HomeMy WebLinkAboutORD 627RECORDING REQUESTED BY, AND
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City Clerk's Office
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City of Palm Desert
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73-510 Fred Waring Drive
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Palm Desert, CA 92260
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FOR THE BENEFIT OF THE
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CITY OF PALM DESERT
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6103 OF THE GOVT. CODE
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ORDINANCE NO. 627
AN ONuiNANCE OF THE CITY COUNCIL OF THE 2()5654
CITY OF PALM DESERT, CALIFORNIA, APPROVING
A DEVELOPMENT AGREEMENT BETWEEN THE CITY
OF PALM DESERT AND SUNRISE DESERT PARTNERS
TO ALLOW CONSTRUCTION OF A RESIDENTIAL
CONDOMINIUM/COUNTRY CLUB PROJECT IN
SECTION 11, TSS, R6E.
CASE NO. PREANNEXATION AND DEVELOPMENT AGREEMENT FOR
VESTING TT 26123
WHEREAS, the City Council of the City of Palm Desert, California,
did on the 8th day of November, 1990, hold a duly noticed public hearing
which was continued to December 13, 1990, to consider the request of
SUNRISE DESERT PARTNERS to consider the above mentioned project; and
WHEREAS, at said public hearing, upon hearing and considering all
testimony and arguments, if any, of all interested persons desiring to
be heard, said city council did find the following:
1. That the development agreement is consistent with the
provisions of Section 25.37 Development Agreements.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of
Palm Desert, California, as follows:
1. That the above recitations are true and correct and constitute
the findings of the city council in this case.
2. That the City Council does hereby approve the Development
Agreement, Exhibit "A", for Case No. Vesting TT 26123 between
the City of Palm Desert and Sunrise Desert Partners.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm
Desert City Council, held on this loth day of January, 1991, by the
following vote, to wit:
AYES: BENSON, CRITES, KELLY, SNYDER
NOES: NONE
ABSENT: WILSON
ABSTAIN: NONE
}( ES vv _
/ CityofPalmTDeSer California
SRS/tm
WALTER H. SNYDER, Mayof
EACH DOCUMENT TO WHICH THIS CERTIFICATE IS
ATTACHrD, !S CERTFiF•n TO RE A FULL, TR9E ANO
CORRECT COPY CF THE ORIGINAL ON FILE AND ON
RECORD IN MY OFFICE.
Dated: Q---�^--
S'r.Eiu1 R GILIGAN, City Clark
City of is rt Ca!ifornia
FOR THE BENEFIT OF
CITY OF PALLI D^QE?';-
NO FEE
6103 OF THE GOVT.. CODE
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: Citv Clerk
(Space Above This Line For Recorder's Use)
INDIAN RIDGE COUNTRY CLUB
PREANNEXATION AND DEVELOPMENT
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TABLE OF CONTENTS
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Page No.
RECITALS 1
AGREEMENT 3
1.0 Definition of the Project ...................... 3
2.0 Definition of Terms ............................ 3
3.0 Property Interest .............................. 3
4.0 Timing of Annexation ........................... 4
5.0 Compliance with CEQA ........................... 4
6.0 Consistency with the General Plan .............. 4
7.0 Sunrise's Obligations .......................... 4
7.1
Development Fees ......................... 4
7.2
Mello -Roos Community Facilities
District for Cook Street Improvements .... 5
7.3
Drainage Facilities ...................... 5
7.4
Street Improvements ...................... 6
7.4.1 Avenue 42 (Southern Perimeter
of the Property) .................. 6
7.4.2 Eldorado Drive (Western
Perimeter of the Property) ........ 6
7.4.3 Oasis Club Drive (Eastern
Perimeter of the Property) ........ 6
7.4.4 Country Club Drive (Northern
Perimeter of the Property) ........ 6
7.4.5 Sidewalks ......................... 6
7.4.6 Traffic Signals ................... 6
7.5
Time for Commencement .................... 7
8.0 City's
Obligations ............................. 7
8.1 Development in Accordance with
Existing Approvals .. ...... .......... 7
8.2 Timely Application and Processing ........ 7
8.3 Exemption From Construction Moratorium ... 7
8.4 Review of Subsequent Applications ........ 7
8.5 Other Governmental Permits .............. 8
8.6 Cooperation in Formation of CFDs ......... 8
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9.0 Limitations, Reservations and Exceptions ....... 8
9.1 Reservations of Authority ................ 8
9.2 Future Regulations ...... •...... ...... 9
9.3 State and Federal Laws andRegulations ... 9
9.4 Full Extent of Law ....................... 9
10.0 Periodic Review of Compliance .................. 9
10.1 Planning Commission Review ............... 9
10.2 Appeal to City Council ................... 10
10.3 City Council Action ...................... 10
11.0 Term ........................................... 10
12.0 Amendment ...................................... 10
12.1 Initiation of Amendment . ................. 10
12.2 Insubstantial Deviationsfrom
Development Plan ... .. .............. 10
12.3 Administrative Interpretations Not In
Conflict with Purposes of this Agreement 11
13.0
Partial Invalidity .............................
11
14.0
Enforceability .................................
11
15.
Remedies .......................................
11
15.1 Specific Performance .....................
11
15.2 Withdrawal ...............................
11
16.0
Mortgagee Protection ...........................
12
17.0
Miscellaneous Provisions .......................
12
17.1 Incorporation of Exhibits ................
12
17.2 No Agency Created ........................
12
17.3 Force Majeure ............................
12
17.4 No Third Party Beneficiaries .............
13
17.5 Assignment ...............................
13
17.6 Entire Agreement .........................
13
17.7 Recitals .... ... ..... ...........
13
17.8 Further Actions andInstruments ..........
13
17.9 Notices .. • ....... .................
13
17.10 Construction ofAgreement................
14
17.11 Counterparts .............................
14
17.12 Hold Harmless..........................
14
17.13 Reimbursement of Costs ...................
14
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: Citv Clerk
(Space Above This Line For Recorder's Use)
INDIAN RIDGE COUNTRY CLUB
PREANNEXATION AND DEVELOPMENT AGREEMENT
PURSUANT TO THE AUTHORITY of state law, including
Sections 65864 through 65869.5 of the California.. Government
Code, this Preannexation and Development Agreement
( "Agreement" ) is entered this loth day of January. 1991 SM, by
and between the City of Palm Desert ("City"), a municipal
corporation of the State of California, and Sunrise Desert
Partners ("Sunrise"), a California limited partnership.
R E C I T A L S:
The parties hereto have entered into this Agreement on
the basis of the following facts, understandings and intentions.
A. Sunrise is the owner of property consisting of
approximately 640 acres (the "Property"), bounded by Country
Club Drive on the north, Avenue 42 on the south, Eldorado Drive
on the west and Oasis Club Drive on the east, as more
particularly described in Exhibit A. The Property currently is
located within the sphere of influence of the City, in the
County of Riverside. On September 20 , 1990, a petition was
submitted to the Riverside County Local Agency Formation
Commission ("LAFCO") requesting the annexation of the Property
to the City.
B. Sunrise has proposed the development of Indian
Ridge Country Club, a planned community of no more than 1,500
homes, on the Property (the "Project"). The Project will
consist of a residential community, two eighteen -hole
championship golf courses, and a clubhouse featuring golf,
tennis, swimming and health spa facilities. The Project will
include a diversity of housing types appealing to a broad range
of residents.
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C. The City is authorized to enter into binding
preannexation agreements which set forth the terms and
conditions upon which property will be developed following
annexation to the City. Pursuant to Government Code sections
65864-65869.5, the City is further authorized to enter into
binding development agreements which encourage and provide for
the development of public facilities in order to support the
development of new housing; provide certainty in the approval
of development projects in order to avoid a waste of resources
and an escalation in the cost of housing and other development
to the consumer; provide assurance to developers that they may
proceed with their projects in accordance with existing
policies, rules and regulations, subject to their conditions of
approval; and strengthen the public planning process and
encourage private participation in comprehensive planning.
D. The development of the Project requires
substantial early and major capital expenditures and
investments with respect to the construction and installation
of major infrastructure and facilities, both on -site and
off -site, of sufficient capacity to serve the Project as
anticipated by the General Plan of the City and this Agreement.
E. The City has approved the following entitlements
for the Project: pgrezoning of the Project site to P.R.-5, by
Ordinance No. 1675 a Precise Plan for the Project, by
Resolution No. 90-146 ; and a vesting tentative map for
the Project, by Resolution No. 90-145 (collectively,
"Existing Approvals"), contingent upon the annexation of the
Property to the City.
F. The Project site is designated P.R.-5 by the
General Plan and the North Sphere Specific Plan. This
designation allows the development of a maximum of five
residential units per gross acre. The residential density of
the Project will not exceed 2.35 units per gross acre and is,
therefore, consistent with the General Plan and North Sphere
Specific Plan. The P.R.-5 prezoning, which also allows the
development of five residential units per gross acre, is
consistent with the designation of the Project site in the
General Plan and North Sphere Specific Plan.
G. The City has undertaken the necessary review of
the environmental effects of the Project pursuant to the
California Environmental Quality Act ("CEQA"). On December.13 ,
1990, the City Council approved a negative declaration
("Negative Declaration") for the Project by Resolution
No.-90-145. The Negative Declaration evaluates potential
impacts of the Project on the environment and sets forth the
City's reasons for concluding that these impacts will not be
significant.
H. This Agreement is intended to establish standards
and requirements for the development of the Project, and to
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provide for the orderly development of the Project, thereby
assuring the public benefits identified by the City in this
Agreement.
I. Following due consideration of all evidence
submitted or heard at duly noticed public hearings, the City
Planning Commission and City Council have found and determined
that this Agreement (a) is consistent with the City's General
Plan; (b) is in the best interests of the health, safety and
general welfare of the City, its residents and the public;
(c) is entered into pursuant to and constitutes a present
exercise of the police power by the City; (d) is entered into
pursuant to and in compliance with the requirements of state
law; and (e) is entered into for valuable and adequate
consideration, based on the obligations assumed by Sunrise
hereunder.
I. The City has determined that the Project
implements the goals and policies of the City's General Plan
applicable to the Project. The City further finds that the
Project imposes appropriate standards and requirements with
respect to land developments and usage so as to maintain and
improve the quality of life and the environment within the City.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual
covenants and conditions contained herein, the parties hereto
agree as follows:
1.0 Definition of the Project.
The Project is a planned community consisting of a
maximum of 1,500 residential units, two eighteen -hole golf
courses, a clubhouse and sports facilities, as more
particularly described in the development plan attached hereto
as Exhibit B ("Development Plan"). The permitted uses of the
Property, the density or intensity of use, and the maximum
height and size of proposed buildings shall be as set forth in
the Development Plan.
2.0 Definition of Terms.
"Date of Enactment" shall mean the date of the second
reading of the ordinance by which the City approves this
Agreement. "Effective Date" shall mean that date (thirty days
after the Date of Enactment) upon which this Agreement becomes
effective, pursuant to state law.
3.0 Property Interest.
Sunrise has shown to the City's satisfaction that its
interest in the Property meets the requirements of the
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Development Agreement taw. Sunrise is the owner in fee of the
Property.
4.0 Timina of Annexation.
This Agreement shall not
annexation proceedings annexing the
completed within one year from the
annexation is not completed within
Agreement or any extension of the
shall be null and void.
5.0 ComDliance with CEQA,.
become operative unless
Property to the City are
Effective Date. If the
the time specified in the
Agreement, the Agreement
The City has determined that this Agreement is
consistent with and within the scope of the Negative
Declaration. The City has determined that there are no
substantial changes in the Project, or in the circumstances
under which the Project will be undertaken pursuant to this
Agreement, which involve new significant impacts not considered
in the Negative Declaration. Therefore, no further
environmental analysis of this Agreement is required under CEQA.
6.0 Consistencv with the General Plan.
The designation of the Property in the General Plan is
Planned Residential ("P.R.") 5. The P.R. designation allows
the development of residential uses, community facilities,
recreational uses and related accessory uses, and other uses or
mixtures of residential with country club related commercial
uses, as designated on an approved precise plan. The P.R.
district is intended to provide for flexibility in development,
creative and imaginative design, and the development of parcels
of land as coordinated projects involving a mixture of
residential densities and housing types, and community
facilities, both public and private. The P.R.-5 designation
establishes that five residential units per gross acre are
permitted. The Project is consistent with this designation
because it will incorporate residential and country club
related uses in a creative design, and will not exceed five
residential units per gross acre. The City has further
determined that this Agreement will implement the goals and
policies of the General Plan of the City, including the goals
of developing a land use pattern that takes optimum advantage
of the City's natural assets, providing for an orderly balance
of land uses within convenient and compatible locations and
creating a distinctive sense of place and identity for each
community and neighborhood in the City.
7.0 Sunrise's Obliaations.
7.1 Development Fees. Sunrise shall pay all fees
which are required as conditions of approval for the Project,
and/or which are contained in City ordinances or resolutions in
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effect at the time of Project approval. The fees payable by
Sunrise in connection with the Project shall include, but are
not limited to, the following: (a) City park fees, pursuant to
the Subdivision Map Act; (b) City Art in Public Places fee;
(c) school fee payable to Desert Sands Unified School District,
based on state law requirements; (d) Transportation Uniform
Mitigation Fee, applicable to regional transportation and
public works projects; (e) water and sewer fees payable to
Coachella Valley Water District; and (f) Fringe -Toed Lizard
Fee, payable under the Fringe -Toed Lizard Habitat Conservation
Plan
7.2 Mello -Roos Community Facilities District for Cook
Street Improvements. The Property shall participate in the
proposed Mello -Roos Community Facilities District ("CFD") or
assessment district for improvements to Cook Street to the
extent determined by the "Special Tax Report" to be filed in
connection with the proceedings of the City of Palm Desert, in
the Office of the City Clerk of the City of Palm Desert. The
City and Sunrise hereby acknowledge that the sum of $1,687,712
is a reasonable allocation of public infrastructure costs
attributable to the Project. Therefore, the maximum obligation
to be imposed on the Property pursuant to the Cook. Street CFD
or assessment district shall be $1,687,712. Sunrise further
agrees to advance $50,000 for the formation of the Cook Street
CFD, subject to reimbursement from Mello -Roos bond proceeds.
Any Transportation Uniform Mitigation Fees (as more
particularly described in Section 7.1 herein) shall be credited
against the $1,687,712 Cook Street CFD obligation. The
application of this credit is in recognition that the payment
of Transportation Uniform Mitigation Fees represents a
contribution by the Project to the public infrastructure costs
of the Project, and results in a reasonable allocation of
public infrastructure costs attributable to the Project.
