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Home My WebLink AboutORD 1165ORDINANCE NO. 1165 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT AS IT RELATES TO CONSTRUCTION FOR A 20-UNIT SENIOR CITIZEN APARTMENT PROJECT ON THE NORTH SIDE OF CATALINA WAY LOCATED AT 73-582 CATALINA WAY. BETWEEM THE CITY OF PALM DESERT AND BERNARD INVESTMENT GROUP, ATTACHED AS EXHIBIT A. CASE NO. DA 08-50 WHEREAS, the Planning Commission by its Resolution No. 2479 has recommended approval of said project; and WHEREAS, at said public hearings, said City Council heard and considered all testimony and arguments of all interested persons. WHEREAS, the City Council of the City of Palm Desert, California, DOES HEREBY ORDAIN, AS FOLLOWS: SECTION 1: That the Development Agreement 08-50 by Ordinance No. 1165 is hereby approved. SECTION 2: The City Clerk of the City of Palm Desert, California, shall certify to the passage adoption of this Ordinance and shall cause the same to be published once in the Desert Sun, a newspaper of general circulation, circulated within the City of Palm Desert, and the same 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 25th day of September, 2008, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ATTEST: .,A . FINERTY, KELLY, and BENSON NONE FERGUSON and SPIEGEL NONE EAN M. B ON, MAYOR 10-3-oB 1 [This page has intentionally been left blank.] RECORDING REQUESTED BY, AND WHEN RECORDED, MAIL TO: 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 DOC # 2008-0552632 10/14/2008 08:00A Fee:NC Page 1 of 33 Recorded in Official Records County of Riverside Larry W. Ward Assessor, County Clerk & Recorder 11111111111111111111111111111111111111111111111111111111 S R U PAGE SIZE DA MISC LONG RFD I COPY M A L 465 426 PCOR NCOR SMF rCH EXAM) UNI/ r\JC(� CC T: CTY Development Agreement 08-50 Between the City of Palm Desert, California and Bernard Investment Group, Inc. a California Corporation Legal Description of Property 73-582 Catalina Way/APN: 627-111-011 ORDINANCE NO. 1165 (Case No. DA 08-50) Dated: September 25, 2008 (Title of Document) �FM-1 1 053 tJ F3 yrt n r- F) 1V M [This page has intentionally been left blank.] ORDINANCE NO. 1165 RECORDING REQUESTED BY, AND WHEN RECORDED, MAIL TO: City Clerk's Office City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 EXEMPT FROM FILING FEE PURSUANT TO GOVT. CODE §6103 ----------------------------------------------------------------------------------- (Space above for Recorder's use Only) DEVELOPMENT AGREEMENT Between THE CITY OF PALM DESERT, CALIFORNIA and BERNARD INVESTMENT GROUP, INC. a California Corporation Dated. September 25 2008 GAPlanningWevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc F ORDINANCE NO. 1165 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered er into as of this 25th day oSptemb, 2008, by and between the City of Palm Desert, California, a municipal corporation organized and existing under the laws of the State of California (the "City"), and Bernard Investment Group, Inc., a California Corporation ("Developer"), with reference to the following facts, understandings,and intentions of the parties: RECITALS A. These Recitals refer to and utilize certain capitalized terms, which are defined in this Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. Government Code Sections 65684 through 65869.5 inclusive (the "Development Agreement Legislation") authorize the City to enter into development agreements in connection with the development of real property within its jurisdiction. On August 11, 1983, the City enacted by Ordinance No. 341, as amended on December 7, 1989 by Ordinance No. 589 (collectively, the "Development Agreement Ordinance"), procedures and requirements for the consideration of development agreements there under pursuant to the Development Agreement Legislation. C. Developer owns or is purchasing certain property in the City of Palm Desert California (the "Property"), which Property is more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference. G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 3 ORDINANCE NO. 1165 D. Developer intends to use the Property to develop a Project consisting of low and moderate -income units for residential development and associated amenities and public improvements. E. The City has determined that the development of the Project as contemplated by this Agreement is consistent with and in furtherance of the development goals, policies, general land uses and development programs of the City and is consistent with the existing Senior Housing Overlay District. . F. The Developer has applied for precise plan approval pursuant to Chapter 25.52 of the Zoning Ordinance, senior Housing Overlay District which allow for significant density increases in return for building specialized housing designed and restricted to residents over age 62 years; G. Pursuant to City Codes and as a condition of said approval, City has required that a specified number of units associated with the project be set aside for lower and moderate income occupants subject to restrictions necessary to insure the continued occupancy of said units by lower income and moderate senior citizen households; H. Developer has been conditionally granted permission by the City to construct conventional senior housing rental units on the Project by Precise Plan / Conditional Use Permit No. 08-50. Pursuant to a separate agreement, Developer is required to set aside affordable units for low and moderate income occupants for the required period of time also set forth in the separate Affordable Housing Agreement. Said Housing Agreement is an integral part and condition of this Agreement. G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 4 ORDINANCE NO. i 16s I. