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HomeMy WebLinkAboutORD 590 RECORDING REQUESTED BY. AND WHEN RECORDED MAIL TO: 10 City Clerk's Office et City of Palm DesertEl ..7\t% 73-510 Fred Waring Drive 1 d p A c Vd Palm Desert , CA 92260 O 0 0 52 . � FOR THE BENEFIT OF THE Z CITY OF PALM DESERT e =3 Li p. NO FEE li * ° v, N 6103 OF THE GOVT. CODE NI e U- 227140 EACH DOCUM TO WHICH THIS CERTIFICATE IS ATTACHED, IS :f'rIFIED TO BE A FULL, TRUE AND CORRECT COPY OF THE ORIGINAL ON FILE AND ON RECORD IN MY OFFICE. Dated: S, 1 cl 0 SHEILA R. GILLIGAN, City Clerk City of Palm De a Ca' ornia ORDINANCE NO. 590 ! ft AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A CERTAIN DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PALM DESERT AND AHMANSON COMMERCIAL DEVELOPMENT COMPANY. THE CITY COUNCIL OF THE CITY OF PALM DESERT DOES ORDAIN AS FOLLOWS: Section 1 . The City Council has heretofore certified that the Final Environmental Impact Report for the Ahmanson Commercial Development Plan , ( the " Final EIR " ) analyzes all potential environmental impacts of the proposed Development Agreement (the "Agreement" ) by and between the City of Palm Desert (the "City" ) and Ahmanson Commercial Development Company (the "Developer" ) and was completed pursuant to the provisions of the California Environmental Quality Act and guidelines promulgated with respect thereto, and the City Council has reviewed and considered the contents of the Final EIR prior to deciding whether to approve the proposed Agreement. Section 2 . The City Council has heretofore adopted a mitigation monitoring program with respect to the mitigation measures described in the Final EIR which have been adopted or made a condition of the Approval of the Agreement. Section 3 . The Planning Commission of the City of Palm Desert has reported to the City Council that the proposed Agreement is in conformance with the General Plan and the Commercial Core Area Specific Plan of the City of Palm Desert, and has recommended approval of the proposed Agreement. Section 4 . Pursuant to notice duly given, the City Council has held a full and fair public hearing pursuant to law on the proposed Agreement and the City Council has duly considered and has evaluated all evidence for and against the proposed Agreement. All objections to the Agreement were heard and passed upon by the City Council and are hereby overruled by the City Council . The City Council hereby finds that the Agreement is consistent with the General Plan and Commercial Core Area Specific Plan of the City of Palm Desert. 227110 Section 5. The Agreement, a copy of which has been presented to the City Council and which is on file in the office of the City Clerk, is hereby approved in substantially the form so presented to the City Council and on file with the office of the City Clerk. The Mayor, the City Clerk, their designees, and other appointed officers and employees of the City, are hereby authorized and directed upon the effective date of this Ordinance to execute such Agreement on behalf of the City with such changes or amendments thereto as the Mayor shall determine are necessary or appropriate and consistent with the intent of the City Council in adopting this ordinance and such determination shall be conclusively evidenced by the execution of the Agreement by the Mayor. Section 6 . The City Clerk shall certify to the passage of this Ordinance and shall cause this Ordinance to be published and posted as required by law. PASSED, APPROVED, AND ADOPTED by the Palm Desert City Council this 14th day of December, 1989, by the following vote, to wit: AYES: Benson, Kelly, Snyder, Wilson NOES: Crites ABSENT: None ABSTAIN: None BUF D A CRITES, Mayor ATTEST: SHEILA R. LLIGAN, City Clerk City of P m Deser , California 227140 (Space above for Recorder's Use Only) DEVELOPMENT AGREEMENT Between THE CITY OF PALM DESERT, CALIFORNIA and AHMANSON COMMERCIAL DEVELOPMENT COMPANY Dated: May 1, 1990 227140 TABLE OF CONTENTS Description Page RECITALS 1 1. DEFINITIONS 3 1 . 1 Defined Terms 3 1. 2 Building Ordinances 4 1. 3 Enacting Ordinance 4 1. 4 Exactions 4 1. 5 Existing Land Use Ordinances 4 1. 6 The Hoames Pool Site 5 1. 7 Land Use Ordinances 5 1. 8 Mortgage 5 1 . 9 Project 5 1. 10 Property 6 1. 11 Certain Other Terms 6 2 . EFFECTIVE DATE; TERM 6 2 . 1 Effective Date 6 2 . 2 Term 6 2 . 3 Amendment 6 3 . GENERAL DEVELOPMENT OF THE PROJECT 7 3 . 1 Project 7 3 . 2 Project Timing; Cumulative Construction Entitlement 8 3 . 3 Building Permits and Other Approvals and Permits 10 3 . 4 Procedures; Limitations on Exactions 10 3 . 5 Effect of Agreement 11 3 . 6 Operating Memoranda 14 4 . SPECIFIC CRITERIA APPLICABLE TO DEVELOPMENT OF THE PROJECT 15 4 . 1 Applicable Ordinances 15 4 . 2 Amendment to Applicable Ordinances 16 4 . 3 Easements; Abandonments 16 5. PUBLIC BENEFITS 17 5. 1 Public Facilities 17 5. 2 Palm Desert Redevelopment Agency 18 5. 3 Dedication of Land For Open Space 19 5. 4 Right-of-Way 19 6 . PERIODIC REVIEW 20 6. 1 Developers ' Submission 20 6 . 2 Standards 20 6. 3 Recommendation of Noncompliance 20 6. 4 Finding of Noncompliance • 21 6. 5 Finding of Compliance 22 227140 Description Page 7 . PERMITTED DELAYS; SUPERSEDURE BY SUBSEQUENT LAWS 22 7 . 1 Permitted Delays 22 7 . 2 Supersedure of Subsequent Laws or Judicial Action 23 8 . EVENTS OF DEFAULT; REMEDIES ; TERMINATION 24 8 . 1 Events of Default 24 8 . 2 Remedies 25 8 . 3 Waiver; Remedies Cumulative 26 8 . 4 Effect of Termination 26 8 . 5 Third Party Actions 28 9 . MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE 28 9 . 1 Holder of any Mortgage Not,Obligated 28 9 . 2 Notice of Default; Right to Cure 28 9 . 3 Bankruptcy 30 9 . 4 Estoppel Certificates 30 10. TRANSFERS AND ASSIGNMENTS ; EFFECT OF AGREEMENT TITLE 31 10. 1 Rights and Interest Appurtenant 31 10. 2 Release of Developer 34 10. 3 Termination of Agreement with Respect to Property 34 10 . 4 Covenants Run with Land 35 11. NOTICES 37 12 . MISCELLANEOUS 38 12 . 1 Relationship of Parties 38 12 . 2 Consents 38 12 . 3 Not a Public Dedication 39 12 . 4 Severability 40 12 . 5 Exhibits 40 12 . 6 Entire Agreement 40 12 . 7 Governing Law; Construction of Agreement 40 12 .8 Signature pages 41 12 .9 Time 41 12 . 10 Prevailing Party ' s Attorneys ' Fees and Costs 41 227140 LIST OF EXHIBITS Exhibit Designation Description A The Project B The Property C The Phasing Schedule D The Exactions E The Public Facilities F The Disposition, Development and Implementation Agreement G The Property to be Dedicated to City for Open Space H The Form of Deed I The Hoames Pool Site 22'7140 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement" ) is made and entered into as of this first day of May, 1990, by and between the City of Palm Desert, California, a municipal corporation organized and existing under the laws of the State of California ( "City" ) , and Ahmanson Commercial Development Company, a California corporation ( "Developer" ) . RECITALS This Agreement is entered into on the basis of the following facts, understandings and intentions of the parties : A. Government Code Sections 65864 through 65869 . 5 inclusive (the "Development Agreement Legislation" ) authorize City to enter into development agreements in connection with the development of real property within its jurisdiction. On August 11, 1983, City enacted by Ordinance No. 341, as amended on December 7 , 1989 by Ordinance No. 589 (collectively, the "Development Agreement Ordinance" ) , establishing the procedures and requirements for the consideration of development agreements thereunder pursuant to the Development Agreement Legislation. B. The Developer (or other party executing this Agreement) is the holder of a legal or equitable interest in the Property (as defined in Section 1 . 10 below) and is 1 227140 entitled to have filed the application for and to enter into this Agreement. The Project (as defined in Section 1 . 9 below) consists of the development of the Property. The Project will require a major investment by the Developer in public facilities and a substantial investment by the Developer in on-site and off-site improvements . The Project has been analyzed and reviewed by the City in light of the land use standards and policies embodied in the Existing Land Use Ordinances (as defined in Section 1 . 5 below) . C. The City has determined that the development of the Project as contemplated by this Agreement is consistent with and in furtherance of the development goals and policies of the City as set forth in the City's General Plan and the existing Palm Desert Commercial Core Area Specific Plan initially adopted by the City on July 23, 1987, and the objectives, policies, general land uses and development programs set forth therein. D. City has determined that entry into this Agreement will further the goals and objectives of the City's land use planning policies by, among other things, eliminating uncertainty in planning for and securing orderly development of the Project so that adequate long-term plans regarding the provision of necessary infrastructure can be developed and implemented, and ensuring the maximum effective utilization of resources within the City at the least feasible economic cost to its citizens . The benefits 2 227140 conferred on City by Developer herein will (i) facilitate the installation of certain vital public improvements, ( ii) ensure the creation of appropriate open space necessary for the preservation of the esthetic quality of the hillside areas within the City; ( iii) improve traffic circulation patterns within 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 Existing Land Use Ordinances and at a rate of development of its choosing, subject to the terms and conditions contained in this Agreement. E . In order to effectuate the foregoing, the parties desire to enter into this 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 Agreement to any of the following terms shall have the meaning set forth below for each such term. 3 227140 1 . 2 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 . 3 Enacting Ordinance. Ordinance No. 590, enacted by the City Council on December 14 , 1989, approving this Agreement. 1 . 4 Exactions . All exactions, in-lieu fees or payments, assessments, dedication or reservation requirements, obligations for on-site or off-site improvements, construction requirements for public improvements, facilities, or services called for in connection with the development of or construction on the Property, whether such requirements constitute subdivision improvements, any conditions of approval relating to any fees, charges, or dedications imposed by the Subdivision Map Act or any implementing local ordinance, mitigation measures in connection with environmental review of any project, or impositions made under any applicable ordinance or in order to make a project approval consistent with the General Plan. 1 . 5 Existing Land Use Ordinances . The Land Use Ordinances in effect as of the Effective Date (as defined in Section 2 . 1 herein) . 4 22 714° 1 . 6 Hoames Pool Site. That real property described in Exhibit "I " . 1 . 7 Land Use Ordinances . The ordinances, resolutions, codes, rules, regulations and official policies of the City, governing the development of the Property, including but not limited to, the permitted uses of land, the density and intensity of use of land, Exactions, 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 . 8 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 . 9 Project. The mixed-use office/commercial, retail/regional commercial development and associated amenities, and on-site and off-site improvements, as described in 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 Agreement . 5 227140 1 . 10 Property. That real property which is described in Exhibit "B" (as such Exhibit "B" may be amended as hereinafter provided) , including the site area designations of such real property contained in Exhibit "B" . 1 . 11 Certain Other Terms . Certain other terms shall have the meanings set forth for such terms in this Agreement. 2 . Effective Date; Term; Amendment. 2 . 1 Effective Date. This Agreement has been entered into by the parties as of the date and year first above written, and shall be effective as of such date (the "Effective Date" ) . 2 . 2 Term. The term of this Agreement (the "Term" ) shall commence on the Effective Date and shall terminate on the ten ( 10 ) year anniversary date of the Effective Date, unless sooner terminated or extended as hereinafter provided. 2 . 3 Amendment. The parties to this Agreement at their sole discretion and by their mutual written consent may from time to time amend the provisions and terms of this Agreement and the Exhibits; provided, however, that the parties to this Agreement hereby agree that this Agreement and Exhibit "B" shall be appropriately amended to include the description and appropriate site area designation of the Hoames Pool Site promptly upon the acquisition by the Developer of an equitable or legal interest therein and that 6 227140 the parties to this Agreement shall each promptly take whatever actions are necessary to effect the inclusion of the Hoames Pool Site within the Property affected and benefited by this Agreement. Any amendment to this Agreement or the Exhibits 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 and, except with respect to any such amendment pertaining to the Hoames Pool Site, only upon receipt of the written consent of the Palm Desert Redevelopment Agency. 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'. - The cost of such recordation shall be borne equally by the parties to this Agreement. 3 . General Development of the Project. 3 . 1 Project. (a) The Project is defined and described in Exhibit "A" , which specifies for the purposes of this Agreement all of the following aspects of the Project: (i) proposed uses of the Property, (ii) the maximum height and square footage of buildings to be constructed on the Property, (iii) density and intensity of use of the Property, (iv) requirements for the construction or provision of on-site and off-site improvements; and (v) 7 22 '14c) requirements for reservation or dedication of portions of the Property for public purposes. (b) Except as otherwise expressly provided in Exhibit "A" and further provided in Section 4 . 2 below, Developer shall have the right to develop the Project in accordance with, and development of the Project during the Term shall be governed by, the Existing Land Use Ordinances. 3 . 2 Project Timing; Cumulative Construction Entitlement. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which Project phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. Therefore, the parties hereto acknowledge and expressly agree that Developer is hereby granted by the City the vested and guaranteed right to develop the Project in such manner and at such rate and at such times as Developer deems appropriate within the exercise of its sole subjective business judgment and subject only to the maximum rate of development and the timing of such development contained in the Phasing Schedule set forth in Exhibit "C" . Therefore, City expressly agrees that Developer shall be entitled to apply for maps, building permits, occupancy certificates and other entitlements for its use at any time, provided that such application is made in accordance with the Existing 8 227140 Land Use Ordinances and that the development and/or construction of the Project contemplated or authorized by such maps, building permits, occupancy permits and other entitlements does not exceed the rate of development or construction set forth in the Phasing Schedule, and is otherwise in conformity therewith. Notwithstanding any provisions to the contrary in this Agreement or the Existing Land Use Ordinances, Developer shall have the right, but not the obligation, to obtain from City, during and for each period of time specified in the Phasing Schedule, all necessary approvals, consents, permits, or other entitlements for the construction of not less than the maximum number of square feet of gross floor area of any permitted use under the Existing Land Use Ordinances specified with respect to any designated phase of development set forth in the Phasing Schedule. Any portion of such maximum square foot entitlement not utilized or obtained by Developer within any such designated phase may be carried forward to and used or obtained in one or more subsequent designated phases, as selected by Developer and subject to the approval of the City, in addition to the maximum square foot entitlement for such subsequent phase (s) , until such carry-forwards are exhausted. 9 22 '14O 3 . 3 Building Permits and Other Approvals and Permits. Subject to (a) Developer' s compliance with this Agreement, the Existing Land Use Ordinances and the Building Ordinances, and (b) payment of the usual and customary fees and charges of general application charged for the processing of such applications, permits and certificates and for any utility connection, or similar fees and charges of general application, City shall process and issue to Developer promptly upon application therefor 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) . 3 . 4 Procedures; Limitations on Exactions. The standards for granting or withholding permits or approvals required hereunder in connection with the development of the Project shall be governed as provided herein by the standards, terms and conditions of this Agreement and the Exhibits hereto, and to the extent not inconsistent therewith, the Existing Land Use Ordinances, but the procedures for processing applications for such permits or approvals (including the usual and customary fees of general application charged for such processing) shall be governed 10 22''i4O by such ordinances and regulations as may then be applicable. Notwithstanding the foregoing, or anything to the contrary otherwise contained herein, there shall not, except as otherwise specifically provided herein, be imposed upon the Project any Exactions other than those set forth in Exhibit "D" . 3 . 5 Effect of Agreement. This Agreement shall constitute a part of the Enacting Ordinance, as if incorporated by reference therein in full. The parties acknowledge that this Agreement is intended to grant Developer the right to develop the Project pursuant to specified and known criteria and rules as set forth in Exhibit "A" and the Existing Land Use Ordinances, and to grant City and the residents of the City certain benefits which they otherwise would not receive. This Agreement shall be binding upon the City and its successors in accordance with and subject to its terms and conditions notwithstanding any subsequent action of the City, whether taken by ordinance or resolution of the City Council, by initiative, or otherwise. The parties acknowledge and agree that by entering into this Agreement and relying thereupon, the Developer has obtained, subject to the terms and conditions of this Agreement, a vested right to proceed with its development of the Project in accordance with the proposed uses of the Property, the maximum height and size of buildings to be constructed on 11 227140 the Property, the density and intensity of use of the Property and the requirements for the construction or provision of on-site and off-site improvements and the reservation or dedication of land for public use as set forth in Exhibit "A" , and in accordance with the Existing Land Use Ordinances and the timing provisions of Section 3 . 2 , and the City has entered into this Agreement in order to secure the public benefits conferred upon it hereunder which are essential to alleviate current and potential problems in the City and to protect the public health, safety and welfare of the City and its residents, and this Agreement is an essential element in the achievement of those goals. The parties acknowledge that: (a) the City has entered into this Agreement pursuant to the Development Agreement Legislation and its police power in order to address public health and safety and general welfare concerns including those relating to the amount, density, intensity and timing of development within the Property and the need for public facilities and infrastructure in connection with the Property and other property in the area; and (b) as, and to the extent contemplated in the Development Agreement Legislation, there is certain authority under the police power to address public health and safety concerns that cannot be legally relinquished or restricted by this Agreement and that the City subsequent to 12 227140 the Effective Date may exercise such authority by the adoption of rules, regulations, and policies which may be applicable to the Project and/or the Property, but which do not conflict with the terms and intent of this Agreement as determined in the manner and in accordance with the standards set forth below. For the purposes of this Agreement any such rule, regulation or policy shall not be deemed to conflict with the terms and intent of this Agreement if the same does not: (i) modify the permitted types of land uses, the density or intensity of use, the maximum height or size of proposed buildings on the Property, or impose requirements for the construction or provision of on-site or off-site improvements or the reservation or dedication of land for public use, or the payment of fees or the imposition of Exactions, other than as are in each case specifically provided for in this Agreement; or (ii) prevent the Developer from obtaining all necessary approvals, permits, certificates or other entitlements at such dates and under such circumstances as the Developer would otherwise be entitled under this Agreement; or (iii) prevent or inhibit the Developer from commencing, prosecuting and finishing on a timely basis the construction and development of the Project and the 13 22'7140 satisfaction of its obligations hereunder in the manner and as contemplated by this Agreement; or (iv) increase the cost of the construction or development of the Project, or the construction or provision of any public improvements to be provided by the Developer as contemplated herein, or the reservation or dedication of land for public purposes, or increase the cost of selling, financing or leasing the Project or any portion thereof. 3 . 6 Operating Memoranda. Developer and City acknowledge that the provisions of the Agreement require a close degree of cooperation between Developer and City, and that refinements and further development of the Project may demonstrate that changes or additional provisions are appropriate with respect to the details of performance of the parties under the Agreement in order to effectuate the purpose of the Agreement and the intent of the parties with respect thereto. If and when, from time to time, the parties find that such changes or additional provisions are necessary or appropriate, and subject to the provisions of the next succeeding sentence, they shall effectuate such changes or provide for such additional provisions through operating memoranda to be approved in good faith by the parties, which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further changed or supplemented from time to time as necessary, with further good faith approval of Developer and City. Upon receipt by 14 22'7140 the City of an opinion of the City Attorney to the effect that the subject matter of such operating memoranda does not require the amendment of this Agreement in the manner provided in Section 65868 of the California Government Code, then no such operating memoranda shall require prior notice or hearing, or constitute an amendment to this Agreement; and in the case of City such operating memoranda may be acted upon by its Community Development Director. Failure of the parties to enter into any such operating memoranda shall not affect or abrogate any of the rights, duties or obligations of the parties hereunder or the provisions of this Agreement. 4 . Specific Criteria Applicable to Development of the Project. 4 . 1 Applicable Ordinances. Except as set forth in Exhibit "A" 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 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, are not imposed solely with respect to the Property, and do not constitute an 15 22'7140 Exaction, and (b) Developer shall abide by the Building Ordinances in effect at the time of such applications. 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 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 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 applicable to the Property. 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 16 22'7140 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. At the request of Developer, and in the manner and to the extent permitted by law, the City shall use its best efforts to abandon Painters Path northwest of the Palm Valley Flood Channel from Fred Waring Drive to the Palm Valley Flood Control Channel and all existing public utility easements and right-of-way associated therewith, and take such actions and execute such documents and instruments as may be necessary in order to effectuate such abandonment and, to the extent permitted by law, transfer all of City' s right, title and interest thereto to the Developer. 5. Public Benefits. • 5. 1 Public Facilities. City desires to cause to be provided the public improvements and facilities set forth in Exhibit "E" (the "Public Facilities") to serve property both within and outside of the Property at times which will be in advance of the desire of Developer and the need to serve the Property, and Developer, in order to assist City in accomplishing such objective and in return for the rights conferred upon it by this Agreement to develop the Property in accordance with the Existing Land Use Ordinances and the timing provisions of Section 3 . 2 , agrees to provide the 17 227140 Public Facilities, in accordance with and subject to the terms and conditions of the Disposition and Development Agreement (as defined in Section 5 . 2 ) , subject to the terms, conditions and reimbursement rights as provided below. 5 . 2 Palm Desert Redevelopment Agency. Developer and the Palm Desert Redevelopment Agency have entered into or will enter into that certain Disposition, Development and Implementation Agreement (the "Disposition and Development Agreement" ) attached hereto as Exhibit "F" . Developer and City acknowledge that said Disposition and Development Agreement provides for the terms, conditions and requirements with respect to the construction of the Public Facilities by the Developer and the reimbursement of the Developer for certain costs thereof by the Palm Desert Redevelopment Agency. City and Developer agree that the manner and timing of the construction of the Public Facilities and the reimbursement of the Developer with respect thereto shall be controlled in all respects by said Disposition and Development Agreement and that in the event of any inconsistency between the provisions thereof and of this Agreement, the provisions of the Disposition and Development Agreement shall be deemed to control . City has by execution of this Agreement approved the form and content of said Disposition and Development Agreement and, to the full extent permitted by the Community Redevelopment Law (Health and Safety Code Section 33000 et. seq. ) , appointed 18 227140 the Palm Desert Redevelopment Agency as its agent for the administration of the construction of the Public Facilities. City agrees that the performance by the Developer of its obligations under said Disposition' and Development Agreement shall constitute the performance and satisfaction of its corresponding obligations hereunder. 5. 3 Dedication of Land For Open Space. City hereby agrees to accept from the Developer, and the Developer agrees to dedicate to the City, that portion of the Property described in Exhibit "G" , and the City agrees to dedicate such land for use as open space. By executing this Agreement, the City and Developer agree that such land shall be conveyed to City in accordance with the Phasing Schedule and pursuant to a deed in substantially the form attached hereto as Exhibit "H" . 5. 4 Right-of-Way. In any instance where Developer is required to construct any of the Public Facilities on portions of real property not then owned by Developer, City shall provide or assist the Palm Desert Redevelopment Agency in providing, or the City shall use its best efforts to cause any public entity then owning the property interests necessary for such construction to provide, in each case at no cost to Developer (unless the City or the Palm Desert Redevelopment Agency would otherwise incur costs in order to acquire such property interests) , the real property or right-of-way necessary and appropriate for the construction 19 227140 of such Public Facilities and such provision shall be a condition precedent to Developer' s obligation to construct such Public Facilities. 6 . Periodic Review. City shall conduct a semi-annual review of this Agreement and all actions taken pursuant to the terms of this Agreement as set forth in this Section 6 . 6. 1 Developer' s Submission. Not less than thirty (30) , nor more than sixty (60) days prior to November 1, 1990 and each May 1 and November 1 thereafter, Developer shall submit to City a letter setting forth Developer ' s good faith compliance with the terms and conditions of this Agreement. Such letter shall state that it is submitted to City pursuant to the requirements of Section 65865 . 1 of the Development Agreement legislation and Section 6. 1 of this Agreement. 6. 2 Standards. Developer shall be deemed to have satisfied its duty of demonstration when it presents evidence pertaining to its good faith compliance with the major provisions of this Agreement and the uses, densities, heights, and sizes of structures completed on the Property. Generalized evidence or statements shall be accepted in the absence of evidence that such generalized evidence or statements are untrue. 6. 3 Recommendation of Noncompliance. If, upon completion of a review of the materials provided by the Developer, the City staff recommends that a finding by the 20 227140 City be made that there is noncompliance by Developer, the City shall schedule a hearing to consider the matter. At least thirty (30) days prior to the date set for such hearing, City shall, in addition to any other required notice, provide to Developer notice of the hearing accompanied by copies of all staff reports, staff recommendations and other information concerning Developer' s compliance with the terms of this Agreement. A recommendation of noncompliance by Developer shall specify in detail the grounds and all facts demonstrating such noncompliance, so that Developer may address the issues raised on a point-by-point basis at the hearing. At the hearing the Developer shall be entitled to submit evidence and to address all of the issues raised by the notice. 6. 4 Finding of Noncompliance. If, after considering all the evidence presented at the hearing, the City finds and determines on the basis of substantial evidence that Developer has not complied in good faith with the material terms and conditions of this Agreement, then the City shall specify in writing to Developer the respects in which Developer has failed to comply and the terms under which compliance can be obtained, and shall also specify a reasonable time for Developer to meet the terms of compliance, which time shall not be less than ninety (90) days and shall be reasonably related to the time necessary to bring Developer' s performance into good faith compliance. 21 227140 6. 5 Finding of Compliance. If City finds good faith compliance by Developer with the terms and conditions of this Agreement, City shall promptly issue a certificate of compliance to Developer, certifying Developer' s good faith compliance through the date of issuance. Such certificate shall be in recordable form and shall contain such information as shall impart constructive record notice of compliance. Developer shall have the right to record the certificate in the official records of Riverside County. 7 . Permitted Delays; Supersedure by Subsequent Laws. 7 . 1 Permitted Delays. In addition to any other provisions of this Agreement with respect to delay, Developer and City shall be excused from performance of their obligations hereunder during any period of delay caused by acts of God or civil commotion, riots, strikes, picketing, or other labor disputes, shortage of materials or supplies, or damage to or prevention of work in process by reason of fire, floods, earthquake, or other casualties, litigation, acts or neglect of the other party, any referendum elections held on the Enacting Ordinance, or the Land Use Ordinances, or any other ordinance effecting the Project or the approvals, permits or other entitlements related thereto, or restrictions imposed or mandated by governmental or quasi-governmental entities, enactment of conflicting provisions of the Constitution or laws of the United States of America or the State of California or any 22 227140 codes, statutes, regulations or executive mandates promulgated thereunder (collectively, "Laws") , orders of courts of competent jurisdiction, the Developer ' s inability to obtain public or private financing which is economically feasible in Developer' s reasonable business judgement, or any event or circumstance giving rise to a permitted delay under the terms of the Disposition and Development Agreement (to the extent that the Developer' s performance under this Agreement is impacted thereby) , 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; Termination of the Disposition and Development Agreement. The provisions of this Agreement shall , to the extent feasible, be modified or suspended as may be necessary to comply with any new Law or decision issued by a court of competent jurisdiction (a "Decision") , enacted or made after the Effective Date which prevents or precludes compliance with one or more provisions of this Agreement. Immediately 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 23 227140 or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. In addition, Developer and City shall have the right to challenge the new Law or the Decision preventing compliance with the terms of this Agreement. In the event that such challenge is successful, this Agreement shall remain unmodified and in full force and effect, except that the Term shall be extended, in accordance with Section 7 . 1 above, for a period of time equal to the length of time the challenge was pursued. If, following such meetings with the City or the failure of any challenge to such new Law or Decision by either the City or Developer, the Developer determines in its sole reasonable business judgement that a modification or suspension of the terms or conditions of this Agreement is infeasible, the Developer shall have the right to terminate this Agreement by giving written notice to the City. If the Disposition and Development Agreement is terminated by Developer or Palm Desert Redevelopment Agency pursuant to Sections 4 . 4 , 8 . 9 or Section 8 . 10 thereof, Developer shall have the right to terminate this Agreement by giving written notice to the City. 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 24 22'7140 provisions of Section 7 . 1 above regarding permitted delays, the failure of either party to perform any material term or provision of this Agreement shall constitute an event of default hereunder ("Event of Default") if such defaulting party does not cure such failure within ninety (90) days following receipt of written notice of default from the other party; provided, however, that if the nature of the default is such that it cannot be cured within such ninety (90) day period, the commencement of the cure within such ninety (90) day period and the diligent prosecution to completion of the cure shall be deemed to be a cure within such period. Any notice of default given hereunder shall specify in detail the nature of the alleged Event of Default and the manner, if any, in which such Event of Default may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the party charged therewith shall not be considered to be in default for purposes of termination of this Agreement, institution of legal proceedings with respect thereto, or issuance of any permit, map, certificate of occupancy, approval or entitlement with respect to the Project. 