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Home My WebLink AboutORD 1285RECORDING REQUESTED BY, AND WHEN RECORDED RETURN TO: City Clerk's Office City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 2016-0175780 05/02/2016 03:28 PM Fee: $ 0.00 Page 1 of 39 Recorded in official Records County of Riverside Peter Aldana Clerk -Reorder Assesc Assessor -County Fee Exempt - Gov't Code §6103 (Space above for Recorder's Use) DEVELOPMENT AGREEMENT (RETREAT AT DESERT WILLOW) between THE CITY OF PALM DESERT, a California Municipal Corporation and PORTOLA PD, LLC, a California limited liability company Dated as of September 10, 2015, for reference purposes only o ".Q (Ordinance No. 1285 — Case No. DA 15-15) izop_ >NW � Y VwW �D O G1CU= � U cm 061 -1 72500.00883\24631316.1 ORDINANCE NO. 1285 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT FOR THE RETREAT AT DESERT WILLOW FOR 112 CONDOMINIUM UNITS AND COMMON AREA AMENITIES ON 15.52 ACRES LOCATED AT 38-400 PORTOLA AVENUE. CASE NO: DA 15-15 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 21st day of April, 2015, hold a duly noticed public hearing to consider the request by Portola PD, LLC for approval of the above noted and adopted Planning Commission Resolution 2648 recommending approval to the City Council; and WHEREAS, the City Council of the City of Palm Desert, California, did on the 27tn day of August, 2015, hold a duly noticed public hearing, which was continued from June 11, 2015 and July 9, 2015 to consider the request by Portola PD, LLC for approval of the above noted Development Agreement; and WHEREAS, said applications have complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act," Resolution No. 2014-41, the Director of Community Development has determined that the project will not have a negative impact on the environment and that a negative declaration can be adopted; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, the City Council did find the following facts and reasons to exist to justify the approval of said request: 1. The Development Agreement provides the City and the developer with a higher degree of certainty of how the project will be developed, what associated fees and improvements will be required, and assurance of consistency with City policies, ordinances, regulations, and exceptions allowed as part of the zoning ordinance or DA. Listed are the key components that staff and the applicant agreed on for development of the project. • The increased project density of 8 du/acre is provided in the Development Approvals. • The maximum height of 30 feet is provided in the Development Approvals. • Developer will install a 6-foot high slump stone block wall along the Portola Avenue frontage of the retention basin. The wall must match the color, texture, width, and flagstone columns of the block wall to the existing Desert Willow perimeter block wall. ORDINANCE NO. 1285 • Developer will install double metal gates to provide access from Portola Avenue the retention basin and related improvements. • Developer will install and maintain desert landscaping in front of the perimeter block wall and transfer the responsibility to the Homeowners Association (HOA) and/or include maintenance as an obligation of the HOA pursuant to the CC&Rs. • Developer will plant trees on the south side of the retention basin to screen the maintenance building. • Developer will maintain the retention basin, including the retention basin slopes, drywells, walls, and perimeter trees and other underground drainage appurtenances within the retention basin. The Developer may transfer the responsibility to the HOA. • Developer will provide a one-time maintenance "clean up" of existing landscaping on the common east/north property line adjacent to the Desert Willow Golf Resort, Golf Hole No. 6. • All homeowners (two per household) upon closing on their units automatically become the equivalent of Academy Golf Members and Platinum Club Members at the City -owned Desert Willow Golf Resort for a monthly fee of $75.00. • Golf Academy Membership and Applicable Discounts and Benefits • Unlimited Use of Academy Practice Facility • Platinum Club Membership and Applicable Discounts and Benefits • Private Golf Cart Access Throughout Resort • An alternative to providing affordable, low-income, moderate -income or any other subsidized or inclusionary housing, the developer will pay an Affordable Housing Fee of $1.00 per square foot. (The amount of the fee will be established during the public hearing when the DA is considered by the City Council.) 2. The project meets the intent of the Planned Residential zone by providing a mixture of residential densities in the surrounding area. The building density would not adversely impact any adjacent properties. The proposed buildings only occupy 23 percent of the property, while 44 percent will be landscaping. 3. The design and layout of the 112 condominium units are in compliance with all grading requirements and the properties will be developed in accordance with the Uniform California Building Code. Grade changes in the community are accommodated by the street layout and open space provided throughout the subdivision. Pedestrian access is provided to adjoining land uses (Desert Willow Golf Resort), which decreases the need for vehicular traffic between adjoining properties. C:\Users\gsanchez\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\9XHLIHFC\CC - Development Agreement Ord..doc ORDINANCE NO. 1285 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AS FOLLOWS: 1. That the above recitations are true and correct and constitute the findings of the City Council in this case. 2. That the City Council does hereby approve Development Agreement 15-15 as proposed. 3. That Development Agreement 15-15, Exhibit "A" attached hereto, by Ordinance No. 1285 is hereby approved. 4. 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. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm Desert, California, at its regular meeting held on the 10th day of September, 2015, by the following vote, to wit: AYES: HARNIK, SPIEGEL, TANNER, and WEBER NOES: NONE ABSENT: JONATHAN ABSTAIN: NONE ATTEST: o�( - 0-i o 5 Susan Marie Weber, Mayor EACH DOCUMENT' TO WHICH THIS CERTIFICATE IS ATTACHED. IS CERTIFIED TO BE A FULL, TRUE AND CORRECT COPY OF THE ORIGINAL ON FILE AND ON RECORD IN MY OF E. 1Date� D. KLASSEN, Cltyr Clerk i rt, Califo C:\Users\gsanchez\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\9XHLIHFC\CC - Development Agreement Ord-doc [This page has intentionally been left blank.] DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is entered by and among the City of Palm Desert, a California municipal corporation ("City"), and Portola PD, LLC, a California limited liability company ("Developer") with reference to the following facts: RECITALS. A. 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 the "Development Agreement Statute," Sections 65864 et seq., of the Government Code. City, a California charter city, is authorized pursuant to the Development Agreement Statute to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing predictability for both City and Developer in the development process. Developer has requested that City enter into a development agreement for the development of the Property, as defined below. City enters into this Agreement pursuant to the provisions of the California Government Code, the City's General Plan, the City Municipal Code, and applicable City policies. B. Developer has entered into an Agreement of Purchase and Sale and Escrow Instructions to purchase from the Successor Agency to the Palm Desert Redevelopment Agency (SARDA") that certain parcel of approximately 15.5 acres of unimproved land commonly known as Desert Willow Lot Pad F, APN 620-400-0228, and more particularly described in Exhibit "A" (the "Property"). Developer desires to develop the Property in residential development. F. The Parties desire to enter into this Agreement in order to preserve Developer's rights to develop the Property pursuant to the applicable approvals, rules, regulations, and policies that are in place at the time of this Agreement, and to ensure sufficient funding is available to provide adequate and appropriate public facilities, infrastructure and services in advance of or at the time of need generated by the further development of the Property and that the Property will be developed in accordance with City's General Plan, and the City's Zoning Ordinance, and the Development Approvals as defined in Section 6.7. G. This Agreement constitutes a current exercise of City's police powers to provide predictability to Developer in the development approval process by vesting the permitted uses(s), density, intensity of use, and timing and phasing of development consistent with the General Plan and the Zoning Code. This Agreement allows City to realize significant economic benefits and services, which will advance the interests and meet the needs of the City's residents, businesses, and visitors to a greater extent than the current land uses. H. Developer desires to enter into this Agreement in order to eliminate uncertainty in planning for and secure orderly development of the Project, as defined in Section 6.16. -2 72500.00883\24631316.1 AGREEMENT City and Developer agree as follows: 1. Incorporation of Recitals. Each of the Recitals set forth above are part of this Agreement. 2. Purchase and Sale Agreement. On December 23, 2014, SARDA and Developer entered that certain Agreement of Purchase and Sale and Escrow Instructions for the Property. 3. Public Hearings. On August 27, 2015 ("Approval Date"), the City Council held a public hearing on the Development Approvals, including the approval of this Agreement, considered the recommendations of Staff, and made the findings set forth in Section 4. 4. City Council Findinqs. The City Council finds that this Agreement and the Development Approvals are consistent with City's General Plan, as well as all other applicable ordinances, plans, policies, and regulations of the City in effect as of the Approval Date. 4.1 The City Council finds that this Agreement will ensure a desirable and functional community environment, provide effective and efficient development of public facilities, infrastructure, and services appropriate for the development of the Project, assure attainment of maximum effective utilization of resources within the City, moderate the cost of housing and development to the consumer, and provide other significant benefits to the City and its residents. 4.2 The City Council finds that this Agreement strengthens the public planning process, encourages private participation in comprehensive planning, particularly with respect to the implementation of the City's General Plan, and reduces the economic costs of development and government. 4.3 The City Council finds that the best interests of the citizens of the City and the public health, safety and welfare will be served by entering into this Agreement. 4.4 The City Council finds that this Agreement is consistent with the City's General Plan. 5. Continuinq Obligations. City acknowledges that this Agreement binds City now and in the future. By approving this Agreement, the City Council has elected to exercise certain governmental powers at the time of entering into this Agreement rather than deferring its actions to some undetermined future date. The terms and conditions of this Agreement have undergone extensive review by the City staff and the City Council and have been found to be fair, just and reasonable. City has concluded that the Project will serve the best interests of its citizens and -3 72500.00883\24631316.1 that the public health, safety, and welfare will be best served by entering into this Agreement. 6. Definitions. In this Agreement, unless the context otherwise requires, the following terms and phrases shall have the following meanings, whether or not capitalized herein: 6.1 "Agreement' shall mean this Development Agreement between the City and Developer. The term "Agreement' shall include any amendment properly approved and executed pursuant to Section 8.5. 6.2 "City" shall mean the City of Palm Desert, a California municipal corporation. 6.3 "City Council' shall mean the governing legislative body of the City. 6.4 "City Municipal Code" shall mean the Palm Desert Municipal Code. 6.5 "Day" refers to a calendar day unless specifically stated as a "business day." 6.6 "Development' shall mean the improvement of the Property and other property pursuant to the Development Approvals for the purposes of completing the structures, improvements and facilities comprising or required in connection with the Project, including, but not limited to: grading; the construction of infrastructure and public and private facilities related to the Project whether located within or outside the Property; the development and construction of Units, buildings and structures on the Property; and the installation of landscaping on or adjacent to the Property. 6.7 "Development Approvals" shall mean the following entitlements, approved by the City Council on the Approval Date: a. Change of Zone, CZ 15-15; b. Precise Plan, PP 15-15 C. Negative Declaration of Environmental Impact No 15-15; d. this Agreement, DA No. 15-15; and e. Tentative Track Map, TTM 36874. 6.8 "Development Impact Fees" shall mean all fees established and imposed upon the Project by the City pursuant to the Mitigation Fee Act as set forth in California Government Code Section 66000 et seq. "Development Impact Fees" shall not include any fees that have not been established by the City pursuant to and in accordance with the Mitigation Fee Act -4 72500.00883\24631316.1 6.9 "Effective Date" shall mean the date this Agreement is recorded in the Clerk -Recorder's Office of the County of Riverside, California, after having been executed by all parties thereto with notary acknowledgements pursuant to Section 14.8. 6.10 "Existing Land Use Regulations" means all Land Use Regulations in effect on the Approval Date, including the Development Approvals. 6.11 "General Plan" shall mean the City of Palm Desert General Plan. 6.12 "Land Use Regulations" shall mean all ordinances, resolutions, codes, rules, regulations and official policies of the City governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction and initial occupancy standards and specifications applicable to the Project. "Land Use Regulations" do not include any City ordinance, resolution, code, rule, regulation or official policy governing: a. The conduct or taxation of businesses, professions, and occupations applicable to all businesses, professions, and occupations in the City; b. Other than as provided in this Agreement, taxes and assessments of general application upon all residents of the City, provided that the taxes and assessments are not imposed for the purpose of taxing the right, power or privilege of developing or improving land (e.g., excise tax) or to directly finance the acquisition or dedication of open space or any other public improvement in respect of which the Developer is paying any fee or providing any improvement pursuant to this Agreement; C. The control and abatement of nuisances; d. The granting of encroachment permits and the conveyance of rights and interests which provides for the use of, access to or the entry upon public property, as may be approved by mutual agreement between Developer and City; and e. The exercise of the power of eminent domain. 6.13 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security -device, lender, and their successors and assigns. 6.14 "Developer" refers to Portola PD, LLC, a California limited liability company. Developer" includes successors in interest to Portola PD, LLC -5 72500.00883\24631316.1 6.15 The "Parties" means the City and Developer. A "Party" refers to either the City or the Developer, as the context requires. 6.16 "Project' means the Development of the Property consistent with the General Plan, the Development Approvals and this Agreement, including development and construction of the Units and other structures, facilities and improvements on or about the Property and other property. 6.17 "Property" means the real property described in Exhibit "A" and illustrated and depicted on Exhibit "B," which exhibits are attached hereto and incorporated herein. 6.18 "Reservation of Authority" means the rights and authority specifically reserved to City which limits the assurances and rights provided to the Developer under this Agreement. The Reservation of Authority is further defined in Section 9.7. 6.19 "Retention Basin" means, as the context requires, that certain drainage and retention basin owned by City or SARDA adjacent to Portola Avenue and depicted on Exhibit "B" hereto or the City owned parcel of land within which such retention basin is located. 6.20 "Subsequent Development Approvals" means any and all permits, licenses, approvals and authorizations for or related to the Project required or permitted by the Existing Land Use Regulations, the Subsequent Land Use Regulations and this Agreement after the Approval Date, including, without limitation, all development review approvals required under the City Municipal Code, site development permits, excavation, grading, building, construction, encroachment or street improvement permits, occupancy certificates, utility connection authorizations, drainage, landscape, or other permits or approvals necessary for the grading, construction, marketing, use and occupancy of the Project. 6.21 "Subsequent Land Use Regulations" means those Land Use Regulations adopted and first becoming effective after the Approval Date which are described in Section 9.7 ("Reservation of Authority") of this Agreement. 6.22 "Term" means the term of this Agreement as set forth in Section 8.2 of this Agreement. 6.23 "Unit' means each and any residential unit contemplated by the Development Approvals and included as part of the Project. For the purposes of Section 9.15, the term "Completed Unit' means a Unit (i) that has been substantially completed and constructed on the Property as part of the Project, and (ii) for which a conditional certificate of occupancy has been issued by the City (or will be issued by the City upon payment of the In -Lieu Fee (as hereafter defined)). -6 72500.00883\24631316.1 7. EXHIBITS. All exhibits attached to this Agreement are incorporated as a part of this Agreement. Those exhibits are: Exhibit Description "A" Property Legal Description "B" Illustration of Property Location / Overview "C" Desert Willow Golf Resort Membership Privileges 8. GENERAL PROVISIONS 8.1 Binding Effect of Agreement. This Agreement shall be recorded against the Property and shall run with the land until the Property or any portion thereof has been released of record from this Agreement or this Agreement has terminated pursuant to the terms hereof. The Development shall be carried out only in accordance with the terms of this Agreement; provided, however, that this Agreement is not intended to compel Developer to complete the Project and Developer shall be under no obligation whatsoever to commence or complete Development of the Property on account of this Agreement. 