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, and in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: 1. Definitions. 1.1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. 1.2 Agreement. This Development Agreement. 1.3 Building Ordinances. Those building standards, of general and uniform application throughout the City and not imposed solely with respect to the Property, in effect from time to time that govern building and construction standards within the City, including, without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire codes. 1.4 City Council. The legislative body of the City of Palm Desert. 1.5 Effective Date. The date on which the Enacting Ordinance becomes effective. 1.6 Enacting Ordinance. Ordinance 1165 , enacted by the City Council on September 25 , 2008, approving this Agreement. G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 5 ORDINANCE NO. 1165 1.7 Existing Land Use Ordinances. The Land Use Ordinances in effect as of the Effective Date. 1.8 Land Use Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of the City, governing the development of the Property, including but not limited to, the permitted uses of land, the density and intensity of use of land, and the timing of development, all as applicable to the development of the Property. Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shall include the City's General Plan, the City's zoning ordinance and the City's subdivision code, but shall exclude the Building Ordinances. 1.9 Mortgage. A mortgage, deed of trust, sale and leaseback arrangement in which all or a part of the Property, or an interest in it, is sold and leased back concurrently, or other transactions in which all or a part of the Property, or an interest in it, is pledged as security, contracted in good faith and for fair value. 1.10 Project. The low and moderate income residential development and associated amenities, and on -site and off -site improvements, as permitted under and described in Precise Plan/Conditional Use Permit No. 08-50 to be constructed on the Property, as the same may hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement and pursuant to the conditions of approval imposed on any further land use entitlement applications that may be reasonably required in order to implement the development of the Project. 1.11 Property. The real property and any improvements thereon which is described in Exhibit "A" to this Agreement. GAPlanning\Kevin Swartz\WordTA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 2 ORDINANCE NO. 1165 2. Term; Amendment. 2.1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate on the ten (10) year anniversary date of the Effective Date, unless sooner terminated or extended as hereinafter provided. The term of this Agreement shall not modify the Terms of any other Agreement dealing with low and moderate income households. 2.2 Amendment. The parties to this Agreement at -their sole discretion and by their mutual written consent may from time to time amend the provisions and terms of this Agreement and the Exhibits hereto. Any amendment to this Agreement or the Exhibits hereto as provided herein shall be effected only upon compliance with the procedures for amendment, if any, required by the Development Agreement Legislation and the Development Agreement Ordinance. The City shall, after any such amendment takes effect, cause an appropriate notice of such amendment to be recorded in the official records of the County of Riverside. 3. General Development of the Project. 3.1 Project. (a) The Project is described in the Precise Plan/Conditional Use Permit No. 08-50 as the same may be modified by a separate Affordable Housing Agreement with the City which is an integral part hereof. (b) During the Term hereof, Developer shall have the vested right to develop the Project in accordance with, and development of the Project shall be governed by, the approvals given by Precise Plan/Conditional Use Permit No. 08-50 as GAPlanning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA ordinance.doc fl ORDINANCE NO. 1165 modified by any other agreement for affordable housing and the Existing Land Use Ordinances. Developer's right to develop the Property in accordance with this Section 3.1 shall remain subject to: (i) all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and contained within the Existing Land Use Ordinances; (ii) all amendments or modifications to Existing Land Use Ordinances after the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and committees enacted or adopted after the Effective Date of this Agreement (collectively, "New Laws"), except such New Laws which would prevent or materially impair Developer's ability to develop the Project in accordance with the Development Plan unless such New Laws are (A) adopted by the City on a City-wide basis and applied to the Site in a non-discriminatory manner, (B) required by a non -City entity to be adopted by or applied by the City (or if optional the failure to adopt or apply such non -City