HomeMy WebLinkAboutORD 764ORDINANCE NO. 764
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, APPROVING A .NEGATIVE
DECLARATION OF ENVIRONMENTAL IMPACT AND AMENDED
AND RESTATED DEVELOPMENT AGREEMENT CONCERNING THE
COMMERCIAL DEVELOPMENT ON THE SOUTH SIDE OF EL
PASEO BETWEEN SAN PABLO AVENUE AND LARKSPUR LANE.
PROJECT TITLE: AHMANSON COMMERCIAL DEVELOPMENT
PLAN AMENDED AND RESTATED DEVELOPMENT AGREEMENT
WHEREAS, the City Council of the City of Palm Desert, California,
did on the 27th day of October, 1994, hold a duly noticed public
hearing to consider the request of MADISON REALTY/SUNRISE CO. for
approval of an amended and restated development agreement concerning
the commercial development on the south side of E1 Paseo between San
Pablo Avenue and Larkspur Lane; and
WHEREAS, the planning commission, by adoption of Planning
Commission Resolution No. 1663 has recommended approval; 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 amended project
impacts remain consistent with the findings of the previously Certified
Environmental Impact Report SCH#88122603 and as mitigated will not have
a significant adverse impact on the environment and a Negative
Declaration of Environmental Impact has been prepared; and
WHEREAS, at said public hearing, upon hearing and considering all
testimony arguments, if any, of all interested persons desiring to be
heard, said city council did find the following facts and reasons to
exist to justify approving said amended and restated development
agreement:
The Amended and Restated Development Agreement remains consistent
with the goals and objectives of the city's Zoning Ordinance,
Commercial Core Area Specific Plan, and General Plan.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of
Palm Desert, as follows:
1. That the above recitations are true and correct and
constitute the consideration of the council in this case.
2. That a Negative Declaration of Environmental Impact Exhibit
"A" and the Amended and Restated Development Agreement
Exhibit "B" are hereby approved.
3. The City Clerk of the City of Palm Desert, California, is
hereby directed to publish this ordinance in the Palm Desert
Post, a newspaper of general circulation, published and
circulated in the City of Palm Desert, California, and shall
be in full force and effective thirty (30) days after its
adoption.
ORDINANCE NO. 764
PASSED, APPROVED AND ADOPTED by the City Council of the City of
Palm Desert, California, this 8th day of December, 1994, by the
following vote, to wit:
AYES: BENSON, KELLY, SNYDER, WILSON, CRITES
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE '
FORD A< C ITES, yor
/ATTE T . /
/ 61)Z � L
SHEILA R. LLIGA , City Clerk
City of Palm Dese , Californi
2
NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT
PURSUANT TO TITLE 14, DIVISION 6, ARTICLE 7, SECTION 15070
OF THE CALIFORNIA ADMINISTRATIVE CODE
PROJECT NAME: AHMANSON COMMERCIAL DEVELOPMENT PLAN
DISPOSITION, DEVELOPMENT AND IMPLEMENTATION
AGREEMENT AND DEVELOPMENT AGREEMENT
APPLICANT: Madison Realty/Sunrise Co.
c/o Philip Smith
42-600 Cook Street
Palm Desert, California 92260
PROJECT
DESCRIPTION: Modification of an approved Disposition, Development and
Implementation Agreement (DDIA) between the Palm Desert
Redevelopment Agency (Agency) and the Ahmanson
Commercial Development Company and Development Plan
between the City of Palm Desert and Ahmanson Commercial
Development Company, generally associated with
implementation of the Ahmanson Commercial Development
Plan, for which an Environmental Impact Report SCH
#88122603 was certified November 16, 1989. The proposed
modifications concern the development of Site Area No.
5 originally approved as a 167,500 square foot
commercial center on the south side of E1 Paseo between
San Pablo Avenue and Larkspur Lane.
The Development Agreement modifications include:
1. Increase in Gross Leasable Area (GLA) from 167,500
to 197,500.
2. Permission to include up to 25% of Gross Leasable
Area (49,250 square feet) of restaurant use.
Disposition, Development and Implementation Agreement
modifications include:
1. Purchase by the Agency of "Parking Rights" via an
easement agreement for 200 public parking spaces
to be constructed in addition to those spaces
required for the project by the city's Parking
Ordinance.