8.2 Term of Agreement. The Term shall commence on the Effective Date. The Term shall continue for a period of ten (10) years from the Effective Date (the "Term"), subject to the following: a. During the Term, certain portions of the Property may be released from this Agreement as provided elsewhere in this Agreement. b. As provided in Section 8.3 or elsewhere within this Agreement, the Term may end earlier than the end of either the Initial Term or any extension pursuant to Section8.2(c) below. C. So long as Developer is not then in default of its obligations hereunder or under any agreement contemplated hereunder or otherwise with respect to any Land Use Regulations or Development Approvals, City agrees to consider, in its absolute discretion, an extension of the Term of this Agreement with respect to and upon the written request of Developer for an additional five (5) year period. 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 warrant a material change to the Project (to the extent not completed) as currently contemplated by this Agreement. All references to the "Term" in this Agreement shall be deemed to take into account any such extension agreed to by City pursuant hereto. -7 72500.00883\24631316.1 8.3 Termination. This Agreement shall be deemed terminated and of no further effect upon the earlier occurrence of any of the following events: a. Expiration of the Term as set forth in Section 8.2 of this Agreement; b. Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement; C. The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement; d. Completion of the Project in accordance with the terms of this Agreement, including issuance of all required occupancy permits and acceptance by City, or the applicable public agency, of all required dedications and the satisfaction of all of Developer's obligations under this Agreement; or e. As may be provided by other specific provisions of this Agreement. 8.4 Effect of Termination or Expiration. Termination or expiration of this Agreement shall not constitute termination of the Development Approvals or Subsequent Development Approvals obtained prior to the date of termination or expiration. Upon termination of this Agreement, which termination is subject to the notice and cure rights set forth in Section 12 below, or upon expiration of the Term of this Agreement, the only rights or obligations under this Agreement which either Party shall have are those obligations that are specifically set forth as surviving this Agreement, including those described in Sections 11, 12, and 14.14. 8.5 Amendment or Cancellation of Agreement. Subject to the terms of Section 8.6, this Agreement may be amended from time to time or canceled only by the written consent of both City and Developer in the same manner as its adoption, as set forth in California Government Code Section 65868. Any amendment or cancellation shall be in a form suitable for recording in the Office of the Clerk -Recorder of the County of Riverside, California. An amendment or other modification of this Agreement will continue to relate back to the Effective Date of this Agreement (as opposed to the effective date of the amendment or modification), unless the amendment or modification expressly states otherwise. 8.6 Minor Modifications. The provisions of this Agreement require a close degree of cooperation between the Parties and "Minor Changes" to the Project may be required from time to time to accommodate design changes, engineering changes, and other refinements related to the details of the Parties' performance. "Minor Changes" shall mean changes to the Project that are consistent with the Development Approvals, which do not result in a change in use, an increase or decrease in density or -8 72500.00883\24631316.1 intensity of use, significant new or increased environmental impacts that cannot be mitigated, or violations of any applicable health and safety regulations in effect on the Effective Date. Accordingly, the Parties may mutually consent to adopting "Minor Changes" through their signing of an "operating memorandum" reflecting the Minor Changes. Neither the Minor Changes nor any Operating Memorandum shall require public notice or hearing. The City Attorney and City Manager shall be authorized to determine whether proposed modifications and refinements are "Minor Changes" subject to this Section 8.6 or more significant changes requiring amendment of this Agreement. The City Manager may execute any operating memoranda without City Council action. 8.7 Term of Development Approvals. To the extent not precluded by applicable law, the expiration date of all Development Approvals shall be extended so they are coextensive with the Term of this Agreement (as same may be extended in accordance herewith). 8.8 Relationship of City and Developer. The contractual relationship between City and Developer arising out of this Agreement is one of independent contractor and not agency. This Agreement does not create a joint -venture or any third -party beneficiary rights. 8.9 Notices. All notices, demands, and correspondence required or permitted by this Agreement shall be in writing and delivered in person or mailed by first class or certified mail, postage prepaid, addressed as follows: If to City, to: City of Palm Desert Attn: City Manager 73-510 Fred Waring Drive Palm Desert, California 92260 With a copy to: Best Best & Krieger LLP Attn: Dave Erwin 74760 Highway 111, Suite 200 Indian Wells, California 92210 If to Developer, to: Portola PD, LLC Attn: Rudy C. Herrera 73081 Fred Waring Drive Palm Desert, California 92260 -s 72500.00883\24631316.1 With a copy to: Law Offices of Gregory L. Wasserman Attn: Greg Wasserman 700 Larkspur Landing Circle, Suite 199 Larkspur, California 94939 City or Developer may change its address by giving notice in writing to the other parties at the addresses listed above. Thereafter, notices, demands, and correspondence shall be addressed and transmitted to the new address. Notice shall be deemed given upon personal delivery or, if mailed, two (2) business days following deposit in the United States mail. 9. DEVELOPMENT OF THE PROPERTY. 9.1 Developer's Vested Right. Developer shall have the vested right to complete Development of the Property and to build -out the Project in accordance with the Development Approvals and the Subsequent Development Approvals, the Existing Land Use Regulations and this Agreement ("Developer's Vested Right"). To enable Developer to complete the Project, Developer's Vested Right shall include, but not be limited to, with the exercise of reasonable diligence, the right to the issuance of all permits and certificates of occupancy, the granting of all approvals, the conducting and performance of all reviews and inspections, and the taking of such other actions that are (i) requested by Developer, and (ii) consistent with the terms of this Agreement and the Development Approvals. In no event or circumstance shall the City's approval, granting or issuance of any Development Approvals be delayed in connection with or contingent upon the City's adoption or contemplation of an In -Lieu Fee Ordinance (as hereafter defined). Developer's Vested Right shall be subject to the Reservation of Authority set forth in Section 9.7 and all provisions of this Agreement, and may not be modified or terminated except as expressly provided by this Agreement. Upon any termination or the expiration of this Agreement, and subject to the terms of Section 8.4, Developer's rights to continue with Development of the Property to complete the Project pursuant to the Development Approvals and the Subsequent Development Approvals shall be subject to the ordinary exercise of the City's police power and City's applicable processes and procedures then in place. At that time, Developer's vested rights, if any, shall be determined by City ordinance, rules, regulations and procedures, state and federal statutes and case law and the then current factual state of the Development. 9.2 Governing Land Use Regulations. The Land Use Regulations applicable to the Project and the Property shall be the Existing Land Use -10 72500.00883\24631316.1 Regulations. An amendment or other modification of this Agreement will not change the applicable Land Use Regulations (i.e., the Existing Land Use Regulations will control), unless the amendment or modification expressly provides otherwise. Likewise, an amendment to the Development Approvals shall not require an amendment to this Agreement. In the event of a conflict between the Development Approvals and other provisions of the Existing Land Use Regulations, the terms and conditions of the Development Approvals shall control. Except as provided under Section 9.7, the City's Reservation of Authority, Land Use Regulations that are adopted after the Approval Date shall not apply to the Property, the Development, or the Project, with the following exceptions: a. Developer and City may mutually agree in writing that the Project will be subject to one or more Land Use Regulations that are adopted after the Approval Date. With the mutual written agreement of the Parties, if those Land Use Regulations do not result in a change in use, a substantial increase or decrease in density or intensity of use, significant new or increased environmental impacts that cannot be mitigated, or violations of any applicable health and safety regulations in effect on the Approval Date, an amendment of this Agreement shall not be required to make those regulations applicable to the Property. If any of those effects would occur, then Developer and City must amend this Agreement in accordance with Section 8.5 if they desire to subject the Project to any such Land Use Regulations adopted after the Approval Date. b. The Subsequent Land Use Regulations described in Section 9.7 below shall apply to the Property, the Development, and the Project, but only to the extent permitted by Section 9.7. Nothing contained in this Section shall be deemed to authorize or permit City to withhold any building permit, review, inspection, approval, authorization, and/or certificate of occupancy based on Developer's failure to comply with any Land Use Regulation that is not applicable to the Project because of this Agreement. 9.3 Permitted Uses. Except as otherwise provided within this Agreement, the permitted uses on the Property shall be as provided in the Development Approvals. 9.4 Density and Intensity. Except as otherwise provided within this Agreement, the density and intensity of use for all Development on the Property shall be as provided in the Development Approvals. -11 72500.00883\24631316.1 9.5 Maximum Height and Size of Structures. Except as otherwise provided within this Agreement, the maximum height and size for all structures on the Property shall be as provided in the Development Approvals. 9.6 Requirement for Reservation and Dedication of Land. Except as otherwise provided within this Agreement, the Project's requirements for reservation and dedication of land shall be as provided in the Development Approvals. 9.7 Reservation of Authority. The following Subsequent Land Use Regulations shall apply to the Property and the Project: a. Processing fees and charges imposed by the City to cover the City's estimated or actual costs of reviewing and processing applications for Development of the Property, providing inspections, conducting annual reviews, providing environmental analysis, or for monitoring compliance with this Agreement or any Development Approvals granted or issued, provided such fees and charges are in force and effect on a general basis on the date of filing such applications with the City and are not applied to the Project in a discriminatory manner. This Section shall not be construed to limit the authority of City to charge normal and customary application, processing, and permit fees for land use approvals, building permits and other similar permits, which fees are designed to reimburse City's expenses attributable to such application, processing and permitting and are in force and effect on a City-wide basis at such time as said approvals and permits are granted by City. b. Procedural regulations applicable and applied on a City-wide basis relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. C. Provided that they are uniformly applied to all development projects within the City, regulations governing engineering and construction standards and specifications, including uniform codes adopted by the City and local amendments to those codes adopted pursuant to state law. Such codes include, without limitation, the City's adopted version of the Uniform Administrative Code, Building Code, Plumbing Code, Mechanical Code, Electrical Code, and Fire Code. d. Regulations which may be in conflict with the Development Approvals or this Agreement but which are objectively required (and there are no available reasonable alternatives) to protect the public health and safety in the event of a sudden, unexpected occurrence involving a clear and imminent danger that demands immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services within the immediate community. Such regulations must be a valid exercise of the City's -12 72500.00883\24631316.1 police power and must be applied and construed so as to provide Developer, to the maximum feasible extent, with the rights and assurances provided in this Agreement and the Development Approvals, including, without limitation, Developer's Vested Right, without unnecessary condition or undue delay. Any regulations, including moratoria, enacted by City and imposed on the Property to protect the public health and safety in the limited circumstances described above shall toll the Term and any time periods for performance by Developer and City set forth in this Agreement. 9.8 Development Impact Fees. Developer shall pay those Development Impact Fees uniformly applied to all development projects within the City in effect at the time of payment as and when typically paid for projects similar to the Project or as otherwise agreed to by the Parties. 9.9 Adequacy of Required Infrastructure. Subject to Developer's installation of all infrastructure required to serve the Project in accordance with the requirements of the Development Approvals and the Existing Land Use Regulations and subject to City's Reservation of Authority and Developer's payment of Development Impact Fees, City acknowledges and agrees that, based on current and reasonably foreseeable conditions, there is sufficient capacity in the infrastructure and services owned, operated, controlled, and provided by the City, including, without limitation, traffic circulation, storm drainage (including the capacity of the Retention Basin), trash collection, and flood control, to accommodate the Project. Notwithstanding the foregoing, City does not warrant the adequacy of and City shall not be responsible or liable for any infrastructure or services that are not owned, operated, controlled and /or provided by City. 9.10 Changes in Federal and State Law. The Property may be subject to subsequently enacted state or federal laws or regulations, which preempt local regulations, or mandate the adoption of local regulations that conflict with the General Plan and this Agreement. Upon discovery of a subsequently enacted federal or state law meeting the requirements of this Section, City or Developer shall provide the other Party with written notice of the state or federal law or regulation, provide a copy of the law or regulation, and a written statement of conflicts with the provisions of this Agreement and/or the General Plan. Promptly thereafter, City and Developer shall meet and confer in good faith in a reasonable attempt to modify this Agreement to the limited extent necessary to comply with such federal or state law or regulation. In such negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of Developer as derived from this Agreement, including, without limitation, the Developer's Vested Right, to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Developer in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Developer. City also agrees to process Developer's proposed changes to the Project as may be necessary to comply with such federal -13 72500.00883\24631316.1 or state law and to promptly process such proposed Project changes in accordance with City procedures. Any delays caused by such changes in state or federal law shall toll the Term of this Agreement and the time periods for performance by Developer and City set forth in this Agreement. 9.11 Compliance with CEQA. The City acknowledges and agrees that all of the environmental impacts of the Project, and any appropriate mitigation measures and alternatives, have been adequately addressed in the Development Approvals. City agrees to cooperate with Developer to process in a timely manner any additional environmental study or report circulated by Developer in connection with the ongoing Development of the Property and completion of the Project 9.12 Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that the failure of the parties in that case to provide for the timing of development resulted in a later -adopted initiative restricting the timing of development to prevail over the parties' agreement, it is the specific intent of the Parties to provide for the timing of Development in this Agreement. To do so, the Parties acknowledge and provide that Developer shall have the right, but not the obligation, to develop the Property in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment subject to the phasing of the Development set forth in Section 9.13. 9.13 Commencement, Phasing and Sequence of Development. Developer may commence Development of the Property when it deems appropriate in its subjective business judgment. Developer may complete the Project in as many development phases and sub -phases as it deems appropriate in its subjective business judgment. However, Developer shall complete the obligations described in the Development Approvals within the Term of this Agreement or Developer's Vested Right shall be subject to limitation or qualification pursuant to the terms of Section 8.4 and Section 9.1 hereof. 9.14 Covenants, Conditions and Restrictions. Developer shall reserve and record such covenants, conditions and restrictions ("CC&Rs") against the Property that Developer deems appropriate in the exercise of its reasonable business judgment, which CC&Rs shall relate to the development, use and operation of the Project and shall contemplate the establishment of a homeowners' association to oversee the Project pursuant to the applicable terms thereof (the "HOA" ); provided, however, that such CC&Rs shall not conflict with the terms of this Agreement, the Development Approvals or any Existing Land Use Regulations. Prior to recordation of such CC&Rs, Developer shall provide a copy of the CC&Rs to City for review and approval by the City Attorney. The City Attorney's review shall be limited to determining if the CC&Rs substantially comply with the terms of this Agreement, including the requirements of Section -14 72500.00883\24631316.1 9.15. The CC&Rs will run with the land, and, in accordance with its terms, shall be binding on Developer's successors, assigns and transferees of all or any portion of the Property. 