law or regulation would cause City to sustain a loss of funds or loss of access to funding or other resources), or (C) New Laws the City reserves the right to apply under this Agreement; (iii) all subsequent development approvals implementing the Project and the conditions or approval associated therewith, including but not limited to Project Tract Maps and building permits, GAPlanning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 0 ORDINANCE NO. 1165 (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, aw existing at the time such fees are due and payable, it being understood that this Agreement shall not prevent the City from establishing any new City fees, including new development impact fees, or increasing any existing City fees, and to apply such new or increased fees to the Project or applicable portion thereof; (v) the reservation or dedication of land for public purposes or payment of fees in lieu thereof as required at the time such reservations or dedications or payments in lieu are required under applicable law to be made or paid; (vi) Building, electrical, mechanical, fire and similar building codes based upon uniform codes adopted in, or incorporated by reference into, the Palm Desert Municipal Code, as existing on the Effective Date of this Agreement or as may be enacted or amended thereafter, applied to the Project in a nondiscriminatory manner. (c) Notwithstanding any condition setting forth the earlier expiration of any of the Tentative Maps, each of the Tentative Maps shall remain effective for the Term of this Agreement unless modified with the concurrence of Developer, its successors or assigns. 3.2 Project Timing; Construction Entitlement. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which parts of the Project will be developed. Such decisions depend upon GAPlanning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc Rl ORDINANCE NO. 1165 numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. Therefore, the parties hereto acknowledge and expressly agree that Developer is hereby granted by the City the vested and guaranteed right to develop the Project in such manner and at such rate and at such times as Developer deems appropriate within the exercise of its sole subjective business judgment. Therefore, City expressly agrees that Developer shall be entitled to apply for precise plans, subdivision maps, building. permits, occupancy certificates and other land use and development entitlements for its use at any time provided that such application is made in accordance with the Development Plan and this Agreement. Notwithstanding any provisions to the contrary in this Agreement or the Existing Land Use Ordinances, Developer shall have the right, but not the obligation, to construct not less than the maximum number of square feet of gross floor area or dwelling units of any permitted use under the Agreement given. 3.3 Building Permits and Other Approvals and Permits. Subject to (a) Developer's (or its assignee's) compliance with this Agreement, the Existing Land Use Ordinances and the Building Ordinances, and (b) payment of the usual and customary fees and charges of general application charged for the processing of such applications, permits and certificates and for any utility connection, or similar fees and charges of general application, the City shall process and issue to Developer or its assignee promptly upon application therefore all necessary use permits, building permits, G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 10 ORDINANCE NO. 1165 occupancy certificates, and other required permits for the construction, use and occupancy of the Project, or any portion thereof, as applied for, including connection to all utility systems under the City's jurisdiction and control (to the extent that such connections are physically feasible and that such utility systems are capable of adequately servicing the Project). 3.4 Procedures and Standards. The standards for granting or withholding permits or approvals required hereunder in connection with the development of the Project shall be governed as provided herein by the standards, terms and conditions of this Agreement and the Development Plan, and to the extent not inconsistent therewith, the Existing Land Use Ordinances, but the procedures for processing applications for such permits or approvals (including the usual and customary fees of general application charged for such processing) shall be governed by such ordinances and regulations as may then be applicable and which are consistent with the Agreements 3.5 Effects of Agreement. This Agreement shall constitute a part of the Enacting Ordinance, as if incorporated by reference therein in full. The parties acknowledge that this Agreement is intended to grant Developer the right to develop the Project pursuant to specified and known criteria and rules as set forth in the Development Plan and the Existing Land Use Ordinances, and to grant the City and the residents of the City certain benefits which they otherwise would not receive. This Agreement shall be binding upon the City and its successors in accordance with and subject to its terms and conditions notwithstanding any subsequent action of G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 11 ORDINANCE NO. 1165 the City, whether taken by ordinance or resolution of the City Council, by referenda, initiative, or