HomeMy WebLinkAboutORD 1287ORDINANCE NO. 1287
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT FOR A THREE-
STORY 152-ROOM BOUTIQUE HOTEL DEVELOPMENT LOCATED ON THE
NORTHEAST CORNER OF LARKSPUR LANE AND SHADOW MOUNTAIN
DRIVE - CASE NO. DA 15-087
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the
161h day of June 2015, hold a duly noticed public hearing to consider the request by El Paseo
Hotel, LLC, for approval of the above noted, and adopted Planning Commission Resolution
2651 recommending approval of El Paseo Hotel and supporting applications, to the City
Council; and
WHEREAS, the City Council of the City of Palm Desert, California, did on the 181h day of
June, 2015, hold a duly noticed public hearing to consider the request by El Paseo Hotel, LLC,
for approval of amendments to the Development Agreement, Precise Plan, and Conditional Use
Permit applications for the El Paseo Hotel, and adopted an Addendum to the Mitigated Negative
Declaration for the above noted project; 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, in that the Director of Community Development has prepared an Addendum to the
approved Mitigated Negative Declaration and has determined that the no new significant
environmental impacts will result from the proposed changes to the hotel design and that an
Addendum to the Mitigated Negative Declaration can be adopted; and
WHEREAS, at said public hearing, upon hearing the City Council heard and considered
all testimony and arguments, if any, of all interested persons desiring to be heard.
WHEREAS, the City Council of the City of Palm Desert, California, DOES HEREBY
ORDAIN, AS FOLLOWS:
1. That the above recitations are true and correct and constitute the findings of the City
Council in this case.
2. That Development Agreement 15-087, amending Development Agreement 07-02, is
hereby approve, as proposed, by Ordinance No. 1287.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm Desert,
California, at its regular meeting held on the 9 th day of July. 2015, by the following vote, to wit:
AYES:
HARNIK, JONATHAN, SPIEGEL, TANNER, and WEBER
NOES:
NONE
ABSENT:
NONE
ABSTAIN:
NONE
SUSAN MARIE WEBER, MAYOR
ATTEST:
RA EL LE D. KLASSEN, GYFY CLERK
CITY OF PALM DESERT, CALIFORNIA
0'1- k 5 —Z9-o t5
ORDINANCE NO. 1287
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RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:
City Clerk's Office
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
FOR THE BENEFIT OF THE
CITY OF PALM DESERT
- NO FEE -
6103 OF THE GOVT. CODE
02/04/2016 09:54 AM Fee: $ 0.00
Page 1 of 38
Recorded in Official Records
County of Riverside
Peter Aldana
Assessor -County Clerk -Recorder
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Amended and Restated Development Agreement
Between
City of Palm Desert, California
and
El Paseo Hotel, LLC
a California Limited Liability Company
ORDINANCE NO. 1287
Approved: July 9, 2015
(Case No. DA 15-087)
Dated: July 9, 2015
(Title of Document)
[This page has intentionally been left blank.]
ORDINANCE NO. 1287
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT FOR A THREE-
STORY 152-ROOM BOUTIQUE HOTEL DEVELOPMENT LOCATED ON THE
NORTHEAST CORNER OF LARKSPUR LANE AND SHADOW MOUNTAIN
DRIVE - CASE NO. DA 15-087
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the
16th day of June 2015, hold a duly noticed public hearing to consider the request by El Paseo
Hotel, LLC, for approval of the above noted, and adopted Planning Commission Resolution
2651 recommending approval of El Paseo Hotel and supporting applications, to the City
Council; and
WHEREAS, the City Council of the City of Palm Desert, California, did on the 181h day of
June, 2015, hold a duly noticed public hearing to consider the request by El Paseo Hotel, LLC,
for approval of amendments to the Development Agreement, Precise Plan, and Conditional Use
Permit applications for the El Paseo Hotel, and adopted an Addendum to the Mitigated Negative
Declaration for the above noted project; 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, in that the Director of Community Development has prepared an Addendum to the
approved Mitigated Negative Declaration and has determined that the no new significant
environmental impacts will result from the proposed changes to the hotel design and that an
Addendum to the Mitigated Negative Declaration can be adopted; and
WHEREAS, at said public hearing, upon hearing the City Council heard and considered
all testimony and arguments, if any, of all interested persons desiring to be heard.
WHEREAS, the City Council of the City of Palm Desert, California, DOES HEREBY
ORDAIN, AS FOLLOWS:
1. That the above recitations are true and correct and constitute the findings of the City
Council in this case.
2. That Development Agreement 15-087, amending Development Agreement 07-02, is
hereby approve, as proposed, by Ordinance No. 1287.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm Desert,
California, at its regular meeting held on the 91h day of July, 2015, by the following vote, to wit:
AYES:
HARNIK, JONATHAN, SPIEGEL, TANNER, and WEBER
NOES:
NONE
ABSENT:
NONE
ABSTAIN:
NONE
ATTEST:
RA ELLE D. KLASSEN, CLERK
CITY OF PALM DESERT, CALIFORNIA
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ATTACHED. IS CERTIFIED TO BE A FULL, TRUE AND
CORECARD �THE� ORIGNdl1l.ON FILEAND ON
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[This page has intentionally been left blank.]
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert CA 92260
Attn: City Clerk
Exempt from recording fees pursuant to Govt. Code Section 27383
(Space above for recorder's use)
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (this
"Amended Agreement") is made and entered into as of this 9th day of July, 2015, by
and between the City of Palm Desert, California, a municipal corporation organized and
existing under the laws of the State of California (the "City), and El Paseo Hotel, LLC
("Developer"), with reference to the following facts, understandings and intentions of the
parties:
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RECITALS:
A. These Recitals refer to and utilize certain capitalized terms which are
defined in this Amended Agreement. The parties intend to refer to those definitions in
conjunction with the use thereof in these Recitals.