9.15 Development of the Project. Notwithstanding any provision of this Agreement, the Existing Land Use Regulations or the Development Approvals to the contrary, but subject to compliance with all applicable legal requirements, including, but not limited to CEQA, the following requirements shall apply to the Project: a. Prior to City's issuance of any occupancy permit for the Project, but not as a condition to City's issuance of any building permits for the Project, Developer shall install a 6 foot high slump stone block wall along the Portola Avenue frontage of the Retention Basin pursuant to the applicable City approved improvement plans (the "Block Wall"). Developer shall reasonably endeavor to match the color, texture, width, and flagstone columns of the Block Wall to the existing Desert Willow perimeter block wall. Developer shall also install double metal gates (of the type commonly used for such purposes) in a location reasonably acceptable to City to provide reasonable access from Portola Avenue to the Retention Basin and related improvements. b. Prior to City's issuance of any occupancy permit for the Project, but not as a condition to City's issuance of any building permits for the Project, Developer shall install desert landscaping in front of the Block Wall (the "Block Wall Landscaping"), and shall irrigate and maintain such Block Wall Landscaping in perpetuity as part of the Project's new perimeter landscaping. Developer's obligation to install, irrigate and maintain the Block Wall Landscaping shall be consistent with the City approved landscape plan. Developer's obligation to install, irrigate and maintain the Block Wall Landscaping may be transferred to the HOA and/or included as an obligation of the HOA pursuant to the CC&Rs, in either of which event Developer shall be released from said obligation. C. Developer shall plant trees on the South side of the Retention Basin Developer running east -west to screen off the maintenance building (the "Retention Basin Trees"), which Retention Basin Trees shall be planted in conformance with the approved landscaping plan for the Project, if and to the extent reflected therein, or otherwise to the reasonable satisfaction of the City. Furthermore, Developer shall reasonably maintain the Retention Basin, including the Retention Basin Trees slopes, drywells, walls and other underground drainage appurtenances within the retention basin, in accordance with all City ordinances; rules and regulations, which obligation shall include quarterly clean up. Developer's obligation to maintain the Retention Basin, including the Retention Basin Trees -15 72500.00883\24631316.1 slopes, drywells, walls and other underground drainage appurtenances within the retention basin, may be transferred to the HOA and/or included as an obligation of the HOA pursuant to the CC&Rs, in either of which event Developer shall be released from said obligation. d. Prior to City's issuance of any occupancy permit for the Project, but not as a condition to City's issuance of any building permits for the Project, Developer shall provide a one-time maintenance "clean up" of existing landscaping on the common east/north property line adjacent to the Desert Willow Golf Resort, hole No. 6, in a manner that is reasonably acceptable to City. Such obligation shall not require Developer to install new landscaping or to install, repair or replace any irrigation system servicing such existing landscaping. e. Unit owners shall, upon closing on their respective Completed Unit, automatically become the equivalent of an Academy Golf Member and Platinum Club Member at the City owned Desert Willow Golf Resort adjacent to the Property (each a "Unit Member") for the Monthly Unit Access Fee (as set forth below) with no additional fees or costs or buy -in amount pursuant to the terms of the CC&Rs (or an amendment thereto) and a separate agreement between Developer, City and the HOA addressing the specific terms of Unit Membership (the "Desert Willow Unit Membership Agreement"). City and Developer shall cooperate with each other and the HOA with respect to finalizing the Desert Willow Unit Membership Agreement and the applicable terms of the CC&Rs (or an amendment thereto) as soon as practicable. The Desert Willow Unit Membership Agreement shall contemplate, among other things, that (i) each owner of a Completed Unit (but no more than two co - owners per Completed Unit) shall become a Unit Member upon the closing on their respective Completed Unit, (ii) each Unit Member shall have, without limitation, the benefit of all of those certain Desert Willow Golf Resort Membership Privileges set forth on Exhibit "C" attached hereto and incorporated herein, (iii) the HOA shall be responsible for collecting the Monthly Unit Access Fees from the owners of Completed Units and paying same over to City (or the then owner of the Desert Willow Golf Resort), which Monthly Unit Access Fees shall be paid by the HOA to the City on a quarterly basis, (iv) such agreement is intended to be perpetual in nature and shall run with the land and be recorded against the land underlying the Desert Willow Golf Resort, (v) the Monthly Unit Access Fee shall be fixed at $75 per month per Completed Unit, and (vi) Developer shall not be responsible for the payment of any Monthly Unit Access Fees. -16 72500.00883\24631316.1 f. As an alternative to providing affordable, low-income, moderate - income or any other subsidized or inclusionary housing (as applicable, "Subsidized Housing") at the Project, Developer shall pay an Affordable Housing Fee of $1.00 per square foot of habitable space with respect to the Units pursuant to the terms hereof, unless the City adopts an Affordable Housing Fee applicable to new residential development in the City ("City -Wide Affordable Housing Fee"), in which case the City -Wide Affordable Housing Fee shall apply. Except as may be otherwise agreed to by the Parties, and unless the City -Wide Affordable Housing Fee (as hereafter defined) contemplates a later payment, any Affordable Housing Fee that may be paid by Developer pursuant to the terms of this Agreement for or with respect to a Unit shall be paid by Developer to City, on a Unit by Unit basis, upon and as a condition to the City's issuance of a building permit for a given Unit. Furthermore, in the event that any Affordable Housing Fees are paid by Developer exclusive of City -Wide Affordable Housing Fee in connection with the Project, City and Developer shall reasonably cooperate to explore entering into a separate agreement pursuant to which Developer may utilize any such Affordable Housing Fees paid by Developer to supply Subsidized Housing in the City. As used herein, the term "Affordable Housing Fee" means a fee imposed by this Agreement payable by Developer to the City as an alternative to providing Subsidized Housing at the Project that applies to each Unit. Subject to the foregoing, the Affordable Housing Fee shall be superseded by any applicable ordinance formally adopted by the City at any time which ordinance primarily concerns the payment of a fee by real estate developers in connection with a given project as an alternative to any such developer providing Subsidized Housing in the City as part of such project (an "City -Wide Affordable Housing Fee"). 9.16 Construction of the Project. In addition to constructing the Project in accordance with the Development Approvals, Developer shall take commercially reasonable best efforts to incorporate plumbing and irrigation systems that allow for the use of reclaimed water on the medians, parks, and all landscaped areas on the Property. Developer shall take commercially reasonable best efforts to incorporate within the Project certain construction concepts promoted by the U.S. Green Building Council. 9.17 Access to and Over and Utilization of Retention Basin. The Project shall have the right to utilize the Retention Basin, in compliance with all applicable laws, rules and regulations but without further restriction or qualification, for storm water and drainage discharge and runoff. Furthermore, Developer and Developer's successors, assigns and transferees (including owners of any portion of the Property) shall have the right to access and cross over and through the Retention Basin and -17 72500.00883\24631316.1 the City owned maintenance area adjacent to and south of the Property using paths, sidewalks and/or walkways to be constructed by Developer to provide pedestrian and golf cart access to and from the Desert Willow Golf Resort and associated golf courses. Upon request of Developer, the rights and interests of Developer set forth in this Section 9.17 shall be memorialized in one or more easement agreements between City and Developer in form and substance consistent with the foregoing and otherwise reasonably acceptable to the Parties. 10. ANNUAL REVIEW. 10.1 Timing of Annual Review. Pursuant to Government Code Section 65865.1, City shall review the good faith compliance of Developer with the terms of this Agreement one time during every twelve (12) month period of the Term until substantial build -out of the Project has occurred ("Annual Review"). 10.2 Standards for Annual Review. During the Annual Review, Developer shall be required to demonstrate good faith compliance with the terms of this Agreement. If City Council or its designee finds and determines, based on substantial evidence, that Developer has not complied in good faith with the terms or conditions of this Agreement, then City may proceed in accordance with Section 12 of this Agreement pertaining to the potential default of Developer and the opportunities for cure. City shall establish and Developer shall pay a reasonable fee to cover the costs incurred by City in connection with the Annual Review (the "Annual Review Fee"). 10.3 Certificate of Compliance. At any time during any year that the City Council or its designee finds that Developer is in compliance with this Agreement, City shall, upon written request by Developer, provide Developer with a written certificate of good faith compliance within fifteen (15) days of City's receipt of Developer's request for same. 11. THIRD PARTY LITIGATION. 11.1 General Plan Litigation. City has determined that this Agreement is consistent with its General Plan. Developer has reviewed the General Plan and concurs with City's determination. Neither Developer nor City shall have any liability under this Agreement or otherwise for any failure of City to perform under this Agreement, or for the inability of Developer to proceed with Development the Property as contemplated by the Development Approvals or this Agreement, if such failure or inability is the result of a judicial determination that part or all of the General Plan is invalid, inadequate, or not in compliance with law. 11.2 Third Party Litigation Concerning Agreement. In the event of any legal challenge instituted by a third party challenging the validity of any provision of the Development Approvals including this Agreement, -18 72500.00883\24631316.1 Developer and City each shall have the right, in its sole discretion, to elect whether or not to defend such action. Developer shall, at Developer's expense, defend, indemnify, and hold City, its agents, officers and employees harmless from any claim, action or proceeding against City, its agents, officers or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any Development Approvals or Subsequent Development Approvals granted pursuant to this Agreement, unless Developer elects to abandon the Project or the underlying Development Approval or Subsequent Development Approval. City shall promptly notify Developer of any such claim, action or proceeding, and City shall cooperate in the defense. 11.3 Indemnity. In addition to the provisions of Section 11.2, Developer shall indemnify and hold City, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or alleged upon any act or omission of Developer, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury or death (Developer's employees included) or any other element of damage of any kind or nature, relating to or arising from Development of the Project, except for claims for damages arising through the active negligence or intentional or willful misconduct of City or any of its officers, agents, employees and independent contractors. Developer shall defend, at Developer's expense, including attorneys' fees, City, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions of Developer that are subject to such indemnity obligation. City may in its discretion participate in the defense of any such legal claim, action or proceeding. 11.4 Environmental Contamination. Developer shall indemnify and hold City, its officers, agents, and employees free and harmless from any liability, based or alleged, upon any act or omission of Developer, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors, resulting in any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and Developer shall defend, at its expense, including attorneys' fees, City, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. City may in its discretion participate in the defense of any such claim, action or proceeding. Notwithstanding anything to the contrary set forth in this Section, Developer shall not be responsible hereunder and shall not be required to indemnify City, its officers, agents and employees for, from or against or with respect to (a) clean-up and removal of groundwater contamination migrating to or from an adjacent property not owned by Developer, or (b) pre-existing conditions affecting the Property (including the discovery or existence of hazardous substances in, on or about the Property and associated groundwater), or (c) for soil conditions and other environmental contamination that resulted -19 72500.00883\24631316.1 from the act or omission of City its officers, agents, contractors, consultants and employees. 11.5 City to Approve Counsel. With respect to Sections 11.1 through 11.4, City reserves the right to either (a) approve the attorneys) that Developer selects, hires or otherwise engages to defend City, which approval shall not be unreasonably withheld, or, (b) at City's sole discretion, and unless Developer has elected to abandon the Project or the underlying Development Approval or Subsequent Development Approval, conduct its own defense, provided, however, that if City elects to conduct its own defense, Developer shall reimburse City for any and all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefore; 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. City shall not have the right to approve counsel selected by Developer to represent Developer's interests in any litigation. 11.6 Processing During Third Party Litigation. The filing of any third party lawsuit(s) against City or Developer relating to this Agreement, the Development Approvals, or other development issues affecting the Property shall not delay or stop the Development of the Property, processing related to or construction of the Project, approval of the Development Approvals and Subsequent Development Approvals, or issuance of any other "Ministerial Approvals," unless the third party obtains a court order preventing the activity. City shall not stipulate to the issuance of any such order. For purposes of this Section, the term "Ministerial Approvals" shall mean the issuance of approvals or permits requiring the determination of conformance with the Existing Land Use Regulations, including, without limitation, site plans, design review, development plans, land use plans, grading plans, improvement plans, building plans and specifications, and ministerial issuance of one or more final maps, zoning clearances, grading permits, improvement permits, wall permits, building permits, lot line adjustments, conditional and temporary use permits, certificates of use and occupancy and approvals and entitlements and related matters as may be necessary for the completion of the Development of the Property. 11.7 Survival. The provisions of this Section 111, shall survive the termination, cancellation or expiration of this Agreement. 12. DEFAULTS AND REMEDIES. 12.1 Notice and Termination. Before either Party may declare a default or termination of this Agreement or bring a legal action to terminate this Agreement, and before any Party shall be deemed or considered to be in default of this Agreement, the procedures of this Section 12 must be followed. In the case of a default arising from the conduct of an Annual -20 72500.00883\24631316.1 Review, the procedures of this Section shall be strictly followed and shall constitute a second review of the good faith compliance of Developer. The Party asserting a default (the "Non -Defaulting Party") may elect to do so by providing written notice to the Party alleged to be in default (the "Defaulting Party") setting forth the nature of the default and the actions, if any, required by the Defaulting Party to cure the default. The Defaulting Party shall be deemed in default if the Defaulting Party fails to cure the default within thirty (30) business days after the date of such notice (for monetary defaults) or within sixty (60) business days after the date of such notice (for non -monetary defaults) so long as the Defaulting Party has commenced efforts to cure the default within thirty (30) business days after receipt of the default notice and thereafter continues to diligently pursue a cure; provided, however, that if the nature of the alleged default is such that it cannot reasonably be cured within such 60 business day period, the Defaulting Party shall not be deemed to be in default of this Agreement if it has commenced efforts to cure the default within thirty (30) business days after receipt of the default notice and thereafter continues to diligently pursue a cure. 12.2 Default Remedies. A Non -Defaulting Party who has complied with the notice of default and opportunity to cure requirements of Section 12.1 may, at its option, institute legal action to cure, correct, or remedy the alleged default, enjoin any threatened or attempted violation, terminate this Agreement by written notice to the Defaulting Party, enforce the terms of this Agreement by specific performance, or pursue any other legal or equitable remedy. These remedies shall be cumulative rather than exclusive, except as otherwise provided by law. Notwithstanding the foregoing, in no event or circumstance shall Developer be compelled to initiate, continue or complete Development of the Property or completion of the Project or any aspect or component thereof pursuant to a specific performance action or any other legal or equitable remedy or judicial order. Furthermore, the City, after first following the procedures set forth in Section 12.1, may give notice of its intent to terminate or modify this Agreement for an uncured default, in which event the matter shall be scheduled for consideration and review by the City Council. 12.3 Developer's Exclusive Remedy. City and Developer acknowledge that, subject to the terms of Section 14.14 hereof, neither City nor Developer would have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement, the General Plan, or the Development Approvals. Accordingly, except as otherwise stated in this Section 12.3, neither Party shall sue the other for damages or monetary relief of any kind for any matter related to this Agreement, the General Plan, or the Development Approvals. City may, however, sue Developer for the payment of sums due from Developer to City under provisions of -21 72500.008M24631316.1 this Agreement which are expressly stated to survive termination of this Agreement and which establish a financial obligation of Developer pursuant to their express terms. Subject to the terms of Section 14.14 hereof, Developer's remedies shall be limited to declaratory and injunctive relief, mandate, and specific performance. 