NEGATIVE DECLARATION
OF ENVIRONMENTAL IMPACT
2. Preparation of a "Parking Management Plan"
insuring efficient operation and management of all
of the parking on the Property.
ANALYSIS
OF IMPACTS: 1. General: Project impacts resulting from the
modification will be identical to those identified
in the Certified EIR. All mitigation measures
identified in the Final EIR for this site area
will be applicable to the project.
2. Traffic Generation: The certified EIR had
identified impacts resulting from traffic
generation as the primary effect of the project.
The EIR traffic analysis based on the 4th Edition
of Trip Generation published by The Institute of
Transportation Engineers (ITE) forecast 10,370
daily trips from the original 167,500 square foot
project. Subsequently, ITE revised and refined
their forecasts in the 5th Edition based on
approximately 100 new shopping center studies.
These studies have indicated a generally lower
traffic generation rate then was previously
forecast. While the project floor area will
increase 20% from 167,500 square feet to 197,000
square feet, traffic generation as forecast by the
5th Edition will increase only 4% to 10,815 when
compared to the EIR analysis. This increase does
not change the traffic mitigation recommended by
the EIR. These include:
A. Long-term (Year 2000) Mitigation Measures
Hiahwav 111 @ Monterey Avenue -State Route 74
Requires the addition of a second northbound
left -turn lane on SR-74 and a second
eastbound and westbound left -turn lane on
Highway 111 (same as 1989 study).
Requires the addition of a third eastbound
and westbound through lane on Highway 111 for
a total of six through lanes (three in each
direction).
Highway 111 @ San Pablo
Convert exclusive eastbound and westbound
right -turn lanes on Highway 111 into a third
eastbound and westbound through lane one
Highway 111 (same as 1989 study).
2
NEGATIVE DECLARATION
OF ENVIRONMENTAL IMPACT
Highway Ill @ San Luis Rey
Re -stripe the northbound approach of San Luis
Rey at Highway Ill to provide an exclusive
left -turn lane (same as 1989 study).
Requires the addition of a third eastbound
and westbound through lane on Highway 111 for
a total of six through lanes (three in each
direction).(same as 1989 study).
E1 Paseo @ State -Route 74
Re -stripe the northbound approach of State -
Route 74 at E1 Paseo to provide a second
left -turn lane (same as 1989 study).
B. Project -specific Improvements
Highway Ill @ San Pablo
Requires the addition of a second northbound
through lane on San Pablo at Highway 111
(same as 1989 study).
E1 Paseo @ San Pablo Avenue
Re -stripe the northbound approach of San
Pablo at E1 Paseo to provide an exclusive
right -turn lane. Restrict on -street parking
on San Pablo adjacent to the project site to
provide storage for the right -turn lane.
3. The purchase of parking rights and preparation of
a parking management plan will result in positive
impacts by addressing existing parking
deficiencies within the E1 Paseo area.
The Director of the Department of Community Development, City of Palm
Desert, has therefore concluded that the described project remains
within the scope of the previously certified Environmental Impact
Report SCH #88122603 and as mitigated, will not have a significant
effect on the environment. There has been no significant changes in
the nature of the project or the environment since certification of the
EIR. A copy of the project EIR is available in the Department of
Community Development/Planning, Palm Desert Civic Center, 73-510 Fred
Waring Drive, Palm Desert, California. A copy of the initial study for
the proposed DA and DDIA modification has been attached to document the
reasons in support of this finding.
10 •
DATE: December 8, 1994
Ramon A. Diaz
3
. 148085
RECORDING
REQUESTED BY RECEIVED FOR RECORL
CONTINENTAL LAWYERS TITLE
AT 8:00 O'CLOCK
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Palm Desert Redevelopment Agency MAY 10 M5
73-510 Fred Waring Drive
Palm Desert, California 92260 PAW" incram R -
Attention: Carlos L. Ortega
Executive Director
4( Feet S
t
(Space above for Recorder's Use Only)
QAMENDED AND RESTATED DEVELOPMENT AGREEMENT
Between
THE CITY OF PALM DESERT, CALIFORNIA
and
THE MADISON REALTY PARTNERSHIP, LIMITED PARTNERSHIP
Dated: April 4, 1995
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TABLE OF CONTENTS
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Pages)
AMENDED
AND RESTATED DEVELOPMENT AGREEMENT . . . . . .
