Loading...
HomeMy WebLinkAboutORD 694ORDINANCE NO. 694 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND A.J. LOU AKA ALYCE LAZAR PERTAINING TO THE FUTURE DEVELOPMENT OF A 75 ACRE SITE LOCATED ON THE NORTH SIDE OF DINAH SHORE DRIVE. CASE NO. DA 92-1 PREANNEXATION DEVELOPMENT AGREEMENT WHEREAS, the City Council of the City of Palm Desert, California, did on the 3rd day of December, 1992, hold a duly noticed public hearing to consider the request of A.J. Lou aka Alyce Lazar to consider the above mentioned project; and WHEREAS, the planning commission did hold a duly noticed public hearing on this matter on December 1, 1992 and has recommended approval of said development agreement; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 80-89," in that the director of community development has determined that the project has been previously assessed in reference to case C/Z 92-1, Ordinance No. 683, and no further documentation is necessary; 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 RESOLVED 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', between the City of Palm Desert and A.J. Lou aka Alyce Lazar. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council, held on this 17th day of December, 1992, by the following vote, to wit: AYES: KELLY, SNYDER, WILSON, BENSON N r i RECORDING 12EQUESTED BY AND WHEN RECORDED RETURN TO: CITY OF PALM DESERT 73510 FRED WARING DRIVE wil PALM DESERT, CALIFORNIA 92260 cl DE030655:11/04/92 c. W U LC cn O CT) U LL p t�3 » DZ H Z W e R61 W¢ B u DEVELOPMENT AGREEMENT ENTERED INTO BETWEEN THE CITY OF PALM DESERT AND ALYCE LAZAR i 4'7494 TABLE OF CONTEWS RECITALS....................................................... 1 1. DEFINITIONS . ............................................... 3 2. TERM . ..................................................... 5 3. RESTRICTIONS ON DEVELOPMENT AND USE ...................... 5 4. DEVELOPMENT AND USE ...................................... 7 S. DEVELOPMENT IMPACT FEES . ................................. 8 6. UNDERGROUNDING OF UTILITIES . ............................. 9 7. ACCESS TO PROPERTY ........................................ 9 8. THIRD PARTY PERMITS AND APPROVALS AND UTILITIES. .......... 9 9. PUBLIC IMPROVEMENTS AND SERVICES . ....................... 10 IQ COMPLIANCE ............................................... 11 11. DEFAULT BY LAZAR......................................... 11 12. DEFA ULT BY THE CITY ....................................... 11 13. INDEMNIFICATION . ......................................... 12 14. SUPERSEDING STATE OR FEDERAL LAW . ...................... 13 IS. SUCCESSORS AND ASSIGNS . .................................. 14 16. EQUITABLE SERVITUDES . .................................... 14 17. NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. ...... 14 I& NOTICES AND OTHER COMMUNICATIONS ....................... 14 19. ESTOPPEL CERTIFICATES . ................................... IS 20. APPLICABLE LAW . .......................................... 16 21. VENUE . ................................................... 16 DE030655:11/04/92 • 0 4'7494 22. ATTORNEYS' FEES . ............................................. 16 23. PARAGRAPH HEADINGS ...................................... 16 24. CONSTRUCTION ............................................. 76 25. SURVIVAL .................................................. 17 26. CALENDAR PERIODS ......................................... 17 27. SEVERABILITY.............................................. 17 28. FURTHER ASSURANCES . ..................................... 17 29. COVENANT OF GOOD FAITH . ................................. 18 30. COUNTERPARTS . ........................................... 18 31. REPRESENTATION ........................................... 18 32. INCORPORATION OF RECITALS ................................ 18 33. EXHIBITS . ................................................. 19 34. AMENDMENT . .............................................. 19 35. RECORDATION .............................................. 