODE SECTION 27383
OOC N 2005-0780J48
09/21/2005 08:00A Fee:NC
Page 1 of 24
Recorded in Official Records
County of Riverside
Larry W. Ward
Assessor, County Clerk & Recorder
1111111111111111111111111111111111111111111111111111111
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OPERATION AND MAINTENANCE AGREEMENT L
by and between
CITY OF PALM DESERT
a California municipal corporation
and
DAHOON INVESTMENT COMPANY, INC.
a California corporation
OS :6 Hd 9— I.JJs'lil
RECEIVED
143
I ab ti OCT — 6 2005
CITY OF PALM DESERT
CITY MANAGER
THIS OPERATION AND MAINTENANCE AGREEMENT ("Agreement") is dated as of
August 31, 2005, by and between the City of Palm Desert, a California municipal corporation
("City") and Dahoon Investment Company, Inc., a California corporation ("Owner"). The City
and Owner are sometimes referred to in this Agreement, each individually, as a "Party," or
collectively, as the "Parties." The City and Owner enter into this Agreement with reference to
the following recited facts (each a "Recital"):
RECITALS
A. Owner owns certain real property located at 77-200 California Road, in the City
of Palm Desert and commonly known as "Palm Desert Golf Course" ("Property"). The Property
is legally described in Exhibit "A-1" and depicted in Exhibit "A-2" attached to this Agreement and
incorporated into this Agreement by reference. The Property is improved with certain
improvements, including, but not limited to, an eighteen (18) hole golf course and a nine (9) hole
executive course (collectively "Golf Course"), an approximately ten thousand (10,000) square
foot clubhouse ("Clubhouse"), a storage area and maintenance yard ("Maintenance Yard") and
Parking Lot ("Parking Lot"). The Golf Course, Clubhouse, Maintenance Yard and Parking Lot
are all depicted in Exhibit "A-2" attached to this Agreement and incorporated into this Agreement
by reference.
B. Owner and PDCC Development LLC, a California limited liability company, have
entered into a Development Agreement with the City for the purpose of making certain
improvements to the Golf Course and Clubhouse and to develop parcels that were formerly part
of the Golf Course and other parcels surrounding the Property as 98 single family residences
(collectively "Project").
C. For so long as Owner operates a golf course on the Property, Owner agrees to
operate and maintain the Property according to the standards set forth in this Agreement, as
required under the Development Agreement.
NOW, THEREFORE, for good and valuable consideration and the mutual promises and
covenants of the Parties set forth in this Agreement the Owner and the City agree as follows:
ARTICLE 1
EFFECTIVE DATE
1.1 Effective Date of Agreement. This Agreement is dated as of August 31,
2005 for reference purposes only. This Agreement shall take effect on the date of the last of
the following to occur: (1) this Agreement is approved and executed by the authorized
representatives of Owner and delivered to City; and; (2) following delivery of this Agreement by
Owner, this Agreement is approved and executed by the City and delivered to Owner. Owner
and City acknowledge that Owner is improving the Clubhouse, the Golf Course, the Parking
Lot and the Maintenance Facility pursuant to the phased redevelopment/renovation plan set
forth in the Development Agreement ("collectively the "Property Improvements"). Accordingly,
Owner and City agree that the operative provisions regarding the maintenance of the Property
shall become effective only after Owner's completion of the Property Improvements.
ARTICLE 2
OPERATION AND USE OF PROPERTY
-2-
2.1 Operation and Use of Property By Owner. Owner intends to operate, or
cause to be operated, upon the Property, a semi -private golf course facility in accordance with
this Agreement in a prudent business manner consistent with the operations of an average
semi -private golf course facility allowing use by both members of the public and private
members, in the Palm Desert area, and consistent and in compliance with all applicable
provisions of federal, state and local laws and regulations.
2.2 Capital Reserves. Owner agrees that Owner shall maintain or caused to
be maintained the Capital Reserves of the Property as follows:
2'.2.1 Owner shall insure that one (1) percent of the annual gross
revenue will be paid into a capital reserve account for the first two years with an increase to one
point five (1.5) percent in years three and four and an increase to two point five (2.5) percent in
year five and annually thereafter.
2.2.2 Owner shall insure that expenditures from the capital reserve
account shall be for equipment or systems that have a minimum of seven years useful life or for
major retrofit of greens, tees, bunkers, fairways, cart paths, water features, etc.