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 it may have at law or in equity, including, but not limited to, the right to 25 227140 damages and the right to terminate this Agreement or seek mandamus, specific performance, injunctive or declaratory relief. Notwithstanding the foregoing and except as otherwise provided in Section 8 . 4 hereof, if either Developer or City elects to terminate this Agreement as a result of the occurrence of an Event of Default, such proceeding of termination shall constitute such party' s exclusive and sole remedy, and with respect to such election City and Developer hereby waive, release and relinquish any other right or remedy otherwise available under this 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 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 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 7 . 2 hereof, shall 26 227140 not affect any right or duty emanating from any approvals, permits, certificates or other entitlements with respect to the Property or the Project which were issued, approved or provided by the City prior to the date of termination of this Agreement. If City terminates this Agreement because of Developer' s default, then City shall retain any and all benefits, including money, land or improvements conveyed to or received by the City prior to the date of termination of this Agreement, subject to any reimbursement obligations of the City. If Developer terminates this Agreement because of City' s default, or as a result of the exercise of the right of termination provided to the Developer under Section 7 . 2 hereof, then Developer shall be entitled to all of the benefits arising out of, or approvals, permits, certificates or other entitlements on account of, any Exactions paid, given or dedicated to, or received by, City prior to the date of termination of this Agreement. Except as otherwise provided in this Section 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 Agreement. If this Agreement is terminated pursuant to any provision hereof, then the City shall, after such action takes effect, cause an appropriate notice of such action to be recorded in the official records of the County of Riverside. The cost of such recordation shall be borne by the party causing such action. 27 22/14O 8 . 5 Third Party Actions. Any court action or proceeding brought by any third party to challenge this Agreement or any permit or approval required from City or any other governmental entity for development or construction of all or any portion of the Project, whether or not Developer is a party defendant to or real party defendant in interest in such action or proceeding, shall constitute a permitted delay under Section 7 . 1. 9 . Mortgagee Protection; Certain Rights of Cure. Nothing contained herein shall limit or interfere with the lien of the holder of any Mortgage (a "holder of any Mortgage" includes the holder of any beneficial interest under a Mortgage, or the purchaser at a judicial or nonjudicial foreclosure sale pursuant to the remedies provided in the Mortgage, or any person or entity which acquires title to the Property or any part thereof pursuant to a deed in lieu of foreclosure) , and no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage. 9 . 1 Holder of any Mortgage Not Obligated. No holder of any Mortgage shall have an obligation or duty under this Agreement to perform Developer's obligations or duties hereunder or to guarantee the Developer' s performance thereof. 9 .2 Notice of Default; Right to Cure. If a holder of any Mortgage files with the City Clerk a written notice 28 227140 requesting a copy of any notice of default given Developer hereunder and specifying the address for delivery thereof, then City shall deliver to such holder of any Mortgage, concurrently with delivery thereof to Developer, any notice given to Developer with respect to any claim of City that Developer has not complied with the terms hereof or is otherwise in default hereunder. Each such holder of any Mortgage shall have the right (but not the obligation) for a period of one hundred twenty (120) days after receipt of such notice from City to cure or remedy, or to commence to cure or remedy, the claim of default or noncompliance set forth in the City' s notice. If any such default or noncompliance cannot, with diligence, be remedied or cured within such one hundred twenty (120) day period, then such holder of any Mortgage shall have such additional time as may be reasonably necessary to remedy or cure such default or noncompliance if such holder of any Mortgage commences to remedy or cure within such one hundred twenty (120) day period, and thereafter diligently pursues and completes such remedy or cure. Notwithstanding the foregoing, if the default or noncompliance is of a nature which can only be cured by such holder of any Mortgage by or upon obtaining possession, such holder of any Mortgage shall be deemed to have remedied or cured such default or noncompliance if such holder of any Mortgage shall, within such one hundred twenty (120) day period, commence efforts to obtain possession and 29 22'7140 carry the same forward with diligence and continuity through implementation of foreclosure, appointment of a receiver or otherwise, and shall thereafter remedy or cure or commence to remedy or cure the default or noncompliance within one hundred twenty (120) days after obtaining possession. 9 . 3 Bankruptcy. Notwithstanding the provisions of Section 9 . 2 above, if any holder of any Mortgage is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof to obtain possession of the Property by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Developer, the holder of any Mortgage shall for the purposes hereof be deemed to be proceeding with diligence and continuity to obtain possession of the Property during the period of such prohibition if the holder of any Mortgage is proceeding diligently to terminate such prohibition. 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 Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended or modified, identifying such amendments or modifications, and (iii) the 30 227140 requesting party is not in default in the performance of its obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and 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 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 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 31 22 '140 transfer or assignment pursuant to any foreclosure of a Mortgage or a deed in lieu of such foreclosure; and (ii) At least ten (10) days prior to any such sale, assignment or transfer of said rights or interests, Developer shall notify City in writing of such sale, transfer or assignment, the portion(s) of the Property to which the sale, assignment or transfer is appurtenant (if the whole of the Property is not being sold, leased, transferred or assigned) , and the name and address (for purposes of notices hereunder) of the purchaser, transferee or assignee, and the purchaser, transferee or assignee shall provide a written notice to City specifying whether or not the purchaser, transferee or assignee has assumed any of Developer' s obligations hereunder and, if so, which such obligations have been assumed. Notwithstanding the foregoing, Developer shall not delegate or assign any of its executory obligations or affirmative covenants with respect to the Public Facilities without having first received the written consent of the City. Following any such sale, transfer or assignment of any of the rights and interests of Developer under this Agreement, the exercise, use and enjoyment thereof shall continue to be subject to the terms of this Agreement to the same extent as if the purchaser, transferee or assignee were Developer hereunder. Without limiting the generality of the foregoing, (a) the further sale, transfer or assignment of 32 227140 the rights or interests of the Developer under this Agreement shall be made only in accordance with and subject to the terms of this Agreement, and (b) the rights and interests of the Developer sold, transferred or assigned shall be subject to termination only in accordance with this Agreement. Notwithstanding the foregoing, the transferee or assignee of any of the rights and interests of Developer shall have no duty or obligation to perform Developer' s executory obligations or other affirmative covenants of Developer under this Agreement, unless such executory obligations or affirmative covenants are expressly assumed in connection with the conveyance of such rights and interests. In the event such executory obligations or affirmative covenants are so assumed by any transferee or assignee, no subsequent failure by such transferee or assignee (or any subsequent transferee or assignee) to perform or comply with such executory obligations or affirmative covenants shall be deemed an Event of Default by the Developer hereunder and, similarly, no failure of the Developer to perform or comply with its executory obligations or affirmative covenants which have not been so transferred or assigned shall constitute an Event of Default hereunder with respect to such transferee or assignee (or subsequent transferee or assignee) . 33 22'714O 10. 2 Release of Developer. Notwithstanding the sale, lease, transfer or assignment by Developer of portions or all of the Property, or its rights or interests under this Agreement, Developer shall continue to be responsible for the performance of its obligations and affirmative covenants under this Agreement unless released or partially released by City with respect to such obligations and affirmative covenants, which release or partial release shall be promptly provided in writing to Developer upon the satisfaction by Developer of the following conditions: (i) Developer is not then in default under this Agreement; (ii) Developer has provided the City with the written notice required to be delivered by Developer under Section 10. 1 (ii) and, if required by the terms of this Agreement, has received the prior written consent of the City; and (iii) Any such transferee or assignee has expressly assumed such obligations and affirmative covenants as to which the Developer is to be released. 10. 3 Termination of Agreement with Respect to Property. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any portion of the Property with respect to which a final subdivision map conforming to the terms and provisions of this Agreement has been recorded, and 34 227140 thereupon, and without the execution or recordation of any further document or instrument, such portion of the Property shall be released from and shall no longer be subject to or burdened by the provisions of this Agreement; provided, however, that (i) the foregoing shall not be construed to release Developer from any then unperformed obligations under this Agreement with respect to such portion of the Property, and (ii) the benefits of this Agreement shall continue to run as to such portion of the Property until such time as such portion of the Property is developed and the benefits of this Agreement with respect thereto are fully utilized by the construction of a building or buildings or other improvements thereon. Upon receipt of written request therefor, the City shall promptly provide to the Developer, or any transferee or assignee of an interest of the Developer in the Property, a written statement confirming the release of any portion of the Property from the burdens of this Agreement or the termination of this Agreement with respect to such portion of the Property, which statement shall be in form appropriate for recording in the official records of Riverside County and shall impart constructive record notice of such release or termination. 10. 4 Covenants Run with Land. Subject to the foregoing provisions of this Section 10 and Section 9 : 35 227140 (i) All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this 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; (ii) All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law; (iii) Each covenant to do or refrain from doing some act on the Property hereunder (A) is for the benefit of and is a burden upon every portion of the Property, (B) runs with such lands, and (C) is binding upon each party and each successive owner during its ownership of the Property or any portions thereof, and shall benefit each party and its lands hereunder, and each such other person or entity succeeding to an interest in such lands. Notwithstanding any of the foregoing or anything to the contrary contained in this Agreement, any transferee or assignee or holder of any Mortgage which acquires any right or interest in or with respect to the Property or any 36 227140 portion thereof shall take and hold such rights and interests subject to this Agreement and shall not have been deemed to have assumed any obligations or duties of the Developer hereunder except to the extent that any such transferees or assignees or holders of any Mortgage have expressly assumed in writing any of the duties or obligations of the Developer hereunder. 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, California 92260 If to Developer: Ahmanson Commercial Development Company 11111 Santa Monica Boulevard Suite 2127 Los Angeles, California 90025 Attention: Gregory Simon with a copy to: Morrison & Foerster 333 South Grand Avenue Suite 3800 Los Angeles, California 90071 Attention: Jim G. Grayson, Esq. 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 37 227140 Agreement shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. 12 . Miscellaneous. 12 . 1 Relationship of Parties. It is understood that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contractor. It is further understood that none of the terms or provisions of this Agreement are intended to or shall be deemed to create a partnership, joint venture or joint enterprise between the parties hereto. 12 . 2 Consents. Unless otherwise herein provided, whenever approval, consent, acceptance or satisfaction (collectively, a "consent") is required of a party pursuant to this Agreement, it shall not be unreasonably withheld or delayed. Unless provision is otherwise specified in this Agreement or otherwise required by law for a specific time period, consent shall be deemed given within thirty (30) days after receipt of the written request for consent, and if a party shall neither approve nor disapprove within such thirty (30) day period, or other time period as may be specified in this Agreement or otherwise required by law for consent, that party shall then be deemed to have given its 38 22'714O 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. 12 . 3 Not a Public Dedication. Except as otherwise expressly provided herein, nothing herein contained shall be deemed to be a gift or dedication of the Property, or of the Project, or any portion thereof, to-the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. Except for any portion of the Property which has been conveyed to the City by Developer as provided in this Agreement, Developer shall have the right to prevent or prohibit the use of the Property, or the Project, or any portion thereof, including common areas and buildings and improvements located thereon, by any person for any purpose inimical to the development or operation of the Project as contemplated by this Agreement. Any portion of the Property conveyed to the City by Developer as provided herein shall be held and used by the City only for the purposes contemplated herein or otherwise provided in such conveyance, and City shall not take or permit to be taken (if within the power or authority of the City) any action or activity with respect to such portion of the Property that would deprive the Developer of the material 39 227140 benefits of this Agreement or would materially and unreasonably interfere with the development of the Project as contemplated by this Agreement. 12 . 4 Severability. If any term, provision covenant or condition of this Agreement shall be determined invalid, void or unenforceable by judgment or court order, the remainder of this Agreement shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the relevant circumstances or would frustrate the purposes of this Agreement. 12 . 5 Exhibits. The Exhibits listed in the Table of Contents, to which reference is made herein, are deemed incorporated into this Agreement in their entirety by reference thereto. 12 . 6 Entire Agreement. This written Agreement and the Exhibits hereto contain all the representations and the entire agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, any prior correspondence, memoranda, agreements, warranties or representations are superseded in total by this Agreement and Exhibits hereto. 12 . 7 Governing Law; Construction of Agreement. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance 40 22'7140 with the laws of the State of California. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties hereunder. The captions preceding the text of each Section, subsection and the Table of Contents hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. 12 . 8 Signature Pages. Fox convenience, the signatures of the parties to this Agreement may be executed and acknowledged on separate pages which, when attached to this Agreement, shall constitute this as one complete Agreement. 12 . 9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 12 . 10 Prevailing Party ' s Attorney' s Fees and Costs. If any party to this Agreement shall fail to perform any of its obligations hereunder, or if a dispute arises with respect to the meaning or interpretation of any provision hereof or the performance of the obligations of any party hereto, the defaulting party or the party not prevailing in 41 227140 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 6. 3 hereof. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above-written. DEVE OPER; AHMA .ON COMMER AL DEVELOP ' NT COMP Y, a Cal ' ornia corps ation By: 4 , 4 Its: �/�r 'r By: • ,I;i< PyGr 00/1 - 42 22714© CITY: THE CITY OF PALM DESERT, CALIFORNIA, a municipal corporation organized and existing under the laws of the State of California BY: �✓pia. �,//� Mayor .. Attest: 41, /• City Cleri L62738 [ 14060] 7 43 2-MAY-90 08 : 34 : 07 227140 STATE OF CALIFORNIA ) ss. COUNTY OF LOS ANGELES ) On this o2 day of 1990, before me the undersigned, a Nota Public for the State of California, personally appeared, 6166 0,y A 1-'/mo Ai and .J e r s E • ,.-CDThI 9)9 Yoh , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) who executed the within instrument as S1E/J4_ d (CC / R c . and SCN t oK U (C Ivc-c, , respectively, of the Ahmanson Commercial Development Company, and acknowledged to me that the corporation executed it. WITNESS my hand and official seal . OFFICIAL SEAL r JOANNE J SMITH :�. tv- Notary Public-Calltomla v.' P ---J :-& -+' ,1- LOS ANGELES COUNTY ary Public '�,Zl MY Commission, 7, gE3�� in and or said County and State L62738 [ 1406017 44 2-MAY-90 08 : 34 : 07 2Z'71 () STATE OF CALIFORNIA ss. COUNTY OF RIVERSIDE On this AA- day of , 1990, before me the undersigned, a Not4,ry Public for the State of California,, personally appeared jro u� (U� �}IZ-`c-S , and t\t. L_� Lv , E�\ vL .j known to me to be the Mayor and City Clerk, respectively, of the City of Palm Desert and known to me to be the persons who executed the within instrument on behalf of the City of Palm Desert. WITNESS my hand and official seal. ■ ............ (g). (YO-IJIL ■ .+ OFFICIAL SEAL • • - MARY P. FRAZIER tary Public :� �, NOTARY PUBLIC—CALIFORNIA in and f said County and ' NOTARY BOND FILED IN �a,���� : State : RIVERSIDE COU \ NTY : My Commission Expires Jul ▪.................................. .......r.............. Y 23, 1990 ....................'• L62738 [ 14060] 7 45 2-MAY-90 08 : 34 : 07 22'7140 EXHIBIT "A" Ahmanson Commercial Development-Retail Centers PALM DESERT PROJECT DEVELOPMENT STANDARDS FOR THE PROJECT I . Purpose of Development Standards II . Project Introduction A. Overview and Location B. Site Areas and Statistical Summary III . General Notes and Conditions IV. General Development of Project A. Proposed Uses B. Building Square Footage Limits and Maximum Heights C. Density and Intensity of Use D. Open Space V. Planning Guidelines A. Purpose B. Site Planning and Circulation C. Grading/Drainage/Street Standards D. Landscaping, Walls and Lighting E. Design Concept of Buildings/Parking/ Loading Area F. Utility Services and Structures G. Project and Business Identification VI . Plan Review Requirements A. Purpose B. Development/Precise Plan Review C. Development/Precise Plan Contents 12/07/89 22 140 I . Purpose of Development Standards The purpose of the development standards for the Project is to: 1. Provide the Developer with a planning and development process which will result in a Project that is consistent with the City's General Plan and in furtherance of the goals of the City as set forth in the Agreement. 2 . Provide supplemental criteria for the use, design, density, circulation and development of the Site Areas (as described in II.B hereof) that will result in an aesthetically pleasing, environmentally harmonious and commercially viable product that expands the goods and services presently available to the community. 3 . Ensure that development occurs in an orderly fashion through long-range planning. 4. Encourage development that is operationally functional to both the building operator and the consumer. 5. Provide for the development of the Project in a manner which is consistent with the terms and provisions of the Agreement and the Existing Land Use Ordinances. 22'7140 II . Project Introduction A. Overview The Project presents an opportunity to master plan the remaining large vacant properties within the area of the City subject to the City's Commercial Core Area Specific Plan. The development of the Project in accordance with the provisions of the Agreement and these development standards ensures the preservation of natural open space and furthers the development objectives of the City in an orderly manner. The development of the Project in accordance with the provisions of the Agreement and the development standards provides a number of benefits: 1. It maximizes the potential for high quality economic development of the Commercial Core Area. 2 . It allows for the assemblage of properties into a comprehensive land use plan which eliminates problems that individual and isolated requests for developments might present. 3 . It addresses specific policy recommendations of the Palm Desert Commercial Core Area Specific Plan. 4. It provides for the dedication of hillside preserve to the City and thereby protects and preserves the natural beauty of the hillside areas bordering the Project. 5. It provides for the completion of all necessary signalization and access for Highway 111 from Fred Waring Drive to Town Center Way, as provided for in the Development Agreement. 227140 B. Site Areas and Statistical Summary The Project is divided into 6 Site Areas. The Land Use Development Plan attached hereto as Annex 1 depicts each Site Area. Site Area 1 Location: SWC Highway 111 and El Paseo, SE of Palm Valley Flood Channel Aggregate Acreage: 12 . 3 Site Topography: generally flat Site Areas 2 and 3 Location: Fronting Highway 111 between Fred Waring Drive and Palm Valley Flood Channel Aggregate Acreage: 51.8 Site Topography: generally flat sloping towards southwest Site Area 4 Location: SEC Fred Waring Drive and Town Center Way Aggregate Acreage: 8. 5 Site Topography: generally flat Site Area 5 Common Name: Sun Lodge Colony Location: SWC El Paseo and Larkspur Lane Acreage: 10. 3 acres Site Topography: generally flat with slight slope up to the south Site Area 6 Location: West of Painters Path (1988 alignment) , between Fred Waring Drive and the Palm Valley Flood Channel. Acreage: 54 . 9. Site Topography: partially sloping and mountainous 22'7140 III. General Notes A. Purpose This section III is included to: (i) provide certain definitions for use with respect to this Exhibit "A" ; (ii) to describe the relationship of this Exhibit "A" to the Exisiting Land Use Ordinances and the Building Ordinances; and (iii) provide other miscellaneous provisions necessary to effectuate the purposes and intent of the Agreement. B. General Notes 1. Terms contained in this Exhibit "A" shall have the same meaning as defined in the Development Agreement unless otherwise defined herein. 2 . Except as otherwise provided in this Exhibit "A" and in the Agreement, the development of the Project shall be in accordance with, and the development of the Project during the Term shall be governed by, the Existing Land Use Ordinances. 3 . Except as otherwise provided in this Exhibit "A" and in the Agreement, all construction of improvements upon the Property shall conform to the building and construction standards established by the Building Ordinances. 4 . Whenever the provisions of this Exhibit "A" conflict with the provisions of the Existing Land Use Ordinances or the Building Ordinances the provisions of this Exhibit "A" shall be deemed to control to the extent necessary to effectuate the purposes and intent of the Development Agreement. 5. The maximum aggregate allowable building square footage for the Project shall be 846,700 s. f. . 227140 6. Development in Site Areas 2 , 3, and 4 may accommodate all uses permitted in the PC-3 zone as identified in the Existing Land Use Ordinances. 7 . Development in Site Area 1 may accommodate all uses permitted in the Office Professional Zone plus retail and restaurant uses as otherwise permitted in the PC-3 Zone. The retail and restaurant uses shall not exceed 20% of the approved gross building area. 8. Development on Site Area 4 : a) Special consideration shall be given to the design of the structures on Site Area 4, to assure the development shall be compatible with developments east of Fairhaven Drive on the southside of Fred Waring Drive. b) Unless specifically modified by the city council as part of the development review process, the first 100 feet of this site adjacent to Fred Waring Drive shall be restricted to office professional use. 9 . Development in Site Area 5 may accommodate all uses permitted in the C-1 zone as identified in the Existing Land Use Ordinances. 10. Parking requirements for layout and ratio for Site Area 2 shall be based upon a formula of 5. 5 parking stalls for each 1000 square feet of gross leaseable area. The standards may be reduced in the following ratio percentage: 1000 car parking area, 10% 1500 car parking area, 12% 2000 car parking area, 14% Over 2500 car parking area up to 15%, subject to justification of the findings as set forth in Section 25. 58 . 311 (B) of the Existing Land Use Ordinances. 11. Parking requirements for layouts, sizes, and ratios for Site Areas 1, 3 , 4, and 5 shall be based upon the requirements for general retail and office use as described in the Existing Land Use Ordinances. 22'7140 12 . Changes in the location or configuration of the Site Areas (and the "Buildable Zones" within such Site Areas, as designated on the Land Use Development Plan as attached hereto) may occur as specific site plans are developed. Any such changes will be subject to the prior approval of the Community Development Director of the City. 13 . Tentative Tract Maps may be filed and approved subject to consistency with the Land Use Development Plan. 14 . Location and plans for any required water reservoirs or booster stations shall be submitted to the Community Development Director for approval. Said facilities may be located in the natural open space area indicated in the Land Use Development Plan, subject to approval of the Community Development Director and the Coachella Valley Water District. 15. Except as otherwise provided herein, all approvals of the City, the Community Development Director, or the Planning Commission of the City required as provided herein shall be based upon the criteria and standards for such approval set forth in the Existing Land Use Ordinances and the Building Ordinances. 16. Prior to the issuance of any building permit with respect to any Site Area, a precise development plan for the development of an individual Site Area, or a combination of Site Areas, shall be submitted to and shall be approved by the Planning Commission if such precise development plan is consistent with the Land Use Development Plan and complies with the provisions of the Agreement. 17 . The Developer shall be permitted to establish a Project office on Site Area 5 upon execution of the Agreement by the City. 18 . Site Area 6 is designated as natural open space on the Land Use Development Plan and shall be dedicated to the City. Such dedication shall be the only open space dedication or reservation of a portion of the Property for public purposes which will be required by the City with respect to the development of the Project. 227140 19. Sizing of all backbone utility facilities shall be predicated on the maximum density proposed for the Project and shall not be required to be oversized to accommodate uses other than with respect to the Project. 20. The major access to Site Area 2 shall be via a signalized intersection on Highway 111 as indicated on the Land Use Development Plan. 21. All improvements required as Exactions pursuant to the attached Development Agreement shall be constructed by Developer congruent with each phase of the Project as such improvements relate thereto, and are necessary with respect to such phase of project development. 22 . The terms indicated on the Land Use Development Plan shall have the following meanings: A. Building Zone: The approximate area in which the buildings within the applicable Site Area will be located. B. Parking/Landscape Zone: The approximate area in which the majority of parking stalls within the applicable Site Area will be located. C. Gateway Entry: An identification element for the Project or the City, or both, consisting of any combination of signage, landscaping, walls, architectural features or lighting. IV. General Development of the Project A. Proposed Uses Site Area 1: Any or all uses permitted in the Office Professional Zone. In addition, restaurant and retail uses will be permitted not exceeding 20% of the approved gross building area. Site Areas 2 , 3 , & 4 : Any or all uses permitted in the PC-3 zone of the Existing Land Use Ordinances. Site Area 5: Any or all uses permitted in the C-1 zone of the Existing Land Use Ordinances. Site Area 6: Natural open space and such related uses as set forth in Section D below and as indicated in the Land Use Development Plan. 22'7140 B. Maximum Building Square Footage Limits and Maximum Heights Site Area Maximum S.F. Height Limit 1 100,000 per applicable Existing Land Use Ordinances 2 479,400 per applicable Existing Land Use Ordinances 3 20, 000 per applicable Existing Land Use Ordinances 4 80, 300 per applicable Existing Land Use Ordinances 5 167, 000 per applicable Existing Land Use Ordinances C. Density and Intensity of Use The Developer shall be entitled to develop each of the Site Areas to the maximum building site coverage percentage provided in the applicable Existing Land Use Ordinance as it pertains to the individual Site Area. The Land Use Development Plan depicts the eligible building areas within each Site Area. In the event any Site Area is developed so as to utilize less than the total maximum square footage listed for any such Site Area in paragraph "B" above, then the differential between the Site Area square footage which is actually utilized and the applicable maximum square footage listed above shall be transferable in whole or in part to any other Site Area (other than Site Area 6) , provided that the resulting maximum square footage with respect to any such Site Area shall not exceed the maximum square footage of use permitted with respect thereto by the Existing Land Use Ordinances. Buildings shall be reasonably distributed within the Site Areas to permit ease of vehicular and pedestrian access, circulation and egress and for proper operational building service requirements. D. Open Space Site Area 6 shall be "natural open space" as defined in the Existing Land Use Ordinances. Site Area 6 is established for the preservation of open space and significant natural resources. The intent of this area is to protect, to the extent practicable, the resources of notable scenic, natural, geologic or historical value. 227140 Uses Permitted: a. Bicycling and hiking trails, and directional trail signs; b. Local and buffer greenbelts; c. Wildlife preserves and sanctuaries; d. Archaeological sites; e. Historical preserves; f. Screening, walls, and fencing as may be required by the Project. g. Forest maintenance/ranger stations h. Water reservoirs,or pumping stations as may be required by the Project. Site Development Standards Site development standards in the open space category shall be in accordance with Existing Land Use Ordinances. V. Planning Guidelines A. Purpose Except as otherwise provided in the Agreement or this Exhibit "A", the development of each Site Area within the Project shall be subject to and controlled by the design and development guidelines established by the Existing Land Use Ordinances and the Building Ordinances. The following guidelines are intended to be supplemental to those established by the Existing Land Use Ordinances and the Building Ordinances and to the extent they are inconsistent or in conflict with the guidelines established by the Existing Land Use Ordinances and the Building Ordinances, these guidelines shall be deemed controlling. Subject to the foregoing, all development plans for each Site Area shall comply with the following guidelines. B. Site Planning and Circulation Access to the various Site Areas within the Project is to be provided from the adjacent streets and Highway 111 as depicted on the Land Use Development Plan. Interior Site Area vehicular circulation shall be patterned to permit ease of ingress and egress as well as the distribution of buildings in relation to parking areas to allow for the dispersion of vehicles and pedestrians throughout each Site Area. Each Site Area shall have 227140 clearly defined pedestrian routes into and throughout the Site Area in order to minimize potential points of conflict between pedestrians and vehicles. Individual Site Area entries shall occur at the designated locations on the Land Use Development Plan. Building setbacks shall be as depicted on the Land Use Development Plan. C. Grading/Drainage Grading design shall reinforce the architectural and landscape designs in the following ways: A. Assist in screening parking, loading and service areas. B. Reduce the perception of height and mass of large buildings. C. Provide a reasonable transition from the street to the parcel. The applicant may obtain permits for rough grading after approval of conceptual grading plans by the Director of Public Works and the Director of Community Development. Grading shall be permitted outside of an area of immediate development if consistent with the conceptual grading plan. Drainage of surface parking areas and roof areas shall terminate at an underground storm drain system in the public streets. Points of connection will be provided for each Site Area. D. Landscaping Landscape materials shall enhance the major architectural design elements through the coordinated use of indigenous and introduced plant species, lighting, massing, etc. Landscaping shall be in accordance with a Landscape Concept Plan as provided in the Existing Land Use Ordinances. The Landscape concept Plan will be submitted as part of the precise plan at the time development of a Site Area is proposed. The landscape framework will visually bind the Site Areas together while remaining compatible with the desert environment. 