7.3 Drainaae Facilities. The Project shall be
designed to retain drainage from a 100-year storm on -site. If
the City imposes a drainage fee applicable to the Property,
Sunrise shall receive a fair and equitable credit against this
fee. The credit shall be based on the reduction in the City's
cost of building drainage improvements attributable to the
Project's on -site retention of drainage. Drainage fees for the
construction of regional drainage improvements which would be
necessary regardless of the on -site drainage, shall be paid in
an amount which shall be based on the City of Palm Desert
Master Drainage Plan prepared by NBS/Lowry upon its adoption by
the Palm Desert City Council.
7.4 Street Improvements. Sunrise shall provide
landscaping and other improvements to all streets directly
adjacent to the Property, as follows. All descriptions of
street sections are approximate, and are subject to
modification without amendment of this Agreement.
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7.4.1 Avenue 42 (Southern Perimeter of the
Prooertv). The northern half of the 100-foot right of way
shall be dedicated and improved to include 32-foot driving
lanes, a 12-foot landscaped parkway and one-half of the 12-foot
landscaped median. In addition, Sunrise shall construct the
southern half of the landscaped median adjacent to Oasis
Country Club, where the southern half of the street is fully
improved but no median exists.
7.4.2 Eldorado Drive (Western Perimeter of the
Prooertv). The eastern half of the 110-foot right of way shall
be dedicated and improved. The western half also shall be
improved, beginning one-half mile south of Country Club Drive
(where improvements to the western half now end) and extending
one-half mile south to the intersection of Avenue 42. The
construction of these improvements to the western half of
Eldorado Drive shall be subject to a reimbursement agreement
administered by the City, pursuant to which Sunrise shall be
reimbursed for the cost of the improvements when the adjacent
land to the west is developed. The Eldorado Drive street
section shall consist of 12-foot parkways on both sides, 34
feet of driving lanes in each direction and an 18-foot
landscaped median. In addition to the landscaping of the
12-foot parkway, Sunrise shall also landscape 8 feet outside
its perimeter wall, for a total of 20 feet of landscaped
perimeter on the eastern side of Eldorado Drive.
7.4.3 Oasis Club Drive (Eastern Perimeter of the,
Prouertv). The western half of a 100-foot right of way shall
be dedicated and improved to include a 12-foot landscaped
parkway, 32-foot driving lanes and a 12-foot painted center
median.
7.4.4 Country Club Drive (Northern Perimeter of,
the Prooertv). Sunrise has fully improved the southern half of
Country Club Drive, adjacent to the Property. The 12-foot
parkway shall be landscaped, along with an additional 18 feet
outside the Project's north perimeter wall, for a total of 30
feet of landscaped perimeter on Country Club Drive.
7.4.5 Sidewalks. Concrete sidewalks shall be
constructed on all four perimeters of the Property. Sidewalk
width shall be eight feet on Country Club and E1 Dorado Drives
and six feet wide on Oasis Club Drive and 42nd Avenue.
7.4.6 Traffic Signals. Sunrise shall provide
for the conversion of the existing three-way traffic signal on
Country Club Drive at the main project entry to a four-way
configuration and pay one-fourth the cost of traffic signal
installation at the intersections of Country Club Drive and
Oasis Club Drive, 42nd Avenue and Oasis Club Drive, and E1
Dorado Drive and 42nd Avenue. Traffic signalization fees
required for the Project may be used as credits against these
costs.
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7.5 Time for Commencement. Sunrise shall commence
construction of the Project within ten (10) years of the
Effective Date of this Agreement. Failure to do so shall be
considered a default by Sunrise. Notwithstanding the
foregoing, the time for commencement may be extended by
agreement of the parties upon a showing by Sunrise of good
cause for the extension.
8.0 Citv's Obligations.
8.1 Development in Accordance with Existinq
Approvals. To the fullest extent of the City's authority and
jurisdiction, Sunrise shall have a vested right to design,
construct, operate and maintain the Project in accordance with
the Development Plan, Existing Approvals and the terms of the
rules, regulations, and ordinances of the City in effect as of
the Date of Enactment of this Agreement ("Local Rules"). The
City shall not impose, or seek to impose, any additional
requirements, exactions, fees or payments, or dedication or
reservation requirements except those expressly set forth in
the Reservation of Authority.
8.2 Timely ADDlication and Processinq. The City
hereby acknowledges that the timely development of the Project
will benefit the public health, safety, and welfare. In
recognition of this, the City and Sunrise agree to cooperate in
the expeditious processing and review of all applications for
further approvals required by the Project. The City shall not
impose any exaction or restriction (except requirements
relating to the normal processing of applications for
development approvals) which would delay, interfere with or
impede the commencement or rate of design, construction,
development or operation of the Project or any component
thereof as contemplated by the Development Plan.
8.3 ExemDtion From Construction Moratorium. The City
specifically agrees and acknowledges that the Project is exempt
from the construction moratorium adopted by the City on or
about April 26, 1990, as set forth in Ordinance No. 602, and
from any extensions to the construction moratorium which the
City may adopt in the future.
8.4 Review of Subsequent ADDlications. The Project,
including subsequent applications for approvals necessary for
the development of the Project in accordance with the
Development Plan, shall not be subject to any changes in the
Local Rules or new Local Rules adopted subsequent to the Date
of Enactment, which would interfere or conflict with .the
development of the Project for the uses and to the height,
design standards, density and intensity of use specified in the
Development Plan, or with the rate of development of the
Project, except as otherwise provided by this Agreement,
including the Reservations of Authority. The City shall
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promptly issue any permits which may be required to implement
the Development Plan, provided that Sunrise is in compliance
with this Agreement and the Local Rules in effect as of the
Date of Enactment.
8.5 Other Governmental Permits. Sunrise may apply
for such other permits and approvals from other governmental or
quasi -governmental agencies having jurisdiction over the
Project as may be required for the development, design,
construction, or operation of the Project in accordance with
the Development Plan. The City shall cooperate with Sunrise in
its efforts to obtain such permits and approvals and shall
assist in expediting LAFCO processing of the annexation of the
Property.
8.6 Cooperation in Formation of CFDs. In addition to
the Cook Street CFD described in Section 7.2, the City and
Sunrise intend to consider the formation of one or more CFDs
which will include the Property, or a portion thereof, within
their boundaries for the purpose of financing various off -site
improvements. The City shall use its best efforts to cooperate
with Sunrise in the formation and establishment of such CFDS;
provided, however, that nothing herein shall prevent Sunrise in
its sole discretion from voting against the formation of any
CFD, with the exception of the Cook Street CFD.
9.0 Limitations. Reservations and Exceptions.
9.1 Reservations of Authoritv. Notwithstanding any
other provision of this Agreement, the following rules,
regulations and ordinances of the City which may come into
effect after the Date of Enactment of this Agreement shall
apply to the development of the Property.
A. Procedural regulations relating to hearing
bodies, petitions, applications, notices, findings, records,
hearings, reports, recommendations, appeals and any other
matter of procedure.
B. Changes in regulations governing
construction standards and specifications after the effective
date of this Agreement which are required by changes in state
or federal law or federal laws or regulations, or by changes in
the uniform building code, plumbing code, mechanical code,
electrical code, fire code and grading code.
C. Processing fees and charges of every kind
and nature imposed by the City, on a uniform City-wide basis at
the time such fees are due, to cover the estimated actual costs
to the City of processing applications for development
approvals or for monitoring compliance with any development
approvals granted or issued.
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D. Regulations which
the Development Plan, but which are
project the public health and safety;
any such regulation shall be applied
provide Sunrise with the rights and
this Agreement.
of Sunrise.
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may be in conflict with
reasonably necessary to
to the extent possible,
and construed so as to
assurances provided under
E. Regulations applied with the written consent
9.2 Future Reaulations. Nothing herein shall prevent
the City, in subsequent discretionary approvals for the
Project, from applying new rules, regulations, or ordinances
(1) not inconsistent or in conflict with the Local Rules or
with the purposes and conditions of this Agreement, and
(2) which do not interfere or conflict with the height, density
or intensity set forth in the Development Plan or with the rate
of development selected by Sunrise.
9.3 State and Federal Laws and Reaulations. The
Project shall be subject to existing and future state and
federal laws and regulations, together with any City land use
regulations, programs and actions, or inaction, which are
reasonably (taking into consideration, among other things, the
assurances provided to Sunrise hereunder) adopted or undertaken
by the City in order to comply with state and federal laws and
regulations; provided, that in the event that state or federal
laws and regulations prevent or preclude compliance with one or
more provisions of this Agreement, such provisions shall be
modified or suspended as may be necessary to comply with such
state and federal laws and regulations. In such event, this
Agreement shall remain in full force and effect to the extent
that it is not inconsistent with such laws and regulations and
that performance of the remaining provisions would not be
inconsistent with the intent and purposes of this Agreement.
9.4 Full Extent of Law. The parties acknowledge and
agree that the City is restricted in its authority to limit its
police power by contract and that the foregoing limitations,
reservations and exceptions are intended to reserve to the City
all of its police power which cannot be so limited.
10.0 Periodic Review of Compliance.
10.1 Plannina Commission Review. The Planning
Commission, at a public hearing, shall conduct a compliance
review of this Agreement within six months from the Date of
Enactment, and annually thereafter. At least one week prior to
the Planning Commission compliance hearing, Sunrise shall
submit a letter to the Planning Commission, demonstrating its
good faith compliance with this Agreement. If the Planning
Commission finds that Sunrise has demonstrated good faith
compliance with this Agreement, the annual review shall be
deemed concluded.
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10.2 Anneal to Citv Council. If the Planning
Commission finds and determines on the basis of substantial
evidence that Sunrise has not complied in good faith with this
Agreement, the Planning Commission shall (1) specify actions to
be taken to cure the default under the Agreement, (2) propose
the modification of the Agreement, or (3) propose the
termination of the Agreement. Sunrise shall have the right to
appeal any portion of any such action to the City Council
within thirty days of the date of the Planning Commission
action.
10.3 Citv Council Action. Upon appeal by Sunrise
pursuant to Section 10.2 herein, the City Council shall conduct
a hearing to determine whether Sunrise is in good faith
compliance with this Agreement. If the City Council determines
that Sunrise is in good faith compliance, the annual review
process shall be deemed completed. If the City Council finds
that Sunrise has not complied in good faith with this
agreement, it shall (1) specify actions to be taken to cure the
default under the Agreement, (2) modify the Agreement, or (3)
terminate the Agreement.
11.0 Term.
This Agreement shall commence on the Effective Date
and shall continue in effect for twenty years from the
Effective Date. This term is intended to provide sufficient
time for the full repayment of the bonds to be issued by the
CFD referred to in Section 7.2, or of any other debt
obligations incurred in lieu of such bonds. If the parties
determine that a longer period is necessary to achieve the
purpose stated herein, the term of this Agreement may be
extended by the further written agreement of the parties in
accordance with Section 12.3.
12.0 Amendment.
12.1 Initiation of Amendment. Either party may
propose an amendment to this Agreement. Except as otherwise
provided herein, cancellation or amendment shall follow the
notice and hearing requirements established by applicable law
for the consideration of development agreements.
12.2 Insubstantial Deviations from Development Plan.
Any insubstantial deviation from the Development Plan with
respect to the location, size, or height of structures,
streets, and other physical facilities, as determined by the
Director of Planning, may be approved by the person or body
with authority to approve the plans for such facilities without
amendment of this Agreement, in accordance with City policy.
Insubstantial deviations shall include, without limitation, the
introduction of different housing product types and the
replotting of the locations of houses, so long as such
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deviations are not inconsistent with (a) the permitted uses
described in Exhibit B, and (b) City policy in effect at the
time of entry into this Agreement.
12.3 Administrative Interpretations Not in Conflict.
With Purnoses of This Agreement. Upon agreement of the parties
hereto, memoranda of administrative interpretation may be
entered into regarding any aspect of this Agreement which does
not relate to permitted uses, density or intensity of use,
height or size of buildings, provisions for reservation of
land, conditions, restrictions and requirements relating to
subsequent discretionary approvals, rate of development, or the
term of the Agreement.
13.0 Partial Invaliditv.
If any material provision of this Agreement is
determined to be void, invalid, or illegal by a final judgment
of a court of competent jurisdiction, the parties may (a) amend
this Agreement pursuant to the procedures set forth herein, or
(b) by mutual agreement of the parties, terminate the Agreement.
14.0 Enforceabilitv.
It is acknowledged and agreed by the parties hereto
that any assurances provided to Sunrise with respect to the
imposition of additional exactions, regulations, or
restrictions affecting permitted uses, intensity of use,
density, height, or the rate of development of the Project are
(a) intended to be relied upon by Sunrise; (b) made in exchange
for valuable and adequate consideration provided by Sunrise in
the form of covenants and commitments as set forth in this
Agreement; and (c) made with the understanding that such
assurances will not be amended, changed, or increased except as
provided herein.
15.0 Remedies.
15.1 Specific Performance. The parties agree and
understand that a breach of this Agreement may result in
irreparable harm to the non -breaching party, and that specific
performance of this Agreement is a proper and desirable remedy.
15.2 Withdrawal. In the event that Sunrise is unable
to construct and operate the Project in a manner set forth in
the Development Plan and this Agreement because of (a) this
Agreement or any portion hereof being determined to be invalid
or unenforceable, (b) the imposition of any exaction,
restriction, or change in the Local Rules not specifically
provided for in this Agreement, or (c) Sunrise reasonably
determining that the Project, despite good faith efforts, is
economically infeasible, in addition to any other remedy which
it might possess, Sunrise shall have the right upon written
notice to the City to withdraw from this Agreement.
-11-
205654
Thereafter, the City and Sunrise shall be released from any and
all further liabilities or obligations hereunder. Sunrise's
notice to the City that it is withdrawing from this Agreement
shall constitute a waiver of Sunrise's rights hereunder and the
Project shall be subject to City review according to the rules
and regulations in existence at that time.
16.0 Mortgaaee Protection.
No breach of this Agreement shall defeat, render
invalid, diminish or impair the lien of any deed of trust or
mortgage made in good faith and for value, and no holder of a
deed of trust or mortgage ("Mortgagee") shall have an
obligation or duty under this Agreement to perform Sunrise's
obligations or to guarantee such performance. Notwithstanding
the foregoing, any acquisition or acceptance of title or any
right or interest in or with respect to the Property or any
portion thereof, by a Mortgagee (whether under or pursuant to a
mortgage, foreclosure, trustee's sale, deed in lieu of
foreclosure, or otherwise), shall be subject to all of the
terms and conditions contained in this Agreement.
17.0 Miscellaneous Provisions.
17.1 Incorporation of Exhibits. Exhibits A and B,
attached hereto, are incorporated herein by this reference.
17.2 No Aaencv Created. It is understood and agreed
to by the parties that the Project is a private development,
that neither party is acting as the agent of the other in any
respect and that no partnership, joint venture or other
association of any kind is formed by this Agreement.