B. Government Code Sections 65684 through 65869.5 inclusive (the
"Development Agreement Legislation") authorize the City to enter into development
agreements in connection with the development of real property within its jurisdiction.
On August 11, 1983, the City enacted by Ordinance No. 341, as amended on
December 7, 1989 by Ordinance No. 589 (collectively, the "Development Agreement
Ordinance"), procedures and requirements for the consideration of development
agreements thereunder pursuant to the Development Agreement Legislation.
C. On July 10, 2008, City and Larkspur Associates, LLC, entered into a
Development Agreement ("Original Agreement') for the Project described below, which
included a certain number of condominium units. Developer is the current owner of a
legal or equitable interest in the Property and is entitled to have filed the application for
and to enter into this Amended Agreement to remove the condominium units from the
Project. The Project consists of the future development of the Property. The Property
is located at an important location in the City and the coordinated development of the
Project pursuant to this Amended Agreement represents an important and mutually
beneficial economic development and land usage planning opportunity for the City and
Developer.
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D. The City has determined that the development of the Project as
contemplated by this Amended Agreement is consistent with and in furtherance of the
development goals, policies, general land uses and development programs of the City
as set forth in the City's General Plan, Commercial Core Area Specific Plan and is
consistent with the existing zoning affecting the Properties.
E. City has further determined that entry into this Amended Agreement will
further the goals and objectives of the City's land use planning policies by, among other
things, encouraging investment, providing precise and supplemental criteria for the
uses, design, circulation and development of the Property, including flexibility in land
use options which may be altered in order to respond to future changes in the
surrounding areas, eliminating uncertainty in planning for, and securing orderly
processing and development of the Project. The benefits conferred on the City by
Developer herein will (i) insure consistent, comprehensive planning which will result in
aesthetically pleasing, environmentally harmonious, and economically viable
development within the City; (ii) provide for the creation of a high quality, aesthetically
pleasing entry statement for the City; (iii) provide for the construction of storm water
system improvements vital to the City; and (iv) further the development objectives of the
City in an orderly manner, all of which will significantly promote the health, safety and
welfare of the residents of the City. In exchange for these benefits to the City,
Developer desires to receive the assurance that it may proceed with the Project in
accordance with the Development Plan attached to this Amended Agreement as Exhibit
"A", and at a rate of development of its choosing, subject to the terms and conditions
contained in this Amended Agreement.
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F. Pursuant to Section 65867.5 of the Development Agreement Legislation,
the City Council has found and determined that: (i) this Amended Agreement
implements the goals and policies of the City's General Plan, provides balanced and
diversified land uses, and imposes appropriate standards and requirements with respect
to land development and usage in order to maintain the overall quality of life and the
environment within the City; (ii) this Amended Agreement is in the best interests of and
not detrimental to the public health, safety and general welfare of the City and its
residents; (iii) adopting this Amended Agreement is consistent with the City's General
Plan, and each element thereof and the Commercial Core Area Specific Plan, and
constitutes a present exercise of the City's police power; and (iv) this Amended
Agreement is being entered into pursuant to and in compliance with the requirements of
Government Code Section 65867 of the Development Agreement Legislation.
G. By adopting this Amended Agreement, the City Council has elected to
exercise certain governmental powers at the present time rather than deferring such
actions until an undetermined future date and has done so intending to bind the City
and the City Council and intending to limit the City's future exercise of certain
governmental powers, to the extent permitted by law.
H. This Amended Agreement has undergone extensive review by the City's
staff, the Planning Commission and the City Council.
I. In order to effectuate the foregoing, the parties desire to enter into this
Amended Agreement.
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AGREEMENT
NOW, THEREFORE, pursuant to the authority contained in the Development
Agreement Legislation, and in consideration of the mutual covenants and promises of
the parties herein contained, the parties agree as follows:
1. DEFINITIONS.
1.1 Defined Terms. Each reference in this Amended Agreement to any
of the following terms shall have the meaning set forth below for each such term.
Agreement.
1.2 Amended Agreement. This Amended and Restated Development
1.3 Building Ordinances. Those building standards, of general and
uniform application throughout the City and not imposed solely with respect to the
Property, in effect from time to time that govern building and construction standards
within the City, including, without limitation, the City's building, plumbing, electrical,
mechanical, grading, sign, and fire codes.
1.4 City Council. The legislative body of the City of Palm Desert.
1.5 Development Plan. Development Plan means the development
and associated amenities, and on -site and off -site improvements, as permitted under
and described in the Development Plan (Exhibit "A"), to be constructed on the Property,
as the same may hereafter be further refined, enhanced or modified pursuant to the
provisions of this Amended Agreement.
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1.6 Original Effective Date. The date on which the Original Enacting
Ordinance became effective.
1.7 Original Enacting Ordinance. Ordinance 1158, enacted by the City
Council on July 10, 2008, approving the Original Agreement.
1.8 Existing Land Use Ordinances. The Land Use Ordinances in effect
as of the Original Effective Date.
1.9 Four -Star Hotel and Four -Star Hotel Standards. Four -Star
Hotel shall mean a hotel where either of the following shall apply: (1) the hotel has or
will meet the requirements of a brand included within the "Luxury" or "Upscale"
segments as defined by J.D. Power and Associates; or (2) the hotel satisfies or will
satisfy the published requirements sufficient for a ranking of no less than four (4) stars
in the most recent annual awards list published by AAA or Mobil Travel Guides. The
City Council may, by resolution, adopt alternative standards as may be necessary.
Four -Star Hotel Standards shall mean the standards of a Four -Star Hotel.