22'7140 E. Design Concept of Buildings/Parking/Loading Areas The architecture of the Project shall possess an underlying compatibility among the various buildings through the use of similar materials, finishes, colors and amenities while allowing a degree of flexibility for individual Site Area expression and identity. All building designs shall be aesthetically agreeable with the desert environment. Parking requirements for layouts, sizes, and ratios for Site Areas 1, 3, 4 and 5 shall be based upon the parking requirements for Existing Land Use Ordinances for general retail and office. Site Area 5 shall provide 200 public parking spaces in addition to the number of spaces required by the C-1 zone under the Existing Land Use Ordinances for the building area. Loading docks, service delivery areas, where provided, are required to be screened, recessed, and/or enclosed so as not to be visible from adjacent streets and properties. Loading, service and delivery areas shall not encroach into any setback areas. F. Utilities and Utility Structures Public services and utilities will be provided by the following public/private agencies unless otherwise approved by the Director of Community Development: a. Water - Coachella Valley Water District b. Sewer - Coachella Valley Water District c. Flood Control - Coachella Valley Water District d. Electricity - Southern California Edison Company e. Natural Gas - Southern California Gas Company f. Telephone - General Telephone Company g. Schools - Palm Springs and Desert Sands Unified School District h. Public Parks - Coachella Recreation and Parks District i. Fire Protection - Riverside County Sheriff Department j . Police Protection - Riverside County Sheriff Department k. Solid Waste Disposal - Riverside County Road Department and Palm Desert Disposal Services 1 . Television - Coachella Valley Television 22'714O All utilities shall be installed and maintained underground. Utility design shall not place excessive burdens upon offsite systems. Temporary overhead power and telephone facilities are permitted during construction only. Any device for transmission or reception of communication signals shall be screened. Rooftop devices shall not extend above the building's highest architectural element or be visible within a horizontal line of sight. Ground-mounted devices shall be screened from view from adjacent streets and property. Outdoor trash areas shall be visually screened by a 6-ft.-high (minimum) , non combustible enclosure constructed of the same materials and finishes as the adjacent building. Enclosures shall be designed and located so as not to be highly visible from adjacent streets and property. G. Project and Business Identification Project and City entry statements composed of signage, landscaping, architectural features, or a combination of same, will be depicted on the landscape concept plan. The purpose of this element is to announce both the Project, the entry to the City and/or the gateway to the El Paseo district in a manner that furthers the sophisticated image of the City. VI . Plan Review Requirements A. Purpose This section is established to ensure that the overall purpose and intent of the Project is satisfied and implemented in an orderly manner. B. Development/Precise Plan Review When the actual development of a Site Area is proposed, an application for approval of a precise plan shall be filed with and shall be approved by the Planning Commission if such precise plan is consistent with the Land Use Development Plan and complies with the provisions of the Agreement and this Exhibit "A" . A precise plan may cover one or more Site Areas of the Project. 22'714f) C. Precise Plan Contents Subject to the provisions of the Agreement and this Exhibit A the Precise Plan shall include the requirements of Section 25. 73 . 011 of the Existing Land Use Ordinances. .. \ J \- / J �_- __.- L I '---� O _ . ... . ��r----7 — Ai,1:20. h aoe•fe — �� nn,K«v. '—T al fi K�ftir+�� i�Ri� r�'A .tirr+or rr ] .may I, rn i cox II Wave,:raw;r*JP T bww+Na /*''~7 r• r 12,m S Boo cum co ezwir LP 44171041/ammo. I1 • (.D'"°uc"'°' a 8 ® y() m m 8 M'1406,717.,rf CM) . ; • ' 8 i r•..:18(.0-LP 122.(AP) It' \ . sovdill Djs ' / • Parana LL 11/ / \_...% JAMYfL Z i'l rrr� �' ; ) I / Z Pate )*\+-r k• / 1 fATgV r , pit* / . (77-ji (3 1 A�/6V fi6M p0sT / ` :� TOW c R2WN C �, l k MR/n6 / .• \ EMT \ 9 /. �\ /Mint(D!!) • % i )1-i ,j • SITE AREAS \MO •V /0/ .17. .' /brbse NK/o I PARCEL ACREAGE BUILELDING AREA \ �, AREA Q /�� /ro,oa•i/ Nib `/ ` ' � AREA Q fl•• en;e•• �� /// / , �� . •\ AREA 0 ►•0 ktao0 \ Q G Pourrter AREA 1 S. agfe• \ .. .• % er.I+tr ( •' . wl AREA gS /d.P /o4ea s\ � �- y 3' ,,J° \ SUB TOTAL •!s Ifs foe tr \ /,� a y AREA {� F f \ / L �� l , \ . HJL{d•Pre,ery11`• 7 ;1. J d TOTAL tIM. *Moll! //414.. ::: Arun r 4 ��� G,.. AM 43friffirr e . \ e• a.... \ \� ` �• O .Q cr. 0 y�• \H-- Ail nor!/ • LL Mn- I.A.OK•t,OW DIPICTID OM 1MII K.•M•II 10• • \\ \` -,1 4C :::::IIINl::Oft!AND TO ON AMC•Ut O \ '�?`S a b �v J/MIY• �w�naem uI.��Dms e/?AIM/M.wwDn4 • �, 1 34>mp/pA� cao�y rxU7'A&aft.I451Y � _ N. • \t:..\,.. M•&at Ro ormnha .tows..- _dos /Rw mime- " N - ( \J` ~ .same n, aem•' 01;;1 l• AHMANSON COMMERCIAL 0 Alarm&Porter O DEVELOPMENT COMPANY. PALM DESERT ArchieecU _ DeTDDQl U. RETAIL CENTERS LAND USE DEVELOPMENT PLAN IILTL.l :Jr'• • EL PASEO f D U <J 0 1iG C0I) 00000000 O OD OT or 0 —1c, • o IC' o II' z0 bl�u+Mlr TGv� O IC 'Z'• 3 It., us 0) C I) I� 1 — — IA.•I� __ —yam fIL IL 0 II.IIII T I+ i m 1.� t7 N < ;. III t; kk Z I PAIRrW Tale r� 4 tn 11 • t is 14 I WO1I.V!AMA SHADOW MOUNTAIN DRIVE • w1 l4Ml1l Olt 11111 MIKIII 0011.4 I1101 11I tea KIWI* I14M11I NIl 11Mu 1u 1..1r..411I NIIMI TM 11111N IM11I1411111W NMIIMIIY • I • 1/01 11W111111111 1 N N 4,1 zAlAHMANSON COMMERCIAL AIinundh11.1 Ire DEVELOPMENT COMPANY. PALM DESERT Q� Aa;, RETAIL CENTERS LAND USE DEVELOPMENT PLAN U-�—, „._�,,,, A/1LL/,111I O 22 140 EXHIBIT "B" THE PROPERTY INDIVIDUAL SITE AREAS ARE LOCATED AS FOLLOWS: Site Area 1: The property bordered by Highway 111, El Paseo, Painters Path (as realigned) and the Palm Valley Flood Channel . Site Area 2 : The property bordered by Highway 111, Fred Waring Drive, the boundary of Site Area 6 and the Palm Valley Flood Channel . Site Area 3 : The property bordered by Site Area 6, Mollers Garden Center and Painters Path. Site Area 4 : The property bordered by Town Center Way, Fred Waring Drive, Fairhaven and a South property line. Site Area 5 : The property bordered by El Paseo, Larkspur, Shadow Mountain Drive and San Pablo. Site Area 6 : The property bordered by Site Area 2 , Site Area 3, and property lines as depicted on the Land Use Development Plan. 1 22'714O EXHIBIT "B" Continued THE FOLLOWING REAL PROPERTY IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: The following legal description encompasses the entirety of Site Area 1 on the Land Use Development Plan. Site Area 1 Parcel 1 of Parcel Map No. 25875, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 163, Pages 34 and 35 of Parcel Maps, in the Office of the County Recorder of said County. The following legal description encompasses the entirety of Site Area 2 on the Land Use Development Plan. Site Area 2 PARCEL 1 : Lots 1 through 75 inclusive and Lots A, B and C of Tract 4489-1, in the City of Palm Desert, County of Riverside, State of California, as per Map Recorded in Book 79 , Pages 38 through 42 inclusive of Maps, in the Office of the County Recorder of said County. PARCEL 2 : Lots 1 through 175 and Lots A, B and C of Tract 4489, in the City of Palm Desert, County of Riverside, State of California, as per Map Recorded in Book 83, Pages 34 through 40, inclusive of Maps, in the Office of the County Recorded of said County. AND Parcel 1 of Parcel Map 24090, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 163, Pages 30 through 33, inclusive of Parcel Maps, in the Office of the County Recorder of said County. 2 22''140 The following legal description encompasses the entirety of Site Area 3 on the Land Use Development Plan. Site Area 3 Parcel 3 of Parcel Map 24090 in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 163, Pages 30 through 33, inclusive of Parcel Maps, in the Office of the County Recorder of said County. The following legal description encompasses the entirety of Site Area 4 on the Land Use Development Plan. Site Area 4 Parcel 2 of Parcel Map 19978, in the City of Palm Desert, County of Riverside, State of California, as per Map Recorded in Book 124, Pages 4 and 5 of Parcel Maps, in the Office of the County Recorder of said County. The following legal description encompasses the entirety of Site Area 5 on the Land Use Development Plan. Site Area 5 Parcels 1 and 2 of Parcel Map 4655, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 7, Page 42 of Parcel Maps, in the Office of the County Recorder of said County. The following legal description encompasses the entirety of Site Area 6 on the Land Use Development Plan. Site Area 6 Parcel 2 of Parcel Map 24090, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 163, Pages 30 through 33, inclusive of Parcel Maps, in the Office of the County Recorder of said County. M27568[ 14060]7 3 227140 EXHIBIT "C" PHASING SCHEDULE Phase Entitlement/Maximum Rate of Development Activity I . Execution of Agreement Agreement authorized, executed and Developer may obtain all necessary delivered to Developer by City of approvals, consents, permits, or Palm Desert other entitlements for the con- struction and occupancy of not less than 275, 000 square feet of gross floor area within any designated Site Area or combination of Site Areas. II . Dedication of Open Space Conveyance of property described Developer may obtain all necessary in Exhibit "G" from the developer approvals, consents, permits, or to the City. other entitlements for the con- struction and occupancy of not less than 200, 000 square feet of gross floor area within any designated Site Area or combination of Site Areas. III . Commencement of Demolition The completion of demolition of Developer may obtain all all existing on-site buildings necessary approvals, consents, and improvements located on permits, or other entitlements on-Site Areas 2 and 5. for the construction and occu- pancy of not less than 204 , 700 square feet of gross floor area within any designated Site Area or combination of Site Areas. IV. The Granting of Easement The granting of an easement for Developer may obtain all the temporary parking facilities necessary approvals, located on Site Area 5. consents, permits, or other entitlements for the con- struction and occupancy of not less than 167, 000 square feet of gross floor area within any designated Site Area or combination of Site Areas. 227140 EXHIBIT "D" EXACTIONS As provided in the Agreement, the following constitutes those Exactions which may be imposed by the City with respect to the development of the Project. The following Exactions include all of the mitigation measures with respect to the Project for which the Developer will be responsible for satisfying and which were identified in the Environmental Impact Report (the "EIR" ) pertaining to the Project and certified as complete by the City on November 16 , 1989 . Unless otherwise provided for in this Exhibit "D" , all Exactions shall be constructed or provided by the Developer in conformance with the requirements of the Existing Land Use Ordinances . Those Exactions identified herein, while intended to be specific in nature, will remain subject to specific Project review as provided in Exhibit "A" . The City and the Developer will in good faith attempt to agree as to any modifications of the following Exactions which are requested by the City as a result of such specific Project review. 1 . Street Improvements All street improvements are subject to the review and approval of construction documents pertaining thereto by the City of Palm Desert Department of Public Works . All of the following street improvements are to be located adjacent to the Project Site Areas as indicated below. A. Painters Path -- street improvements including, the curbs, gutters, sidewalks, bus stations, street lighting and landscaping, all as required by the EIR. (Site Area 1) B. West (mountain) side of Highway 111 between Fred Waring Drive and El Paseo -- completion of widening of Highway 111 with deceleration lanes, completion of sidewalks, bus stations, street lighting, striping, and median modifications all as required by the EIR. (Site Areas 1 & 2 ) C. South side of El Paseo between San Pablo Avenue and Larkspur Lane -- completion of all pedestrian amenities including street 1 227140 lighting, landscaping, bus stations, sidewalks, benches, and decorations . (Site Area 5) D. West side of Larkspur Lane between El Paseo and Shadow Mountain Drive -- completion of all pedestrian amenities including street lighting, landscaping, and sidewalks . (Site Area 5 ) E . East side of San Pablo Avenue between El Paseo and Shadow Mountain Drive -- completion of all pedestrian amenities including street lighting, landscaping, and sidewalks . (Site Area 5) F. North side of Shadow Mountain Drive between Larkspur Lane and San Pablo Avenue -- completion of all pedestrian amenities including street lighting, landscaping, and sidewalks . (Site Area 5) G. Fred Waring Drive west of Highway 111 -- completion of widening or street modifications including grading, paving, striping, curbs, gutters, bus stations, sidewalks, street lighting, all as required by the EIR. (Site Area 2) H. West side of El Paseo between Highway 111 and Painters Path -- completion of all pedestrian amenities including street lighting, landscaping, sidewalks, and benches . (Site Area 1) I . Following the commencement by the City of proceedings for the abandonment of Painters Path northwest of the Palm Valley Flood Control Channel ( from Fred Waring Drive to the Palm Valley Flood Control Channel) as a public road, the Developer will submit for the approval of the City such agreements as are necessary to insure the continuation of any required appurtenant public utility easements or maintenance rights, or non-exclusive easements for right of access, and, following the completion of such abandonment proceedings, the Developer will provide for the demolition of such portion of Painters Path and shall also provide for the abandonment of such public utility easements 2 227140 or maintenance rights which are not the subject of the above-referenced agreements . (Site Area 2 ) J. East side of Town Center Way between Fred Waring Drive and Town Center Fire Station -- Completion of all pedestrian amenities including street lighting, landscaping, and sidewalks . (Site Area 4 ) K. South side of Fred Waring Drive between Town Center Way and Fairhaven Drive -- Completion of all pedestrian amenities including street lighting, bus stations, and landscaping. (Site Area 4 ) L. West side of Fairhaven Drive between Fred Waring Drive and the southerly property boundary -- Completion of widening or street modifications including grading, paving, striping, curbs, gutters, landscaping, street lighting, and sidewalks . (Site Area 4 ) 2 . Traffic Signals All of the following traffic signal improvements and signal modifications are to be located adjacent to Project Site Areas as indicated below. As used in this Paragraph 2, the "related improvements " shall mean those improvements identified by the City of Palm Desert Department of Public Works as necessary to implement the traffic signal modifications to which they relate. A. New traffic signal and related improvements at the intersection of Highway 111 and entry road for Site Area 2, all as required by the EIR. B. New traffic signal and related improvements at the intersection of El Paseo and Larkspur Lane, all as required by the EIR. (Site Area 5) C. Traffic signal modifications and related improvements at El Paseo and San Pablo Avenue, all as required by the EIR. (Site Area 5) D. Traffic signal modifications and related improvements at Highway 111 and El Paseo/Town Center Way, all as required by the EIR. (Site Ar a 1) 3 221140 E . Traffic signal modifications and related improvements at Highway 111 and Fred Waring Drive, all as required by the EIR. (Site Area 2 ) 3 . Storm Drains A. Construction of the Joshua Road storm drain facilities in Fred Waring Drive from Painters Path to Highway 111 and from Highway 111 to the Palm Valley Flood Channel . The City and the Developer hereby agree that upon the Developer's completion of construction of such facilities , the City shall promptly reimburse the Developer for all costs incurred with respect thereto (including, but not limited to, the costs of engineering, design, construction, acquisition of rights of access and easements of use, and any studies required for and related to such improvements) in an amount equal to the amount by which the aggregate of such costs exceed the aggregate amount of drainage fees the Developer would be required to pay with respect to Site Area 2 pursuant to the Existing Land Use Ordinances . To the extent that the Developer is not fully reimbursed for such costs at the time of completion of such construction, the City shall provide to the Developer a promissory note reasonably acceptable in form to the Developer and which shall be in the principal amount of such unreimbursed costs which shall mature an the fifth anniversary date of the date of completion of the construction and which promissory note shall bear interest on the outstanding principal amount at a floating rate equal to the Bank of America prime rate plus one percent, as such rate shall be from time to time announced by the Bank of America. The City shall make such reimbursement to the Developer from monies available therefor from the City's Drainage Fund or any other legally available source of funds . B. Construction of all necessary drainage systems with respect to the Project and the facilities necessary to connect such systems to the existing underground storm drain systems in the public streets, all as required by the EIR. 4 22'7140 4 . Transit A. Construction of bus turnouts and shelters for the Project, all as required by the EIR. B. Provide a Transportation Demand Management Study as required by the EIR. C. The Developer will participate in a people mover/mass transit program which may impose assessments on Site Areas 1, 2, 3 and 4 if all of the following conditions are satisfied: (i) The City undertakes and completes a people mover/mass transit study with respect to the proposed program which reasonably establishes a public need for the construction of a people mover/mass transit system within the Commercial Core Area of the City and identifies a reasonable and feasible methodology for financing the construction and operation of the system; and ( ii) Following the completion of the aforesaid study, the City establishes a people mover/mass transit program consistent with the findings and recommendations of the study; and (iii) The construction of the people mover/mass transit system would be financed in part through the creation of a special assessment district encompassing at least the properties identified on Annex 1 attached to this Exhibit "D" , and such special assessment district shall issue bonds or otherwise incur indebtedness (a) secured by assessments on all such properties upon which commercial and/or retail facilities (other than office or professional facilities) are to be constructed and (b) in a principal amount not to exceed 25% of the total cost of the construction of such people mover/mass transit system; provided, however, that ( i) the total aggregate amount of such assessments on all such 5 227140 properties shall not exceed $5, 000, 000 and ( ii) the principal amount of such bonds or other indebtedness shall be amortized over a minimum 20 year period (provided, however, that the Developer and the owners of all other property within the special assessment district shall have the right to prepay all such assessments in whole or in part and thereby cause the early redemption of such bonds or the early retirement of such other indebtedness) ; and ( iv) The proportionate amount of such assessments to be imposed on each such property within the special assessment district shall be determined on the basis of the proportionate benefit to be derived by each such property from the construction and operation of the system. D. With respect to Site Areas 1, 2 , 3 and 4, the Developer may at its option, and in the exercise of its sole discretion, elect to satisfy its obligations under Paragraph C for any particular Site by paying to the City, within 180 days of the date of execution of this Agreement, a mass transit fee equal to and not to exceed the following amounts with respect to the following Site Areas : Site Area 1 : $ 50, 000 . 00 Site Area 2 : $1, 198,500 . 00 Site Area 3: $ 50, 000 . 00 Site Area 4 : $ 200, 750 . 00 Total: $1,499,250 . 00 The City and the Developer agree that if any or all of the foregoing fees are paid by the Developer, the corresponding Site Area(s) shall not be subject to any further fee or assessment with respect to the mass transit program and shall not be included within the assessment district described in Paragraph C above. In addition, the amount of any such fee or fees paid by the Developer shall reduce in an equivalent amount the construction costs of the mass transit system which would otherwise have been paid from the proceeds of the assessments as described above. 6 22'7140 The Developer agrees that the amount of any mass transit fee paid by the Developer pursuant to this paragraph will not be refundable to the Developer if the mass transit program established pursuant to subparagraph (ii) above is not constructed so long as the amount of any such fee is set aside or used by the City for the purpose of improving the mass transportation system within the City, general traffic improvements, or for the general benefit of the Highway 111 Commercial Core Area. 5 . Public Parking A. The Developer will provide to the City a temporary non-exclusive easement on Site Area 5 for use by the City for 200 public parking spaces . Such easement shall be located within the area designated as the "Parking Zone" on Site Area 5 as depicted in the Land Use Development Plan attached to Exhibit "A" hereto. Such easement shall remain in existence until such time as a specific development plan for Site Area 5 has been submitted by the Developer to the City and has been approved by the City. The City shall be solely responsible for the construction and maintenance of any public parking improvements to be located on such easement and the Developer shall not be responsible for any costs associated therewith. In addition, the City shall reimburse the Developer for all costs incurred by the Developer in acquiring and maintaining such policy or policies of insurance ( including liability insurance) with respect to the use of such parking facilities as are customary. Prior to the granting of such easement, the City and Developer will in good faith negotiate and enter into an agreement which will, among other things, define the boundaries of such easement within the Parking Zone of Site Area 5, the duration of the easement and the conditions and restrictions with respect to its use; all as contemplated by the Agreement and this Paragraph 5A. 7 227140 B. In conjunction with the construction of the private commercial/retail facilities to be located on Site Area 5, the Developer shall provide 200 additional parking spaces above project parking requirements for Site Area 5 as required by the Existing Land Use Ordinances for use as public parking spaces (as such term is defined in Exhibit "H" to the Disposition and Development Agreement) . Prior to the commencement of construction of the commercial/retail facilities to be located in Site Area 5, the Developer and the City shall in good faith negotiate and enter into an agreement which will provide, among other things, for (i) the location of such parking spaces, ( ii) the improvements associated therewith, ( iii) the means of access by the public, ( iv) the conditions and restrictions with respect to the use of such parking spaces, and (v) the timing of the construction of such spaces . It is the intent of the Developer and the City that, subject to the provisions of the Disposition and Development Agreement pertaining to the reimbursement of the Developer for the costs of certain public facilities, the Developer will pay all costs of constructing such public parking spaces . 6 . Open Space Developer shall dedicate to the City of Palm Desert that property described in Exhibit "G" in the Agreement for use by the City as open space. 7 . Housing The Developer will pay a housing mitigation fee for each Project Site Area at the time of building permit issuance with respect thereto. The proceeds of such fees shall be used by the City, along with other revenues of the City, to address the very low, low and moderate income housing needs generated by the development of the Project Sites consistent with the housing programs identified or to be identified in the housing element of the City's General Plan. Such fee shall be in the amount of $1 . 00 per square foot of building floor space for mixed commercial/retail development and $ . 50 per square foot of building floor space for 8 227140 professional office development. This fee shall be payable by the Developer only if a similar fee equal to or greater than this fee will be required by the City with respect to all other commercial development within the City. In no event and under no circumstances will such fee with respect to any Site Area exceed in the aggregate the following amounts per Site Area: Site Area 1 : $ 60, 000 . 00 Site Area 2 : $479 , 400 . 00 Site Area 3 : $ 20, 000 . 00 Site Area 4 : $ 80, 300 . 00 Site Area 5 : $167 , 000 . 00 Total : $806 , 700 . 00 8 . Fees A. T.U.M.F. Fees B. Signalization Fee C. Drainage Fees D. Art in Public Places Fees E. The usual and customary fees of general application charged for processing of applications for permits and approvals pertaining to the development of the Project. M01770 [ 14060] 7 9 22'7140 . I 4 . 4170,1430.4k 4‘,1 I • _ , / . ., : .4•'•••••4 *fro,!. e• • tit ' 4 • 41.0 .4„,,,_ 4. . • • e..... Aka r----!:, ' - 7-. .••.2. ' , , .4 9 --. .•%St.4 •. . -,-- — ' f 1t - _ 1 ..,,``~ _ ♦�. i :• • •• . j— _ - -j ' ----7/7::"=".... •"'••• ...— 7•3 • r • ,41,6* 4: ' , -Y'• -••••' ,-,<,.L. :.--7-______: --- 1 . I . . ♦ �77.7- --- Imo, -�- Imo^ I / =....-,,-..-.-.r.. ... l' 1 : 'I, : / / 1 r- --il L-_-_, .------7-,'.,. .._____..._ OM , , , , , , , •• ::31 ! fI` `�'. I :ti • r - _ . P........ �_.• • Sql 1 41I -H """-; �I J II I 1 1 �-� -ram ' '.. ,• III i •=1•- - • 6'�• ��.. 1 ( 1 I I I 111 1 1 1 � I I I _ I 113 '�i % \1 , , . �i .- �- �� i- �= ® / 1 I I t I 1� I ( I 17.7� 1-L,_. 11 _ =mac+ , / / I � � I I I,-��L. U ( I 1 1 r'? 1 i i I'-1 L.�i�11 •-_--• i./ • , g l 7 22'7140 EXHIBIT "E" THE PUBLIC FACILITIES The City and the Agency desire to provide or to cause to be provided the following public improvements to service property within and outside of the Project . 1 . The Developer will provide to the City a temporary non-exclusive easement on Site Area 5 for use by the City for 200 public parking spaces . Such easement shall be located within the area designated as the "Parking Zone" on Site Area 5 as depicted in the Land Use Development Plan attached to Exhibit "A" of the Development Agreement. Such easement shall remain in existence until such time as a specific development plan for Site Area 5 has been submitted by the Developer to the City and has been approved by the City. The City shall be solely responsible for the construction and maintenance of any public parking improvements to be located on such easement and the Developer shall not be responsible for any costs associated therewith. In addition, the City shall reimburse the Developer for all costs incurred by the Developer in acquiring and maintaining such policy or policies of insurance (including liability insurance) with respect to the use of such parking facilities as are customary. Prior to the granting of such easement, the City and Developer will in good faith negotiate and enter into an agreement which will, among other things, define the boundaries of such easement within the Parking Zone of Site Area 5, the duration of the easement and the conditions and restrictions with respect to its use; all as contemplated by the Agreement and this Paragraph 1 . 2 . In conjunction with the construction of the private commercial/retail facilities to be located on Site Area 5, the Developer shall provide a minimum of 200 public parking spaces on Site Area 5 . For the purposes of this Exhibit "E" , the term "public parking spaces " shall mean those parking spaces which: (i) are designated by the Developer as available for parking by the general public; (ii) are not designated by the Developer for preferential or exclusive use by patrons or employees of the private commercial/retail facilities to be constructed on Site Area 5; and ( iii) may be used by the general public for parking during normal business hours without the payment of fees or charges for such 1 227140 parking imposed by the Developer. Prior to the commencement of construction of the commercial/retail facilities to be located in Site Area 5, the Developer and the City shall in good faith negotiate and enter into an agreement which will provide, (among other things) for ( i) the designation and location of such public parking spaces , ( ii) the improvements associated therewith, ( iii) the means of access by the public, ( iv) the conditions and restrictions with respect to the use of such public parking spaces, and (v) the timing of the construction of such public spaces . The Developer is not obligated to but may, in its sole discretion, provide for more than the required 200 public parking spaces, and to the extent it does so, all of the costs incurred by the Developer with respect to such additional public parking spaces shall be reimbursed to the Developer by the Agency in the same manner and to the same extent as those costs incurred by the Developer with respect to the required 200 public parking spaces . M06323[ 1406011 2 22' i40 EXHIBIT "F" DISPOSITION , DEVELOPMENT AND IMPLEMENTATION AGREEMENT 22 71,10 EXHIBIT "G" THE PROPERTY TO BE DEDICATED TO THE CITY FOR OPEN SPACE The following legal description encompasses Site Area 6 on the Land Use Development Plan. Site Area #6 The following described real property in the City of Palm Desert, County of Riverside, State of California. Parcel 2 of Parcel Map 24090 in the City of Palm Desert, County of Riverside, State of California as shown by Map on file in Book 163 , Pages 30 thru 33 inclusive of Parcel Maps, in the office of the County Recorder of said County. 227140 EXHIBIT "H" RECORDING REQUESTED BY, AND WHEN RECORDED MAIL TO: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attn: City Clerk The Undersigned declares this document is recorded at the request of and for the benefit of the City of Palm Desert and therefore is exempt from the payment of the recording fee pursuant to Government code § 6103 and from the payment of the Documentary Transfer Tax pursuant to Revenue and Taxation Code § 11922 . (Above Space for Recorder's Use) NO RECORDING FEE PER NO CONSIDERATION GRANT DEED GOVERNMENT CODE 6103 FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, AHMANSON COMMERCIAL DEVELOPMENT COMPANY, a California corporation ( "Grantor" ) hereby grants to the CITY OF PALM DESERT, a municipal corporation ( "Grantee" ) , that certain real property in the City of Palm Desert, County of Riverside, California described on Exhibit "A" attached hereto and by this reference incorporated herein (the "Property" ) . EXCEPTING AND RESERVING unto GRANTOR, its successors and assigns, together with the right to grant and transfer all or a portion of the same, the following: A. Any and all oil, oil rights, minerals, mineral rights, natural gas rights and other hydrocarbons by whatsoever name known, geothermal steam and all products derived from any of the foregoing, that may be within or under the Property, together with the perpetual right of drilling, mining, exploring and operating therefor and storing in and removing the same from the Property or any 1 227140 other land, including the right to whipstock or directionally drill and mine from lands other than the Property, oil or gas wells, tunnels and shafts into, through or across the subsurface of the Property and to bottom such whipstocked or directionally drilled wells, tunnels and shafts under and beneath or beyond the exterior limits thereof, and to redrill, retunnel, equip, maintain, repair, deepen and operate any such wells, or mines; but without, however, the right to drill, mine, store, explore or operate through the surface or the upper 500 fact of the subsurface of the Property; B. Any and all water, water rights or interests therein appurtenant or relating to the Property or owned or used by Grantor in connection with or respect to the Property (no matter how acquired by Grantor) , whether such water rights shall be riparian, overlying, appropriative, littoral, percolating, prescriptive, adjudicated, statutory or contractual, together with the right and power to explore, drill, redrill and remove the same from or in the Property, to store the same beneath the surface of the Property and to divert or otherwise utilize such water, rights or interests on any other property owned or leased by Grantor; but without however, any right to enter upon or use the surface of the Property in the exercise of such rights ; except, however, the Grantor shall have the right to enter upon and use the surface of the Property for the purpose of constructing and maintaining thereon any water reservoirs or booster stations as may be required in connection with the development of the "Benefitted Property" (as hereinafter defined) . THE GRANTS AND RESERVATIONS HEREINABOVE described shall be subject to: 1 . General and special real property taxes and supplemental assessments, if any, for the current fiscal year; provided, however, that Grantor shall pay for (a) any such taxes and assessments applicable to the Property prior to the date of recordation of this deed, and (b) any assessments, special taxes or other payments arising from bonds, contracts, or liens created by, through or as a result of the efforts or activities of Grantor. 