17.3 Force MaZeure. Neither party shall be deemed to
be in default where failure or delay in performance of any of
its obligations under this Agreement is caused by floods,
earthquakes, other Acts of God, fires, wars, riots or similar
hostilities, strikes and other labor difficulties beyond such
party's control, government regulations, court actions (such as
restraining orders or injunctions) or other causes beyond such
party's control. If any such events shall occur, the term of
this Agreement and the time for performance by either party of
any of its obligations hereunder shall be extended by the
period of time that such events prevented such performance,
provided that the terms of this Agreement shall not be extended
for a period which would cause this Agreement or provisions
hereof to be void as violating the rule against perpetuities.
17.4 No Third Partv Beneficiaries. This Agreement is
entered into for the sole protection and benefit of the parties
and their successors and assigns. No third -party beneficiaries
are created by this Agreement.
-12-
205654
17.5 Assianment. This Agreement shall not be assigned
or otherwise transferred without the prior written consent of
the City; provided, however, that such approval shall not be
unreasonably withheld. This Agreement shall benefit and bind
all subsequent transferees. Express assumption of any of the
obligations hereunder by any transferee permitted by this
paragraph shall relieve the transferor from any assumed
obligation.
17.6 Entire Aareement. This Agreement constitutes the
entire Agreement between the parties with respect to the
subject matter of the Agreement.
17.7 Recitals. The recitals to this Agreement
constitute part of this Agreement. Each party shall be
entitled to rely on the truth and accuracy of each recital as
an inducement to enter into this Agreement.
17.8 Further Actions and Instruments. Upon the
request of either party, the other party shall promptly
execute, with acknowledgment or affidavit if reasonably
required, and file or record such required instruments or
writings, including estoppel certificates, and take any actions
that may be reasonably necessary under the terms of this
Agreement to carry out the intent, fulfill the provisions, and
evidence or consummate the transactions contemplated by this
Agreement.
17.9 Notices. All notices required or provided for
under this Agreement shall be in writing and delivered in
person or sent certified mail, postage prepaid and addressed as
follows:
To City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attn: Ramon A. Diaz. ACM/Director of Planning
To Sunrise: Sunrise Desert Partners
42-600 Cook Street, Suite 200
Palm Desert, California 92260
Attn: Phillip K. Smith, Jr.
with a copy to: Nossaman, Guthner, Knox & Elliott
650 Town Center Drive, Suite 1250
Costa Mesa, California 92626
Attn: Jean O. Melious, Esq.
Any notice given as required herein shall be deemed
given seventy-two hours after deposit in the United States mail
or upon receipt. A party may change its address for notices by
giving notice in writing to the other party as required herein.
-13-
20,S65,J
17.10 Construction of Agreement. The captions in
this Agreement are for convenience only and shall not be
considered or referred to in resolving questions of
construction. This Agreement shall be governed by the laws of
the State of California.
17.11 Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
17.12 Hold Harmless. Sunrise agrees to and shall
hold City, its officers, agents, employees and representatives
harmless from liability for damage or claims for damage for
personal injury, including death, and claims for property
damage which may arise from the direct or indirect operation of
Sunrise or those of its contractors, subcontractors, agent,
employee, or other person acting on its behalf which relate to
the Project. Sunrise agrees to and shall defend City and its
officers, agents, employees and representatives from actions
for damages caused or alleged to have been caused by reason of
Sunrise's activities in connection with the Project. This
provision applies to all damages and claims for damages
suffered or alleged to have been suffered by reason of the
operations referred to in this paragraph, regardless of whether
or not the City prepared, supplied or approved plans or
specifications or both for the Project. It does not apply to
negligent acts or omissions by the City. Sunrise further
agrees to indemnify, hold harmless, pay all costs and provide a
defense for City in any action challenging the validity of this
Agreement.
17.13 Reimbursement, of Costs. Sunrise shall pay to
City its direct costs associated with entering into this
Agreement, as shown on itemized City invoices. Such costs
shall be paid prior to issuance of final approvals.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the date(s) set forth below, as of the day
and year first above written.
Date: "2-:y-�"City"
CITY OF PALM DESERT
BV
Its /12 AYD
-14-
Date: 2 / 2 - 9 /
Date: 06/05/91
Date: 06/07/91
"Sunrise"
SUNRISE DESERT PARTNERS
By Sunrise Corporation
Its General Partner
Bev
Its .CXe.cr� 7 e ✓'« /0.1' , ai4e-w7`
APPROVED AB`/TO FORM:
`Cit)fAttorney
City of Palm Desert
City Clerk
City of Palm I
CAT. NO. NN00635
TO 1954 CA (9-84)
(Corporation as a Partner of a Partnership) J TICOR TITLE INSURANCE
STATE OF CALIFORNIA
COUNTY OF Riverside �' 205654
On Feb. 12, 1991 before me, the undersigned, a Notary Public in and for
said Slate, personally appeared Phillip R. Sm i h 7r
personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed
= the within instrument as the Executive Vice President,a.!
J _L. l L _L .
` t um.na a. ans gssml6ly of
Sunrise Corporation
the corporation that executed the within instrument on
behalf of Sunrise Desert Partners �4MN��MNNM M�Iy�'
the partnership that executed *my
OFFICAAL KI
the within instrument, and acknowledged to me that such AL U- R. LEVIN
corporation executed the same as such partner and that WAw g16UOMIPMWA
such partnership executed the same. PRMCK'Pl.OFM M
WITNESS hand and seal. F)IVERSIDECd1NW
Canmieeia9 Esp Aug. 21.1902
1/\�/1 � NN�NIM�1���MMMIMr
Signature ` iC (This area for official notarial scal)
205654
C521886
EXHI'B'IT "A"
DESCRIPTION
The land referred to in this report is situated in the County of Riverside, State of
California, and is described as follows:
DIVISION I
PARCEL 1:
All that portion of the West half of Section 11, Township 5 South, Range 6 East, San
Bernardino Meridian, in the City of Palm Desert, County of Riverside, State of
California,'more particularly described as follows:
Beginning at the Northeast corner of said West half;
thence South 89010145" West, on the North line of said West half, 1,330.18 feet, to an
intersection with the Northerly prolongation of the West line of Parcel 1, as shown by
Record of Survey on file in Book 35, Page 13 of Records of Survey, Records of
Riverside County, California;
thence South 00062133" West, on said Northerly prolongation and on said West line,
5,317.88 feet to the Southwest corner of said Parcel 1;
thence North 89028115' East, on the South line of said Parcel 1, 1,325.54 feet to the
Southeast corner thereof;
thence North 00005130" East, on the East line of said Parcel 1 and the Northerly
prolongation thereof, 5,324.71 feet to the point of beginning;
Said property is also shown as Parcel 1 of Record of Survey on file in Book 35, Page
13 of Records of Survey, Records of Riverside County, California;
EXCEPT that portion described in the deed to the County of Riverside by document
recorded August 11, 1972 as Instrument No. 107739 of Official Records of Riverside
County, California.
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�®5654
C521886
EXHIBIT "A" (Cont'd.)
PARCEL 2:
The West half of the Northeast quarter and the North half of the Northwest quarter of
the Southeast quarter of Section 11, Township 5 South, Range 6 East, San Bernardino
Meridian, in the City of Palm Desert, County of Riverside, State of California, as
shown by United States Government Survey;
EXCEPT the Northerly 44.00 feet thereof, as described in the deeds to the County of
Riverside recorded March 31, 1958 as Instrument No. 23189 in Book 2246, Page 519 and
on April 15, 1958 as Instrument No. 27209 in Book 2255, Page 236 both respectively of
Official Records of Riverside County, California.
PARCEL 3:
The East half of the East half of the East half of Section 11, Township 5 South, Range
6 East, San Bernardino Meridian, in the City of Palm Desert, County of Riverside,
State of California;
EXCEPT the North 44.00 feet thereof, described in the Deeds to the County of
Riverside, by deeds recorded March 31, 1958 in Book 2246, Page 519 as Instrument No.
23189 and on April 15, 1958 in Book 2255, Page 236 as Instrument No. 27209 both
respectively of Official Records of Riverside County, California;
ALSO EXCEPT the Southeast quarter of the Southeast quarter of said section.
PARCEL 4:
The South half of the Southeast quarter and the South half of the Northwest quarter of
the Southeast quarter of Section 11, Township 5 South, Range 6 East, San Bernardino
Meridian, in the City of Palm Desert, County of Riverside, State of California,
according to the official plat thereof.
:r
-17-
EXHIBIT "A" (Cont'd.)
DIVISION II
205654
C521886
All that portion of the West half of the West half of Section 11, Township 5 South,
Range 6 East, San Bernardino Meridian, in the City of Palm Desert, County of
Riverside, State of California, according to the official plat thereof, described as
follows:
Beginning at the Northeast corner of said West half of Section 11;
thence South 89010145/1 West on the North line of said West half, 1,330.18 feet, to an
intersection with the Northerly prolongation of the West line of Parcel 1, as shown by
Record of Survey, on file in Book 35, Page 13 of Records of Survey, Records of
Riverside County, California and the true point of beginning;
thence South 00002133/1 West on said Northerly prolongation and on said West line,
5,317.88 feet to the Southwest corner of said Parcel 1;
thence South 8902811511 West on the South line of Parcel 2 as shown by said Record of
Survey, 1,330.58 feet to the Southwest corner thereof;
thence North 00005100/1 East on the West line of Parcel 2, 2;655.61 feet to an angle
therein;
thence North 00000145/1 East on said West line and the Northerly prolongation thereof,
2,655.51 feet to the Northwest corner of Section 11;
thence North 8901014511 East on said North line of said West half, 1,330.18 feet to the
true point of beginning.
EXCEPT that portion described by deed to Southern California Edison Company, a
California corporation recorded October 26, 1982 as Instrument No. 184850.
DIVISION III
The West half of the East half of the East half of Section 11, Township 5 South, Range
6 East, San Bernardino Meridian, in the City of Palm Desert, County of Riverside,
State of California, according to the official plat thereof.
EXCEPT the North 44.00 feet, described by deeds to the County of Riverside recorded
March 31, 1958 in Book 2246. Page 519 and April 15, 1958 in Book 2255. Page 236,
Records of Riverside County.
ALSO EXCEPT the Southeast quarter of the Southeast quarter of said section.
Note: Said land is also known as all that property lying within the boundaries of
Tentative Tract 26123, a portion of said land is to be resubdivided into Tract 26757.
205654
EXHIBIT B
Development Plan
1. Permitted Uses of the Property
Housing, including single family detached one- and
two-story homes and attached homes containing from two
to six units per building;
Two eighteen -hole golf courses and ancillary
facilities, including but not limited to maintenance
facilities, half -way houses with snack shops and rest
rooms;
Entry complexes;
Sales, resales and rentals building;
A clubhouse, including golf, tennis and health spa
facilities, dining rooms, freestanding grill
room/snack shop, lounges, banquet and meeting rooms,
golf pro shops, a tennis and spa pro shop, at least
fourteen tennis courts (seven night -lighted), four
night -lighted paddle tennis courts, two night -lighted
croquet courts, swimming pools, locker room
facilities, child care center and teen activity room.
The power source for the building may consist of a
cogeneration facility.
2. Maximum Heiahts of Buildinas
The maximum height of residential buildings will be 30
feet.
The maximum height of the clubhouse will be 60 feet.
The maximum height of ancillary golf facilities
(including golf maintenance facilities, half -way
houses with snack shops and rest rooms) will be 30
feet.
The maximum height of entry complexes will be 30 feet.
The maximum height of the sales, resales and rentals
building will be 30 feet.
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205654
3. Density and Intensitv of Use: Maximum Size of Buildinces
ORI:JJF:54
Residential: No more than 1,500 homes shall be
constructed. This constitutes a density of
approximately 2.35 units per acre. Homes shall range
in size from 1,'20.O 'to 4,000 square feet.
Clubhouse: The clubhouse shall not exceed 125,000
square feet in size. The freestanding grill
room/snack shop shall not exceed 5,000 square feet.
Ancillary golf facilities, including golf maintenance
facilities, half -way houses with snack shops and rest
rooms, shall not exceed 40,000 square feet.
Entry complexes shall not exceed 7,500 square feet.
The sales, resales and rentals building shall not
exceed 5,000 square feet.
-20 -
ORDINANCE NO. 627
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF PALM DESERT, CALIFORNIA, APPROVING
A DEVELOPMENT AGREEMENT BETWEEN THE CITY
OF PALM DESERT AND SUNRISE DESERT PARTNERS
TO ALLOW CONSTRUCTION OF A RESIDENTIAL
CONDOMINIUM/COUNTRY CLUB PROJECT IN
SECTION 11, T5S, R6E.
CASE NO. PREANNEXATION AND DEVELOPMENT AGREEMENT FOR
VESTING TT 2612
WHEREAS, the City Council of the City of Palm Desert, California,
did on the 8th day of November, 1990, hold a duly noticed public hearing
which was continued to December 13, 1990, to consider the request of
SUNRISE DESERT PARTNERS to consider the above mentioned project; and
WHEREAS, at said public hearing, upon hearing and considering all
testimony and arguments, if any, of all interested persons desiring to
be heard, said city council did find the following:
1. That the development agreement is consistent with the
provisions of Section 25.37 Development Agreements.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of
Palm Desert, California, as follows:
1. That the above recitations are true and correct and constitute
the findings of the city council in this case.
2. That the City Council does hereby approve the Development
Agreement, Exhibit "A", for Case No. Vesting TT 26123 between
the City of Palm Desert and Sunrise Desert Partners.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm
Desert City Council, held on this loth day of January, 1991, by the
following vote,.to wit:
AYES: BENSON, CRITES, KELLY, SNYDER
NOES: NONE
ABSENT: WILSON
ABSTAIN: NONE
war Mrs H. SNYDER, Mayo
ES
SHEILA R. GI GAN, XAty Clerk
City of Palm Deser , California
SRS/tm
• - 9
EXHIBIT A
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California
Attention:
92260
(Space Above This Line For Recorder's Use)
INDIAN RIDGE COUNTRY CLUB
PREANNEXATION AND DEVELOPMENT AGREEMENT
•
RECITALS
AGREEMENT
FABLE OF CONTENTS
•
Page No.