1.10 Hotel Manager. Hotel Manager means a reputable and
experienced hotel management company or operator who shall have at least five (5)
consecutive years of experience in the hotel management business in hotels that meet
the Four Star Hotel Standards and have no fewer than ten (10) other properties (each in
separate cities, or distinct and separate projects in any given city, nationally or
internationally) under current management.
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1.11 Land Use Ordinances. The ordinances, resolutions, codes, rules,
regulations and official policies of the City duly adopted and on file in the Office of the
City Clerk, governing the development of the Property, including but not limited to, the
permitted uses of land, the density and intensity of use of land, and the timing of
development, all as applicable to the development of the Property. Specifically, but
without limiting the generality of the foregoing, Land Use Ordinances shall include the
City's General Plan, the City's zoning ordinance and the City's subdivision code, but
shall exclude the Building ordinances.
1.12 Mortgage. A mortgage, deed of trust, sale and leaseback
arrangement in which all or a part of the Property, or an interest in it, is sold and leased
back concurrently, or other transactions in which all or a part of the Property, or an
interest in it, is pledged as security, contracted in good faith and for fair value.
1.13 Municipal Code means the Palm Desert Municipal Code.
1.14 Project. The development and associated amenities, and on -site
and off -site improvements, as permitted under and described in the Development Plan
(Exhibit "A"), to be constructed on the Property, as the same may hereafter be further
refined, enhanced or modified pursuant to the provisions of this Amended Agreement.
1.15 Property. The real property and any improvements thereon which
is described in Exhibit "B" to this Amended Agreement.
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1.16 Transient Occupancy Tax means the tax described and subject to
the provisions of Chapter 3.28 of the Municipal Code, as may be amended from time to
time.
2. Term; Amendment.
2.1 Term. The term of this Amended Agreement (the "Term") shall
commence on effective date of the ordinance that approves this Amended Agreement
and shall terminate on the twelve (12) year anniversary date of the Original Effective
Date, unless sooner terminated or extended as hereinafter provided.
2.2 Amendment. The parties to this Amended Agreement at their sole
discretion and by their mutual written consent may from time to time amend the
provisions and terms of this Amended Agreement and the Exhibits hereto. Any
amendment to this Amended Agreement or the Exhibits hereto as provided herein shall
be effected only upon compliance with the procedures for amendment, if any, required
by the Development Agreement Legislation and the Development Agreement
Ordinance. The City shall, after any such amendment takes effect, cause an
appropriate notice of such amendment to be recorded in the official records of the
County of Riverside.
3. General Development of the Proiect
3.1 Project.
(a) The Project is defined and described in the Development
Plan attached to this Amended Agreement as Exhibit "A".
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(b) Developer shall have the vested right to develop the Project
in accordance with, and development of the Project during the Term shall be governed
by, the Development Plan and, to the extent not inconsistent with or modified by the
Development Plan, the Existing Land Use Ordinances. Developer's right to develop the
Property in accordance with this Section 3.1 shall be without regard to future
ordinances, resolutions, rules, regulations and policies of the City or referenda of the
voters of the City, including, without limitation, those with respect to moratoriums for
utility service, other than ordinances, resolutions, rules, regulations and policies of the
City which limit or condition the rate, timing or sequencing of development of the
Property and which are required solely as a result of then existing shortages of utility
service capacity or facilities.
3.2 Buildinq Permits and Other Approvals and Permits. Subject to (a)
Developer's compliance with this Amended Agreement, the Development Plan, the
Existing Land Use Ordinances and the Building Ordinances, and (b) payment of the
usual and customary fees and charges of general application charged for the
processing of such applications, permits and certificates and for any utility connection,
or similar impact fees and charges of general application then in effect, the City shall
process and issue to Developer upon application therefore all necessary use permits,
building permits, occupancy certificates, and other required permits for the construction,
use and occupancy of the Project, or any portion thereof, as applied for, including
connection to all utility systems under the City's jurisdiction and control (to the extent
that such connections are physically feasible and that such utility systems are capable
of adequately servicing the Project).
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3.3 Procedures and Standards. The standards for granting or
withholding permits or approvals required hereunder in connection with the
development of the Project shall be governed as provided herein by the standards,
terms and conditions of this Amended Agreement and the Development Plan, and to the
extent not inconsistent therewith, the Existing Land Use Ordinances, but the procedures
for processing applications for such permits pre -approvals (including the usual and
customary fees of general application charged for such processing) shall be governed
by such ordinances and regulations as may then be applicable and which are consistent
with the Development Plan.
3.4 Effect of Amended Agreement. This Amended Agreement shall
constitute a part of its Enacting Ordinance, as if incorporated by reference therein in full.
The parties acknowledge that this Amended Agreement is intended to supersede the
Original Agreement and grant Developer the right to develop the Project pursuant to
specified and known criteria and rules as set forth in the Development Plan and the
Existing Land Use Ordinances, and to grant the City and the residents of the City
certain benefits which they otherwise would not receive.
This Amended Agreement shall be binding upon the City and its
successors in accordance with and subject to its terms and conditions notwithstanding
any subsequent action of the city, whether taken by ordinance or resolution of the City
Council, by referenda, initiative, or otherwise. The parties acknowledge and agree that
by entering into this Amended Agreement and relying thereupon, the Developer has
obtained, subject to the terms and conditions of this Amended Agreement, a vested
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right to proceed with its development of the Project in accordance with the proposed
uses of the Property, the density and intensity of development of the Property and the
requirements and guidelines for the construction or provision of on -site and off -site
improvements as set forth in the Development Plan and the Existing Land Use
Ordinances, and the City has entered into this Amended Agreement in order to secure
the public benefits conferred upon it hereunder which are essential to alleviate current
and potential problems in the City and to protect the public health, safety and welfare of
the City and its residents, and this Amended Agreement is an essential element in the
achievement of those goals.