2.3 Budgets and Expenditures.
2.3.1 On or before the completion of the Property Improvements, Owner
shall submit its first operating budget to the City Manager. The City's review of Owner's budget
pursuant to this Paragraph shall be for the sole purpose of determining that a sufficient amount
of funds are being expended for the operation of the Property in accordance with the
Maintenance Standards, (as that term is defined below), such that it meets the golf course
facility standard set for the in Paragraph 2.1. In the event the City disputes an amount budgeted
in Owner's budget, such dispute shall be resolved in accordance with the Paragraph in this
Agreement entitled Conflicts/Disputes. City acknowledges that its review of the budget and the
annual expenditures for the Property shall be conducted in a commercially reasonable manner
at no cost to Owner. Owner shall budget and expend in the first year of operations, and
increase annually thereafter, if necessary subject to the budget review process, a minimum of (i)
one million one hundred thousand dollars ($1,100,000) for maintenance of the Golf Course and
its facilities and (ii) $275,000 for the purpose of general and administrative which will include
clubhouse maintenance. After the review of Owner's initial budget for its first year of operation
pursuant to this Paragraph, the City shall have the option of reviewing the budget every year
thereafter during the term of this Agreement pursuant to the terms of this Paragraph.
Notwithstanding anything to the contrary in this Paragraph, Owner and City shall meet and
discuss in detail the then existing budget every three years commencing with the third
anniversary date of this Agreement and continuing every third year thereafter. Any information
supplied to City by Owner pursuant to this Paragraph shall be considered strictly confidential
and used solely for the purpose of evaluating Owners' performance of its obligations pursuant to
this Agreement. City shall maintain the confidentiality of such information to the extent
permitted by law. City shall duplicate the information only as needed for review and return all
originals and duplicates to Owner, including without limitation originals and duplicates which
may be in electronic form. City shall not release the information provided by Owner pursuant to
this Paragraph to any third party without written notice to Owner seven (7) days prior to release
of any such information to a third party.
2.3.2 On or before the City's annual inspection of the Property pursuant
to this Agreement, Owner shall submit to the City Manager a report detailing the monies spent
on maintenance of the Golf Course and Golf Course facilities. The City's review of Owner's
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expense information pursuant to this Paragraph shall be for the sole purpose of determining that
a sufficient amount of funds were expended for the operation of the Property in accordance with
the Maintenance Standards, (as that term is defined below), such that it meets the golf course
facility standard set for the in Paragraph 2.1. In the event the City disputes an amount
expended by Owner, such dispute shall be resolved in accordance with the Paragraph in this
Agreement entitled Conflicts/Disputes. City acknowledges that its review of Owner's annual
expenditures for the Property shall be conducted in a commercially reasonable manner at no
cost to Owner. After the review of Owner's initial expenditures for its first year of operation
pursuant to this Paragraph, the City shall have the option of reviewing the expenditures every
year thereafter during the term of this Agreement pursuant to the terms of this Paragraph at the
same time it reviews Owner's budget pursuant to Paragraph 2.3.1 of this Agreement.
Notwithstanding anything to the contrary in this Paragraph, Owner and City shall meet and
discuss in detail the then existing expenditures every three years commencing with the third
anniversary date of this Agreement and continuing every third year thereafter. Any information
supplied to City by Owner pursuant to this Paragraph shall be considered strictly confidential
and used solely for the purpose of evaluating Owners' performance of its obligations pursuant to
this Agreement. City shall maintain the confidentiality of such information to the extent
permitted by law. City shall duplicate the information only as needed for review and return all
originals and duplicates to Owner, including without limitation originals and duplicates which
may be in electronic form. City shall not release the information provided by Owner pursuant to
this Paragraph to any third party without written notice to Owner seven (7) days prior to release
of any such information to a third party.
2.3.3 Owner shall maintain all maintenance records for a minimum of
three years and make such records available to the City for review and/or audit during
reasonable business hours with five business days prior written notice, no more often than twice
a year.
2.3.4 Owner shall insure that Property and Golf Course Facility
maintenance costs do not include salaries of employees not performing direct maintenance
functions.
2.3.5 Whenever Owner is required to provide information pursuant to
this Agreement to the City for the City's review and approval, the City shall respond within thirty
(30) days of the date Owner provides such information to City, and failure to respond within
such thirty (30) days period shall be deemed approval.
ARTICLE 3
MAINTENANCE OF THE PROPERTY
3.1 Maintenance of the Property by Owner. Upon Owner's completion of the
Property Improvements, Owner shall maintain the Property and related improvements, including
without limitation the Clubhouse, the Parking Lot, the Maintenance Facility and associated
landscaping in accordance with this Agreement, including without limitation the Maintenance
Standards for the Palm Desert Country Club attached to this Agreement as Exhibit B
incorporated by this reference (the "Maintenance Standards").