1
RECITALS
. .
. . . . . . . . . . . . . . . . . . .
1
1.
Definitions
. . . . . . . . . . . . . . . . .
3
1.1
Defined Terms . . . . . . . . . . . . .
3
1.2
Agency . . . . . . . . . . . . . . .
3
1.3
Building Ordinances . . . . . . . . . .
3
1.4
Development Approvals . . . . . . . . .
3
1.5
DDIA. . . . . . . . . . . . . . . . . .
3
1.6
Enacting Ordinance . . . . . . . . . . .
3
1.7
Exactions . . . . . . . . . . . . . . .
3
1.8
Existing Land Use Ordinances . . . . . .
4
1.9
Reserved . . . . . . . . . . . . . .
4
1.10
Land Use Ordinances ... . . . . . . . .
4
1.11
Mortgage . . . . . . . . . . . . . . . .
4
1.12
Precise Plan. . . . . . . . . . . . . .
5
1.13
Processing Fees . . . . . . . . . . . .
5
1.14
Project . . . . . . . . . . . . . . . .
5
1.15
Property . . . . . . . . . . . . . . . .
5
1.16
Reservations of Authority . . . . . . .
5
1.17
Certain Other Terms . . . . . . . . . .
5
2.
Effective
Date; Term; Amendment . . . . . . .
5
2.1
Effective Date . . . . . . . . . . . . .
5
2.2
Term . . . . . . . . . . . . . . . . . .
6
2.3
Amendment . . . . . . . . . . . . .
6
3.
General
Development of the Project . . . . .
6
3.1
Project . . . . . . . . . . .
6
3.2
Project Timing . . . . . . . . . .
6
3.3
Building Permits and Other Approvals and
Permits . . . . . . . . . . . .
7
3.4
Procedures; Limitations on Exactions . .
7
3.5
Effect of Agreement . . . . . . . . . .
7
3.6
Operating Memoranda . . . . . .
9
3.7
Limitations, Reservations of Authority
and Exceptions . . . . . . . . . . .
9
4.
Specific
Criteria Applicable to Development of
the
Project . . . . . . . . . . . . . . . . .
11
4.1
Applicable Ordinances . . . . . .
11
4.2
Amendment to Applicable Ordinances . . .
11
4.3
Easements; Abandonments . . . . . . . .
11
5.
Public
Benefits . . . . . . . . . . . . . . .
11
5.1
[Reserved] . . . . . . . . . . . . . . .
11
5.2
Palm Desert Redevelopment Agency . . . .
11
5.3
[Reserved) . . . . . . . . . . . . . . .
12
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5.4
(Reserved.] . . . . . . . . . . . . . .
12
6.
Review for Compliance . . . . . . . . . . . .
12
6.1
Periodic Review . . . . . . . . . . . .
12
6.2
Special Review . . . . . . . . . . . . .
12
6.3
Procedure . . . . . . . . . . .
12
6.4
Proceedings Upon Termination . . . . . .
13
6.5
Hearing on Termination . . . . . . .
13
6.6
Certificate of Agreement Compliance . .
14
7.
Permitted Delays; Supersedure by Subsequent
Laws
. . . . . . . . . . . . . . . . .
14
7.1
Permitted Delays . . . . . . . . . . . .
14
7.2
Supersedure of Subsequent Laws or
Judicial Action; Termination of the
Development Agreement . . . . . . . . .
15
8.
Default and Remedies . . . . . .
16
8.1
Remedies in General . . . .
16
8.2
Specific Performance . . . . . . . . . .
16
8.3
Release . . .
17
8.4
Termination for Default of Developer
17
8.5
Termination of Agreement for Default of
City. . . . . . . . . . . . . . . . . .
17
8.6
Effect of Termination . . . . . . . . .
18
8.7
Effect of Termination of DDIA . . . . . .
18
9.
Third Party Litigation . . . . . . . . . . .
18
9.1
General Plan Litigation . . . . . . . .
18
9.2
[Reserved] . . . . . . . . . . . . . . .
19
9.3
Indemnity . . . . . . . . . . . . . . .
19
9.4
Environmental Contamination . . . . . .
19
9.5
City to Approve Counsel . . . . .
19
9.6
Accept Reasonable Good Faith Settlement
20
9.7
survival . . . .
