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HomeMy WebLinkAboutORD 1251� CITY Of Pi[M OHIRT 73-510 FRED WARING DRIVE PALM DESERT, CALIFORNIA 92260-2578 TEL: 760 346-o6i i info@cityofpalmdesert.org August 5, 2013 VP Builders, LLC 371 Centennial Parkway, Suite 200 Louisville, Colorado 80027 Dear Sir or Madam: Subject: Villa Portofino Project For your records, a copy of the following executed and recorded documents with the County of Riverside are enclosed: Park Development Fees Agreement — Doc # 2013-0293178 Landscape Maintenance Agreement — Doc # 2013-0293179 Signal Maintenance Contribution Agreement — Doc # 2013-0293180 Amended and Restated Development Agreement — Doc # 2013-0293181 Covenant and Agreement Regarding Declaration of Covenants, Conditions and Restrictions — Doc # 2013-0293182 If you have any questions or require additional information, please do not hesitate to contact us. Sincerely, RACHELLE D. KLASSEN, MMC CITY CLERK RDK:glm Enclosure (as noted) cc/enc: Public Works Department Planning Department i~� PAINTED DM RFCY(lFD MIFR yy First America. Ti L'P f`►I�S OC # 2013-0293181 06/19/2013 04:24 PM Fees: $0.00 Page 1 of 37 Recorded in Official Records County of Riverside Larry W. Ward 4 1-1146 y �. Assessor, County Clerk & Recorder WHEN RECORDED RETURN TO: "This document was electronically submitted The City of Palm Desert to the County of Riverside for recording" 73-510 Fred Waring Drive Receipted by: LJONES RECEIVED CITY CLERK'S OFFICE. PALM DESERT, C►",, " 2013 AUG -2 PM, 5: 05 Palm Desert, California 92260 Attention: City Manager Fee Exempt - Govt. Code 27383 (Space above for Recorder's Use) Ordinance No. 1251 — Case No. DA 11-516 Approved by the Palm Desert City Council: October 25, 2012 VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT N 1 d m N FOR A PORTION OF THE PROJECT between THE CITY OF PALM DESERT a California charter city and VP LAND, LLC; VP BUILDERS, LLC; and COUNTRY CLUB DRIVE INVESTORS, LLC Dated as of )32012 72500.00791 \7577720.1 4" Rep(,ssted FirstAmerican Title C�ijS K WHEN RECORDED RETURN TO: The City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: City Manager Fee Exempt - Govt. Code 27383 (Space above for Recorder's Use) Ordinance No. 1251 - Case No. DA 11-516 Approved by the Palm Desert City Council: October 25, 2012 VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT w co C2.e, N U- L) N AWL N V w to � GC V17- `�G-� ra v FOR A PORTION OF THE PROJECT between THE CITY OF PALM DESERT a California charter city and VP LAND, LLC; VP BUILDERS, LLC; and COUNTRY CLUB DRIVE INVESTORS, LLC Dated as of IV Q 0 )32012 72500.00791 \7577720.1 C7 19 VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR A PORTION OF THE PROJECT This Villa Portofino Amended and Restated Development Agreement for a Portion of the Project ("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"), (ii) VP Land, LLC, a Colorado limited liability company ("VP Land"), (iii) VP Builders, LLC, a Colorado limited liability company ("VP Builders") and Country Club Drive Investors, LLC, a Delaware limited liability company ("County Club Drive Investors"). VP Land, VP Builders, and Country Club Drive Investors are sometimes individually referred to as "Owner" and collectively referred to as "Owners" herein. VP Land, LLC is also referred to as "Designated Owner' hereunder. 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, VP Land owns certain real property legally described in the attached Exhibit :6c (the "VP Land Parcel"), VP Builders owns certain real property legally described in the attached Exhibit "A-2" (the "VP Builders Parcel"), and Country Club Drive Investors owns certain real property legally described in the attached Exhibit "A-3" (the "Portola Parcel") (the VP Land Parcel, the VP Builders Parcel and the Portola Parcel are collectively referred to herein as the "Property") (for the avoidance of doubt, the existing 72 Villa units identified as Units 1-72 of the Phase 1 condominium plan (described below), and any associated real property rights and interests, the proposed 40 condominium units identified as Units 73-1.12 of the Phase 2 condominium plan (described below), and any associated real property rights and interests (collectively, the "Excluded Units"), and the land underlying the Clubhouse (as hereafter defined and as set forth in the condominium plans recorded against a portion of the Property) are not intended to be a part of the Property, nor subject to this Agreement); and WHEREAS, In 1998 and 1999, Owners' predecessors in interest, Royce International Investment Co. ("Royce"), was granted approval of General Plan Amendment 98-6, Change of Zone 98-7, Precise Plan/Conditional Use Permit 98-21 , and a Development Agreement entitled "Senior Housing Development Agreement Royce International", dated February 25, 1999 and approved by the City Council for the City of Palm Desert pursuant to City Ordinance No. 907 on February 25, 1999, as amended by City Ordinance No. 1075 adopted September 23, 2004 to reduce the minimum age limit set forth in said Senior Housing Development Agreement Royce International from 62 years of age to 55 years of age (collectively "Initial Development Agreement")(collectively "Prior Approvals"), which Prior Approvals provided for the development 72500.00791\7577720.1 on the Property of a health club and wellness resort for seniors, 288 apartments, 182 casita units, 161 bed skilled nursing facility, 150 bed assisted living facility and zone change to senior overlay (the "Initial Project"); and WHEREAS, pursuant to the Prior Approvals, in the intervening years 72 villa units and a clubhouse and related improvements (the "Clubhouse") were completed and construction of an additional 48 villa units was commenced; and WHEREAS, condominium plans were recorded against portions of the Property resulting in unapproved parcels and individual condominium units that were sold to the general public, and the terms of the Initial Development Agreement were not complied with by Royce; and WHEREAS, Owners have requested City to approve modifications to the Prior Approvals and related considerations, including a Conditional Certificate of Compliance to, among other things, confirm the prior subdivision of a portion of the Property ("COC"), a Tentative Tract Map, a modified Precise Plan, and this Amended and Restated Development Agreement, which shall collectively provide for the development of 311 units of independent living, assisted living, and/or skilled nursing on the Portola Parcel and up to 358 condominium units collectively on the VP Land Parcel and the VP Builders Parcel, without taking into account the 112 Excluded Units, all subject to a household age restriction of 55 years old (collectively the "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.); 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 Owners (each herein sometimes called a "Party" and jointly the "Parties") do hereby agree as follows: 72500.00791\7577720.1 C ARTICLE 1 GENERAL PROVISIONS 1.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement, which, with respect to the Property and only the Property, is intended to amend and restate the Initial Development Agreement. In the event of any conflict between the terms of this Agreement and the terms of the Initial Development Agreement, the terms of this Agreement shall control. Furthermore, and with respect to the Property only, the rights, interests, obligations and responsibilities of the Owners and the City, and any covenants, conditions or restrictions applicable to the Property, arising from or under the Initial Development Agreement, are replaced in their entirety by the rights, interests, obligations and responsibilities of the Owners and the City, and any covenants, conditions or restrictions applicable to the Property, as set forth herein. 1.2 Ownership of Property. Owners represent, covenant and warrant that they are the owners of fee simple title to their respective parcels comprising the Property as described in the above Recitals and as set forth on Exhibit "A-1" through Exhibit "A-Y. 1.3 Term. The term ("Term") of this Agreement shall commence on the Effective Date and shall continue for a period of ten (10) years thereafter unless this Term is modified or extended pursuant to the terms of this Agreement. So long as an Owner is not then in default of its obligations hereunder or under any agreement contemplated hereunder or otherwise with respect to any Project Approvals (as hereafter defined), and provided the Development Commitments (as hereafter defined) have been and, if applicable, continue to be satisfied and complied with, City agrees to reasonably consider an extension of the Term of this Agreement with respect to and upon the written request of such Owner for an additional five (5) year increment. Any such consideration by the City of an extension of the Term will require a determination by the City, in its sole discretion, that there has been no material change in the attendant facts and circumstances relating to the Project that would make or warrant a material change to the Project as currently contemplated advisable from the City's perspective. 1.4 Assignment, Sale and Transfer of Interest in parcels of the Property and this Agreement. Owners shall have the right to assign, sell or transfer their portion of 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 to any party that is not (a) a member of the homebuying public, (b) Palm Desert Villa Portofino Homeowners' Association, a California non- profit mutual benefit corporation, being the homeowners' association previously established for the Project other than the Portola Parcel ("HOA" ), with respect to easements and common areas, or (c) a lender who will obtain a security interest in all or any portion of the Property (collectively and as so qualified, "Exempt Parties") shall include the assignment and assumption of the respective rights, duties and obligations of the assigning, selling or transferring Owner arising under or from this Agreement. Except as otherwise expressly contemplated hereunder, no sale, transfer or assignment of any right or interest under this Agreement to any party that is not one of the Exempt Parties shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. Each Owner shall notify the City in the event of such Owner's sale or transfer of any portion of the Property to any party that is not one of the Exempt Parties. Failure to provide notice of sale or transfer when required hereunder shall be grounds for termination of this Agreement as it relates to the Owner in violation hereof, at absolute discretion of City. 72500.00791 \7577720.1 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 an Owner so long as the other Owners and their portion of the Property will not be materially and adversely affected by such modification (the "Minor Modification Qualification"). 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. Except as provided under section 2.3.3, termination of this Agreement shall not constitute termination of any Development Approvals (hereinafter defined) granted for or applicable to 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 by such Party prior to such termination, (ii) any default in the performance of the provisions of this Agreement by such Party which occurred prior to such termination, or (iii) any obligations of such Party 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 72500.00791\7577720.1 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 VP Land/VP Builders: VP Builders, LLC/VP Land, LLC c/o Family Development Group, Inc. 73081 Fred Waring Drive Palm Desert, California 92260 Attention: Rudy C. Herrera Telephone: (760) 900-8989 Facsimile: (760) 776-4422 With a copy to: VP Builders, LLC/VP Land, LLC c/o Real Capital Solutions 371 Centennial Parkway, Suite 200 Louisville, CO 80027 Attention: Ryan Atkin Telephone: (303) 466-2500 Facsimile: (303) 466-4602 If to Country Club Drive Investors: Country Club Drive Investors, LLC 28071 Las Brisas Del Mar San Juan Capistrano, CA 92675 Attn: Jerry Robinson Telephone: (949) 240-7109 Facsimile: (949) 240-7109 (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, as same shall be modified to provide for the Project, including the continued development, construction and sale of condominium units on the Property, and to provide for a unit age restriction of 55 years old within the Project: (a) GPA 98-6; CZ 98-7; PP/CUP 98-21; (b) The COC; 72500.00791\7577720.1 (c) Tentative Tract Map 36404 (the "TTM"); (d) This Amended and Restated Development Agreement; and (e) Conditions of Approval, attached hereto as Exhibit "B". 2.2 Owner Commitments: As part of the Project, and in consideration for the Development Approvals, Owners have committed to certain improvements as set forth below in this Section 2.2 in conjunction with the development and construction of the Project ("Development Commitments"). The allocation of applicable costs and responsibilities for such Development Commitments as between the Owners, as applicable, has been or will be addressed by the Owners in a separate agreement. 