19 DE030655:11/04/92 4'7494 DEVELOPMENT AGREEMENT THIS DEVELOPMENT ("Agreement") is entered into on ')ecember 3 1 1992, between ALYCE LAZAR aka A.J. LOU, a married woman, as her sole and separate property ("Lazar"), and the CITY OF PALM DESERT, a municipal corporation organized and existing under the laws of the State of California (the "City"). Lazar and the City are sometimes collectively referred to herein as the "parties." RECITALS A. These Recitals refer to and utilize certain capitalized terms which are defined in this Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. Government Code Sections 65864-65869.5 ("Development Agreement Law") authorize the City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and reducing the economic costs of such development. C. Pursuant to Government Code Section 65865, the City has adopted rules and regulations establishing procedures and requirements for consideration of development agreements. D. Lazar is the owner of the real property described on Exhibit "A", attached hereto and incorporated herein by this reference (the "Property"). The Property is currently located DE030655:11/04/92 '47494 within the unincorporated area of Riverside County. The City has initiated proceedings for the annexation of the Property (Annexation No. 32 Palm Desert) into the corporate boundaries of the City in accordance with the Cortese -Knox Act (Government Code Section 56000, et seq.), has certified and approved a negative declaration pursuant to the California Environmental Quality Act for pre -zoning, and has approved certain pre -annexation zoning for the Property (C/Z 92-1). Such annexation proceedings will be completed following approval of this Agreement, and this Agreement shall not be effective until such time as the annexation proceedings are completed. E. The Property is currently zoned for high intensity industrial uses under the County's Land Use Ordinance and General Plan. Prior to approving such industrial zoning, the County performed all required environmental analysis in accordance with CEQA. F. Lazar intends to use the Property for commercial and/or for industrial uses, and seeks certainty in the approval of the commercial and industrial use and development of the Property. G. In partial consideration of Lazar's support for the annexation of the Property into the City, the City requested Lazar to consider entering into this Agreement relating to the Property and proceedings have been taken in accordance with the Development Agreement Law and the City's rules and regulations. H. The City Council has found that this Agreement is consistent with the City's General Plan, as amended (the "General Plan"), and any applicable Specific Plan. DE030655:11/04/92 - 2 - I. On 199 the City Council of the City adopted Ordinance No. approving this Agreement with Lazar. J. The Development Criteria implements the goals and policies of the City's General Plan and provides balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the City and to impose appropriate standards and requirements with respect to land development and usage. K. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental sowers, to the extent permitted by law. This Agreement has undergone extensive review by the City's staff, the Planning Commission of the City, and the City Council and has been found to be fair, just and reasonable and in the best interest of the citizens of the City and the public health, safety and welfare. IN CONSIDERATION OF THE RECITALS AND THE MUTUAL COVENANTS AND CONDITIONS OF THIS AGREEMENT, the parties agree as follows: 1. DEFINITIONS. 1.1 "Agreement" is this Development Agreement. 1.2 "Agreement Date" is the date this Agreement is executed by the City. 1.3 "CEQA" is the California Environmental Quality Act, Public Resources Code Section 2100, et sea. DE030655:11/04/92 - 3 4749,4 1.4 "City" is the City of Palm Desert, California. 1.5 "County" is the County of Riverside, California. 1.6 "Development Criteria" are all of those ordinances, resolutions, codes, rules, regulations and official policies of the City governing the development and use of the Property as of the Agreement Date, including, without limitation, the zoning approved by the City as part of the annexation of the Property to the City, the permitted uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings, the provisions for' reservation of dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. Specifically, but without limitation, such Development Criteria includes the Amendment to the General Plan adopted by the City Council on Change , 19 , as Ordinance No. , and Zone adopted by the City Council on , 19 , by Ordinance No. To the extent any of the foregoing are amended from time to time with the consent of Lazar, the Development Criteria shall include such matters as so amended. Notwithstanding the immediately preceding sentence, if this Agreement is required by law to be amended in order for the Development Criteria to include such amendments, "Development Criteria" shall not include such amendments unless and until this Agreement is so amended. 1.7 "Effective Date" is that date which is the later to occur of the following: (a) the expiration date for the filing of a referendum petition relating to this Agreement if no such petition DE030655:11/04/92 - 4 - -17494 is filed by such date, (b) the date that the results of a referendum election are declared approving this Agreement if a referendum petition is filed within the applicable period, or (c) the date the Property is annexed into the City. 1.8 "Lazar" is Alyce Lazar, a married woman as her sole and separate property, and her successors in interest to all or any part of the Property. 