1
3
1.0
Definition of the Project ...................... 3
2.0
Definition of Terms ............................ 3
3.0
Property Interest .............................. 3
4.0
Timing of Annexation ........................... 4
5.0
Compliance with CEQA ........................... 4
6.0
Consistency with the General Plan .............. 4
7.0
Sunrise's Obligations .......................... 4
7.1 Development Fees ......................... 4
7.2 Mello -Roos Community Facilities
District for Cook Street Improvements .... 5
7.3 Drainage Facilities ...................... 5
7.4 Street Improvements ...................... 6
7.4.1 Avenue 42 (Southern Perimeter
of the Property) .................. 6
7.4.2 Eldorado Drive (Western
Perimeter of the Property) ........ 6
7.4.3 Oasis Club Drive (Eastern
Perimeter of the Property) ........ 6
7.4.4 Country Club Drive (Northern
Perimeter of the Property) ........ 6
7.4.5 Sidewalks ........................ 6
7.4.6 Traffic Signals ................... 6
7.5 Time for Commencement .................... 7
8.0
City's obligations ............................. 7
8.1 Development in Accordance with
Existing Approvals ....................... 7
8.2 Timely Application and Processing ........ 7
8.3 Exemption From Construction Moratorium ... 7
8.4 Review of Subsequent Applications ........ 7
8.5 Other Governmental Permits •.............. 8
8.6 Cooperation in Formation of CFDs ......... 8
9.0 Limitations, Reservations and Exceptions ....... 8
9.1 Reservations of Authority ................ 8
9.2 Future Regulations ........... .. ...... 9
9.3 State and Federal Laws and Regulations ... 9
9.4 Full Extent of Law ....................... 9
10.0 Periodic Review of Compliance .................. 9
10.1 Planning Commission Review ............... 9
10.2 Appeal to City Council ................... 10
10.3 City Council Action ...................... 10
11.0 Term ........................................... 10
12.0 Amendment ...................................... 10
12.1 Initiation of Amendment .................. 10
12.2 Insubstantial Deviations from
Development Plan ......................... 10
12.3 Administrative Interpretations Not In
Conflict with Purposes of this Agreement 11
13.0 Partial Invalidity ............................. 11
14.0 Enforceability ................................. 11
15. Remedies ....................................... 11
15.1 Specific Performance ..................... 11
15.2 Withdrawal ............................... 11
16.0 Mortgagee Protection ........................... 12
17.0 Miscellaneous Provisions ....................... 12
17.1
Incorporation of Exhibits ................
12
17.2
No Agency Created ........................
12
17.3
Force Majeure ............................
12
17.4
No Third Party Beneficiaries .............
13
17.5
Assignment ...............................
13
17.6
Entire Agreement .........................
13
17.7
Recitals .................................
13
17.8
Further Actions and Instruments ..........
13
17.9
Notices ..................................
13
17.10
Construction of Agreement ................
14
17.11
Counterparts .............................
14
17.12
Hold Harmless ............................
14
17.13
Reimbursement of Costs ...................
14
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention:
(Space Above This Line For Recorder's Use)
INDIAN RIDGE COUNTRY CLUB
PREANNEXATION AND DEVELOPMENT AGREEMENT
PURSUANT TO THE AUTHORITY of state law, including
Sections 65864 through 65869.5 of the California Government
Code, this Preannexation and Development Agreement
("Agreement") is entered this day of , 1990, by
and between the City of Palm Desert ("City"), a municipal
corporation of the State of California, and Sunrise Desert
Partners ("Sunrise"), a California limited partnership.
R E C I T A L S•
The parties hereto have entered into this Agreement on
the basis of the following facts, understandings and intentions.
A. Sunrise is the owner of property consisting of
approximately 640 acres (the "Property"), bounded by Country
Club Drive on the north, Avenue 42 on the south, Eldorado Drive
on the west and Oasis Club Drive on the east, as more
particularly described in Exhibit A. The Property currently is
located within the sphere of influence of the City, in the
County of Riverside. On , 1990, a petition was
submitted to the Riverside County Local Agency Formation
Commission ("LAFCO") requesting the annexation of the Property
to the City.
B. Sunrise has proposed the development of Indian
Ridge Country Club, a planned community of no more than 1,500
homes, on the Property (the "Project"). The Project will
consist of a residential community, two eighteen -hole
championship golf courses, and a clubhouse featuring golf,
tennis, swimming and health spa facilities. The Project will
include a diversity of housing types appealing to a broad range
of residents.
C. The City is authorized to enter into binding
preannexation agreements which set forth the terms and
conditions upon which property will be developed following
annexation to the City. Pursuant to Government Code sections
65864-65869.5, the City is further authorized to enter into
binding development agreements which encourage and provide for
the development of public facilities in order to support the
development of new housing; provide certainty in the approval
of development projects in order to avoid a waste of resources
and an escalation in the cost of housing and other development
to the consumer; provide assurance to developers that they may
proceed with their projects in accordance with existing
policies, rules and regulations, subject to their conditions of
approval; and strengthen the public planning process and
encourage private participation in comprehensive planning.
D. The development of the Project requires
substantial early and major capital expenditures and
investments with respect to the construction and installation
of major infrastructure and facilities, both on -site and
off -site, of sufficient capacity to serve the Project as
anticipated by the General Plan of the City and this Agreement.
E. The City has approved the following entitlements
for the Project: prezoning of the Project site to P.R.-5, by
ordinance No. a Precise Plan for the Project, by
Resolution No. ; and a vesting tentative map for
the Project, by Resolution No. (collectively,
"Existing Approvals"), contingent upon the annexation of the
Property to the City.
F. The Project site is designated P.R.-5 by the
General Plan and the North Sphere Specific Plan. This
designation allows the development of a maximum of five
residential units per gross acre. The residential density of
the Project will not exceed 2.35 units per gross acre and is,
therefore, consistent with the General Plan and North Sphere
Specific Plan. The P.R.-5 prezoning, which also allows the
development of five residential units per gross acre, is
consistent with the designation of the Project site in the
General Plan and North sphere specific Plan.
G. The City has undertaken the necessary review of
the environmental effects of the Project pursuant to the
California Environmental Quality Act (110EQA"). on
199o, the City Council approved a negative declaration
("Negative Declaration") for the Project by Resolution
No. . The Negative Declaration evaluates potential
impacts ofthe Project on the environment and sets forth the
City's reasons for concluding that these impacts will not be
significant.
H. This Agreement is intended to establish standards
and requirements for the development of the Project, and to
-2-
•
provide for the orderly development of the Project, thereby
assuring the public benefits identified by the City in this
Agreement.
I. Following due consideration of all evidence
submitted or heard at duly noticed public hearings, the City
Planning Commission and City Council have found and determined
that this Agreement (a) is consistent with the City's General
Plan; (b) is in the best interests of the health, safety and
general welfare of the City, its residents and the public;
(c) is entered into pursuant to and constitutes a present
exercise of the police power by the City; (d) is entered into
pursuant to and in compliance with the requirements of state
law; and (e) is entered into for valuable and adequate
consideration, based on the obligations assumed by Sunrise
hereunder.
I. The City has determined that the Project
implements the goals and policies of the City's General Plan
applicable to the Project. The City further finds that the
Project imposes appropriate standards and requirements with
respect to land developments and usage so as to maintain and
improve the quality of life and the environment within the City.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual
covenants and conditions contained herein, the parties hereto
agree as follows:
1.0 Definition g f the Project.
The Project is a planned community consisting of a
maximum of 1,500 residential units, two eighteen -hole golf
courses, a clubhouse and sports facilities, as more
particularly described in the development plan attached hereto
as Exhibit B ("Development Plan"). The permitted uses of the
Property, the density or intensity of use, and the maximum
height and size of proposed buildings shall be as set forth in
the Development Plan.
2.0 Definition of Teems.
"Date of Enactment" shall mean the date of the second
reading of the ordinance by which the City approves this
Agreement. "Effective Date" shall mean that date (thirty days
after the Date of Enactment) upon which this Agreement becomes
effective, pursuant to state law.
3.0 Property Interest.
Sunrise has shown to the City's satisfaction that its
interest in the Property meets the requirements of the
-3-
Development Agreement Law. Sunrise is the owner in fee of the
Property.
4.0 Timing of Annexation.
This Agreement shall not
annexation proceedings annexing the
completed within one year from the
annexation is not completed within
Agreement or any extension of the
shall be null and void.
5.0 Compliance with CEOA.
become operative unless
Property to the City are
Effective Date. If the
the time specified in the
Agreement, the Agreement
The City has determined that this Agreement is
consistent with and within the scope of the Negative
Declaration. The City has determined that there are no
substantial changes in the Project, or in the circumstances
under which the Project will be undertaken pursuant to this
Agreement, which involve new significant impacts not considered
in the Negative Declaration. Therefore, no further
environmental analysis of this Agreement is required under CEQA.
6.0 Consistency with the General Plan.
The designation of the Property in the General Plan is
Planned Residential ("P.R.") 5. The P.R. designation allows
the development of residential uses, community facilities,
recreational uses and related accessory uses, and other uses or
mixtures of residential with country club related commercial
uses, as designated on an approved precise plan. The P.R.
district is intended to provide for flexibility in development,
creative and imaginative design, and the development of parcels
of land as coordinated projects involving a mixture of
residential densities and housing types, and community
facilities, both public and private. The P.R.-5 designation
establishes that five residential units per gross acre are
permitted. The Project is consistent with this designation
because it will incorporate residential and country club
related uses in a creative design, and will not exceed five
residential units per gross acre. The City has further
determined that this Agreement will implement the goals and
policies of the General Plan of the City, including the goals
of developing a land use pattern that takes optimum advantage
of the City's natural assets, providing for an orderly balance
of land uses within convenient and compatible locations and
creating a distinctive sense of place and identity for each
community and neighborhood in the City.
7.0 Sunrise's Obligations.
7.1 Development Fees. Sunrise shall pay all fees
which are required as conditions of approval for the Project,
and/or which are contained in City ordinances or resolutions in
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effect at the time of Project approval. The fees payable by
Sunrise in connection with the Project shall include, but are
not limited to, the following: (a) City park fees, pursuant to
the Subdivision Map Act; (b) City Art in Public Places fee;
(c) school fee payable to Desert Sands Unified School District,
based on state law requirements; (d) Transportation Uniform
Mitigation Fee, applicable to regional transportation and
public works projects; (e) water and sewer fees payable to
Coachella Valley Water District; and (f) Fringe -Toed Lizard
Fee, payable under the Fringe -Toed Lizard Habitat Conservation
Plan
7.2 Mello -Roos Community Facilities District for Cook
Street Improvements. The Property shall participate in the
proposed Mello -Roos Community Facilities District ("CFD") or
assessment district for improvements to Cook Street to the
extent determined by the "Special Tax Report" to be filed in
connection with the proceedings of the City of Palm Desert, in
the Office of the City Clerk of the City of Palm Desert. The
City and Sunrise hereby acknowledge that the sum of $1,687,712
is a reasonable allocation of public infrastructure costs
attributable to the Project. Therefore, the maximum obligation
to be imposed on the Property pursuant to the Cook Street CFD
or assessment district shall be $1,687,712. Sunrise further
agrees to advance $50,000 for the formation of the Cook Street
CFD, subject to reimbursement from Mello -Roos bond proceeds.
Any Transportation Uniform Mitigation Fees (as more
particularly described in Section 7.1 herein) shall be credited
against the $1,687,712 Cook Street CFD obligation. The
application of this credit is in recognition that the payment
of Transportation Uniform Mitigation Fees represents a
contribution by the Project to the public infrastructure costs
of the Project, and results in a reasonable allocation of
public infrastructure costs attributable to the Project.
7.3 Drainage Facilities. The Project shall be
designed to retain drainage from a 100-year storm on -site. If
the City imposes a drainage fee applicable to the Property,
Sunrise shall receive a fair and equitable credit against this
fee. The credit shall be based on the reduction in the City's
cost of building drainage improvements attributable to the
Project's on -site retention of drainage. Drainage fees for the
construction of regional drainage improvements which would be
necessary regardless of the on -site drainage, shall be paid in
an amount which shall be based on the City of Palm Desert
Master Drainage Plan prepared by NBS/Lowry upon its adoption by
the Palm Desert City Council.
7.4 Street Improvements. Sunrise shall provide
landscaping and other improvements to all streets directly
adjacent to the Property, as follows. All descriptions of
street sections are approximate, and are subject to
modification without amendment of this Agreement.
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•
7.4.1 Avenue 42 (Southern Perimeter of the
Property]. The northern half of the 100-foot right of way
shall be dedicated and improved to include 32-foot driving
lanes, a 12-foot landscaped parkway and one-half of the 12-foot
landscaped median. In addition, Sunrise shall construct the
southern half of the landscaped median adjacent to Oasis
Country Club, where the southern half of the street is fully
improved but no median exists.
7.4.2 Eldorado Drive (Western Perimeter of the
ropertyl. The eastern half of the 110-foot right of way shall
be dedicated and improved. The western half also shall be
improved, beginning one-half mile south of Country Club Drive
(where improvements to the western half now end) and extending
one-half mile south to the intersection of Avenue 42. The
construction of these improvements to the western half of
Eldorado Drive shall be subject to a reimbursement agreement
administered by the City, pursuant to which Sunrise shall be
reimbursed for the cost of the improvements when the adjacent
land to the west is developed. The Eldorado Drive street
section shall consist of 12-foot parkways on both sides, 34
feet of driving lanes in each direction and an 18-foot
landscaped median. In addition to the landscaping of the
12-foot parkway, Sunrise shall also landscape 8 feet outside
its perimeter wall, for a total of 20 feet of landscaped
perimeter on the eastern side of Eldorado Drive.
7.4.3 Oasis Club Drive (Eastern Perimeter of the
Property). The western half of a 100-foot right of way shall
be dedicated and improved to include a 12-foot landscaped
parkway, 32-foot driving lanes and a 12-foot painted center
median.
7.4.4 Country Club Drive (Northern Perimeter of
the Property). Sunrise has fully improved the southern half of
Country Club Drive, adjacent to the Property. The 12-foot
parkway shall be landscaped, along with an additional 18 feet
outside the Project's north perimeter wall, for a total of 30
feet of landscaped perimeter on Country Club Drive.
7.4.5 Sidewalks. Concrete sidewalks shall be
constructed on all four perimeters of the Property. Sidewalk
width shall be eight feet on Country Club and E1 Dorado Drives
and six feet wide on Oasis Club Drive and 42nd Avenue.
7.4.6 Traffic Signals. Sunrise shall provide
for the conversion of the existing three-way traffic signal on
Country Club Drive at the main project entry to a four-way
configuration and pay one-fourth the cost of traffic signal
installation at the intersections of Country Club Drive and
Oasis Club Drive, 42nd Avenue and Oasis Club Drive, and E1
Dorado Drive and 42nd Avenue. Traffic signalization fees
required for the Project may be used as credits against these
costs.
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7.5 Time for Commenc went. Sunrise shall commence
construction of the Project within ten (10) years of the
Effective Date of this Agreement. Failure to do so shall be
considered a default by Sunrise. Notwithstanding the
foregoing, the time for commencement may be extended by
agreement of the parties upon a showing by Sunrise of good
cause for the extension.