2.2.1 Emergency Vehicle Access Road: Temporary improvements to the emergency vehicle access road on and across the Portola Parcel to Portola Avenue as required by PP 98-21 shall be completed in accordance herewith prior to the issuance of any additional building permits for the Project. The existence and use of such access road is contemplated by an existing easement between the Owners, which easement will be realigned by the Owners and set forth on Final Project Map (as hereafter defined). Such temporary improvements to the emergency vehicle access road may be constructed as a 24 foot wide roadway with one lane in each direction, and in any event shall comply with the requirements of the City's Director of Public Works and Fire Marshall, which requirements shall include, but not be limited to: (1) The driveway apron shall be fully improved; (2) A survey must be completed and approved to center the emergency vehicle access road on the property line; (3) Except as otherwise set forth herein, use of the emergency vehicle access road shall be limited to emergency vehicles and construction vehicles only, provided that use and access for construction purposes is subject to review by the City's Director of Public Works and may be revoked at any time, and further provided that (A) any construction traffic use of the emergency vehicle access road shall utilize transponders or other means to actuate the VDP Gate (as hereafter defined) for the passing of each construction vehicle, (B) the VDP Gate shall not be left open at any time, except for Fire Department emergencies, and (C) Designated Owner shall ensure that public traffic and residents do not use such emergency vehicle access road until permanent improvements have been installed in accordance herewith, at which time the emergency vehicle access road, as enhanced by the completion of the Secondary Access Permanent Improvements (as hereafter defined), may be utilized for purposes set forth in Section 2.2.3 herein. (4) A crash gate with a knox box shall be located where the emergency vehicle access road joins Villa Del Pellegrino (the "VDP Gate"); (5) The emergency vehicle access road must be designed and constructed to support an 80,000 lb. vehicle and shall be a minimum of 3 inches AC on compacted native soil; 72500.00791\7577720.1 (6) The bank along the north side of the emergency vehicle access road needs to be cut back 3/1; and (7) Improvement plans for the emergency vehicle access road shall be submitted, reviewed, and approved before construction takes place. 2.2.2 Amendment of CC&Rs: Designated Owner shall covenant and agree to be bound by the Second Amended and Restated Declaration of Condominium for Villa Portofino dated September 25, 2007 and recorded December 28, 2007 as Document No. 2007- 0769813 with the Riverside County Clerk and Recorder, as same has been modified prior to the Effective Date (the "Existing CC&R"s), pursuant to a recorded instrument in form and substance reasonably satisfactory to the City recorded prior to or concurrent with this Agreement and prior to the issuance of any additional building permits for the Project (the "CC&R Acknowledgement Obligation"). The CC&R Acknowledgement Obligation shall require that Designated Owner execute any future amendment to the Existing CC&Rs to clarify the property ownership descriptions in the Existing CC&Rs. 2.2.3 Portola Avenue Improvements/Full Improvements to the Secondary Access: Concurrent with the recording of this Agreement and the Final Map applicable to the Project derived from and based upon the TTM ("Project Final Map"), Country Club Drive Investors will dedicate right-of-way along Portola Avenue and Country Club Drive to the City as required by the Development Approvals (such dedication and acceptance by the City being referred to herein as the "Portola Dedication"). The land that is the subject of the Portola Dedication is depicted on Exhibit "C" attached hereto (the "Portola Dedication Land"). Concurrent with the recording of the Project Final Map, each Owner will provide to the City and the Party performing the underlying work, a construction access easement with terms reasonably acceptable to the applicable Parties thereto, if and to the extent required, to provide for the construction of the Portola Improvements (as hereafter defined). Prior to the recording of the Project Final Map, Designated Owner shall enter into an Improvement Agreement with the City substantially in the form of Exhibit "D" attached hereto (the "Improvement Agreement"), which Improvement Agreement (a) shall address construction of (i) street improvements along Portola Avenue as required by the Development Approvals ("Portola Improvements"), and (ii) full improvements to the secondary access on and across the Portola Parcel to Portola Avenue as required by the Development Approvals ("Secondary Access Permanent Improvements"), and (b) shall be secured by a single improvement bond in the amount reasonably acceptable to the City securing the design and construction of the Portola Improvements and the Secondary Access Permanent Improvements in compliance with the Improvement Agreement (the "Improvement Bond"). Once the Secondary Access Permanent Improvements have been installed, any access and use restrictions set forth in Section 2.2.1 hereof shall no longer apply and the portion of such road on the Portola Parcel may be utilized by the Owners and their successors, assigns, contractors and invitees; provided, however, that the VDP Gate (or a replacement or enhancement thereof) shall not be removed and entry upon the VP Land Parcel and the VP Builders Parcel shall be restricted to the use and access for ingress and egress purposes of emergency and construction vehicles and for the use and access of the owners of all or any portion of the Property other than the Portola Parcel, and their successors, mortgagees, lessees, licensees, contractors, guests and invitees, for pedestrian, bicycle and vehicular (including construction vehicles) access, ingress and egress; provided, however, nothing herein shall be deemed to restrict the use of the Owner of the Portola Parcel and the successors, assigns, contractors and invitees of such Owner, and the residents of the Portola Parcel, for purposes other than access to the VP Land Parcel and the VP Builders Parcel. The 72500.00791\7577720.1 Parties intend that the Improvement Bond will be posted upon execution of the Improvement Agreement and Designated Owner agrees to utilize commercially reasonable best efforts to procure such Improvement Bond prior to the occurrence of the Portola Dedication; provided, however, that in the event that the bonding company rejects Designated Owner's application for such Improvement Bond because neither the City nor Designated Owner then own the Portola Dedication Land, as evidenced by a written notice of rejection of Designated Owner's underlying application for the improvement Bond from such bonding company, or if such bonding company requires that the Portola Dedication occurs before such Improvement Bond becomes active, City shall permit Designated Owner to procure the Improvement Bond in active form promptly following the occurrence of the Portola Dedication; provided, however, that no additional building permits shall be issued for the Project until such Improvement Bond is procured and active. 2.2.4 Bond per Improvement Agreement: The Improvement Agreement and the Improvement Bond shall provide, to City's satisfaction, for completion of the Portola Improvements and the Secondary Access Permanent Improvements by the date two (2) years after the Effective Date of this Agreement but in any event prior to issuance of any building or grading permits for the Portola Parcel not specifically related to the Portola Improvements and the Secondary Access Permanent Improvements. Ownership of all or any portion of the Portola Parcel shall not be transferred prior to the occurrence of the Portola Dedication. If the Portola Improvements and/or the Secondary Access Permanent Improvements are not completed in a timely manner by Designated Owner in accordance with the standards set forth in the Improvement Agreement, the City shall have the right to withhold building permits, certificates of occupancy, inspections, and plan check review with respect to the Project until such time as the Portola Improvements and the Secondary Access Permanent Improvements have been completed. The City shall have the right to use the applicable bond to complete the remaining/incomplete Portola Improvements and/or the Secondary Access Permanent Improvements, and upon completion, issuance of permits and certificates, and performance of inspections will resume. 2.2.5 Country Club Wall: The Project's perimeter wall along County Club Drive shall be repaired by the Party owning the underlying land before issuance of any additional building permits for the Project. The perimeter wall shall be extended along the Project's north property line to the adjoining City parcel (that has been developed as a fire station) by Country Club Drive Investors per plans approved by the City prior to the issuance of building permits for the Portola Parcel other than any such building permits that may be required in connection with the construction of the access road across the Portola Parcel or the Portola Improvements ("Country Club Wall Extension"). 2.2.6 Landscaping: Prior to issuance of any additional building permits for the Project, Designated Owner shall enter into a long-term landscaping maintenance agreement, in a form reasonably acceptable to the City, for maintenance of landscaping fronting the Project on Country Club Drive, including the median, and all retention basins within the Project (the "Landscaping Maintenance Agreement"). The Landscaping Maintenance Agreement may be assigned by Designated Owner to the HOA. Prior to the issuance of the first certificate of occupancy or completion for the Portola Parcel, Country Club Drive Investors shall enter into a long-term landscaping maintenance agreement, in a form reasonably acceptable to the City, for maintenance of landscaping fronting the Project on Portola Avenue (the "Portola Landscaping Maintenance Agreement"). 72500.00791\7577720.1 0% % 2.2.7 Signal Maintenance: Designated Owner has entered into a signal maintenance agreement providing that Owners will pay to the City twenty five percent (25%) of the costs related to energy, maintenance and repair of the traffic signal at Country Club Drive and Via Portofino/Palm Greens Parkway (the "Signal Maintenance Agreement"). The Signal Maintenance Agreement may be assigned by Designated Owner to the HOA. 2.2.8 Affordable Housing In -Lieu Payment: As an affordable housing in -lieu payment each Owner shall pay $1,166 per residential unit constructed on their respective portion of the Property prior to the City's issuance of a certificate of occupancy for or applicable to such unit(s) (the "In -Lieu Fee"); provided, however, that with respect to the Portola Parcel, the unit breakdown for which the In -Lieu Fee is due shall be as follows: Lot 3 of the Portola Parcel shall contribute the In -Lieu Fee for 75 units (Skilled Nursing) and Lot 4 of the Portola Parcel shall contribute the In -Lieu Fee for 80 units (Assisted Living). No additional In -Lieu Fee shall be due with respect to the Portola Parcel. 2.3 Rights to Develop. Subject to the terms, conditions, and covenants of this Agreement, each Owner's right to develop their portion of the Project in accordance with the Development Approvals (and subject to the Conditions of Approval) shall be deemed vested upon complete execution of (1) this Agreement, and (2) the Improvement Agreement, which vesting shall expire with respect to an Owner and their portion of the Property upon the earlier of the following occurrences: (a) termination of this Agreement with respect to such Owner pursuant to the terms hereof; (b) an uncured material default of this Agreement by such Owner; (c) an uncured material default under the Improvement Agreement, subject to the City providing notice to the Owner of such default and a reasonable cure period; or (d) 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 the last improvement to be occupied on such phase, parcel, or lot. Additionally, (aa) in the event of and during the period of an uncured default under the Landscaping Maintenance Agreement or the Signal Maintenance Agreement, and subject to the City providing notice of such default and a reasonable cure period to the Owners, the City shall have the right to withhold building permits, certificates of occupancy, inspections, and plan check review with respect to the Project, and (bb) in the event of and during the period of an uncured default under the Portola Landscaping Maintenance Agreement, and subject to the City providing notice of such default and a reasonable cure period to Country Club Drive Investors, the City shall have the right to withhold building permits, certificates of occupancy, inspections, and plan check review with respect to the Portola Parcel. So long as this Agreement remains in full force and effect, and subject to the terms of the preceding sentence, City agrees with respect to the Project to issue building permits and certificates of occupancy and to conduct inspections and review plans and submittals in the ordinary course, and to cooperate with Owners with respect to satisfying any other approvals or authorizations required by the Existing Development Regulations (as hereafter defined) and any applicable New Laws (as hereafter defined). 