otherwise. The parties acknowledge and agree that by entering into this Agreement and relying thereupon, the Developer has obtained, subject to the terms and conditions of this Agreement, a vested right to proceed with its development of the Project in accordance with the proposed uses of the Property, the density and intensity of development of the Property and the requirements and guidelines for the construction or provision of on -site and off -site improvements as set forth in the Plan and the Existing Land Use Ordinances, and the timing provisions of Section 3.2, and the City has entered into this Agreement in order to secure the public benefits conferred upon it hereunder which are essential to alleviate current and potential problems in the City and to protect public health, safety and welfare of the City and its residents, and this Agreement is an essential element in the achievement of those goals. 3.6 Operating Memoranda. Developer and City acknowledge that the provisions of this Agreement require a close degree of cooperation between Developer and City, and that refinements and further development of the Project may demonstrate that changes or additional provisions are appropriate with respect to the details of performance of the parties under this Agreement in order to effectuate the purpose of this Agreement and the intent of the parties with respect thereto. If and when, from time to time, the parties find that such changes or additional provisions are necessary or appropriate, and subject to the provisions of the next succeeding sentence, they shall effectuate such changes or provide for such additional provisions through operating memoranda to be approved in good faith by the parties, which, after execution, shall be G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 12 ORDINANCE NO. 1165 attached hereto as addenda and become a part hereof, and may be further changed or supplemented from time to time as necessary, with further good faith approval of Developer and City. Upon receipt by the City of an opinion of the City Attorney to the effect that the subject matter of such operating memoranda does not require the amendment of this Agreement in the manner provided in Section 65868 of the California Government Code, then no such operating memoranda shall require prior notice or hearing, or constitute an amendment to this Agreement; and in the case of the City, such operating memoranda may be approved and executed by its Community Development Director or City Manager without further action of the City Council. Failure of the parties to enter into any such operating memoranda shall not affect or abrogate any of the rights, duties or obligations of the parties hereunder or the provisions of this Agreement. 4. Periodic Review of Compliance. In accordance with Govt. Code Section 65865.1, the City Council shall review this Agreement at least each calendar year during the term of this Agreement. At such periodic reviews, Developer must demonstrate its good faith compliance with the terms of this Agreement. Developer agrees to furnish such evidence of good faith compliance as the Cit, and after reasonable exercise of its discretion and after reasonable notice to Developer, may require. 5. Permitted Delays; Supersedure by Subsequent Laws. 5.1 Permitted Delays. In addition to any other provisions of this Agreement with respect to delay, Developer and City shall be excused from performance of their obligations hereunder during any period of delay caused by acts G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 13 ORDINANCE NO. 1165 of mother nature, civil commotion, riots, strikes, picketing, or other labor disputes, shortage of materials or supplies, or damage to or prevention of work in process by reason of fire, floods, earthquake, or other casualties, litigation, acts or neglect of the other party, any referendum elections held on the Enacting Ordinance, or the Land Use Ordinances, or any other ordinance effecting the Project or the approvals, permits or other entitlements related thereto, or restrictions imposed or mandated by governmental or quasi -governmental entities, enactment of conflicting provisions of the Constitution or laws of the United States of America or the State of California or any codes, statutes, regulations or executive mandates promulgated thereunder (collectively, "Laws"), orders of courts of competent jurisdiction, or any other cause similar or dissimilar to the foregoing beyond the reasonable control of City or Developer, as applicable. Each party shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. The time of performance of such obligations shall be extended by the period of any delay hereunder. 5.2 Supercedure of Subsequent Laws or Judicial Action. The provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to comply with any new Law or decision issued by a court of competent jurisdiction (a "Decision"), enacted or made after the Effective Date which prevents or precludes compliance with one or more provisions of this Agreement. Promptly after enactment of any such new Law, or issuance of such Decision, the parties shall meet and confer in good faith to determine the feasibility of any such G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 14 ORDINANCE NO. 1165 modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. In addition, Developer and City shall have the right to challenge the new Law or the Decision preventing compliance with the terms of this Agreement. In the event that such challenge is successful, this Agreement shall remain unmodified and in full force and effect, except that the Term shall be extended, in accordance with Section 5.1 above, for a period of time equal to the length of time the challenge was pursued. 