8.0 City's Obligations.
8.1 Development in Accordance with Existing
Approvals. To the fullest extent of the City's authority and
jurisdiction, Sunrise shall have a vested right to design,
construct, operate and maintain the Project in accordance with
the Development Plan, Existing Approvals and the terms of the
rules, regulations, and ordinances of the City in effect as of
the Date of Enactment of this Agreement ("Local Rules"). The
City shall not impose, or seek to impose, any additional
requirements, exactions, fees or payments, or dedication or
reservation requirements except those expressly set forth in
the Reservation of Authority.
8.2 Timely Application and Processin-. The City
hereby acknowledges that the timely development of the Project
will benefit the public health, safety, and welfare. In
recognition of this, the City and Sunrise agree to cooperate in
the expeditious processing and review of all applications for
further approvals required by the Project. The City shall not
impose any exaction or restriction (except requirements
relating to the normal processing of applications for
development approvals) which would delay, interfere with or
impede the commencement or rate of design, construction,
development or operation of the Project or any component
thereof as contemplated by the Development Plan.
8.3 Exemption From Construction Morator uu . The City
specifically agrees and acknowledges that the Project is exempt
from the construction moratorium adopted by the City on or
about April 26, 1990, as set forth in Ordinance No. 602, and
from any extensions to the construction moratorium which the
City may adopt in the future.
8.4 Reviekt of Subsequent Apoli ations. The Project,
including subsequent applications for approvals necessary for
the development of the Project in accordance with the
Development Plan, shall not be subject to any changes in the
Local Rules or new Local Rules adopted subsequent to the Date
of Enactment, which would interfere or conflict with the
development of the Project for the uses and to the height,
design standards, density and intensity of use specified in the
Development Plan, or with the rate of development of the
Project, except as otherwise provided by this Agreement,
including the Reservations of Authority. The City shall
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promptly issue any permits which may be required to implement
the Development Plan, provided that Sunrise is in compliance
with this Agreement and the Local Rules in effect as of the
Date of Enactment.
S.5 Other Governmental Permits. Sunrise may apply
for such other permits and approvals from other governmental or
quasi -governmental agencies having jurisdiction over the
Project as may be required for the development, design,
construction, or operation of the Project in accordance with
the Development Plan. The City shall cooperate with Sunrise in
its efforts to obtain such permits and approvals and shall
assist in expediting LAFCO processing of the annexation of the
Property.
8.6 Cooperation in Formation of CFDS. In addition to
the Cook Street CFD described in Section 7.2, the City and
Sunrise intend to consider the formation of one or more CFDs
which will include the Property, or a portion thereof, within
their boundaries for the purpose of financing various off -site
improvements. The City shall use its best efforts to cooperate
with Sunrise in the formation and establishment of such CFDs;
provided, however, that nothing herein shall prevent Sunrise in
its sole discretion from voting against the formation of any
CFD, with the exception of the Cook Street CFD.
9.0 Limitations. Reservations and Exceptions.
9.1 Reservations of Authority. Notwithstanding any
other provision of this Agreement, the following rules,
regulations and ordinances of the City which may come into
effect after the Date of Enactment of this Agreement shall
apply to the development of the Property.
A. Procedural regulations relating to hearing
bodies, petitions, applications, notices, findings, records,
hearings, reports, recommendations, appeals and any other
matter of procedure.
S. Changes in regulations governing
construction standards and specifications after the effective
date of this Agreement which are required by changes in state
or federal law or federal laws or regulations, or by changes in
the uniform building code, plumbing code, mechanical code,
electrical code, fire code and grading code.
C. Processing fees and charges of every kind
and nature imposed by the City, on a uniform City-wide basis at
the time such fees are due, to cover the estimated actual costs
to the City of processing applications for development
approvals or for monitoring compliance with any development
approvals granted or issued.
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D. Regulations which may be in conflict with
the Development Plan, but which are reasonably necessary to
project the public health and safety; to the extent possible,
any such regulation shall be applied and construed so as to
provide Sunrise with the rights and assurances provided under
this Agreement.
E. Regulations applied with the written consent
of Sunrise.
9.2 Future Regulations. Nothing herein shall prevent
the City, in subsequent discretionary approvals for the
Project, from applying new rules, regulations, or ordinances
(1) not inconsistent or in conflict with the Local Rules or
with the purposes and conditions of this Agreement, and
(2) which do not interfere or conflict with the height, density
or intensity set forth in the Development Plan or with the rate
of development selected by Sunrise.
9.3 State and federal Laws and Regulations. The
Project shall be subject to existing and future state and
federal laws and regulations, together with any City land use
regulations, programs and actions, or inaction, which are
reasonably (taking into consideration, among other things, the
assurances provided to Sunrise hereunder) adopted or undertaken
by the City in order to comply with state and federal laws and
regulations; provided, that in the event that state or federal
laws and regulations prevent or preclude compliance with one or
more provisions of this Agreement, such provisions shall be
modified or suspended as may be necessary to comply with such
state and federal laws and regulations. In such event, this
Agreement shall remain in full force and effect to the extent
that it is not inconsistent with such laws and regulations and
that performance of the remaining provisions would not be
inconsistent with the intent and purposes of this Agreement.
9.4 Full_EXtent of Law. The parties acknowledge and
agree that the City is restricted in its authority to limit its
police power by contract and that the foregoing limitations,
reservations and exceptions are intended to reserve to the City
all of its police power which cannot be so limited.
10.0 Periodic Revi9w of compliance.
10.1 Planning Commission Review. The Planning
Commission, at a public hearing, shall conduct a compliance
review of this Agreement within six months from the Date of
Enactment, and annually thereafter. At least one week prior to
the Planning Commission compliance hearing, Sunrise shall
submit a letter to the Planning Commission, demonstrating its
good faith compliance with this Agreement. If the Planning
Commission finds that Sunrise has demonstrated good faith
compliance with this Agreement, the annual review shall be
deemed concluded.
WM
10.2 Appeal to City Council. If the Planning
Commission finds and determines on the basis of substantial
evidence that Sunrise has not complied in good faith with this
Agreement, the Planning Commission shall (1) specify actions to
be taken to cure the default under the Agreement, (2) propose
the modification of the Agreement, or (3) propose the
termination of the Agreement. Sunrise shall have the right to
appeal any portion of any such action to the City Council
within thirty days of the date of the Planning Commission
action.
10.3 City Council Action. Upon appeal by Sunrise
pursuant to Section 10.2 herein, the City Council shall conduct
a hearing to determine whether Sunrise is in good faith
compliance with this Agreement. If the City Council determines
that Sunrise is in good faith compliance, the annual review
process shall be deemed completed. If the City Council finds
that Sunrise has not complied in good faith with this
agreement, it shall (1) specify actions to be taken to cure the
default under the Agreement, (2) modify the Agreement, or (3)
terminate the Agreement.
11.0 Term.
This Agreement shall commence on the Effective Date
and shall continue in effect for twenty years from the
Effective Date. This term is intended to provide sufficient
time for the full repayment of the bonds to be issued by the
CFD referred to in Section 7.2, or of any other debt
obligations incurred in lieu of such bonds. If the parties
determine that a longer period is necessary to achieve the
purpose stated herein, the term of this Agreement may be
extended by the further written agreement of the parties in
accordance with Section 12.3.
12.0 Amendment.
12.1 Initiation of Amendment. Either party may
propose an amendment to this Agreement. Except as otherwise
provided herein, cancellation or amendment shall follow the
notice and hearing requirements established by applicable law
for the consideration of development agreements.
12.2 Insubstantial Deviations from Development Plan.
Any insubstantial deviation from the Development Plan with
respect to the location, size, or height of structures,
streets, and other physical facilities, as determined by the
Director of Planning, may be approved by the person or body
with authority to approve the plans for such facilities without
amendment of this Agreement, in accordance with City policy.
Insubstantial deviations shall include, without limitation, the
introduction of different housing product types and the
replotting of the locations of houses, so long as such
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deviations are not inconsistent with (a) the permitted uses
described in Exhibit B, and (b) City policy in effect at the
time of entry into this Agreement.
12.3 Administrative Interpretations Not in Conflict
With Purposes of This Agreement. Upon agreement of the parties
hereto, memoranda of administrative interpretation may be
entered into regarding any aspect of this Agreement which does
not relate to permitted uses, density or intensity of use,
height or size of buildings, provisions for reservation of
land, conditions, restrictions and requirements relating to
subsequent discretionary approvals, rate of development, or the
term of the Agreement.
13.0 Partial Invalidity.
If any material provision of this Agreement is
determined to be void, invalid, or illegal by a final judgment
of a court of competent jurisdiction, the parties may (a) amend
this Agreement pursuant to the procedures set forth herein, or
(b) by mutual agreement of the parties, terminate the Agreement.
14.0 Enforceability.
It is acknowledged and agreed by the parties hereto
that any assurances provided to Sunrise with respect to the
imposition of additional exactions, regulations, or
restrictions affecting permitted uses, intensity of use,
density, height, or the rate of development of the Project are
(a) intended to be relied upon by Sunrise; (b) made in exchange
for valuable and adequate consideration provided by Sunrise in
the form of covenants and commitments as set forth in this
Agreement; and (c) made with the understanding that such
assurances will not be amended, changed, or increased except as
provided herein.
15.0 Remedies.
15.1 Specific Performance. The parties agree and
understand that a breach of this Agreement may result in
irreparable harm to the non -breaching party, and that specific
performance of this Agreement is a proper and desirable remedy.
15.2 Withdrawal. In the event that Sunrise is unable
to construct and operate the Project in a manner set forth in
the Development Plan and this Agreement because of (a) this
Agreement or any portion hereof being determined to be invalid
or unenforceable, (b) the imposition of any exaction,
restriction, or change in the Local Rules not specifically
provided for in this Agreement, or (c) Sunrise reasonably
determining that the Project, despite good faith efforts, is
economically infeasible, in addition to any other remedy which
it might possess, Sunrise shall have the right upon written
notice to the City to withdraw from this Agreement.
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•
Thereafter, the City and Sunrise shall be released from any and
all further liabilities or obligations hereunder. Sunrise's
notice to the City that it is withdrawing from this Agreement
shall constitute a waiver of Sunrise's rights hereunder and the
Project shall be subject to City review according to the rules
and regulations in existence at that time.
16.0 Mortgagee Protection.
No breach of this Agreement shall defeat, render
invalid, diminish or impair the lien of any deed of trust or
mortgage made in good faith and for value, and no holder of a
deed of trust or mortgage ("Mortgagee") shall have an
obligation or duty under this Agreement to perform Sunrise's
obligations or to guarantee such performance. Notwithstanding
the foregoing, any acquisition or acceptance of title or any
right or interest in or with respect to the Property or any
portion thereof, by a Mortgagee (whether under or pursuant to a
mortgage, foreclosure, trustee's sale, deed in lieu of
foreclosure, or otherwise), shall be subject to all of the
terms and conditions contained in this Agreement.
17.0 Miscellaneous Provigions.
17.1 Incorporation of Exhibits. Exhibits A and B,
attached hereto, are incorporated herein by this reference.
17.2 No Agency Created. It is understood and agreed
to by the parties that the Project is a private development,
that neither party is acting as the agent of the other in any
respect and that no partnership, joint venture or other
association of any kind is formed by this Agreement.
17.3 Force Maieure. Neither party shall be deemed to
be in default where failure or delay in performance of any of
its obligations under this Agreement is caused by floods,
earthquakes, other Acts of God, fires, wars, riots or similar
hostilities, strikes and other labor difficulties beyond such
party's control, government regulations, court actions (such as
restraining orders or injunctions) or other causes beyond such
party's control. If any such events shall occur, the term of
this Agreement and the time for performance by either party of
any of its obligations hereunder shall be extended by the
period of time that such events prevented such performance,
provided that the terms of this Agreement shall not be extended
for a period which would cause this Agreement or provisions
hereof to be void as violating the rule against perpetuities.
17.4 No Third Party Benefirjaries. This Agreement is
entered into for the sole protection and benefit of the parties
and their successors and assigns. No third -party beneficiaries
are created by this Agreement.
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17.5 Assignment. This Agreement shall not be assigned
or otherwise transferred without the prior written consent of
the City; provided, however, that such approval shall not be
unreasonably withheld. This Agreement shall benefit and bind
all subsequent transferees. Express assumption of any of the
obligations hereunder by any transferee permitted by this
paragraph shall relieve the transferor from any assumed
obligation.
17.6 Entire Aareement. This Agreement constitutes the
entire Agreement between the parties with respect to the
subject matter of the Agreement.
17.7 Recitals. The recitals to this Agreement
constitute part of this Agreement. Each party shall be
entitled to rely on the truth and accuracy of each recital as
an inducement to enter into this Agreement.
17.8 Eyrther Actions and Instruments. Upon the
request of either party, the other party shall promptly
execute, with acknowledgment or affidavit if reasonably
required, and file or record such required instruments or
writings, including estoppel certificates, and take any actions
that may be reasonably necessary under the terms of this
Agreement to carry out the intent, fulfill the provisions, and
evidence or consummate the transactions contemplated by this
Agreement.
17.9 Notices. All notices required or provided for
under this Agreement shall be in writing and delivered in
person or sent certified mail, postage prepaid and addressed as
follows:
To City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attn:
To Sunrise: Sunrise Desert Partners
42-600 Cook Street, Suite 200
Palm Desert, California 92260
Attn: Phillip K. Smith, Jr.
with a copy to: Nossaman, Guthner, Knox & Elliott
650 Town Center Drive, Suite 1250
Costa Mesa, California 92626
Attn: Jean 0. Melious, Esq.
Any notice given as required herein shall be deemed
given seventy-two hours after deposit in the United States mail
or upon receipt. A party may change its address for notices by
giving notice in writing to the other party as required herein.
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17.10 Construction of Agreement. The captions in
this Agreement are for convenience only and shall not be
considered or referred to in resolving questions of
construction. This Agreement shall be governed by the laws of
the State of California.
17.11 Counter aR rts. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
17.12 Hold Harmless. Sunrise agrees to and shall
hold City, its officers, agents, employees and representatives
harmless from liability for damage or claims for damage for
personal injury, including death, and claims for property
damage which may arise from the direct or indirect operation of
Sunrise or those of its contractors, subcontractors, agent,
employee, or other person acting on its behalf which relate to
the Project. Sunrise agrees to and shall defend City and its
officers, agents, employees and representatives from actions
for damages caused or alleged to have been caused by reason of
Sunrise's activities in connection with the Project. This
provision applies to all damages and claims for damages
suffered or alleged to have been suffered by reason of the
operations referred to in this paragraph, regardless of whether
or not the City prepared, supplied or approved plans or
specifications or both for the Project. It does not apply to
negligent acts or omissions by the City. Sunrise further
agrees to indemnify, hold harmless, pay all costs and provide a
defense for City in any action challenging the validity of this
Agreement.