1.9 "Property" is all of the real property and any improvements thereon described in Exhibit "A" attached hereto and incorporated herein by this reference. 2. TERM. Unless earlier terminated as provided in this Agreement, this Agreement will commence on the Effective Date and will continue until December 31, 2012. 3. RESTRICTIONS ON DEVELOPMENT AND USE. The development and use of the Property, including the density or intensity of use, the maximum height and size of proposed buildings, building setback requirements, parking requirements and provisions for reservation or dedication of land for public purposes, will be governed by the Development Criteria as the same exists on the Agreement Date. The City acknowledges and agrees that the Development Criteria specifically permits the use of the Property for all commercial developments and uses or other uses or developments permitted in the PC planned commercial district, regional cente-- zone (PC 3), provided for in the City's Municipal Code as of the Agreement Date. Notwithstanding the foregoing, the City and Lazar acknowledge and agree that Lazar intends to develop DE030655:11/04/92 - 5 - A 0 L v -s and use all or a portion of the north -half of the Property for industrial user and developments. Accordingly, Lazar and the City contemplate that Lazar may make application at some future date for modification of the planned commercial district zoning on the Property, to the extent necessary and applicable, to permit industrial uses and developments on all or a portion of the north - half of the Property. The City acknowledges that the use of all or a portion of the north half of the Property for industrial uses and developments is consistent with the General Plan and the City will, subject to all requirements of the law and local ordinances, expeditiously process any request by Lazar to change all or a portion of the north -half of the Property to permit industrial uses and developments. Except with regard to any aspect of the development of the Property which is addressed in this Agreement including, without limitation, Development Impact Fees (as defined in Section 5) and Public Improvements (as defined in Section 8), the parties acknowledge and agree that certain specific aspects of the development of the Property pursuant to this Agreement will require the exercise of discretion by the City and that those aspects of the developmen: of the Property will be subject to the City's reasonable review and approval as set forth in subsection 4.2 and in the City's ordinances, resolutions, rules and regulations, as they exist from time to time; provided, however, that those ordinances, resolutions, rules and regulations are consistent with the Development Criteria and this Agreement and provided further DE030655:11/04/92 - 6 - 47494 that the City exercises its discretion in a manner which is consistent with this Agreement. 4. DEVELOPMENT AND USE. 4.1 Lazar will have the vested right to develop the Property in accordance with the Development Criteria and this Agreement, without regard to future ordinances, resolutions, rules, regulations and policies of the City or referenda of the voters of the City including, without limitation, those with respect to moratoriums for utility service, other than ordinances, resolutions, rules, regulations and policies of the City which limit or condition the rate, timing or sequencing of development of the Property and which are required solely as a result of then existing shortages of utility service capacity or facilities. 4.2 On the request of Lazar from time to time, the City will accept applications for, diligently process and issue, in accordance with the Development Criteria, any land use approvals and permits, ssbdivision approvals, building permits (including, without limitation, building permits for public improvements), certificates of occupancy, business licenses and other permits which are necessary for the development or use of the Property in accordance with this Agreement, on payment of (i) the City's usual and customary fees and charges which are in effect as of the Agreement Date, to cover its costs of processing any such applications and issuing any such approvals, permits and certificates ("Processing Fees and Charges"), and (ii) the Development Impact Fees (as defined in Section 5), at the time that DE030655:11/04/92 - 7 - the Processing Fees and Charges and the