HomeMy WebLinkAboutORD 697ORDINANCE NO. 697 AN ORD_ ,!r„iCE OF THE CITY COUNCIL Or THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A PREANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND MONTEREY PALMS FOR THE FUTURE DEVELOPMENT OF REAL PROPERTY LOCATED WITHIN ANNEXATION NO. 30. CASE NO. DA 92-4 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 Monterey Palms 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 W , between the City of Palm Desert and Monterey Palms. 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 NOES: NONE ABSENT: CRITES ABSTAIN: NONE Ac �1 J BENSON, Mayor T: .i SHEILA R./GILLIW, City Clerk City of Palm DWs rt, California RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: cc C © City of Palm Desert us 9 c/o Best, Best & Krieger (DSP) 39-700 Bob Hope Drive, Suite 312 a v p — ~ U. g r.•j Rancho Mirage, CA 92270 $ s W d 4 W W W w DEVELOPMENT AGREEMENT ENTERED INTO BETWEEN THE CITY OF PALM DESERT AND MONTEREY PALMS, A CALIFORNIA LIMITED PARTNERSHIP 195008 DEVELOPMENT AGREEMENT THIS DEVELOPMENT ("Agreement") is entered into on the 0? 77-144-) day of %oI- � \ , 1993, between MONTEREY PALMS, A California Limited Partnership ("Owner"), and the CITY OF PALM DESERT, a municipal corporation organized and existing under the laws of the State of California (the "City"). Owner 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. Owner 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 within the unincorporated area of Riverside County, within the -1- LDC/112392/6305/01DEVEL.A 195008 City's sphere of influence. The City has initiated proceedings for the annexation of the Property 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 prezoning, and has approved certain pre -annexation zoning for the Property. 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. Owner's property is currently zoned W-2-20 under the County of Riverside Land Use Ordinance and has a general plan designation of M (Industrial/Manufacturing). Prior to approving such zoning, the County performed all required environmental analysis in accordance with CEQA. F. Owner intends to use its property for industrial and/or limited commercial uses and seeks certainty in the approval of the industrial or commercial uses of its property and with respect to the development of the Property. G. In partial consideration of Owner' support for the annexation of the Property into the City, the City has requested Owner 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. -2- LDC/112392/6305/01DEVEL.A I. On '�­Otu~ %1 , 1992, the City Council of the City adopted Ordinance No. 1AI, approving this Agreement with Owner. J. The "Development Criteria" as defined and specified below implement the goals and policies of the City's General Plan and provide balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the City, and impose appropriate standards and requirements with respect to land development and usage of the Property. 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 powers, 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: AGREEMENT 1. DEFINITIONS. 1.1 "Agreement" is this Development Agreement. 1.2 "Agreement Date" is the date this Agreement is executed by the City. -3- LDC/112392/6305/01DEVEL.A 195008 1.3 "CEQA" is the California Environmental Quality Act, Public Resources Code Section 21000, et sect. 1.4 "City" is the City of Palm Desert, California. 1.5 "County" is the County of Riverside, California. 1.6 "Development Criteria" are: (a) 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, which zoning shall be SI Service Industrial, 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 Zone Change 92.1 adopted by the city council of the City on or about May 28, 1992. To the extent any of the foregoing are amended from time to time with the consent of Owner, 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 -4- LDC/112392/6305/01DEVEL.A 195008 referendum petition challenging the ordinance approving this Agreement if no such petition 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 "Owner" is Monterey Palms, A California Limited Partnership and its 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 date the Property is annexed into the City and will continue for a period of ten (10) years thereafter. 3. RESTRICTIONS ON DEVELOPMENT AND USE. The development and use of the Property, including zoning, 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 permit the development and use of the Property for such uses as are permitted -5- LDC/112392/6305/01DEVEL.A 195008 in the SI Service Industrial provided for in the City's Municipal Code as of the Agreement Date. Except with regard to those aspects of the development of the Property which are addressed in this Agreement, the parties acknowledge and agree that other aspects of the development of the Property may require the exercise of discretion by the City and that those aspects of the development of the Property will be subject to the City's reasonable review and approval as set forth in the City's ordinances, resolutions, rules and regulations, as they exist from time to time; provided, however, that those ordinances, resolutions, rules and regulation are consistent with the Development Criteria and this Agreement and provided further that the City exercises its discretion in a manner which is consistent with this Agreement. 