6. Events of Default; Remedies; Termination. 6.1 Events of Default. Subject to any extensions of time by mutual consent in writing, and subject to the provisions of Section 5 above regarding permitted delays, the failure of either party to perform any material term or provision of this Agreement shall constitute an event of default hereunder ("Event of Default") if such defaulting party does not cure such failure within ninety (90) days following receipt of written notice of default from the other party; provided, however, that if the nature of the default is such that it cannot be cured within such ninety (90) day period, the commencement of the cure within such ninety (90) day period and the diligent prosecution to completion of the cure shall be deemed to be a cure within such period. Any notice of default given hereunder shall specify in detail the nature of the alleged Event of Default and the manner, if any, in which such Event of Default may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the party charged therewith shall not be considered to be in default for purposes of termination of G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 15 ORDINANCE NO. 1165 this Agreement, institution of legal proceedings with respect thereto, or issuance of any permit, map, certificate of occupancy, approval or entitlement with respect to the Project. 6.2 Remedies. Upon the occurrence of an Event of Default, the nondefaulting party shall have such rights and remedies against the defaulting parry as it may have at law or in equity, including, but not limited to, the right to damages and the right to terminate this Agreement or seek mandamus, specific performance, injunctive or declaratory relief. Notwithstanding the foregoing and except as otherwise provided in Section 6.1 hereof, if either Developer or City elects to terminate this Agreement as a result of the occurrence of an Event of Default, such proceeding of termination shall constitute such party's exclusive and sole remedy, and with respect to such election and City and Developer hereby waive, release and relinquish any other right or remedy otherwise available under this Agreement or at law or equity. 6.3 Waiver: Remedies Cumulative. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other parry shall not constitute waiver of such parry's right to demand strict compliance by such other parry in the future. All waivers must be in writing to be effective or binding upon the waiving party, and no waiver shall be implied from any omission by a parry to take any action with respect to such Event of Default. No express written waiver of any Event of Default shall affect any other Event of Default, or cover any other period of time specified in such express waiver. G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 16 ORDINANCE NO. 1165 6.4 Effect of Termination. Termination of this Agreement by one party due to the other party's default, or as a result of the exercise of the right of termination provided to the Developer under Section 6.2 hereof, shall not affect any right or duty emanating from any approvals, permits, certificates or other entitlements with respect to the Property or the Project which were issued, approved or provided by the City prior to the date of termination of this Agreement. If City terminates this Agreement because of developer's default, then City shall retain any and all benefits, including money, land or improvements conveyed to or received by the City prior to the date of termination of this agreement, subject to any reimbursement obligations of the City. If developer terminates this agreement because of City's default, or as a result of the exercise of the right of termination provided to the developer under section 6.2 hereof, then developer shall be entitled to all of the benefits arising out of, or approvals, permits, certificates or other entitlements on account of, any exactions paid, given or dedicated to, or received by, City prior to the date of termination of this Agreement. Except as otherwise provided in this section 6.2, all of the rights, duties and obligations of the parties hereunder shall otherwise cease as of the date of the termination of this Agreement. If this agreement is terminated pursuant to any provision hereof, then the City shall, after such action takes effect, cause an appropriate notice of such action to be recorded in the official records of the county of riverside. The cost of such recordation shall be borne by the party causing such action. G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 17 ORDINANCE NO. 1165 6.5 Third Party Actions. Any court action or proceeding brought by any third party to challenge this agreement or any permit or approval required from City or any other governmental entity for development or construction of all or any portion of the project, whether or not developer is a party defendant to or real party defendant in interest in such action or proceeding, shall constitute a permitted delay under section 5.1. 