3.2 Maintenance Program/Maintenance Deficiency Procedure. Owner shall
establish and conduct an ongoing maintenance program, in accordance with the Maintenance
Standards. If at any time there is an occurrence where, in the commercially reasonable opinion
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of the City, a material adverse condition on any area of the Property exists in contravention of
the Management Plan and/or this Agreement, (a "Maintenance Deficiency") the City shall notify
Owner in writing of such Maintenance Deficiency. Within ten (10) days of Owner's receipt of the
Deficiency Notice, Owner shall in writing either (i) commit to remedy the Maintenance Deficiency
in a commercially reasonable time and manner, or (ii) state that it disputes the City's Deficiency
Notice. If the parties are unable to agree to the timing and/or the manner of cure, then the
parties shall resolve the Maintenance Deficiency issue in accordance with the Paragraph in this
Agreement entitled Conflicts and Disputes.
3.2.1 If Owner fails to remedy the Maintenance Deficiency either (a)
within the time period previously agreed in writing by the parties or (b) by the date required in a
written arbitration or judicial decision stating that a disputed Maintenance Deficiency must be
cured, the City shall have the right, but not the obligation, to perform the necessary
maintenance to cure the Maintenance Deficiency. If the City elects to cure such Maintenance
Deficiency, the City shall give written notice to the Owner, setting forth with particularity the
Maintenance Deficiency work to be done and the estimated cost of curing such Maintenance
Deficiency. The City shall be entitled to reimbursement with respect thereto from the Owner as
provided in this Paragraph. In the event the City has performed the work necessary to cure a
Maintenance Deficiency, the City shall submit a written invoice to the Owner for all costs
incurred by the City to perform such work, together with a statement that if the Owner fails to
pay such invoice in full within the time specified, the City will pursue collection against the
Owner pursuant to the provisions of this Paragraph. The City shall only be entitled to
reimbursement for those costs reasonably incurred in performing the necessary maintenance to
cure such Maintenance Deficiency. Such invoice shall be due and payable within thirty (30)
days of receipt by the Owner. If Owner fails to pay such invoice in full within the period
specified, payment shall be deemed delinquent and shall be subject to a one time late charge in
an amount equal to six percent (6%) of the amount of the invoice. Thereafter the City may
pursue collection by means of any remedies available at law or in equity. Without limiting the
foregoing, in addition to all other rights and remedies available to the City, the City may levy an
assessment against the Owner for the invoice costs incurred by the City to perform the cure of
the Maintenance Deficiency, plus the late charge. Such assessment shall constitute a charge
on the land and shall be a continuing lien upon the Property, which lien shall be treated as a
construction lien pursuant to California law subject to foreclosure and priority as set forth in the
Construction Lien Statutes. Owner hereby vests the City with the right and power to levy such
assessment, to impose a lien upon the Property and to bring all legal actions and/or to pursue
lien foreclosure procedures against Owner for purposes of collecting such assessment in
accordance with the provisions of this Agreement.
3.3 City Right to Enter and Inspect Condition of Property. The City, its
employees, and agents shall have the right to enter the Property and all portions of the
Property in order to inspect and examine the Property and all fixtures and equipment located
thereon for the purposes of effectuating the terms and conditions of this Agreement . Such right
of entry and inspection may be exercised during normal weekday business hours, upon forty—
eight (48) hours prior notice to Owner.
3.4 Owner and City Annual Site Inspections. On an annual basis,
commencing on the first anniversary of execution of this Agreement, Owner, arbitrator and
representative of the City shall jointly inspect the premises including the golf course, clubhouse
facilities, maintenance yard, parking lot, and incidental amenities. The purpose of the inspection
shall be to verify the Owner's compliance with the requirements of this Agreement. Any defects
noted shall be documented by the City within ten business days of the inspection as a
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Maintenance Deficiency and shall be addressed by the Owner as called for in Paragraph 3.2 of
this Agreement.
3.5 Owner and HOA Bi-Annual Meetings; Forum For Complaints. Owner
shall meet on a bi-annual basis with any homeowner's association of the Project CHOK) to
discuss the condition of the Property. This meeting can be part of a regularly scheduled HOA
meeting. Any concerns regarding the Owner's maintenance of the Property shall be heard at
such meetings. Owner shall respond to concerns relating to Owner's maintenance of the
Property within fifteen (15) business days of the date the concern was presented at the meeting.
3.6 Insurance. Within ten (10) calendar days after the Effective Date, Owner
shall furnish or cause to be furnished to City a certificate of insurance evidencing insurance for
the Property and its operations in commercially reasonable amounts.
3.7 Mortgagee Protection. A breach of any of the terms, covenants or
conditions of this Agreement shall not defeat or impair the lien of any mortgage or deed of trust
made in good faith and for value, but such terms, covenants and conditions shall be binding
upon any party who is entitled to any of the Property, or any portion thereof or interest therein,
acquired by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise and those
claiming under any such party.