12.4 Waiver; Remedies Cumulative. All waivers of performance must be in a writing signed by the Party granting the waiver. There are no implied waivers hereunder. Failure by City or Developer to insist upon the strict performance of any provision of this Agreement, irrespective of the length of time for which such failure continues, shall not constitute a waiver of the right to demand strict compliance with this Agreement in the future. A written waiver affects only the specific matter waived and defines the performance waived and the duration of the waiver. Unless expressly stated in a written waiver, future performance of the same or any other condition is not waived. A Party who complies with the notice of default and opportunity to cure requirements of Section 12.1 and elects to pursue a legal or equitable remedy available under this Agreement does not waive its right to pursue any other remedy available under this Agreement, unless prohibited by statute, Court rules, or judicial precedent. Delays, tolling, and other actions arising under Section 14.9, and any other tolling provision set forth in this Agreement, shall not be considered waivers subject to this Section 12.4. 12.5 Alternative Dispute Resolution. Any dispute between the Parties may, upon the mutual agreement of the Parties, be submitted to mediation, binding arbitration, or any other mutually agreeable form of alternative dispute resolution. While an alternative dispute process is pending, the statute of limitation shall be tolled for any claim or cause of action which either of the Parties may have against the other. 13. ENCUMBRANCES, ASSIGNMENTS, AND RELEASES. 13.1 Discretion to Encumber. This Agreement shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering some or all of the Property or any improvement on the Property by or in connection with (a) any mortgage, deed of trust, or other security device to secure financing related to the Property or the Project, or (b) any other encumbrance or interest in the Property, including, without limitation, the Development Approvals, any easements or reciprocal easements, licenses, the CC&Rs and any other covenants, conditions or restrictions applicable to the Property or the Project. -22 72500.00883\24631316.1 13.2 Mortgagee Protection. City acknowledges that the lender(s) providing financing secured by the Property and/or its improvements may require certain Agreement interpretations and modifications. City shall, at any time requested by Developer or the lender, meet with Developer and representatives of such lender(s) to negotiate in good faith any such interpretation or modification. City will not unreasonably withhold its consent to any requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges: a. Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage or deed of trust on the Property made in good faith and for value. b. If City timely receives a prior request from a Mortgagee requesting a copy of any notice of default given by City to Developer under the terms of this Agreement, City shall provide a copy of such default notice to the Mortgagee within ten (10) days of sending the notice of default to Developer. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed Developer under Section 12.1 of this Agreement. C. Except as otherwise provided within this Agreement, any Mortgagee who comes into possession of some or all of the Property pursuant to foreclosure of a mortgage or deed of trust, or deed in lieu of such foreclosure, shall: 13.2.c.1 Take that property subject to the terms of this Agreement and as Developer's successor; and 13.2.c.2 Have the rights and obligations of an Assignee as set forth in Sections 13.3 and 13.4. d. The Mortgagee shall have the right to rely on the same Development related rights and assurances provided to Developer as contained within this Agreement, provided that any Development proposed by the Mortgagee is in substantial conformance with the terms of this Agreement. e. The Mortgagee shall not be liable for any defaults or monetary obligations of Developer arising prior to acquisition of title to the Property by the Mortgagee, except that the Mortgagee may not pursue Development pursuant to this Agreement until all delinquent and current fees and other monetary obligations due under this Agreement for the portions of the acquired by the Mortgagee have been paid to City. -23 72500.00883\24631316.1 13.3 Transfer or Assignment. Subject to Section 13.5, Developer shall have the right to sell, transfer, or assign its rights and obligations under this Agreement (collectively, an "Assignment") in connection with a transfer of Developer's interest in all or any portion of the Property (as applicable, the "Transferred Property"). No Assignment shall be made unless made together with the sale, transfer or assignment of all or part of the Property. Within fifteen (15) business days after any Assignment, Developer shall notify City in writing of the Assignment and provide City with an agreement, in a form reasonably acceptable to City, executed by the purchaser, transferee or assignee (collectively, the "Assignee") to expressly and unconditionally assume all duties and obligations of Developer under this Agreement with respect to the Transferred Property. 13.4 Effect of Assignment. Subject to Section 13.5, upon an Assignment: a. The Assignee shall be liable for the performance of all obligations of Developer under this Agreement with respect to Transferred Property, but shall have no obligations hereunder with respect to the portions of the Property, if any, not transferred (the "Retained Property"). b. The Developer of the Retained Property shall be liable for the performance of all obligations of Developer under this Agreement with respect to Retained Property, but shall have no further obligations hereunder with respect to the Transferred Property and shall be released from any obligation under this Agreement that arise from or in connection with or relate to the Transferred Property. C. The Assignee's exercise, use and enjoyment of the Transferred Property shall be subject to the terms of this Agreement to the same extent as if the Assignee were the Developer for the Transferred Property, and for the purposes of this Agreement, such Assignee shall be deemed and considered to be the Developer hereunder with respect to the Transferred Property. 13.5 City's Consent. The City's consent shall not be required to an Assignment unless, at the time of the Assignment, Developer has been deemed to be in default pursuant to Section 12 and the default has not been cured. If Developer is in default at the time of an Assignment, City shall consent to any Assignment which provides adequate security to City, in the reasonable exercise of City's discretion, to guarantee the cure of the default upon completion of the Assignment. -24 72500.00883\24631316.1 14. MISCELLANEOUS PROVISIONS. 14.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall' is mandatory; "may" is permissive. 14.2 Entire Agreement. This Agreement constitutes the entire understanding and agreement of City and Developer with respect to the matters set forth in this Agreement. This Agreement supersedes all negotiations or previous agreements between City and Developer respecting the subject matter of this Agreement. 14.3 Recorded Statement Upon Termination. Upon the completion of performance of this Agreement or its cancellation or termination, a statement evidencing completion, cancellation, or termination signed by the appropriate agents of City, shall be recorded in the Official Records of Riverside County, California. 14.4 Proiect as a Private Undertaking. It is specifically understood by City and Developer that (i) the Project is a private development; (ii) neither City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property unless City accepts the improvements pursuant to the provisions of this Agreement or in connection with subdivision map approvals; and (iii) Developer shall have the full power and exclusive control of the Property subject to the obligations of Developer set forth in this Agreement. 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. 14.5 Captions. The captions of this Agreement are for convenience and reference only and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Agreement. 14.6 Consent. Where the consent or approval of City or Developer is needed to implement Development under this Agreement or otherwise in connection with the Development Approvals or the Subsequent Development Approvals, then except as otherwise expressly provided herein, consent or approval shall not be unreasonably withheld, delayed, or conditioned. 14.7 Covenant of Cooperation. City and Developer shall cooperate and deal with each other in good faith, and assist each other in the performance of the provisions of this Agreement. -25 72500.00883\24631316.1 14.8 Execution and Recording. Within sixty (60) days after the effective date of Ordinance No. 1285, the ordinance adopting this Agreement, Developer's representatives shall execute two copies of this Agreement with notary acknowledgements and deliver them to the City Clerk. The City Clerk shall then promptly cause each of the two copies of this Agreement to be signed by the appropriate representatives of the City with notary acknowledgements, and promptly record a copy with the Office of the Clerk -Recorder of the County of Riverside, California, at which point this Agreement shall become effective. 14.9 Delay, Extension of Time for Performance. Performance by either Party of its obligations under this Agreement shall be excused, and the Term shall be extended, during any period of delay caused at any time by reason of any event beyond the control of City or Developer which prevents or delays performance by City or Developer of obligations under this Agreement. Such events shall include, by way of example and not limitation, acts of nature, war, riots, insurrection, terrorism, enactment of new conflicting federal or state laws or regulations (example: listing of a species as threatened or endangered), judicial actions such as the issuance of restraining orders and injunctions, delay in the issuance of bonds or formation of any community facilities or assessment districts, and riots, strikes, labor shortages or damage to work in process by reason of fire, floods, earthquake, or other such casualties. If City or Developer seeks excuse from performance, it shall provide written notice of such delay to the other Party within thirty (30) days of the commencement of such delay. If the delay or default is beyond the control of City or Developer and is excused, an extension of time for such cause shall be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon. If a Party's delay or default is not excused, the Party making the request may seek judicial review of the need for the delay, including requests for injunctive relief. 14.10 Interpretation, Governing Law, and Venue. In any dispute regarding this Agreement, the Agreement shall be governed and interpreted in accordance with the laws of the State of California. Venue for any litigation concerning this Agreement shall be in Riverside County, California. 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. -26 72500.00883\24631316.1 14.11 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 14.12 Estoppel Certificate. Within thirty (30) days following a written request by any of the Parties, the other Party shall execute and deliver to the requesting Party a statement certifying that: a. This Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and b. There are no known current uncured defaults under this Agreement, or that the responding Party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification except as may be represented by the requesting Party and that there are no uncured defaults in the performance of the requesting Party, except as may be represented by the requesting Party. Developer shall pay to City all reasonable costs incurred by City in connection with the issuance of estoppel certificates under this Section 14.12 prior to City's issuance of such certificates. 14.13 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. 14.14 Future Litigation Expenses. a. Payment to Prevailing Party. If either Party brings a legal or equitable proceeding against the other Party which arises in any way out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and all other reasonable costs and expenses incurred in that proceeding. b. Scope of Fees. Attorneys' fees under this Section shall include attorneys' fees on any appeal and in any post -judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the termination of this Agreement. C. Limitation of Liability. Developer's obligations under this Agreement are solely those of Developer. In no event shall any present, past or future officer, director, shareholder, employee, partner, affiliate, manager, representative or agent of Developer ("Related Parties") have any personal liability, directly or indirectly, under this Agreement. Recourse in any way connected with or arising from -27 72500.00883\24631316.1 this Agreement shall not be available against any of the Related Parties. 14.15 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. 14.16 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. 14.17 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. 14.18 Further Actions and Instruments. Upon the request of any Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement. 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 otherwise imparts discretion to City. 14.19 Subsequent Amendment to Authorizing Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Statute in effect as of the Effective Date. Accordingly, to the extent any subsequent amendment to the Development Agreement Statute would affect the provisions of this Agreement, such amendment shall not be applicable to this Agreement except to the extent necessary for this Agreement to be enforceable. Developer and City have executed this Agreement on the dates set forth on the Signature Page. -28 72500.00883\24631316.1 SIGNATURE PAGE IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement (Retreat at Desert Willow). CITY City of Palm Desert By: Robert Spieg , May r Date: D�/-- o9-6 - 0�4/6 DEVELOPER Portola PD, LLC / L, / By: �2( Its: ATTEST: Date: dy C. Herrera, Manager By And R helle D. Klassen, Clerk - n Date U Ik oZ0 - Xl (0 By: APPROVED AS T-O�FORM: Its: Date: onerrvv %.ri rg r Best & Kri g ity Attorney Date: -29 72500.00883\24631316.1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of ; 7 �) �� n C _ ` On �Ullo -before me, '1_'X-IY1NY )0 =X�_� T 1\i0�[,<�A �1001� , Date Here Insert Name and Title of thi Officer personally appeared fZukd" C. Hf ((2Y'Gt Name(s) of Signer(s) who 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 KTHANN SCHIFF is true and correct. 0 2102 WITNESS my hand and official seal. 4 "my Public - CWw" z MINIM County My COnrn. = Mari 2019Signatute E_Signature of Not Public Place Notary Seal Above OPTIONAL Th,ough this section is optional, completing this information can deter alteration of the d ent or fraudulent reattachment of this form to an unintended document. Description of Attac ocument Title or Type of Document: _._ D ment Date: Number of Pages: _ Signer(s er Than Named -Above: Capacity(ies) Claimed by Signer(s) / Signer's Name:. _ — — /� 'er's Corporate Officer — Title(s): _ — Corp to Officer — Title(s):. Partner — Limited G al Partner — invited General Individual AtIgm6y in Fact Individual --Attorney in Fact Trustee -Guardian or Conservator Trustee GuaMian or Conservator Other: _ _ _ _ Other: Signer I presenting: _ .— Signer Is Representing: 02014 National Notary Association • www.NationaiNotary.org - 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of Riverside ) On April 20, 2016 before me, M.G. Sanchez, Notary Public Date Here Insert Name and Title of the Officer personally appeared Robert A. Spiegel------------------------ Name(s) of Signer(s) who 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. M. G. SANCHEZ Commission # 2084254 '-w Notary Public - California i i Riverside County > M Comm. Expires Oct 29, 2018 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 offs * I seal. Signature Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Retreat at Desert Willow Title or Type of Document: Ordinance No. 1285 - DA 15-15 Document Date: September 10, 2015 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Robert A. Spiegel I Corporate Officer — Title(s): Cl Partner — ❑ Limited F ; General Li Individual ❑ Attorney in Fact 1 Trustee Guardian or Conservator Ei Other: Maynr Signer Is Representing: City of Palm Desert Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact G Trustee I Guardian or Conservator 0 Other: Signer Is Representing: 02014 National Notary Association • www.NationalNotary.org - 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT "A" LEGAL DESCRIPTION Real property in the City of Palm Desert, County of Riverside, State of California, described as follows: LOT 3 OF TRACT NO. 28450, IN THE CITY OF PALM DESERT, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 264 PAGE(S) 4 THROUGH 15, OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA; EXCEPTING THEREFROM ALL OIL AND GAS RESERVED BY THE UNITED STATES OF AMERICA AND 1/16 OF ALL COAL AND OTHER MINERAL DEPOSITS (EXCEPTING OIL AND GAS) RESERVED BY THE STATE OF CALIFORNIA, ALL AS RESERVED IN THE PATENT RECORDED JANUARY 27, 1927 IN BOOK 9 PAGE 208, OF PATENTS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA; ALSO EXCEPTING THEREFROM ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES AND MINERALS IN AND UNDER SAID LAND, AS SET FORTH IN THE DEED OF JOHN J. KOVACEVICH AND BEVERLY ELLEN KOVACEVICH, HUSBAND AND WIFE, RECORDED JANUARY 20, 1959 AS INSTRUMENT NO. 5010 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, BY A QUITCLAIM DEED DATED JANUARY 29, 1979 AND RECORDED FEBRUARY 8, 1979 AS INSTRUMENT NO. 27479 OF OFFICIAL RECORDS, ANY AND ALL SURFACE ENTRY RIGHTS IN AND TO THE SURFACE AND SUB -SURFACE TO A DEPTH OF 500 FEET WAS CONVEYED TO FIRST AMERICAN TRUST COMPANY, TRUSTEE. EXCEPTING THEREFROM THOSE PORTION QUITCLAIMED TO THE CITY OF PALM DESERT,A MUNICIPAL CORPORATION, RECORDED SEPTEMBER 21, 2014 AS INSTRUMENT NO. 20140268856 OF OFFICIAL RECORD. APN: 620-400-028-4 -30 72500.00883\24631316.1 EXHIBIT "B" ILLUSTRATION OF PROPERTY LOCATION / OVERVIEW • 2 -v' 23 , nw � � , ��`V � .