7. Encumbrances on Property. 7.1 Discretion to Encumber. The parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering the Property or any portion thereof or any improvements thereon with any mortgage, deed of trust or other security device ("Mortgage") securing financing with respect to the Property. The City acknowledges that the lenders providing such financing may require certain modifications to this Agreement, and the City agrees upon request, from time -to -time, to meet with Developer and/or representatives of such lenders to negotiate in good faith any such request for modification. City further agrees that it will not unreasonably withhold its consent to any such requested modification. Any Mortgage on the Property shall include appropriate provisions for the partial release of said Mortgage to assure that Developer can convey to the City, free and clear of encumbrances, any portions of the Property which Developer is conditioned to convey or has otherwise agreed to convey to the City or its designee. G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc ORDINANCE NO. 1165 7.2 Mortgage Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Site or any portion thereof by a Mortgagee (whether pursuant to a Mortgage, foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise) shall be subject to all of the terms and conditions of this Agreement. 7.3 Mortgagee Not Obligated. Notwithstanding the provisions of Section 7.2, no Mortgagee will have any obligation or duty under this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that to the extent that any covenant to be performed by Developer is a condition to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's performance hereunder. 7.4 Estoppel Certificates. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended or modified, identifying such amendments or modifications, and (iii) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 19 ORDINANCE NO. 1165 return such certificate within thirty (30) days following the receipt thereof. City acknowledges that a certificate hereunder may be relied upon by transferees, assignees and lessees of the Developer and the holders of any Mortgage. 8. Transfers and Assignments; Effect of Agreement on Title. 8.1 Rights and Interests Appurtenant. The rights and interests conveyed as provided herein to Developer benefit and are appurtenant to the Property. Developer has the right to sell, assign and transfer any and III of its rights and interests hereunder and to delegate and assign any and all of its duties and obligations hereunder. Such rights and interests hereunder may not be sold, transferred or assigned and such duties and obligations may not be delegated or assigned except in compliance with the following conditions: (i) Said rights and interests may be sold, transferred or assigned only together with and as an incident of the sale, lease, transfer or assignment of the portions of the Property to which they relate, including any transfer or assignment pursuant to any foreclosure of a Mortgage or a deed in lieu of such foreclosure. Following any such sale, transfer or assignment of any of the rights and interests of Developer under this Agreement, the exercise, use and enjoyment thereof shall continue to be subject to the terms of this Agreement to the same extent as if the purchaser, transferee or assignee were Developer hereunder. 8.2 Covenants Run with Land. (i) All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties GAPlanning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 20 ORDINANCE NO. 1165 and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees, lessees, and all other persons acquiring any rights or interests in the Property, or any portion thereof, whether by operation of laws or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns; (ii) All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law; (iii) Each covenant to do or refrain from doing some act on the Property hereunder (A) is for the benefit of and is a burden upon every portion of the Property, (B) runs with such lands, and (C) is binding upon each party and each successive owner during its ownership of the Property or any portions thereof, and shall benefit each party and its lands hereunder, and each such other person or entity succeeding to an interest in such lands. 9. Notices. Any notice to either party shall be in writing and given by delivering the same to such party in person or by sending the same by registered or certified mail, return receipt requested, with postage prepaid, to the following addresses: GAPlanning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 21 ORDINANCE NO. 1165 If to City: City Clerk of Palm Desert 73-510 Fred Waring drive Palm Desert, California 92260 If to Developer: Bernard Investment Group Attention: Either parry may change its mailing address at any time by giving written notice of such change to the other party in the manner provided herein. All notices under this agreement shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. 10. Indemnification: Developer's Obligation. 