3.8 Covenant Running With the Land. Owner's covenants to maintain the
Golf Course Property in accordance with this Agreement are covenants which shall run with the
land, shall bind Owner's successor's and assign's and shall remain in effect for so long as the
Property is used as a Golf Course facility. Owner shall ensure that any borrowing obtained by
Owner in the acquisition of the Property, or any other interest granted by Buyer to any third
party in the Property prior to the recordation of this Agreement, shall be subordinate and junior
to this Agreement.
ARTICLE 4
CONFLICTS AND DISPUTE RESOLUTION
4.1 Conflicts/Disputes. In the event there is a dispute in connection with the
interpretation of or performance under this Agreement, including without limitation a dispute
regarding a Maintenance Deficiency, and the complaining party has provided written notice to
the non -complaining party detailing with particularity the claimed dispute (the "Dispute Notice"),
then the City and Owner will promptly endeavor in good faith to resolve such dispute. If no
resolution can be reached within fifteen (15) days of the parties endeavoring in good faith to
resolve such dispute, then, the dispute shall be resolved exclusively as provided in this
Paragraph 4.2 in the County of Riverside. Notwithstanding anything to the contrary in this
Article 4 and/or this Agreement, if a dispute between the City and Owner has an amount in
controversy in excess of $50,000, (which amount may include without limitation, any or all of the
following: costs of repairs, cost of maintenance, and/or capital expenditures) then either party
may litigate such dispute in a court of competent jurisdiction by providing written notice to the
other party within the fifteen (15) day good faith negotiation period referenced in this Paragraph.
4.2 Arbitration. After complying with the provisions of Paragraph 4.1
regarding attempting to resolve the dispute in good faith, in the event the dispute has not been
resolved by the parties, and provided that neither Owner or City has elected to refer the matter
to litigation under the terms set forth in Paragraph 4.1 of this Agreement, such dispute shall be
-6-
submitted to, and conclusively determined by binding arbitration conducted by an arbitrator who
shall be an arbitrator selected by the parties within five (5) days of the expiration of the good
faith negotiation period referenced in Paragraph 4.1, or in the event the parties are unable to
agree on an arbitrator, then the arbitrator shall be selected in accordance with the Commercial
Rules of the American Arbitration Association. Owner shall supply copies of current and two
previous years' annual financial statements, including balance sheet and P/L statement in any
arbitration or court proceeding in which the commercial reasonableness of any budgeted or
expended item for maintenance results in a Maintenance Deficiency which Maintenance
Deficiency is the subject of the arbitration or court proceeding. Any copies of Owner's Financial
Documents provided pursuant to this Paragraph shall be subject to a protective order. The
arbitrator shall award costs and attorney fees to the prevailing party. The provisions of this
Paragraph 4.2 shall not preclude any party from seeking injunctive or other provisional or
equitable relief to preserve the status quo pending the parties' resolution of their dispute, and
the filing of an action seeking injunctive or other provisional relief shall not be construed as a
waiver of that party's arbitration rights. The arbitrator(s) shall not have the power to modify any
of the provisions of this Agreement. The arbitrator(s)' decision shall be final and binding upon
the parties and judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction.
NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE
ANY DISPUTE WHICH ARISES UNDER THIS AGREEMENT DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY
RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR
JURY TRIAL. BY INITIALING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE
SPECIFICALLY INCLUDED IN THE DISPUTE RESOLUTION PROVISION. IF YOU REFUSE
TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE
COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF
CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS
VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION"
PROVISION TO NEUTRAL ARBITRATION.
Initials:
4.3 Relief to Preclude Immediate Significant Deterioration of the Golf Course.
If the City identifies a Maintenance Deficiency which the City believes in its commercially
reasonable opinion will result in immediate significant deterioration of the Golf Course if not
cured within a commercially reasonable time ("Urgent Maintenance Deficiency"), the City shall
provide immediate written notice to Owner. If within two business days of Owner's receipt of
City's written notice of the Urgent Maintenance Deficiency, Owner fails to commit to cure the
Urgent Maintenance Deficiency or disputes the existence of the Urgent Maintenance Deficiency,
then the City may seek injunctive relief upon proper statutory notice to Owner in addition to
instituting any arbitration to resolve the dispute pursuant to the Paragraph 4.2 of this
Agreement. Any judgment or award issued as a result of the injunctive relief sought by the City
pursuant to this Paragraph shall contain a specific provision for the recovery of actual attorneys'
and expert witness fees and costs.
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ARTICLE 5
GENERAL PROVISIONS
5.1 Notice to the Parties. For the purpose of this Agreement,
communications and notices among the Parties shall be in writing and shall be deemed to have
been given when actually delivered, if given by hand delivery or transmitted by overnight courier
service, or if mailed, when deposited in the United States Mail, First Class, postage prepaid,
return receipt requested and delivered to or addressed as follows:
To the City:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: City Manager
Telephone: (760) 346-0611
Facsimile: (760) 340-0574
with a copy to:
Best Best & Krieger
74760 Highway 111, Suite 200
Indian Wells, California 92210
Attention: David Erwin, Esq.