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 Owners under this Agreement. Except as explicitly modified by this Agreement, and except as otherwise expressly provided herein, the Project shall remain subject to the following, to the same extent it would without this Agreement: (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 72500.00791\7577720.1 9 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 and construct the Project in accordance with the Development Approvals, unless such New Laws are (A) adopted by the City on a City wide -basis, with no exceptions or grandfather clause of any kind applicable to similar developments, 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 to the Project (or, if adoption is optional, if the failure to adopt or apply such non -City governmental law or regulation and apply same to the Project would cause the City to be in violation of state of federal law, or to sustain a loss of funds or loss of access to funding or other resources or subject to any penalty not reimbursed in full by the Owners), or (C) New Laws that have been adopted by City Council as of the Effective Date but have not been finally approved by the Effective Date beyond any challenge or appeal period, but only to the extent the City specifically reserves the right to apply same to the Project 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. 2.3.1 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. 72500.00791\7577720.1 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 on a go forward basis, 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. 2.3.2 Owners' Obligations Regarding Conditions of Approval. The Owners shall comply with the Conditions of Approval for the Development Approvals. Owners acknowledge that additional conditions of approval beyond those set forth in Exhibit "B" may be applicable to the Project if imposed in conjunction with future Project Approvals; provided, however, that no additional conditions of approval or restrictions arising in connection with any such future Project Approvals shall attach to, condition or restrict any portion of the Property unless the underlying Owner is a party to or consents in writing to the application or submittal to the City seeking any such future Project Approvals. An Owner's failure to comply with the Conditions of Approval as they relate to such Owner's Property shall be a material breach of this Agreement by such Owner and grounds for its termination with respect to such Owner and such Owner's portion of the Property pursuant to Section 3.3 hereof. 2.3.3 Grading Plans/Pad Heights. Owners shall submit precise grading plans for review and approval of the City. Pad elevations on the precise grading plans for the VP Land Parcel and the VP Builders Parcel shall conform to the range of elevations shown on the preliminary grading plans approved by the City Planning Commission. 2.4 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 an Owner finds that a non -minor modification in the Development Approvals is necessary or appropriate as same relates to their Property, then subject to the Minor Modification Qualification, such Owner may apply for a subsequent development approval to effectuate such change and City shall process and act on such application if consistent with the terms hereof except as otherwise provided by this Agreement. 2.5 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. 2.6 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 pursuant to applicable law. 72500.00791\7577720.1 The provisions of this Agreement and benefits to be received by City and Owners 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 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. However, the City shall not be liable under any circumstances for monetary damages for any breach of this Agreement or for any cause of action which arises out of this Agreement. 3.2 Specific Performance/Self Help. The Parties acknowledge that although money damages are available to the City 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 by any Party and should be available to such Party because it may be difficult and impracticable to determine the sum of money which would adequately compensate such Party for breaches of this Agreement; the Parties acknowledge and agree that any injunctive or equitable relief may be ordered on an expedited, priority basis. Additionally, each Owner shall have the right of self-help (including reasonable access rights) hereunder and under any agreements referenced herein to cure any default by another Owner herein or therein if such default by such other Owner would materially and adversely affect such non -defaulting Owner. In the event an Owner exercises such right of self help, the defaulting Owner shall reimburse the non -defaulting Owner for any and all costs associated with the exercise of such self help remedy upon demand, and the non -defaulting Owner shall have the right to record a lien on the defaulting Owner's portion of the Property to secure payment of such costs. 3.3 Termination. Subject to Section 4.8 hereof, the failure of an Owner to complete or satisfy in a timely manner the Conditions of Approval applicable to such Owner per section 2.3.2, or the Development Commitments applicable to such Owner, shall constitute a material breach of this Agreement and entitle the City to terminate this Agreement with respect to such Owner, at its absolute discretion, if such breach is not cured following notice of such breach and a reasonable opportunity to cure same (which cure period shall not be, in any event, less than 30 days). For the purposes of this section 3.3, the Development Commitments shall be deemed to apply to all of the Owner except that (a) the CC&R Acknowledgement Obligation shall not be deemed to apply to Country Club Drive Investors, and (b) the Country Club Wall Extension and any obligations arising from or in connection with the Portola Landscaping Maintenance Agreement shall not be deemed to apply to VP Land or VP Builders. 72500.00791\7577720.1 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 another Party, or the failure by a Party to exercise its rights upon the default of another Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by such 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. No 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 Party's employment force), government regulations, court actions (such as restraining orders or injunctions), another Party's breach of this Agreement, or other causes beyond the Party's control. 72500.00791\7577720.1 Without limiting the generality of the foregoing, upon the issuance of a court order enjoining development of the Project incident to any legal proceeding by a third party to challenge the modifications to the 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 for the period equal to the period of the pendency of such order. 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 their ownership of the Property or any portion thereof. Notwithstanding the foregoing, this Agreement shall be deemed to have automatically terminated without any further actions required by any of the Parties upon (a) the closing of the sale of any condominium unit within the Project to a member of the homebuying public, but only with respect to such condominium unit and the buyer thereof, and (b) the conveyance of any Project common areas to the HOA, but only with respect to such Project common areas and the HOA. 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 no Party is acting as the agent of any other Party 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 with respect to any Parties hereto. The only relationship between City and Owners is that of a government entity regulating the development of private property and the owners 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 any Party at any time, the other parties 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. 72500.00791\7577720.1 4.14 Attorneys' Fees. If legal action is brought by any Party against the others 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 Cooperation in the Event of Legal Challenge. 4.15.1 The filing of any third party lawsuit(s) against City or Owners relating to this Agreement, the Development Approvals or any other Project related approvals (collectively "Project Approvals") or other development issues affecting the Property shall not delay or stop the development, processing or construction of the Project or approval of any subsequent approvals, unless the third party obtains a court order preventing the activity. City shall not stipulate to or cooperate in the issuance of any such order. 4.15.2 In the event of any administrative, legal or equitable action instituted by a third party challenging the validity of any provision of this Development Agreement, the procedures leading to its adoption, or the Project Approvals for the Project ("Project Challenge"), each Owner and City shall have the right, in its sole discretion, to elect whether or not to defend such action on its own behalf. Except as otherwise expressly provided herein, Designated Owner shall defend, indemnify, and hold harmless the City (including its agents, officers and employees) from a Project challenge with counsel chosen by the City, subject to Designated Owner's approval of counsel, which shall not be unreasonably denied, and at Designated Owner's sole expense; provided, however, that the City shall be responsible for salaries, benefits, administrative and overhead expenses incurred by the City in connection with any such defense (the "Defense and Indemnity Obligation"). If the City is aware of such an action or proceeding, it shall promptly notify Owners and cooperate in the defense. Designated Owner upon such notification shall deposit with City sufficient funds in the judgment of City Finance Director to cover the expense of the Defense and Indemnity Obligation without any offset or claim against said deposit to assure that the City expends no City funds, and City Finance Director may require additional deposits if at any time the current deposits are insufficient to assure that the City expends no City funds (the "Defense Deposit Obligation"). Any such deposited funds not utilized by the City to defend a Project Challenge shall be promptly returned to Designated Owner. Notwithstanding the foregoing, neither Designated Owner nor VP Builders shall have any obligation or responsibility hereunder pursuant to the Defense and Indemnity Obligation or the Defense Deposit Obligation, in which case Country Club Drive Investors shall be solely responsible fof satisfying the Defense and Indemnity Obligation and the Defense Deposit Obligation (and entitled to a return of any unused funds), if (i) neither VP Land nor VP Builders is then in default of any obligations under this Agreement or under any agreement contemplated hereunder or otherwise with respect to any Project Approvals, and (ii) such Project Challenge specifically involves and solely relates to the development of and/or the construction upon the Portola Parcel or was solely caused or created by the act or omission of Country Club Drive Investors (the "Designated Owner Exception"). If any Party elects to defend a Project Challenge, the Parties hereby agree to affirmatively cooperate in defending said Project Challenge and to execute a joint defense and confidentiality agreement in order to share and protect information, under the joint defense privilege recognized under applicable law. As part of the cooperation in defending a Project Challenge, the Parties shall coordinate their defense in order to make the most efficient use of legal counsel and to share and protect information. Each Party shall have sole discretion to terminate its defense of a Project Challenge at any time. The City shall not settle any third party litigation of Project Approvals without Designated Owner's consent, which consent shall not be unreasonably withheld, 72500.00791 \7577720.1 G � V conditioned or delayed, unless Designated Owner fails to deposit sufficient funds to assure defense and indemnity of the City. If Designated Owner is responsible hereunder for satisfying the Defense and Indemnity Obligation and the Defense Deposit Obligation because the Designated Owner Exception does not apply, Country Club Drive Investors, although not responsible to City hereunder for satisfying the Defense and Indemnity Obligation or the Defense Deposit Obligation, shall be responsible for reimbursing Designated Owner upon demand for 28% of the funds required from Designated Owner to satisfy the Defense and Indemnity Obligation and the Defense Deposit Obligation in accordance herewith before taking into account any reimbursement from other Owners (the "CCDI Reimbursement Obligation"), and VP Builders shall be responsible for reimbursing Designated upon demand for 36% (or as otherwise agreed to by VP Land and VP Builders) of such required funds, which obligations shall be secured by lien rights in favor of Designated Owner; provided, however, that -the CCDI Reimbursement Obligation shall not apply, and Country Club Drive Investors shall have no obligation or responsibility hereunder to the City or to VP Land nor VP Builders with respect to any aspect of the Defense and Indemnity Obligation and the Defense Deposit Obligation if (x) Country Club Drive Investors is not then in default of any obligations under this Agreement or under any agreement contemplated hereunder or otherwise with respect to any Project Approvals, and (y) such Project Challenge specifically involves and solely relates to the development of and/or the construction upon the VP Land Parcel and/or the VP Builders Parcel or was solely caused or created by the act or omission of VP Land and/or VP Builders. 