2 . All covenants, conditions, restrictions, reservations, rights, rights of way, easements and other matters of record or apparent; 3 . The requirement that Grantee accepts the Property "AS IS, " in the condition that the Property exists as of the date hereof. Grantee acknowledges that Grantor 2 22'7140 has not made any representations or warranties concerning the condition of the Property; 4 . The requirement that Grantee waive any right that may exist now or in the future to recover from Grantor, its shareholders, directors, officers, employees, agents, representatives, affiliates, and all persons acting by, through, under or in concert with them, or any of them, (collectively, the "Releasees" ) , any damages, losses, liabilities , costs or claims therefor, whether direct or indirect, known or unknown, seen or unforeseen, which may arise on account of or in any way growing out of or connected with the condition, ownership, or use of the Property (including all improvements located thereon) or any federal, State or local law or regulation related thereto. GRANTEE ACKNOWLEDGES THAT IT IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 , WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. " GRANTEE BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS IT MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT; 5 . The requirement that Grantee indemnify, hold harmless and defend Releasees, and each of them (with counsel acceptable to each indemnified party) , from and against any and all losses, costs, liabilities, damages (whether actual, punitive or consequential) , lawsuits, deficiencies, claims and expenses (whether or not arising out of third-party claims) , including without limitation, interest, penalties, fines, attorneys ' fees, expert fees and other litigation costs and all amounts paid or incurred in connection with the investigation, defense or settlement of any of the foregoing, arising out of or resulting from the condition, ownership, or use of the Property and any improvements located thereon. This indemnity will not require payment as a condition precedent to recovery by any Releasee hereunder; and 6 . The following covenants, conditions, and restrictions (collectively, the "CC&Rs " ) , which shall remain 3 227140 in full force and effect for the period of time designated below from and after the date of recordation of this instrument in the Official Records of Riverside County, California, unless terminated or modified as hereinafter provided. This conveyance of the Property is made by Grantor and accepted by Grantee upon and expressly subject to these CC&Rs . Upon the occurrence or violation of any of such CC&Rs without being cured within the times provided below, Grantor shall be entitled to avail itself of the remedies specified below. (a) General Purpose and Constructive Notice. The CC&Rs are hereby declared and agreed to be part of a general plan for the purpose of assuring the orderly and harmonious use of the Property and the enhancement and protection of the value, desirability and attractiveness of certain property owned by Grantor and described on Exhibit "B" attached hereto (the "Benefitted Property" ) . The CC&Rs shall run with the Property and be binding upon any person or entity who acquires any right, title, or interest in or to any portion of the Property and shall benefit the Benefitted Property and be enforceable by Grantor and any successor owner(s) of the Benefitted Property as designated by Grantor; provided that in the event of any conflict or disagreement between Grantor on the one hand and such designated successor owner(s) on the other, the rights of enforcement of Grantor shall prevail and have priority over such successor owner(s ) . It is intended that the dominant tenement shall be all the Benefitted Property, and that the servient tenement shall be all the Property. Every person or entity who now or hereafter owns or acquires any right, title or interest in or to any portion of the Property is and shall be conclusively deemed to have consented and agreed to every covenant, condition and restriction contained herein, whether or not any reference to this instrument is contained in the instrument by which such person acquired an interest in such Property. (b) Use of Property. The Property shall be maintained and used solely as and for an open space and not for any other purposes . For purposes of those CC&Rs, "open space" shall mean those uses permitted under Section 25 . 42 . 020 of the City of Palm Desert's Zoning Ordinance. (c) Term. These CC&Rs shall run with and bind the Property and shall inure to the benefit of and be enforceable by Grantor, its successors and assigns, for a term of fifty (50) years, after which the CC&Rs shall be automatically extended for successive periods of ten ( 10) years, unless modified or amended pursuant to the provisions 4 227140 of this subparagraph. The CC&Rs, or any part thereof, may be terminated, modified or amended, as to all or any part of the Property, with the written consent of Grantor or its successors or assigns and Grantee or its successors or assigns . No such termination, modification or amendment shall be effective until a proper instrument in writing has been executed, acknowledged and recorded in the Office of the County Recorder of the County of Riverside, State of California. (d) Default and Remedies . In the event of any breach, violation or failure to comply with any of the CC&Rs which has not been cured within thirty ( 30) days after written notice from Grantor or any successor owner to do so (or if any such breach, violation or failure cannot be fully cured within such thirty ( 30) day period, then upon failure of Grantee to commence such cure within such period and thereafter to diligently complete such cure to Grantor's or any successor owner's reasonable satisfaction) , then Grantor or any successor owner in its sole and absolute discretion may enforce any one or more of the following remedies or any other rights or remedies to which Grantor or any successor owner may be entitled by law or equity, all of which shall be cumulative and not exclusive; ( i) Damages . Grantor or any successor owner may bring suit for damages for any compensable breach of or noncompliance with any of the CC&Rs, or declaratory relief to determine the enforceability of any of the CC&Rs; and ( ii) Equity. It is recognized that a violation by Grantee of one or more of the CC&Rs may cause Grantor or a successor owner to suffer material injury or damage not compensable in money and that Grantor or such successor owner shall be entitled to bring an action in equity or otherwise for specific performance to enforce compliance with the CC&Rs or an injunction to enjoin the continuance of any such breach or violation thereof. e. Conditions Subsequent and Power of Termination. In addition to the remedies described in Paragraph 6 (d) above, and notwithstanding anything to the contrary in this instrument, those covenants and/or restrictions set forth in Paragraph 6 (b) , above, are declared to be conditions subsequent to the within conveyance of the Property. Upon a violation of any of such conditions subsequent not cured within sixty (60) days following written notice thereof to Grantee and/or such other parties having an interest in all or any portion of the Property, Grantor or its successors and assigns may terminate the fee simple interest in the Property then held 5 by Grantee or such other party then holding such interest and cause that interest to revert to Grantor. This power of termination is not available as a remedy for a violation of any other provision of the CC&Rs . Because this power of termination may become subject to Chapter 5, Title 5, Part 2 , Division II of the California Civil Code (or similar or subsequent laws ) providing for the expiration of ancient powers of termination, Grantor may do any act necessary or beneficial for preserving this power of termination, including the recording of notices and instruments . If Grantor requests, Grantee or its successors and assigns shall sign and, where required, acknowledge further written extensions or waivers of time periods provided by any law, including applicable statutes of limitation, relating to the expiration of ancient powers of termination. f . Waiver. No waiver by Grantor of a breach of any of the CC&Rs and no delay or failure to enforce any of the CC&Rs shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other restrictions or conditions . No waiver of any breach or failure of any of the CC&Rs shall be implied from any omission by Grantor to take any action on account of such breach or failure if such breach or failure persists or is repeated, and no express waiver shall affect a breach or failure other than as specified in said waiver. The Consent or approval by Grantor to or of any act by Grantee requiring Grantor's consent or approval shall not be deemed to waive or render unnecessary Grantor's consent or approval to or of any subsequent similar acts by Grantee. g. Cost of Enforcement. In the event any declaratory or other legal or equitable action or proceeding shall be instituted between Grantor and Grantee to enforce any provision of these CC&Rs, the party prevailing in such action shall be entitled to recover from the losing party or parties its costs and expenses, including court costs and reasonable attorneys ' fees . h. Notices . All notices, consents demands, requests and other communications provided herein shall be in writing and shall be deemed to have been duly given if and when personally served or 24 hours after being sent by United States registered mail, return receipt requested, postage prepaid, to the other party at the following respective address: 6 22714() If to Grantor: Ahmanson Commercial Development Company 11111 Santa Monica Boulevard Suite 2127 Los Angeles, California 90025 Attention: Gregory Simon If to City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: City Clerk or at such other address as the Grantor or Grantee may designate to the other in writing. i. Captions . The captions used herein are for convenience only and are not a part of this instrument and do not in any way limit or amplify the scope or intent of the terms and provisions hereof . j . Invalidity of Provision. If any provision of this instrument shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, the same shall in no way affect (to the maximum extent permissible by law) any other provisions of this instrument, the application of any such provision under circumstances different from those adjudicated by the court, or the validity or enforceability of the terms of this instrument as a whole. k. Application to Grantor. Notwithstanding anything herein contained to the contrary, if Grantor (or any successor-in-interest acquiring title to all or substantially all of the assets of Grantor, or any wholly- owned subsidiary of Grantor or such successor-in-interest) reacquires title to the Property or any portion thereof at any time after the date hereof, the provisions of this instrument shall automatically cease and terminate as to such reacquired property and be of no further force or effect as to Grantor or such successor in interest or such subsidiary. 1 . No Third Party Beneficiaries . Nothing expressed or mentioned in this Grant Deed is intended or shall be construed to give any person, other than the parties hereto and their respective successors and assigns, any legal or equitable right, remedy or claim under or in respect of this Grant Deed or any provisions herein contained, this Grant Deed and any conditions and provisions hereof being intended to be and being for the sole and 7 227140 exclusive benefit of the parties hereto and their respective successors and assigns, and for the benefit of no other person. IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the day of , 1990 . This Grant Deed shall not be effective for any purpose unless and until the Acceptance below is duly executed by Grantee. AHMANSON COMMERCIAL DEVELOPMENT COMPANY, a California corporation By: Its : By: Its : ACCEPTANCE Grantee, by its execution of this Grant Deed, hereby accepts the dedication of the Property upon and subject to the conditions, covenants and reservations stated in this Grant Deed and in satisfaction of all existing and future requirements of the City of Palm Desert for open space. CITY OF PALM DESERT a California municipal corporation By: Its : By: Its : L87345[ 14060] 7 8 22 14O EXHIBIT "I" THE HOAMS POOL SITE All that certain real property and appurtenances thereto, and all improvements now or hereafter located thereon, situated in the County of Riverside, State of California, and described as follows: That portion of Section 19, Township 5 South, Range 6 East, San Bernardino Base and Meridian, according to the Official Plat of said land approved by the Surveyor General July 15, 1986, described as follows: COMMENCING at the Northwest corner of the Northwest quarter of said Section; thence Westerly along the North line of the Northwest quarter of said Sections, South 89 degrees 28 minutes East, a distance of 437 . 02 feet; thence North 58 degrees 59 minutes East, a distance of 417 . 81 feet; thence South 31 degrees 01 minutes East, a distance of 150 feet; thence South 58 degrees 59 minutes West, a distance of 162 . 97 feet; thence South 89 degrees 28 minutes West, a distance of 295. 68 feet to the true point of beginning: EXCEPT that portion described as follows: COMMENCING at the Northeast corner of said Northwest quarter; thence along the North line of said Section 19 , South 89 degrees 14 minutes 15 seconds West, 1 , 229 . 46 feet; thence South 0 degrees 11 minutes 40 seconds East, 1, 150. 01 feet; thence North 89 degrees 14 minutes 15 seconds East, 437 . 02 feet; thence North 58 degrees 45 minutes 15 seconds East, 451. 37 feet to one true point of beginning; thence south 31 degrees 07 feet 61 minutes East, 150 feet; thence North 58 degrees 45 minutes 15 seconds East, 6.20 feet; thence North 31 degrees 14 minutes 45 seconds West, 150 feet; thence South 58 degrees 45 minutes 15 seconds West; 5. 87 feet to the true point of beginning, as reflected in Deed recorded June 26, 1963 in Book 3427, page 508 from Hoams Construction Company to the City of Riverside. ALSO EXCEPTING therefrom that portion conveyed to the County of Riverside by that Corporation Grant Deed recorded May 11, 1966 as Instrument No. 49649, Official Records, Riverside County records. Said Land is located in the City of Palm Desert. 22/140 DISPOSITION, DEVELOPMENT AND IMPLEMENTATION AGREEMENT Between THE PALM DESERT REDEVELOPMENT AGENCY and AHMANSON COMMERCIAL DEVELOPMENT COMPANY 22'7140 TABLE OF CONTENTS Description Page RECITALS 1 1 . DEFINITIONS 4 1 . 1 Defined Terms 4 1 . 2 Acquisition Costs 4 1 . 3 Added Territory 5 1 . 4 Agency Deed 5 1 . 5 Original Territory 5 1 . 6 Project 5 1 . 7 Public Improvements 5 1 . 8 Site 6 1 . 9 Site Development 6 1 . 10 Certain Other Terms 6 2 . EFFECTIVE DATE; TERM 6 2 . 1 Effective Date 6 2 . 2 Term 6 3 . GENERAL DEVELOPMENT OF PROJECT; AGENCY FINDINGS AND ACTIONS 6 3 . 1 Agency Findings 8 3 . 2 Agency Actions 8 4 . ACQUISITION AND DISPOSITION OF SITE 10 4 . 1 Agency's Acquisition of the Site by Negotiation 11 4 . 2 Agency's Acquisition of the Site by Eminent Domain 11 4 . 3 Conditions Precedent to the Commencement of the Acquisition of the Site; Preliminary Work by the Developer 14 4 . 4 Agency's Failure to Acquire Site; Developer Acquisition of Site 18 4 . 5 Purchase Price 20 4 . 6 Method of Financing the Acquisition of the Site 20 4 . 7 Escrow 23 4 . 8 Conveyance of Title and Delivery of Possession 27 4 . 9 Form of Deed 28 4 . 10 Condition of Title 28 4 . 11 Order of Immediate Possession 28 4 . 12 Time and Place for Delivery of Agency Deed and Recordation Thereof 30 4 . 13 Title Insurance 31 4 . 14 Taxes and Assessments 31 i 22'7140 4 . 15 Conveyance Free of Possession 32 4 . 16 Zoning of the Site 32 5 . SITE DEVELOPMENT 32 5 . 1 Agreement to Develop Site 32 5 . 2 Cost of Construction; Reporting to Agency 34 5 . 3 Phasing of Site Development 35 5 . 4 Indemnification During Construction; Bodily Injury and Property Damage Insurance 36 5 . 5 Antidiscrimination During Construction 38 5 . 6 Local, State, and Federal Laws 39 5 . 7 City and Other Governmental Agency Permits 39 5 . 8 Rights of Access 39 5 . 9 Taxes, Assessments, Encumbrances and Liens 40 5 . 10 Prohibition Against Transfer 41 5 . 11 Security Financing; Right of Holders ; Holder Not Obligated to Construct 45 5 . 12 Notice of Default to Mortgagees, Beneficiaries of Deeds of Trust or Other Security Interest Holders; Right to Cure; Limited Liability 46 5 . 13 Right of Agency to Cure Mortgage, Deed of Trust, or Other Security Interest Default 48 5 . 14 Right of the Agency to Satisfy Other Liens on the Property After Title Passes 48 5 . 15 Certificate of Completion 49 6 . USE OF THE SITE 51 6 . 1 Uses 51 6 . 2 Maintenance of the Site 51 6 . 3 Obligation to Refrain From Discrimination 52 6 . 4 Form of Nondiscrimination and Nonsegregation Clauses 53 7 . CONSTRUCTION OF PUBLIC IMPROVEMENTS 54 7 . 1 Agreement to Construct Public Improvements 54 7 . 2 Cost of Construction; Reporting to Agency 56 7 . 3 Construction of Public Improvements 56 7 . 4 Agency Reimbursement; Pledge of Tax Increment 57 7 . 5 Indemnification During Construction; Bodily Injury and Property Damage Insurance 63 7 . 6 Antidiscrimination During Construction 65 7 . 7 Local, State, and Federal Laws 65 ii 227140 7 . 8 City and Other Governmental Agency Permits 66 7 . 9 Rights of Access 66 7 . 10 Prohibition Against Transfer 67 7 . 11 Security Financing; Holder Not Obligated to Construct 69 7 . 12 Public Improvement Certificate of Completion; Final Public Improvement Certificate of Completion 69 8 . DURATION OF COVENANTS; DEFAULTS, REMEDIES AND TERMINATION 72 8 . 1 Effect and Duration of Covenants and Agreements 72 8 . 2 Defaults 72 8 . 3 Institution of Legal Actions 74 8 . 4 Applicable Law 74 8 . 5 Acceptance of Service Process 74 8 . 6 Rights and Remedies are Cumulative 75 8 . 7 Damages 75 8 . 8 Specific Performance 76 8 . 9 Termination by Developer 76 8 . 10 Termination by Agency 77 9 . GENERAL PROVISIONS 78 9 . 1 Notices, Demands and Communications Between the Parties 78 9 . 2 Conflicts of Interests 79 9 . 3 Nonliability of Agency Officials and Employees 80 9 . 4 Enforced Delay; Extensions of Time of Performance 80 9 . 5 Real Estate Commissions 81 10 . ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS 81 11 . MISCELLANEOUS 82 12 . TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY; DATE OF AGREEMENT 83 iii 227140 LIST OF EXHIBITS Exhibit Designation Description A Redevelopment Plan Project Area 1 B The Property C The Development Agreement D The Site E Added Territory to Project Area 1 F Original Territory Project Area 1 G Development Standards for the Project H Public Improvements I Schedule of Performance J Grant Deed K Letter of Credit L Schedule of Permitted Exceptions M Scope of Development N Promissory Note EXHIBIT "A" 227140 All that certain real property and appurtenances thereto, and all improvements now or hereafter located thereon, situated in the County of Riverside, State of California , and described as follows : That portion of Section 19 , Township 5 South, Range 6 East, San Bernardino Base and Meridian, according to the Official Plat of said land approved by the Surveyor General July 15 , 1986 , described as follows : COMMENCING at the Northwest corner of the Northwest quarter of said Section; thence Westerly along the North line of the Northwest quarter of said Sections , South 89 degrees 28 minutes East , a distance of 437 . 02 feet ; thence North 58 degrees 59 minutes East, a distance of 417 . 81 feet ; thence South 31 degrees 01 minutes East, a distance of 150 feet; thence South 58 degrees 59 minutes West, a distance of 162 . 97 feet ; thence South 89 degrees 28 minutes West, a distance of 295 . 68 feet to the true point of beginning: EXCEPT that portion described as follows: COMMENCING at the Northeast corner of said Northwest quarter; thence along the North line of said Section 19 , South 89 degrees 14 minutes 15 seconds West, 1 , 229 . 46 feet ; thence South 0 degrees 11 minutes 40 seconds East , 1 , 150 . 01 feet ; thence North 89 degrees 14 minutes 15 seconds East, 437 . 02 feet; thence North 58 degrees 45 minutes 15 seconds East, 451 . 37 feet to one true point of beginning ; thence south 31 degrees 07 feet 61 minutes East, 150 feet; thence North 58 degrees 45 minutes 15 seconds East, 6 . 20 feet; thence North 31 degrees 14 minutes 45 seconds West, 150 feet ; thence South 58 degrees 45 minutes 15 seconds West, 5 . 87 feet to the true point of beginning, as reflected in Deed recorded June 26 , 1963 in Book 3427 , page 508 from Hoams Construction Company to the City of Riverside. ALSO EXCEPTING therefrom that portion conveyed to the County of Riverside by that Corporation Grant Deed recorded May 11 , 1966 as Instrument No. 49649 , Official Records , Riverside County records . Said Land is located in the City of Palm Desert. w 22 140 DISPOSITION, DEVELOPMENT AND IMPLEMENTATION AGREEMENT THIS AGREEMENT (sometimes referred to hereafter as "Agreement" ) is entered into on May 1 , 1990, by and between THE PALM DESERT REDEVELOPMENT AGENCY (the "Agency" ) and AHMANSON COMMERCIAL DEVELOPMENT COMPANY, a California corporation and its successors and assigns (the "Developer" ) . The Agency and the Developer agree as follows : RECITALS This Agreement is entered into on the basis of the following facts, understanding and intentions of the parties : A. Health and Safety Code Sections 33000, et. seq. , (the "Redevelopment Legislation" ) authorize the Agency to enter into agreements with property owners and the purchasers of property for the purpose of furthering the development of property within a project area in conformity with the development conditions set forth in the redevelopment plan pertaining to such project area, and provide for the Agency's participation in such development, including, but not limited to, the construction of public improvements related thereto and the manner of the payment 1 227140 of the costs thereof and the acquisition by the Agency of land necessary for such development. B. The Agency has heretofore prepared and approved the redevelopment plan attached hereto as Exhibit A (the "Redevelopment Plan") for its Project Area No. 1 (the "Project Area") , which Project Area encompasses the land to be developed and acquired pursuant to this Agreement. C. The Developer is or will be the owner of that certain real property located within the Project Area and more completely described in Exhibit B attached hereto (the "Property") . D. The City of Palm Desert (the "City") and the Developer have entered into that certain Development Agreement (the "Development Agreement") dated May 1, 1990 and attached hereto as Exhibit C, pertaining to the Property which is the subject of this Agreement, and by which the City has acknowledged that the development of such land as set forth therein and herein is consistent with and in furtherance of the development goals and policies of the City. E. The Agency has determined that the development of the Property in the manner provided herein and in the Development Agreement is in conformance with and in furtherance of the Redevelopment Plan. F. The development of the Property in the manner described herein and in the Development Agreement will 2 227140 require a major investment by the Developer, and the Agency has determined that the public benefits to be derived from such development justify the Agency entering into this Agreement for the purpose of providing certain benefits and assistance to the Developer with respect to such development. G. The Agency has determined that the participation by the Agency in the acquisition by the Developer of that certain portion of the Property described in Exhibit D attached hereto (the "Site") and the conveyance of the Site to Developer in the manner provided herein is authorized by the Redevelopment Legislation and the Redevelopment Plan and is consistent with and in furtherance of the goals and policies of the Redevelopment Plan. H. The Developer acknowledges that the agreement of the Developer contained herein to develop and maintain the Site in accordance with the terms and provisions of the Redevelopment Plan and this Agreement is a material inducement for the Agency to enter into this Agreement and provide assistance to the Developer as provided herein. I . The Agency has found and determined that the development and construction of the Public Improvements (as hereinafter defined) are of benefit to the entire Project Area and that the Agency' s agreement and obligation to reimburse the Developer for certain costs associated with the development and construction of certain of the Public 3 227140 Improvements as set forth herein is consistent with the purposes of and authorized by the Redevelopment Plan and the Redevelopment Legislation. J. In order to effectuate the foregoing, the parties desire to enter into this Agreement. NOW, THEREFORE, pursuant to the authority contained in the Redevelopment Legislation and the Redevelopment Plan, and in consideration of the mutual covenants and promises herein contained, the parties agree as follows: 1. Definitions. 1. 1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. 1. 2 Acquisition Costs. An amount equal to all costs and expenses of the Agency (excluding any Agency overhead costs) incurred with respect to the acquisition and conveyance of the fee interest in the Site as provided herein including, but not limited to, the acquisition price of the Site and any improvements thereon, severance damages, payments for loss of business good will, reasonable attorney' s fees and costs, court costs, expert witness fees, deposits required by a court in an eminent domain proceeding to obtain satisfaction of judgement, any interest on such final judgement, costs of any and all appeals from trial and appellate court judgments, relocation costs, appraisal costs, recording costs, costs of surveys, costs of soils and 4 227140 other tests pertaining to the suitability of the Site for development, title service fees, escrow fees, acquisition agent fees and prorated taxes and assessments, if any. 1 . 3 Added Territory. That territory within the boundaries of the City which was added to the original Project Area by Ordinance No. 275 of the City, adopted on November 25, 1981, and as shown on the map attached hereto as Exhibit E. 1. 4 Agency Deed. That certain deed in the form of Exhibit J attached hereto conveying title to the Site from the Agency to Developer. 1. 5 Original Territory. That territory within the boundaries of the City which constitutes the original Project Area established by the City by the adoption of Ordinance No. 80 of the City, adopted on July 16, 1975, and as shown on the map attached hereto as Exhibit F. 1. 6 Project. The mixed-use office/commercial , retail/regional commercial development and associated amenities, and on-site and off-site improvements, as described in Exhibit G attached hereto, as the same may hereafter be further refined, enhanced or modified pursuant to the provisions of the Development Agreement. 1. 7 Public Improvements. Those on-site public improvements associated with the Project and which are 5 140 described in Exhibit H attached hereto and further described in Paragraph D of the Scope of Development attached hereto as Exhibit M. 1 . 8 Site. That certain real property described in Exhibit D attached hereto. 1 . 9 Site Development. That phase of development of the Project to be constructed and developed by Developer in connection with the development of the Site, as further described in the Scope of Development. 1 . 10 Certain Other Terms . Certain other terms shall have the meanings set forth for such terms in this Agreement . 2 . Effective Date; Term. 2 . 1 Effective Date. This Agreement has been entered into by the parties as of the date and year first above written, and shall be effective as of such date (the "Effective Date" ) . 2 . 2 Term. The term of this Agreement (the "Term" ) shall commence on the Effective Date and shall terminate on the ten ( 10) year anniversary date of the Effective Date, unless sooner terminated or extended as hereinafter provided. 3 . General Development of the Project; Agency Findings and Actions . The parties acknowledge that the Developer cannot at this time predict when or the rate at which or the order in which Project phases will be developed. Such 6 22714() decisions depend upon numerous factors which are not within the control of the Developer, such as market orientation and demand, interest rates, competition and other similar factors. The Agency acknowledges that as a result of these factors affecting the timing of the development of the Project, the City and the Developer have entered into the Development Agreement which provides for the phased development of the Project and the terms and conditions under and with respect to which the Developer shall be entitled to develop and construct the Project and receive all permits, certificates and other entitlements to be issued or provided by the City and necessary for the construction, use and occupancy of the Project. Notwithstanding any provision to the contrary contained herein, the Agency agrees that, except as otherwise herein expressly provided and to the extent permitted by law, the terms and provisions of the Development Agreement shall be controlling as to all matters pertaining to the permitting and entitlement of the Project, the timing and phasing of the development of the Project and the permitted uses to which the Developer may put the Project. The Agency agrees that it will not unreasonably withhold or delay delivery of its consent to any amendment of the Development Agreement pursuant to Section 2 . 3 thereof. The Agency agrees that any successor in interest to the Developer under and pursuant to the terms of the Development Agreement shall automatically 7 22 '140 and without the necessity of any action on the part of the Agency be deemed to be the "Developer" under this Agreement for all purposes of Section 3 hereof, and any such successor in interest shall be entitled to the benefits provided to the Developer under Section 3 hereof. 3 . 1 Agency Findings. The Agency has reviewed the Development Agreement and hereby finds and determines that the development of the Project in the manner provided and as contemplated therein will be in furtherance of and consistent with the goals and policies of the Redevelopment Plan, and in conformance with the requirements of the development guidelines contained therein as adopted by the Agency pursuant thereto, and that the process of permitting and entitlement set forth in the Development Agreement is consistent with the permitting and entitlement process contained in such development guidelines. 3 . 2 Agency Actions. Based upon the foregoing findings, the Agency hereby agrees that it will take all actions necessary under the Redevelopment Plan and the development guidelines contained therein, to insure that the benefits afforded to the Developer by the Development Agreement with respect to the permitting and entitlement of the Project, the timing and phasing of the development of the Project and the permitted uses to which the Developer may put the Property, will not be impaired; provided, however, that such obligations of the Agency shall be 8 22'7140 conditioned upon compliance by the Developer with the terms and provisions of this Agreement and the Development Agreement as provided herein and therein; and further provided, however, that nothing contained herein shall be deemed to constitute a commitment by the Agency to make findings applicable to and necessary for the adoption of a resolution of necessity under the Eminent Domain Law of the State of California (Section 1230 . 010 et. seq. of the California Code of Civil Procedure) or to commence one or more actions in eminent domain to acquire the Site. The Agency hereby agrees that, except as otherwise expressly provided herein and in the Development Agreement, the implementation and furtherance of the goals and policies of the Redevelopment Plan and the development guidelines will not require the imposition of any Exactions (as defined in the Development Agreement) , the construction of any public improvements by the Developer, or the reservation or dedication of the land by the Developer for public purposes. In addition, the Agency hereby agrees that the provisions of the Development Agreement pertaining to the process for the application of all permits, certificates and approvals necessary for the development of the Project (including, but not limited to, the development and construction of the Public Improvements) , the fees charged for the processing of such applications and the standards upon which such permits, certificates and approvals will be issued, are consistent 9 22'7140 with and satisfy the requirements of the Redevelopment Plan and the development guidelines, and that the Agency, except to the extent that the Agency is otherwise required to do so by a final decision of a court competent jurisdiction, (i) will take no actions with respect to the Project in implementing the provisions of the Redevelopment Plan or such development guidelines which are inconsistent with such provisions of the Development Agreement or which would otherwise impair or delay the development of the Project or increase the costs to be incurred by the Developer with respect thereto, or (ii) after the date hereof and without receiving the prior written approval of the Developer, adopt or approve an amendment to the Redevelopment Plan or the development guidelines which would affect the Project. 4 . Acquisition and Disposition of Site. Agency does not presently have title to or possession of the Site. In accordance with and subject to terms and conditions of this Agreement, including, without limitation, the Schedule of Performance attached hereto as Exhibit I, the Agency shall use its best efforts to acquire by voluntary purchase and sale, and if successful , then to sell and convey to Developer, and Developer shall purchase and accept from Agency, the fee interest in the Site. Notwithstanding anything herein to the contrary, so long as the Agency otherwise complies with the provisions of this Section 4 , Agency' s failure to commence eminent domain proceedings or 10 22714O to acquire the Site through eminent domain proceedings shall not constitute a breach of any of the Agency ' s obligations hereunder and the Agency shall not be liable in any manner whatsoever to the Developer on account of such failure. The conveyance by Agency to the Developer of the fee title to the Site shall be accomplished by the Agency Deed. 4 . 1 Agency' s Acquisition of the Site by Negotiation. Subject to the provisions of 4 . 3 hereof, upon receipt of written request of the Developer the Agency shall commence to use its best efforts to-negotiate the purchase of the Site upon the terms and subject to the conditions with respect to such purchase contained in this Section 4 and subject to the restrictions and requirements of law governing the actions and procedures of the Agency in the acquisition of property. 4 . 2 Agency' s Acquisition of the Site by Eminent Domain. If the Agency is unable to acquire the Site by negotiation within ninety (90) days after the receipt of the written request of Developer requesting such acquisition, Agency shall implement the procedures required by law to consider the necessity of exercising the Agency' s rights of eminent domain with respect to the Site. In this regard, not later than the first regular meeting date of the Agency following the expiration of such ninety (90) day period, Agency shall hold a hearing on a resolution of necessity regarding acquisition of the Site from the present owner 11 227140 thereof by eminent domain. Nothing herein shall be construed to mean that the Agency is agreeing or has agreed to exercise the right of eminent domain, which right shall be exercised only in the sole discretion of the Agency and only after Agency has determined pursuant to law that there is substantial evidence of the following: (a) The public interest and necessity require the Project; (b) The Project is planned and located in the manner that will be most compatible with the greatest public good and the least private injury; (c) The Site is necessary for the Project; and (d) That either the offer required by Section 7267 . 2 of the California Government Code has been made to the owner or owners of record of the Site, or the offer has not been made because the owner or owners of record cannot be located with reasonable diligence. As a condition precedent to Agency' s exercise of the right of eminent domain, Agency shall make to the owners of the Site the offer required by Government Code Section 7267 . 2 and, if said offer does not result in a negotiated acquisition of the Site by the Agency or by the Developer, the Agency shall hold the above described hearing to determine whether the condemnation of the Site meets the above criteria. In making such determination, the Agency 12 22 140 shall engage in good faith and judicious consideration of the merits of the condemnation. Notwithstanding the foregoing, the Agency agrees that the Developer may at its sole option negotiate the acquisition of the Site directly with the owner(s) thereof and acquire the Site anytime prior to the completion of the proceedings for the acquisition of the Site by the Agency or the delivery of possession of the Site to the Developer pursuant to Section 4 . 8 hereof. In such event, the Developer shall upon its acquisition of the Site promptly pay all Acquisition Costs incurred by the Agency prior to the Developer' s acquisition of the Site (or, if applicable, the Agency shall draw on the Letter of Credit (as hereinafter defined) in the amount of such Acquisition Costs and the Letter of Credit shall thereafter be immediately returned by Agency to the Developer) and the Agency shall promptly terminate all proceedings for its acquisition of the Site. In the event the Agency adopts a resolution of necessity pursuant to Civil Procedure Code Sections 1245 . 