Telephone: (760) 586-2611
Facsimile: (760) 340-6698
To the Owner:
Dahoon Investment Company, Inc.
77-200 California Drive
Palm Desert, California 92211
Attention: Sung Sang Cho
Telephone: 626.643.7516
with a copy to:
Sullivan, Hill Lewin Rez &Engel
550 West C Street, Suite 1500
San Diego, CA 92101
Attention: Madeline Clark Cahill, Esq.
Telephone: (619) 233-4100
Facsimile: (619) 231-4372
5.2 Indemnity of the City by Owner
5.2.1 Owner shall fully indemnify, protect, hold harmless, and defend
(with counsel reasonably selected and approved by the City, which approval shall not be
unreasonably conditioned, withheld or delayed) the City and its elected or appointed officials,
officers, agents, attorneys, consultants and employees and each of them (each individually, an
"Entity" and collectively, the "Entities"), from and against all "Indemnified Liabilities" (as defined
in subparagraph 5.2.2); provided however such indemnity shall not apply to a particular Entity to
the extent that such Indemnified Liabilities are caused by the active negligence or willful
misconduct of the City. The City shall immediately notify the Owner, in writing, of any claim for
which the City seeks indemnification (an "Indemnification Claim")
5.2.2 For the purposes of this Paragraph 5.2.2 the term " Indemnified
Liabilities" means and refers to any and all claims demands, damages, losses, liabilities,
obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs,
disbursements and expenses, including, without limitation, fees, disbursements and fees and
costs of attorneys, consultants and experts, and all damages of any kind or of any nature
whatsoever that may, at any time, be imposed upon, incurred or suffered by, or asserted or
N
awarded against an indemnified party, directly or indirectly relating to or arising from this
Agreement.
5.3 Controlling Regulations/Governing Law. If a conflict arises between
applicable governmental regulations relating to the operation and maintenance of the Property,
the most stringent regulatory requirement shall control. The Parties hereto acknowledge that
this Agreement has been negotiated and entered into in California. The Parties hereto
expressly agree that this Agreement shall be governed by, interpreted under, and construed and
enforced in accordance with the laws of the State of California and if controlling, by the laws of
the United States. Further, the Parties to this Agreement hereby agree that any legal actions
arising from this Agreement shall be filed in California Superior Court, in the Court of Riverside,
Central District or the appropriate federal court in such district.
5.4 Partial Invalidity. If any term or provision or portion of this Agreement or
the application thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term or provision or
portion thereof to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each such term and provision of this
Agreement shall be valid and enforced to the fullest extent permitted by law.
5.5 No Intent to Create Third Party Beneficiaries. The Parties intend that the
rights and obligations under this Agreement shall benefit and burden only the Parties hereto,
and do not intend to create any rights in, or right of action to or for the use or benefit of any third
Party, who is not one of the Parties to this Agreement.
5.6 Waivers. No waiver of any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof, or of any
other covenant or provision herein contained. No extension of the time for performance of any
obligation or act to be performed herein shall be deemed to be an extension of the time for
performance of any other obligation or act to be performed under this Agreement.
5.7 Professional Fees. In the event any litigation, arbitration, mediation or
other proceeding ("Proceeding") is initiated by any party against the other party to enforce,
interpret or otherwise obtain judicial or quasi-judicial relief in connection with this Agreement,
the prevailing party in such Proceeding shall be entitled to recover from the unsuccessful party
all costs, expenses, actual attorneys' and expert witness fees relating to or arising out of such
Proceeding (whether or not such Proceeding proceeds to judgment) and any post -judgment or
post -award proceeding including without limitation one to enforce any judgment or award
resulting from any such Proceeding. Any such judgment or award shall contain a specific
provision for the recovery of all such subsequently incurred costs, expenses, actual attorneys'
and expert witness fees. The arbitrator(s) or court shall determine who is the prevailing party,
whether or not the dispute or controversy proceeds to final judgment. City and Owner expressly
acknowledge that this Paragraph is not intended to in any way alter the parties' agreement
regarding dispute resolution pursuant to Article 4.2 of this Agreement. City and Owner agree
that the reference to litigation in this Paragraph is included so that the prevailing party can
recover their attorneys' fees and costs if (a) either party files a lawsuit in violation of Paragraph
4.1 (e.g., fees and costs incurred obtaining a court order compelling mediation/arbitration); or (b)
a court rules that the arbitration provision in Paragraph 4.1 is unenforceable for any reason.