Development Impact Fees are normally payable as provided in the Municipal Code of the City. 5. DEVELOPMENT IMPACT FEES. 5.1 "Development Impact Fees". The total development impact fees, including traffic mitigation fees, drainage fees, sewer connection fees, construction taxes and all other applicable development impact or linkage assessments, fees and charges which will be imposed on Lazar with respect to the Property (collectively "Development Impact Fees") shall be those in force and effect as of the Agreement Date; provided, however, this section shall not be construed to limit the authority of the City to increase the amount of the Development Impact Fee on a uniform city-wide basis so long as the amount of any increase, fee or charge after the Effective Date of this Agreement shall not exceed the increase in the reasonable cost of providing the improvement or service for which the fee or charge is imposed. The City also will not impose on or exact from any subsequent owner, developer, lessee or occupant of the Property, or any part thereof, any fees, taxes, charges or other impositions in substitution of any of the Development Impact Fees. 5.2 The parties agree that nothing in this Section 5 will be deemed to prohibit or limit in any way the imposition of fees by governmental agencies which are not sponsored by or under the control of the City including, without limitation, the State of California and the federal government of the United States. DE030655:11/04/92 - 8 - 47494 6. UNDERGROUNDING OF UTILITIES. The City shall not impose or reach agreement with any other governmental jurisdiction to impose on Lazar at any time during the term of this Agreement, in connection with the development of the Property, a requirement or condition that Lazar underground or pay for the undergrounding of any electrical transmission lines, telephone lines or related poles or structures existing or hereafter constructed within the south half of the right-of-way of Dinah Shore Drive. 7. ACCESS TO PROPERTY The City acknowledges and agrees to allow three points of full access (left and right turn in and out) to the Property from Dinah Shore Drive. Such points of full access shall include the existing signaled access at the east boundary line of the Property, a full access point at the west boundary line of the Property, and a full access point at or near the mid -point of the Property. In addition to the full access points described above, the City also shall allow right in/right out -type access points along Dinah Shore Drive. In the event Lazar is required to pay for all or part of the costs of z signal at either or both of the two full access points in connection with the development of the Property, Lazar shall receive a credit in the amount of her signalization costs against any signalization fees otherwise imposed by the City. 8. THIRD PARTY PERMITS AND APPROVALS AND UTILITIES. The City will use all appropriate efforts to assist Lazar or any developer or user of a portion of the Property in obtaining all other permits and approvals which are required by governmental DE030655:11/04/92 - 9 - 4'7494 entities other than the City, which have jurisdiction over the development or operation of the Property, and all utility connections and services including, without limitation, electrical, gas, telephone, cable television, which are required for the development or operation of the Property. 9. PUBLIC IMPROVEMENTS AND SERVICES. Lazar shall not be required by the City to construct any public improvements or pay or make any dedications or reservations for any public improvements with respect to the Property until, and in connection with, the development of the Property or a portion thereof by Lazar. Further, if only a portion of the Property is developed at a particular time, then only those public improvements, dedications, or reservations with respect to and adjacent to the developed portion of the Property shall be required by the City; provided, however, that non -adjacent public improvements may be required by the City in connection with the development of all or a portion of the Property if such public improvements are required to mitigate impacts identified in a traffic study done by the City with respect to the portion of the Property to be developed. At no time shall Lazar be required to construct any public improvements or pay or make any dedications or reservations for any public improvements with respect to the Property on the south half of Dinah Shore Drive. Further, the City shall not, without the prior written consent of Lazar, include the Property within any assessment district, community services district or community facilities district formed pursuant to the Landscaping and Lighting Act of 1972, the Mello Roos Community DE030655:11/04/92 - 1 0 - 4'7494 Facilities Act of 1982, or any successor statutes or other bond or assessment acts adopted in connection with the development or maintenance of public improvements or with the supply of community or public services provided to other parts of the City without special charge or assessment. 