3.5 Operating Memoranda. The parties acknowledge that refinements
and further development of the Project may demonstrate that changes are appropriate
with respect to the details and performance of the parties under this Amended
Agreement. The parties desire to retain a certain degree of flexibility with respect to
those items covered in general terms under this Amended Agreement. If and when the
parties mutually find that changes, adjustments, or clarifications are appropriate to
further the intended purposes of this Amended Agreement, they may, unless otherwise
required by law, effectuate such changes, adjustments, or clarifications without
amendment to this Amended Agreement through one or more operating memoranda
mutually approved by the parties, which, after execution, shall be attached hereto as
addenda and become a part hereof and may be further changed and amended from
time to time as necessary. The City Manager is authorized to approve such an
operating memorandum on behalf of the City without further approval of the City
Council. Unless otherwise required by law or by this Amended Agreement, no such
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changes, adjustments, or clarifications shall require prior notice or hearing, public or
otherwise.
4. Specific Criteria Applicable to Development of the Project.
4.1 Applicable Ordinances. Except as set forth in the Development
Plan and subject to the provisions of Section 4.2 below, the Existing Land Use
ordinances shall govern the development of the Property hereunder and the granting or
withholding of all permits or approvals required to develop the Property; provided,
however, that (a) Developer shall be subject to all changes in processing, inspection
and plan -check, impact fees and charges imposed by City in connection with the
processing of applications for development and construction upon the Property so long
as such fees and charges are of general application and are not imposed solely with
respect to the Property, (b) Developer shall abide by the Building ordinances in effect at
the time of such applications, and (c) Developer and/or Operator of the project shall
comply with all ordinances relating to operation including but not limited to Transient
Occupancy Tax.
4.2 Amendment to Applicable Ordinances. In the event that the Palm
Desert zoning ordinance is amended by the City in a manner which provides more
favorable site development standards for the Property or any part thereof than those in
effect as of the Effective Date, Developer shall have the right to notify the City in writing
of its desire to be subject to all or any such new standards for the remaining term of this
Amended Agreement. If City agrees, by resolution of the City Council or by action of a
City official whom the City Council may designate, such new standards shall become
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applicable to the Property or portions thereof. Should City thereafter amend such new
standards, upon the effective date of such amendment, the original new standards shall
continue to apply to the Property as provided above, but Developer may notify City in
writing of its desire to be subject to all or any such amended new standards and City
may agree in the manner above provided to apply such amended new standards to the
Property.
4.3 Easements; Abandonments. City shall cooperate with Developer in
connection with any arrangements for abandoning existing utility or other easements
and the relocation thereof or creation of any new easements within the Property
necessary or appropriate in connection with the development of the Project; and if any
such easement is owned by City, City shall, at the request of Developer and in the
manner and to the extent permitted by law, take such action and execute such
documents as may be necessary to abandon existing easements and relocate them, as
necessary or appropriate in connection with the development of the Project, all at the
cost and expense of the Developer. In addition, to the extent that temporary or
permanent easements on property adjacent or in close proximity to the Property will be
required in order for Developer to develop all or portions of the Project, the City shall
cooperate with Developer in efforts to obtain or secure any such required easements.
4.4 Height Requirements. Buildings constructed on the Property as
part of the Project shall not exceed a height of thirty-seven feet (37') at the parapets or
forty-two feet (42') at the tower in accordance with the Development Plan. The height
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limits shall be measured in the manner of other height limits under Title 25 of the
Municipal Code.
4.5 Parking Requirements. The Project shall provide a minimum of
one hundred and fifty (150) underground parking spaces and eight (8) surface level
parking spaces in accordance with the Development Plan.
4.6 Density Requirements. The Project shall not exceed a density
of one hundred fifty four (154) hotel rooms/keys that may be allocated within the
components of the Project as provided in the Development Plan.
4.7 LEED Requirements. Developer shall design, develop and
construct the Project as required to secure the "Silver' or higher designation, as
selected by the Developer in the exercise of its reasonable discretion, as established by
the U.S. Green Building Council under the Leadership in Energy and Environmental
Design ("LEED") program.
4.8 Cooling Station Capacity. An emergency backup power generator
onsite capable of cooling the Project shall be installed and maintained as part of the
Project. The Project shall be used as a "cooling station" for the City in the event of
power outage.
4.9 Hotel Reauirements
(a) The requirements of this Section 4.9 are necessary to
ensure that the Project retains its character as a four -star boutique commercial hotel.
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(b) The Developer shall enter into a contract for operation of the
Project with a reputable and experienced hotel manager or operator who shall have at
least five (5) consecutive years of experience in the hotel management business in
hotels that meet the Four Star Hotel Standards and have no fewer than ten (10) other
properties (each in separate cities, or distinct and separate projects in any given City,
nationally or internationally) under current management ("Hotel Manager'). The
applicant shall provide the Director of Community Development with appropriate
documentation to demonstrate that the Hotel Manager meets the requirements of this
subsection. Any future changes in the Hotel Manager shall require review and approval
by the Director of Community Development. The Director of Community Development
may modified the standards for the Hotel Manager upon finding that the Hotel Manager
has comparable experience meeting the interests served by the standards. The Hotel
Manager shall ensure that all portions of the hotel are maintained and operated in
accordance with the Four Star Hotel Standards, including but not limited to the lobby
and hallways, front desk, concierge services, landscape and open space areas,
parking, banquet/balIroom facilities, conference, restaurant, retail, recreational, and
spa facilities, and other amenities and improvements.