210; et. seq. concerning the Site, the Agency shall file a complaint in eminent domain (the "Condemnation Complaint") prior to fourteen (14) days after the date of adoption of such resolution, and the Agency shall provide Developer with a written schedule of its proposed activities (and the timing thereof) with respect to the condemnation of 13 227140 the Site and shall, revise said schedule as necessary from time to time to permit the performance of its obligations under this Agreement within the times set forth in the Schedule of Performance. Upon filing the Condemnation Complaint as provided above, the Agency shall diligently prosecute the same until the Agency or the Developer has acquired the Site. Subject to the satisfaction of the applicable conditions set forth in this Section 4 , upon the Agency ' s receipt of the fee interest in the Site, Agency shall convey, and Developer shall accept from the Agency, the fee interest in the Site. Nothing contained herein shall limit the right of the Agency at its sole option to negotiate a purchase of the Site from the current owner(s) and/or to consider the necessity of exercising its power of eminent domain with respect thereto sooner than the maximum times provided for herein. 4 . 3 Conditions Precedent to the Commencement of the Acquisition of the Site; Preliminary Work by the Developer. The Agency and the Developer hereby agree that it is essential that the Developer have access to the Site prior to its acquisition by the Agency, through negotiation or the exercise of its right of eminent domain, in order to undertake all necessary and appropriate surveys, tests and inspections (including, but not limited to, soils and water tests and tests and examinations to determine the presence 14 227140 of any toxic or hazardous materials in and or around the Site or in the improvements thereon) to determine the suitability of the Site for development in connection with the Project. The Agency agrees that upon the initiation of the negotiations for the purchase of the Site as provided in Section 4 . 1, it will use its best efforts to require the owner(s) of the Site to permit the Developer to have a period of thirty (30) days to enter the site at the Developer' s sole cost and expense to perform the aforesaid tests and inspections. To the extent permitted by law, the Agency will provide in any offer for purchase of the Site that such offer is contingent upon the owner' s granting of such right of access and period of testing and inspections, and that any purchase price specified therein is subject to reasonable adjustment based upon the results of such testing and inspections. In the event, that the owner(s) of the Site will not timely consent to permitting Developer access to the Site at the reasonable request of Developer, Agency shall obtain appropriate pre-condemnation court orders for the purpose of permitting Developer access to the Site to make such surveys, tests and inspections. The Developer agrees that it will promptly pay for all costs of any bonds or undertakings which are required in order to permit the Developer entry onto the Site for the purpose of such testing and inspection. All of the aforesaid surveys, tests 15 227140 and inspections will be performed by the Developer to Developer' s satisfaction and the cost of such surveys, tests and inspections shall be borne solely by the Developer. The Agency shall use its best efforts to include in any purchase agreement to be executed in connection with the negotiated purchase of the Site (which provisions shall be expressly stated to survive the closing under such agreement or documents and to be assignable by Agency to Developer) , and shall assign the benefit of such provisions to Developer upon the close of the escrow to be established pursuant to Section 4 . 7 , such representations, covenants, and warranties from the owner (s) of the Site as Developer may reasonably request, including, without limitation, the following: (1) This Purchase Agreement and all documents executed by Seller which are to be delivered to Buyer at Closing are and at the time of Closing will be duly authorized, executed, and delivered by Seller, are and at the time of Closing will be legal , valid, and binding obligations of Seller, are and at the time of Closing will be sufficient to convey title (if they purport to do so) , and do not and at the time closing will not violate any provisions of any agreement or judicial , administrative or regulatory order to which Seller is a party or to which it or the Property is subject. (2) At the time of the Closing there will be no outstanding contracts made by Seller with respect to the Property which have not been approved by Buyer and fully paid for by Seller and Seller shall cause to be discharged all mechanics ' or materialmen ' s liens arising from any labor or materials furnished to the Property prior to the time of Closing by or on behalf of Seller. (3) Except as heretofore disclosed in writing by Seller to Buyer, there are no outstanding obligations of Seller, and no obligations burdening the Property, 16 227140 for or with respect to the construction or completion of any on-site or off-site improvements. (4) Seller is not a "foreign person" within the meaning of Section 1445 (f) (3) of the Internal Revenue Code of 1954 , as amended. (5) There are not now, and as of the Closing there will not be any: (A) hazardous wastes, hazardous materials or hazardous substances (as said terms are defined in any applicable federal , state or local laws) located on or within any of the Property (collectively, "Hazardous Materials" ) , nor, to the best of Seller' s knowledge, have any such Hazardous Materials ever been located on the Property; (B) enforcement, clean-up, removal or other governmental or regulatory actions instituted, completed or threatened pursuant to any applicable federal , state or local laws or ordinances relating to any Hazardous Materials and affecting the Property; (C) claims made or threatened by any governmental agency or official or any other third party against Seller or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials; (D) Hazardous Materials occurrences or conditions on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be classified as "border-zone property" under the provisions of California Health & Safety Code { { 25220-224 et. seq. and implementing regulations; or (E) underground storage tanks located on the Property now or formerly used for the storage or containment of any Hazardous Materials, including without limitation, any petroleum products or by-products. (6) Buyer and Seller agree that Seller shall be solely responsible for the removal and disposal of any and all hazardous, toxic and/or-contaminating materials which were placed in, on or under that portion of the hereinabove described real property owned by Seller. All such hazardous, toxic and/or contaminating materials shall be removed by Seller prior to Seller' s conveyance of said described real property; provided however, the Buyer and Seller hereby agree that in the event Buyer determines that there is any evidence of hazardous, toxic and/or contaminating materials on the property, the escrow agent shall open a reserve account for the deposit by Seller of a reasonable amount of money necessary 17 227140 to remove the hazardous and/or toxic materials as such amount may be reasonably calculated by the Buyer. It is further understood and agreed that in the event Seller fails to remove said hazardous, toxic and/or contaminating materials, Buyer or its designee shall have the right to dispose of said materials, at Seller' s sole expense, pursuant to local , County, State or Federal laws and regulations. The cost of such disposal shall be borne by the Seller out of its own funds and paid out of the reserve account as provided above. Seller further agrees to indemnify and hold Buyer, its officers, employees and consultants, assigns and successors in interest harmless from any and all liability, costs, and expenses (including reasonable attorneys ' fees and costs) , fines, penalties, charges and/or claims of any kind whatsoever relating to the existence and removal of said materials. The Developer hereby agrees to defend and hold the Agency and the City, and their respective officers, employees, agents and consultants, harmless from any and all claims, liability and damages arising out of the entry by the Developer onto the Site and any work or activity of the Developer, its agents, or its employees thereon pursuant to this Section 4 . 3 . After the Agency conveys the Site to the Developer, the Developer hereby further agrees to defend and hold the Agency and the City, and their respective officers, employees, agents and consultants, harmless from any and all claims, liability, costs, fines, penalties, charges and/or claims of any kind whatsoever relating to the existence and removal of Hazardous Materials. 4 . 4 Agency' s Failure to Acquire Site; Developer Acquisition of Site. In the event the Agency is unable to acquire the Site by negotiation within the period of time 18 227140 provided therefor in the Schedule of Performance and does not timely adopt a resolution of necessity, as reasonably determined by Developer, or in the event that Developer reasonably determines on the basis of the surveys, tests and inspections described in Section 4 . 3 hereof that the Site is not suitable for development in connection with the Project as provided in said Section 4 . 3 , or in the event any condemnation proceedings are terminated by the Developer as provided in Section 4 . 6 hereof, or in the event the Developer shall acquire the Site directly from the owner(s) thereof, whether such acquisition by the Developer should occur prior to or after the adoption of a resolution of necessity by the Agency and the filing of the Condemnation Complaint, then, at the sole option of the Developer, (i) the Agency' s obligation to acquire the Site and the Developer' s obligation to acquire the Site from the Agency shall terminate, and the provisions of this Agreement pertaining to the Site and the Site Development shall be deemed to have terminated and both parties shall be released of any further obligations or liabilities to one another with respect thereto, but all other terms and provisions of this Agreement shall remain in full force and effect, or (ii) this Agreement as a whole shall be terminated and both parties shall be released of any further obligations or liabilities to one another with respect to this Agreement. Notwithstanding the foregoing, the Developer shall not, in 19 227140 either event, be released from its obligations to pay for all Acquisition Costs, if any, incurred by the Agency prior to the date of such termination. 4 . 5 Purchase Price. The purchase price to be paid by the Developer to the Agency for the Site shall be equal to the Acquisition Costs. 4 . 6 Method of Financing the Acquisition of the Site. The Developer shall deposit with the Agency at least ten (10) days prior to the earlier to occur of (i) the Agency' s execution of a binding Purchase Agreement with the owner(s) of the Site or (ii) the submission by the Agency to the Developer of a written notice of the Agency ' s consideration of a resolution of necessity (which notice shall be delivered not more than ten (10) days prior to the date of the first official action by the Agency with respect to such resolution of necessity) , an irrevocable letter of credit in the form attached hereto as Exhibit K (the "Letter of Credit") . The Letter of Credit shall name the Agency as the beneficiary thereof, shall be in an initial stated amount of $635, 000, shall have a stated term of three (3) years unless otherwise extended or terminated pursuant to the terms thereof. The Letter of Credit shall be issued by one of the five largest banks in the State of California having a branch located in the City. The Agency may draw upon the Letter of Credit from time to time as provided herein solely to pay the Acquisition Costs. The Letter of 20 22'714O Credit may be drawn upon by Agency only if (i) any such draw is for the specific purpose of paying Acquisition Costs as they are incurred or otherwise due and payable, and (ii) the Agency is not in default under this Agreement. The Agency shall contemporaneously with any such drawing provide written notice thereof to the Developer, with such written notice specifying the purpose, amount and date of such draw. The Letter of Credit may not be negotiated, assigned, pledged or hypothecated by the Agency, in whole or in part. With each draw of funds by Agency upon the Letter of Credit, the total available amount of the Letter of Credit shall be reduced by a sum equal to the Agency ' s draw. Upon the payment of all of the Acquisition Costs, or upon the termination of the Agency ' s proceedings for the acquisition of the Site as provided herein, the Agency shall promptly consent to the termination of the Letter of Credit and return the same to the Developer. The Agency shall on a reasonably periodic basis (but not less than quarterly) provide the Developer with written reports stating (1) the date any amount drawn on the Letter of Credit is applied against Acquisition Costs; (2) the status of the Agency' s negotiations with respect to acquisition of the Site; (3) the status of any eminent domain action filed with respect to the Site; and (4) a listing of the amount of all draws on the Letter of Credit within such period and the purposes of such draws. 21 22 '140 If at any time and from time to time subsequent to the receipt by the Agency of the Letter of Credit, the Agency shall determine that the amount of the Letter of Credit available for drawing is not sufficient to pay any remaining Acquisition Costs or that the expiration date of the Letter of Credit will precede the date upon which the Agency reasonably believes either the negotiations for the acquisition of the Site or any eminent domain proceedings with respect thereto will conclude, the Agency shall notify the Developer in writing of the additional funds required or the date to which the expiration date of the Letter of Credit must be extended in order for the Agency to proceed with the acquisition of the Site; provided, however, that any such notification with respect to an extension of the expiration date shall be delivered to the Developer at least sixty (60) days prior to the then existing expiration date and the date to which the expiration date shall be extended shall be at least six (6) months after the date of the then existing expiration date. Such notice shall describe the nature of remaining Acquisition Costs, estimate when funds will be needed to pay them and indicate the date which the Agency believes the negotiations or eminent domain proceedings will be concluded. The Developer shall , within thirty (30) days of receipt of such notice, either notify the Agency that the proceedings for the acquisition of the Site should be terminated, in which event the Agency shall 22 227140 immediately draw on the Letter of Credit for the amount of any Acquisition Costs previously incurred and not previously paid and the Letter of Credit shall thereafter be immediately returned to the Developer by the Agency, or cause the expiration date to be extended or the amount available for drawing under the Letter of Credit to be increased as provided in such notice. The Agency agrees that it shall undertake the acquisition of the Site in a manner so as to conserve the resources of the Letter of Credit and minimize the amount of the Acquisition Costs to the greatest extent feasible, consistent with applicable legal requirements. The Agency shall consult with Developer prior to the settlement of any acquisition and relocation disputes or litigation, and shall not settle such disputes or litigation without first receiving the written consent of the Developer which shall not be unreasonably withheld or delayed. 4 . 7 Escrow. The Developer and the Agency shall open an escrow to consummate the conveyance of the Site to Developer from Agency (the "Escrow") . The escrow shall be opened with Continental Land Title Insurance Company or such other escrow agent satisfactory to the parties (the "Escrow Agent") , in Riverside County within the time provided therefor in the Schedule of Performance. This Agreement constitutes the joint escrow instructions of the Agency and the Developer for the Escrow 23 227140 and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the Escrow. The Agency and the Developer shall provide such additional escrow instructions as may be necessary or appropriate to enable the Escrow Agent to close escrow and comply with the terms of this Agreement. The Agency shall prepare and deliver to Escrow the Agency Deed. The Escrow Agent shall record the Agency Deed in accordance with these escrow instructions; provided that title can be vested in the Developer in accordance with the terms and provisions of this Agreement. The Escrow Agent shall buy, affix, and cancel any transfer stamps required by law. The Developer and the Agency agree to and shall deliver to Escrow Agent all documents necessary for the conveyance to Developer of title to the Site in conformity with, within the times, and in the manner provided in this Agreement. The Developer shall pay to the Escrow Agent all fees, charges, and costs required by the Escrow Agent to accomplish the foregoing, including all title insurance premiums, promptly after the Escrow Agent has notified the Developer of the amount of such fees, charges, and costs, but not earlier than ten (10) days prior to the scheduled date of closing the escrow. Said fees, charges, and costs shall include the following: (a) The escrow fee; 24 227140 (b) The entire premium for the ALTA title insurance policy or policies insuring fee simple title to the Site in the amount of the Purchase Price; (c) Recording fees, if required by law; and (d) Notary fees; The Agency shall timely and properly execute, acknowledge and deliver the Agency Deed together with such other instruments of assignment or transfer as Developer may require to convey to the Developer title to the Site, and all tangible and intangible assets used in connection therewith, in accordance with the requirements of this Agreement, together with an estoppel certificate certifying that the Developer has completed all acts necessary to entitle the Developer to such conveyance, if such be the fact, and such other documents and materials as the Agency may have obtained from the owner(s) in connection with the Agency ' s acquisition of the Site. The Escrow Agent is authorized to: (a) Pay the Agency and charge the Developer respectively, for any fees, charges and costs payable under this Section 4 . Before such payments are made, the Escrow Agent shall notify the Developer and the Agency of the fees, charges and costs necessary to clear title and close the Escrow. (b) Disburse funds and deliver the Agency Deed and other documents to the parties entitled thereto when the 25 22 140 conditions of this Escrow has been fulfilled by the Developer and the Agency. Such funds shall not be disbursed or delivered by the Escrow Agent unless and until it has recorded the Agency Deed and has delivered to Developer a title insurance policy conforming to the requirements of Section 4 . 1 . (c) Record any instruments delivered through this Escrow if necessary or proper to vest title in the Developer in accordance with the terms and provisions of this Agreement. All funds received in the Escrow shall be deposited by the Escrow Agent with other escrow funds of the Escrow Agent in a general escrow account or accounts with any state or national bank approved by Developer and doing business in the State of California. Such funds may be transferred to any other such general escrow account or accounts with Developer' s prior written approval . Escrow shall close and title to the Site shall be conveyed to the Developer in accordance with the Schedule of Performance. If escrow is not in a condition to permit conveyance by the time therefor established in the Schedule of Performance, either party not in default may demand in writing the return of its money or documents from the Escrow Agent. Upon such demand, Escrow Agent shall notify the other party. If objections are raised in written notice to Escrow Agent within ten (10) days after notice is given to 26 22'7140 the other party, Escrow Agent shall hold all money and documents until otherwise instructed by mutual agreement of the parties or by a court of competent jurisdiction. If no such demand is made, Escrow shall be closed as soon as possible thereafter. Any amendment to these escrow instructions shall be in writing and signed by both the Developer and the Agency. At the time of any such amendment the Escrow Agent shall agree to carry out its duties as Escrow Agent under and pursuant to these instructions as so amended. All communications from Escrow Agent to the Agency or the Developer shall be directed to the addresses and in the manner provided in Section 9 . 1 for notices, demands, and communications. The liability of the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Sections 4 . 7 to 4 . 15, inclusive, of this Agreement. 4 . 8 Conveyance of Title and Delivery of Possession. Subject to any mutually agreed upon extensions of time, which shall not be unreasonably withheld, the Agency shall convey to the Developer title to the Site, or possession of the Site as provided in Section 4 . 11 of this Agreement, within the time provided therefor in the Schedule of Performance. Agency and Developer shall perform all acts 27 22'714O which are reasonably necessary to accomplish the conveyance of title or possession within the time therefor provided in the Schedule of Performance. Possession of the Site shall be delivered to the Developer concurrently with the conveyance of title, except that possession may be transferred to the Developer prior to the conveyance of title as provided in Section 4 . 11. The Developer shall accept such title and possession upon tender thereof by the Agency in accordance with the terms of this Agreement. 4 . 9 Form of Deed. The Agency shall convey to the Developer title to the Site in the condition provided in Sections 4 . 10 or 4 . 11 of this Agreement by the Agency Deed consistent with the terms, covenants and conditions of this Agreement. 4 . 10 Condition of Title. The Agency shall convey to the Developer fee simple title to the Site free and clear of all liens, encumbrances, assessments, easements, leases, taxes, covenants, conditions, restrictions or other defects or exceptions except as are set forth in the Schedule of Permitted Exceptions attached hereto as Exhibit L. Title to the Site shall be subject to the covenants, conditions and restrictions set forth in this Agreement. 4 . 11 Order of Immediate Possession. If, at or prior to the time provided in the Schedule of Performance 28 227140 for conveyance of the Site, the Agency has not obtained title to the Site, but has obtained a judicial order authorizing the Agency to take possession thereof (and thereafter obtains possession thereof) , the Agency may deposit a copy of the order and the Agency Deed based on such order into escrow. Notwithstanding the provisions of this Agreement requiring the Agency to use its best efforts to acquire title to the Site prior to the time provided for conveyance of such title in the Schedule of Performance and to deposit the Agency Deed for the Site into escrow prior to such time, if the Agency has so deposited said order and deed and, (i) the Agency delivers exclusive possession of the Site to the Developer free from the use or possession of any third party by a deed or other instrument reasonably approved as a means of effectuating this Agreement by the Agency and Developer, on or prior to the time set for conveyance thereof, and (ii) the right of possession which the Developer acquires from the Agency is such' that the Title Company (as defined in Section 4 . 13) will irrevocably commit to issue a policy or policies of title insurance insuring title to the Site and satisfying the requirements of Section 4 . 10. , and (iii) the Developer determines in the exercise of its reasonable business judgement that it will be able to secure market rate financing for the development of the Site on the basis of said title insurance policy or policies; and (iv) the Agency agrees in writing to the 29 227140 Developer to diligently proceed with the eminent domain action until a final judgement is rendered, and the Agency and the Developer agree that based upon the facts and circumstances that are known to them said judgment will authorize the taking, and (v) all occupants have been removed from the Site; then the Developer (i) shall not exercise any right it may otherwise have to terminate the provisions of this Agreement with respect to the acquisition of the Site and shall accept such possession and the Escrow shall remain open until the Agency Deed is deposited therein in accordance with Section 4 . 7 , and (ii) shall not thereafter request that the Agency abandon any eminent domain proceeding with respect to the Site, and (iii) shall thereafter provide for the payment of all Acquisition Costs thereafter incurred by the Agency with respect to such eminent domain proceedings. Agency hereby agrees to provide all reasonably necessary and appropriate indemnities and other assurances to the Title Company to effect the issuance of a title policy satisfying the requirements of Section 4 . 13 after the issuance of the order of prejudgment possession. All such indemnities and assurances shall be reasonably satisfactory to Developer. 4 . 12 Time and Place for Delivery of Agency Deed and Recordation Thereof. Subject to any mutually agreed upon extension of time, the Agency shall deposit the Agency 30 22'7140 Deed with the Escrow Agent on or before the date established as the date of conveyance of the Site pursuant to the Schedule of Performance. Prior to the delivery of the Agency Deed to Developer, the Escrow Agent shall file the Agency Deed for recordation among the land records in the office of the County Recorder for Riverside County, California. 4 . 13 Title Insurance. Prior to recordation of the Agency Deed conveying title to the Site, Continental Land Title Insurance Company or such other title insurance company satisfactory to the Developer and the Agency ( "Title Company") shall provide and deliver to the Developer its irrevocable commitment to issue its ALTA form B-1970 owner' s extended coverage title insurance policy (in such form and with such endorsements as may be required by Developer in its sole and absolute discretion) issued by the Title Company insuring that the title to the Site is vested in the Developer, in the condition required by Section 4 . 10 of this Agreement. The title insurance policy shall be in the amount of the purchase price for the Site or in such greater amount as the Developer may specify as hereinafter provided. The Developer shall pay for all premiums with respect to title insurance including those for any extended coverage or special endorsements which it may request. 4 . 14 Taxes and Assessments. As between the Agency and the Developer, ad valorem taxes and assessments, if any, 31 227140 on the Site or any part thereof or interest therein after conveyance of the Site to Developer, shall be paid by the Developer and any of same levied, assessed or imposed for any period prior to such conveyance shall be paid by the Agency as an Acquisition Cost. 4 . 15 Conveyance Free of Possession. The Site shall be conveyed free of any possession or right of possession of any person except that of Developer, unless waived by Developer in writing. 4 . 16 Zoning of the Site. The zoning of the Site at the time of conveyance to the Developer shall be such as to permit development of the Site and the construction of proposed improvements thereon in accordance with the provisions of this Agreement, and the use, operation and maintenance of such improvements. The Agency agrees to provide all reasonable assistance to and cooperation with the Developer to obtain all specific plan, zoning and land use approvals from the City with respect to the Site. 5 . Site Development. 5. 1 Agreement to Develop Site. Subject to Section 9 . 4 below, Developer agrees to develop and construct the Site Development in accordance with the Scope of Development and the Schedule of Performance, and any and all plans, drawings, and related documents submitted to and approved by the City in connection with the phased development and construction of Site Area 2 of the Property 32 227140 (as described in Exhibit B) in accordance with the Land Use Development Plan (as defined in the Development Agreement) and the Development Agreement (collectively, the "Plans") . The Developer shall submit to the Agency a copy of all Plans pertaining to the Site Development- contemporaneously with any such submission to the City. The Agency shall have the right to review the Plans for the purpose of determining that the Site Development will be developed in a manner consistent with the goals and policies of the Redevelopment Plan; provided, however, that (1) the Agency shall be deemed to have approved any Plans if it fails to respond in writing to the Developer' s submission thereof within twenty (20) business days after such submission; and (2) the Agency shall not unreasonably withhold or delay its approval , and shall not withhold or delay its approval in any event if either (a) all necessary discretionary approvals, consents, and entitlements have been obtained by Developer from the City with respect to the matter to be approved by the Agency; or (b) the Plans submitted are a logical evolution or progression of and not in conflict with the Scope of Development or the Plans theretofore approved by the Agency. Any disapproval by the Agency shall state in writing in reasonable detail the reasons for disapproval and the changes which the Agency requests to be made. Such reasons and such changes must be consistent with the Scope of Development and any items previously approved or deemed 33 22'714O approved hereunder. The Agency agrees that it will not impose any condition upon the development of the Site Development or require any modification of the Plans which will conflict with any City requirement applicable to the development of the Site. Once any submission is approved or deemed approved by the Agency, the same shall be deemed to be in accordance with the Redevelopment Plan and shall not be subsequently disapproved. The Agency specifically agrees and acknowledges that the Scope of Development and the Schedule of the Performance apply only to the design, development, and construction of the Site Development and the Public Improvements and not the design development and construction of the remainder of the Project, which will be governed exclusively by the Development Agreement. 5 . 2 Cost of Construction; Reporting to Agency. The Developer shall be responsible for all costs of developing and constructing the Site Development and constructing all improvements thereon and related thereto. During periods of construction, the Developer shall submit to the Agency a written report of the progress of the construction when and as reasonably requested by the Agency (but not more frequently than quarterly) . The report shall be in such form and detail as may be reasonably required by the Agency. 34 227140 5 . 3 Phasing of Site Development. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which Project phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. Therefore, the parties hereby acknowledge and expressly agree that the Project shall be developed in phases in accordance with the Development Agreement. The Minimum Development Requirements set forth in Paragraph B of the Scope of Development describe those improvements which the Developer is -required by this Agreement to develop in connection with the Site Development (the "Site Improvements") . Developer agrees to cause the Site Improvements to be designed, developed, and constructed as set forth in the Scope of Development, the Schedule of Performance, and such Plans relating thereto as may be approved by the Agency or the City, as applicable, in accordance with this Section 5. Those improvements associated with the Site Development and described in Paragraph C of the Scope of Development shall be designed, developed and constructed by Developer in conjunction with the phased development and construction of the Project as provided in the Development Agreement and shall be subject only to the provisions of the Development Agreement. 35 227140 The Agency agrees that it shall use its best efforts to facilitate the development of the Site Development and to the extent it reasonably has the ability to do so shall perform such actions as necessary or appropriate to provide Developer with reasonable access and means to complete any offsite improvements associated with the Site Development, including, without limitation, providing such easements, rights of way, ingress and egress as may be necessary or appropriate to the development and construction of such site improvements. 5. 4 Indemnification During Construction; Bodily Injury and Property Damage Insurance. During the period commencing with any preliminary work by Developer on or with regard to the Site Development (or if none then upon the conveyance of the Site to the Developer) , and ending on such date as the Agency is required to issue a Certificate of Completion (as defined in Section 5. 15) with respect to the construction of the Site Improvements, the Developer agrees to and shall defend, indemnify and hold the Agency and the City and their respective officers, employees, contractors and agents harmless from and against all liability, loss, damage, costs, or expenses (including reasonable attorney ' s fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss, or damage whatsoever caused to any person or to the property of any person which shall occur directly or indirectly as a result 36 22'7140 of this Agreement, and which shall be directly or indirectly caused by any negligent or wrongful errors or omissions of the Developer or its agents, servants, employees, or contractors with respect to the development and construction of the Site Development. The Developer shall not be responsible for, and such indemnity shall not apply to, any acts, errors, or omissions (or breach of this Agreement) of the Agency or the City or their respective agents, servants, employees, or contractors. During the period commencing with any preliminary work by Developer on or with regard to the Site Development (or if none then upon the conveyance of the Site to the Developer) , and ending on such date as the Agency is required to issue a Certificate of Completion with respect to the construction of Site Improvements, the Developer shall furnish or cause to be furnished to the Agency, duplicate originals or appropriate certificates of insurance evidencing insurance issued by insurance carriers rated at least BXII plus in Best' s Insurance Guide and naming the City as an additional insured party as follows: A. Comprehensive general liability (bodily injury and property damage) , blanket contractual liability, and personal injury liability, all with limits of not less than $1, 000, 000 and a combined single limit per occurrence basis. 37 227140 B. Endorsements shall be obtained for the policies providing the above insurance for the following three provisions: 1 . Additional named insureds: "The Palm Desert Redevelopment Agency, the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees are added as additional named insureds with respect to this subject project and contract with the Agency. " 2 . Notice: "Said policy shall not terminate nor shall it be cancelled or the coverage reduced until after thirty (30) days written notice is given to the Palm Desert Redevelopment Agency. " 3 . Primary coverage: "Said policy and coverage as is afforded to the Palm Desert Redevelopment Agency and the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees shall be primary insurance and not contributing with any other insurance maintained by the Palm Desert Redevelopment Agency or the City of Palm Desert. " 5. 