10.1 Developer's Wrong -Doing. Developer will defend, indemnify and hold the City and its elected officials, officers and employees ("indemnified parties") free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any obligation which arises from the development of the Property including, without limitation, obligations for the payment of money for material and labor; (ii) any failure on the part of developer to take any action which he is required to take as provided in this Agreement; (iii) any action taken by developer which he prohibited from taking as provided in this Agreement and (iv) any claim which results from any willful or negligent act or omission of developer. G.\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 22 ORDINANCE NO. 1165 10.2 Environmental Assurances. Developer shall indemnify and hold the indemnified parties free and harmless from any liability deriving from the City's execution or performance of this agreement, based or asserted, upon any act or omission of developer, its officers, agents, employees, contractors, subcontractors and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to hazardous or toxic materials, industrial hygiene, or environmental conditions created by developer or its officers, agents or employees, contractors, subcontractors and independent contractors after the effective date and developer shall defend, at its expense, including attorneys fees, the indemnified parties in any action based or asserted upon any such alleged act or omission. 10.3 Challenges to Agreement. Developer agrees and shall indemnify, hold harmless and defend the indemnified parties from any challenge to the validity of this Agreement, or to the City's implementations of its rights under this agreement. 10.4 Defense by Counsel Chosen by City. In the event the indemnified parties are made a party to any action, lawsuit other adversarial proceeding in any way involving claims arising from this Agreement or Project, developer shall provide a defense to the indemnified parties, with counsel reasonably acceptable to City. Developer shall be obligated to promptly pay all costs of defense, including all reasonable attorneys' fees, and any final judgment or portion thereof rendered against the indemnified parties. 10.5 Non -liability of City Officers and Employees. No official, officer, employee, agent, or representative of the City, acting in his/her official capacity, shall be GAPlanning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 23 ORDINANCE NO. 1165 personally liable to developer, or any successor or assign, for any loss, cost, damages, claim, liability or judgment arising out of or in connection to this agreement, or for any act or omission on the part of the City. 10.6 Survival. The provisions of these sections 10.1, 10.2, 10.3 and 10.4 shall survive the termination or expiration of this agreement. 11. Miscellaneous. 11.1 Relationship of Parties. It is understood that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contractor. It is further understood that none of the terms or provisions of this agreement are intended to or shall be deemed to create a partnership, joint venture or joint enterprise between the parties hereto. 11.2 Consents. Unless otherwise herein provided, whenever approval, consent, acceptance or satisfaction (collectively, a "consent") is required of a party pursuant to this Agreement, it shall not be unreasonably withheld or delayed. Unless provision is otherwise specified in this Agreement or otherwise required by law for a specific time period, consent shall be deemed given within thirty (30) days after receipt of the written request for consent, and if a party shall neither approve nor disapprove within such thirty (30) day period, or other time period as may be specified in this Agreement or otherwise required by laver for consent, that party shall then be deemed to have given its consent. If a party shall disapprove, the reasons therefor shall be G:\Planning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 24 ORDINANCE NO. 1165 stated in reasonable detail in writing. This section does not apply to development approvals by the City. 11.3 Not a Public Dedication. Except as otherwise expressly provided herein, nothing herein contained shall be deemed to be a gift or dedication of the Property, or of the project or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. 11.4 Severability. If any term, provision covenant or condition of this Agreement shall be determined invalid, void or unenforceable by judgment or court order, the remainder of this Agreement shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the relevant circumstances or would frustrate the purposes of this Agreement. 11.5 Exhibits. The exhibits listed in the Table of Contents, to which reference is made herein, are deemed incorporated into this Agreement in their entirety by reference thereto. 11.6 Entire Agreement. This written Agreement and the Exhibits hereto contain all the representations and the entire Agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, any prior correspondence, memoranda, agreements, GAPlanning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 25 ORDINANCE NO. 1165 warranties or representations are superseded in total by this Agreement and Exhibits hereto. 11.7 Governing Law; Construction of Agreement. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent. with the provisions hereof, in order to achieve the objectives and purposes of the parties hereunder. The captions preceding the text of each Section, subsection and the Table of Contents hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. 