�i iworvaa / �<1 is z ♦-�` f ��• l,y tz tC �. �,'; a' ) __, ,a �,� y��i_ 21� �` �',. o'o'"a ar•w1e r ''� 1 r�. f . ,.f _ 17 2 DA N IEl IA N ASSOCIATES r , The Retreat at Desert Willow L -A T$RRA NOVA Project Site Plan 3 R�seeorJ•. lec Palm Desert. California plAK -31 72500.00883\24631316.1 EXHIBIT "C" DESERT WILLOW GOLF RESORT MEMBERSHIP PRIVILEGES 1. Golf Academy Membership and Applicable Discounts and Benefits 2. Unlimited Use of Academy Practice Facility 3. Platinum Club Membership and Applicable Discounts and Benefits 4. Private Golf Cart Access Throughout Resort -32 72500.00883\24631316.1 ORDINANCE NO. 1285 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT FOR THE RETREAT AT DESERT WILLOW FOR 112 CONDOMINIUM UNITS AND COMMON AREA AMENITIES ON 15.52 ACRES LOCATED AT 38-400 PORTOLA AVENUE. CASE NO: DA 15-15 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 21 s' day of April, 2015, hold a duly noticed public hearing to consider the request by Portola PD, LLC for approval of the above noted and adopted Planning Commission Resolution 2648 recommending approval to the City Council; and WHEREAS, the City Council of the City of Palm Desert, California, did on the 27tn day of August, 2015, hold a duly noticed public hearing, which was continued from June 11, 2015 and July 9, 2015 to consider the request by Portola PD, LLC for approval of the above noted Development Agreement; and WHEREAS, said applications have complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act," Resolution No. 2014-41, the Director of Community Development has determined that the project will not have a negative impact on the environment and that a negative declaration can be adopted; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, the City Council did find the following facts and reasons to exist to justify the approval of said request: The Development Agreement provides the City and the developer with a higher degree of certainty of how the project will be developed, what associated fees and improvements will be required, and assurance of consistency with City policies, ordinances, regulations, and exceptions allowed as part of the zoning ordinance or DA. Listed are the key components that staff and the applicant agreed on for development of the project. • The increased project density of 8 du/acre is provided in the Development Approvals. • The maximum height of 30 feet is provided in the Development Approvals. Developer will install a 6-foot high slump stone block wall along the Portola Avenue frontage of the retention basin. The wall must match the color, texture, width, and flagstone columns of the block wall to the existing Desert Willow perimeter block wall. ORDINANCE NO. 1285 • Developer will install double metal gates to provide access from Portola Avenue the retention basin and related improvements. •on • Developer will install and maintain desert landscaping in front of the %do perimeter block wall and transfer the responsibility to the Homeowners Association (HOA) and/or include maintenance as an obligation of the HOA pursuant to the CC&Rs. • Developer will plant trees on the south side of the retention basin to screen the maintenance building. • Developer will maintain the retention basin, including the retention basin slopes, drywells, walls, and perimeter trees and other underground drainage appurtenances within the retention basin. The Developer may transfer the responsibility to the HOA. • Developer will provide a one-time maintenance "clean up" of existing landscaping on the common east/north property line adjacent to the Desert Willow Golf Resort, Golf Hole No. 6. • All homeowners (two per household) upon closing on their units automatically become the equivalent of Academy Golf Members and Platinum Club Members at the City -owned Desert Willow Golf Resort for a monthly fee of $75.00. .m • Golf Academy Membership and Applicable Discounts and Benefits • Unlimited Use of Academy Practice Facility • Platinum Club Membership and Applicable Discounts and Benefits • Private Golf Cart Access Throughout Resort • An alternative to providing affordable, low-income, moderate -income or any other subsidized or inclusionary housing, the developer will pay an Affordable Housing Fee of $1.00 per square foot. (The amount of the fee will be established during the public hearing when the DA is considered by the City Council.) 2. The project meets the intent of the Planned Residential zone by providing a mixture of residential densities in the surrounding area. The building density would not adversely impact any adjacent properties. The proposed buildings only occupy 23 percent of the property, while 44 percent will be landscaping. 3. The design and layout of the 112 condominium units are in compliance with all grading requirements and the properties will be developed in accordance with the Uniform California Building Code. Grade changes in the community are accommodated by the street layout and open space provided throughout the subdivision. Pedestrian access is provided to adjoining land uses (Desert Willow .o Golf Resort), which decreases the need for vehicular traffic between adjoining properties. am C:\Users\gsanchez\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\9XHLIHFC\CC - Development Agreement Ord..doc ORDINANCE NO. 1285 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AS FOLLOWS: 1. That the above recitations are true and correct and constitute the findings of the City Council in this case. 2. That the City Council does hereby approve Development Agreement 15-15 as proposed. 3. That Development Agreement 15-15, Exhibit "A" attached hereto, by Ordinance No. 1285 is hereby approved. 4. 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. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm Desert, California, at its regular meeting held on the 10th day of September, 2015, by the following vote, to wit: AYES: HARNIK, SPIEGEL, TANNER, and WEBER NOES: NONE ABSENT: JONATHAN ABSTAIN: NONE Susan Marie Weber, Mayor ATTEST: C:\Users\gsanchez\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\9XHLIHFC\CC - Development Agreement Ord-doc ORDINANCE NO. 1285 [This page has intentionally been left blank.] two an woo ORDINANCE NO. 1285 Exhibit "A" RECORDING REQUESTED BY, AND WHEN RECORDED RETURN TO: City Clerk's Office City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Fee Exempt - Gov't Code §6103 (Space above for Recorder's Use) DEVELOPMENT AGREEMENT (RETREAT AT DESERT WILLOW) between THE CITY OF PALM DESERT, a California Municipal Corporation and FAMILY DEVELOPMENT GROUP, INC., a Delaware Corporation Dated as of September 10, 2015, for reference purposes only C tuserstg"ncnazlAppOata%loca[Wc owMWindow Te Wary Internet FdestGwlent 0uVwk\9%ML1HFC1FInaI DAaoc ORDINANCE NO. 1285 [This page has intentionally been left blank.] ... Now as ORDINANCE NO. 1285 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is entered by and among the City of Palm Desert, a California municipal corporation ("City"), and Family Development Group, Inc., a Delaware corporation ("Developer") with reference to the following facts: RECITALS. A. 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 the "Development Agreement Statute," Sections 65864 et seq., of the Government Code. City, a California charter city, is authorized pursuant to the Development Agreement Statute to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing predictability for both City and Developer in the development process. Developer has requested that City enter into a development agreement for the development of the Property, as defined below. City enters into this Agreement pursuant to the provisions of the California Government Code, the City's General Plan, the City Municipal Code, and applicable City policies. B. Developer has entered into an Agreement of Purchase and Sale and Escrow Instructions to purchase from the Successor Agency to the Palm Desert Redevelopment Agency (SARDA") that certain parcel of approximately 15.5 acres of unimproved land commonly known as Desert Willow Lot Pad F, APN 620-400-0228, and more particularly described in Exhibit "A" (the "Property"). Developer desires to develop the Property in residential development. F. The Parties desire to enter into this Agreement in order to preserve Developer's rights to develop the Property pursuant to the applicable approvals, rules, regulations, and policies that are in place at the time of this Agreement, and to ensure sufficient funding is available to provide adequate and appropriate public facilities, infrastructure and services in advance of or at the time of need generated by the further development of the Property and that the Property will be developed in accordance with City's General Plan, and the City's Zoning Ordinance, and the Development Approvals as defined in Section 6.7. G. This Agreement constitutes a current exercise of City's police powers to provide predictability to Developer in the development approval process by vesting the permitted uses(s), density, intensity of use, and timing and phasing of development consistent with the General Plan and the Zoning Code. This Agreement allows City to realize significant economic benefits and services, which will advance the interests and meet the needs of the City's residents, businesses, and visitors to a greater extent than the current land uses. H. Developer desires to enter into this Agreement in order to eliminate uncertainty in planning for and secure orderly development of the Project, as defined in Section 6.16. C %Uw&Vwxt=WpOan LouMAc o hNWindo \Temporary Internet FYas\C twt Outlool WXHL1HFC%FirW DAOoc ORDINANCE NO. 1285 AGREEMENT City and Developer agree as follows: .. 1. Incorporation of Recitals. Each of the Recitals set forth above are part of this Agreement. 2. Purchase and Sale Agreement. On December 23, 2014, SARDA and Developer entered that certain Agreement of Purchase and Sale and Escrow Instructions for the Property. 3. Public Hearings. On August 27, 2015 ("Approval Date"), the City Council held a public hearing on the Development Approvals, including the approval of this Agreement, considered the recommendations of Staff, and made the findings set forth in Section 4. 4. City Council Findings. The City Council finds that this Agreement and the Development Approvals are consistent with City's General Plan, as well as all other applicable ordinances, plans, policies, and regulations of the City in effect as of the Approval Date. 4.1 The City Council finds that this Agreement will ensure a desirable and functional community environment, provide effective and efficient development of public facilities, infrastructure, and services appropriate for the development of the Project, assure attainment of maximum effective .,,■ utilization of resources within the City, moderate the cost of housing and development to the consumer, and provide other significant benefits to the .. City and its residents. 4.2 The City Council finds that this Agreement strengthens the public planning process, encourages private participation in comprehensive planning, particularly with respect to the implementation of the City's General Plan, and reduces the economic costs of development and government. 4.3 The City Council finds that the best interests of the citizens of the City and the public health, safety and welfare will be served by entering into this Agreement. 4.4 The City Council finds that this Agreement is consistent with the City's General Plan. 5. Continuing Obligations. City acknowledges that this Agreement binds City now and in the future. By approving this Agreement, the City Council has elected to exercise certain governmental powers at the time of entering into this Agreement rather than deferring its actions to some undetermined future date. The terms and conditions of this Agreement have undergone extensive review by the City staff and the City Council and have been found to be fair, just and reasonable. me City has concluded that the Project will serve the best interests of its citizens and C.\Uw V$r-&W%APpDStaLLOCSPMCr000MWindo \Temporary lMemet Fdm\Con1eM.0u600M9%IQIHFC%FrW DAOoc ORDINANCE NO. 1285 that the public health, safety, and welfare will be best served by entering into this Agreement. 6. Definitions. In this Agreement, unless the context otherwise requires, the following terms and phrases shall have the following meanings, whether or not capitalized herein: 6.1 "Agreement" shall mean this Development Agreement between the City and Developer. The term "Agreement" shall include any amendment properly approved and executed pursuant to Section 8.5. 6.2 "City" shall mean the City of Palm Desert, a California municipal corporation. 6.3 "City Council" shall mean the governing legislative body of the City. 6.4 "City Municipal Code" shall mean the Palm Desert Municipal Code. 6.5 "Day" refers to a calendar day unless specifically stated as a "business day." 6.6 "Development" shall mean the improvement of the Property and other property pursuant to the Development Approvals for the purposes of completing the structures, improvements and facilities comprising or required in connection with the Project, including, but not limited to: grading; the construction of infrastructure and public and private facilities related to the Project whether located within or outside the Property; the development and construction of Units, buildings and structures on the Property; and the installation of landscaping on or adjacent to the Property. 6.7 "Development Approvals" shall mean the following entitlements, approved by the City Council on the Approval Date: a. Change of Zone, CZ 15-15; b. Precise Plan, PP 15-15 C. Negative Declaration of Environmental Impact No 15-15; d. this Agreement, DA No. 15-15; and e. Tentative Track Map, TTM 36874. 6.8 "Development Impact Fees" shall mean all fees established and imposed upon the Project by the City pursuant to the Mitigation Fee Act as set forth in California Government Code Section 66000 et seq. "Development Impact Fees" shall not include any fees that have not been established by the City pursuant to and in accordance with the Mitigation Fee Act C U1wmgwxtaz%AppDMaLLocAPA4coeoMWindw%Te porary Int—at FnsslCwtwt0uCooM9%li1HFCWwW DA Ooc ORDINANCE NO. 1285 6.9 "Effective Date" shall mean the date this Agreement is recorded in the Clerk -Recorder's Office of the County of Riverside, California, after having been executed by all parties thereto with notary acknowledgements an pursuant to Section 14.8. am 6.10 "Existing Land Use Regulations" means all Land Use Regulations in effect on the Approval Date, including the Development Approvals. 6.11 "General Plan" shall mean the City of Palm Desert General Plan. 6.12 "Land Use Regulations" shall mean all ordinances, resolutions, codes, rules, regulations and official policies of the City governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction and initial occupancy standards and specifications applicable to the Project. "Land Use Regulations" do not include any City ordinance, resolution, code, rule, regulation or official policy governing: a. The conduct or taxation of businesses, professions, and occupations applicable to all businesses, professions, and occupations in the City; am b. Other than as provided in this Agreement, taxes and assessments of general application upon all residents of the City, provided that ••r the taxes and assessments are not imposed for the purpose of taxing the right, power or privilege of developing or improving land (e.g., excise tax) or to directly finance the acquisition or dedication of open space or any other public improvement in respect of which the Developer is paying any fee or providing any improvement pursuant to this Agreement; C. The control and abatement of nuisances; d. The granting of encroachment permits and the conveyance of rights and interests which provides for the use of, access to or the entry upon public property, as may be approved by mutual agreement between Developer and City; and e. The exercise of the power of eminent domain. 6.13 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security -device, lender, and their successors and assigns. C1UWSVIWXh*rAppOaftUC&WA=wMWindo"ITa pmary Inlemel Flet\Contenl 0uWak9XHL1HFCTirW DAdoc ORDINANCE NO. 1285 6.14 "Developer" refers to Family Development Group, Inc., a Delaware corporation. Developer" includes successors in interest to Family Development Group, Inc. 6.15 The "Parties" means the City and Developer. A "Party" refers to either the City or the Developer, as the context requires. 6.16 "Project' means the Development of the Property consistent with the General Plan, the Development Approvals and this Agreement, including development and construction of the Units and other structures, facilities and improvements on or about the Property and other property. 6.17 "Property" means the real property described in Exhibit "A" and illustrated and depicted on Exhibit "B," which exhibits are attached hereto and incorporated herein. 6.18 "Reservation of Authority" means the rights and authority specifically reserved to City which limits the assurances and rights provided to the Developer under this Agreement. The Reservation of Authority is further defined in Section 9.7. 6.19 "Retention Basin" means, as the context requires, that certain drainage and retention basin owned by City or SARDA adjacent to Portola Avenue and depicted on Exhibit "B" hereto or the City owned parcel of land within which such retention basin is located. 6.20 "Subsequent Development Approvals" means any and all permits, licenses, approvals and authorizations for or related to the Project required or permitted by the Existing Land Use Regulations, the Subsequent Land Use Regulations and this Agreement after the Approval Date, including, without limitation, all development review approvals required under the City Municipal Code, site development permits, excavation, grading, building, construction, encroachment or street improvement permits, occupancy certificates, utility connection authorizations, drainage, landscape, or other permits or approvals necessary for the grading, construction, marketing, use and occupancy of the Project. 6.21 "Subsequent Land Use Regulations" means those Land Use Regulations adopted and first becoming effective after the Approval Date which are described in Section 9.7 ("Reservation of Authority") of this Agreement. 6.22 "Term" means the term of this Agreement as set forth in Section 8.2 of this Agreement. 6.23 "Unit' means each and any residential unit contemplated by the Development Approvals and included as part of the Project. For the purposes of Section 9.15, the term "Completed Unit" means a Unit (i) that has been substantially completed and constructed on the Property as part C %Utwretpeendw%AppOetelLt 'VbcmooMW,neowstTemwary Internet F0es\Cm1enl.0utl0okVXHL1HFC%FirW DAcoc ORDINANCE NO. 1285 7. L of the Project, and (ii) for which a conditional certificate of occupancy has been issued by the City (or will be issued by the City upon payment of the In -Lieu Fee (as hereafter defined)). EXHIBITS. All exhibits attached to this Agreement are incorporated as a part of this Agreement. Those exhibits are: Exhibit "A" "Bn "C" GENERAL PROVISIONS Descriut�on `�' ., Property Legal Description Illustration of Property Location / Overview Desert Willow Golf Resort Membership Privileges 8.1 Binding Effect of Agreement. This Agreement shall be recorded against the Property and shall run with the land until the Property or any portion thereof has been released of record from this Agreement or this Agreement has terminated pursuant to the terms hereof. The Development shall be carried out only in accordance with the terms of this Agreement; provided, however, that this Agreement is not intended to compel Developer to complete the Project and Developer shall be under no obligation whatsoever to commence or complete Development of the Property on account of this Agreement. 