20
10.
Mortgagee Protection; Certain Rights of Cure
20
10.1
Mortgagee Not Obligated . . . . . . . .
20
10.2
Notice of Default; Right to Cure . . . .
20
10.3
Bankruptcy . . . . . . . . . . . . .
21
10.4
Estoppel Certificates . . . . . . . . .
21
11.
Transfers and Assignments; Effect of Agreement
on Title . . . . . . . . . . . . . . .
22
11.1
Rights and Interests Appurtenant . . . .
22
11.2
Transfer . . . . . . . .
22
11.3
Termination of Agreement with Respect to
Property . . . . . . . . . . . . . .
25
11.4
Covenants Run with Land . . . . . . . .
26
12.
Notices . . . . . . . . . . . . . . . . . . .
26
13.
Miscellaneous . . . . . . . . . . . . . . . .
27
13.1
Relationship of Parties . . . . . . . .
27
13.2
Consents . . . . . . . . . . . . . .
27
13.3
Not a Public Dedication . . . . . . . .
28
13.4
Severability . . . . . . . . . . . . . .
28
13.5
Exhibits . . . . . . . . . . . . . . . .
28
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13.6 Entire Agreement . . . . . . . 28
13.7 Governing Law; Construction of
Agreement . . . . . . . . . . . . . . 29
13.8 Signature Pages . . . . . . . . . . . . 29
13.9 Time . . . . . . . . . . . . . . . . . . 29
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LIST OF EXHIBITS
Exhibit
Designation Description
A The Project
B The Property
C The Phasing Schedule
D The Exactions
E [Reserved]
F The Disposition, Development and
Implementation Agreement
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AMENDED AND RESTATED DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (the
"Agreement") is made and entered into as of this 4th day of April,
1995, by and between the City of Palm Desert, California,
a municipal corporation organized and existing under the laws of
the State of California ("City"), and The Madison Realty
Partnership, Limited Partnership, a Delaware limited partnership,
("Developer").
1 - L
This Agreement is entered into on the basis of the
following facts, understandings and intentions of the parties:
A. Government Code Sections 65864 through 65869.5
inclusive (the "Development Agreement Legislation") authorize City
to enter into development agreements in connection with the
development of real property within its jurisdiction. On
August 11, 1983, City enacted by Ordinance No. 341, as amended on
December 7, 1989 by Ordinance No. 589 (collectively, the
"Development Agreement Ordinance"), establishing the procedures and
requirements for the consideration of development agreements
thereunder pursuant to the Development Agreement Legislation.
B. The Developer is the holder of a legal or equitable
interest in the Property (as defined in Section 1.15 below) and is
entitled to have filed the application for and to enter into this
Agreement. The Developer has entered into that certain Option
Agreement and Joint Escrow Instructions (as heretofore and
hereafter amended, the "Purchase Agreement") with respect to the
Property dated as of May 20, 1994, between Developer, as purchaser
and ACD2 , a California corporation S"ACD 211) (the successor in
interest to Ahmanson Commercial Development Company ("ACD"),
a California corporation, which was the "Developer" of the Property
under the Development Agreement (as defined below)), as seller.
C. The City and ACD have previously entered into that
certain Development Agreement dated May 1, 1990 and recorded in the
Office of the County Recorder of Riverside County, California on
June 20, 1990 as Instrument No. 227140 (the "Development
Agreement"), which Development Agreement relates in part to and
benefits the Property and the Project (as defined in Section 1.14
hereof) and by which the City has acknowledged that the development
of the Property and the Project as set forth therein is consistent
with and in furtherance of the development goals and policies of
the City. As of the Effective Date (as hereinafter defined), the
terms and conditions of the Development Agreement which are not
included in this Agreement shall have no force or effect upon, and
shall not be binding upon, Developer or the Property; provided,
however, that in any event the Development Agreement shall remain
in full force and effect with respect to all properties, other than
the Property, which are subject thereto.
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D. Pursuant to the Purchase Agreement, Developer
agreed to purchase the Property from ACD 2, and also agreed to
assume and accept all of the obligations, duties, rights and
interests which relate to the Property under the Development
Agreement, as such obligations, duties, rights and interests are
hereinafter set forth in this Agreement.