11.8 Signature Pages. For convenience, the signatures of the parties of this Agreement may be executed and acknowledged on separate pages which, when attached to this Agreement, shall constitute this as one complete agreement. 11.9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 11.10 Prevailing Party's Attorney's Fees and Costs. If any party to this Agreement shall fail to perform any of its obligations hereunder, or if a dispute arises with respect to the meaning or interpretation of any provision hereof or the performance of the obligations of any parry hereto, the defaulting party or the parry not prevailing in GAPlanning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc M ORDINANCE NO. 1165 such dispute, as the case may be, shall promptly pay any and all costs and expenses (including without limitation, all court costs and reasonable attorneys' fees and expenses) incurred by the other parry with respect to such to such dispute or in enforcing or establishing its rights hereunder. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above -written. DEVELOPER: BERNARD INVESTMEI` A California Corpora ion Y By�- CITY: GROUP t CITY OF PALM DESERT, CALIFORNIA, a municipA corporation organized and existing under laws of the State of California By: A, 61'&tw� Benson, Ma r A elle D. Klassen, City Clerk G:\Planning\Kevin SwartMord\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 27 State of Cali rnia }SS } County of—vCr2s�DE On a , 2001, before me vE�( b��% , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person hose nam Is/ subscribed to the within instrument and acknowledged to me that he/ xecuted the same in his/ A�authorized capacity(ies), and that by his/Fysri gnatu�on the instrument the personSW, or the entity upon behalf of which the person�s��cted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. r sNc.sEOEsro COA MM. #1529M pD Signature oo NOTMYKa aCAUFOF A MY c M courmr a State of California }SS } County of Riverside } On October 6 , 20 08 , before me, M. Gloria Martinez , a Notary Public, personally appeared Jean--H. Benson and Rachelle D. Klassen , who proved to me on the basis of satisfactory evidence to be the person whose name i$/subscribed to the wi in Instrument and acknowledged to me that h /soe ey executed the same in F s/� er hei authorized capacity le ), and that by t�s/�e t el signature s® on the instrument the persor (>�s or the entity upon behalf of which the persor {�s acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITN Signa 44 M. GLORIA MARTINEZ Commission # 1697036 -� Notary Public - California • Riverside County My Comm. Expires Oct 29,201 of ORDINANCE NO. 1165 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY [to be attached prior to recording] GAPlanning\Kevin Swartz\Word\DA, CUP, PP 08-50 Catalina\City Council DA Ordinance.doc 29 Order No. 802555-15 SCHEDULE "A" The estate or interest in the land hereinafter described or referred to covered by this report is: 3 A fee Title to said estate or interest at the date hereof is vested in: Carole Taylor, a single woman The land referred to in this report is situated in the County of Riverside, State of California, and is described as follows: The East 114.65 feet of lot 13 of Palma Village Groves, as shown by map on file in book 20, page(s) 51 in the Office of the County Recorder of Riverside County. ORDINANCE NO. 1165 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT AS IT RELATES TO CONSTRUCTION FOR A 20-UNIT SENIOR CITIZEN APARTMENT PROJECT ON THE NORTH SIDE OF CATALINA WAY LOCATED AT 73-582 CATALINA WAY. BETWEEM THE CITY OF PALM DESERT AND BERNARD INVESTMENT GROUP, ATTACHED AS EXHIBIT A. CASE NO. DA 08-50 WHEREAS, the Planning Commission by its Resolution No. 2479 has recommended approval of said project; and WHEREAS, at said public hearings, said City Council heard and considered all testimony and arguments of all interested persons. WHEREAS, the City Council of the City of Palm Desert, California, DOES HEREBY ORDAIN, AS FOLLOWS: SECTION 1: That the Development Agreement 08-50 by Ordinance No. 1165 is hereby approved. SECTION 2: The City Clerk of the City of Palm Desert, California, shall certify to the passage adoption of this Ordinance and shall cause the same to be published once in the Desert Sun, a newspaper of general circulation, circulated within the City of Palm Desert, and the same 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 25th day of September, 2008, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ATTEST: FINERTY, KELLY, and BENSON NONE FERGUSON and SPIEGEL NONE I� �� '[Farm, 11-FOR; 014 v l0-.3-o'g /' - IAI EAN M. BEN ON, MAYOR E/tH DOCUMENT TO WHICH THIS CERTIFICATE IS ATTACHED. IS CERTIFIED TO BE A FULL, TRUE AND CORRECT COPY OF THE ORIGINAL ON FILE AND ON RECORD IN MY OFFICE. Dated: Iv RACHELLE D. KLASSEN, City Clerk CitX-o P-a?lnw-0T 3erL California r or w+r GARY L. ORSO Recorder P.O. Box 751 COUNTY OF RIVERSIDE Riverside, CA 92502-0751 v ASSESSOR -COUNTY CLERK -RECORDER (909) 486-7000 hitp://riverside.asrclkrec.com NOTARY CLARITY Under the provisions of Government Code 27361.7, 1 certify under the penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary: Steven C. Segesto Commission #: 1529985 Place of Execution: Riverside County Date Commission Expires: November 26, 2008 Date: October 6, 2008 Signature: Print Name: M. clo tinez 4,C'R 196P-AS4RE0 (Est. 05/2003)