5. Art in Public Places. The City and Developer desire to cooperate with
each other to secure the introduction and integration of public art into the Project for the
purpose of enhancing the image of the City and the Project. Developer shall, at the
request of the City, provide such easements upon the Property as may be reasonably
required for the installation and maintenance of such public art. The location of such
easements shall be mutually approved by the City and Developer. In addition to
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providing such easements as may be reasonably required for the installation and
maintenance of such public art, Developer shall pay to the City in lieu art fees at the
time of and in connection with the development of the Property, or portions thereof, in
accordance with the fee levels and other payment and procedural requirements of
Chapter 4.10 of the Municipal Code of the City lawfully imposed at the time of
development of the Property, or portions thereof.
6. Periodic Review of Compliance. In accordance with Govt. Code Section
65865.1, the Department of Community Development/Planning Staff shall review this
Amended Agreement at least each calendar year during the term of this Amended
Agreement. At such periodic reviews, Developer must demonstrate its good faith
compliance with the terms of this Amended Agreement. Developer agrees to furnish
such evidence of good faith compliance as the City, and after reasonable exercise of its
discretion and after reasonable notice to Developer, may require.
7. Permitted Delays; Supersede by Subsequent Laws.
7.1 Permitted Delays. In addition to any other provisions of this
Amended Agreement with respect to delay, Developer and City shall be excused from
performance of their obligations hereunder during any period of delay caused by acts of
mother nature, civil commotion, riots, strikes, picketing, or other labor disputes, shortage
of materials or supplies, or damage to or prevention of work in process by reason of fire,
floods, earthquake, or other casualties, litigation, acts or neglect of the other party, any
referendum elections held on the Enacting Ordinance, or the Land Use Ordinances, or
any other ordinance effecting the Project or the approvals, permits or other entitlements
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related thereto, or restrictions imposed or mandated by governmental or quasi -
governmental entities, enactment of conflicting provisions of the Constitution or laws of
the United States of America or the State of California or any codes, statutes,
regulations or executive mandates promulgated thereunder (collectively, "Laws") ,
orders of courts of competent jurisdiction, or any other cause similar or dissimilar to the
foregoing beyond the reasonable control of City or Developer, as applicable. Each
party shall promptly notify the other party of any delay hereunder as soon as possible
after the same has been ascertained. The time of performance of such obligations shall
be extended by the period of any delay hereunder.
7.2 Supersedure of Subsequent Laws or Judicial Action. The
provisions of this Amended Agreement shall, to the extent feasible, be modified or
suspended as may be necessary to comply with any new Law or decision issued by a
court of competent jurisdiction (a "Decision"), enacted or made after the Effective Date
which prevents or precludes compliance with one or more provisions of this Amended
Agreement. Promptly after enactment of any such new Law, or issuance of such
Decision, the parties shall meet and confer in good faith to determine the feasibility of
any such modification or suspension based on the effect such modification or
suspension would have on the purposes and intent of this Amended Agreement. In
addition, Developer and City shall have the right to challenge the new Law or the
Decision preventing compliance with the terms of this Amended Agreement. In the
event that such challenge is successful, this Amended Agreement shall remain
unmodified and in full force and effect, except that the Term shall be extended, in
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accordance with Section 7.1 above, for a period of time equal to the length of time the
challenge was pursued.
8. Events of Default; Remedies; Termination.
8.1 Events of Default. Subject to any extensions of time by mutual
consent in writing, and subject to the provisions of Section 7.1 above regarding
permitted delays, the failure of either party to perform any material term or provision of
this Amended Agreement shall constitute an event of default hereunder ("Event of
Default') if such defaulting party does not cure such failure within ninety (90) days
following receipt of written notice of default from the other party; provided, however, that
if the nature of the default is such that it cannot be cured within such ninety (90) day
period, the commencement of the cure within such ninety (90) day period and the
diligent prosecution to completion of the cure shall be deemed to be a cure within such
period. Any notice of, default given hereunder shall specify in detail the nature of the
alleged Event of Default and the manner, if any, in which such Event of Default may be
satisfactorily cured in accordance with the terms and conditions of this Amended
Agreement. During the time periods herein specified for cure of a failure of
performance, the party charged therewith shall not be considered to be in default for
purposes of termination of this Amended Agreement, institution of legal proceedings
with respect thereto, or issuance of any permit, map, certificate of occupancy, approval
or entitlement with respect to the Project.
8.2 Remedies. Upon the occurrence of an Event of Default, the
nondefaulting party shall have such rights and remedies against the defaulting party as
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it may have at law or in equity, including, but not limited to, the right to terminate this
Amended Agreement or seek mandamus, specific performance, injunctive or
declaratory relief but not the right to damages. Notwithstanding the foregoing and
except as otherwise provided in Section 8.4 hereof, if either Developer or City elects to
terminate this Amended Agreement as a result of the occurrence of an Event of Default,
such proceeding of termination shall constitute such party's exclusive and sole remedy,
and with respect to such election City and Developer hereby waive, release and
relinquish any other right or remedy otherwise available under this Amended Agreement
or at law or equity.
8.3 Waiver; Remedies Cumulative. Failure by a party to insist upon the
strict performance of any of the provisions of this Amended Agreement by the other
party shall not constitute waiver of such party's right to demand strict compliance by
such other party in the future. All waivers must be in writing to be effective or binding
upon the waiving party, and no waiver shall be implied from any omission by a party to
take any action with respect to such Event of Default. No express written waiver of any
Event of Default shall affect any other Event of Default, or cover any other period of time
specified in such express waiver.