17.13 Reimbursement of Costs. Sunrise shall pay to
City its direct costs associated with entering into this
Agreement, as shown on itemized City invoices. Such costs
shall be paid prior to issuance of final approvals.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the date(s) set forth below, as of the day
and year first above written.
Date: "City"
CITY OF PALM DESERT
By
Its
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•
Date:
Ej
"Sunrise"
SUNRISE DESERT PARTNERS
By Sunrise Corporation
Its General Partner
By
Its
Date: APPROVED AS TO FORM:
Date:
City Attorney
City of Palm Desert
ATTEST:
City Clerk
City of Palm Desert
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EXHIBIT A
ProgeXtv Description
Indian Ridge Country Club
All of Section 11, T5S, SBBM
-16-
1.
2.
EXHIBIT B
Developmen& Plan
Permitted Uses of the Property
Housing, including single family detached one- and
two-story homes and attached homes containing from two
to six units per building;
Two eighteen -hole golf courses and ancillary
facilities, including but not limited to maintenance
facilities, half -way houses with snack shops and rest
rooms;
Entry complexes;
Sales, resales and rentals building;
A clubhouse, including golf, tennis and health spa
facilities, dining rooms, freestanding grill
room/snack shop, lounges, banquet and meeting rooms,
golf pro shops, a tennis and spa pro shop, at least
fourteen tennis courts (seven night -lighted), four
night -lighted paddle tennis courts, two night -lighted
croquet courts, swimming pools, locker room
facilities, child care center and teen activity room.
The power source for the building may consist of a
cogeneration facility.
Maximum Heights of Buildings
The maximum height of residential buildings will be 30
feet.
The maximum height of the clubhouse will be 60 feet.
The maximum height of ancillary golf facilities
(including golf maintenance facilities, half -way
houses with snack shops and rest rooms) will be 30
feet.
The maximum height of entry complexes will be 30 feet.
The maximum height of the sales, resales and rentals
building will be 30 feet.
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Residential: No more than 1,500 homes shall be
constructed. This constitutes a density of
approximately 2.35 units per acre. Homes shall range
in size from 1,300 to 4,000 square feet.
Clubhouse: The clubhouse shall not exceed 125,000
square feet in size. The freestanding grill
room/snack shop shall not exceed 5,000 square feet.
Ancillary golf facilities, including golf maintenance
facilities, half -way houses with snack shops and rest
rooms, shall not exceed 40,000 square feet.
Entry complexes shall not exceed 7,500 square feet.
The sales, resales and rentals building shall not
exceed 5,000 square feet.
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RECORDING REQUESTED BY, AND
WHEN RECORDED MAIL TO:
City Clerk's Office
City of Palm Desert
73-5I0 Fred Waring)Drive
' Palm Desert, CA Z260
FOR THE BENEFIT OF THE
N
CITY OF PALM DESERT
O
NO FEE
6103 OF THE GOVT. CODE
O
V
; IR
f 8� z ;
�. IC
�! ORDINANCE 'NO. 627
AN 0 NANCE OF THE CITY COUNCIL OF THE 2
54
CITY OF PALM DESERT, CALIFORNIA, APPROVING
A DEVELOPMENT AGREEMENT BETWEEN THE CITY
OF PALM DESERT AND SUNRISE DESERT PARTNERS
TO ALLOW CONSTRUCTION OF A RESIDENTIAL
CONDOMINIUM/COUNTRY CLUB PROJECT IN
SECTION 11, T5S, R6E.
CASE NO. PREANNEXATION AND DEVELOPMENT AGREEMENT FOR
VESTING TT 26123
WHEREAS, the City Council of the City of Palm Desert, California,
did on the 8th day of November, 1990, hold a duly noticed public hearing
which was continued to December 13, 1990, to consider the request of
SUNRISE DESERT PARTNERS to consider the above mentioned project; and
WHEREAS, at said public hearing, upon hearing and considering all
testimony and arguments, if any, of all interested persons desiring to
be heard, said city council did find the following:
1. That the development agreement is consistent with the
provisions of Section 25.37 Development Agreements.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of
Palm Desert, California, as follows:
1. That the above recitations are true and correct and constitute
the findings of the city council in this case.
2. That the City Council does hereby approve the Development
Agreement, Exhibit "A", for Case No. Vesting TT 26123 between
the City of Palm Desert and Sunrise Desert Partners.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm
Desert City Council, held on this loth day of January, 1991, by the
following vote, to wit:
AYES: BENSON, CRITES, KELLY, SNYDER
NOES: NONE
ABSENT: WILSON
ABSTAIN: NONE
(�i J
WALTER H. SNYDER, Mayo
TE7:
SHEILA R. GI L GAN, ty Clerk EACH D0CLIMFPIT TO WHICH THIS CERT!FlrATE IS
City of Palm Deser , California ATTACHen, IS CEFlTI;,Fn TO BE A FULL TRUE A410
SRS /tm CORRECT COPY OF Pic CRIGMAL CfJ FILE W40 OW
RECORD !PJ MY GFFICE.
CL
Dated: - 0-
SHiILA R. GILLIO N, Cily Clerk
City of rt California
POR THE BENEFIT OF � •
CITY OF FAId-j DFIer&_
NO FEE
• 6103 OF THE GOUT.: CODE 205654
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: City Clerk
(Space Above This Line For Recorder's Use)
INDIAN RIDGE COUNTRY CLUB
PREANNEXATION AND DEVELOPMENT AGREEMENT
TABLE OF CONTENTS
205654
Page No.
RECITALS 1
AGREEMENT 3
1.0
Definition of the Project ............... 0...... 3
2.0
Definition of Terms ............................ 3
3.0
Property Interest .............................. 3
4.0
Timing of Annexation ........................... 4
5.0
Compliance with CEQA ........................... 4
6.0
Consistency with the General Plan .............. 4
7.0
Sunrise's Obligations .......................... 4
7.1 Development Fees ......................... 4
7.2 Mello -Roos Community Facilities
District for Cook Street Improvements .... 5
7.3 Drainage Facilities ...................... 5
7.4 Street Improvements ...................... 6
7.4.1 Avenue 42 (Southern Perimeter
of the Property) .................. 6
7.4.2 Eldorado Drive (Western
Perimeter of the Property) ........ 6
7.4.3 Oasis Club Drive (Eastern
Perimeter of the Property) ........ 6
7.4.4 Country Club Drive (Northern
Perimeter of the Property) ........ 6
7.4.5 Sidewalks ......................... 6
7.4.6 Traffic Signals ................... 6
7.5 Time for Commencement .................... 7
8.0
City's Obligations ............................. 7
8.1 Development in Accordance with
Existing Approvals ....................... 7
8.2 Timely Application and Processing ........ 7
8.3 Exemption From Construction Moratorium ... 7
8.4 Review of Subsequent Applications ........ 7
8.5 Other Governmental Permits ............... 8
8.6 Cooperation in Formation of CFDs ......... 8
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9.0
Limitations, Reservations and Exceptions .......
8
9.1
Reservations of Authority ................
8
9.2
Future Regulations .......................
9
9.3
State and Federal Laws and Regulations ...
9
9.4
Full Extent of Law .......................
9
10.0
Periodic Review of Compliance ..................
9
10.1
Planning Commission Review ...............
9
10.2
Appeal to City Council ...................
10
10.3
City Council Action ......................
10
11.0
Term
...........................................
10
12.0
Amendment ......................................
10
12.1
Initiation of Amendment ..................
10
12.2
Insubstantial Deviations from
Development Plan .... .. ..............
10
12.3
Administrative Interpretations Not In
Conflict with Purposes of this Agreement
11
13.0
Partial
Invalidity .............................
11
14.0
Enforceability
.................................
11
15.
Remedies
.......................................
it
15.1
Specific Performance .....................
it
15.2
Withdrawal ...............................
11
16.0
Mortgagee
Protection ...........................
12
17.0
Miscellaneous
Provisions .......................
12
17.1
Incorporation of Exhibits ................
12
17.2
No Agency Created ........................
12
17.3
Force Majeure ............................
12
17.4
No Third Party Beneficiaries .............
13
17.5
Assignment ...............................
13
17.6
Entire Agreement .........................
13
17.7
Recitals •••.. .............. .............
13
17.8
Further Actions and Instruments ..........
13
17.9
Notices ...............................
13
17.10
Construction of Agreement ................
14
17.11
Counterparts .............................
14
17.12
Hold Harmless... .....................
14
17.13
Reimbursement of Costs ...................
14
•
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: City Clerk
(Space Above This Line For Recorder's Use)
INDIAN RIDGE COUNTRY CLUB
PREANNEXATION AND DEVELOPMENT AGREEMENT
,,.
PURSUANT .TO THE AUTHORITY of state law, including
Sections 65864 through 65869.5 of the California Government
Code, this Preannexation and Development Agreement
("Agreement") is entered this loth day of Jani,ary. 99; NU, by
and between the City of Palm Desert ("City"), a municipal
corporation of the State of California, and Sunrise Desert
Partners ("Sunrise"), a California limited partnership.
R E C I T A L S•
The parties hereto have entered into this Agreement on
the basis of the following facts, understandings and intentions.
A. Sunrise is the owner of property consisting of
approximately 640 acres (the "Property"), bounded by Country
Club Drive on the north, Avenue 42 on the south, Eldorado Drive
on the west and Oasis Club Drive on the east, as more
particularly described in Exhibit A. The Property currently is
located within the ,sphere of influence of the City, in the
County of Riverside. On September 20 , 1990, a petition was
submitted to the'Riverside County Local Agency Formation
Commission (11LAFCO11) requesting the annexation of the Property
to the City.
B. Sunrise has proposed the development of Indian
Ridge Country Club, a planned community of no more than 1,500
homes, on the Property (the "Project"). The Project will
consist of a residential community, two eighteen -hole
championship golf courses, and a clubhouse featuring golf,
tennis, swimming and health spa facilities. The Project will
include a diversity of housing types appealing to a broad range
of residents.
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C. The City is authorized to enter into binding
preannexation agreements which set forth the terms and
conditions upon which property will be developed following
annexation to the City. Pursuant to Government Code sections
65864-65869.5, the City is further authorized to enter into
binding development agreements which encourage and provide for
the development of public facilities in order to support the
development of new housing; provide certainty in the approval
of development projects in order to avoid a waste of resources
and an escalation in the cost of housing and other development
to the consumer; provide assurance to developers that they may
proceed with their projects in accordance with existing
policies, rules and regulations, subject to their conditions of
approval; and strengthen the public planning process and
encourage private participation in comprehensive planning.
D. The development of the Project requires
substantial early and major capital expenditures and
investments with respect to the construction and installation
of major infrastructure and facilities, both on -site and
off -site, of sufficient capacity to serve the Project as
anticipated by the'.t4�neral Plan of the City and this Agreement.
E. The'City'has approved the following entitlements
for the Project: "prezoning of the Project site to P.R.-5, by
Ordinance No. 67S a Precise Plan for the Project, by
Resolution No. 90-146 ; and a vesting tentative map for
the Project, by Resolution No. 90-145 (collectively,
"Existing Approvals"), contingent upon the annexation of the
Property to the City.
F. The Project site is designated P.R.-5 by the
General Plan and the North Sphere Specific Plan. This
designation allows the development of a maximum of five
residential units per gross acre. The residential density of
the Project will not exceed 2.35 units per gross acre and is,
therefore, consistent with the General Plan and North Sphere
Specific Plan. The P.R.-5 prezoning, which also allows the
development of five residential units per gross acre, is
consistent with the designation of the Project site in the
General Plan and North Sphere Specific Plan.
G. The City has undertaken the necessary review of
the environmental effects of the Project pursuant to the
California Environmental Quality Act ("CEQA") . On December 13
1990, the City Council approved a negative declaration
("Negative Declaration") for the Project by Resolution
No. 90-145. The Negative Declaration evaluates potential
impacts of the Project on the environment and sets forth the
City's reasons for concluding that these impacts will not be
significant.
H. This Agreement is intended to establish standards
and requirements for the development of the Project, and to
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provide for the orderly development of the Project, thereby
assuring the public benefits identified by the City in this
Agreement.
I. Following due consideration of all evidence
submitted or heard at duly noticed public hearings, the City
Planning Commission and City Council have found and determined
that this Agreement (a) is consistent with the City's General
Plan; (b) is in the best interests of the health, safety and
general welfare of the City, its residents and the public;
(c) is entered into pursuant to and constitutes a present
exercise of the police power by the City; (d) is entered into
pursuant to and in compliance with the requirements of state
law; and (e) is entered into for valuable and adequate
consideration, based on the obligations assumed by Sunrise
hereunder.
I. The City has determined that the Project
implements the goals and policies of the City's General Plan
applicable to the Project. The City further finds that the
Project imposes appropriate standards and requirements with
respect to land developments and usage so as to maintain and
improve the quality of life and the environment within the City.
A G$ E E N E N I
NOW, THEREFORE, in consideration of the mutual
covenants and conditions contained herein, the parties hereto
agree as follows:
1.0 Definition of the Proiect.
The Project is a planned community consisting of a
maximum of 1,500 residential units, two eighteen -hole golf
courses, a clubhouse and sports facilities, as more
particularly described in the development plan attached hereto
as Exhibit B ("Development Plan"). The permitted uses of the
Property, the density or intensity of use, and the maximum
height and size of proposed buildings shall be as set forth in
the Development Plan.
2.0 Definition of Terms.
"Date of Enactment" shall mean the date of the second
reading of the ordinance by which the City approves this
Agreement. "Effective Date" shall mean that date (thirty days
after the Date of Enactment) upon which this Agreement becomes
effective, pursuant to state law.
3.0 Property Interest.
Sunrise has shown to the City's satisfaction that its
interest in the Property meets the requirements of the
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Development Agreement Law. Sunrise is the owner in fee of the
Property.
4.0 Timing of Annexation.
This Agreement shall not
annexation proceedings annexing the
completed within one year from the
annexation is not completed within
Agreement or any extension of the
shall be null and void.
5.0 Compliance with CEOA.
become operative unless
Property to the City are
Effective Date. If the
the time specified in the
Agreement, the Agreement
The City has determined that this Agreement is
consistent with and within the scope of the Negative
Declaration. The City has determined that there are no
substantial changes in the Project, or in the circumstances
under which the Project will be undertaken pursuant to this
Agreement, which involve new significant impacts not considered
in the Negative Declaration. Therefore, no further
environmental analysis of this Agreement is required under CEQA.