5.8 Entire Agreement. This Agreement (including all Exhibits attached
hereto) is the final expression of, and contains the entire agreement between, the Parties with
respect to the subject matter hereof and supersedes all prior understandings with respect
thereto. This Agreement may not be modified, changed, supplemented or terminated, nor may
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any obligations hereunder be waived, except by written instrument signed by the Party to be
charged or by its agent duly authorized in writing. The Parties do not intend to confer any
benefit hereunder on any person, firm or corporation other than the Parties hereto.
5.9 Construction. Headings at the beginning of each paragraph and
subparagraph are solely for the convenience of the Parties and are not a part of this Agreement.
Whenever required by the context of this Agreement, the singular shall include the plural and
the masculine shall include the feminine and vice versa. This Agreement shall not be construed
as if it had been prepared by one of the Parties, but rather as if all Parties had prepared the
same. Unless otherwise indicated, all references to Paragraphs are to this Agreement. All
exhibits referred to in this Agreement are attached hereto and incorporated herein by this
reference. If the date on which any action is required to be performed under the terms of this
Agreement is not a business day, the action shall be taken on the next succeeding business
day.
5.10 Time is of the Essence. Time and strict punctual performance is of the
essence of this Agreement and each of its provisions in which a time for performance is
specified.
5.11 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be an original, and all of which together shall constitute a
single instrument. This Agreement may be executed by facsimile signatures, and each facsimile
counterpart, when taken together, shall be deemed an original.
IN WITNESS WHEREOF, Owner and the City hereby execute this Agreement by the
signatures of their authorized representatives, as follow:
Dahoon Investment Company, Inc.
a California corporation
Date: By:
Its:
By:
Its:
[Remaining Signatures on Following Page]
-10-
Hill IIINIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII / 5 �'"'9`24
'-Fi
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
50
n 2005, before me, the undersigned notary public, personally appeared
personally known to me OR proved to me on the basis of satisfactory
evi nce be the perso ose na Is re subscribed to the (thin instrument and
acknowledged to me tha r�tte/they executed the same in hi r/their authorized
capacif, and that by I�r/t elr slgnatur) on the instrument the persoor the entity
upon If of which the perso ) acted, executed the instrument.
W ES my hand andMZ
/e� _ —r.
Signature
of Notary Public
ANNE E. DAMS
Commisslon # 1423752
..s Not Public - Callfomia
Riverside County
My Comm. Expires Jun 12, 2007
SIGNATURE PAGE
TO
OPERATION AND MAINTENANCE AGREEMENT
(Palm Desert Golf Club)
Date: e - 31' oS
tt.s.�q�R1:1
l�
By,
ClerKx
7 3 \..
APPROVb'A'O LEGAL FORM:
BEST BEST & KRIEGER LLP
By:
City
CITY:
City of Palm Desert
a California municipal corporation
By:
Buford Crit s, Mayor
EXHIBIT A-1
TO
OPERATION AND MAINTENANCE AGREEMENT
LEGAL DESCRIPTION OF PALM DESERT GOLF COURSE
EXHIBIT A-1
PARCEL l:
LOT A OF TRACT 3860 AS SHOWN BY MAP ON FILE IN BOOK 60, PAGES 55 THROUGH 57
INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
PARCEL 2:
LOTS A AND B OF TRACT 4079 AS SHOWN BY MP.P ON FILE IN BOOK 66, PAGES 67
THROUGH 69 INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
PARCEL 3:
LOTS 72, 73, 261 AND 405 OF TRACT 2137, PS SHOWN BY MAP ON FILE IN BOOK 41,
PAGES 29 THROUGH 36 INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
PARCEL 4:
LOT 199 OF TRACT 2137, AS SHOWN BY MAP ON FILE IN BOOK 41, PAGES 29 THROUGH 36
INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF LOT 262 OF SAID TRACT 2137;
THENCE NORTH 00 8' 10" EAST ALONG THE WEST LINE OF SAID LOT 262, 70 FEET TO THE
MOST NORTHWESTERLY CORNER THEREOF;
THENCE SOUTH 450 0' 31" WEST, 40 FEET;
THENCE SOUTH 330 59' EAST, 50.31 FEET, TC THE POINT OF BEGINNING.
PARCEL 5:
LOT 453 OF TRACT 2137, AS SHOWN BY MAP ON FILE IN BOOK 41, PAGES 29 THROUGH
36, INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF LOT 4:54 OF SAID TRACT 2137;
THENCE ALONG THE EASTERLY LINE OF SAID LOT 454, SOUTH 360 21' 15" EAST, 101.37
FEET TO THE SOUTHEASTERLY CORNER OF SAID LOT 454;
THENCE NORTH 430 10' 31" EAST, A DISTANCE OF 2 FEET TO A POINT;
THENCE NORTHWESTERLY IN A DIRECT LINE, TO THE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF LOT 392, AS SHOWN BY SAID MAP;
THENCE NORTH 800 30' 14" EAST, 102.80 FEET ON THE SOUTHERLY LINE OF SAID LOT TO
THE SOUTHEAST CORNER THEREOF;
THENCE SOUTH 330 04' 58" WEST, 15 FEET ON THE SOUTHWESTERLY EXTENSION OF THE
SOUTHEASTERLY LINE OF SAID LOT;
THENCE NORTHWESTERLY, IN A DIRECT LINE, T_) THE POINT OF BEGINNING.