4.16 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. {Signatures follow on next page} 72500.00791\7577720.1 m m SIGNATURE PAGE TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT CITY: CITY OF PALM DESERT a California charter city vor Its: Mayor ATTEST: APPROVED AS TO LEGAL FORM: BEST BEST & KJ�IEGER LLP By: D e in, City Attorney 72500.00791\7577720.1 in w SIGNATURE PAGE OF OWNERS VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT VP Land, LLC, a Colorado limited liability company By: Family Financial, LLC, a Nevada limited liability company, its Manager By. Ru C. Herrera, Manager VP Builders, LLC, a Colorado limited liability company By: Family Financial, LLC, a Nevada limited liability company, its Manager By: A ` � Ru . Herrera, Manager Country Club Drive Investors, LLC, a Dela_Ware limited liability company By. Na / MaJc O AnQ() UKa.Je�ly '� Robr`�so� T: -. A 72500.00791 \7577720.1 STATE OF CALIFORNIA § COUNTY OF 12�UC2.St0E § On a, 2012, before me, r G. (insert name) Notary Public, personally appeared P�V-9C , proved to me on the basis of satisfactory evidence} to be the person(s) whose name{&) isle subscribed to the within instrument and acknowledged to me that hefshe/t#ey executed the same in his'"A*e- authorized capacitykk-* and that by his ;e#R%4 signature(& on the instrument the person{&), or the entity upon behalf of which the person(&) 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. WITNESS my hand and official seal. [SEAL] ANGELA G. HECK Lary Public, State of California Commission # 1890433 ,I33 Notary Public • Caflforais ���fly Riverside County MY Came. Expires Jun 18 014 ? •'fOun I tp, C% ` I STATE OF CALIFORNIA § COUNTY OF j2IV jof- § On 2012, before me, (insert name) Notary Public, personally appeared OiTk4rero , proved to me on the basis of satisfactory a idenc4 to be the person(&) whose name( is/a-Fe subscribed to the within instrument and acknowledged to me that he/sheAhey- executed the same in his�heF/4heir authorized capacity0es) and that by his/#eraheir signature(&-) on the instrument the person(&), or the entity upon behalf of which the person*) 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. WITNESS my hand and official seal. [SEAL] N tary Public, State of California ANGELA G. HECK ht% Commission # 1890433 Notary Public • California I `l Riverside CountyLV%TjU //,^, Comm. Ex Jun 18, 2014 ' ,X p J0111 Wr -------------- 72500.00791\7577720.1 STATE OF CALIFORNIA § COUNTY OF r� Q 14,�(G § On a 26 L 2012, oefore me, fylV66' gi L MLvu i4nsert name) Notary Public, personally appeared r9ERa4 J1�.�y Roi3t/y proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 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 [SEAL] AVNEET BEDI r�n COMM. # 1872388 rn u! NOTARY PUBLIC-CALIFORNIA V' ORANGE C011NTY MY COMM. EXP. DEC. 26, 2013 STATE OF CALIFORNIA § COUNTY OF k, ue sid _ § Notary Public, State of California #1$7Z39S Ey, pec, 2f,,2-61 0 OnJct"'"1 2012, before me, n?. C. Sa�lche� (insert name) Notary Public, personally appeared Tan (2. SarniS proved to me on the basis of satisfactory evidence) to be the person($) whose name($) is/a/e subscribed to the within instrument and acknowledged to me that [16/she/tlxey executed the same in hit/her/th(Ar authorized capacity(igt) and that by 114/her/Weir signature($) on the instrument the person(0), or the entity upon behalf of which the person($) 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. WITNESS my hand and official seal. [SEAL] ------------------- M. G. SANCHEZ Notary Publi tate of Californ Commission #E 1906339 ai Notary Public - California i Riverside County My Comm. Ex Tres Oct 29.2014 72500.00791\7577720.1 EXHIBIT "A-1" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT Legal Description of VP Land Parcel The land referred to herein is situated in the State of California, County of Riverside, City PALM DESERT. and described as follows: PARCEL A: LOT 1 OF TRACT 29489, IN THE CITY OF PALM DESERT, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 311, PAGES 60 AND 61 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF MAID COUNTY. EXCEPTING THEREFROM THOSE PORTIONS OF LOT 1 OF TRACT 29489 SHOWN AND DEPICTED ON THOSE CERTAIN CONDOMINIUM PLANS FOR VILLA PORTOFINO, FOR PHASES 1 & 3 RECORDED JANUARY 23, 2002 AS INSTRUMENT NUMBER 2002-038727 AND AMENDED DECEMBER 28, 2007 AS INSTRUMENT NUMBER 2007-0769812 (PHASE 1),- AND NOVEMBER 30, 2004 AS INSTRUMENT NUMBER 2004-0950249 (PHASE 3), ALL OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM: [SEE FOLLOWING PAGE] 72500.00791\7577720.1 LIM EXHIBIT "A-1" continued ALSO EXCEPTING FROM PARCEL A: Units 73 through 112, being a portion of Lot 1 of Tract No. 29489, in the City of Palen Desert, as shown by Map on file In Book 311, Pages 60 and 61 of Maps, In the Office of the County Recorder of Riverside County, California, as shown on the Condominium Plan for Phase It of Villa Porto Prot, recorded December 28, 2007 as Instrument No. 2007-770586 of Official Records of Riverside County. An undivided 40/40ths interest in and to the "Building Common Area" as shown in the Plan and more particularly defined in the Declaration. EXCEPTING THEREFROM THE FOLLOWING: A. units 73 through 112 inclusive, as shown and defined In the Declaration and Plan above mentioned, and 8. Ali of those certain "Exclusive Use Common Areas" more particularly shown and described In the Declaration and Plan above mentioned and reserved to particular units other than the unit described in and as Parcel 1 herein, and C. Excepting and reserving, however, the easements and rights of way described In the Oration for the project and any exhibits attached thereto ("Declaration") recorded on January 23, 20002 as Instrument No. 2002-038728 and amended and restated March 24, 20G4 as instrument No. 2004- 205858 and December 28, 2007 as instrument No. 2007-0769813, all of Official Records of the County of Riversidee, State of California. A non-exclusive easement for ingress and egress and a non-exclusive easement and right to enter upon any portion of Lot I for the purpose of performing any duty or exercising any right of the Pain Desert Villa PRorWw Homeowners' Association under that certain Amended and Restated Declaration of Condominium recorded In the Office of the Recorder on March 24, 20t}4 as Instrument No. 2004-0205858 of Official Records "Declaration"). This easement and right to enter includes, without limitation, the right to enter the Members ammon Area, the Building Common Area and the Units. AU of those non-exclusive rights appurtenant to Parcels 1 and 2 above for Ingress, egress and support, and all other purposes described In the Declaration and Plan above mentioned. FABUL4* Those certain exclusive Use Common Areas as defined by the above referenced Condominium Plan and Declaration appurtenant to Parcel 1 above. APN: 622-020-090-9 (Portion) PARCEL B: AN ACCESS EASEMENT FOR INGRESS AND EGRESS OVER AND ACROSS PHASE I OF THE VILLA PORTOFINO CONDOMINIUM PROJECT AS SET FORTH ON THAN CERTAIN CONDOMINIUM PLAN RECORDED JANUARY 23, 2002, AS FILE NO. 2002- 038727 SAID EASEMENT WAS RECORDED AUGUST 31, 2006 AS INSTRUMEN-7 NUMBER 2006-0646593, OF OFFICIAL RECORDS. 72500.00791 \7577720.1 EXHIBIT "A-2" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT Legal Description of VP Builders Parcel The land referred to bw%-ja: is skested is the Swe of C:allfora ik Coo aty of Riverside, MY of Palm Doa+ertt and deserll►ed as f3allows: PARCEL A b s s tb • a• �b b� • W • r as a as t PARCE�L B. a �► r• e• s �' s � a s r i i b 72500.00791\7577720.1 ""N EXHIBIT "A-3" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT Legal Description of Portola Parcel The land referred to Herein is situated in the State of California, County of Riverside, City of PALM Desert, and described as follows: THE POTION OF THE NORTH HALF OF THE NORTHEAST QUARTER OF SECTION 8, TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN BERNARDINO AND MFs MIAN, CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNTA, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: COMMENCING AT THE UTIMRSECTION OF THE WESTERLY LINE OF SAID NORTH HALF OF THE NORTHEAST QUARTER WITH TIM SOUTH LINE OF TIM NORTH 44.00 FEET OF SAID NORTH HALE OF THE NORTHEAST QUARTER, THENCE NORTH 89°37'25" EAST ALONG SAID SOUTH LINE A DISTANCE OF 2060.13 FEET TO THE TRUE POINT OF BEGINNING; TECEN'CE CONTINUING NORTH 89°37'25' .AST ALONG SAID SOUTH LINE A DISTANCE OF 32955 FEET TO TIM NORTHWEST CORNER OF, THAT CERTAIN PARCEL OF LAND DEEDED TO THE CITY OF PALM DESERT RECORDED MARCH 5,1986 AS INSTRUMEN T NO.51057, OF OFFICIAL RECORDS AND RE -RECORDED SEPTIIViBER 24,1986 AS INSIRUN324T NO.234154,OF OFFICIAL RECORDS; THENCE SOUTH d0°22'35" EAST ALONG THE WESTERLY LENE OF SAID CITY LAND A DISTANCE OF 51,00 FEET TO AN ANGLE POINT; THENCE SOUTH 45*W'38" EAST ALONG LAST SAID WESTERLY LINE A DISTANCE OF 238.94 FEET TO AN ANGLE POINT; THENCE SOUTH 89°52'36"-EAST ALONG TIM SOUTH L;NE OF SAM CITY LANs) ADISTANCE OF 40.00 FEET TO A POINT ON TH WEST LINE OF THE EASTERLY 50.00 FEET OF SAID NORTH HALF OF THE NORTHEAST QUARTER; THENCE SOUTH 00°07'20" WEST ALONG LAST SAID WEST LINE A DISTANCE OF 1060.61 FEET TO A POINT OF IIdTERSECTTON OF SAID WEST LINE OF THE EASTERLY 50.00 FEET WITH' THE SOLT II LINE OF THE NORTH HALF OF THE NORTHEAST QUARTER OF SAID SEMON 8; THENCE SOUTH 89041107" WEST, ALONG LAST SAID SOUTH LINE ADISTANCE OF 170.00 FEET; THENCE NORTH 00°07'20" EAST, A DISTANCE OF 150.00 FEET; THENCE SOUTH 89-41'07- WEST, A DISTANCE OF 369.69 FEET; THENCE NORTH 00007'20" EAST A DISTANCE OF 11.31.08 FEET TO A POINT ON THE SOUTH LINE OF THE NORTFIERLY 44.00 FEET OF SAID NORTH HALF OF THE NORTHEAST QUARTER, SAID POINT ALSO BEING TEE TRUE POINT OF BEGINNING. AS PER CERTOCATE OF COAeLiANCE (WAArER OF PARCEL MAP PMW 00-23) RECORDED OCTOBER 24, 2001 AS INSTRUMF. r NO. 200I-518389, OF OFFICIAL RECORDS. APN: 622-020-086-6 (End ofLegal Description) 72500.00791 \7577720.1 EXHIBIT "B" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT CONDITIONS OF APPROVAL CONDITIONS OF APPROVAL 2.7 CASE NOS. DA 11-516, PP 98-21 Amendment No. 2, and TTM 36404 DEPARTMENT OF COMMUNITY DEVELOPMENT: The development of the property shall conform substantially with exhibits on file with the Department of Community Development/PIan ning, as modified by the following conditions. 2. 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 City Fire Marshal Public Works Department Evidence of said permit or clearance from the above agencies shall be presented to the Department of Building & Safety at the time of issuance of a building permit for the use contemplated herewith. 3. Prior to issuance of any additional building permits for the Project, Designated Owner shall enter into a long-term landscaping maintenance agreement, in a form reasonably acceptable to the City, for maintenance of landscaping fronting the Project on Country Club Drive, including the median, and all retention basins within the Project (the "Landscaping Maintenance Agreement"). The Landscaping Maintenance Agreement may be assigned by Designated Owner to the HOA. Prior to the issuance of the first certificate of occupancy or completion for the Portola Parcel, Country Club Drive Investors, successors and assigns, shall enter into a long-term landscaping maintenance agreement, in a form reasonably acceptable to the City, for maintenance of landscaping fronting the Project on Portola Avenue (the "Portola Landscaping Maintenance Agreement"). All to be consistent with the Property Maintenance Ordinance (Ordinance No. 801), the approved landscape plan, and the current addition of the City of Palm Desert Plant Maintenance Guide. 4. Access to trash/service areas shall be placed so as not to conflict with parking areas. The applicant shall contact Burrtec Waste and Recycling, Inc. to provide trash and recycling services that shall include the provisions of and operation of a 72500.00791\7577720.1 stinger/bin truck to maneuver the bins to a collection area above ground from within the underground service area. Depending on the location of the trash and recycle bins, the trash enclosures may be required and shall be consistent with the Palm Desert Municipal Code Chapter 8.12 and other conditions, such as number, size, and location of enclosures to accommodate the required number of bins. All bins or enclosures must be screened from public view. 5. All sidewalk plans shall be reviewed and approved by the Department of Public Works. 6. The applicant shall submit design development plans to the Architectural Review Commission before review of the construction drawings by the City. 7. All conditions of approval shall be recorded with the Riverside County Clerk's office before any building permits are issued. Evidence of recordation shall be submitted to the Department of Community Development/Planning. 8. The Final Development Agreement shall be recorded within 40 days of final approval of the project by the City Council. 9. Prior to the City issuing any building permits for Lot 3 and Lot 4 on Tentative Tract Map 36404, the existing block wall on Country Club Drive shall be extended to the adjoining city owned fire station parcel. 10. Applicants shall defend, indemnify and hold harmless the city against any third party legal challenge to these approvals, with counsel chosen by the city at applicants expense. The defense obligation is described in more detail in the Amended and Restated Development Agreement. 11. None of these project approvals is valid until recordation of the certificate of approval and the Development Agreement. If a court voids any of the project approvals, including the Certificate of Compliance or Development Agreement, all of the development approvals shall be null and void. 12. The City Council approval of the Certificate of Compliance is to retroactively approve the prior unapproved subdivision of the property. 