6.0 Consistency with the General Plan.
The designation of the Property in the General Plan is
Planned Residential ("P.R.") 5. The P.R. designation allows
the development of residential uses, community facilities,
recreational uses and related accessory uses, and other uses or
mixtures of residential with country club related commercial
uses, as designated on an approved precise plan. The P.R.
district is intended to provide for flexibility in development,
creative and imaginative design, and the development of parcels
of land as coordinated projects involving a mixture of
residential densities and housing types, and community
facilities, both public and private. The P.R.-5 designation
establishes that five residential units per gross acre are
permitted. The Project is consistent with this designation
because it will incorporate residential and country club
related uses in a creative design, and will not exceed five
residential units per gross acre. The City has further
determined that this Agreement will implement the goals and
policies of the General Plan of the City, including the goals
of developing a land use pattern that takes optimum advantage
of the City's natural assets, providing for an orderly balance
of land uses within convenient and compatible locations and
creating a distinctive sense of place and identity for each
community and neighborhood in the City.
7.0 Sunrise's Obligations.
7.1 Development Fees. Sunrise shall pay all fees
which are required as conditions of approval for the Project,
and/or which are contained in City ordinances or resolutions in
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effect at the time of Project approval. The fees payable by
Sunrise in connection with the Project shall include, but are
not limited to, the following: (a) City park fees, pursuant to
the Subdivision Map Act; (b) City Art in Public Places fee;
(c) school fee payable to Desert Sands Unified School District,
based on state law requirements; (d) Transportation Uniform
Mitigation Fee, applicable to regional transportation and
public works projects; (e) water and sewer fees payable to
Coachella Valley Water District; and (f) Fringe -Toed Lizard
Fee, payable under the Fringe -Toed Lizard Habitat Conservation
Plan
7.2 Mello -Roos Community Facilities District for Cook
Street Improvements. The Property shall participate in the
proposed Mello -Roos Community Facilities District ("CFD") or
assessment district for improvements to Cook Street to the
extent determined by the "Special Tax Report" to be filed in
connection with the proceedings of the City of Palm Desert, in
the Office of the City Clerk of the City of Palm Desert. The
City and Sunrise hereby acknowledge that the sum of $1,687,712
is a reasonable allocation of public infrastructure costs
attributable to the Project. Therefore, the maximum obligation
to be imposed on the Property pursuant to the Cook Street CFD
or assessment district shall be $1,687,712. Sunrise further
agrees to advance $50,000 for the formation of the Cook Street
CFD, subject to reimbursement from Mello -Roos bond proceeds.
Any Transportation Uniform Mitigation Fees (as more
particularly described in Section 7.1 herein) shall be credited
against the $1,687,712 Cook Street CFD obligation. The
application of this credit is in recognition that the payment
of Transportation Uniform Mitigation Fees represents a
contribution by the Project to the public infrastructure costs
of the Project, and results in a reasonable allocation of
public infrastructure costs attributable to the Project.
7.3 Drainage Facilities. The Project shall be
designed to retain drainage from a 100-year storm on -site. If
the City imposes a drainage fee applicable to the Property,
Sunrise shall receive a fair and equitable credit against this
fee. The credit shall be based on the reduction in the City's
cost of building drainage improvements attributable to the
Project's on -site retention of drainage. Drainage fees for the
construction of regional drainage improvements which would be
necessary regardless of the on -site drainage, shall be paid in
an amount which shall be based on the City of Palm Desert
Master Drainage Plan prepared by NBS/Lowry upon its adoption by
the Palm Desert City Council.
7.4 Street Improvements. Sunrise shall provide
landscaping and other improvements to all streets directly
adjacent to the Property, as follows. All descriptions of
street sections are approximate, and are subject to
modification without amendment of this Agreement.
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7.4.1 Avenue 42 (Southern Perimeter of the
Propertvl. The northern half of the 100-foot right of way
shall be dedicated and improved to include 32-foot driving
lanes, a 12-foot landscaped parkway and one-half of the 12-foot
landscaped median. In addition, Sunrise shall construct the
southern half of the landscaped median adjacent to Oasis
Country Club, where the southern half of the street is fully
improved but no median exists.
7.4.2 Eldorado Drive (Western Perimeter of the
Propertvl. The eastern half of the 110-foot right of way shall
be dedicated and improved. The western half also shall be
improved, beginning one-half mile south of Country Club Drive
(where improvements to the western half now end) and extending
one-half mile south to the intersection of Avenue 42. The
construction of these improvements to the western half of
Eldorado Drive shall be subject to a reimbursement agreement
administered by the City, pursuant to which Sunrise shall be
reimbursed for the cost of the improvements when the adjacent
land to the west is developed. The Eldorado Drive street
section shall consist of 12-foot parkways on both sides, 34
feet of driving lanes in each direction and an 18-foot
landscaped median. In addition to the landscaping of the
12-foot parkway, Sunrise shall also landscape 8 feet outside
its perimeter wall, for a total of 20 feet of landscaped
perimeter on the eastern side of Eldorado Drive.
7.4.3 Oasis Club Drive (Eastern Perimeter of the
Property). The western half of a 100-foot right of way shall
be dedicated and improved to include a 12-foot landscaped
' parkway, 32-foot driving lanes and a 12-foot painted center
median.
7.4.4 gountry Club Drive (Northern Perimeter of
the Property). Sunrise has fully improved the southern half of
Country Club Drive, adjacent to the Property. The 12-foot
parkway shall be landscaped, along with an additional 18 feet
outside the Project's north perimeter wall, for a total of 30
feet of landscaped perimeter on Country Club Drive.
7.4.5 Sidewalks. Concrete sidewalks shall be
constructed on all four perimeters of the Property. Sidewalk
width shall be eight feet on Country Club and E1 Dorado Drives
and six feet wide on Oasis Club Drive and 42nd Avenue.
7.4.6 Traffic Signals. Sunrise shall provide
for the conversion of the existing three-way traffic signal on
Country Club Drive at the main project entry to a four-way
configuration and pay one-fourth the cost of traffic signal
installation at the intersections of Country Club Drive and
Oasis Club Drive, 42nd Avenue and Oasis Club Drive, and E1
Dorado Drive and 42nd Avenue. Traffic signalization fees
required for the Project may be used as credits against these
costs.
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7.5 Time for Commencement. Sunrise shall commence
construction of the Project within ten (10) years of the
Effective Date of this Agreement. Failure to do so shall be
considered a default by Sunrise. Notwithstanding the
foregoing, the time for commencement may be extended by
agreement of the parties upon a showing by Sunrise of good
cause for the extension.
8.0 City's Obligations.
8.1 Development in Accordance with Existing
Approvals. To the fullest extent of the City's authority and
jurisdiction, Sunrise shall have a vested right to design,
construct, operate and maintain the Project in accordance with
the Development Plan, Existing Approvals and the terms of the
rules, regulations, and ordinances of the City in effect as of
the Date of Enactment of this Agreement ("Local Rules"). The
City shall not impose, or seek to impose, any additional
requirements, exactions, fees or payments, or dedication or
reservation requirements except those expressly set forth in
the Reservation of Authority.
8.2 Timely Application and Processing. The City
hereby acknowledges that the timely development of the Project
will benefit the public health, safety, and welfare. In
recognition of this, the City and Sunrise agree to cooperate in
the expeditious processing and review of all applications for
further approvals required by the Project. The City shall not
impose any exaction or restriction (except requirements
relating to the normal processing of applications for
development approvals) which would delay, interfere with or
impede the commencement or rate of design, construction,
development or operation of the Project or any component
thereof as contemplated by the Development Plan.
8.3 Excmption From Construction Moratorium. The City
specifically agrees and acknowledges that the Project is exempt
from the construction moratorium adopted by the City on or
about April 26, 1990, as set forth in Ordinance No. 602, and
from any extensions to the construction moratorium which the
City may adopt in the future.
8.4 Review of Subsequent Applications. The Project,
including subsequent applications for approvals necessary for
the development of the Project in accordance with the
Development Plan, shall not be subject to any changes in the
Local Rules or new Local Rules adopted subsequent to the Date
of Enactment, which would interfere or conflict with the
development of the Project for the uses and to the height,
design standards, density and intensity of use specified in the
Development Plan, or with the rate of development of the
Project, except as otherwise provided by this Agreement,
including the Reservations of Authority. The City shall
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•
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promptly issue any permits which may be required to implement
the Development Plan, provided that Sunrise is in compliance
with this Agreement and the Local Rules in effect as of the
Date of Enactment.
8.5 Other Governmental Permits. Sunrise may apply
for such other permits and approvals from other governmental or
quasi -governmental agencies having jurisdiction over the
Project as may be required for the development, design,
construction, or operation of the Project in accordance with
the Development Plan. The City shall cooperate with Sunrise in
its efforts to obtain such permits and approvals and shall
assist in expediting LAFCO processing of the annexation of the
Property.
8.6 Cgooeration in Formation of CFDs. In addition to
the Cook Street CFD described in Section 7.2, the City and
Sunrise intend to consider the formation of one or more CFDs
which will include the Property, or a portion thereof, within
their boundaries for the purpose of financing various off -site
improvements. The City shall use its best efforts to cooperate
with Sunrise in the formation and establishment of such CFDs;
provided, however, that nothing herein shall prevent Sunrise in
its sole discretion from voting against the formation of any
CFD, with the exception of the Cook Street CFD.
9.0 Limitations. Reservations and Exceptions.
9.1 Reservations of Authority. Notwithstanding any
other provision of this Agreement, the following rules,
regulations and ordinances of the City which may come into
effect after the Date of Enactment of this Agreement shall
apply to the development of the Property.
A. Procedural regulations relating to hearing
bodies, petitions, applications, notices, findings, records,
hearings, reports, recommendations, appeals and any other
matter of procedure.
B. Changes in regulations governing
construction standards and specifications after the effective
date of this Agreement which are required by changes in state
or federal law or federal laws or regulations, or by changes in
the uniform building code, plumbing code, mechanical code,
electrical code, fire code and grading code.
C. Processing fees and charges of every kind
and nature imposed by the City, on a uniform City-wide basis at
the time such fees are due, to cover the estimated actual costs
to the City of processing applications for development
approvals or for monitoring compliance with any development
approvals granted or issued.
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•
D. Regulations which
the Development Plan, but which are
project the public health and safety;
any such regulation shall be applied
provide Sunrise with the rights and
this Agreement.
of Sunrise.
•
265654
may be in conflict with
reasonably necessary to
to the extent possible,
and construed so as to
assurances provided under
E. Regulations applied with the written consent
9.2 Future Regulations. Nothing herein shall prevent
the City, in subsequent discretionary approvals for the
Project, from applying new rules, regulations, or ordinances
(1) not inconsistent or in conflict with the Local Rules or
with the purposes and conditions of this Agreement, and
(2) which do not interfere or conflict with the height, density
or intensity set forth in the Development Plan or with the rate
of development selected by Sunrise.
9.3 State and Federal Laws and Regulations. The
Project shall be subject to existing and future state and
federal laws and regulations, together with any City land use
regulations, programs and actions, or inaction, which are
reasonably (taking into consideration, among other things, the
assurances provided to Sunrise hereunder) adopted or undertaken
by the City in order to comply with state and federal laws and
regulations; provided, that in the event that state or federal
laws and regulations prevent or preclude compliance with one or
more provisions of this Agreement, such provisions shall be
modified or suspended as may be necessary to comply with such
state and federal laws and regulations. In such event, this
Agreement shall remain in full force and effect to the extent
that it is not inconsistent with such laws and regulations and
that performance of the remaining provisions would not be
inconsistent with the intent and purposes of this Agreement.
9.4 Full Extent of Law. The parties acknowledge and
agree that the City is restricted in its authority to limit its
police power by contract and that the foregoing limitations,
reservations and exceptions are intended to reserve to the City
all of its police power which cannot be so limited.
10.0 Periodic Review of Compliance.
10.1 Planning Commission Review. The Planning
Commission, at a public hearing, shall conduct a compliance
review of this Agreement within six months from the Date of
Enactment, and annually thereafter. At least one week prior to
the Planning Commission compliance hearing, Sunrise shall
submit a letter to the Planning Commission, demonstrating its
good faith compliance with this Agreement. If the Planning
Commission finds that Sunrise has demonstrated good faith
compliance with this Agreement, the annual review shall be
deemed concluded.
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ZOSs'S4
10.2 Appeal to City Council. If the Planning
Commission finds and determines on the basis of substantial
evidence that Sunrise has not complied in good faith with this
Agreement, the Planning Commission shall (1) specify actions to
be taken to cure the default under the Agreement, (2) propose
the modification of the Agreement, or (3) propose the
termination of the Agreement. Sunrise shall have the right to
appeal any portion of any such action to the City Council
within thirty days of the date of the Planning Commission
action.
10.3 City Council Action. Upon appeal by Sunrise
pursuant to Section 10.2 herein, the City Council shall conduct
a hearing to determine whether Sunrise is in good faith
compliance with this Agreement. If the City Council determines
that Sunrise is in good faith compliance, the annual review
process shall be deemed completed. If the City Council finds
that Sunrise has not complied in good faith with this
agreement, it shall (1) specify actions to be taken to cure the
default under the Agreement, (2) modify the Agreement, or (3)
terminate the Agreement.
11.0 Term.
This Agreement shall commence on the Effective Date
and shall continue in effect for twenty years from the
Effective Date. This term is intended to provide sufficient
time for the full repayment of the bonds to be issued by the
CFD referred to in Section 7.2, or of any other debt
obligations incurred in lieu of such bonds. If the parties
determine that a longer period is necessary to achieve the
purpose stated herein, the term of this Agreement may be
extended by the further written agreement of the parties in
accordance with Section 12.3.
12.0 Amendment.
12.1 Initiation of Amendment. Either party may
propose an amendment to this Agreement. Except as otherwise
provided herein, cancellation or amendment shall follow the
notice and hearing requirements established by applicable law
for the consideration of development agreements.
12.2 Insubstantial Deviations from Development Plan.
Any insubstantial deviation from the Development Plan with
respect to the location, size, or height of structures,
streets, and other physical facilities, as determined by the
Director of Planning, may be approved by the person or body
with authority to approve the plans for such facilities without
amendment of this Agreement, in accordance with City policy.
Insubstantial deviations shall include, without limitation, the
introduction of different housing product types and the
replotting of the locations of houses, so long as such
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205654
deviations are not inconsistent with (a) the permitted uses
described in Exhibit 8, and (b) City policy in effect at the
time of entry into this Agreement.
12.3 Administrative Interpretations Not in Conflict
With Birposes of This Agreement. Upon agreement of the parties
hereto, memoranda of administrative interpretation may be
entered into regarding any aspect of this Agreement which does
not relate to permitted uses, density or intensity of use,
height or size of buildings, provisions for reservation of
land, conditions, restrictions and requirements relating to
subsequent discretionary approvals, rate of development, or the
term of the Agreement.
13.0 Partial Invalidity.
If any material provision of this Agreement is
determined to be void, invalid, or illegal by a final judgment
of a court of competent jurisdiction, the parties may (a) amend
this Agreement pursuant to the procedures set forth herein, or
(b) by mutual agreement of the parties, terminate the Agreement.