PARCEL 6:
LOTS 3, 5, 6, 7 AND 466 OF TRACT 2283 AS SHOWN BY MAP ON FILE IN BOOK 42,
PAGES 82 THROUGH 89 INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
PARCEL 7:
LOT 2 OF TRACT 2283, AS SHOWN BY MAP ON FILE IN BOOK 42, PAGES 82 THROUGH 89
INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF LOT 287, SHOWN BY MAP ON SAID TRACT;
THENCE NORTH 860 49' 53" EAST, 30 FEET ON THE EASTERLY EXTENSION OF THE NORTH
LINE OF SAID LOT 287;
THENCE SOUTH 80 02' 43" WEST, 62.91 FEET TO THE SOUTHEAST CORNER OF SAID LOT
287;
THENCE NORTH 320 35' 25" WEST, 71.96 FEET ON THE NORTHEASTERLY LINE OF SAID
LOT287, TO THE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 2;
THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 2, NORTH 870 27' 23" EAST, 366.59
FEET;
THENCE NORTH 280 37' 50" WEST, 80.28 FEET;
THENCE NORTH 810 10' 50" WEST, 139.78 FEET.';
THENCE SOUTH 670 45' 56" WEST, 161.33 FEET;
THENCE SOUTH 400 32' 05" WEST, 62.00 FEET TO THE POINT OF BEGINNING.
PARCEL 8:
LOT 4 OF TRACT 2283, AS SHOWN BY MAP ON FILE IN BOOK 42, PAGES 82 THROUGH 89
INCLUSIVE OF MAPS, RIVERSIDE COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBEDi AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF GOT 246 OF SAID TRACT 2283;
THENCE ALONG THE NORTHERLY LINE OF SAID L.iT 246, NORTH 400 36' 15" WEST, A
DISTANCE OF 92.20 FEET TO THE NORTHWESTERLY CORNER OF SAID LOT 246;
THENCE SOUTH 830 18' 30" EAST, A DISTANCE OF 60.41 FEET TO THE NORTHWESTERLY
CORNER OF LOT 248 OF SAID TRACT NO. 2283;
THENCE ALONG THE WESTERLY LINE OF SAID LOT' 248, SOUTH 00 00' 10" EAST, A
DISTANCE OF 62.96 FEET TO THE POINT OF BE'.31NNING.
PARCEL 9:
LOTS H, I, J AND K. OF TRACT 4871, AS SHORN BY MAP ON FILE IN BOOK 77, PAGES
16 THROUGH 18 INCLUSIVE OF MAPS, RIVERSIDE, COUNTY RECORDS.
EXCEPTING THAT PORTION OF LOT J OF TRACT 4871, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF LOT 166 OF SAID TRACT 4871;
THENCE SOUTH 430 27' EAST, 74.20 FEET TO AN INTERSECTION WITH A NORTHERLY
PROLONGATION OF THE EASTERLY LINE OF SAID LOT 166;
THENCE SOUTH 240 09' 34" WEST, 9.89 FEET TO THE MOST EASTERLY CORNER OF SAID
LOT 166;
THENCE NORTH 360 20' 44" WEST, 78.57 FEET TO THE POINT OF BEGINNING.
EXHIBIT A-2
TO
OPERATION AND MAINTENANCE AGREEMENT
SITE MAP OF PALM DESERT GOLF COURSE
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MAINTENANCE
STANDARDS
FOR THE
PALM DESERT
COUNTRY CLUB
GOLF COURSE MAINTENANCE STANDARDS
The following are the minimum standards by which the Palm Desert golf course (27 holes)
will be managed:
A Golf Course That Is Maintained Equal to or Greater Than:
➢ "Neat, Clean, and Green Golf Course" Everyday
➢ The Highest Quality Conditions Possible To Play The Game Of Golf
➢ Maintained Sand Traps (All with complete rakes)
➢ Serviced Ball Washers on carts (Clean Water and Towels)
➢ Yardage Markers at Regular Intervals
➢ Tee Markers and Cups Rotated Daily
➢ Identify Address and Remedy Work Areas (i.e., Irrigation Breaks, Cart Trails,
Etc.)