8.4 Effect of Termination. Termination of this Amended Agreement by
one party due to the other party's default, or as a result of the exercise of the right of
termination provided to the Developer under Section 8.2 hereof, shall not affect any
right or duty emanating, from any approvals, permits, certificates or other entitlements
with respect to the Property or the Project which were issued, approved or provided by
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the City prior to the date of termination of this Amended Agreement. If City terminates
this Amended Agreement because of Developer's default, then City shall retain any and
all benefits, including money, land or improvements conveyed to or received by the City
prior to the date of termination of this Amended Agreement, subject to any
reimbursement obligations of the City. If Developer terminates this Amended
Agreement because of City's default, or as a result of the exercise of the right of
termination provided to the Developer under Section 8.2 hereof, then Developer shall be
entitled to all of the benefits arising out of, or approvals, permits, certificates or other
entitlements, on account of, any Exactions paid, given or dedicated to, or received by,
City prior to the date of termination of this Amended Agreement. Except as otherwise
provided in this Section 8.4, all of the rights, duties and obligations of the parties
hereunder shall otherwise cease as of the date of the termination of this Amended
Agreement.
If this Amended Agreement is terminated pursuant to any provision hereof, then
the City shall, after such action takes effect, cause an appropriate notice of such action
to be recorded in the official records of the County of Riverside. The cost of such
recordation shall be borne by the party causing such action.
8.5 Third Party Actions. Any court action or proceeding brought by any
third party to challenge this Amended Agreement or any permit or approval required
from City or any other governmental entity for development or construction of all or any
portion of the Project, whether or not Developer is a party defendant to or real party
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defendant in interest in such action or proceeding, shall constitute a permitted delay
under Section 7.1.
9. Encumbrances on Property.
9.1 Discretion to Encumber. The parties hereto agree that this
Amended Agreement shall not prevent or limit Developer, in any manner, at Developer's
sole discretion, from encumbering the Property or any portion thereof or any
improvements thereon with any mortgage, deed of trust or other security device
("Mortgage") securing financing with respect to the Property. The City acknowledges
that the lenders providing such financing may require certain modifications to this
Amended Agreement, and the City agrees upon request, from time -to -time, to meet with
Developer and/or representatives of such lenders to negotiate in good faith any such
request for modification. City further agrees that it will not unreasonably withhold its
consent to any such requested modification.
9.2 Mortgage Protection. This Amended Agreement shall be superior
and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this
Amended Agreement shall defeat, render invalid, diminish or impair the lien of any
Mortgage made in good faith and for value, and any acquisition or acceptance of title or
any right or interest in or with respect to the Site or any portion thereof by a Mortgagee
(whether pursuant to a Mortgage, foreclosure, trustee's sale, deed in lieu of foreclosure
or otherwise) shall be subject to all of the terms and conditions of this Amended
Agreement.
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9.3 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 9.2, no Mortgagee will have any obligation or duty under this Amended
Agreement to perform the obligations of Developer or other affirmative covenants of
Developer hereunder, or to guarantee such performance, except that to the extent that
any covenant to be performed by Developer is a condition to the performance of a
covenant by City, the performance thereof shall continue to be a condition precedent to
City's performance hereunder.
9.4 Estoppel Certificates. Either party may, at any time, and from time
to time, deliver written notice to the other party requesting such party to certify in writing
that, to the knowledge of the certifying party, (i) this Amended Agreement is in full force
and effect and a binding obligation of the parties, (ii) this Amended Agreement has not
been amended or modified, or if so amended or modified, identifying such amendments
or modifications, and (iii) the requesting party is not in default in the performance of its
obligations under this Amended Agreement, or if in default, describing therein the nature
and amount of any such defaults. A party receiving a request hereunder shall execute
and return such certificate within thirty (30) days following the receipt thereof city
acknowledges that a certificate hereunder may be relied upon by transferees, assignees
and lessees of the Developer and the holders of any Mortgage.
10. Transfers and Assignments; Effect of Amended Agreement on Title.
10.1 Rights and Interests Appurtenant. The rights and interests
conveyed as provided herein to Developer benefit and are appurtenant to the Property.
Developer has the right to sell, assign and transfer any and all of its rights and interests
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hereunder and to delegate and assign any and all of its duties and obligations
hereunder. Such rights and interests hereunder may not be sold, transferred or
assigned and such duties and obligations may not be delegated or assigned except in
compliance with the following conditions:
(i) Said rights and interests may be sold, transferred or
assigned only together with and as an incident of the sale, lease, transfer or assignment
of the portions of the Property to which they relate, including any transfer or assignment
pursuant to any foreclosure of a Mortgage or a deed in lieu of such foreclosure.
Following any such sale, transfer or assignment of any of the rights and interests of
Developer under this Amended Agreement, the exercise, use and enjoyment thereof
shall continue to be subject to the terms of this Amended Agreement to the same extent
as if the purchaser, transferee or assignee, were Developer hereunder.
10.2 Covenants Run with Land.
(i) All of the provisions, agreements, rights, powers, standards,
terms, covenants and obligations contained in this Amended Agreement shall be
binding upon the parties and their respective heirs, successors (by merger,
consolidation, or otherwise) and assigns, devisees, lessees, and all other persons
acquiring any rights or interests in the Property, or any portion thereof, whether by
operation of laws or in any manner whatsoever, and shall inure to the benefit of the
parties and their respective heirs, successors (by merger, consolidation or otherwise)
and assigns;
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(ii) All of the provisions of this Amended Agreement shall be
enforceable as equitable servitudes and constitute covenants running with the land
pursuant to applicable law;
(iii) Each covenant to do or refrain from doing some act on the
Property hereunder (A) is for the benefit of and is a burden upon every portion of the
Property, (B) runs with such lands, and (C) is binding upon each party and each
successive owner during its ownership of the Property or any portions thereof, and shall
benefit each party and its lands hereunder, and each such other person or entity
succeeding to an interest in such lands.
11. Notices. Any notice to either party shall be in writing and given by
delivering the same to such party in person or by sending the same by registered or
certified mail, return receipt requested, with postage prepaid, to the following addresses:
If to City:
City Clerk of the City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
If to Developer:
El Paseo Hotel, LLC
3941 Park Drive S-20
El Dorado Hills, CA 95762
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Either party may change its mailing address at any time by giving written notice of such
change to the other party in the manner provided herein. All notices under this
Amended Agreement shall be deemed given, received, made or communicated on the
date personal delivery is affected or, if mailed, on the delivery date or attempted delivery
date shown on the return receipt.