10. COMPLIANCE. The City will periodically review this Agreement as provided in Section 65865.1 of the Government Code and Section 25.37.070 of the Municipal Code, to ascertain Lazar's good faith compliance with the provisions of this Agreement. 11. DEFAULT BY LAZAR. If the City does not find good faith compliance with the provisions of this Agreement by Lazar, then the City will have all of the remedies which are available to it at law or in equity and will comply with all of the procedures which are provided in Section 65865.1 of the Government Code. 12. DEFAULT BY THE CITY. If the City fails to perform any of its obligations as provided in this Agreement and fails to cure its nonperformance within 30 days after notice of nonperformance is given by Lazar, then the City will be in default and Lazar will have all of the remedies which are available to her at law or in equity; provided, however, that if the City's failure to perform cannot reasonably be cured within such 30 day period, then the City will not be in default of this Agreement if it commences to cure its nonperformance within such 30 day period and thereafter diligently and in good faith prosecutes such cure to completion. Without DE030655:11/04/92 - 1 1 - 4'7494 limiting the effect of the foregoing, the parties acknowledge and agree that the subject matter of this Agreement is unique and that money damages may be inadequate to compensate Lazar and therefore, at the election of Lazar, this Agreement may be specifically enforced. 13. INDEMNIFICATION. (a) Lazar will defend, indemnify and hold the City and its elected officials, officers and employees free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any obligation which arises from the development of the Property including, without limitation, obligations for the payment of money for material and labor; (ii) any failure on the part of Lazar to take any action which she is required to take as provided in this Agreement; (iii) any action taken by Lazar which she is prohibited from taking as provided in this Agreement and (iv) any claim which results from any willful or negligent act or omission of Lazar. (b) The City will defend, indemnify and hold Lazar and her trustees, beneficiaries, shareholders, directors, officers and employees free and harmless from any and all loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any failure on the part of the City to take any action which it is required to take as provided in this Agreement, (ii) any action DE030655:11/04/92 - 1 2 - 4'7494 taken by the City which it is prohibited from taking as provided in this Agreement and (iii) any claim which results from any willful or negligent act or omission of the City. (c) Included in the scope of the foregoing indemnifications will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject of the applicable indemnification and all of the associated legal fees and court costs. Without limiting the effect of ',;he foregoing, the indemnifying party will have the right to defend against any claim with respect to which it is indemnifying the other party, using legal counsel of its choice. 14. SUPERSEDING STATE OR FEDERAL LAW. If any state or federal law or regulation which is enacted or adopted after the Effective Date of this Agreement or any other action of any governmental entity which is not under the City's control, prevents or precludes compliance with any provision of this Agreement, then such provision of this Agreement will be modified or suspended only to the extent and for the time it is necessary to achieve compliance with such law, regulation or other governmental action and the remaining provisions of this Agreement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. On the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance which removes the effect of the same on this DE030655:11/04/92 - 1 3 - 4'7494 Agreement, the provisions of this Agreement will be automatically restored to their full original effect and any amendment to this Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 15. SUCCESSORo AND ASSIGNS. All of the provisions of this Agreement will inure to the benefit of and will bind the parties and their respective successors and assigns and all other persons or entities which acquire all or any part of the Property. Without limiting the effect of the foregoing, Lazar will have the right to assign any of her rights or delegate any of her obligations as provided in this Agreement to or for the benefit of any person or entity which owns or leases any part of the Property. 