E. The Project consists of the development of the
Property. The Project will require a major investment by the
Developer in public facilities and a substantial investment by the
Developer in on -site and off -site improvements. The Project has
been analyzed and reviewed by the City in light of the land use
standards and policies embodied in the Existing Land Use Ordinances
(as defined in Section 1.8 below).
F. The City has determined that the development of the
Project as contemplated by this Agreement is consistent with and in
furtherance of the development goals and policies of the City as
set forth in the City's General Plan and the existing Palm Desert
Commercial Core Area Specific Plan ("Specific Plan") initially
adopted by the City on July 23, 1987 (and as thereafter amended),
and the objectives, policies, general land use and development
programs set forth therein.
G. City has determined that the execution of this
Agreement by the City and the Developer will further the goals and
objectives of the City's land use planning policies by, among other
things, eliminating uncertainty in planning for and securing
orderly development of the Project, so that adequate long-term
plans regarding the provision of necessary infrastructure can be
developed and implemented, and ensuring the maximum effective
utilization of resources within the City at the least feasible
economic cost to its citizens. The benefits conferred on City by
Developer herein will (i) facilitate the installation of certain
vital public improvements; (ii) improve traffic circulation
patterns within the City; and (iii) further the development
objectives of the City in an orderly manner, all of which will
significantly promote the health, safety and welfare of the
residents of the City. In exchange for these benefits to the City,
Developer desires to receive the assurance that it may proceed with
the Project in accordance with the Existing Land Use Ordinances (as
defined in Sections 1.8 below) and at a rate of development of its
choosing, subject to the terms and conditions contained in this
Agreement.
H. In order to effectuate the foregoing, the parties
desire to enter into this Agreement in order to amend and restate
in its entirety the Development Agreement with respect to the
Property.
NOW, THEREFORE, pursuant to the authority contained in
the Development Agreement Legislation, and in consideration of the
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mutual covenants and promises of the parties herein contained, the
parties agree as follows:
1. Definitions.
1.1 Defined Terms. Each reference in this Agreement to
any of the following terms shall have the meaning set forth below
for each such term.
1.2 Agency. The Palm Desert Redevelopment Agency
1.3 Buildinq Ordinances. Those building standards, of
general and uniform application throughout the City and not imposed
solely with respect to the Property, in effect from time to time
that govern building and construction standards within the City,
including, without limitation, the City's building, plumbing,
electrical, mechanical, grading, sign, and fire codes.
1.4 Development Approvals. All permits and other
entitlements issued or approved by City for development and/or use
of the Property including, but not limited to:
(a) General plan amendment;
(b) Specific plans and specific plan amendments;
(c) Zoning;
(d) Tentative and final subdivision and parcel maps;
(e) Conditional use permits;
(f) Design review approvals;
(g) Grading and building permits;
(h) Precise Plans.
"Development Approvals" specifically do not include this Agreement.
1.5 DDIA. That certain Amended and Restated Disposition,
Development and Implementation Agreement of even date herewith,
between the Agency and the Developer and pertaining to the Project,
and attached hereto as Exhibit F.
1.6 Enacting Ordinance. Ordinance No. 764, enacted by
the City Council on December 8, 1994, approving this Agreement.
1.7 Exactions. All exactions, in -lieu fees or payments,
assessments, dedication or reservation requirements, obligations
for on -site or off -site improvements, construction requirements for
public improvements, facilities, or services called for in
connection with the development of or construction on the Property,
whether such requirements constitute subdivision improvements, any
conditions of approval relating to any fees, charges, or dedica-
tions imposed by the Subdivision Map Act or any implementing local
ordinance or any Development Approval, mitigation measures in
connection with environmental review of any project, or impositions
made under any applicable ordinance or in order to make a project
approval consistent with the City's General Plan. Exactions do not
include Processing Fees.
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1.8 Existing Land Use Ordinances. The Land Use
Ordinances in effect as of May 1, 1990.