12. Indemnification.
12.1 Developer's Obligation. Developer will defend, indemnify and hold
the City and its elected officials, officers and employee free and harmless from any loss,
cost or liability (including, without limitation, liability arising from injury or damage to
persons or property, including wrongful death and worker's compensation claims) which
results from (i) any obligation which arises from the development of the Property
including, without limitation, obligations for the payment of money for material and labor;
(ii) any failure on the part of Developer to take any action which he is required to take as
provided in this Amended Agreement; (iii) any action taken by Developer which he
prohibited from taking as provided in this Amended Agreement and (iv) any claim which
results from any willful or negligent act or omission of Developer.
12.2 Environmental Assurances. Developer shall indemnify and hold the
city, its officers, agents and employees free and harmless from any liability deriving from
the City's execution or performance of this Amended Agreement, based or asserted,
upon any act or omission of Developer, its officers, agents, employees, contractors,
subcontractors and independent contractors for any violation of any federal, state or
local law, ordinance or regulation relating to hazardous or toxic materials, industrial
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hygiene, or environmental conditions created by Developer or its officers, agents or
employees, contractors, subcontractors and independent contractors after the Effective
Date on, under which the Property, including, but not limited to soil and groundwater
conditions, and Developer shall defend, at its expense, including attorneys fees, the City
its officers, agents and employees in any action based or asserted upon any such
alleged act or omission. The City may in its discretion participate in the defense of any
such action. The provisions of this Section shall survive the termination or expiration of
this Amended Agreement.
13. Miscellaneous
13.1 Relationship of Parties. It is understood that the Project is a private
development, that neither party is acting as the agent of the other in any respect
hereunder, and that each party is an independent contractor. It is further understood
that none of the terms or provisions of this Amended Agreement are intended to or shall
be deemed to create a partnership, joint venture or joint enterprise between the parties
hereto.
13.2 Consents. Unless otherwise herein provided, whenever approval,
consent, acceptance or satisfaction (collectively, a "consent") is required of a party
pursuant to this Amended Agreement, it shall not be unreasonably withheld or delayed.
Unless provision is otherwise specified in this Amended Agreement or otherwise
required by law for a specific time period, consent shall be deemed given within thirty
(30) days after receipt of the written request for consent, and if a party shall neither
approve nor disapprove within such thirty (30) day period, or other time period as may
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be specified in this Amended Agreement or otherwise required by law for consent, that
party shall then be deemed to have given its consent. If a party shall disapprove, the
reasons therefor shall be stated in reasonable detail in writing. This Section does not
apply to development approvals by the City.
13.3 Not a Public Dedication. Except as otherwise expressly provided
herein, nothing herein contained shall be deemed to be a gift or dedication of the
Property, or of the Project or any portion thereof, to the general public, for the general
public, or for any public use or purpose whatsoever, it being the intention and
understanding of the parties that this Amended Agreement be strictly limited to and for
the purposes herein expressed for the development of the Project as private property.
13.4 Severability. If any term, provision covenant or condition of this
Amended Agreement shall be determined invalid, void or unenforceable by judgment or
court order, the remainder of this Amended Agreement shall remain in full force and
effect, unless enforcement of this Amended Agreement as so invalidated would be
unreasonable or grossly inequitable under all the relevant circumstances or would
frustrate the purposes of this Amended Agreement.
13.5 Exhibits. The following Exhibits, to which reference is made herein,
are deemed incorporated into this Amended Agreement in their entirety by reference
thereto:
Exhibit A Description of Project
Exhibit B Legal Description of the Property
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13.6 Entire Agreement. This written Amended Agreement and the
Exhibits hereto contain all the representations and the entire agreement between the
parties with respect to the subject matter hereof. Except as otherwise specified in this
Amended Agreement and the Exhibits hereto, any prior correspondence, memoranda,
agreements, warranties or representations are superseded in total by this Amended
Agreement and Exhibits hereto.
13.7 Governing Law; Construction of Agreement. This Amended
Agreement, and the rights and obligations of the parties, shall be governed by and
interpreted in accordance with the laws of the state of California. The provisions of this
Amended Agreement and the Exhibits hereto shall be construed as a whole according
to their common meaning and not strictly for or against any party and consistent with the
provisions hereof, in order to achieve the objectives and purposes of the parties
hereunder. The captions preceding the text of each Section, subsection and the Table
of Contents hereof are included only for convenience of reference and shall be
disregarded in the construction and interpretation of this Amended Agreement.
Wherever required by the context, the singular shall include the plural and vice versa,
and the masculine gender shall include the feminine or neuter genders, or vice versa.
13.8 Signature Pages. For convenience, the signatures of the parties of
this Amended Agreement may be executed and acknowledged on separate pages
which, when attached to this Amended Agreement, shall constitute this as one complete
Amended Agreement.
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13.9 Time. Time is of the essence of this Amended Agreement and of
each and every term and condition hereof.
13.10 Prevailing Party's Attorney's Fees and Costs. If any party to this
Amended Agreement shall fail to perform any of its obligations hereunder, or if a dispute
arises with respect to the meaning or interpretation of any provision hereof or the
performance of the obligations of any party hereto, the defaulting party or the party not
prevailing in such dispute, as the case may be, shall promptly pay any and all costs and
expenses (including without limitation, all court costs and reasonable attorneys' fees
and expenses) incurred by the other party with respect to such to such dispute or in
enforcing or establishing its rights hereunder. Notwithstanding the foregoing, City shall
not be required to pay any costs or expenses (including without limitation, reasonable
attorneys' fees and expenses) which Developer may incur in respect of any hearing
held pursuant to Section 7 hereof.