5 Antidiscrimination During Construction. The Developer for itself and its successors and assigns agrees that in the construction of the improvements with respect to the Site Development provided for in this Agreement, the 38 22140 Developer will not discriminate against any employee or applicant for employment because of sex, martial status, race, color, creed, religion, national origin, or ancestry. 5 . 6 Local, State, and Federal Laws. The Developer shall carry out the construction of the improvements with respect to the Site Development in conformity with all applicable laws, including all applicable Federal and State of California labor standards. The Agency represents that the United States is not a party to any contract at this time regarding the construction or development of the Site Development, and that such construction is not at this time financed, in whole or in part by loans or grants from the United States. 5 . 7 City and Other Governmental Agency Permits. Before commencement of construction or development of any buildings, structures or other work of improvement upon or with respect to any portion of the Site Development, the Developer shall, at its own expense, secure or cause to be secured, any and all permits which may be required by the City or any other governmental agency having jurisdiction over such construction, development or work. The Agency shall provide all reasonable assistance to the Developer in securing such permits. 5. 8 Rights of Access. Representatives of the Agency shall have the reasonable right of access to the Site or any part thereof without charges or fees, at normal 39 22 '14O construction hours during the period of construction for purposes of determining compliance with plans approved under this Agreement, or the provisions of the Redevelopment Plan, including, but not limited to, the inspection of the work being performed in constructing the Site Development and the Developer shall , upon receipt of written request from the Agency, make appropriate representatives available at the Site during the course of such inspections by the Agency. Such representatives of the Agency shall be those who are so identified in writing by the Executive Director of the Agency. Such Agency representatives shall have access to the Site only when accompanied by a representative of Developer and only if such representatives) have been previously identified to Developer in writing. Agency shall indemnify and hold the Developer harmless from any claims, liabilities, cost and expenses (including reasonable attorney' s fees and costs) resulting directly or indirectly from any wilful or negligent acts of Agency or its representatives arising from such entry. 5. 9 Taxes, Assessments, Encumbrances and Liens. The Developer shall pay before delinquency all real estate taxes and assessments assessed and levied on or against the Site and each portion thereof subsequent to the conveyance of the title or possession by Agency. Nothing herein contained shall be deemed to prohibit the Developer from contesting the validity or amount of any tax assessment, 40 227140 encumbrance or lien, nor to limit the remedies available to the Developer in respect thereto, provided, however that the Developer timely pays all such taxes and assessments on a timely basis. 5 . 10 Prohibition Against Transfer. No voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers or shall assume or be encumbered by any obligations or duties under this Agreement with respect to the Site except as expressly set forth herein. Prior to the date the Agency is required to issue the Certificate of Completion as defined in Section 5 . 15 hereof, the Developer shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any right herein with respect to the Site or delegate or transfer or attempt to delegate or transfer any obligations or duties of the Developer hereunder with respect to the Site, nor make any total or partial sale, transfer, conveyance, sale, ground lease or assignment of the whole or any part of the Site or the improvements thereon without prior written approval of the Agency, which approval shall not be unreasonably withheld or delayed. This prohibition shall not apply to the following: (a) any mortgage, deed of trust, sale and leaseback or other form of conveyance or encumbrance for financing (collectively, "Mortgage") for the purpose of securing loans 41 22'7140 of funds to be used for financing the direct and indirect costs (including, without limitation, financing costs, interest and commissions, and the refinancing of any equity investment by Developer) of acquiring, designing, constructing, developing, leasing and operating the Site and improvements to be constructed on the Site or any portion thereof pursuant to this Agreement, including permanent take-out loans placed on the Site prior to completion of construction, and any collateral assignment of this Agreement to the holder of any Mortgage; (b) the sale or conveyance of the Site or any portion thereof (i) to the mortgagee under the Mortgage or to any other person or entity acquiring the Site at a foreclosure sale or by deed in lieu of foreclosure (a "Mortgagee") ; and (ii) following foreclosure or acquisition by deed in lieu of foreclosure, by the Mortgagee to any third party (as used herein "Mortgage" includes all commercially reasonable modes of financing real estate acquisition, construction, or land development) ; (c) the sale, ground leasing or transfer of any portion of the Site to any tenant occupying at least (20, 000) square feet of gross leaseable area in the Project ("Major") , provided such Major is an experienced retailer which generally acquires sites in retail centers for the purposes of erecting, constructing, maintaining and operating (or causing to be erected, constructing, 42 227140 maintained and operated) retail stores, and further provided that such Major' s use or proposed use of the Site or the improvements thereon is consistent with the Scope of Development or is otherwise designated on Plans approved by the Agency pursuant to this Agreement; (d) the conveyance or dedication of any portion of the Site to the City, Agency, or other appropriate governmental agency, or the granting of easements or permits to facilitate the development of the Site or the leasing of space for occupancy on the Site; (e) the sale, ground leasing, or leasing of any portion of the Site or improvements thereon for development pads approved as such by Agency on Plans approved by Agency under this Agreement; provided that said sale, ground lease or lease shall not relieve Developer of its obligations hereunder with respect to the Site; (f) the conveyance of all of the Developer' s right, title, and interest in the Site to a joint venture or partnership in which the Developer is a general partner, or a corporation owned or controlled by, owning or controlling, or in common ownership or control with Developer (a "Developer Affiliate") , and the subsequent transfer and conveyance by such Developer Affiliate of legal , equitable, or beneficial ownership interests in such entity; provided, however, that Ahmanson Commercial Development Company or a parent, subsidiary, or affiliate thereof shall not be 43 22'7140 relieved of any obligations or duties under this Agreement with respect to the Site in the event of such conveyance and shall guarantee the full performance of said Developer Affiliate unless the Agency shall have otherwise consented to such transfer or conveyance in writing, which consent shall not be unreasonably withheld or delayed; and (g) the assignment by the Developer of any of its rights herein with respect to the Site and (unless otherwise expressly prohibited in this Section 5 . 10) the delegation or the transfer by the Developer of any of its obligations or duties hereunder with respect to the Site made in connection with any of the sales, leases, transfers or conveyances described above; provided that any such rights may be assigned and such duties or obligations may be transferred or delegated only upon delivery of written notice by the Developer to the Agency at least ten ( 10) days prior thereto, which notice shall specify the rights to be assigned or the duties or obligations to be delegated or transferred, and such purchaser, lessee, or transferee shall provide a written notice to the Agency specifying which duties or obligations are to be assumed. The Agency shall take all actions reasonably necessary to accomplish the assignment, transfer or delegation of any such rights or interests and such duties or obligations of the Developer in the Site. 44 22'7140 5 . 11 Security Financing; Right of Holders; Holder Not Obligated to Construct. The holder of any Mortgage authorized by this Agreement shall in no way be obligated by the provisions of this Agreement to construct or complete the Site Development or to guarantee such construction or completion; nor shall any covenant or any other provision in a deed for all or any portion of the Site be construed so to obligate such holder. Nothing in this Agreement shall be deemed to construe, permit, or authorize any such holder to devote the Site to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. Notwithstanding the foregoing, in the event a Mortgagee acquires the Site upon foreclosure of a Mortgage (or by deed in lieu of foreclosure) it may elect to assume the Developer' s obligations under this Agreement with respect to the Site by entering into a written assumption agreement reasonably satisfactory to the Agency (the "Assumption Agreement") . Such Assumption Agreement shall provide that said Mortgagee shall agree to complete, or cause to be completed, the Site Development in the manner provided in this Agreement, and upon such completion shall be entitled, upon written request made to the Agency, to a Certificate of Completion from the Agency in accordance with Section 5 . 15 below. Notwithstanding the foregoing, the Developer shall 45 227140 promptly notify the Agency in writing of the name and address of each and every holder of any Mortgage applicable to the Site. 5. 12 Notice of Default to Mortgagees, Beneficiaries of Deeds of Trust or Other Security Interest Holders ; Right to Cure; Limited Liability. Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer under this Agreement with respect to the Site, the Agency shall at the same time deliver a copy of such notice or demand to each holder of record of any Mortgage. The Agency will cooperate with any construction or permanent lender to the extent reasonably necessary to modify the provisions of this Section 5 . 12 (and any other provisions of this Agreement relating to lender' s security and their rights and remedies) to meet the requirements of such lender. Each such lender shall (insofar as the rights of the Agency are concerned) have the right at its option within sixty (60) days after the receipt of the aforesaid notice to cure or remedy any such default and to add the cost thereof to the security interest debt and the lien on its security interest. If such default shall be a default which can only be remedied or cured by such holder upon foreclosure or appointment of a receiver, such holder shall exercise appropriate remedies under the Mortgage with diligence and continuity through foreclosure or the 46 227140 appointment of a receiver or otherwise, and the Mortgagee shall remedy or cure such default within ninety (90) days thereafter, provided that in the case of a default which cannot with diligence be remedied or cured, or the remedy or cure of which cannot be commenced, within such ninety (90) day period, such Mortgagee shall have such additional time as is necessary to remedy or cure such default of the Developer, and if such default is incurable, the Agency shall be deemed to waive such default provided such Mortgagee has diligently attempted to cure or remedy all curable or remediable defaults. The Agency shall not agree with Developer to any termination of this Agreement with respect to the Site except as expressly provided under the terms of this Agreement, and shall not consent to any material amendment or modification hereof with respect to the Site without the prior written consent of the Mortgagee, which shall not be unreasonably withheld. In the event a Mortgagee acquires the Site through foreclosure of a Mortgage (or by deed in lieu of foreclosure) , such Mortgagee shall be personally liable for the obligations of Developer under this Agreement with respect to the Site only for the period of time that such Mortgagee is the owner of the Site and only to the extent expressly provided for in this Agreement. In the event such Mortgagee subsequently assigns or transfers its interest in the Site in accordance with this Agreement, or if in 47 22'7A40 connection with any such assignment or transfer such Mortgagee takes back a mortgage or deed of trust encumbering the Site to secure a portion of the purchase price given to such Mortgagee for such assignment or transfer, then such Mortgagee shall nevertheless be relieved of any liability under this Agreement to the same extent provided for above, and such purchase money mortgage or deed of trust shall be considered a mortgage as contemplated under this Agreement. 5 . 13 Right of Agency to Cure Mortgage, Deed of Trust, or Other Security Interest Default. In the event of a default or breach by the Developer of a Mortgage, deed of trust or other security interest with respect to the Site (or any portion thereof) prior to the issuance of a Certificate of Completion by the Agency, and the holder has not exercised its option to complete the development of the Site Development in accordance with this Agreement, the Agency may cure the default prior to completion of any foreclosure. In such event, the Agency shall be entitled to reimbursement from the Developer of all reasonable costs and expenses incurred by the Agency in curing the default. 5 . 14 Right of the Agency to Satisfy Other Liens on the Property After Title Passes. Prior to the recordation of the Certificate of Completion, and after the Developer has had a reasonable time to challenge, cure or satisfy any unpermitted liens or encumbrances on the Site (or any portion thereof) , the Agency shall have the right to satisfy 48 227140 any such liens on encumbrances; provided, however, that nothing in this Agreement shall require the Developer to pay or make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Site (or any portion thereof) to forfeiture or sale. 5 . 15 Certificate of Completion. Promptly after substantial completion of the Site Improvements set forth in the attached Scope of Development,, the Agency shall furnish the Developer with a certificate of completion (the "Certificate of Completion") . As used in this Agreement, "substantial completion" shall mean the date certified by the architect for the Project selected by the Developer (the "Project Architect") , and reasonably determined by the Agency, as the date when construction of the Site Improvements is sufficiently complete so that the improvements comprising said Site Improvements can be occupied or utilized for the use for which they are intended. The Agency shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Completion shall be, and shall state that it is, a conclusive determination of satisfactory completion of the construction and development required by this Agreement for the entire Site in full compliance with this Agreement and the Redevelopment Plan. 49 22'7140 The Certificate of Completion shall apply only to the completion of the Site Improvements as required in the Scope of Development and shall not pertain to the other Project-related improvements to be constructed by Developer on or with respect to the Site in accordance with the Development Agreement. The Certificate of Completion shall be in such form as to permit it to be recorded in the office of the Recorder of Riverside County. If the Agency refuses or fails to furnish a Certificate of Completion for the Site after written request from the Developer, the Agency shall, within thirty (30) days of the written request, provide the Developer with a written statement which details the reasons the Agency refused or failed to furnish such Certificate. The statement shall also contain the Agency' s determination of the action the Developer must take to obtain such Certificate. If the reason for such refusal is confined to the immediate unavailability of specific items or other "punch list" items, Agency shall issue the Certificate of Completion, upon Developer posting a bond with Agency in an amount equal to the reasonable cost of the work not yet completed. If no written statement is delivered within said thirty (30) day period, Developer shall be deemed entitled to the Certificate of Completion. 50 227140 The Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a Mortgage, or any insurer of a Mortgage securing money loaned to finance the improvements, nor any part thereof. The Certificate of Completion is not notice of completion as referred to in Section 3093 of the California Civil Code. 6 . USE OF THE SITE. 6 . 1 Uses. The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, that during construction and thereafter, until the applicable date set forth in Section 8 . 1, the Developer its successors and assigns shall develop and devote the Site to the uses specified in the Scope of Development, the Agency Deed, this Section 6 . 1 and all plans approved by the Agency pursuant to this Agreement. 6. 2 Maintenance of the Site. At no expense to the Agency, the Developer shall , until the applicable date set forth in Section 8 . 1, maintain the Site Improvements in a first-class condition, consistent with other regional commercial centers of comparable size in Southern California, to the extent that they have remained intact or have been constructed or developed pursuant to this 51 221140 Agreement. Developer shall keep the Site reasonably free from any accumulation of debris or waste materials (subject to normal job site conditions) . The Developer shall also, until the applicable date set forth in Section 8 . 1, maintain in a healthy condition the landscaping improvements required under the Scope of Development. 6. 3 Obligation to Refrain From Discrimination. The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees of the Site. In the event that any proceedings are commenced against Developer, any Major or any tenant of the Project alleging that Developer, such Major or tenant has committed an act prohibited by this Section, then provided Developer, such Major or tenant fully complies with all directives of the governmental authority asserting 52 221140 jurisdiction in such proceedings, or upon settlement of any private action, or if any such proceedings are dismissed, such compliance, settlement or dismissal shall constitute substitute performance by Developer, such Major or tenant, of its obligations under this Section 6 . 3 6 . 4 Form of Nondiscrimination and Nonsegregation Clauses. The Developer shall refrain from restricting the rental , sale or lease of the Site on the basis of sex, marital status, race, color, creed, religion, ancestry or national origin of any person. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 1. In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " 2 . In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: 53 22'714O That there shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the leasing, subleasing, renting, transferring; use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessee, subtenants, or vendees in the land herein leased. " 3 . In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices or discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees of the land. " 7 . Construction of Public Improvements. 7 . 1 Agreement to Construct Public Improvements. Subject to Section 9 . 4 below, Developer agrees to develop and construct the Public Improvements in accordance with the Scope of Development and the Schedule of Performance, and any and all plans, drawings, and related documents submitted to and approved by the City in connection with the phased development and construction of Site Area 5 of the Project in accordance with the Land Use Development Plan (as defined in the Development Agreement) and the Development Agreement 54 22 140 (collectively, the "Public Improvement Plans") . The Developer shall submit to the Agency a copy of all Public Improvement Plans contemporaneously with any such submission to the City. The Agency shall have the right to review the Public Improvement Plans for the purpose of determining that the Public Improvements will be constructed in a manner consistent with the goals and policies of the Redevelopment Plan; provided, however, that (1) the Agency shall be deemed to have approved any Public Improvement Plans if it fails to respond in writing to the Developer ' s submission thereof within twenty (20) business days after such submission; and (2) the Agency shall not unreasonably withhold or delay its approval , and shall not withhold or delay its approval in any event if either (a) all necessary discretionary approvals, consents, and entitlements have been obtained by Developer from the City with respect to the matter to be approved by the Agency or (b) the Public Improvement Plans submitted are a logical evolution or progression of and not in conflict with the Scope of Development or the Public Improvement Plans theretofore approved by the Agency. Any disapproval by the Agency shall state in writing in reasonable detail the reasons for disapproval and the changes which the Agency requests to be made. Such reasons and such changes must be consistent with the Scope of Development and any items previously approved or deemed approved hereunder. The Agency agrees that it will not 55 227140 impose any condition upon the construction of the Public Improvements or require any modification of the Public Improvement Plans which will conflict with any City requirement applicable to the construction of the Public Improvements. Once any submission is approved or deemed approved by the Agency, the same shall be deemed to be in accordance with the Redevelopment Plan and in compliance with the provisions of this Agreement and shall not be subsequently disapproved. 7 . 2 Cost of Construction; Reporting to Agency. The Developer shall be responsible for all costs of developing and constructing the Public Improvements; provided, however, that Developer shall be entitled to receive reimbursement from the Agency for certain costs of developing and constructing the Public Improvements as provided in Section 7 . 4 hereof. During periods of construction, the Developer shall submit to the Agency a written report of the progress of the construction when and as reasonably requested by the Agency (but not more frequently than quarterly) . The report shall be in such form and detail as may be reasonably required by the Agency. 7 . 3 Construction of Public Improvements. The Developer agrees that to the extent required by law, all contracts for the construction of the Public Improvements shall be let in conformance with the public bidding 56 22 40 procedures and the requirements of the payment for prevailing wages applicable to similar contracts let by the Agency. The Agency agrees that it shall use its best efforts to facilitate the construction of the Public Improvements. 7 . 4 Agency Reimbursement; Pledge of Tax Increment. As reimbursement for the costs of the Public Improvements described in Paragraph 2 of Exhibit "H" and incurred by the Developer pursuant to Section 7 . 2 above, the Agency hereby irrevocably pledges as of the Effective Date and shall pay to the Developer, as hereinafter provided, beginning on the date on which the Final Public Improvement Certificate of Completion (as defined in Section 7 . 12 hereof) has been issued by the Agency with respect to the Public Improvements described in Paragraph 2 of Exhibit "H" (the "Reimbursement Date") , and thereafter as herein provided, Original Territory Available Property Tax Increment (as hereinafter defined) and Added Territory Available Property Tax Increment (as hereinafter defined) , provided (i) that the aggregate of such amounts shall not exceed the amount of the Public Improvement Reimbursable Costs (as hereinafter defined) then incurred by Developer and interest accrued on such amounts as hereinafter provided for and (ii) that the aggregate amount of such Original Territory Available Property Tax Increment and Added Territory Available 57 227140 Property Tax Increment paid to the Developer in reimbursement of the Public Improvement Reimbursable Costs incurred by the Developer and interest thereon shall in no event exceed in the aggregate $5, 000, 000. The Original Territory Available Property Tax Increment and Added Territory Available Property Tax Increment pledged to and paid or payable to the Developer as herein provided is hereinafter referred to collectively as the "Reimbursable Tax Increment" . All Reimbursable Tax Increment received by the Agency after the Effective Date shall be held by the Agency in its special fund established pursuant to the Redevelopment Law for the sole benefit of the Developer and shall be used for no other purposes of the Agency until it is dispersed to the Developer in the manner provided herein in full payment of the Public Improvement Reimbursable Costs. On and after the Reimbursement Date, the Agency shall, to the full extent that Reimbursable Tax Increment is available therefor, promptly pay upon receipt of a written request from Developer (a "Reimbursement Request") all Public Improvement Reimbursable Costs. The Reimbursement Request shall be signed by an authorized officer of the Developer and shall specify in reasonable detail the nature and amount of the Public Improvement Reimbursable Costs associated with such Public Improvements. The Reimbursement 58 227140 Request shall be subject to approval by the Agency, which approval shall not be unreasonably withheld or delayed. In the event and to the extent that the Developer is not promptly reimbursed by the Agency for any Public Improvement Reimbursable Costs following the Agency ' s receipt of a Reimbursement Request with respect thereto, the Agency shall promptly execute and deliver to the Developer a promissory note of the Agency in the form of Exhibit N (the "Note") , dated the date of the Agency ' s receipt of such Reimbursement Request, and in a principal amount equal to the amount of such unreimbursed Public Improvement Reimbursable Costs. Such Note shall be payable from the sole source of, and shall be secured solely by, Reimbursable Tax Increment. All payments by the Agency with respect to such Note shall first be applied to the payment of the principal amount thereof outstanding and then to the reduction of interest accrued on such Note, if any. In the event of a sale or transfer of' Developer' s interest in Site Area 5 as permitted by the Development Agreement, Developer shall be entitled to reimbursement as herein provided with respect to all Public Improvement Reimbursable Costs incurred prior to the date of such transfer and any permitted transferee of Developer shall be entitled to reimbursement of any Public Improvement Reimbursable Costs incurred by such transferee after acquiring Site Area 5 in accordance with the Development 59 227140 Agreement. Agency agrees to cooperate with Developer and any such transferee in the event of any change of ownership of Site Area 5 by executing any documents reasonably requested in connection with such conveyance to document the rights of the parties to reimbursement in accordance with this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the Agency' s obligation to reimburse Developer for the full amount of the Public Improvement Reimbursable Costs as provided herein shall constitute an indebtedness of the Agency within the meaning of the Redevelopment Law and the Redevelopment Plan, for which Reimbursable Tax Increment has been pledged by the Agency in payment thereof. Such obligations shall continue and remain in full force and effect until all such amounts are paid from Reimbursable Tax Increment, and such obligation shall survive any earlier expiration or termination of this Agreement. As used in this Agreement the following terms shall have the meanings set forth below: "Original Territory Available Property Tax Increment" shall mean for any year that portion of the Tax Increment (as hereinafter defined) from the Project Area which is produced as a result of the acquisition of the Property by the Developer or the development of the Project and which is attributable to the Original Territory located 60 22'7140 in the Project Area, which sum shall be net of only the following amounts: (A) the amount of such Tax Increment required to be set aside pursuant to California Health and Safety Code Sections 33334 . 2 , 33334 . 3 and 33334 . 6 for low and moderate income housing purposes (provided, however, that in any year the amount of Original Territory Available Property Tax Increment so set aside shall not exceed twenty two percent (22%) of the Original Territory Available Property Tax Increment attributable to such year) ; and (B) the amount of Tax Increment pledged to the payment of indebtedness incurred by the Agency with respect to the implementation of the Redevelopment Plan and outstanding as of the Effective Date. "Added Territory Available Property Tax Increment" shall mean for any year that portion of the Tax Increment from the Project Area which is produced as a result of the acquisition of the Property by the Developer or the development of the Project and which is attributable to the Added Territory located in the Project Area, which sum shall be net of the following amounts: (A) the amount of such Tax Increment required to be set aside pursuant to California Health and Safety Code Sections 33334 . 2 , 33334 . 3 and 33334 . 6 for low and moderate income housing purposes (provided, however, that in any year the amount of Added Territory Available Property Tax Increment so set aside shall not exceed twenty two percent (22%) of the Added Territory 61 227140 Available Property Tax Increment attributable to such year) ; (B) the amount of Tax Increment required to be paid to or for the benefit of taxing entities pursuant to agreements entered into between the Agency and such taxing entities and in effect prior to the Effective Date; and (C) the amount of Tax Increment pledged to the payment of indebtedness incurred by the Agency with respect to the implementation of the Redevelopment Plan and outstanding as of the Effective Date. Notwithstanding anything to the contrary contained herein, Tax Increment attributable to the Added Territory will not constitute Added Territory Available Property Tax Increment until such time as the Redevelopment Plan may be amended to permit such Tax Increment to be used by the Agency to finance costs of redevelopment in the nature of the Public Improvements. "Tax Increment" shall mean those property tax revenues which are to be allocated to and paid into the special fund of the Agency pursuant to Health and Safety Code Section 33670 (b) and the Redevelopment Plan. "Public Improvement Reimbursable Costs" shall mean all costs, expenses and associated fees actually incurred by Developer prior to or after the Effective Date in connection with the design, planning, development and construction of 62 22'?140 Agreement) of the Agency or the City or their respective agents, servants, employees, or contractors. During the period commencing upon the date of commencement of construction of the Public Improvements, and ending on such date as the Agency is required to issue the Final Public Improvements Certificate of Completion with respect to the construction of of the Public Improvements, the Developer shall furnish or cause to be furnished to the Agency, duplicate originals or appropriate certificates of insurance evidencing insurance issued by insurance carriers rated at least BXII plus in Best ' s Insurance Guide and naming the City as an additional insured party as follows: A. Comprehensive general -liability (bodily injury and property damage) , blanket contractual liability, and personal injury liability, all with limits of not less than $1, 000, 000 and a combined single limit per occurrence basis. B. Endorsements shall be obtained for the policies providing the above insurance for the following three provisions: 1. Additional named insureds: "The Palm Desert Redevelopment Agency, the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees are added as additional named insureds with respect to this subject project and contract with the Agency. " 64 227140 2 . Notice: "Said policy shall not terminate nor shall it be cancelled or the coverage reduced until after thirty (30) days written notice is given to the Palm Desert Redevelopment Agency. " 3 . Primary coverage: "Said policy and coverage as is afforded to the Palm Desert Redevelopment Agency and the City of Palm Desert, their respective elective and appointive boards, officers, agents and employees shall be primary insurance and not contributing with any other insurance maintained by the Palm Desert Redevelopment Agency or the City of Palm Desert. " 7 . 6 Antidiscrimination During Construction. The Developer for itself and its successors and assigns agrees that in the construction of the Public Improvements, the Developer will not discriminate against any employee or applicant for employment because of sex, martial status, race, color, creed, religion, national origin, or ancestry. 7 .7 Local, State, and Federal Laws. The Developer shall carry out the construction of the Public Improvements in conformity with all applicable laws, including all applicable Federal and State of California labor standards. The Agency represents that the United States is not a party to any contract at this time regarding the construction of 65 22'71,103 the Public Improvements, and that such construction is not at this time financed, in whole or in part by loans or grants from the United States. 7 . 8 City and Other Governmental Agency Permits. Before commencement of construction of the Public Improvements, the Developer shall , at its own expense, secure or cause to be secured any and all permits which may be required by the City or any other governmental agency having jurisdiction over such construction. The Agency shall provide all reasonable assistance to the Developer in securing such permits. 7 . 9 Rights of Access. Representatives of the Agency shall have the reasonable right of access to Site Area 5 or any part thereof without charges or fees, at normal construction hours during the period of construction of the Public Improvements for purposes of determining compliance with plans approved under this Agreement, or the provisions of the Redevelopment Plan, including, but not limited to, the inspection of the work being performed in constructing the Public Improvements and the Developer shall, upon receipt of written request from the Agency, make appropriate representatives available at the Site during the course of such inspections by the Agency. Such representatives of the Agency shall be those who are so identified in writing by the Executive Director of the Agency. Such Agency representatives shall have access to 66 227140 Site Area 5 only when accompanied by a representative of Developer and only if such representative (s) have been previously identified to Developer in writing. Agency shall indemnify and hold the Developer harmless from any claims, liabilities, cost and expenses (including reasonable attorney' s fees and costs) resulting directly or indirectly from any wilful or negligent acts of Agency or its representatives arising from such entry. 