4. DEVELOPMENT AND USE. 4.1 Owner will have the vested right to develop its Property to the extent covered by and 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 moratoria 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. LDC/112392/6305/01DEVEL.A 195008 4.2 On the request of Owner 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, subdivision 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, at the time that the Processing Fees and Charges and the Development Impact Fees are normally payable as provided in the Municipal Code of the City. 4.3 In connection with subdivision mapping of property immediately to the north of the Property, discussions have included that Dinah Shore Drive is proposed to be extended across the Property to the northerly projection of Portola Drive, as required by the provisions of Parcel Map No. 24255. The City acknowledges that no agreement exists between it and Owner that Owner is to dedicate or pay, either directly or indirectly as for example by inclusion in an assessment district or by reimbursement agreement, for the cost of so extending Dinah Shore Drive from the northerly boundary of the Property to the northerly extension of Portola Avenue and that Owner's only requirement in this regard shall be to perform conditions for the dedication of a right of way for Dinah -7- LDC/112392/6305/01DEVEL.A 195008 Shore Drive and to provide street improvements, all only in connection with applications to subdivide or improve portions of the Property adjacent to Dinah Shore Drive. In addition, the parties acknowledge that no agreement exists between City and Owner with reference to portions of the subdivision map of the property immediately to the north of the Property that Owner will consent or sign a final subdivision map as to portions of the map which appear to encroach onto or include a portion of the Property. 4.4 The City's present plan is to extend the East one-half of Portola Avenue northerly from its present terminus to a point near the Southern Pacific Railroad right of way. The City agrees to do so at no cost to Owner provided that Owner will be required to dedicate one-half of the right of way in connection with the subdivision mapping of portions of the Property abutting Portola and to construct and pay for street improvements for those portions of Portola Avenue adjacent to the Property in connection with and as a condition to approvals for the development of portions of the Property abutting Portola, all in accordance with the Development Criteria. 4.5 Notwithstanding provisions herein concerning the zoning applicable to the Property, City acknowledges that it may consider permitting commercial zoning on portions of property abutting Portola Avenue (or the northerly extension thereof from its present terminus). City agrees that it will, in good faith, consider allowing a portion of the Property that will abut Portola Avenue after its northerly extension to be changed to a commercial zoning designation. -8- LDC/112392/6305/01DEVEL.A 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 Owner 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 constructed to limit the authority of the City to increase the amount of the Development Impact Fees 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 the 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 government of the United States. 6. ACCESS TO PROPERTY. 6.1 In connection with the approval of the alignment of Dinah Shore Drive between the northerly boundary of the Property and the northerly extension of Portola Avenue, the City agrees that there LDC/112392/6305/01DEVEL.A 195008 shall be a minimum distance between the southerly line of Dinah Shore Drive at Portola Avenue and the southerly boundary line of the Property at Portola Avenue of 500 feet; provided, however, if the subdivision map of that portion of the Property located at the southeast corner thereof includes an east/west access street at Portola Avenue approximately coterminous with the southerly boundary line of the Property as mentioned in subsection 6.2, then the 500 feet shall be measured from the northerly line of said access street, north to the southerly line of Dinah Shore Drive at Portola Avenue. The foregoing matters are depicted on the map attached hereto as Exhibit "B". 6.2 The City shall permit an east/west access street at Portola Avenue approximately coterminous with the southerly boundary line of the Property if desired by Owner in connection with its subdivision mapping of the portion of the Property, as shown on Exhibit "B" hereto. 