1.9 Reserved.
1.10 Land Use Ordinances. The ordinances, resolutions,
codes, rules, regulations and official policies of City,
(including, without limitation, the City General Plan and the
Specific Plan) legally adopted in accordance with all applicable
laws, governing the development of the Property, including, without
limitation, the permitted use of land, the density or intensity of
use, subdivision requirements, the maximum height and size of
proposed buildings, the provisions for reservation or dedication of
land for public purposes and all Exactions, the timing of
development, and the design, improvement and construction and
initial occupancy standards and specifications applicable to the
development of the Property as they may be modified by the
Development Approvals. "Land Use Ordinances" do not include any
City resolution, code, rule, regulation or official policy
governing:
(a) The conduct of businesses, professions, and
occupations;
(b) Other than as provided in this Agreement, taxes
and assessments of general application upon all residents of the
City, provided that the taxes and assessments are not imposed for
the purpose of taxing the right, power or privilege of developing
or improving land (e.g. excise tax), or to directly finance the
construction or maintenance of any public improvement in respect of
which Developer is paying any fee or providing any improvement
pursuant to this Agreement or the DDIA—yea€; or
(c) The control and abatement of nuisances; or
(d) The granting of encroachment permits and the
conveyance of rights and interests which provide for the use of or
the entry upon public property; or
(e) The exercise of the power of eminent domain.
1.11 Mortgage. Any mortgage, deed of trust, sale and
leaseback or other form of conveyance or encumbrance for financing
for the purpose of securing loans of funds to be used for financing
the direct and indirect costs (including, without limitation,
financing costs, interest and commissions, and the refinancing of
any equity investment by Developer) of acquiring, designing,
constructing, developing, leasing and operating the Property or the
improvements to be constructed thereon, or any portion thereof,
pursuant to this Agreement, including any collateral assignment of
this Agreement to a Mortgagee (as hereinafter defined). As used
herein, "Mortgage" includes all commercially reasonable modes of
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financing real estate acquisition, construction, or land
development.
1.12 Precise Plan. The plan of development for the
Property, consistent with this Agreement and Exhibit A attached
hereto, which shall be submitted by Developer prior to the
commencement of construction on the Property for the City's
approval in accordance with the terms of this Agreement. The
Precise Plan shall comply with City Municipal Code Section
25.73.011 and shall include such information as may be reasonably
required by the City in accordance with the City's requirements for
precise plans for projects of a similar type as the Project.
1.13 Processing Fees. The normal and customary
application, filing, plan check, land use approval, design review,
building and other similar permit entitlement, and inspection
fees; which fees are charged to reimburse the City's expenses
attributable to such applications, processing, permitting, review
and inspections, and which are in force and effect on a general
basis at such time as said approvals, permits, review, inspections
or entitlements are granted or conducted by City.
1.14 Project. The commercial/retail development and
associated amenities, and on -site and off -site improvements, as
described in Exhibit A, intended to be constructed on the Property,
as the same may hereafter be further refined, enhanced or modified
pursuant to the provisions of this Agreement.
1.15 Property. That real property which is described in
Exhibit B.
1.16 Reservations of Authority. The rights and authority
excepted from the assurances and rights provided to Developer under
this Agreement and expressly reserved to City underSections 3.5 and
3.7 of this Agreement.
1.17 Certain Other Terms. Certain other terms shall have
the meanings set forth for such terms in this Agreement.
2. Effective Date: Term: Amendment.
2.1 Effective Date. This Agreement has been entered
into by the parties as of the date and year first above written
(the "Execution Date") This Agreement shall become effective on the
date on which the Developer acquires the Property from ACD2
pursuant to the Purchase Agreement (the "Effective Date").
Notwithstanding the foregoing, if the Effective Date shall not have
occurred prior to the date which is six (6) months from the
Execution Date, then this Agreement shall be null and void, ab
initio, and shall terminate automatically. In such event, the
Development Agreement shall remain in full force and effect and the
Property shall continue to be subject to the benefits and
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obligations of the Development Agreement as they existed on the
Execution Date.
2.2 Term. The term of this Agreement (the "Term") shall
commence on the Effective Date and shall terminate on May 1, 2000,
unless sooner terminated or extended as hereinafter provided.
2.3 Amendment. The parties to this Agreement at their
sole discretion and by their mutual written consent may from time
to time amend the provisions and terms of this Agreement and the
Exhibits. Any amendment to this Agreement or the Exhibits as
provided herein shall be effected only upon compliance with the
procedures for amendment, if any, required by the Development
Agreement Legislation and the Development Agreement Ordinance. The
City shall, after any such amendment takes effect, cause an
appropriate notice of such amendment to be recorded in the official
records of the County of Riverside. The cost of such recordation
shall be borne equally by the parties to this Agreement.