7 . 10 Prohibition Against Transfer. No voluntary or involuntary successor in interest of the Developer shall acquire any rights under this Agreement with respect to the reimbursement by the Agency of Public Improvement Reimbursable Costs or assume, or be deemed to have assumed, any obligations or duties with respect to the construction of the Public Improvements except as expressly set forth herein. Prior to the date the Agency is required to issue the Final Public Improvement Certificate of Completion as defined in Section 7 . 12 hereof, the Developer shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any right herein with respect to the reimbursement by the Agency of Public Improvement Reimbursable Costs (including the Note representing such right of reimbursement) or delegate or transfer or attempt to delegate or transfer any obligations or duties of the Developer hereunder with respect to the construction of the 67 227140 Public Improvements, without prior written approval of the Agency, which approval shall not be unreasonably withheld or delayed. This prohibition shall not apply to the sale, transfer, assignment or conveyance of all or a portion of the Developer' s rights or interests in the reimbursement obligations of the Agency hereunder with respect to the Public Improvement Reimbursable Costs (including the Note) or the Developer' s obligations or duties with respect to the construction of the Public Improvements made in connection with any transfer of interest of the Developer in Site Area 5 of the Project in accordance with the provisions of the Development Agreement. Such rights and duties and obligations may not be sold, transferred, assigned, conveyed or delegated except in compliance with the following conditions: (a) At least ten (10) days prior to any such sale, transfer, assignment, conveyance or delegation, the Developer shall notify the Agency in writing of the rights (including the Note, if appropriate) or the duties or obligations to be sold, transferred assigned, conveyed or delegated and the name and address of the purchaser, transferee or assignee and the purchaser, transferee or assignee shall provide a written notice to the Agency specifying the duties or obligations to be assumed; and (b) With respect to the transfer of any such obligations or duties of the Developer, the Developer shall 68 22 140 have received the prior written consent of the City as required by Section 10 . 1 (ii) of the Development Agreement. The Agency shall take all actions reasonably necessary to accomplish the sale, transfer, assignment, conveyance or delegation of such rights and interests and such duties and obligations as permitted pursuant to this Section 7 . 10, including, but not limited to, the execution and delivery of new Notes for the benefit of any such purchaser or transferee in substitution of any Note previously delivered to the Developer. 7 . 11 Security Financing; Holder Not Obligated to Construct. The holder of any Mortgage with respect to Site Area 5 shall in no way be obligated by the provisions of this Agreement to construct or complete the Public Improvements or to guarantee such construction or completion unless such holder shall have expressly assumed such obligations as provided in Section 7 . 10 hereof. 7 . 12 Public Improvement Certificate of Completion; Final Public Improvement Certificate of Completion. Promptly after the granting of the easement described in Paragraph 1 of Exhibit "H" , the Agency shall furnish the Developer with a certificate of completion with respect thereto (the "Public Improvement Certificate of Completion") . The Agency shall not unreasonably withhold such Public Improvement Certificate of Completion. Such Public Improvement Certificate of Completion shall be, and 69 22 '140 shall state that it is, a conclusive determination of satisfactory establishment of the aforesaid easement in full compliance with this Agreement and the Redevelopment Plan. Promptly after substantial completion of the Public Improvements described in Paragraph 2 of Exhibit "H" , the Agency shall furnish to the Developer a final Public Improvement Certificate of Completion ("Final Public Improvement Certificate of Completion") , which shall be, and shall state that it is, a conclusive determination of satisfaction of all of the Developer' s obligations hereunder with respect to the Public Improvements in full compliance with this Agreement and the Redevelopment Plan. As used in this Agreement, "substantial completion" shall mean the date certified by the Project Architect, and reasonably determined by the Agency, as the date when construction of the subject Public Improvements is sufficiently complete so that they can be utilized for the use for which they are intended. The Agency shall not unreasonably withhold such Final Public Improvement Certificate of Completion. Such Final Public Improvement Certificate of Completion shall be, and shall state that it is, a conclusive determination of satisfactory completion of the construction of the Public Improvements to which it pertains in full compliance with this Agreement and the Redevelopment Plan. The Public Improvement Certificate of Completion and the Final Public Improvement Certificate of Completion 70 22'714o shall be in such form as to permit each such Certificate to be recorded in the office of the Recorder of Riverside County. If the Agency refuses or fails to furnish a Public Improvement Certificate of Completion or a Final Public Improvement Certificate of Completion after written request from the Developer, the Agency shall, within thirty (30) days of the written request, provide the Developer with a written statement which details the reasons the Agency refused or failed to furnish such Certificate. The statement shall also contain the Agency' s determination of the action the Developer must take to obtain such Certificate. If the reason for such refusal is confined to the immediate unavailability of specific items or other "punch list" items, Agency shall issue the Certificate upon Developer posting a bond with Agency in an amount equal to the reasonable cost of the work not yet completed. If no written statement is delivered within said thirty (30) day period, Developer shall be deemed entitled to the Public Improvement Certificate of Completion and Final Public Improvement Certificate of Completion, as applicable. Such Certificates shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a Mortgage, or any insurer of a Mortgage securing money loaned to finance the Public 71 221140 Improvements, nor any part thereof. Such Certificates are not notice of completion as referred to in Section 3093 of the California Civil Code. 8 . DURATION OF COVENANTS ; DEFAULTS, REMEDIES AND TERMINATION 8 . 1 Effect and Duration of Covenants and Agreements. The covenants established in this Agreement with respect to the Site shall, without regard to technical classification, be binding upon the Developer and any successor in interest of the Developer to the Site for the benefit and in favor of the Agency, and its successors and assigns. After issuance of a Certificate of Completion with respect to the Site Improvements, all of the covenants, agreements or conditions in this Agreement pertaining to the Site shall cease and terminate, except that the provisions of Sections 6. 3 and 6. 4 shall survive in perpetuity. After the issuance of a Final Public Improvement Certificate of Completion, all of the covenants, agreements or conditions in this Agreement pertaining to the Public Improvements shall cease and terminate, except that the reimbursement obligations of the Agency under Section 7 . 4 , to the extent not then performed, shall survive.- 8 . 2 Defaults. Subject to the extensions of time set forth in Section 9 . 4 , failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who 72 227140 fails or delays shall within the time periods set forth herein commence to cure and cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Failure or delay in giving such notice shall not constitute a waiver of any default. The Agency shall send copies of any such default notices to such persons and entities as Developer may designate pursuant to Section 9 . 1. Except as otherwise expressly provided in this Agreement, any failures or delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. In the event Developer is released from its obligations hereunder as to any portion of the Site as expressly provided for in Section 5. 10, or its obligations with respect to the construction of the Public Improvements or expressly provided for in Section 7 . 10, a default by either Developer or the transferee of such portion of their respective obligations under this Agreement shall not constitute a default by the other for any purpose 73 22'1140 whatsoever, and Agency shall look solely to the defaulting party for the enforcement of its obligations under this Agreement. 8 . 3 Institution of Legal Actions. After expiration of the applicable time periods set forth herein, in addition to any other rights or remedies, either party may institute legal or equitable (including specific performance) action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, in any other appropriate court of the County, or in the Federal District Court in the Central District of California. Without limitation on the right of either party to obtain equitable relief, in the event that either party is liable for damages to the other, such liability shall not exceed costs incurred by such other party in the performance of this Agreement and shall not extend to compensation for loss of future income, profits or assets. 8 . 4 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 8 . 5 Acceptance of Service of Process. In the event that any legal or equitable action is commenced by the Developer against the Agency, service of process on the 74 22'714O Agency shall be made by personal service upon the Executive Director or Chairman of the Agency, or in such other manner as may be provided by law. In the event that any legal or equitable action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon an officer of the Developer, or in such manner as may be provided by law, and shall be valid whether made within or without the State of California. 8. 6 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same or different times, or any other rights or remedies for the same default or any other default by the other party. 8 . 7 Damages. If either party defaults with regard to any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the defaulting party shall be 75 22'714O liable to the nondefaulting party for any damages caused by such default, and the nondefaulting party may thereafter (but not before) commence an action for damages against the defaulting party with respect to such default. During any applicable period for cure provided in this Agreement, such party shall not be deemed in default hereunder. 8 . 8 Specific Performance. If either party defaults with regard to any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement the nondefaulting party, at its option, may thereafter (but not before) commence an action for specific performance of the terms of this Agreement pertaining to such default. During any applicable period for cure provided in this Agreement such party shall not be deemed in default hereunder. 8 . 9 Termination by Developer. In the event that the Agency does not tender either conveyance of title to the Site, or possession thereof, as as the case may be, to the Developer in the manner and condition, and before the date provided therefor in this Agreement, and any such failure shall not be cured within thirty (30) days after the date that written demand by Developer is received by the Agency, 76 227140 then (i) the provisions of this Agreement pertaining to the acquisition of the Site and the Site Development shall, at the option of the Developer be terminated by written notice thereof to the Agency, and all documents and funds deposited in escrow shall be returned to the party depositing same or (ii) this Agreement as a whole shall, at the option of the Developer be terminated by written notice thereof to the Agency. In either such event of termination, neither the Agency nor the Developer shall have any further rights or liabilities to the other under this Agreement with respect to the provisions of this Agreement so terminated; provided, however, that in either such event of termination the Agency' s reimbursement obligations under Section 7 . 4 above shall continue in full force and effect. The rights of termination under this section are not intended to be an exclusive remedy. 8 . 10 Termination by Agency. The Agency at its option may terminate this Agreement in the event that, prior to the conveyance of title or possession to the Site to the Developer: (i) the Developer fails to make available to the Agency the Letter of Credit in the amount, form, manner and time set forth in Section 4 . 6 of this Agreement; or (ii) the Developer fails to take title to the Site under a tender of conveyance by the Agency pursuant to and in conformance with the provisions of this Agreement. 77 221140 The rights of termination under this Section 8 . 10 are not intended to be an exclusive remedy. 9 . GENERAL PROVISIONS. 9 . 1 Notices, Demands, and Communications Between the Parties. Formal notices, demands, and communications between the Agency and the Developer shall be sufficiently given if dispatched by registered or certified mail , postage prepaid, return receipt requested, or by overnight courier or delivery service to the principal offices of the Agency and the Developer, as designated in this Section 9 . 1 . Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section 9 . 1. Notices to Developer shall be sent to the attention of: 78 22 i14O AGENCY: THE PALM DESERT REDEVELOPMENT AGENCY 73-510 Fred Waring Drive Palm Desert, California 92260 ATTENTION: Carlos Ortega Assistant City Manager DEVELOPER: AHMANSON COMMERCIAL DEVELOPMENT COMPANY 11111 Santa Monica Boulevard Suite 2127 Los Angeles, California 90025 ATTENTION: Gregory Simon with copies thereof to: MORRISON & FOERSTER 333 South Grand Avenue Suite 3800 Los Angeles, California 90071 Attention: Jim G. Grayson, Esq. 9 . 2 Conflicts of Interest. No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is, directly or indirectly, interested. Each party warrants to the other that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement 79 227140 other than normal costs of conducting business and costs for professional services such as attorneys, architects and engineers. 9 . 3 Nonliability of Agency Officials and Employees. No member, official, employee or consultant of the Agency or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or its successor, or on any obligations under the terms of this Agreement (except by reason of willful, wanton misconduct or malfeasance in office) . 9 . 4 Enforced Delay; Extensions of Time of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock-outs, labor disputes, riots, floods, earthquakes, water shortages, fires, causalities, Acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation or court orders in connection therewith, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplier, acts of the other party, acts or failure to act of the city or any other public or 80 ' 22n40 governmental agency or entity (except that any act or failure to act of the Agency or City shall not excuse performance by the Agency) or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. Notice by the party claiming such extension shall be sent to the other party within thirty (30) days of knowledge of the commencement of the cause. Times of performance under this Agreement may also be extended by mutual agreement in writing between the Agency and the Developer. 9 . 5 Real Estate Commissions. Neither party shall be liable for any real estate commissions, brokerage fees or finders fees which may arise from the sale of any interest in the Site or any part thereof to Developer or the Developer' s acquisition of any interest in the Site or part thereof. Each party hereby agrees to indemnify and hold the other harmless against any such claims which may arise out of Developer' s acquisition of the Site. Agency and Developer each represent that it has hired no broker or agent in connection with this project. 10. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS . This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and 81 227140 supersedes all negotiations or previous agreements between the parties with respect to all or any part of the Site. None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with the Agency Deed conveying title to the Site and this Agreement shall continue in full force and effect with respect to the Site before and after such conveyance, except where specified after recordation of the Certificate of Completion for the Site Development. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency or the Developer, and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Developer. This Agreement and any provisions hereof may be amended by mutual written agreement by Developer and the Agency and such amendment shall not require the consent of any other fee owner, tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust, or any other person or entity having an interest in the Site. 11 . MISCELLANEOUS. (a) Approvals and consents required of the Agency hereunder shall not be unreasonably withheld and Agency ' s approval or disapproval shall be given within the times set forth in this Agreement, or if no time is given, within 30 days of request therefor. Failure of Agency to approve or 82 227140 disapprove within such time period shall be deemed an approval . Any disapproval shall state in writing the reasons for such disapproval . (b) Time is of the essence of this Agreement. If the last day of any time period stated herein falls on any Saturday, Sunday or legal holiday of the State of California, the period shall be extended to include the next day which is not a Saturday, Sunday or such holiday. (c) Nothing in this Agreement shall be deemed or construed to create the relationship of principal and agent, or of partnership, association or joint venture between the parties to this Agreement. (d) If any portion of this Agreement is held to be illegal, void or unenforceable, all other provisions hereof shall remain in full force and effect to the extent the resulting Agreement preserves the material economic terms of this Agreement. 12 . TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY ; DATE OF AGREEMENT. This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within thirty (30) days after this Agreement is signed by the Developer, or this Agreement may be terminated by the Developer on written notice to the Agency. 83 227140 The date of this Agreement shall be the date it is signed by the Agency. PALM DESERT REDEVELOPMENT AGENCY (Agency) By: /d7,ZA-, ,,O.Executive Directo Dated: i " " 7 9(r AHMAN• +N COMMER AL DEVELOP NT COMPA (Devel III I, BY: �` BY: ,(d� k7 5'/Z Wee- ,P/te3 L62746 [ 14060] 1 84 2-MAY-90 09 : 06: 06 227140 EXHIBIT "A" Redevelopment Plan Project Area No. 1 and all amendments to Project Area No. 1 are on file with the Redevelopment Agency. M27567 22'7140 EXHIBIT "B" THE PROPERTY INDIVIDUAL SITE AREAS ARE LOCATED AS FOLLOWS: Site Area 1 : The property bordered by Highway 111, El Paseo, Painters Path (as realigned) and the Palm Valley Flood Channel. Site Area 2 : The property bordered by Highway 111, Fred Waring Drive, the boundary of Site Area 6 and the Palm Valley Flood Channel . Site Area 3 : The property bordered by Site Area 6 , Mollers Garden Center and Painters Path. Site Area 4 : The property bordered by Town Center Way, Fred Waring Drive, Fairhaven and a South property line. Site Area 5 : The property bordered by El Paseo, Larkspur, Shadow Mountain Drive and San Pablo. Site Area 6 : The property bordered by Site Area 2, Site Area 3, and property lines as depicted on the Land Use Development Plan. 1 22' 14O EXHIBIT "B" Continued THE FOLLOWING REAL PROPERTY IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: The following legal description encompasses the entirety of Site Area 1 on the Land Use Development Plan. Site Area 1 Parcel 1 of Parcel Map No. 25875, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 163, Pages 34 and 35 of Parcel Maps , in the Office of the County Recorder of said County. The following legal description encompasses the entirety of Site Area 2 on the Land Use Development Plan. Site Area 2 PARCEL 1 : Lots 1 through 75 inclusive and Lots A, B and C of Tract 4489-1, in the City of Palm Desert, County of Riverside, State of California, as per Map Recorded in Book 79, Pages 38 through 42 inclusive of Maps, in the Office of the County Recorder of said County. PARCEL 2 : Lots 1 through 175 and Lots A, B and C of Tract 4489 , in the City of Palm Desert, County of Riverside, State of California, as per Map Recorded in Book 83, Pages 34 through 40, inclusive of Maps, in the Office of the County Recorded of said County. AND Parcel 1 of Parcel Map 24090, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 163, Pages 30 through 33, inclusive of Parcel Maps, in the Office of the County Recorder of said County. 2 22"214O The following legal description encompasses the entirety of Site Area 3 on the Land Use Development Plan. Site Area 3 Parcel 3 of Parcel Map 24090 in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 163, Pages 30 through 33, inclusive of Parcel Maps, in the Office of the County Recorder of said County. The following legal description encompasses the entirety of Site Area 4 on the Land Use Development Plan. Site Area 4 Parcel 2 of Parcel Map 19978, in the City of Palm Desert, County of Riverside, State of California, as per Map Recorded in Book 124, Pages 4 and 5 of Parcel Maps, in the Office of the County Recorder of said County. The following legal description encompasses the entirety of Site Area 5 on the Land Use Development Plan. Site Area 5 Parcels 1 and 2 of Parcel Map 4655, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 7 , Page 42 of Parcel Maps, in the Office of the County Recorder of said County. • The following legal description encompasses the entirety of Site Area 6 on the Land Use Development Plan. Site Area 6 Parcel 2 of Parcel Map 24090, in the City of Palm Desert, County of Riverside, State of California, as shown by Map on file in Book 163, Pages 30 through 33, inclusive of Parcel Maps, in the Office of the County Recorder of said County. M27568[ 14060 ] 7 3 22`'14(0 EXHIBIT C Development Agreement Attached to original Agreement 22'7140 EXHIBIT "D" THE SITE All that certain real property and appurtenances thereto, and all improvements now or hereafter located thereon, situated in the County of Riverside, State of California, and described as follows: That portion of Section 19 , Township 5 South, Range 6 East, San Bernardino Base and Meridian, according to the Official Plat of said land approved by the Surveyor General July 15 , 1986, described as follows: COMMENCING at the Northwest corner of the Northwest quarter of said Section; thence Westerly along the North line of the Northwest quarter of said Sections, South 89 degrees 28 minutes East, a distance of 437 . 02 feet; thence North 58 degrees 59 minutes East, a distance of 417 . 81 feet; thence South 31 degrees 01 minutes East, a distance of 150 feet; thence South 58 degrees 59 minutes West, a distance of 162 . 97 feet ; thence South 89 degrees 28 minutes West, a distance of 295 . 68 feet to the true point of beginning: EXCEPT that portion described as follows: COMMENCING at the Northeast corner of said Northwest quarter; thence along the North line of said Section 19 , South 89 degrees 14 minutes 15 seconds West, 1 , 229 . 46 feet; thence South 0 degrees 11 minutes 40 seconds East, 1, 150 . 01 feet; thence North 89 degrees 14 minutes 15 seconds East, 437 . 02 feet; thence North 58 degrees 45 minutes 15 seconds East, 451 . 37 feet to one true point of beginning; thence south 31 degrees 07 feet 61 minutes East, 150 feet; thence North 58 degrees 45 minutes 15 seconds East, 6. 20 feet; thence North 31 degrees 14 minutes 45 seconds West, 150 feet; thence South 58 degrees 45 minutes 15 seconds West, 5 . 87 feet to the true point of beginning, as reflected in Deed recorded June 26 , 1963 in Book 3427 , page 508 from Hoams Construction Company to the City of Riverside. ALSO EXCEPTING therefrom that portion conveyed to the County of Riverside by that Corporation Grant Deed recorded May 11, 1966 as Instrument No. 49649 , Official Records, Riverside County records. Said Land is located in the City of Palm Desert. 22714(0 EXHIBIT E Added Territory to Project Area No. 1 227140 • — .: t • �` • :f �.� — .-�-= � 1 i�s? /. • • I - zi ••• T c f .•••••••••••;•••• !„..•''•-•''-"--•.---•-•."-'.""Th ..,-.....C T IT PRP P.r A W•Powipmc a ...... .�.a i:i.r...• 1:1 a.^.. �.-er 1 w •L .•i.•. t.•e r7 f / C. . ..• ..L=��. - ^ 7•. .• \� - r :tea_ •. '.• " • ' 7I A . _ •lie�•.i' .M1. , �- N. l • �� • 7. • . . 'l••►� J��f�i S!♦1-.i�- � :^ •=e • L__`.' •_ ..0 , _ es• -.• - • � • ti ,. -r.�r- .. - �,}...—'' ..'••••„•� LT. -a . • Lt. .. mo o - ' -' • _ •',1t. .�.:.:.•..i ^�. y vas •. . !%J ` ... � ▪ •_ �:._ . 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SPHERE LINE PA M fFSFPT ▪ _ • • • • • ._ r.rry rim iNnlaN wct r c • 22 7140 EXHIBIT F Original Territory Project Area No. 1 `.� a /SI ' I : .I I I ra f uta rtViI r 1 . .... . .. _t � ':, t I) 111 l 1 j t _._ ' • �T' IIJ110 I :,N Ja_LIi ii.0)70 1 . , •1"`• r-t iiiiiiiiiiifr A l 1 1 7'.....A1•)\11 • 1 1%. 1 I; _�� ', I I .'-�" I- '; JJl1ll.l (1-1 • ( \..,N %411?!P'IN hi Ilj �� 1 I il I%•Al :_IIiI_�� _�. ---- --_ — ... • - _ _ _ Ip,. j1, •.t:'• I,ii:•"'•I 1- :• • ,,, „ '- , I `') i ; 1!:I.I:I 'Ii,I,,!,:II!I:iii.. ...{, .II ,,':I:'i',ll_iiIIII'II• :'111il . •:Il:._.1.. •-,•_•!::': .!:: 6; ►•r•; � i;111111iIIIIIIII :i::ILIII::I.I::'I�:, It. , t1 a►14.1 .11 '- _:.L.'' II'II'I:III'IIIIIIII;II.! :I:i1:11:::I':,;1'IiI ' Ii1 • /. 111 11 1: .II .:IM. :II I'' IS; 'I`15' . : r 1 I I'I!l:ll.'ill II•i:I.II!' ,I!,'ill1r1,ll• ,.. ,.It 1 i I,� ',`j 1, .#+ i !t� •I`,l •.II!I,I111111�. `; (I1:,;:1 1''11• • � J' ) 1))I ! 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I:1I111\srt --• ��ll�l1._�Llilll!II!IIII II!!i 1,1� fr: EXIIIIII1 C III Ile►idenllal Very Low Density I . 1_/1ND USE MAP' IIED VCI.OI'MrNr I'I_/1N :::S,...#•iiiIleliden11a1,MediumDemfly- 1 I'IIOJLCI I:U /111C!\ NO. 1 Iteiidential Medium Demlly. . PALM I)LSI:111. ULDf_VI:I.OI'MLNT I'IIOGIIAM APlanned Commercial: Iletorl ligiPlanned Commercial: Ilegionsl Core Area Commercial FA Public 227140 EXHIBIT "G" Ahmanson Commercial Development-Retail Centers PALM DESERT PROJECT DEVELOPMENT STANDARDS FOR THE PROJECT I . Purpose of Development Standards II . Project Introduction A. Overview and Location B. Site Areas and Statistical Summary III . General Notes and Conditions IV. General Development of Project A. Proposed Uses B. Building Square Footage Limits and Maximum Heights C. Density and Intensity of Use D. Open Space V. Planning Guidelines A. Purpose B. Site Planning and Circulation C. Grading/Drainage/Street Standards D. Landscaping, Walls and Lighting E. Design Concept of Buildings/Parking/ Loading Area F. Utility Services and Structures G. Project and Business Identification VI . Plan Review Requirements A. Purpose B. Development/Precise Plan Review C. Development/Precise Plan Contents 12/07/89 227140 I . Purccse of Develocment Standards The purpose of the development standards for the Project is to : 1 . Provide the Developer with a planning and development process which will result in a Project that is consistent with the City' s General Plan and in furtherance of the goals of the City as set forth in the Agreement. 2 . Provide supplemental criteria for the use, design, density, circulation and development of the Site Areas (as described in II . B hereof) that will result in an aesthetically pleasing, environmentally harmonious and commercially viable product that expands the goods and services presently available to the community. 3 . Ensure that development occurs in an orderly fashion through long-range planning. 4 . Encourage development that is operationally functional to both the building operator and the consumer. 5 . Provide for the development of the Project in a manner which is consistent with the terms and provisions of the Agreement and the Existing Land Use Ordinances. 22 '140 II . Project Introduction A. Overview The Project presents an opportunity to master plan the remaining large vacant properties within the area of the City subject to the City's Commercial Core Area Specific Plan. The development of the Project in accordance with the provisions of the Agreement and these development standards ensures the preservation of natural open space and furthers the development objectives of the City in an orderly manner. The development of the Project in accordance with the provisions of the Agreement and the development standards provides a number of benefits : 1 . It maximizes the potential for high quality economic development of the Commercial Core Area. 2 . It allows for the assemblage of properties into a comprehensive land use plan which eliminates problems that individual and isolated requests for developments might present. 3 . It addresses specific policy recommendations of the Palm Desert Commercial Core Area Specific Plan. • 4 . It provides for the dedication of hillside preserve to the City and thereby protects and preserves the natural beauty of the hillside areas bordering the Project. 5 . It provides for the completion of all necessary signalization and access for Highway 111 from Fred Waring Drive to Town Center Way, as provided for in the Development Agreement. 22'714O B. Site Areas and Statistical Summary The Project is divided into 6 Site Areas. The Land Use Development Plan attached hereto as Annex 1 depicts each Site Area. Site Area 1 Location: SWC Highway 111 and El Paseo, SE of Palm Valley Flood Channel Aggregate Acreage: 12 . 3 Site Topography: generally flat Site Areas 2 and 3 Location: Fronting Highway 111 between Fred Waring Drive and Palm Valley Flood Channel Aggregate Acreage: 51.8 Site Topography: generally flat sloping towards southwest Site Area 4 Location: SEC Fred Waring Drive and Town Center Way Aggregate Acreage: 8 . 5 Site Topography: generally flat Site Area 5 Common Name: Sun Lodge Colony Location: SWC El Paseo and Larkspur Lane Acreage: 10.3 acres Site Topography: generally flat with slight slope up to the south Site Area 6 Location: West of Painters Path (1988 alignment) , between Fred Waring Drive and the Palm Valley Flood Channel. Acreage: 54 .9 . Site Topography: partially sloping and mountainous 22'714 0 III . General Notes A. Purpose This section III is included to : ( i) provide certain definitions for use with respect to this Exhibit "G" ; (ii) to describe the relationship of this Exhibit "G" to the Exisiting Land Use Ordinances and the Building Ordinances ; and (iii) provide other miscellaneous provisions necessary to effectuate the purposes and intent of the Agreement. B. General Notes 1 . Terms contained in this Exhibit "G" shall have the same meaning as defined in the Development Agreement unless otherwise defined herein. 2 . Except as otherwise provided in this Exhibit "G" and in the Agreement, the development of the Project shall be in accordance with, and the development of the Project during the Term shall be governed by, the Existing Land Use Ordinances . 3 . Except as otherwise provided in this Exhibit "G" and in the Agreement, all construction of improvements upon the Property shall conform to the building and construction standards established by the Building Ordinances. 4 . Whenever the provisions of this Exhibit "G" conflict with the provisions of the Existing Land Use Ordinances or the Building Ordinances the provisions of this Exhibit "G" shall be deemed to control to the extent necessary to effectuate the purposes and intent of the Development Agreement. 5. The maximum aggregate allowable building square footage for the Project shall be 846 ,700 s. f. . 227140 6. Development in Site Areas 2 , 3 , and 4 may accommodate all uses permitted in the PC-3 zone as identified in the Existing Land Use Ordinances. 7 . Development in Site Area 1 may accommodate all uses permitted in the Office Professional Zone plus retail and restaurant uses as otherwise permitted in the PC-3 Zone. The retail and restaurant uses shall not exceed 20% of the approved gross building area. 8 . Development on Site Area 4: a) Special consideration shall be given to the design of the structures on Site Area 4 , to assure the development shall be compatible with developments east of Fairhaven Drive on the southside of Fred Waring Drive. b) Unless specifically modified by the city council as part of the development review process, the first 100 feet of this site adjacent to Fred Waring Drive shall be restricted to office professional use. 9. Development in Site Area 5 may accommodate all uses permitted in the C-1 zone as identified in the Existing Land Use Ordinances. 10. Parking requirements for layout and ratio for Site Area 2 shall be based upon a formula of 5. 5 parking stalls for each 1000 square feet of gross leaseable area. The standards may be reduced in the following ratio percentage: 1000 car parking area, 10% 1500 car parking area, 12% 2000 car parking area, 14% Over 2500 car parking area up to 15% , subject to justification of the findings as set forth in Section 25. 58 . 311 (B) of the Existing Land Use Ordinances. 11 . Parking requirements for layouts, sizes, and ratios for Site Areas 1, 3 , 4 , and 5 shall be based upon the requirements for general retail and office use as described in the Existing Land Use Ordinances. 227140 12 . Changes in the location or configuration of the Site Areas (and the "Buildable Zones" within such Site Areas, as designated on the Land Use Development Plan as attached hereto) may occur as specific site plans are developed. Any such changes will be subject to the prior approval of the Community Development Director of the City. 13 . Tentative Tract Maps may be filed and approved subject to consistency with the Land Use Development Plan. 14 . Location and plans for any required water reservoirs or booster stations shall be submitted to the Community Development Director for approval. Said facilities may be located in the natural open space area indicated in the Land Use Development Plan, subject to approval of the Community Development Director and the Coachella Valley Water District. 15. Except as otherwise provided herein, all approvals of the City, the Community Development Director, or the Planning Commission of the City required as provided herein shall be based upon the criteria and standards for such approval set forth in the Existing Land Use Ordinances and the Building Ordinances. 16. Prior to the issuance of any building permit with respect to any Site Area, a precise development plan for the development of an individual Site Area, or a combination of Site Areas, shall be submitted to and shall be approved by the Planning Commission if such precise development plan is consistent with the Land Use Development Plan and complies with the provisions of the Agreement. 17 . The Developer shall be permitted to establish a Project office on Site Area 5 upon execution of the Agreement by the City. 18 . Site Area 6 is designated as natural open space on the Land Use Development Plan and shall be dedicated to the City. Such dedication shall be the only open space dedication or reservation of a portion of the Property for public purposes which will be required by the City with respect to the development of the Project. 227140 19 . Sizing of all backbone utility facilities shall be predicated cn the maximum density proposed for the Project and shall not be required to be oversized to accommodate uses other than with respect to the Project. 