13. Developer shall enter into a recordable Development Agreement to memorialize these and other conditions placed on the project. DEPARTMENT OF PUBLIC WORKS: Prior to recordation of the Tract Map and any permits: 72500.00791\7577720.1 The applicant shall not be placed on the agenda for the first reading of City Council until the preliminary WQMP is approved. 2. The final tract map shall be submitted to the Director of Public Works for review and approval. 3. Dedicate additional right of way for ultimate improvements at Portola Avenue secondary access as set forth as Lot B of the tentative tract map. 4. The final tract map shall dedicate an additional 11' of right-of-way along Country Club Drive for a total of 55' from center line as set forth as lot A thereon. 5. Reciprocal access easements and drainage easements between lots shall be provided for on the final tract map or in the CC&R's. 6. The final tract map shall provide for a public 20' pedestrian easement and a private 20' landscape easement within the 20' adjoining and along Portola Avenue, and a private 20' landscape easement along Country Club Drive, in addition to the street right of way noted above, as set forth on the tentative tract map. An additional public pedestrian easement may be required on Country Club Drive for any portion of sidewalk beyond 55-feet south of the street centerline. 7. Prior to City Council approval of the final tract map, the applicant shall construct or enter into a subdivision agreement and post security, in a form and amount acceptable to the City Engineer, guaranteeing the construction of all off -site improvements. Improvements, as specified in the Development Agreement, shall include: a. Improvements on Portola Avenue including, but not limited to, the installation of curb and gutter, asphalt paving, an 8' ADA compliant meandering sidewalk, and a deceleration lane. Design shall be per the approved site plan. b. Full Improvements of the secondary access. The construction of an emergency vehicle access road per section 2.21 of the Development Agreement shall be completed before issuance of any additional building permits for the project. 8. The emergency vehicle access road to Portola Avenue may be used by construction traffic through the use of transponders or other means to actuate the gates for the passing of each construction vehicle. The gates are not to be left open at any time, except for Fire Department emergencies. The applicant is responsible to ensure that public traffic and residents do not use this access road. Construction access on the emergency vehicle access road is subject to review by the Director of Public Works and may be revoked at any time. 72500.00791\7577720.1 9. Access rights shall be restricted along Portola Avenue except at the "Secondary Access". 10. The construction of a block wall on Country Club Drive prior to issuance of any building permits for units within Lots 3 and/or 4. 11. Landscaping along Portola Avenue frontage shall be completed when development within Lots 3 and/or 4 occurs. 11. The applicant shall pay the appropriate signalization fee in accordance with City of Palm Desert Resolution Nos. 79-17 and 79-55 and drainage fee in accordance with Section 26.49 of Palm Desert Municipal Code and Palm Desert Ordinance Number 653. 12. The applicant will execute a recordable covenant agreeing to be bound by existing CC&R's and to execute future amendments. Prior to any further condominium plans being recorded, the applicant shall: 13. Record the final tract map. The condominium plans shall reference the final tract map recording information. 14. Submit a sample grant deed relative to the conveyance of the units, and the condominium plan, to the Public Works Department for review prior to the recording of any further condominium plans and related deeds. Prior to the issuance of grading permits the applicant shall: 15. Provide the City Engineer with evidence that a Notice of Intent (NOI) has been filed with the State Water Resources Control Board. Such evidence shall consist of a copy of the NOI stamped by the State Water Resources Control Board or the Regional Water Quality Control Board, or a letter from either agency stating that the NOI has been filed. 16. Submit a final Water Quality Management Plan (WQMP) for approval. The WQMP shall identify the Best Management Practices (BMPs) that will be used on the site to control predictable pollutant runoff. Prior to the issuance of grading permit, the Operation and Maintenance Section of the approved final WQMP shall be recorded with County's Recorder Office and a conformed copy shall be provided to the Public Works Department. 17. 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. 72500.00791 \7577720.1 `�✓' mow✓ 18. Submit a PM10 application for approval. The applicant shall comply with all provisions of Palm Desert Municipal Code Section 24.12 regarding Fugitive Dust Control. 19. Submit precise grading plans for review and approval. Pad elevations on precise grading plans shall conform to the range of elevations shown on the preliminary grading plans approved by Planning Commission. 20. Identify all proposed and existing utilities on the precise grading plan. 21. Submit a landscape plan concurrently with the precise grading plan for review and approval. Applicants are advised to use the City of Palm Desert Design Guide when designing plans. Landscape plans must meet the following criteria: a. Must be water efficient in design and meet the City of Palm Desert's Water Efficient Landscape Ordinance. b. Planting plans must show location of proposed and existing utilities. c. Must match approved civil plans. d. All specs and details must be site specific. e. Applicants must have CVWD approval of their irrigation plans prior to City approval. f. Applicants must have a stamp or signature from the County Agricultural Commissioner before City approval. 22. Any deviation from the approved plans shall be reviewed for approval by the City Engineer prior to work commencing. 23. The applicant shall enter into a landscape maintenance agreement as specified in the Development Agreement. DEPARTMENT OF BUILDING AND SAFETY: Project must conform to the current State of California Codes adopted at the time of plan check submittal. The following are the codes enforced at this time: 2007 CALIFORNIA BUILDING CODE (Based on 2006 IBC) 2007 CALIFORNIA MECHANICAL CODE (Based on 2006 UMC) 2007 CALIFORNIA PLUMBING CODE (Based on 2006 UPC) 2007 CALIFORNIA ELECTRICAL CODE (Based on 2005 NEC) 2007 CALIFORNIA ENERGY CODE (Based on the 2008 Energy Efficiency Standards) 2007 CALIFORNIA BUILDING STANDARDS ADMINISTRATIVE CODE 2007 CALIFORNIA FIRE CODE 72500.00791 \7577720.1 RIVERSIDE COUNTY FIRE DEPARTMENT: The Fire Department requires the following fire protection measures be provided in accordance with the City of Palm Desert Municipal Code, 2007 California Building and Fire Codes with applicable NFPA and or any other nationally recognized Fire Protection Standards. The Fire Department shall set the minimum fire flow for the remodel or construction of al buildings per California Fire Code Appendix B. 2. The applicant shall provide a fire flow of 1500 gpm for a 1-hour duration at 20 psi residual pressure from a permanently installed Fired Hydrant before any combustible material is placed on the job site. 3. The applicant shall provided proof the existing water system is capable of providing the minimum necessary gpm fire flow for 2500 gpm for multifamily dwellings prior to any project approvals. 4. The applicant shall provide the required fire flow from a permanent wet Barrel Super Hydrant with 14" and 2-2Y2" discharge outlets located not less than 25' and no more than 165' from any portion of a multifamily dwelling prior to any building permits approvals. 5. The applicant shall submit water plans to be reviewed and approved by the Fire Marshal and include verification that the water system is capable of providing the required fire flow. 6. The applicant shall install a complete NFPA 13 fire sprinkler system. This applies to all buildings with a 3000 square foot total cumulative floor area. The Fire Marshal shall approve the locations of all fire appliances including Post Indicator Valves, Fire Department Connections and Fire Hydrants. All Fire Appliances shall not be within 25 feet of a building and all Fire Department Connections shall be within 50 feet of a Fire Hydrant. 7. All valves controlling the water supply for automatic sprinkler systems and water - flow switches shall be monitored and alarmed per the 2007 California Building and Fire Code. 8. The applicant shall install a complete NFPA 72 Fire Alarm/Sprinkler Monitoring system as required by the 2007 California Building and Fire Code. 9. The applicant shall install portable fire extinguishers as per NFPA 10. The applicant shall install a minimum of 1-2A10BC Fire Extinguisher for every 3,000 square feet, 3' to 5' above grade with no more than 75' walking distance from any point of the business to the extinguisher. The applicant shall install a "K" class 72500.00791 \7577720.1 sO'"` O fire extinguisher as required for commercial kitchens within 30' of the hazard area. 10. The applicant shall install a Hood/Duct Fire Suppression system as per NFPA 96 for all public commercial and private cooking operations with the exception of a single-family residence. 11. The applicant shall install an all weather Fire Department accessible roadway extending to any portion of the building where as a 150' hose lay can be utilized for the inaccessible building perimeter. Construction type of the same shall be approved by the Fire Marshal and be rated for 80,000 lbs. Turf block will not be accepted. Fire lane access roadway minimum width is 20' and height clearance is 13'6" Public roadway minimum unobstructed width is 36' with parking on both sides. A Fire Apparatus Turn around shall be provided for dead end streets in excess of 150' in length with approved cul-de-sac or hammer head dimensions. 12. Knox access devices shall be provided as follows: • A Knox Padlock for every manual gated entrance. 13. The applicant shall install an illuminated building address in accordance to the city standards for size and location. The building address shall be installed on the building in an unobstructed locale and the color shall be contrasting to background. 14. The applicant shall submit three sets of the following plans for review including tenant improvement: • Fire Alarm System • Sprinkler System • Fire Main Underground • Hood Suppression System • Site Plan to Scale 15. Conditions subject to change with adoption of new codes, ordinances, laws or when building permits are not obtained within 12 months. 72500.00791\7577720.1 EXHIBIT "C" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT DEPICTION OF PORTOLA RIGHT OF WAY DEDICATION (Lot "B" in the depiction on the following page below) 72500.00791 \7577720.1 C J COUNTRY CLUB DRIVE EX I LOT 4 I I TRACT 36404 \\ I low \\ I \� I \ I M \ I 43' ACCESS AND P.U.E. EASEMENT LOT 3 I I I 1. I M.B. 437/23-27 1 20' LANDSCAPE AND - PEDESTRIAN EASEMENT 1 " = 40' C/LJ 2 r J U ,Q 10 0 a 1100, 1 50' 1 50' 1 MSA CONSULTING, INC. (JJPLAmmo ■ Crm ENommmmo ■ LAND SU1tvEymo 34200 BoB HOPS DRwE ■ RANCHo MHtAGE ■ CA 92270 TELEmoNE (760) 320-9811 ■ FAx (760) 323-7893 J.N. 2081 SHEET 1 OF 1 C EXHIBIT "D" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT FORM OF IMPROVEMENT AGREEMENT [Attached behind this page] 72500.00791\7577720.1 ORDINANCE NO.1251 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT TO THE PRIOR APPROVALS FOR VILLA PORTOFINO (SOUTHWEST CORNER OF PORTOLA AVENUE AND COUNTRY CLUB DRIVE) INCLUDING: A 161-BED SKILLED NURSING FACILITY, A 150-BED ASSISTED LIVING FACILITY, 288 VILLA UNITS AND 182 CASITA UNITS. CASE NO. DA 11-516 WHEREAS, the Planning Commission by its Resolution No. 2592 has recommended approval of Case No. DA 11-516; and WHEREAS, at said public hearings, said City Council heard and considered all testimony and arguments of all interested persons; and WHEREAS, the City Council finds that the Development Agreement is consistent with the General Plan, as described in the Findings of the City Council Resolution No. 2012-67 ; and WHEREAS, pursuant to the California Environmental Quality Act ("CEQA") (Pub. Res. Code, § 21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs, tit. 14 § 15000 et seq.), the City is the lead agency for the proposed Project; and WHEREAS, on the basis of the Initial Study, which concluded that the Project will not have significant impacts on the environment with mitigation, the City determined that the Villa Portofino project was subject to a comprehensive CEQA review at the time it was initially approved in 1998. Since that time the project has been partially built -out. The current approvals merely reaffirm the prior approvals, and do not change them in any material way. Staff has reviewed the prior CEQA analysis and current conditions, and confirmed that there are no changes in circumstances or the project that would warrant additional CEQA review at this time. As it is clear that the reaffirmation of prior approvals will not have any significant effect on the environment, the project is categorically exempt. WHEREAS, the City Council of the City of Palm Desert, California, DOES HEREBY ORDAIN, AS FOLLOWS: SECTION 1: That the Development Agreement 