3. General Development of the Project.
3.1 Project.
(a) The Project is defined and described in
Exhibit A, which specifies for the purposes of this Agreement all
of the following aspects of the Project: (i) proposed uses of the
Property, (ii) the maximum height and square footage of buildings
to be constructed on the Property, (iii) density and intensity of
use of the Property, (iv) requirements for the construction or
provision of on -site and off -site improvements; and (v) require-
ments for reservation or dedication of portions of the Property for
public purposes.
(b) Except as otherwise expressly provided in
Exhibit A and further provided in Section 4.2 below, Developer
shall have the right to develop the Project in accordance with, and
development of the Project during the Term shall be governed by,
the Existing Land Use Ordinances, subject to the Reservations of
Authority. However, Developer shall not be obligated to develop
the Project.
3.2 Project Timing. The parties acknowledge that
Developer cannot at this time predict when or the rate at which the
Project will be developed. Such decisions depend upon numerous
factors which are not within the control of Developer, such as
market orientation and demand, interest rates, competition and
other similar factors. Therefore, the parties hereto acknowledge
and expressly agree that Developer is hereby granted by the City
the vested and guaranteed right to develop the Project in such
manner and at such rate and at such times as Developer deems
appropriate within the exercise of its sole subjective business
judgment. Therefore, City expressly agrees that Developer shall be
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entitled to apply for maps, building permits, occupancy certifi-
cates and other entitlement for its use at any time, provided that
such application is made in accordance with the Existing Land Use
Ordinances, subject to the Reservations of Authority, and that the
development and/or construction of the Project contemplated or
authorized by such maps, building permits, occupancy permits and
other entitlement is otherwise in conformity therewith.
3.3 Building Permits and Other Approvals and Permits.
Subject to (a) Developer's compliance with this Agreement, the
Existing Land Use Ordinances and the Building Ordinances, and
(b) payment of Processing Fees, City shall process and issue to
Developer promptly upon application therefor all necessary use
permits, building permits, occupancy certificates, and other
required permits for the construction, use and occupancy of the
Project, or any portion thereof, as applied for, including
connection to all utility systems under the City's jurisdiction and
control (to the extent that such connections are physically
feasible and that such utility systems are capable of adequately
servicing the Project).
3.4 Procedures; Limitations on Exactions. The standards
for granting or withholding permits or approvals required hereunder
in connection with the development of the Project shall be governed
as provided herein by the standards, terms and conditions of this
Agreement and the Exhibits hereto, and to the extent not incon-
sistent therewith, the Existing Land Use Ordinances (subject to
Reservations of Authority), but the procedures for processing
applications for such permits or approvals (including the
Processing Fees) shall be governed by such ordinances and regula-
tions as may then be applicable. Notwithstanding the foregoing, or
anything to the contrary otherwise contained herein, there shall
not, except as otherwise specifically provided herein, be imposed
upon the Project any Exactions other than those set forth in
Exhibit D, nor shall the fees and charges constituting Exactions
exceed those set forth in Exhibit D (to the extent set forth in
Exhibit D) or those charged pursuant to the Existing Land Use
Ordinances (to the extent not set forth in Exhibit D).
3.5 Effect of Agreement. This Agreement shall consti-
tute a part of the Enacting Ordinance, as if incorporated by
reference therein in full. The parties acknowledge that this
Agreement is intended to grant Developer the right to develop the
Project pursuant to specified and known criteria and rules as set
forth in Exhibit A and the Existing Land Use Ordinances, subject to
the Reservations of Authority, and to grant City and the residents
of the City certain benefits which they otherwise would not
receive.
This Agreement shall be binding upon the City and its
successors in accordance with and subject to its terms and
conditions notwithstanding any subsequent action of the City,
whether taken by ordinance or resolution of the City Council, by
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initiative, or otherwise. The parties acknowledge and agree that
by entering into this Agreement and relying thereupon, the
Developer has obtained, subject to the terms and conditions of this
Agreement, a vested right to proceed with its development of the
Project in accordance with the proposed uses of the Property, the
maximum height and size of buildings to be constructed on the
Property, the density and intensity of use of the Property and the
requirements for the construction or provision of on -site and off -
site improvements and the reservation or dedication of land for
public use, if and to the extent set forth in Exhibit A, and in
accordance with the Existing Land Use Ordinances, subject to the
Reservations of Authority, and the City has entered into this
Agreement in order to secure the public benefits conferred upon it
hereunder which are essential to alleviate current and potential
problems in the City and to protect the public health, safety and
welfare of the City and its residents, and this Agreement is an
essential element in the achievement of those goals.