20 . The major access to Site Area 2 shall be via a signalized intersection on Highway 111 as indicated on the Land Use Development Plan. 21 . All improvements required as Exactions pursuant to the attached Development Agreement shall be constructed by Developer congruent with each phase of the Project as such improvements relate thereto, and are necessary with respect to such phase of project development. 22 . The terms indicated on the Land Use Development Plan shall have the following meanings : A. Building Zone: The approximate area in which the buildings within the applicable Site Area will be located. B. Parking/Landscape Zone: The approximate area in which the majority of parking stalls within the applicable Site Area will be located. C. Gateway Entry: An identification element for the Project cr the City, or both, consisting of any combination of signage, landscaping, walls , architectural features or lighting. IV. General Development of the Project A. Proposed Uses Site Area 1 : Any or all uses permitted in the Office Professional Zone. In addition, restaurant and retail uses will be permitted not exceeding 20% of the approved gross building area. Site Areas 2 , 3 , & 4 : Any or all uses permitted in the PC-3 zone of the Existing Land Use Ordinances. Site Area 5 : Any or all uses permitted in the C-1 zone of the Existing Land Use Ordinances. Site Area 6 : Natural open space and such related uses as set forth in Section D below and as indicated in the Land Use Development Plan. 227140 B. Maximum Building Square Footage Limits and Maximum Heights Site Area Maximum S . F. Height Limit 1 100, 000 per applicable Existing Land Use Ordinances 2 479, 400 per applicable Existing Land Use Ordinances 3 20, 000 per applicable Existing Land Use Ordinances 4 80, 300 per applicable Existing Land Use Ordinances 5 167, 000 per applicable Existing Land Use Ordinances C. Density and Intensity of Use The Developer shall be entitled to develop each of the Site Areas to the maximum building site coverage percentage provided in the applicable Existing Land Use Ordinance as it pertains to the individual Site Area. The Land Use Development Plan depicts the eligible building areas within each Site Area. In the event any Site Area is developed so as to utilize less than the total maximum square footage listed for any such Site Area in paragraph "B" above, then the differential between the Site Area square footage which is actually utilized and the applicable maximum square footage listed above shall be transferable in whole or in part to any other Site Area (other than Site Area 6) , provided that the resulting maximum square footage with respect to any such Site Area shall not exceed the maximum square footage of use permitted with respect thereto by the Existing Land Use Ordinances. Buildings shall be reasonably distributed within the Site Areas to permit ease of vehicular and pedestrian access, circulation and egress and for proper operational building service requirements. D. Open Space Site Area 6 shall be "natural open space" as defined in the Existing Land Use Ordinances. Site Area 6 is established for the preservation of open space and significant natural resources. The intent of this area is to protect, to the extent practicable, the resources of notable scenic, natural, geologic or historical value. 227140 Uses Permitted: a. Bicycling and hiking trails, and directional trail signs; b. Local and buffer greenbelts; c. Wildlife preserves and sanctuaries; d. Archaeological sites; e. Historical preserves; f. Screening, walls, and fencing as may be required by the Project. g. Forest maintenance/ranger stations h. Water reservoirs,or pumping stations as may be required by the Project. Site Development Standards Site development standards in the open space category shall be in accordance with Existing Land Use Ordinances. V. Planning Guidelines A. Purpose Except as otherwise provided in the Agreement or this Exhibit "G", the development of each Site Area within the Project shall be subject to and controlled by the design and development guidelines established by the Existing Land Use Ordinances and the -Building Ordinances. The following guidelines are intended to be supplemental to those established by the Existing Land Use Ordinances and the Building Ordinances and to the extent they are inconsistent or in conflict with the guidelines established by the Existing Land Use Ordinances and the Building Ordinances, these guidelines shall be deemed controlling. Subject to the foregoing, all development plans for each Site Area shall comply with the following guidelines. B. Site Planning and Circulation Access to the various Site Areas within the Project is to be provided from the adjacent streets and Highway 111 as depicted on the Land Use Development Plan. Interior Site Area vehicular circulation shall be patterned to permit ease of ingress and egress as well as the distribution of buildings in relation to parking areas to allow for the dispersion of vehicles and pedestrians throughout each Site Area. Each Site Area shall have 22'7140 clearly defined pedestrian routes into and throughout the Site Area in order to minimize potential points of conflict between pedestrians and vehicles. Individual Site Area entries shall occur at the designated locations on the Land Use Development Plan. Building setbacks shall be as depicted on the Land Use Development Plan. C. Grading/Drainage Grading design shall reinforce the architectural and landscape designs in the following ways: A. Assist in screening parking, loading and service areas. B. Reduce the perception of height and mass of large buildings. C. Provide a reasonable transition from the street to the parcel. The applicant may obtain permits for rough grading after approval of conceptual grading plans by the Director of Public Works and the Director of Community Development. Grading shall be permitted outside of an area of immediate development if consistent with the conceptual grading plan. Drainage of surface parking areas and roof areas shall terminate at an underground storm drain system in the public streets. Points of connection will be provided for each Site Area. D. Landscaping Landscape materials shall enhance the major architectural design elements through the coordinated use of indigenous and introduced plant species, lighting, massing, etc. Landscaping shall be in accordance with a Landscape Concept Plan as provided in the Existing Land Use Ordinances. The Landscape concept Plan will be submitted as part of the precise plan at the time development of a Site Area is proposed. The landscape framework will visually bind the Site Areas together while remaining compatible with the desert environment. 22' 140 E. Design Concept of Buildings/Parking/Loading Areas The architecture of the Project shall possess an underlying compatibility among the various buildings through the use of similar materials, finishes, colors and amenities while allowing a degree of flexibility for individual Site Area expression and identity. All building designs shall be aesthetically agreeable with the desert environment. Parking requirements for layouts, sizes, and ratios for Site Areas 1, 3 ,4 and 5 shall be based upon the parking requirements for Existing Land Use Ordinances for general retail and office. Site Area 5 shall provide 200 public parking spaces in addition to the number of spaces required by the C-1 zone under the Existing Land Use Ordinances for the building area. Loading docks, service delivery areas, where provided, are required to be screened, recessed, and/or enclosed so as not to be visible from adjacent streets and properties. Loading, service and delivery areas shall not encroach into any setback areas. F. Utilities and Utility Structures Public services and utilities will be provided by the following public/private agencies unless otherwise approved by the Director of Community Development: - a. Water - Coachella Valley Water District b. Sewer - Coachella Valley Water District c. Flood Control - Coachella Valley Water District d. Electricity - Southern California Edison Company e. Natural Gas - Southern California Gas Company f. Telephone - General Telephone Company g. Schools - Palm Springs and Desert Sands Unified School District h. Public Parks - Coachella Recreation and Parks District i. Fire Protection - Riverside County Sheriff Department j . Police Protection - Riverside County Sheriff Department k. Solid Waste Disposal - Riverside County Road Department and Palm Desert Disposal Services 1 . Television - Coachella Valley Television 22 140 All utilities shall be installed and maintained underground. Utility design shall not place excessive burdens upon offsite systems. Temporary overhead power and telephone facilities are permitted during construction only. Any device for transmission or reception of communication signals shall be screened. Rooftop devices shall not extend above the building's highest architectural element or be visible within a horizontal line of sight. Ground-mounted devices shall be screened from view from adjacent streets and property. Outdoor trash areas shall be visually screened by a 6-ft.-high (minimum) , non combustible enclosure constructed of the same materials and finishes as the adjacent building. Enclosures shall be designed and located so as not to be highly visible from adjacent streets and property. G. Project and Business Identification Project and City entry statements composed of signage, landscaping, architectural features, or a combination of same, will be depicted on the landscape concept plan. The purpose of this element is to announce both the Project, the entry to the City and/or the gateway to the El Paseo district in a manner that furthers the sophisticated image of the City. VI. Plan Review Requirements A. Purpose This section is established to ensure that the overall purpose and intent of the Project is satisfied and implemented in an orderly manner. B. Development/Precise Plan Review When the actual development of a Site Area is proposed, an application for approval of a precise plan shall be filed with and shall be approved by the Planning Commission if such precise plan is consistent with the Land Use Development Plan and complies with the provisions of the Agreement and this Exhibit "G" . A precise plan may cover one or more Site Areas of the Project. 227140 C. Precise Plan Contents Subject to the provisions of the Agreement and this Exhibit G the Precise Plan shall include the requirements of Section 25. 73 . 011 of the Existing Land Use Ordinances. . " J \____________., J __ V a i I' _ .... .. •.. • dd � 4'••�„\�a-q ---Tr-,_ 'os'!r�►y._ -`-' "T`` Ce_� :-.---* 1.111II'N�wIFu. I�Ni�j N' Ir►►w rr it4 rti 7�6 pwro•aI Idti t /i•.,.r;lw.s- i l'•a..a 1 ri ui :�.ui .,. °�v}O+p t,• i• '�t\t r r.• • lL (t1'/�q. _ Ni 3 Il'tD j , 5u�U' M.wiT LI, _ ` �1 d ^�1 8 r.•rw An.w(nei kI. ., 1 ' - i 8 O fu Iv m W. r�.)` olV 1 d ,9 8 • / -:1:k.d-ai).‘ir ' \\1.I_- t tI wi 1 wrpl"�i •a 0 ;4 — ? l'I1 R sr rn[!yl.rYltt Sl al-.1l ti /` ' It ; 3 rwnr/ • ji '4,-1.:1 :-."13 k \ A/Piiii"-/ �� ri( eat-ui \%•' OW f Mit,/ fill Al DEsseT " ! �i) \ .\. : ToWy Ct�✓ltK 71)Wd CROW?. -� • ' rnroxs .j�.v \ ` M nwv.i • 1(� c,� I • �\\ 1 r /\11) ;' • l�w.l(or.) . \ oNrl►�wISi) � ur/n,u/ / SI•I•MAItFAS tw! ���/// ran. / ' v ` 1�t \ .----- El IOI�I E . \ • (� -.. / 1,,., —MwrDMAA. At AitReCAE(011. AfIlE105_SIIIIDItU1 Alin // .,-/ I"' Ly \ Q d Ij 6, eti�� AUA r.o N,.•a \ •9>" I t / p �, ' ARIA (� !r I;W \ `J /! tw�`,6�N •�fCsu nMAAeA (� /.:► I.r.wr6 R Nr! • `1\ J �• \ SI1�TOTAL a. Irc,n•.ril �� Al .!'` I AUL A () N.r 1• ,�\� �� O � � •• \ CI / iUTAL p1.♦ ki,r•r r6 ppp ir / ' k,i. 7'I /AroIGIsr 16- k f.c....mic1 \,.... ' • i• r\, 6.:'4,.(. ,9.�. iol /UIIY \ u..u..••rvuwu.1. ..•wu••..•.0 � 1J •1/M.1..•.w.....M11.M/...f•F<1/V .1 4( ...".1.,;1.....-.''''',...,:::,.......t)L.1 4/ fInOP/irr, CaolY /,ur�n•� J/rc�+►1y �� j� .s•VN R.�r.oiHn,t, a„►.c. �1 ( Ab$' t M !j `��)r,n o r•..n•,.vr t 4 4 w.�r O A�� AHMANSON COMMERCIAL A►•. .�.•.. CI'Xi• DEVELOPMENT COMPANY• l'Al.ht f)I?Sl It"I' ('� A k,y„•„,� �fil.�All.Cf:N'I1;I1S LANI) ,IIS I)I:VI?I.OPRIFIAT PLAN n r-I__1 ,I • r_ • • II.►ASEO l '' •:) (`!. (t 1, (1 L`a it O O O O A O b 0 :• a s (1� ul — — _ _ uI f • 01 1 ((. . a al 1•aA% Iw! / IG II 1 ' Ic, : • •• .AL. mil- . _ - - -1./ • • II.1 it rn•�1/.A )•N r� • sl . N Ir t t • . . L �.=S : )'ram • 1..47 i ' .. 1 • SHADOW MOUNTA111 WOVE • • 1' ism: 11.0.4NI N/4 M4•11••r 1.s 1.••••••. - •1N1••11.1 n....W..•1•..I..4....4.011 ••1•••IN••.••4 IIY11.1/.11/+.•••.M ' •.••rub.••4 • • • • . iV Y•› C AIIMANSON MA — — A4.•11441 (;a [)I:VCI.O('MCNTC COMO GRCIMI'ANYI.• I'AI.KI 1) SI I. _It I' ( l _ _ I.ANI) IISI: I)I?VI�I,UI'1\11?N'f I'I.AN lIJ A"`1''� "'" liEfAI CEN'�rRS n n r r . .... ..... 22 140 EXHIBIT "H" The City and the Agency desire to provide or to cause to be provided the following public improvements to service property within and outside of the Project. 1 . The Developer will provide to the City a temporary non-exclusive easement on Site Area 5 for use by the City for 200 public parking spaces . Such easement shall be located within the area designated as the "Parking Zone" on Site Area 5 as depicted in the Land Use Development Plan attached to Exhibit "A" of the Development Agreement. Such easement shall remain in existence until such time as a specific development plan for Site Area 5 has been submitted by the Developer to the City and has been approved by the City. The City shall be solely responsible for the costs of construction and maintenance of any public parking improvements to be located on such easement and the Developer shall not be responsible for any costs associated therewith. In addition, the City shall reimburse the Developer for all costs incurred by the Developer in acquiring and maintaining such policy or policies of insurance (including liability insurance) with respect to the use of such parking facilities as are customary. Prior to the granting of such easement, the City and Developer will in good faith negotiate and enter into an agreement which will, among other things, define the boundaries of such easement within the Parking Zone of Site Area 5, the duration of the easement and the conditions and restrictions with respect to its use; all as contemplated by the Development Agreement and this Paragraph 1 . 2 . In conjunction with the construction of the private commercial/retail facilities to be located on Site Area 5, the Developer shall provide a minimum of 200 public parking spaces on Site Area 5 . For the purposes of this Exhibit "H" , the term "public parking spaces " shall mean those parking spaces which: ( i) are designated by the Developer as available for parking by the general public; ( ii) are not 1 22'7140 designated by the Developer for preferential or exclusive use by patrons or employees of the private commercial/retail facilities to be constructed on Site Area 5, and ( iii) may be used by the general public for parking during normal business hours without the payment of fees or charges for such parking imposed by the Developer. Prior to the commencement of construction of the private commercial/retail facilities to be located in Site Area 5, the Developer and the City shall in good faith negotiate and enter into an agreement which will provide, among other things, for ( i) the designation and location of such public parking spaces, ( ii) the improvements associated therewith, (iii) the means of access by the public, (iv) the conditions and restrictions with respect to the use of such public parking spaces, and (v) the timing of the construction of such public spaces . The Agency and the Developer hereby agree that the Developer is not obligated to but may, in its sole discretion, provide for more than the required 200 public parking spaces and to the extent it does so, all of the costs incurred by the Developer with respect to such additional public parking spaces shall be reimbursed to the Developer by the Agency in the same manner and to the same extent as those costs incurred by the Developer with respect to the required 200 public parking spaces . M03474 [ 14060] 7 2 22'7140 EXHIBIT"I" SCHEDULE OF PERFORMANCE I. Site Conveyance 1 . Agency shall authorize Within 10 days of execution, and shall deliver receipt of the executed copies of this Agreement executed by Agreement to Developer. Developer. 2 . Agency to use best efforts Within 90 days to negotiate and acquire after the written the Site and Leasehold request of the Interests. developer (The Notice Date) per Section 4 . 1 of the Agreement. 3 . Agency shall obtain per- Within 30 days mission or issue pre- after the Notice Date. condemnation orders allowing Developer access to the site. 4 . Agency commences pro- On or before the ceedings for resolution first regular of necessity meeting date of the Agency fol- lowing 90 days after the Notice Date. 5 . Developer shall deliver At the time as to the Agency an un- provided for in conditional and irrevocable Section 4 . 6 of the letter of credit in the amount Agreement. of $635, 000 6 . Agency files condemnation Within 14 days complaint of the adoption of the resolution of necessity. 7 . Agency shall open an escrow Within 120 days with Title Company after receipt of Letter of Credit 12/07/89 22714() a . Escrow closes and agency As soon as possible, conveys the site free of but not later than leasehold interests to 30 days after ac- Developer. quisition. II . Site Development 1 . Developer shall prepare Within 60 days and submit demolition, following close of prelim street recon- escrow. struction plans for the Site. 2 . Agency shall approve or Within 20 business disapprove the demolition days of Developer's and preliminary street submission. reconstruction plans for the Site. 3 . Developer shall prepare Within 60 days and submit final demolition following approval of and street reconstruction preliminary plans. plans for the Site. 4 . Agency shall approve or Within 20 business disapprove the final days of Developer's demolition and street re- submission. construction plans for the site. 5 . If disapproved, Developer Within 15 days after shall submit revised disapproval by Agency. demolition and reconstruction plans. 6 . Agency shall approve or Within 15 days of disapprove any revised receipt of revisions. demolition and street reconstruction plans. 221140 III . Site Construction 1 . Developer shall complete Within 90 days demolition and clearance following approval of site as detailed on by Agency of final demolition plan. drawings. 2 . Developer shall commence Within 180 days and complete the con- following approval by struction of the Agency of final improvements described in drawings. Paragraph B in the Scope of Development. 3 . Agency shall issue Within 30 days Certificate of following substantial Completion. completion of the improvements described in 2 above. IV. Public Improvements and Related Actions-Development 1 . Developer shall prepare Within the later of and submit complete demo- 30 days following lition plans for Site Area execution of the 5 . Agreement or March 1, 1990. 2 . Agency shall approve or Within 20 days of disapprove the demolition Developer's submission. plan. 3 . Developer shall submit Basic Within the later of 60 Concept Drawings for pedes- days following trian amenities and execution of the location of temporary Agreement or April 1 , easement of use for parking 1990. 4 . Agency shall approve or dis- Within 30 days follow- approve the Basic Concept ing Developer's sub- Drawings for pedestrian mission. amenities and location of temporary easement of use. 22`714() 5 . Developer shall submit pre- Within 30 days of liminary pedestrian improve- approval of the Basic ment plan including land- Concept Drawings. scaping lighting and sidewalks. 6 . Agency shall approve or dis- Within 20 days of approve the preliminary Developer's submission. pedestrian improvement plans. 7 . Developer shall prepare and Within 30 days of submit final pedestrian im- approval of preliminary provement plan. improvement plans. 8 . Agency shall approve or dis- Within 20 days of approve the final pedestrian Developer's submission. improvement plan. 9 . If disapproved, Developer Within 15 days of shall submit revised pedes- receipt of revisions. trian improvement plan. 10 . Developer shall submit Basic In accordance with the concept Drawings for develop- Development Agreement. ment of project to include all parking facilities and traffic improvement and signalization plans. V. Public Improvement and Related Actions - Construction 1 . Developer shall complete The later of 120 days demolition and clearance following approval of of Site Area 5. demolition plans or September 30, 1990 . 2 . Developer shall complete The later of 60 days construction of the following final pedestrian improvement approval of pedestrian plan. improvement plans or September 30, 1990. 3 . Developer shall execute and No later than September deliver temporary easement of than September 30, use for parking. 1990. 227140 4 . Developer shall commence con- In conjunction with the struction of permanent parking Site Area 5 project facilities for the project Development and the and Agency shall terminate Development Agreement. temporary easement of use for parking. 5 . Developer shall complete con- Within 365 days of struction of permanent commencement of con- parking facilities for the struction. project. 6. Agency shall issue final Within 30 days Certificate of Completion following substantial for the Public Improvements completion of the Public Improvements. 22 110 EXHIBIT "J" RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: ATTENTION: MAIL TAX STATEMENTS TO: [Documentary Transfer Tax is not of public record and is shown on a separate sheet attached to this deed] - or - [Documentary Transfer Tax of $ , based on full value of property conveyed] GRANT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, , a hereby grants to , a , the real property located in the City of , County of , State of California, described on Exhibit A attached hereto and made a part hereof . Executed as of this day of 19 [SIGNATURE BLOCK] 22'714() EXHIBIT "K" LETTER OF CREDIT [AMOUNT] Letter of Credit No. [Date] To: The Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: Mr. Carlos Ortega Assistant City Manager Gentlemen: We hereby establish in your favor this irrevocable Letter of Credit for the account of [insert name of Beneficiary] (herein called the "Beneficiary" ) , in the amount equal to $635, 000 ( said amount, as reduced from time to time pursuant to the terms hereof, being herein called the "Commitment" ) . Any drawing under this Letter of Credit shall be made by delivering to the Letter of Credit Department of Bank, at its address hereinafter set forth, a draft in the form of Annex A hereto, duly signed by you or by the Transferee hereinafter referred to and specifying the amount of such drawing, together with a certificate duly signed by you or the Transferee stating that: [Insert language for drawing certificate] Any such certificate signed by you shall be conclusive as to such matters . Drafts so presented shall be payable at [insert terms] ; provided, however, that any presentation after on any day shall be construed as a presentation made on the next business day. 1 22'714O Drafts against this Letter of Credit must be drawn and presented at the office of Bank specified in Annex A together with the accompanying certificate. It is a condition of this Letter of Credit that the Commitment hereunder shall be automatically reduced by the amount of each drawing hereunder. This Letter of Credit may not be transferred by you. This Letter of Credit shall expire on the earlier of (a) the reduction of the Commitment to zero or (b) [insert Expiration Date] . Except as otherwise expressly stated, this Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits [ 1983 Revision] of the International Chamber of Commerce Publication No. 400 . Yours very truly, [Name of Bank] M03477 [ 14060 ]7 227140 EXHIBIT "L" Schedule of Permitted Exceptions 1 . Property taxes, including any assessments collected with taxes, to be levied for the current fiscal year, which are a lien not yet payable. 2 . An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: Southern California Edison Company, a corporation Purpose: an electric line, consisting of poles, necessary guys and anchors, cross-arms, wires and other fixtures and appliances Recorded: August 7 , 1964 Book 3770 Page 138 of Official Records Affects: the Southeasterly 6 feet 3 . An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: California Water and Telephone Company, a corporation Purpose: telephone line, consisting of poles, necessary guys and anchors, braces, cross-arms, wire, conduits, cables and other fixtures and appliances Recorded: September 21, 1964 Book 3806 Page 7 of Official Records Affects : the southeasterly 5 feet 4 . Water rights, claims or title to water of record. M06322 [ 14060] 7 1 227140 EXHIBIT M SCOPE OF DEVELOPMENT, MINIMUM DEVELOPMENT REQUIREMENTS AND PUBLIC IMPROVEMENTS A. GENERAL The Site is approximately one acre and is a portion of the 49 . 8 acre Site Area 2 of the Land Use Development Plan and is situated in the northeast portion of Site Area 2 , with 150 feet of lineal footage fronting on Highway 111 (the "highway 111 Frontage") . The Site is to be developed in conjunction with the development of Site Area 2 in accordance with the Development Agreement and the Land Use Development Plan. B. MINIMUM DEVELOPMENT REQUIREMENTS Developer shall construct and develop on the Site, at a minimum, the following: -- 1 . Demolition, clearance and rough grading of the Site as necessary to prepare the Site for commercial development as contemplated by the Development Agreement; 2 . Reconstruction of the Highway 111 Frontage, including such highway surface reconstruction, and reconstruction of curbs, gutters, sidewalks, irrigation, drainage systems, highway or directional signage, striping and utility connections as necessary to integrate the site with the existing Highway 111 Frontage. 12/07/89 • 227140 C. OTHER SITE DEVELOPMENT IMPROVEMENTS Upon approval of the applicable Plans by the City, the Developer shall construct and develop, on a phased basis in accordance with the Development Agreement those structures, improvements, parking areas, landscaping, irrigation and drainage systems, sidewalks, and other supporting utility systems and infrastructure necessary to integrate the Site with the phased development of Site Area 2 . D. PUBLIC IMPROVEMENTS 1 . The Public Improvement as provided for in Exhibit "H" , Public Improvements Paragraph 1, of this Agreement. 2 . The Public Improvement as provided for in Exhibit "H" , Public Improvements Paragraph 2 , of this Agreement. 227140 EXHIBIT "N" PROMISSORY NOTE FOR VALUE RECEIVED, the undersigned Palm Desert Redevelopment Agency, a public body corporate and politic, duly organized and existing under the laws of the State of California (the "Agency" ) , promises to pay to the order of (the "Company" ) , at , California, or at such other place as the holder of this Note may from time to time designate, the principal sum of [insert principal amount of Public Improvement Reimbursable Costs] DOLLARS ( $ ) , plus interest as computed below. Interest on the principal sum of this Note from time to time outstanding will be computed from the date hereof at a fluctuating interest rate per annum equal to one percent ( 1% ) above the Prime Rate (as defined below) , but in no event to exceed the maximum rate of interest permitted by the Community Redevelopment Law of the State of California (constituting Part 1 of Division 24 of the Health and Safety Code of the State of California and the Acts amendatory thereof and supplemented thereto) (the "Law" ) . Interest will be computed on a three hundred sixty ( 360) day basis and the actual number of days elapsed. The term "Prime Rate" means that rate of interest publicly announced from time to time by Bank of America 1 22 '14O National Trust and Savings Association, at its Los Angeles, California Executive Offices as its "reference rate" for unsecured commercial borrowings, said rate to change on and as of the date of any change in said "reference rate" . Reference is hereby made to the Disposition, Development and Implementation Agreement between the Agency and the Company dated , 1989 (the "Agreement" ) and to the provisions therein describing the security of this Note and the nature and the sources of funds of the Agency to be used by the Agency in the payment of this Note. The interest on and principal of this Note shall be payable as follows : On the first business day of each May and November following the date hereof, the Agency shall withdraw from its special fund established pursuant to Section 33670 (b) of the Law all Reimbursable Tax Increment (as defined in the Agreement) then on deposit in such special fund and shall apply such Reimbursable Tax Increment as follows: (a) first, to the retirement of the then unpaid principal on this Note; and (b) second, to the payment of all interest then accrued and unpaid on this Note. Notwithstanding anything to the contrary contained in this Note, the payment obligations of the Agency with respect to the principal and interest on this Note shall be 2 22714o deemed satisfied and discharged in whole at such time as the Agency shall have paid to the holder to hereof principal and/or interest in an aggregate amount equal to $5, 000, 000 . Any accrued but unpaid interest on the Note shall itself bear interest at the Prime Rate until paid. The Agency agrees that the holder of this Note may, without notice to the Agency and without affecting the liability of the Agency, accept additional or substitute security for this Note, or extend or renew this Note. All amounts payable under this Note are payable in lawful money of the United States . Checks will constitute payment only when collected. The agency hereby grants to the holder hereof, until payment in full of all amounts payable by the Agency hereunder, a pledge of and lien on all of the Reimbursable Tax Increment subject only to any such prior liens with respect thereto as are expressly permitted under the Agreement. Except for the Reimbursable Tax Increment, no funds or properties of the Agency shall be pledged to, or otherwise liable for, the payment of principal of or interest on this Note. The Agency hereby covenants that, so long as this Note remains unpaid, the Agency shall not issue any bonds, notes or other obligations, enter into any agreement or otherwise incur any indebtedness, which is in any case secured by a lien on all or any part of the Reimbursable Tax 3 227140 Increment which is superior to or on a parity with the lien established under the Agreement and hereunder for the security of this Note. The Agency will keep, or cause to be kept, proper books of records and accounts, separate from all other records and accounts of the Agency, in which complete and correct entries shall be made of all transactions relating to the special fund of the Agency and the Reimbursable Tax Increment. Such books of record and accounts shall at all times during business hours be subject to the inspection of the holder hereof, or its representatives authorized in writing. The Agency shall comply with all requirements of the Law to insure the allocation and payment to it of the Reimbursable Tax Increment, including without limitation the timely filing of any necessary statements of indebtedness with appropriate officials of the County of Riverside and (in the case of supplemental revenues and other amounts payable by the State of California) appropriate officials of the State of California, and shall forward information copies of each such filing to the holder hereof . Upon any default under this Note the holder may, at its option and without notice, declare immediately due and payable the entire unpaid principal sum of this Note together with all accrued interest. 4 227140 The Agency agrees to pay all costs of collection when incurred, and all costs incurred by the holder hereof in exercising or preserving any rights or remedies in connection with the enforcement and administration of this Note or following a default by the Agency, including but not limited to reasonable attorneys ' fees . If any suit or action is instituted to enforce this Note, the Agency promises to pay, in addition to the costs and disbursements otherwise allowed by law, such sum as the court may adjudge reasonable attorneys ' fees in such suit or action. This Note will be governed by California law, except to the extent that federal law preempts the laws of the State of California, in which event such federal laws shall govern this Note, and all persons and entities in any manner obligated under this Note consent to the jurisdiction of any federal or state court within the State of California having proper venue and also consent to service of process by any means authorized by California or federal law. PALM DESERT REDEVELOPMENT AGENCY By: Its : Chairman M03479 [ 14060]7 5 -00 4- ORDINANCE NO. 590 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A CERTAIN DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PALM DESERT AND AHMANSON COMMERCIAL DEVELOPMENT COMPANY. THE CITY COUNCIL OF THE CITY OF PALM D&S-ERT DOES ORDAIN AS FOLLOWS: Section 1. The City Council has heretofore certified that the Final Environmental Impact Report for the Ahmanson Commercial Development Plan, (the "Final EIR") analyzes all potential environmental impacts of the proposed Development Agreement (the "Agreement") by and between the City of Palm Desert (the "City") and Ahmanson Commercial Development Company (the "Developer") and was completed pursuant to the provisions of the California Environmental Quality Act and guidelines promulgated with respect thereto, and the City Council has reviewed and considered the contents of the Final EIR prior to deciding whether to approve the proposed Agreement. Section 2. The City Council has heretofore adopted a mitigation monitoring program with respect to the mitigation measures described in the Final EIR which have been adopted or made a condition of the Approval of the Agreement. Section 3. The Planning Commission of the City of Palm Desert has reported to the City Council that the proposed Agreement is in conformance with the General Plan and the Commercial Core Area Specific Plan of the City of Palm Desert, and has recommended approval of the proposed Agreement. Section 4. Pursuant to notice duly given, the City Council has held a full and fair public hearing pursuant to law on the proposed Agreement and the City Council has duly considered and has evaluated all evidence for and against the proposed Agreement. All objections to the Agreement were heard and passed upon by the City Council and are hereby overruled by the City Council. The City Council hereby finds that the Agreement is consistent with the General Plan and Commercial Core Area Specific Plan of the City of Palm Desert. ORDINANCE NO. 590 Section 5. The Agreement, a copy of which has been presented' to the City Council and which is on file in the office of the CitF Clerk, is hereby approved in substantially the form so presented.'' to the City Council and on file with the office of the City Clerk. . The Mayor, the City Clerk, their designees, and other appointed officers and employees of the City, are hereby authorized and directed upon the effective date of this Ordinance to execute such Agreement on behalf of the City with such changes or amendments thereto as the Mayor shall determine are necessary or appropriate and consistent with the intent of the City Council in adopting this ordinance and such determination shall be conclusively evidenced by the execution of the Agreement by the Mayor. Section 6. The City Clerk shall certify to the passage of this Ordinance and shall cause this Ordinance to be published and posted as required by law. PASSED, APPROVED, AND ADOPTED by the Palm Desert City Council this 14th day of December, 1989, by the following vote, to wit: AYES: Benson, Kelly, Snyder, Wilson NOES: Crites ABSENT: None ABSTAIN: None ATTEST: SHEILA R. GILLIGAN,- ity Clerk City of Palm Desert, California BUF D A CRITES, Mayor -4W