11-516, Exhibit "A" attached hereto, by Ordinance No. 1251 is hereby approved. SECTION 2: That 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, published and circulated in the City of Palm Desert, California, and shall be in full force and effect thirty (30) days after its adoption. a AOW ORDINANCE NO. 1251 PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert City Council held on this 25th day of October 2012, by the following vote, to wit: AYES: BENSON, FINERTY, RARKIK. KROONEN, and SPIEGEL NOES: NONE ABSENT: NONE ABSTAIN: NONE ATTEST: RAdULLE D. UMSEN, City Clerk City of Palm Desert, California E J' e ROBERT A. SPIEGEL, M EACH DOCUMENT TO WHICH THIS CERTIFICATE 19 ATTACHED. IS CERTIFIED TO BE A FULL, TRUE AND CORRECT COPY OF THE ORIGINAL ON FILE AND ON RECORDOFFICE. City Clerk it J �7� ORDINANCE NO. 1251 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT TO THE PRIOR APPROVALS FOR VILLA PORTOFINO (SOUTHWEST CORNER OF PORTOLA AVENUE AND COUNTRY CLUB DRIVE) INCLUDING: A 161-BED SKILLED NURSING FACILITY, A 150-BED ASSISTED LIVING FACILITY, 288 VILLA UNITS AND 182 CASITA UNITS. CASE NO. DA 11-516 WHEREAS, the Planning Commission by its Resolution No. 2592 has recommended approval of Case No. DA 11-516; and WHEREAS, at said public hearings, said City Council heard and considered all testimony and arguments of all interested persons; and WHEREAS, the City Council finds that the Development Agreement is consistent with the General Plan, as described in the Findings of the City Council Resolution No. 2012-67 ; and WHEREAS, pursuant to the California Environmental Quality Act ("CEQA") (Pub. Res. Code, § 21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs, tit. 14 § 15000 et seq.), the City is the lead agency for the proposed Project; and WI WHEREAS, on the basis of the Initial Study, which concluded that the Project will not have significant impacts on the environment with mitigation, the City determined that the Villa Portofino project was subject to a comprehensive CEQA review at the time it was initially approved in 1998. Since that time the project has been partially built -out. The current approvals merely reaffirm the prior approvals, and do not change them in any material way. Staff has reviewed the prior CEQA analysis and current conditions, and confirmed that there are no changes in circumstances or the project that would warrant additional CEQA review at this time. As it is clear that the reaffirmation of prior approvals will not have any significant effect on the environment, the project is categorically exempt. WHEREAS, the City Council of the City of Palm Desert, California, DOES HEREBY ORDAIN, AS FOLLOWS: SECTION 1: That the Development Agreement 11-516, Exhibit "A" attached hereto, by Ordinance No. 1251 is hereby approved. SECTION 2: That 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, published and circulated in the City of Palm Desert, California, and shall be in full force and effect thirty (30) days —� after its adoption. ORDINANCE NO. 1251 PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert City Council held on this 25th day of October 2012, by the following vote, to wit: an Wa AYES: BENSON, FINERTY, HARNIK, RROONEN, and SPIEGU NOES: NONE ABSENT: NONE ABSTAIN: NONE ROBERT A. SPIEGEL, M ATTEST: RA&ELLE D. SEN, City Clerk w1 City of Palm Desert, California 0" so 2 ORDINANCE NO. 1251 EXHIBIT A WHEN RECORDED RETURN TO: "~ The City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: City Manager Fee Exempt - Govt. Code 27383 (Space above for Recorder's Use) VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR A PORTION OF THE PROJECT between THE CITY OF PALM DESERT a California charter city and VP LAND, LLC; VP BUILDERS, LLC; and COUNTRY CLUB DRIVE INVESTORS, LLC Dated as of _, 2012 72500.00791\7577720.1 ORDINANCE NO. 1251 EXHIBIT "D" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT FORM OF IMPROVEMENT AGREEMENT [Attached behind this page] 72500.00791\7577720.1 ORDINANCE NO. 1251 SUBDIVISION IMPROVEMENT AGREEMENT DATE OF AGREEMENT: , 20 NAME OF SUBDIVIDER: (referred to as "SUBDIVIDER") NAME OF SUBDIVISION: VILLA PORTOFINO LOTS: 1-5, A-F (referred to as "SUBDIVISION"). TENTATIVE MAP RESOLUTION OF APPROVAL NO.: (TM No: 36404) (referred to as "Resolution of Approval') IMPROVEMENT PLANS APPROVED ON: (referred to as "Improvement Plans"). ESTIMATED TOTAL COST OF IMPROVEMENTS:$ ESTIMATED TOTAL COST OF MONUMENTATION: .r No we SURETY: BOND NOS: we SURETY: -OR- IRREVOCABLE STAND-BY LETTER OF CREDIT NO. FINANCIAL INSTITUTION: -OR- CASH/CERTIFICATE OF DEPOSIT, AGREEMENT DATED: FINANCIAL INSTITUTION: This Agreement is made and entered into by and between the City of Palm Desert, a municipal corporation of the State of California, hereinafter referred to as "CITY", and the SUBDIVIDER. RECITALS RMPUB\DJB1597 1_� ■r ORDINANCE NO. 1251 A. SUBDIVIDER has presented to CITY for approval and recordation, a final subdivision map of a proposed SUBDIVISION pursuant to provisions of the Subdivision Map Act of the State of California and the CITY's ordinances and regulations relating to the filing, approval and recordation of subdivision maps. The Subdivision Map Act and the CITY's ordinances and regulations relating to the filing, approval and recordation of subdivision maps are collectively referred to in this Agreement as the "Subdivision Laws". B. A tentative map of the SUBDIVISION has been approved, subject to the Subdivision Laws and to the requirements and conditions contained in the Resolution of Approval. The Resolution of Approval is on file in the Office of the City Clerk and is incorporated into this Agreement by reference. C. The Subdivision Laws establish as a condition precedent to the approval of a final map that SUBDIVIDER must have complied with the Resolution of Approval and must have either (a) completed, in compliance with CITY standards, all of the improvements and 4 land development work required by the Subdivision Laws or the Resolution of Approval or (b) have entered into a secured agreement with CITY to complete the improvements and land development within a period of time specified by CITY. D. In consideration of the approval of a final map for the SUBDIVISION by the City Council, SUBDIVIDER desires to enter into this Agreement, whereby SUBDIVIDER promises to install and complete, at SUBDIVIDER's own expense, certain improvement work, including the construction of a temporary emergency vehicle/permanent secondary access road across Lot 3 and Lot 4 as set forth on the final map as specified in the conditions of approval of the Resolution of Approval (the "Secondary Access Road") and the construction of certain street improvements along Portola Avenue as specified in the conditions of approval of the Resolution of Approval (the "Portola Improvements"), required RMPUB'OM1597 _ 2 _ ORDINANCE NO. 1251 by CITY in connection with the proposed SUBDIVISION. SUBDIVIDER has secured this Low--m Agreement by improvement security required by the Subdivision Laws and approved by the ONO City Attorney. E. Complete Improvement Plans for the construction, installation, and completion of the improvements have been prepared by SUBDIVIDER and approved by the City Engineer, The Improvement Plans numbered as referenced previously in this Agreement are on file in the Office of the City Engineer and are incorporated into this Agreement by this reference. All references in this Agreement to the Improvement Plans shall include reference to any specifications for the improvements as approved by the City Engineer. F. An estimate of the cost for construction of the public improvements, including am the Secondary Access Road and the Portola Improvements, and performing land No development work in connection with the improvements according to the Improvement Plans has been made and has been approved by the City Engineer. The estimated amount is stated on Page 1 of this Agreement. The basis for the estimate is attached as Exhibit "A" to this Agreement. G. CITY has adopted standards for the construction and installation of improvements within the CITY. The Improvement Plans have been prepared in conformance with CITY standards in effect on the date of the Resolution of Approval. H. All public improvement monuments, street signs, and survey monuments as specified on the final map are to be completed prior to final formal acceptance by the City Council. Individual property monuments must be installed within one year from the formal .� final Council acceptance of said SUBDIVISION. No RMPUB\D1B.1597 -3- ORDINANCE NO. 1251 I. SUBDIVIDER recognizes that by approval of the final map for SUBDIVISION, CITY has conferred substantial rights upon SUBDIVIDER, including the right to sell, lease, orfinance lots within the SUBDIVISION. As a result, CITY will be damaged to the extent of the cost of installation of the improvements by SUBDIVIDER's failure to perform its obligations to commence construction of the improvements by the time established in this Agreement. CITY shall be entitled to all remedies available to it pursuant to this Agreement and law in the event of a default by SUBDIVIDER. It is specifically recognized that the determination of whether a reversion to acreage or rescission of the SUBDIVISION constitutes an adequate remedy for default by the SUBDIVIDER shall be within the sole discretion of CITY. NOW, THEREFORE, in consideration of the approval and recordation by the City Council of the final map of the SUBDIVISION, SUBDIVIDER and CITY agree as follows: (1) SUBDIVIDER's Obligation to Construct Improvements SUBDIVIDER shall: (a) Comply with all the requirements of the Resolution of Approval, and any amendments thereto, and with the provisions of the Subdivision Laws. (b) Complete at SUBDIVIDER's own expense prior to issuance of any additional building permits for the project, temporary improvements to the Secondary Access Road for Emergency Vehicle Access, including: 1. The intersection with Portola Avenue/driveway approach shall be fully improved. 2. The centerline of the temporary improvements must be aligned with the property line between Lots 3 and 4 on the final map. 3. A crash gate with knox box shall be constructed at the intersection with Villa Del Pellegrino. 4. The bank along the north side of the access road shall be cut back to a slope no » steeper than 3:1. RMPUB\DJE\1597 -4- ORDINANCE NO. 1251 Within two years from the date of execution of this agreement, but prior to the issuance of any building permits within either Lot 3 or Lot 4 of the TTM, the following improvements no shall be completed at the SUBDIVIDER'S own expense: Ma 1. The Portola Improvements. 2. All permanent, full improvements to the Secondary Access Road, which intersects with Portola Avenue, as required by the project approvals. All improvement work required by the Resolution of Approval shall be in conformance with approved Improvement Plans. The improvements shall not be deemed to be completed until accepted by City Council as provided in Section (17) herein. (c) Furnish the necessary materials for completion of the public and private improvements, including the Emergency Vehicle/Secondary Access Road and Portola Improvements, in conformity with the Improvement Plans. (d) Acquire, or pay the cost of acquisition by CITY, and dedicate, or cause to be dedicated, all rights -of -way, easements and other interests in real property for no construction and installation of the public improvements, free and clear of all liens and No encumbrances. The SUBDIVIDER's obligations with regard to acquisition by CITY of off - site rights -of -way, easements and other interests in real property shall be as set forth in the Amended and Restated Development Agreement for the project between, among other parties, SUBDIVIDER and CITY (Development Agreement). SUBDIVIDER shall also be responsible for obtaining any public or private sanitary sewer, domestic water, drainage, and/or utility easements or authorization to accommodate the SUBDIVISION. (e) Commence construction of the improvements by the time established in Section (22) of this Agreement and complete the improvements by the deadline stated in Section (1)(b) above, unless a time extension is granted by the CITY as authorized in Section (22). ..r RMPUBIDJE11597 - 5 _ ORDINANCE NO. 1251 (f) Install all SUBDIVISION public improvement monuments required by law and prior to formal final acceptance of the public improvements by CITY. Individual property monuments shall be installed within one year of said acceptance. (g) Install street name signs conforming to CITY standards. Permanent street name signs shall be installed before acceptance of the improvements by CITY. (2) Acquisition and Dedication of Easements or Rights -of -Way. If any of the public improvement and land use development work contemplated by this Agreement is to be constructed or installed on land not owned by CITY or SUBDIVIDER, no construction or installation shall be commenced before: (a) The offer of dedication to CITY of appropriate rights -of -way, easements or other interests in real property, and appropriate authorization from the Q . property owner to allow construction or installation of the improvements or work, or (b) The dedication to, and acceptance by, CITY of appropriate rights -of - way, easements or other interests in real property, as determined by the City Engineer, or (c) The issuance by a court of competent jurisdiction pursuant to the State Eminent Domain Law of an order of possession. SUBDIVIDER shall comply in all respects with the order of