➢ Report Golf Course Work (Aerification, Etc.) In Advance to Players
➢ Clean, Serviced, Sanitary Restrooms
➢ Litter Free - Serviced Trash Cans
➢Attentive, Motivated, Uniformed Staff
➢ Trees and Shrubbery Trimmed in Accordance with recommendation of a
certified arborist, or City of Palm Desert landscape management guide
➢ Consistent Mowing Patterns
➢Adequate Number of Clean Golf Carts
➢ Extra Scorecards - Pencils on 2"d Tee
➢ Divot Repair Program
➢ Ball Mark Repair Program
➢Adequate Communication
➢ Practice Area
■ Clean, Quality Practice Balls, Replaced on a Regular Basis
■ Turf Maintained and Rotated Tee Areas
■ Targets at Regular Intervals
■ Greens for the Purpose of Targets
■ Flags for the Purpose of Target Points
■ Billboards for Information
■ Informed, Attentive, Motivated Personnel with Name Tags
■ Adequate Communication from the Operators to the Patrons
■ Litter Free
BASIC GOLF SHOP SET UP
➢ Informed, Attentive, Motivated Personnel with Name Tags
➢ Adequate Communications between the Operators and Patrons
■ Posted Hours of Operation
■ Posted Fee Schedules
■ Posted Golf Course Condition, "Right -to -Know" Information, (i.e.
Reclaimed Water, Use of Pesticides, etc.)
■ Posted Pictures of Shop Staff
■ Posted Play Restrictions
■ Posted Calendar of Events
■ Ladies Club and Men's Club
➢ Clean, Litter Free Area
➢ Plants (If Space Allows)
➢ Communication of Golf Maintenance, Driving Range, and Cart Staging Area.
➢ Score Posting Area Easily Accessed
➢ At least one (1) full-time Property crew member shall have a current pesticide
applicator's license.
CLUBHOUSE, YARD AND PARKING LOT MAINTENANCE
➢ Owner shall insure that the water feature shall be operational and managed to
avoid buildup of algae or mineral deposits.
➢ Owner shall insure that all landscaped planter areas shall be kept weeded,
watered, fertilized, and raked in accordance with the City of Palm Desert Landscape
Maintenance Standards.
➢ Owner shall insure that all trees and shrubs shall be pruned as necessary to
provide ease of play on the course and to provide aesthetic value throughout. The
crew shall replace trees damaged by wind, etc., and provide staking as necessary.
Tree pruning shall be performed under supervision of certified arborist.
➢ Owner shall insure that marred painted surfaces shall be promptly touched up to
match adjacent areas.
➢ Owner shall insure that facility be adequately managed to avoid pest infestation.
Rodent and insect control shall be performed as necessary.
➢ Owner shall insure that custodial services, including emptying of trash receptacles,
replacement of soaps and paper supplies in restrooms, cleaning of spills, and
mopping or vacuuming of floors shall be performed daily.
➢ Owner shall insure that mechanical system filters shall be replaced routinely.
➢ Owner shall assure that the food and beverage facilities at the Golf Course are at
all times operated in such a manner as to qualify for and maintain no less than a
"Class B" rating as administered by the Riverside County Health Department.
➢ Owner shall insure that the ventilation systems, electrical equipment, toilet facilities,
and work areas shall be maintained properly to provide a decent, safe, and sanitary
work area.
➢ Owner shall insure that chemicals shall be clearly labeled and properly stored in
compliance with all regulations for proper disposal of materials.
➢ Owner shall resurface any cracked asphalt as necessary.
➢ Owner shall properly mark the parking lot with visible striping and signs in place.
➢ Owner shall sweep the parking lot and keep it weeded, and free of brush, junk or
trash piles.
➢ Owner shall insure that all exterior and parking lot lights shall be operational and
time controlled appropriately for the season.
➢ Landscape maintenance shall be maintained according to the current version of
City of Palm Desert Landscape Maintenance Guide.
➢ Owner shall monitor local evapotranspiration rates and provide appropriate
watering solutions for the golf course after accounting for the evaporative losses.
Perform repairs as needed.
Numeral refers to percent or pounds of active ingredient.
2 Diquat has a state label in Arkansas, Louisiana, Mississippi, Oklahoma, Tennessee and Texas for winter
annual weed control in dormant bermudagrass.
3 Mocap 10G is labelled for commercial turf only (golf courses, sod farms).
4 Diazinon is not labeled for use on golf courses or sod farms.
5 Triump 4E is restricted to certain soil types and several applicaiton techniques must be followed. It is labeled for use on lawns, sod farms,
and golf courses (only tees, greens, and aprons). A maximum of one application per year is permitted for the higher surface insect rate and
a maximum of two applications per year at least 60 days apart for the lower surface insect rate.
6 For use only by commercial lawn pest control personnel, and only on golf course tees, greens and aprons, and on sod farms. See soil
restrictions
Diazinon may not be used on golf courses or sod farms
7 For use in professional turf areas such as golf courses and commercial sod.