8.2 Term of Agreement. The Term shall commence on the Effective Date. The Term shall continue for a period of ten (10) years from the Effective Date (the "Term"), subject to the following: a. During the Term, certain portions of the Property may be released from this Agreement as provided elsewhere in this Agreement. b. As provided in Section 8.3 or elsewhere within this Agreement, the Term may end earlier than the end of either the Initial Term or any extension pursuant to Section8.2(c) below. C. So long as Developer is not then in default of its obligations hereunder or under any agreement contemplated hereunder or otherwise with respect to any Land Use Regulations or Development Approvals, City agrees to consider, in its absolute discretion, an extension of the Term of this Agreement with respect to and upon the written request of Developer for an additional five (5) year period. 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 warrant a material change to the Project (to the extent not completed) as am ow now C.%UMmVundw AppD=a La�Ww4o�\ wwary Intmno FiWCp 0utl00kWXHL1HFC%FwW DAdm ORDINANCE NO. 1285 currently contemplated by this Agreement. All references to the "Term" in this Agreement shall be deemed to take into account any such extension agreed to by City pursuant hereto. 8.3 Termination. This Agreement shall be deemed terminated and of no further effect upon the earlier occurrence of any of the following events: a. Expiration of the Term as set forth in Section 8.2 of this Agreement; b. Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement; C. The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement; d. Completion of the Project in accordance with the terms of this Agreement, including issuance of all required occupancy permits and acceptance by City, or the applicable public agency, of all required dedications and the satisfaction of all of Developer's obligations under this Agreement; or e. As may be provided by other specific provisions of this Agreement. 8.4 Effect of Termination or Expiration. Termination or expiration of this Agreement shall not constitute termination of the Development Approvals or Subsequent Development Approvals obtained prior to the date of termination or expiration. Upon termination of this Agreement, which termination is subject to the notice and cure rights set forth in Section 12 below, or upon expiration of the Term of this Agreement, the only rights or obligations under this Agreement which either Party shall have are those obligations that are specifically set forth as surviving this Agreement, including those described in Sections 11, 12, and 14.14. 8.5 Amendment or Cancellation of Agreement. Subject to the terms of Section 8.6, this Agreement may be amended from time to time or canceled only by the written consent of both City and Developer in the same manner as its adoption, as set forth in California Government Code Section 65868. Any amendment or cancellation shall be in a form suitable for recording in the Office of the Clerk -Recorder of the County of Riverside, California. An amendment or other modification of this Agreement will continue to relate back to the Effective Date of this Agreement (as opposed to the effective date of the amendment or modification), unless the amendment or modification expressly states otherwise. 8.6 Minor Modifications. The provisions of this Agreement require a close degree of cooperation between the Parties and "Minor Changes" to the Project may be required from time to time to accommodate design changes, engineering changes, and other refinements related to the C:%UMn4swCwz%APPDauUAta11Ma0foMWm0ov Temporary 1,4e tFleMCwtwt.0utlaok%9ML1HFC%Ftrrl DAEoc ORDINANCE NO. 1285 details of the Parties' performance. "Minor Changes" shall mean changes to the Project that are consistent with the Development Approvals, which do not result in a change in use, an increase or decrease in density or •. intensity of use, significant new or increased environmental impacts that cannot be mitigated, or violations of any applicable health and safety use regulations in effect on the Effective Date. Accordingly, the Parties may mutually consent to adopting "Minor Changes" through their signing of an "operating memorandum" reflecting the Minor Changes. Neither the Minor Changes nor any Operating Memorandum shall require public notice or hearing. The City Attorney and City Manager shall be authorized to determine whether proposed modifications and refinements are "Minor Changes" subject to this Section 8.6 or more significant changes requiring amendment of this Agreement. The City Manager may execute any operating memoranda without City Council action. 8.7 Term of Development Approvals. To the extent not precluded by applicable law, the expiration date of all Development Approvals shall be extended so they are coextensive with the Term of this Agreement (as same may be extended in accordance herewith). 8.8 Relationship of City and Developer. The contractual relationship between City and Developer arising out of this Agreement is one of independent contractor and not agency. This Agreement does not create a joint -venture or any third -party beneficiary rights. 8.9 Notices. All notices, demands, and correspondence required or permitted by this Agreement shall be in writing and delivered in person or mailed by first class or certified mail, postage prepaid, addressed as follows: If to City, to: City of Palm Desert Attn: City Manager 73-510 Fred Waring Drive Palm Desert, California 92260 With a copy to: Best Best & Krieger LLP Attn: Dave Erwin 74760 Highway 111, Suite 200 Indian Wells, California 92210 If to Developer, to: Family Development Group, Inc. Attn: Rudy C. Herrera C.41wNgowxho APPDS? \Lo PMcrosoMW�r ko lTe wary irate el Foes\Content Ouoo MOVILIHFOfmal DAOoc ORDINANCE NO. 1285 73081 Fred Waring Drive Palm Desert, California 92260 With a copy to: Law Offices of Gregory L. Wasserman Attn: Greg Wasserman 700 Larkspur Landing Circle, Suite 199 Larkspur, California 94939 City or Developer may change its address by giving notice in writing to the other parties at the addresses listed above. Thereafter, notices, demands, and correspondence shall be addressed and transmitted to the new address. Notice shall be deemed given upon personal delivery or, if mailed, two (2) business days following deposit in the United States mail. 9. DEVELOPMENT OF THE PROPERTY. 9.1 Developer's Vested Right. Developer shall have the vested right to complete Development of the Property and to build -out the Project in accordance with the Development Approvals and the Subsequent Development Approvals, the Existing Land Use Regulations and this Agreement ("Developer's Vested Right"). To enable Developer to complete the Project, Developer's Vested Right shall include, but not be limited to, with the exercise of reasonable diligence, the right to the issuance of all permits and certificates of occupancy, the granting of all approvals, the conducting and performance of all reviews and inspections, and the taking of such other actions that are (i) requested by Developer, and (ii) consistent with the terms of this Agreement and the Development Approvals. In no event or circumstance shall the City's approval, granting or issuance of any Development Approvals be delayed in connection with or contingent upon the City's adoption or contemplation of an In -Lieu Fee Ordinance (as hereafter defined). Developer's Vested Right shall be subject to the Reservation of Authority set forth in Section 9.7 and all provisions of this Agreement, and may not be modified or terminated except as expressly provided by this Agreement. Upon any termination or the expiration of this Agreement, and subject to the terms of Section 8.4, Developer's rights to continue with Development of the Property to complete the Project pursuant to the Development Approvals and the Subsequent Development Approvals shall be subject to the ordinary exercise of the City's police power and City's applicable processes and procedures then in place. At that time, Developer's vested rights, if any, shall be determined by City ordinance, rules, regulations and procedures, state and federal statutes and case law and the then current factual state of the Development. C.\UMn\pnrrl»2UppOata\LouMAicroeoff\Winaowst Temporary Internal F des\Cmtent.OuUookk9XHLIHFCFmW DAWc ORDINANCE NO. 1285 9.2 Governing Land Use Regulations. The Land Use Regulations applicable to the Project and the Property shall be the Existing Land Use Regulations. An amendment or other modification of this Agreement will not change the applicable Land Use Regulations (i.e., the Existing Land Use Regulations will control), unless the amendment or modification expressly provides otherwise. Likewise, an amendment to the Development Approvals shall not require an amendment to this Agreement. In the event of a conflict between the Development Approvals and other provisions of the Existing Land Use Regulations, the terms and conditions of the Development Approvals shall control. Except as provided under Section 9.7, the City's Reservation of Authority, Land Use Regulations that are adopted after the Approval Date shall not apply to the Property, the Development, or the Project, with the following exceptions: a. Developer and City may mutually agree in writing that the Project will be subject to one or more Land Use Regulations that are adopted after the Approval Date. With the mutual written agreement of the Parties, if those Land Use Regulations do not result in a change in use, a substantial increase or decrease in density or intensity of use, significant new or increased environmental impacts that cannot be mitigated, or violations of any applicable health and safety regulations in effect on the Approval Date, an amendment of this Agreement shall not be required to make those regulations applicable to the Property. If any of those effects would occur, then Developer and City must amend this Agreement in accordance with Section 8.5 if they desire to subject the Project to any such Land Use Regulations adopted after the Approval Date. b. The Subsequent Land Use Regulations described in Section 9.7 below shall apply to the Property, the Development, and the Project, but only to the extent permitted by Section 9.7. Nothing contained in this Section shall be deemed to authorize or permit City to withhold any building permit, review, inspection, approval, authorization, and/or certificate of occupancy based on Developer's failure to comply with any Land Use Regulation that is not applicable to the Project because of this Agreement. 9.3 Permitted Uses. Except as otherwise provided within this Agreement, the permitted uses on the Property shall be as provided in the Development Approvals. .. 9.4 Density and Intensity. Except as otherwise provided within this Agreement, the density and intensity of use for all Development on the Property shall be as provided in the Development Approvals. we C'\Uwequ ch&eAppDMaLL.mM1MrlosWtwind s\Te ,, ary irne,net Fdes\C Iwt.0uV00U9XML1HFC%Fne1 DAtlOC ORDINANCE NO. 1285 9.5 Maximum Height and Size of Structures. Except as otherwise provided within this Agreement, the maximum height and size for all structures on the Property shall be as provided in the Development Approvals. 9.6 Requirement for Reservation and Dedication of Land. Except as otherwise provided within this Agreement, the Project's requirements for reservation and dedication of land shall be as provided in the Development Approvals. 9.7 Reservation of Authority. The following Subsequent Land Use Regulations shall apply to the Property and the Project: a. Processing fees and charges imposed by the City to cover the City's estimated or actual costs of reviewing and processing applications for Development of the Property, providing inspections, conducting annual reviews, providing environmental analysis, or for monitoring compliance with this Agreement or any Development Approvals granted or issued, provided such fees and charges are in force and effect on a general basis on the date of filing such applications with the City and are not applied to the Project in a discriminatory manner. This Section shall not be construed to limit the authority of City to charge normal and customary application, processing, and permit fees for land use approvals, building permits and other similar permits, which fees are designed to reimburse City's expenses attributable to such application, processing and permitting and are in force and effect on a City-wide basis at such time as said approvals and permits are granted by City. b. Procedural regulations applicable and applied on a City-wide basis relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. C. Provided that they are uniformly applied to all development projects within the City, regulations governing engineering and construction standards and specifications, including uniform codes adopted by the City and local amendments to those codes adopted pursuant to state law. Such codes include, without limitation, the City's adopted version of the Uniform Administrative Code, Building Code, Plumbing Code, Mechanical Code, Electrical Code, and Fire Code. d. Regulations which may be in conflict with the Development Approvals or this Agreement but which are objectively required (and there are no available reasonable alternatives) to protect the public health and safety in the event of a sudden, unexpected occurrence involving a clear and imminent danger that demands immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services within the immediate community. Such regulations must be a valid exercise of the City's C;\DwsVasn&atAppNtmU kk*m of WmOows Te porary bmr-et Foes\Conronl 00Wk\9XrIL1HFCTF W DAdoc ORDINANCE NO. 1285 police power and must be applied and construed so as to provide Developer, to the maximum feasible extent, with the rights and assurances provided in this Agreement and the Development Approvals, including, without limitation, Developer's Vested Right, without unnecessary condition or undue delay. Any regulations, including moratoria, enacted by City and imposed on the Property to protect the public health and safety in the limited circumstances described above shall toll the Term and any time periods for performance by Developer and City set forth in this Agreement. 9.8 Development Impact Fees. Developer shall pay those Development Impact Fees uniformly applied to all development projects within the City in effect at the time of payment as and when typically paid for projects similar to the Project or as otherwise agreed to by the Parties. 9.9 Adequacy of Required Infrastructure. Subject to Developer's installation of all infrastructure required to serve the Project in accordance with the requirements of the Development Approvals and the Existing Land Use Regulations and subject to City's Reservation of Authority and Developer's payment of Development Impact Fees, City acknowledges and agrees that, based on current and reasonably foreseeable conditions, there is sufficient capacity in the infrastructure and services owned, operated, controlled, and provided by the City, including, without limitation, traffic circulation, storm drainage (including the capacity of the Retention Basin), trash collection, and flood control, to accommodate the Project. Notwithstanding the foregoing, City does not warrant the adequacy of and City shall not be responsible or liable for any infrastructure or services that are not owned, operated, controlled and /or provided by City. 9.10 Changes in Federal and State Law. The Property may be subject to subsequently enacted state or federal laws or regulations, which preempt local regulations, or mandate the adoption of local regulations that conflict with the General Plan and this Agreement. Upon discovery of a subsequently enacted federal or state law meeting the requirements of this Section, City or Developer shall provide the other Party with written notice of the state or federal law or regulation, provide a copy of the law or regulation, and a written statement of conflicts with the provisions of this Agreement and/or the General Plan. Promptly thereafter, City and Developer shall meet and confer in good faith in a reasonable attempt to modify this Agreement to the limited extent necessary to comply with such federal or state law or regulation. In such negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of Developer as derived from this Agreement, including, without limitation, the Developer's Vested Right, to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Developer in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Developer. City also agrees to process Developer's proposed changes to the Project as may be necessary to comply with such federal oft moo .. .. oft C�\UwsNgoontlrHAppDats%LocaWcrosotl%Winoo. kT7 ,�:ary interrrr:. eMCmtent 0unookk9XHL1HFC%Fmy DAooc ORDINANCE NO. 1285 or state law and to promptly process such proposed Project changes in accordance with City procedures. Any delays caused by such changes in state or federal law shall toll the Term of this Agreement and the time periods for performance by Developer and City set forth in this Agreement. 9.11 Compliance with CEQA. The City acknowledges and agrees that all of the environmental impacts of the Project, and any appropriate mitigation measures and alternatives, have been adequately addressed in the Development Approvals. City agrees to cooperate with Developer to process in a timely manner any additional environmental study or report circulated by Developer in connection with the ongoing Development of the Property and completion of the Project 9.12 Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that the failure of the parties in that case to provide for the timing of development resulted in a later -adopted initiative restricting the timing of development to prevail over the parties' agreement, it is the specific intent of the Parties to provide for the timing of Development in this Agreement. To do so, the Parties acknowledge and provide that Developer shall have the right, but not the obligation, to develop the Property in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment subject to the phasing of the Development set forth in Section 9.13. 9.13 Commencement, Phasing and Sequence of Development. Developer may commence Development of the Property when it deems appropriate in its subjective business judgment. Developer may complete the Project in as many development phases and sub -phases as it deems appropriate in its subjective business judgment. However, Developer shall complete the obligations described in the Development Approvals within the Term of this Agreement or Developer's Vested Right shall be subject to limitation or qualification pursuant to the terms of Section 8.4 and Section 9.1 hereof. 