16. EQUITABLE SERVITUDES. All of the provisions of this Agreement will be enforceable as equitable servitudes and will constitute covenants running with the land as provided in the applicable law. 17. NEGATION OF AGENCY, JOINT VENTURE OR PARTNERSHIP. The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of join venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners. 18. NOTICES AND OTHER COMMUNICATIONS. All notices or other communications which are required or permitted to be given to the parties will be in writing and will be DE030655:11/04/92 - 1 4 - 4'7494 given either by personal service or by mailing the same by certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service, addressed as follows: CITY CITY OF PALM DESERT 73510 Fred Waring Drive Palm Desert, CA 92260 Attn: Ramon Diaz LAZAR Alyce Lazar 334 Fermosa Place Palm Springs, CA 92262 COPY Attn: 149-41M Best, Best & Krieger 600 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: Paul T. Selzer If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it will be deemed given as of the date of receipt, rejection or return undelivered. Addressees to which notices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 17. 19. ESTOPPEL CERTIFICATES. At the request of either party, the other party will, within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, except as is expressly provided in such estoppel certificate and (c) no default in the performance of the requesting party's obligations as provided in this Agreement DE030655:11/04/92 - 1 5 - 4'7494 exists, except as is expressly provided in such estoppel certificate. 20. APPLICABLE LAW. This Agreement will be construed and enforced as provided in California law. 21. VENUE. Any legal action with respect to this Agreement will be brought in either Riverside Superior Court or in the United States District Court for the Central District of California. 22. ATTORNEYS' FEES. If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in such action will be entitled to recover from the losing party all attorneys' fees, court costs and necessary disbursements in connection with such action. 23. PARAGRAPH HEADINGS. The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 24. CONSTRUCTION. In all cases, the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. DE030655:11/04/92 - 1 6 - 47494 25. SURVIVAL. Each and every covenant in this Agreement will survive the execution and delivery of this Agreement for the benefit of the parties and their successors and assigns. 26. CALENDAR PERIODS. All references in this Agreement to "years", "quarters", "months" and "days" will be deemed to be to references to calendar years, quarters, months and days. 27. SEVERABILITY. Every provision of this Agreement is and will be construed to be a separate .and independent covenant. Without limiting the effect of Section 13., if any provision of this Agreement or the application of the same is, to any extent, found to be invalid or unenforceable, then the remainder of this Agreement or the application of such provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Agreement will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 28. FURTHER ASSURANCES. Whenever and as often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or property in order to achieve the intent of this Agreement. DE030655:11/04/92 - 1 7 - 47,194 29. COVENANT OF GOOD FAITH. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 30. COUNTERPARTS. This Agreement may be executed in counterparts, each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 31. REPRESENTATION. The parties hereto acknowledge and agree that Best, Best & Krieger has prepared this Agreement at the request of both parties. Best, Best & Krieger has a long-standing relationship with both Lazar and the City and has advised each to seek separate, independent counsel of their own choosing for the purpose of informing them �f the legal consequences of this Agreement, and the advisability of executing it. 32. INCORPORATION OF RECITALS. The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereof. Each recital of fact concerning the parties will be conclusive between them and such facts will be incontestable in the event of any dispute between them with respect to such facts. Neither party will introduce any evidence in a court or administrative proceeding which would in any way serve to dispute any such recited fact. DE030655:11/04/92 - 1 8 - 47494 33. EXHIBITS. Any Exhibit to this Agreement is incorporated by reference as though fully set forth hereof. 