possession. Nothing in this Section (2) shall be construed as authorizing or granting an extension of time to SUBDIVIDER. (3) Security. SUBDIVIDER shall at all times guarantee SUBDIVIDER's performance by furnishing to CITY, and maintaining, good and sufficient security as required by the Subdivision Laws on forms approved by CITY for the purposes and in the - - amounts as follows: RMPUB\DMI597 _ 6 _ ORDINANCE NO. 1251 (a) to assure faithful performance of this Agreement in regard to said am improvements in an amount of 100% of the estimated cost of the improvements; and I" (b) to secure payment to any contractor, subcontractor, persons renting equipment, or furnishing labor and materials for the improvements required to be constructed and installed pursuant to this Agreement in the additional amount of 50% of the estimated cost of the improvements; and (c) to guarantee or warranty the work done pursuant to this Agreement for a period of one year following acceptance thereof by CITY against any defective work or labor done or defective materials furnished in the additional amount of 10% of the estimated cost of the improvements; and (d) SUBDIVIDER shall also furnish to CITY good and sufficient security in the amount of one hundred percent (100%) of the estimated cost of setting SUBDIVISION am monuments as stated previously in this Agreement in Section (1)(f) for a period of one year a" plus thirty (30) days from formal acceptance by the City Council. The securities required by this Agreement shall be kept on file with the City Clerk. The terms of the security documents referenced on page 1 of this Agreement are incorporated into this Agreement by this reference. If any security is replaced by another approved security, the replacement shall: 1) comply with all the requirements for security in this Agreement; 2) be provided to the City Engineer to be filed with the City Clerk and, upon filing, 3) shall be deemed to have been made a part of and incorporated into this Agreement. Upon provision of a replacement security with the City Engineer and filing of a replacement security with the City Clerk, the former security may be released. ." Wo RMPUB\DJE11597 -7- ORDINANCE NO. 1251 (4) Alterations to Improvement Plans. (a) Any changes, alterations or additions to the Improvement Plans not exceeding ten percent (10%) of the original estimated cost of the improvements, which are mutually agreed upon by CITY and SUBDIVIDER, shall not relieve or require replacement or supplement of the improvement security given for faithful performance of this Agreement. In the event such changes, alterations, or additions exceed 10% of the original estimated cost of the improvement, SUBDIVIDER shall provide improvement security for faithful performance as required by Section (3) of this Agreement for one hundred percent (100%) of the total estimated cost of the improvements as changed, altered, or amended, minus any completed partial releases allowed by Section (6) of this Agreement. (b) The SUBDIVIDER shall construct the improvements in accordance with CITY standards in effect at the time of adoption of the Resolution of Approval. Subject to the terms of the Development Agreement, CITY reserves the right to modify the standards applicable to the SUBDIVISION and this Agreement, when necessary to protect the public safety or welfare or comply with applicable state or federal law or CITY zoning ordinances. if SUBDIVIDER requests and is granted an extension of time for completion of the improvements, CITY may apply the standards in effect at the time of the extension. (5) Inspection. SUBDIVIDER shall at all times maintain properfacilities and safe access for inspection of the public improvements by CITY inspectors and to the shops wherein any work is in preparation. Upon completion of the work, SUBDIVIDER may request a final inspection by the City Engineer, or the City Engineer's authorized representative. If the City Engineer, or the designated representative, determines that the work has been completed in accordance with this Agreement, then the City Engineer shall RMPUBOM1597 -8- ORDINANCE NO. 1251 certify the completion of the public improvements to the City Council. No improvements OR shall be finally accepted by the City Council unless all aspects of the work have been a" inspected and completed in accordance with the Improvement Plans. When applicable law requires an inspection to be made by City at a particular stage of the work of constructing and installing such improvements, CITY shall be given timely notice of SUBDIVIDER's readiness for such inspection and SUBDIVIDER shall not proceed with additional work until the inspection has been made and the work approved. SUBDIVIDER shall bear all costs of inspection and certification. No improvements shall be deemed completed until accepted by the City Council pursuant to Section (17) herein. (6) Release of Securities. The securities required by this Agreement shall be released as following: (a) Security given for faithful performance of any act, obligation, work or we agreement shall be released upon the final completion and acceptance of the act or work, M W subject to the provisions of subsection (b) hereof. (b) The City Engineer may release a portion of the security given for faithful performance of improvement work as the improvement progresses upon application thereof by the SUBDIVIDER; provided, however, that no such release shall be for an amount less than twenty-five percent (25%) of the total improvement security given for faithful performance of the improvement work and that the security shall not be reduced to an amount less than fifty percent (50%) of the total improvement security given for faithful performance until final completion and acceptance of the improvement work. In no event shall the City Engineer authorize a release of the improvement security which would reduce such security to an amount below that required to guarantee the completion of the .m improvement work and any other obligation imposed by this Agreement. �+ RMPUBU01597 - 9 - ORDINANCE NO. 1251 0, . (c) Security given to secure payment to the contractor, his or her subcontractors and to persons furnishing labor, materials or equipment shall, at six (6) months after completion and acceptance of the work, be reduced to an amount equal to no less than 125% of the total claimed by all claimants for whom liens have been filed and of which notice has been given to the CITY, plus an amount reasonably determined by the City Engineer to be required to assure the performance of any other obligations secured by the Security. The balance of the security shall be released upon the settlement of all claims and obligations for which the security was given. (d) No security given for the guarantee or warranty of work shall be released until the expiration of the warranty period and until any claims filed during the warranty period have been settled. As provided in Section (10), the warranty period shall not commence until formal final acceptance of all the work and improvements by the City Council. (e) CITY may retain from any security released, an amount sufficient to cover costs and reasonable expenses and fees, including reasonable attomeys' fees. (7) Iniuryto Public Improvements, Public Property or Public Utilities Facilities. SUBDIVIDER shall replace or repair or have replaced or repaired, as the case may be, all public improvements, public utilities facilities and surveying or subdivision monuments which are destroyed or damaged as a result of any work performed by or for SUBDIVIDER under this Agreement. SUBDIVIDER shall bear the entire cost of replacement or repairs of any and all public or public utility property damaged or destroyed by reason of any work done under this Agreement, whether such property is owned by the United States or any -- agency thereof, or the State of California, or any agency or political subdivision thereof, or by CITY or any public or private utility corporation or by any combination of such owners. RMPUB\DJE11597 -10- ORDINANCE NO. 1251 Any repair or replacement shall be to the satisfaction, and subject to the approval, of the City Engineer. (8) Permits. SUBDIVIDER shall, at SUBDIVIDER's expense, obtain all necessary permits and licenses for the construction and installation of the improvements, give all necessary notices and pay all fees and taxes required by law. (9) Default of SUBDIVIDER. (a) Default of SUBDIVIDER shall include, but not be limited to, (1) SUBDIVIDER's failure to timely commence construction of the improvements as required by this Agreement; (2) SUBDIVIDER's failure to timely complete construction of the improvements as required by this agreement; OR ..r (3) SUBDIVIDER's failure to timely cure any defect in the „m improvements; ON (4) SUBDIVIDER's failure to perform substantial construction work for a period of twenty (20) calendar days after commencement of actual construction of the work; (5) SUBDIVIDER's insolvency, appointment of a receiver, or the filing of any petition in bankruptcy either voluntary or involuntary which SUBDIVIDER fails to discharge within thirty (30) days; (6) the commencement of a foreclosure action against the SUBDIVISION or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; or (7) SUBDIVIDER's failure to perform, after any applicable cure period, no any other material obligation under this Agreement. RMPUB\DJE11597 - 11 - ■r ORDINANCE NO. 1251 (b) CITY reserves to itself all remedies available to it at law or in equity for any material default of SUBDIVIDER's obligations under this Agreement. CITY shall have the right, subject to this Section, to draw upon or utilize the appropriate security to mitigate CITY's damages in event of material default by SUBDIVIDER. The right of CITY to draw upon or utilize the security is additional to and not in lieu of any other remedy available to CITY. It is specifically recognized that the estimated costs and security amounts may not reflect the actual cost of construction or installation of the improvements and, therefore, CITY's damages for SUBDIVIDER's default shall be measured by the actual cost of completing the required improvements. The sums provided by the improvement security may be used by CITY for the completion of the public improvements in accordance with the improvement plans and specifications contained herein. In the event of SUBDIVIDER's default under this Agreement, SUBDIVIDER authorizes CITY to perform such obligation twenty (20) days after mailing written notice of default to SUBDIVIDER and to SUBDIVIDER's surety if such default then remains uncured, and agrees to pay the entire cost of such performance by CITY. CITY may take over the work and prosecute the same to completion, by contract or by any other method CITY may deem advisable, for the account and at the expense of SUBDIVIDER, and SUBDIVIDER's surety shall be liable to CITY for any excess cost or damages occasioned CITY thereby. In such event, CITY, without liability for so doing, may take temporary possession of, and utilize in completing the work, such materials, appliances, plants and other property belonging to SUBDIVIDER as may be on the site of the work and necessary for performance of the work. --- (c) Failure of SUBDIVIDER to comply with the terms of this Agreement shall constitute consent to the filing by CITY of notice of violation against all the lots in the RMPUMD]E11597 ORDINANCE NO. 1251 SUBDIVISION, or to rescind the approval or otherwise revert any unbuilt portion of the am SUBDIVISION to acreage. The remedy provided by this subsection (c) is in addition to and .r not in lieu of other remedies available to CITY. SUBDIVIDER agrees that the choice of remedy or remedies for SUBDIVIDER's breach shall be in the discretion of CITY. (d) In the event that SUBDIVIDER fails to perform any obligation hereunder, SUBDIVIDER agrees to pay all costs and expenses incurred by CITY in securing performance of such obligations, including but not limited to fees and charges of architects, engineers, attorneys, other professionals, and court costs. (e) The failure of CITY to take an enforcement action with respect to a default, or to declare a breach, shall not be construed as a waiver of that default or breach or any subsequent default or breach of SUBDIVIDER. (10) Warran . SUBDIVIDER shall guarantee or warranty the work done pursuant OR to this Agreement for a period of one year after final formal acceptance of the No SUBDIVISION by the City Council against any defective work or labor done or defective materials furnished. If within the warranty period any work or improvement or part of any work or improvement done, furnished, installed, or constructed by SUBDIVIDER fails to fulfill any of the requirements of this Agreement or the improvement plans and specifications referred to herein, SUBDIVIDER shall without delay and without any cost to CITY, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should SUBDIVIDER fail to act promptly or in accordance with this requirement, SUBDIVIDER hereby authorizes CITY, at CITY's option, to perform the work twenty (20) days after mailing written notice of default to SUBDIVIDER and to SUBDIVIDER's surety if such default then remains uncured, and agrees to pay the cost of such work by CITY. Should CITY determine that an urgency requires repairs or RMPUB\DJE\1599 -13 - ORDINANCE NO. 1251 replacements to be made before SUBDIVIDER can be notified, CITY may, in its sole discretion, make the necessary repairs or replacement or perform the necessary work and SUBDIVIDER