6.3 The City shall permit at least two crossing points across the extension of Dinah Shore Drive within the Property and across the extension of a proposed east/west street (which the Owner MacLeod Couch Land Co. proposes to use as the principal access into their Property as shown on Exhibit "B" hereto; such access roadway is currently designed to proceed in an East/West direction, to approximately the Easterly boundary line of the MacLeod Couch property "MacLeod Street"). The two crossing points in Dinah Shore Drive are in addition to that which will exist at the intersection of Dinah Shore Drive and Portola Avenue and at the northerly boundary line of the Property at Dinah Shore Drive. The two -10- LDC/112392/6305/01DEVEL.A 195008 crossing points in MacLeod Street will be in the interior of the Property and will be in addition to any streets which are an extension of any street from the property abutting the Property and located to the north of the Property. 7. PUBLIC IMPROVEMENTS AND SERVICES. 7.1 Owner 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 Owner. 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. Further, City shall not, without the prior written consent of Owner, 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 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. -11- LDC/112392/6305/01DEVEL.A 195008 7.2 The proposed MacLeod Street is currently proposed to proceed in an East/West direction, to approximately the Easterly boundary line of the MacLeod Couch property and to thereafter proceed Northeasterly to intersect Dinah Shore Drive at right angles. City hereby acknowledges that no agreement exists to which it is a party that has finally agreed on the exact alignment of the extension of MacLeod Street through the Property and that the City will consider other alignments of MacLeod Street through the Property in connection with the subdivision process relating to the Property. 7.3 The City may desire that a boundary wall be constructed on or near and parallel to the southerly boundary line of the Property. No part of the cost of said wall shall be required by City to be paid by Owner unless, as between Owner and the owner of the property abutting the Property on the south, Owner seeks and obtains development approvals for its Property first in time. 8. COMPLIANCE. The City will periodically review this Agreement as provided in Section 65865.1 of the Government Code and the City Municipal Code, to ascertain Owner' good faith compliance with the provisions of this Agreement. 9. DEFAULT BY OWNER. If the City does not find good faith compliance with the provisions of this Agreement by Owner, then the City will have all of the remedies which are provided in the City Municipal Code and will comply with all of the procedures which are provided in Section 65865.1 of the Government Code and the City Municipal Code. -12- LDC/112392/6305/01DEVEL.A 195008 10. 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 Owner, then the City will be in default and Owner . will have all of the remedies which are available to it 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 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 Owner and therefore, at the election of Owner, this Agreement may be specifically enforced. 11. INDEMNIFICATION. (a) Owner 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 Owner to take any action which she is required to take as provided in this Agreement; (iii) any action taken by Owner which -13- LDC/112392/6305/01DEVEL.A 135008 it is prohibited from taking as provided in this Agreement and (iv) any claim which results from any willful or negligent act or omission of Owner. (b) The City will defend, indemnify and hold Owner and its trustees, beneficiaries, partners, 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 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 the 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. 12. 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 -14- LDC/112392/6305/01DEVEL.A 19500E 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 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. 13. SUCCESSORS 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, Owner will have the right to assign any of their rights or delegate any of their 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. -15- LDC/112392/6305/01DEVEL.A 195008 14. 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. 15. 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 joint venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners. 16. 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 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 73-510 Fred Waring Palm Desert, CA 92260 Attn: Carlos Ortega Owner Monterey Palms c/o Gale Messick 935 Fountain Springs Lane Glendora, CA 91740 -16- COPY Best, Best & Krieger 39700 Bob Hope Drive, #312 Rancho Mirage, CA 92270 Attn: Douglas S. Phillips COPY Crandall & Traver 43-645 Monterey Avenue Suite D Palm Desert, CA 92260 Attn: Lynn D. Crandall LDC/112392/6305/01DEVEL.A 195008 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 16. 17. 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 exists, except as is expressly provided in such estoppel certificate. 18. APPLICABLE LAW. This Agreement will be construed and enforced as provided in California law. 19. 