9.14 Covenants, Conditions and Restrictions. Developer shall reserve and record such covenants, conditions and restrictions ("CC&Rs") against the Property that Developer deems appropriate in the exercise of its reasonable business judgment, which CC&Rs shall relate to the development, use and operation of the Project and shall contemplate the establishment of a homeowners' association to oversee the Project pursuant to the applicable terms thereof (the "HOA"); provided, however, that such CC&Rs shall not conflict with the terms of this Agreement, the Development Approvals or any Existing Land Use Regulations. Prior to recordation of such CC&Rs, Developer shall provide a copy of the CC&Rs to City for review and approval by the City Attorney. The City Attorney's review shall be limited to determining if the CC&Rs substantially comply with the terms of this Agreement, including the requirements of Section CiUMn�ppndW%ApppwLLoeaf\Mc tt\Wm0ows Tern ran/ Ini—viF.es\C-lenl 0u11ook\9XHL 1 HFCT,nai DAOoc ORDINANCE NO. 1285 9.15. The CC&Rs will run with the land, and, in accordance with its terms, shall be binding on Developer's successors, assigns and transferees of all or any portion of the Property. •• 9.15 Development of the Project. Notwithstanding any provision of this .r Agreement, the Existing Land Use Regulations or the Development Approvals to the contrary, but subject to compliance with all applicable legal requirements, including, but not limited to CEQA, the following requirements shall apply to the Project: a. Prior to City's issuance of any occupancy permit for the Project, but not as a condition to City's issuance of any building permits for the Project, Developer shall install a 6 foot high slump stone block wall along the Portola Avenue frontage of the Retention Basin pursuant to the applicable City approved improvement plans (the "Block Wall"). Developer shall reasonably endeavor to match the color, texture, width, and flagstone columns of the Block Wall to the existing Desert Willow perimeter block wall. Developer shall also install double metal gates (of the type commonly used for such purposes) in a location reasonably acceptable to City to provide reasonable access from Portola Avenue to the Retention Basin and related improvements. b. Prior to City's issuance of any occupancy permit for the Project, but not as a condition to City's issuance of any building permits for the Project, Developer shall install desert landscaping in front of the Block Wall (the "Block Wall Landscaping"), and shall irrigate and maintain such Block Wall Landscaping in perpetuity as part of the Project's new perimeter landscaping. Developer's obligation to install, irrigate and maintain the Block Wall Landscaping shall be consistent with the City approved landscape plan. Developer's obligation to install, irrigate and maintain the Block Wall Landscaping may be transferred to the HOA and/or included as an obligation of the HOA pursuant to the CC&Rs, in either of which event Developer shall be released from said obligation. C. Developer shall plant trees on the South side of the Retention Basin Developer running east -west to screen off the maintenance building (the "Retention Basin Trees"), which Retention Basin Trees shall be planted in conformance with the approved landscaping plan for the Project, if and to the extent reflected therein, or otherwise to the reasonable satisfaction of the City. Furthermore, Developer shall reasonably maintain the Retention Basin, including the Retention Basin Trees slopes, drywells, walls and other underground drainage appurtenances within the retention basin, in accordance with all City ordinances; rules and regulations, which an obligation shall include quarterly clean up. Developer's obligation to maintain the Retention Basin, including the Retention Basin Trees "so C1Uwegewc rAAppDM&U.o NAoo*DMWind—,s TeTporary Interna nies\Content OultookWXHL 1 HFCtfmai DAaoc ORDINANCE NO. 1285 slopes, drywells, walls and other underground drainage appurtenances within the retention basin, may be transferred to the HOA and/or included as an obligation of the HOA pursuant to the CC&Rs, in either of which event Developer shall be released from said obligation. d. Prior to City's issuance of any occupancy permit for the Project, but not as a condition to City's issuance of any building permits for the Project, Developer shall provide a one-time maintenance "clean up" of existing landscaping on the common east/north property line adjacent to the Desert Willow Golf Resort, hole No. 6, in a manner that is reasonably acceptable to City. Such obligation shall not require Developer to install new landscaping or to install, repair or replace any irrigation system servicing such existing landscaping. e. Unit owners shall, upon closing on their respective Completed Unit, automatically become the equivalent of an Academy Golf Member and Platinum Club Member at the City owned Desert Willow Golf Resort adjacent to the Property (each a "Unit Member") for the Monthly Unit Access Fee (as set forth below) with no additional fees or costs or buy -in amount pursuant to the terms of the CC&Rs (or an amendment thereto) and a separate agreement between Developer, City and the HOA addressing the specific terms of Unit Membership (the "Desert Willow Unit Membership Agreement"). City and Developer shall cooperate with each other and the HOA with respect to finalizing the Desert Willow Unit Membership Agreement and the applicable terms of the CC&Rs (or an amendment thereto) as soon as practicable. The Desert Willow Unit Membership Agreement shall contemplate, among other things, that (1) each owner of a Completed Unit (but no more than two co - owners per Completed Unit) shall become a Unit Member upon the closing on their respective Completed Unit, (ii) each Unit Member shall have, without limitation, the benefit of all of those certain Desert Willow Golf Resort Membership Privileges set forth on Exhibit "C" attached hereto and incorporated herein, (iii) the HOA shall be responsible for collecting the Monthly Unit Access Fees from the owners of Completed Units and paying same over to City (or the then owner of the Desert Willow Golf Resort), which Monthly Unit Access Fees shall be paid by the HOA to the City on a quarterly basis, (iv) such agreement is intended to be perpetual in nature and shall run with the land and be recorded against the land underlying the Desert Willow Golf Resort, (v) the Monthly Unit Access Fee shall be fixed at $75 per month per Completed Unit, and (vi) Developer shall not be responsible for the payment of any Monthly Unit Access Fees. C:VJw lqurchmeV MOVA�LoedlMerosoMWinoow ,Ten wney i,de-- demCo,.Ie,.: 0ullo \9XHL lHFCW,nai DAaoe ORDINANCE NO. 1285 f. As an alternative to providing affordable, low-income, moderate - income or any other subsidized or inclusionary housing (as applicable, "Subsidized Housing") at the Project, Developer shall OUR pay an Affordable Housing Fee of $1.00 per square foot of habitable space with respect to the Units pursuant to the terms w•• hereof, unless the City adopts an Affordable Housing Fee applicable to new residential development in the City ("City -Wide Affordable Housing Fee"), in which case the City -Wide Affordable Housing Fee shall apply. Except as may be otherwise agreed to by the Parties, and unless the City -Wide Affordable Housing Fee (as hereafter defined) contemplates a later payment, any Affordable Housing Fee that may be paid by Developer pursuant to the terms of this Agreement for or with respect to a Unit shall be paid by Developer to City, on a Unit by Unit basis, upon and as a condition to the City's issuance of a building permit for a given Unit. Furthermore, in the event that any Affordable Housing Fees are paid by Developer exclusive of City -Wide Affordable Housing Fee in connection with the Project, City and Developer shall reasonably cooperate to explore entering into a separate agreement pursuant to which Developer may utilize any such Affordable Housing Fees paid by Developer to supply Subsidized Housing in the City. As used herein, the term "Affordable Housing Fee" means a fee imposed by this Agreement payable by Developer to the City as an alternative to providing Subsidized Housing at the Project that •� applies to each Unit. Subject to the foregoing, the Affordable Housing Fee shall be superseded by any applicable ordinance .. formally adopted by the City at any time which ordinance primarily concerns the payment of a fee by real estate developers in connection with a given project as an alternative to any such developer providing Subsidized Housing in the City as part of such project (an "City -Wide Affordable Housing Fee"). 9.16 Construction of the Project. In addition to constructing the Project in accordance with the Development Approvals, Developer shall take commercially reasonable best efforts to incorporate plumbing and irrigation systems that allow for the use of reclaimed water on the medians, parks, and all landscaped areas on the Property. Developer shall take commercially reasonable best efforts to incorporate within the Project certain construction concepts promoted by the U.S. Green Building Council. 9.17 Access to and Over and Utilization of Retention Basin. The Project shall have the right to utilize the Retention Basin, in compliance with all applicable laws, rules and regulations but without further restriction or qualification, for storm water and drainage discharge and runoff. Furthermore, Developer and Developer's successors, assigns and .., transferees (including owners of any portion of the Property) shall have the right to access and cross over and through the Retention Basin and ... C 1UW$Ngwxhaz%A pOstaMAes6A6vpol1Wu+0ows Tempor,1ry me —el F.:rs Cor1iern Oocoott9%MU MFC%F-nal DA CM ORDINANCE NO. 1285 the City owned maintenance area adjacent to and south of the Property using paths, sidewalks and/or walkways to be constructed by Developer to provide pedestrian and golf cart access to and from the Desert Willow Golf Resort and associated golf courses. Upon request of Developer, the rights and interests of Developer set forth in this Section 9.17 shall be memorialized in one or more easement agreements between City and Developer in form and substance consistent with the foregoing and otherwise reasonably acceptable to the Parties. 10. ANNUAL REVIEW. 10.1 Timing of Annual Review. Pursuant to Government Code Section 65865.1, City shall review the good faith compliance of Developer with the terms of this Agreement one time during every twelve (12) month period of the Term until substantial build -out of the Project has occurred ("Annual Review"). 10.2 Standards for Annual Review. During the Annual Review, Developer shall be required to demonstrate good faith compliance with the terms of this Agreement. If City Council or its designee finds and determines, based on substantial evidence, that Developer has not complied in good faith with the terms or conditions of this Agreement, then City may proceed in accordance with Section 12 of this Agreement pertaining to the potential default of Developer and the opportunities for cure. City shall establish and Developer shall pay a reasonable fee to cover the costs incurred by City in connection with the Annual Review (the "Annual Review Fee"). 10.3 Certificate of Compliance. At any time during any year that the City Council or its designee finds that Developer is in compliance with this Agreement, City shall, upon written request by Developer, provide Developer with a written certificate of good faith compliance within fifteen (15) days of City's receipt of Developer's request for same. 11. THIRD PARTY LITIGATION. 11.1 General Plan Litigation. City has determined that this Agreement is consistent with its General Plan. Developer has reviewed the General Plan and concurs with City's determination. Neither Developer nor City shall have any liability under this Agreement or otherwise for any failure of City to perform under this Agreement, or for the inability of Developer to proceed with Development the Property as contemplated by the Development Approvals or this Agreement, if such failure or inability is the result of a judicial determination that part or all of the General Plan is invalid, inadequate, or not in compliance with law. 11.2 Third Party Litigation Concerning Agreement. In the event of any legal challenge instituted by a third party challenging the validity of any provision of the Development Approvals including this Agreement, C\Usars\gsenchez%AppData\Lo Rk4,aosothW,ndow\7e wary lNemet Fdes\Cmtent OWIMk'9XHL 1 MFC\Finy DA doc ORDINANCE NO. 1285 Developer and City each shall have the right, in its sole discretion, to elect whether or not to defend such action. Developer shall, at Developer's expense, defend, indemnify, and hold City, its agents, officers and employees harmless from any claim, action or proceeding against City, its agents, officers or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any Development Approvals or Subsequent Development Approvals granted pursuant to this Agreement, unless Developer elects to abandon the Project or the underlying Development Approval or Subsequent Development Approval. City shall promptly notify Developer of any such claim, action or proceeding, and City shall cooperate in the defense. 11.3 Indemnity. In addition to the provisions of Section 11.2, Developer shall indemnify and hold City, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or alleged upon any act or omission of Developer, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury or death (Developer's employees included) or any other element of damage of any kind or nature, relating to or arising from Development of the Project, except for claims for damages arising through the active negligence or intentional or willful misconduct of City or any of its officers, agents, employees and independent contractors. Developer shall defend, at Developer's expense, including attorneys' fees, City, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions of Developer that are subject to such indemnity obligation. City may in its discretion participate in the defense of any such legal claim, action or proceeding. 11.4 Environmental Contamination. Developer shall indemnify and hold City, its officers, agents, and employees free and harmless from any liability, based or alleged, upon any act or omission of Developer, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors, resulting in any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and Developer shall defend, at its expense, including attorneys' fees, City, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. City may in its discretion participate in the defense of any such claim, action or proceeding. Notwithstanding anything to the contrary set forth in this Section, Developer shall not be responsible hereunder and shall not be required to indemnify City, its officers, agents and employees for, from or against or with respect to (a) clean-up and removal of groundwater contamination migrating to or from an adjacent property not owned by Developer, or (b) pre-existing conditions affecting the Property (including the discovery or existence of hazardous substances in, on or about the Property and associated groundwater), or (c) for soil conditions and other environmental contamination that resulted .r .. 0M %20 me ... C \Users\gmrnumzWppDataloc&FA4, ft\W.,do—\Temporary lmefnw Flss\C teM OutlWk\9XHL 1 HFC%Finai DA.dX ORDINANCE NO. 1285 from the act or omission of City its officers, agents, contractors, consultants and employees. 11.5 City to Approve Counsel. With respect to Sections 11.1 through 11.4, City reserves the right to either (a) approve the attorney(s) that Developer selects, hires or otherwise engages to defend City, which approval shall not be unreasonably withheld, or, (b) at City's sole discretion, and unless Developer has elected to abandon the Project or the underlying Development Approval or Subsequent Development Approval, conduct its own defense, provided, however, that if City elects to conduct its own defense, Developer shall reimburse City for any and all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefore; 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. City shall not have the right to approve counsel selected by Developer to represent Developer's interests in any litigation. 11.6 Processing During Third Party Litigation. The filing of any third party lawsuit(s) against City or Developer relating to this Agreement, the Development Approvals, or other development issues affecting the Property shall not delay or stop the Development of the Property, processing related to or construction of the Project, approval of the Development Approvals and Subsequent Development Approvals, or issuance of any other "Ministerial Approvals," unless the third party obtains a court order preventing the activity. City shall not stipulate to the issuance of any such order. For purposes of this Section, the term "Ministerial Approvals" shall mean the issuance of approvals or permits requiring the determination of conformance with the Existing Land Use Regulations, including, without limitation, site plans, design review, development plans, land use plans, grading plans, improvement plans, building plans and specifications, and ministerial issuance of one or more final maps, zoning clearances, grading permits, improvement permits, wall permits, building permits, lot line adjustments, conditional and temporary use permits, certificates of use and occupancy and approvals and entitlements and related matters as may be necessary for the completion of the Development of the Property. 11.7 Survival. The provisions of this Section 111, shall survive the termination, cancellation or expiration of this Agreement. 12. DEFAULTS AND REMEDIES. 12.1 Notice and Termination. Before either Party may declare a default or termination of this Agreement or bring a legal action to terminate this Agreement, and before any Party shall be deemed or considered to be in default of this Agreement, the procedures of this Section 12 must be followed. In the case of a default arising from the conduct of an Annual C Wsers\psanchez\ApDData\LocaMAicro fnWinci s\Temporary inlemet Faea\Cmtent.0ptlook\9%NL t MFC\F,nel DA.Ooc ORDINANCE NO. 1285 Review, the procedures of this Section shall be strictly followed and shall constitute a second review of the good faith compliance of Developer. ow The Party asserting a default (the "Non -Defaulting Party") may elect to do so by providing written notice to the Party alleged to be in default (the .. "Defaulting Party") setting forth the nature of the default and the actions, if any, required by the Defaulting Party to cure the default. The Defaulting Party shall be deemed in default if the Defaulting Party fails to cure the default within thirty (30) business days after the date of such notice (for monetary defaults) or within sixty (60) business days after the date of such notice (for non -monetary defaults) so long as the Defaulting Party has commenced efforts to cure the default within thirty (30) business days after receipt of the default notice and thereafter continues to diligently pursue a cure; provided, however, that if the nature of the alleged default is such that it cannot reasonably be cured within such 60 business day period, the Defaulting Party shall not be deemed to be in default of this Agreement if it has commenced efforts to cure the default within thirty (30) business days after receipt of the default notice and thereafter continues to diligently pursue a cure. 12.2 Default Remedies. A Non -Defaulting Party who has complied with the notice of default and opportunity to cure requirements of Section 12.1 may, at its option, institute legal action to cure, correct, or remedy the alleged default, enjoin any threatened or attempted violation, terminate this Agreement by written notice to the Defaulting Party, enforce the terms an of this Agreement by specific performance, or pursue any other legal or equitable remedy. These remedies shall be cumulative rather than "r exclusive, except as otherwise provided by law. Notwithstanding the foregoing, in no event or circumstance shall Developer be compelled to initiate, continue or complete Development of the Property or completion of the Project or any aspect or component thereof pursuant to a specific performance action or any other legal or equitable remedy or judicial order. Furthermore, the City, after first following the procedures set forth in Section 12.1, may give notice of its intent to terminate or modify this Agreement for an uncured default, in which event the matter shall be scheduled for consideration and review by the City Council. 