shall pay to CITY the cost of such repairs. (11) SUBDIVIDER Not Agent of CITY. Neither SUBDIVIDER nor any of SUBDIVIDER's agents, contractors or subcontractors are or shall be considered to be agents of CITY in connection with the performance of SUBDIVIDER'S obligations under this Agreement. (12) Iniuryto Work. Until such time as the improvements are accepted by CITY, SUBDIVIDER shall be responsible for and bear the risk of loss to any of the improvements constructed or installed. Until such time as all improvements required by this Agreement are fully completed and accepted by CITY, SUBDIVIDER will be responsible for the care, maintenance of, and any damage to such improvements. CITY shall not, nor shall any 42- officer or employee thereof, be liable or responsible for any accident, loss or damage, regardless of cause, happening or occurring to the work or improvements specified in this Agreement prior to the completion and acceptance of the work or improvements. All such risks shall be the responsibility of and are hereby assumed by SUBDIVIDER. (13) Environmental Warranty. Prior to the acceptance of any dedications or improvements by CITY, SUBDIVIDER shall certify and warrant that neither the property to be dedicated nor SUBDIVIDER is in violation of any environmental law and neither the property to be dedicated nor the SUBDIVIDER is subject to any existing, pending or threatened investigation by any federal, state or local governmental authority under or in connection with environmental law. Neither SUBDIVIDER nor any third party will use, generate, manufacture, produce, or release, on, under, or about the property to be dedicated, any hazardous substance except in compliance with all applicable RMPUB\ME097 -14- ORDINANCE NO. 1251 environmental laws. SUBDIVIDER has not caused or permitted the release of, and has no oft knowledge of the release or presence of, any hazardous substance on the property to be No dedicated or the migration of any hazardous substance from or to any other property adjacent to, or in the vicinity of, the property to be dedicated. SUBDIVIDER's prior and present use of the property to be dedicated has not resulted in the release of any hazardous substance on the property to be dedicated. SUBDIVIDER shall give prompt written notice to CITY at the address set forth herein of: (a) Any proceeding or investigation by any federal, state or local governmental authority with respect to the presence of any hazardous substance on the property to be dedicated or the migration thereof from or to any other property adjacent to, or in the vicinity of, the property to be dedicated; (b) Any claims made or threatened by any third party against CITY or the a" property to be dedicated relating to any loss or injury resulting from any hazardous aw substance; and, (c) SUBDIVIDER's discovery of any occurrence or condition on any property adjoining in the vicinity of the property to be dedicated that could cause the property to be dedicated or any part thereof to be subject to any restrictions on its ownership, occupancy, use for the purpose for which is it is intended, transferability or suit under any environmental law. (14) Other Agreements. Nothing contained in this Agreement shall preclude CITY from expending monies pursuant to agreements concurrently or previously executed between the parties, or from entering into agreements with other subdividers for the apportionment of costs of water and sewer mains, or other improvements, pursuant to the me RMPU81DJE1597 -15- ORDINANCE NO. 1251 provisions of the CITY ordinances providing therefore, nor shall anything in this Agreement commit CITY to any such apportionment. (15) SUBDIVIDER'S Obligation to Warn Public During Construction. Until formal final acceptance of the improvements, SUBDIVIDER shall give good and adequate warning to the public of each and every dangerous condition existent in said improvements, and will take all reasonable actions to protect the public from such dangerous condition. (16) Vesting of Ownership. Upon formal final acceptance of the work by CITY and recordation of the Resolution of Acceptance of Public Improvements, ownership of the improvements constructed pursuant to this Agreement shall vest in CITY. (17) Final Acceptance of Work. Acceptance of the work on behalf of CITY shall be made by the City Council upon recommendation of the City Engineer after final completion and inspection of all improvements. The City Council shall act upon the Engineer's recommendation within sixty (60) days from the date the City Engineer certifies that the work has been finally completed, as provided in Section (6). Such acceptance shall not constitute a waiver of defects by CITY. (18) Indemnity/Hold Harmless. CITY or any officer or employee thereof shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of SUBDIVIDER, its agents, or employees, contractors and subcontractors in the performance of this Agreement. SUBDIVIDER further agrees to protect, defend, indemnify and hold harmless CITY, its officials, boards and commissions, and members thereof, agents and employees from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, acts or omissions of SUBDIVIDER, its agents, -- employees, contractors and subcontractors in the performance of this Agreement, except -- for such claims, demands, causes of action, liability, or loss arising out of the sole active RMPUBUE097 -16- ORDINANCE NO. 1251 negligence of the CITY, its officials, boards, commissions, the members thereof, agents, am and employees, including all claims, demands, causes of action, liability, or loss because W" of, or arising out of, in whole or in part, the design or construction of the improvements. This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of said SUBDIVISION, and the improvements as provided herein, and in addition, to adjacent property owners as a consequence of the diversion of waters from the design and construction of public drainage systems, streets and other public improvements. Acceptance by CITY of the improvements shall not constitute an assumption by CITY of any responsibility for any damage or taking covered by this Section. CITY shall not be responsible for the design or construction of the property to be dedicated or the improvements pursuant to the approved improvement plans or map, regardless of any „m negligent action or inaction taken by CITY in approving the plans or map, unless the No particular improvement design was specifically required by CITY over written objection by SUBDIVIDER submitted to the City Engineer before approval of the particular improvement design, which objection indicated that the particular improvement design was dangerous or defective and suggested an alternative safe and feasible design. After acceptance of the improvements, the SUBDIVIDER shall remain obligated to eliminate any defect in design or dangerous condition caused by the design or construction defect; however, SUBDIVIDER shall not be responsible for routine maintenance of any public improvements. Provisions of this Section shall remain in full force and effect for ten (10) years following the acceptance by CITY of the improvements. It is the intent of this Section that SUBDIVIDER shall be responsible for all liability for am design and construction of the improvements installed or work done pursuant to this .. RMPUB\D1E,1597 -17- ORDINANCE NO. 1251 Agreement and that CITY shall not be liable for any negligence, nonfeasance, misfeasance or malfeasance in approving, reviewing, checking, or inspecting any work or construction. The improvement security shall not be required to cover the provisions of this Section. SUBDIVIDER shall reimburse CITY for all costs and expenses (including but not limited to fees and charges of architects, engineers, attorneys, and other professionals, and court costs) incurred by CITY in enforcing the provisions of this Section. (19) Personal Nature of SUBDIVIDER'S Obligations. All of SUBDIVIDER's obligations under this agreement are and shall remain the personal obligations of SUBDIVIDER notwithstanding a transfer of all or any part of the property within the SUBDIVISION subject to this Agreement, and SUBDIVIDER shall not be entitled to assign its obligations under this Agreement to any transferee of all or any part of the property within the SUBDIVISION or to any other third party without the express written consent of CITY. (20) Sale or Disposition of SUBDIVISION. Seller or other SUBDIVIDER may request a novation of this Agreement and a substitution of security. Upon approval of the novation and substitution of securities, the SUBDIVIDER may request a release or reduction of the securities required by this Agreement. Nothing in the novation shall relieve the SUBDIVIDER of the obligations under Section (18) for the work or improvement done by SUBDIVIDER. (21) Time of the Essence. Time is of the essence in the performance of this Agreement. (22) Time for Commencement of Work: Time Extensions. SUBDIVIDER shall commence substantial construction of the improvements required by this Agreement not later than six (6) months after the date of this Agreement. In the event good cause exists RMPUBNDJE1597 -18- ORDINANCE NO. 1251 as determined by the City Engineer, the time for commencement of construction or OR completion of the improvements hereunder may be extended for a period or periods not awd exceeding a total of two (2) additional years. The extension shall be executed in writing by the City Engineer. Any such extension may be granted without notice to SUBDIVIDER's surety and shall not affect the validity of this Agreement or release the surety or sureties on any security given for this Agreement. The City Engineer shall be the sole and final judge as to whether or not good cause has been shown to entitle SUBDIVIDER to an extension. Delay, other than delay in the commencement of work, resulting from an act of CITY, act of God, or by storm or inclement weather, strikes, boycotts or similar political actions which prevents the conducting of work, which SUBDIVIDER could not have reasonably foreseen and, furthermore, were not caused by or unreasonably contributed to by SUBDIVIDER, shall constitute good cause for and extension of the time for completion. As a condition of an such extension, the City Engineer may require SUBDIVIDER to furnish new security ow guaranteeing performance of this Agreement as extended in an increased amount as necessary to compensate for any increase in construction costs as determined by the City Engineer. (23) No Vesting of Rights. Performance by SUBDIVIDER of this Agreement shall not be construed to vest SUBDIVIDER's rights with respect to any change in any zoning or building law or ordinance. (24) Notices. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by mail, postage prepaid and addressed as provided in this Section. Notice shall be effective on the date it is delivered in person, or, if mailed, on the date of deposit in the United States mail. Notices shall be addressed as an follows unless a written change of address is filed with the City: NO RMPUB\DJE\1597 -19- ORDINANCE NO. 1251 Notice to CITY: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attn: Public Works Director Notice to SUBDIVIDER: Notice to SURETY: (25) Compliance With Laws. SUBDIVIDER, its agents, employees, contractors and subcontractors shall comply with all federal, state and local laws in the performance of the improvements and land development work required by this Agreement. (26) Severability. The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the agreement shall remain in full force and effect unless amended or modified by the mutual consent of the parties. (27) Captions. The captions of this Agreement are for convenience and reference only and shall not define, explain, modify, limit, exemplify, or aid in the interpretation, construction or meaning of any provisions of this Agreement. (28) Litigation or Arbitration. In the event that suit or arbitration is brought to enforce the terms of this Agreement, the prevailing party shall be entitled to litigation costs and reasonable attorneys' fees. (29) Incorporation of Recitals. The recitals to this Agreement are hereby incorporated into in the terms of this Agreement. RMPUB\DMI597 -20- ORDINANCE NO. 1251 (30) Entire Agreement. This Agreement constitutes the entire agreement of the a" parties with respect to the subject matter. All modifications, amendments, or waivers of the .r terms of this Agreement must be in writing and signed by the appropriate representatives of the parties. (31) Interpretation. This Agreement shall be interpreted in accordance with the laws of the State of California. (32) Jurisdiction. Jurisdiction of all disputes over the terms of this Agreement shall be in the County of Riverside, State of California. (33) No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the City. No other person or entity shall have any right of action based upon any provision of this Agreement. Now RMPUB\DIE11597 _ 21 _ Oft [--_m i ORDINANCE NO. 1251 IN WITNESS WHEREOF, this Agreement is executed by the parties as of the date hereinabove first written; by CITY, by and through its Mayor. SUBDIVIDER SUBDIVIDER (Proper Notarization of SUBDIVIDER's signature is required and shall be attached) RMPUBOM1597 -22- CITY OF PALM DESERT M ATTEST: CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY ORDINANCE NO. 1251 EXHIBIT "E" TO VILLA PORTOFINO AMENDED AND RESTATED DEVELOPMENT AGREEMENT am SIGNAL MAINTENANCE AGREEMENT ■o OR .r we No 72500.0079117577720.1