IN WITNESS WHEREOF, the parties have executed this Amended
Agreement as of the date and year first above written.
DEVELOPER:
EL PASEO HOTEL, LLC, a California
limited liability company
By:
Name:
Title:
72500.00758\9804535.1 SEE ATTACHED FCR NOTARY PUBLIC
7/9/15
CITY:
CITY OF PALM DESERT,
CALIFORNIA, a municipal corporation
organized and existing under the laws of
the State of California
'- - - IA --,- w-,/-
Susan Marie Weber, Mayor
Attest:
Ra elle D. Klassen, Ci Clerk
City of Palm Desert, California
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
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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 January 29, 2016 before me,
Date
personally appeared Susan Marie Weber
M. G. Sanchez, Notary Public
Here Insert Name and Title of the Officer
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(p) whose name() is/ap6
subscribed to the within instrument and acknowledged to me that he/she/thoy executed the same in
hWher/oeir authorized capacity(io), and that by hies/her/tl 6ir signature(,} on the instrument the persono,
or the entity upon behalf of which the persono acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
M. G. SANCHEZ of the State of California that the foregoing paragraph
Commission # 2084254 is true and correct.
i -� Notary Public - California i
= Riverside County ' WITNESS my hand andr-
cial seal.
NlComm. Expires Oct 29, 2018 , /
Signature
%
1 %Sign tooiNAVP
i
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 Amended and Restated Development Agreement
Title or Type of Document: El Paseo Hotel, LLC Document Date: July 9, 2015
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
I Corporate Officer — Title(s):
Partner — F1 Limited [—'General
Individual Attorney in Fact
1 Trustee LJ Guardian or Conservator
Other:
Signer Is Representing:
Signer's Name:
F I Corporate Officer — Title(s):
I 1 Partner — iF1 Limited General
Individual Ll Attorney in Fact
Trustee F1 Guardian or Conservator
Other:
Signer Is Representing:
02014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
ALL-PURPOSE ACKNOWLEDGMENT
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 El Dorado
On �� �C�~-�� before me, Matthew Henderson, Notary Public
Date .4 j Here IW44t Name and Title of the
personally appeared f e,6) --DJ "r /' 1 L � tNt s aigners)
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
MATTHEWHENOERSON his/her/their signature(s) on the instrument the
COMM. 62083696 person(s), or the entity upon behalf of which the
Notary Public • California person(s) acted, executed the instrument.
El Oorado County
20U
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 off 'al seal.
Signatur
Place Notary Seal and/or Stamp Above Signature of Notary Public
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and could prevent fraudulent removal and reattachment of this form another document.
Description of Attached D cumenYi(�
Title or Type of Document: � � (��+t �e— ' - -'
Document Date:
Number of Pages:
EXHIBIT "A"
DEVELOPMENT PLAN/PROJECT DESCRIPTION
The Development Plan and Project Description shall consist of the following:
1. The Developer shall develop, build and operate a Four -Star boutique hotel
with a maximum of 154 units/keys as specifically described in the City's approvals of DA
15-087, PP 15-087 and CUP 15-087, and the site plans and operating memorandum
approved therein.
2. The maximum number of keys for the Project shall not exceed one
hundred fifty four (154). The Project also includes one hundred and fifty (150)
underground parking spaces, eight (8) surface level parking spaces, a restaurant area,
gift shop, conference and meeting rooms, spa, and amenities including an outdoor pool
and bar.
3. Subsequent land use approvals in accordance with the terms of this
Development Amended Agreement.
4. The Project is located at 45-400 Larkspur Lane, Palm Desert, California,
APNs 627-262-008 and 627-262-011.
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EXHIBIT B
LEGAL DESCRIPTION OF PROPERTY
ALL OF LOTS 6 AND 7, A PORTION OF LOT 1 AND A PORTION OF LOT 5 IN
BLOCK Q OF PALM DESERT UNIT NO. 1, AS PER MAP RECORDED IN BOOK 21,
PAGES 50 TO 54 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 7; THENCE ON THE
EASTERLY LINE OF SAID LOT 7 AND ITS SOUTHERLY PROLONGATION, SOUTH
0008'35" EAST, 400.00 FEET TO THE NORTHERLY LINE OF SHADOW MOUNTAIN
DRIVE, 60.00 FEET WIDE; THENCE ON SAID NORTHERLY LINE, 500 SOUTH
89044'35" WEST, 199.96 FEET TO THE BEGINNING OF A TANGENT CURVE
CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 20.00 FEET; THENCE
NORTHWESTERLY ON SAID CURVE THROUGH A CENTRAL ANGLE OF 90°06'50",
A DISTANCE OF 31.46 FEET TO THE EASTERLY LINE OF LARKSPUR LANE, 60
FEET WIDE; THENCE TANGENT TO SAID CURVE AND ON THE EASTERLY LINE,
NORTH 00008'35" WEST, 379.96 FEET TO THE NORTHWEST CORNER OF SAID
LOT 7; THENCE ON THE NORTHERLY LINE OF SAID LOT 7, NORTH 8944'35"
EASTER, 62.11 FEET; THENCE LEAVING SAID NORTHERLY LINE, NORTH
66004'55" EAST, 96.85 FEET; THENCE NORTH 73°15'25" EAST, 36.83 FEET;
THENCE SOUTH 13049'41" EAST, 19.88 FEET; THENCE SOUTH 12031'53" WEST,
30.76 FEET TO THE AFOREMENTIONED NORTHERLY LINE OF LOT 7; THENCE
ON SAID NORTHERLY LINE, NORTH 89044'35" EAST, 36.01 FEE TO THE POINT OF
BEGINNING.
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