12.3 Developer's Exclusive Remedy. City and Developer acknowledge that, subject to the terms of Section 14.14 hereof, neither City nor Developer would have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement, the General Plan, or the Development Approvals. Accordingly, except as otherwise stated in this Section 12.3, neither Party shall sue the other for damages or monetary relief of any kind for any matter related to this Agreement, the General ,n Plan, or the Development Approvals. City may, however, sue Developer for the payment of sums due from Developer to City under provisions of %Wo C tUsentpsantlrozADoDatalocallAkcwft%Winoo %Temporary IMaRW FdWConbnt 0utloWl9XMLUWCTn.1 DA a= ORDINANCE NO. 1285 this Agreement which are expressly stated to survive termination of this Agreement and which establish a financial obligation of Developer pursuant to their express terms. Subject to the terms of Section 14.14 hereof, Developer's remedies shall be limited to declaratory and injunctive relief, mandate, and specific performance. 12.4 Waiver; Remedies Cumulative. All waivers of performance must be in a writing signed by the Party granting the waiver. There are no implied waivers hereunder. Failure by City or Developer to insist upon the strict performance of any provision of this Agreement, irrespective of the length of time for which such failure continues, shall not constitute a waiver of the right to demand strict compliance with this Agreement in the future. A written waiver affects only the specific matter waived and defines the performance waived and the duration of the waiver. Unless expressly stated in a written waiver, future performance of the same or any other condition is not waived. A Party who complies with the notice of default and opportunity to cure requirements of Section 12.1 and elects to pursue a legal or equitable remedy available under this Agreement does not waive its right to pursue any other remedy available under this Agreement, unless prohibited by statute, Court rules, or judicial precedent. Delays, tolling, and other actions arising under Section 14.9, and any other tolling provision set forth in this Agreement, shall not be considered waivers subject to this Section 12.4. 12.5 Alternative Dispute Resolution. Any dispute between the Parties may, upon the mutual agreement of the Parties, be submitted to mediation, binding arbitration, or any other mutually agreeable form of alternative dispute resolution. While an alternative dispute process is pending, the statute of limitation shall be tolled for any claim or cause of action which either of the Parties may have against the other. 13. ENCUMBRANCES, ASSIGNMENTS, AND RELEASES. 13.1 Discretion to Encumber. This Agreement shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering some or all of the Property or any improvement on the Property by or in connection with (a) any mortgage, deed of trust, or other security device to secure financing related to the Property or the Project, or (b) any other encumbrance or interest in the Property, including, without limitation, the Development Approvals, any easements or reciprocal easements, licenses, the CC&Rs and any other covenants, conditions or restrictions applicable to the Property or the Project. CIMemM Fon\Ca tent.OWI00M9XHL 1 HFC\FwW DA.00X ORDINANCE NO. 1285 13.2 Mortgagee Protection. City acknowledges that the lender(s) providing financing secured by the Property and/or its improvements may require certain Agreement interpretations and modifications. City shall, at any time requested by Developer or the lender, meet with Developer and representatives of such lender(s) to negotiate in good faith any such interpretation or modification. City will not unreasonably withhold its consent to any requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges: a. Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage or deed of trust on the Property made in good faith and for value. b. If City timely receives a prior request from a Mortgagee requesting a copy of any notice of default given by City to Developer under the terms of this Agreement, City shall provide a copy of such default notice to the Mortgagee within ten (10) days of sending the notice of default to Developer. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed Developer under Section 12.1 of this Agreement. w C. Except as otherwise provided within this Agreement, any Mortgagee who comes into possession of some or all of the Property pursuant to foreclosure of a mortgage or deed of trust, or deed in lieu of such foreclosure, shall: 13.2.c.1 Take that property subject to the terms of this Agreement and as Developer's successor; and 13.2.c.2 Have the rights and obligations of an Assignee as set forth in Sections 13.3 and 13.4. d. The Mortgagee shall have the right to rely on the same Development related rights and assurances provided to Developer as contained within this Agreement, provided that any Development proposed by the Mortgagee is in substantial conformance with the terms of this Agreement. e. The Mortgagee shall not be liable for any defaults or monetary obligations of Developer arising prior to acquisition of title to the Property by the Mortgagee, except that the Mortgagee may not pursue Development pursuant to this Agreement until all delinquent and current fees and other monetary obligations due under this Agreement for the portions of the acquired by the Mortgagee have an been paid to City. rwo C \US Xg\ ncnezlAmData\L [ l 4croioMW,Mow XTWDpyy lnt~ Fins\Content OuUook\9XMl t HFC\F,nal DA dW ORDINANCE NO. 1285 13.3 Transfer or Assignment. Subject to Section 13.5, Developer shall have the right to sell, transfer, or assign its rights and obligations under this Agreement (collectively, an "Assignment") in connection with a transfer of Developer's interest in all or any portion of the Property (as applicable, the "Transferred Property"). No Assignment shall be made unless made together with the sale, transfer or assignment of all or part of the Property. Within fifteen (15) business days after any Assignment, Developer shall notify City in writing of the Assignment and provide City with an agreement, in a form reasonably acceptable to City, executed by the purchaser, transferee or assignee (collectively, the "Assignee") to expressly and unconditionally assume all duties and obligations of Developer under this Agreement with respect to the Transferred Property. 13.4 Effect of Assignment. Subject to Section 13.5, upon an Assignment: a. The Assignee shall be liable for the performance of all obligations of Developer under this Agreement with respect to Transferred Property, but shall have no obligations hereunder with respect to the portions of the Property, if any, not transferred (the "Retained Property"). b. The Developer of the Retained Property shall be liable for the performance of all obligations of Developer under this Agreement with respect to Retained Property, but shall have no further obligations hereunder with respect to the Transferred Property and shall be released from any obligation under this Agreement that arise from or in connection with or relate to the Transferred Property. C. The Assignee's exercise, use and enjoyment of the Transferred Property shall be subject to the terms of this Agreement to the same extent as if the Assignee were the Developer for the Transferred Property, and for the purposes of this Agreement, such Assignee shall be deemed and considered to be the Developer hereunder with respect to the Transferred Property. 13.5 City's Consent. The City's consent shall not be required to an Assignment unless, at the time of the Assignment, Developer has been deemed to be in default pursuant to Section 12 and the default has not been cured. If Developer is in default at the time of an Assignment, City shall consent to any Assignment which provides adequate security to City, in the reasonable exercise of City's discretion, to guarantee the cure of the default upon completion of the Assignment. G �C#YCAXG,wa Swch. 1ORDINANCESkOro No 1285. DA 1515 • EX A doc ORDINANCE NO. 1285 14. MISCELLANEOUS PROVISIONS. 14.1 Rules of Construction. The singular includes the plural; the masculine •• gender includes the feminine; "shall" is mandatory; "may" is permissive. 14.2 Entire Agreement. This Agreement constitutes the entire understanding and agreement of City and Developer with respect to the matters set forth in this Agreement. This Agreement supersedes all negotiations or previous agreements between City and Developer respecting the subject matter of this Agreement. 14.3 Recorded Statement Upon Termination. Upon the completion of performance of this Agreement or its cancellation or termination, a statement evidencing completion, cancellation, or termination signed by the appropriate agents of City, shall be recorded in the Official Records of Riverside County, California. 14.4 Project as a Private Undertaking. It is specifically understood by City and Developer that (i) the Project is a private development; (ii) neither City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property unless City accepts the improvements pursuant to the provisions of this Agreement or in connection with subdivision map approvals; and (iii) Developer shall have the full power and exclusive control of the Property subject to the obligations of Developer set forth in this Agreement. 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. 14.5 Captions. The captions of this Agreement are for convenience and reference only and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Agreement. 14.6 Consent. Where the consent or approval of City or Developer is needed to implement Development under this Agreement or otherwise in connection with the Development Approvals or the Subsequent Development Approvals, then except as otherwise expressly provided herein, consent or approval shall not be unreasonably withheld, delayed, or conditioned. .r MM 14.7 Covenant of Cooperation. City and Developer shall cooperate and deal with each other in good faith, and assist each other in the performance of the provisions of this Agreement. G XCAYCJMGIi SvwlaxlORDMANCESgrE No 12E5. DA 15.15 - EX A Ooc ORDINANCE NO. 1285 14.8 Execution and Recording. Within sixty (60) days after the effective date of Ordinance No. 1285, the ordinance adopting this Agreement, Developer's representatives shall execute two copies of this Agreement with notary acknowledgements and deliver them to the City Clerk. The City Clerk shall then promptly cause each of the two copies of this Agreement to be signed by the appropriate representatives of the City with notary acknowledgements, and promptly record a copy with the Office of the Clerk -Recorder of the County of Riverside, California, at which point this Agreement shall become effective. 14.9 Delay, Extension of Time for Performance. Performance by either Party of its obligations under this Agreement shall be excused, and the Term shall be extended, during any period of delay caused at any time by reason of any event beyond the control of City or Developer which prevents or delays performance by City or Developer of obligations under this Agreement. Such events shall include, by way of example and not limitation, acts of nature, war, riots, insurrection, terrorism, enactment of new conflicting federal or state laws or regulations (example: listing of a species as threatened or endangered), judicial actions such as the issuance of restraining orders and injunctions, delay in the issuance of bonds or formation of any community facilities or assessment districts, and riots, strikes, labor shortages or damage to work in process by reason of fire, floods, earthquake, or other such casualties. If City or Developer seeks excuse from performance, it shall provide written notice of such delay to the other Party within thirty (30) days of the commencement of such delay. If the delay or default is beyond the control of City or Developer and is excused, an extension of time for such cause shall be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon. If a Party's delay or default is not excused, the Party making the request may seek judicial review of the need for the delay, including requests for injunctive relief. 14.10 Interpretation, Governing Law, and Venue. In any dispute regarding this Agreement, the Agreement shall be governed and interpreted in accordance with the laws of the State of California. Venue for any litigation concerning this Agreement shall be in Riverside County, California. 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. G 1GryOrMG10 Sarclrz\ORDINANCESIOro No 1295. DA 15-15. EX A dot ORDINANCE NO. 1285 14.11 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 14.12 Estoppel Certificate. Within thirty (30) days following a written request by any of the Parties, the other Party shall execute and deliver to the .. requesting Party a statement certifying that: a. This Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and b. There are no known current uncured defaults under this Agreement, or that the responding Party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification except as may be represented by the requesting Party and that there are no uncured defaults in the performance of the requesting Party, except as may be represented by the requesting Party. Developer shall pay to City all reasonable costs incurred by City in connection with the issuance of estoppel certificates under this Section 14.12 prior to City's issuance of such certificates. 14.13 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. •• 14.14 Future Litigation Expenses. a. Payment to Prevailing Party. If either Party brings a legal or equitable proceeding against the other Party which arises in any way out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and all other reasonable costs and expenses incurred in that proceeding. b. Scope of Fees. Attorneys' fees under this Section shall include attorneys' fees on any appeal and in any post -judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the termination of this Agreement. C. Limitation of Liability. Developer's obligations under this Agreement are solely those of Developer. In no event shall any present, past or future officer, director, shareholder, employee, partner, affiliate, manager, representative or agent of Developer ("Related Parties") have any personal liability, directly or indirectly, under this an Agreement. Recourse in any way connected with or arising from G 1Cdy0r►1Glona Sancn 0RDINANCES10rd No. 1285 - DA 15-15 - EX Ooc ORDINANCE NO. 1285 this Agreement shall not be available against any of the Related Parties. 14.15 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. 14.16 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. 14.17 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. 14.18 Further Actions and Instruments. Upon the request of any Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement. 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 otherwise imparts discretion to City. 14.19 Subsequent Amendment to Authorizing Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Statute in effect as of the Effective Date. Accordingly, to the extent any subsequent amendment to the Development Agreement Statute would affect the provisions of this Agreement, such amendment shall not be applicable to this Agreement except to the extent necessary for this Agreement to be enforceable. Developer and City have executed this Agreement on the dates set forth on the Signature Page. G \G YQMGIma Sandi 0RDINANCES\Ord No 1285 - DA 15.15 - E% A (IM ORDINANCE NO. 1285 SIGNATURE PAGE IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement (Retreat at Desert Willow). CITY DEVELOPER City of Palm Desert Family Development Group, Inc. By: By: Susan Marie Weber, Mayor Its: Date: Date: ATTEST: And By Rachelle D. Klassen, City Clerk By: Date Its: APPROVED AS TO FORM: Date: By: David J. Erwin for Best & Krieger LLP City Attorney Date: am one .r G 1CAl CIMAGI n SwKhezlORDINANCES*rd No 1285 - DA 15-15 - EX A.doc ORDINANCE NO. 1285 EXHIBIT "A" LEGAL DESCRIPTION Real property in the City of Palm Desert, County of Riverside, State of California, described as follows: LOT 3 OF TRACT NO. 28450, IN THE CITY OF PALM DESERT, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 264 PAGE(S) 4 THROUGH 15, OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA; EXCEPTING THEREFROM ALL OIL AND GAS RESERVED BY THE UNITED STATES OF AMERICA AND 1/16 OF ALL COAL AND OTHER MINERAL DEPOSITS (EXCEPTING OIL AND GAS) RESERVED BY THE STATE OF CALIFORNIA, ALL AS RESERVED IN THE PATENT RECORDED JANUARY 27, 1927 IN BOOK 9 PAGE 208, OF PATENTS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA; ALSO EXCEPTING THEREFROM ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES AND MINERALS IN AND UNDER SAID LAND, AS SET FORTH IN THE DEED OF JOHN J. KOVACEVICH AND BEVERLY ELLEN KOVACEVICH, HUSBAND AND WIFE, RECORDED JANUARY 20, 1959 AS INSTRUMENT NO. 5010 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, BY A QUITCLAIM DEED DATED JANUARY 29, 1979 AND RECORDED FEBRUARY 8, 1979 AS INSTRUMENT NO. 27479 OF OFFICIAL RECORDS, ANY AND ALL SURFACE ENTRY RIGHTS IN AND TO THE SURFACE AND SUB -SURFACE TO A DEPTH OF 500 FEET WAS CONVEYED TO FIRST AMERICAN TRUST COMPANY, TRUSTEE. EXCEPTING THEREFROM THOSE PORTION QUITCLAIMED TO THE CITY OF PALM DESERT,A MUNICIPAL CORPORATION, RECORDED SEPTEMBER 21, 2014 AS INSTRUMENT NO. 20140268856 OF OFFICIAL RECORD. APN: 620-400-028-4 29 G \C4yCiek\rtt a San~ORDINANCESVOr6 No 1265 - DA 15.15 - EX A.dcx ORDINANCE NO. 1285 EXHIBIT "C" DESERT WILLOW GOLF RESORT MEMBERSHIP PRIVILEGES 1. Golf Academy Membership and Applicable Discounts and Benefits 2. Unlimited Use of Academy Practice Facility 3. Platinum Club Membership and Applicable Discounts and Benefits 4. Private Golf Cart Access Throughout Resort 31 G \CAyCiA1Giom SrrndmMORDINANCES10ru No. 1285. DA 15-15 - Ex A Goc ORDINANCE NO. 1285 EXHIBIT "B" ILLUSTRATION OF PROPERTY LOCATION / OVERVIEW L / TERRA NOVA® %arming i R—ch, I— © p DA NIEIIAN ASSOCIATES r [ nc nPmje at it. Pla Wi110 y Project Site Ptao $ Palm Dceert, Califomia 011 G\CAyClrk\Gloria Sanchez\ORDINANCES\Ord No. 1285 - DA 15-15 - EX A.doc