34. AMENDMENT. No amendment or waiver of any term of this Agreement will be binding on the City unless and until it has been approved and has become effective as provided in Section 65868 of the Government Code and in Section 25.37.080 of the Municipal Code, or on Lazar unless and until it has been executed by Lazar. 35. RECORDATION. No later than 10 days after the Effective Date of this Agreement, the City will, at its cost, record this Agreement in the Official Records of the Riverside County Recorder, as provided in Section 65868.5 of the Government Code and in Section 25.37.090 of the Municipal Code. CITY CITY OF PALM DESERT By: ATTEST: y • City Cl� APPROVED AS TO FORM AND SUBSTANCE: By- Cit ttorney Alyce Ilazar DE030655:11/04/92 - 1 9 - -7At ALL-PURPOSE CERTIFICATE State of California ) County of Riverside ) 4'7494 4'7494 Ootnt w j4 Q , l i�3 , before me, MICYelle-«1 �� � Notary Public in and for said State, personally appeared -j'e c,Y\ iY�Q1n!�,CI'1 _ personally known to me (or proved to me on the basis of satisfactory evidence) to be the persov*whose name(s) is/amsubscribed to the within instrument and acknowledged to me that4e/she/they executed the same i&WhCTAheir authorized capacity(iss), and that by bir/her/thy signature(f}-on the instrument the person(&), or the entity upon behalf of which the person(s)-acted, executed the instrument. WITNESS my hand and official seal.ff-pMACj�AELLE:E. k�r�o,,a.TD:aUv�►t ONXI Wvcustot COON T 99Sno^ fx it s Nov (Seal)) ALL-PURPOSE CERTIFICATE State of California ) County of Riverside ) 4'7494 OnJOn �- ( q9 ,before me Y i L 1 '� > • �k�1 �(1� `t C� a Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(&.) whose name() is/axgsubscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(iw4,,_and that by hiisLhcr/thcipsignature(s) on the instrument the person(s),-or the entity upon behalf of which the person(&) acted, executed the instrument. __ _ WITNESS my hand and official seal. a ► NCHEL f�� � Signature ;' PRoQP `tastu.4TAO ..... Wvf pEcototiNr • • 4'7494 State of California ) ) ss. County of CLU ) On, before me, a nota y public in and for said state, personally a peared C?Q M(AA-) personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he or she executed the same in the capacity(ies) indicated at the signature point. WITNESS my hand and official seal. signature (Seal) Get H;IAL SFAI + i = KAREM S. STEWART i -rs •' WARY PUBLIC—CAl1FORNIA + PRINCIPAL piFIGE IN + 1 !a RIVERSIDE COUNTY JUL°II- - T- �' -- --3 - -- i 97594 THAT CERTAIN PARCEL OF LAND IN THE UNINCORPORATED AREA OF RIVERSIDE COUNTY, STATE OF CALIFORNIA, BEING A PORTION OF SECTION 19, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 19; THENCE S 89'32'04" W 1294.53 FEET ALONG THE SOUTH LINE OF SAID SECTION 19 TO THE TRUE POINT OF BEGINNING; THENCE N 0003'50" E 2041.62 FEET TO THE SOUTHWESTERLY LINE OF THE 200 FOOT WIDE RIGHT-OF-WAY OF THE SOUTHERN PACIFIC RAILROAD, AS RESERVED IN AN INSTRUMENT RECORDED MARCH 23, 1912 IN BOOK 347, PAGE 127 OF DEEDS, RECORDS OF SAID COUNTY; THENCE N 54032131" W 1648.31 FEET ALONG SAID SOUTHWESTERLY LINE TO THE WEST LINE OF THE EAST HALF OF SAID SECTION 19; THENCE S 0003150" W 3008.73 FEET ALONG SAID WESTERLY LINE TO SAID SOUTH LINE OF SECTION 19; THENCE N 89032104" E 1343.74 FEET ALONG SAID SOUTH LINE TO THE TRUE POINT OF BEGINNING. EXCLUDING, HOWEVER, THAT CERTAIN MORE OR LESS 10 ACRES OF LAND DESCRIBED AS FOLLOWS: THAT CERTAIN PARCEL OF LAND IN THE UNINCORPORATED AREA OF RIVERSIDE COUNTY, STATE OF CALIFORNIA, BEING A PORTION OF SECTION 19, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 19; THENCE S 89032104" W 1294.53 FEET ALONG THE SOUTH LINE OF SAID SECTION 19 TO THE SOUTHEAST CORNER OF THAT PARCEL OF LAND DESCRIBED IN INSTRUMENT 279607 RECORDED SEPTEMBER 28, 1988, O.R.; THENCE N 0'03f50" E 15590.93 FEET TO THE TRUE POINT OF BEGINNING; SAID POINT BEING 490.69 FEET SOUTHERLY OF THE NORTHEAST CORNER OF SAID PARCEL DESCRIBED IN INSTRUMENT 279607 RECORDED SEPTEMBER 28, 1988, O.R. AS MEASURED ALONG THE EASTERLY LINE OF SAID PARCEL; THENCE CONTINUING N 000315091 E 490.69 FEET TO THE SOUTHWESTERLY LINE OF THE 200 FOOT WIDE RIGHT-OF-WAY OF THE SOUTHERN PACIFIC RAILROAD, AS RESERVED IN AN INSTRUMENT RECORDED MARCH 23, 1912 IN BOOK 347, PAGE 127 OF DEEDS, RECORDS OF RIVERSIDE COUNTY; THENCE N 54032'31" W 946.90 FEET ALONG SAID SOUTHWESTERLY LINE; THENCE PERPENDICULAR TO LAST MENTIONED COURSE, S 35027129" W 400.00 FEET; THENCE S 54032131" E 1231.10 FEET PARALLEL TO THE SOUTHWESTERLY LINE OF SAID RAILROAD RIGHT-OF-WAY TO THE TRUE POINT OF BEGINNING. THE HEREINABOVE DESCRIBED PARCEL CONTAINS 67.89 ACRES OF LAND, MORE OR LESS OSP29911 EXHIBIT "A"