14.0 Enforceability.
It is acknowledged and agreed by the parties hereto
that any assurances provided to Sunrise with respect to the
imposition of additional exactions, regulations, or
restrictions affecting permitted uses, intensity of use,
density, height, or the rate of development of the Project are
(a) intended to be relied upon by Sunrise; (b) made in exchange
for valuable and adequate consideration provided by Sunrise in
the form of covenants and commitments as set forth in this
Agreement; and (c) made with the understanding that such
assurances will not be amended, changed, or increased except as
provided herein.
15.0 Remedies.
15.1 Specific Performance. The parties agree and
understand that a breach of this Agreement may result in
irreparable harm to the non -breaching party, and that specific
performance of this Agreement is a proper and desirable remedy.
15.2 Withdrawal. In the event that Sunrise is unable
to construct and operate the Project in a manner set forth in
the Development Plan and this Agreement because of (a) this
Agreement or any portion hereof being determined to be invalid
or unenforceable, (b) the imposition of any exaction,
restriction, or change in the Local Rules not specifically
provided for in this Agreement, or (c) Sunrise reasonably
determining that the Project, despite good faith efforts, is
economically infeasible, in addition to any other remedy which
it might possess, Sunrise shall have the right upon written
notice to the City to withdraw from this Agreement.
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Thereafter, the City and Sunrise shall be released from any and
all further liabilities or obligations hereunder. Sunrise's
notice to the City that it is withdrawing from this Agreement
shall constitute a waiver of Sunrise's rights hereunder and the
Project shall be subject to City review according to the rules
and regulations in existence at that time.
16.0 Mortgagee Protection.
No breach of this Agreement shall defeat, render
invalid, diminish or impair the lien of any deed of trust or
mortgage made in good faith and for value, and no holder of a
deed of trust or mortgage ("Mortgagee") shall have an
obligation or duty under this Agreement to perform Sunrise's
obligations or to guarantee such performance. Notwithstanding
the foregoing, any acquisition or acceptance of title or any
right or interest in or with respect to the Property or any
portion thereof, by a Mortgagee (whether under or pursuant to a
mortgage, foreclosure, trustee's sale, deed in lieu of
i foreclosure, or otherwise), shall be subject to all of the
i terms and conditions contained in this Agreement.
17.0 Miscellaneous Provisions.
i
17.1 Incorporation of Exhibits. Exhibits A and B,
attached hereto, are incorporated herein by this reference.
17.2 No Agency Created. It is understood and agreed
to by the parties that the Project is a private development,
that neither party is acting as the agent of the other in any
respect and that no partnership, joint venture or other
association of any kind is formed by this Agreement.
17.3 Force Majeure. Neither party shall be deemed to
be in default where failure or delay in performance of any of
its obligations under this Agreement is caused by floods,
earthquakes, other Acts of God, fires, wars, riots or similar
hostilities, strikes and other labor difficulties beyond such
party's control, government regulations, court actions (such as
restraining orders or injunctions) or other causes beyond such
party's control. If any such events shall occur, the term of
this Agreement and the time for performance by either party of
any of its obligations hereunder shall be extended by the
period of time that such events prevented such performance,
provided that the terms of this Agreement shall not be extended
for a period which would cause this Agreement or provisions
hereof to be void as violating the rule against perpetuities.
17.4 No Third Party Beneficiaries. This Agreement is
entered into for the sole protection and benefit of the parties
and their successors and assigns. No third -party beneficiaries
are created by this Agreement.
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0 0 205654
17.5 Assignment. This Agreement shall not be assigned
or otherwise transferred without the prior written consent of
the City; provided, however, that such approval shall not be
unreasonably withheld. This Agreement shall benefit and bind
all subsequent transferees. Express assumption of any of the
obligations hereunder by any transferee permitted by this
paragraph shall relieve the transferor from any assumed
obligation.
17.6 Entire Agreement. This Agreement constitutes the
entire Agreement between the parties with respect to the
subject matter of the Agreement.
17.7 Recitals. The recitals to this Agreement
constitute part of this Agreement. Each party shall be
entitled to rely on the truth and accuracy of each recital as
an inducement to enter into this Agreement.
17.8 Further Actions and Instruments. Upon the
request of either party, the other party shall promptly
execute, with acknowledgment or affidavit if reasonably
required, and file or record such required instruments or
writings, including estoppel certificates, and take any actions
that may be reasonably necessary under the terms of this
Agreement to carry out the intent, fulfill the provisions, and
evidence or consummate the transactions contemplated by this
Agreement.
17.9 Notices. All notices required or provided for
under this Agreement shall be in writing and delivered in
person or sent certified mail, postage prepaid and addressed as
follows:
To City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attn: Ramon A. Diaz. ACM/Director of Planning
To Sunrise: Sunrise Desert Partners
42-600 Cook Street, Suite 200
Palm Desert, California 92260
Attn: Phillip K. Smith, Jr.
with a copy to: Nossaman, Guthner, Knox & Elliott
650 Town Center Drive, Suite 1250
Costa Mesa, California 92626
Attn: Jean O. Melious, Esq.
Any notice given as required herein shall be deemed
given seventy-two hours after deposit in the United States mail
or upon receipt. A party may change its address for notices by
giving notice in writing to the other party as required herein.
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•
ZOS654
17.10 Construction of Aareement. The captions in
this Agreement are for convenience only and shall not be
considered or referred to in resolving questions of
construction. This Agreement shall be governed by the laws of
the State of California.
17.11 Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
17.12 Hold Harmless. Sunrise agrees to and shall
hold City, its officers, agents, employees and representatives
harmless from liability for damage or claims for damage for
personal injury, including death, and claims for property
damage which may arise from the direct or indirect operation of
Sunrise or those of its contractors, subcontractors, agent,
employee, or other person acting on its behalf which relate to
the Project. Sunrise agrees to and shall defend City and its
officers, agents, employees and representatives from actions
for damages caused or alleged to have been caused by reason of
Sunrise's activities in connection with the Project. This
provision applies to all damages and claims for damages
suffered or alleged to have been suffered by reason of the
operations referred to in this paragraph, regardless of whether
or not the City prepared, supplied or approved plans or
specifications or both for the Project. It does not apply to
negligent acts or omissions by the City. Sunrise further
agrees to indemnify, hold harmless, pay all costs and provide a
defense for City in any action challenging the validity of this
Agreement.
17.13 Reimbursement of _Qosts. Sunrise shall pay to
City its direct costs associated with entering into this
Agreement, as shown on itemized City invoices. Such costs
shall be paid prior to issuance of final approvals.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the date(s) set forth below, as of the day
and year first above written.
Date • 5-" Z Y- 9 "city"
CITY OF PALM DESERT
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Date:
2 ` / 2 r 9 / "Sunrise"
Date: 06/05/91
Date: 06/07/91
CAT. NO. NN00633
TO 1954 CA (9— 341
(Corporation as a Partner of a Partnership)
SUNRISE DESERT PARTNERS
By Sunrise Corporation
Its General Partner
By
Its CXtct,,. �•�e ✓.',r_e
APPROVED O FORM:
Cit ttorney
City of Palm Desert
ATTEST:
205654
L •,
City Clerk <� r^'
City of Palm Desert.
'.
J TICOR TITLE INSURANCE
STATE OF CALIFORNIA
COUNTY OF Riverside SS. 205654
On Feb. 12, 1991 before me, the undersigned, a Notary Public in and for
said State, personally appeared Phillitn R. Smith. Jr_
personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed
the within instrument as the Executive Vine President,
rem !a I"s or proved to ffi� on the begis of swisfeekery @videmo*
t of
r _ Suni a Corporation
the corporation that executed the within instrument on
behalf of Sunrise Desert Partnerz M�yN�N�MH�+N1�►•
the partnership that cxecuted [ OFFICIAL
SFAI
the within instrument, and acknowledged to me that such ALLAN A, &N
corporation executed the same as such partner and that NOWVy pMC.CAltf�A
such partnership executetthesinme. PRMC fkOFRM (8WITNESS hand and al. fb+rERSICE000KTY
My Commission Eat➢• Aug. 21. 1992
� HH� HAM � �"�'�'►�� •
Signature (This area for official notarial seal)
205654
C521886
EXHIBIT "A"
DESCRIPTION
The land referred to in this report is situated in the County of Riverside, State of
California, and is described as follows:
DIVISION I
PARCEL 1:
All that portion of the West half of Section 11, Township 5 South, Range 6 East, San
Bernardino Meridian, in the City of Palm Desert, County of Riverside, State of
California, more particularly described as follows:
Beginning at the Northeast corner of said west half;
thence South 89010145/1 West, on the North line of said West half, 1,330.18 feet, to an
intersection with the Northerly prolongation of the West line of Parcel 1, as shown by
Record of Survey on file in Book 35, Page 13 of Records of Survey, Records of
Riverside County, California;
thence South 000021330 West, on said Northerly prolongation and on said West line,
5,317.88 feet to the Southwest corner of said Parcel 1;
thence North 890281150 East, on the South line of said Parcel 1, 1,325.54 feet to the
Southeast corner thereof;
thence North 00005130' East, on the East line of said Parcel 1 and the Northerly
prolongation thereof, 5,324.71 feet to the point of beginning;
Said property is also shown as Parcel 1 of Record of Survey on file in Book 35, Page
13 of Records of Survey, Records of Riverside County, California;
EXCEPT that portion described in the deed to the County of Riverside by document
recorded August 11, 1972 as Instrument No. 107739 of Official Records of Riverside
County, California.
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EXHIBIT "A" (font' d . )
PARCEL 2:
205654
C521886
The west half of the Northeast quarter and the North half of the Northwest quarter of
the Southeast quarter of Section 11, Township 5 South, Range 6 East, San Bernardino
Meridian, in the City of Palm Desert, County of Riverside, State of California, as
shown by united States Government Survey;
EXCEPT the Northerly 44.00 feet thereof, as described in the deeds to the County of
Riverside recorded March 31, 1958 as Instrument No. 23189 in Book 2246, Page 519 and
on April 15, 1958*as Instrument No. 27209 in Book 2255, Page 236 both respectively of
Official Records of Riverside County, California.
PARCEL 3:
The East half of the East half of the East half of Section 11, Township 5 South. Range
6 East, San Bernardino Meridian, in the City of Palm Desert. County of Riverside,
State of California;
EXCEPT the North 44.00 feet thereof, described in the Deeds to the County of
Riverside, by deeds recorded March 31, 1958 in Book 2246, Page 519 as Instrument No.
23189 and on April 15, 1958 1n Book 2255, Page 236 as Instrument No. 27209 both
respectively of Official Records of Riverside County, California;
ALSO EXCEPT the Southeast quarter of the Southeast quarter of said section.
PARCEL 4:
The South half of the Southeast quarter and the South half of the Northwest quarter of
the Southeast quarter of Section 11, Township 5 South, Range 6 East, San Bernardino
Meridian, in the City of Palm Desert. County of Riverside, State of California,
according to the official plat thereof.
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• 205554
C521886
EXHIHT "A" (Cont'd.)
ntvTSTAN TT
All that portion of the West half of the West half of Section 11, Township 5 South,
Range 6 East, San Bernardino Meridian, in the City of Palm Desert, County of
Riverside, State of California, according to the official plat thereof, described as
follows:
Beginning at the Northeast corner of said West half of Section 11;
thence South 890101451/ West on the North line of said West half, 1,330.18 feet, to an
intersection with the Northerly prolongation of the West line of Parcel 1, as shown by
Record of Survey, on file in Book 35, Page 13 of Records of Survey. Records of
Riverside County, California and the true point of beginning;
thence South 00002133/1 West on said Northerly prolongation and on said West line,
5,317.88 feet to the Southwest corner of said Parcel 1;
thence South 89028115" West on the South line of Parcel 2 as shown by said Record of
Survey, 1.330.58 feet to the Southwest corner thereof;
thence North 0000510011 East on the West line of Parcel 2, 2;655.61 feet to an angle
therein;
thence North 00000145° East on said West line and the Northerly prolongation thereof,
2,655.51 feet to the Northwest corner of Section 11;
thence North 89010145/1 East on said North line of said West half, 1,330.18 feet to the
true point of beginning.
EXCEPT that portion described by deed to Southern California Edison Company, a
California corporation recorded October 26, 1982 as Instrument No. 184850.
DIVISION III
The West half of the East half of the East half of Section 11, Township 5 South, Range
6 East, San Bernardino Meridian, in the City of Palm Desert, County of Riverside,
State of California, according to the official plat thereof.
EXCEPT the North 44.00 feet, described by deeds to the County of Riverside recorded
March 31, 1958 in Book 2246, Page 519 and April 15, 1958 in Book 2255, Page 236,
Records of Riverside County.
ALSO EXCEPT the Southeast quarter of the Southeast quarter of said section.
Note: Said land is also known as all that property lying within the boundaries of
Tentative Tract 26123, a portion of said land 1s to be resubdivided into Tract 26757.
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•
205654
EXHIBIT B
Development Plan
1. Permitted Uses of the Property
Housing, including single family detached one- and
two-story homes and attached homes containing from two
to six units per building;
Two eighteen -hole golf courses and ancillary
facilities, including but not limited to maintenance
facilities, half -way houses with snack shops and rest
rooms;
Entry complexes;
Sales, resales and rentals building;
A clubhouse, including golf, tennis and health spa
facilities, dining rooms, freestanding grill
room/snack shop, lounges, banquet and meeting rooms,
golf pro shops, a tennis and spa pro shop, at least
fourteen tennis courts (seven night -lighted), four
night -lighted paddle tennis courts, two night -lighted
croquet courts, swimming pools, locker room
facilities, child care center and teen activity room.
The power source for the building may consist of a
cogeneration facility.
2. Maximum Heights of Buildings
The maximum height of residential buildings will be 30
feet.
The maximum height of the clubhouse will be 60 feet.
The maximum height of ancillary golf facilities
(including golf maintenance facilities, half -way
houses with snack shops and rest rooms) will be 30
feet.
The maximum height of entry complexes will be 30 feet.
The maximum height of the sales, resales and rentals
building will be 30 feet.
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It
,. � • 205654
3. Density and Intensity ot_ Use; Maximum Size of Buildings
ORI:JJF:54
Residential: No more than 1,500 homes shall be
constructed. This constitutes a density of
approximately 2.35 units per acre. Homes shall range
in size from 1,-*2a0 'to 4,000 square feet.
Clubhouse: The clubhouse shall not exceed 125,000
square feet in size. The freestanding grill
room/snack shop shall not exceed 5,000 square feet.
Ancillary golf facilities, including golf maintenance
facilities, half -way houses with snack shops and rest
rooms, shall not exceed 40,000 square feet.
Entry complexes shall not exceed 7,500 square feet.
The sales, resales and rentals building shall not
exceed 5,000 square feet.
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