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. -17- LDC/112392/6305/010EVEL.A 195008 20. 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. 21. 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. 22. 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. 23. 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. 24. 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. 25. SEVERABILITY. Every provision of this Agreement is and will be construed to be a separate and independent covenant. If any provision of this Agreement or the application of the same is, to any extent, found -18- LDC/112392/6305/01DEVEL.A 195008 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. 26. 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. 27. 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. 28. 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. 29. 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 -19- LDC/112392/6305/01DEVEL.A 195008 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. 30. EXHIBITS. Any Exhibit to this Agreement is incorporated by reference as though fully set forth hereof. 31. 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 pursuant to the City Municipal Code and Regulation, or on Owner, unless and until it has been executed by Owner. 32. 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 as provided by the City Municipal Code. 33. AGREEMENT BY OWNERS RE NEGATIVE DECLARATION, NORTH SPHERE OF PREZONING, ANNEXATION OF OWNERS' PROPERTY INTO THE CITY OF PALM DESERT. Neither Owner nor their agents, consultants, servants, attorneys or representatives shall in any way object to or take any actions on behalf of Owner whatsoever in opposition to or challenge to the Negative Declaration for City's Case No. C/Z 92-1, the North Sphere Pre -zoning or the annexation of the Property or Owner's -20- LDC/112392/6305/01DEVEL.A 195008 Property into the City of Palm Desert. Further, Petitioner and/or Owner at the request of City, shall take all reasonable steps to support the City's proposed annexation before any public body including, but not limited to, the Local Agency Formation Commission. ATTEST: ' > BY: SHEILA GT. IGAN, ty Clerk City of P lm De e t APPROVED AS TO FORM AND SUBSTANCE: By: Dougl s S. Phillips Deputy City Attorney APPROVED AS TO FORM AND SUBSTANCE: Lynn D. Crandall Attorney for Owner -21- CITY CITY OF.PALM DESERT By: w By: v Owner: MONTEREY PALMS, a California Limited Partnership By: "� -/- LDC/112392/6305/01DEVEL.A STATE OF CALIFORNIA COUNTY OF RIVERSIDE n 1993, before me, (name of notary) , a notary public, personally appe red , personally known to me (o proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the perso instrument. r- LV�L TNE9�4 p>{ a NOTARY FI L:0 - S ATE OF CALM M RNEN.SIDE COUNTY M; Cmn. Expires Aug.5.1M1 STATE OF CALIFORNIA COUNTY OF RIVERSIDE official seal. n(s) acted, executed the ML SMM CHOM On (�;,, ` -1 , 1993, before me, (name of notary) a notary public, personally appeared �� <<,�, � v, il- C �' I1'C "' ��, personally known to me (or proved to me on the basis of satis actory evidence) to be the person(s) whose name(s) i-&/are subscribed to the within instrument and acknowledged to me that he/-she/they executed the same in h4-a/her/their authorized capacity (ies) , and that by her/their signatures) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. -22- LDC/112392/6305/01DEVEL.A EXHIBIT "A" That property located in the County of Riverside, California described as: The Southeast quarter of Section 29, Township 4 South, Range 6 East, San Bernardino Base and Meridian according to the official plat thereof. Except the South 1,470 feet thereof. Said land is also shown as Parcel 3 of Record of Surveys recorded in Book 40, Page 69 of Record of Surveys, in the office of the County Recorder of said County. �TF 1 NOT TO SCALE `% 195008 J.F.DmvldmonAsmoolutow,Inc. NOTE,,.�......., .�..�.. ,...�...�..a.. TWO CROSSING POINTS WITHIN MONTEREY PALMS BOUNDARIES ON PROPOSED Mae LEOD ROAD ROUTE OF SAID PROPOSED ROAD WITHIN SAID BOUNDARIES NOT YET DETERMINED DATE 12/01/92 P.N. 9212880 195008 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On 1993, before me, (name of notary) a notary public, personally appeared , 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/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal.' STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On , 1993, before me, (name of notary) a notary public, personally appeared f 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/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. -23- LOC/112392/6305/010EVEL.A 0 9 195008 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) On , 1993, before me, (name of notary) a notary public, personally appeared 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/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. STATE OF CALIFORNIA } } COUNTY OF RIVERSIDE ) On , 1993, before me, (name of notary) a notary public, personally appeared r 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/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. -24- LDC/112392/6305/DIDEVEL.A