The parties acknowledge that: (a) the City has entered
into this Agreement pursuant to the Development Agreement
Legislation and its police power in order to address public health
and safety and general welfare concerns including those relating to
the amount, density, intensity and timing of development within the
Property and the need for public facilities and infrastructure in
connection with the Property and other property in the area; and
(b) as, and to the extent contemplated in the Development Agreement
Legislation, there is certain authority under the police power to
address public health and safety concerns that cannot be legally
relinquished or restricted by this Agreement, and the City
subsequent to the Effective Date may exercise such authority by the
adoption of rules, regulations, and policies which may be
applicable to the Project and/or the Property, but which do not
conflict with the terms and intent of this Agreement as determined
in the manner and in accordance with the standards set forth below.
For the purposes of this Agreement any such rule, regulation or
policy shall not be deemed to conflict with the terms and intent of
this Agreement if the same does not:
(i) modify the permitted types of land uses, the
density or intensity of use, the maximum height or size of proposed
buildings on the Property, or impose requirements for the
construction or provision of on -site or off -site improvements or
the reservation or dedication of land for public use, or the
payment of fees or the imposition of Exactions, other than as are
in each case specifically provided for in this Agreement; or
(ii) prevent the Developer from obtaining all
necessary approvals, permits, certificates or other entitlements at
such dates and under such circumstances as the Developer would
otherwise be entitled under this Agreement; or
(iii) prevent or inhibit the Developer from
commencing, prosecuting and finishing on a timely basis the
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construction and development of the Project and the satisfaction of
its obligations hereunder in the manner and as contemplated by this
Agreement; or
(iv) increase the cost of the construction or
development of the Project, or the construction or provision of any
public improvements to be provided by the Developer as contemplated
herein, or the reservation or dedication of land for public
purposes, or increase the cost of selling, financing or leasing the
Project or any portion thereof.
3.6 Operating Memoranda. Developer and City
acknowledge that the provisions of the Agreement require a close
degree of cooperation between Developer and City, and that
refinements and further development of the Project may demonstrate
that changes or additional provisions are appropriate with respect
to the details of performance of the parties under the Agreement in
order to effectuate the purpose of the Agreement and the intent of
the parties with respect thereto. If and when, from time to time,
the parties find that such changes or additional provisions are
necessary or appropriate, and subject to the provisions of the next
succeeding sentence, they shall confer in good faith with respect
to such changes or provide for such additional provisions through
operating memoranda to be considered in good faith by the parties,
which, if approved, shall be attached hereto as addenda and become
a part hereof, and may be further changed or supplemented from time
to time as necessary, with further good faith approval of Developer
and City. Upon receipt by the City of an opinion of the City
Attorney to the effect that the subject matter of such operating
memoranda does not require the amendment of this Agreement in the
manner provided in Section 65868 of the California Government Code,
then no such operating memoranda shall require prior notice or
hearing, or constitute an amendment to this Agreement; and in the
case of City such operating memoranda may be acted upon by its
Community Development Director. Failure of the parties to enter
into any such operating memoranda shall not affect or abrogate any
of the rights, duties or obligations of the parties hereunder or
the provisions of this Agreement.
3.7 Limitations, Reservations of Authority and
Exceptions. Notwithstanding any other provision of this Agreement
to the contrary including, without limitation, Sections 3.1 through
3.5 hereof, the development of the Property shall be subject to the
exercise of the City's continuing authority with respect to the
following:
(a) Processing Fees imposed by City to cover the
estimated or actual costs to City of processing applications for
Development Approvals, or for monitoring compliance with any
Development Approvals granted or issued, which fees are charged to
reimburse the City's expenses attributable to such Development
Approvals and which are in force and effect on a general basis at
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such time as the Development Approvals are granted or considered
by City.
(b) Procedural regulations relating to hearing
bodies, petitions, applications, notices, findings, records,
hearings, reports, recommendations, appeals and any other matter of
procedure.
(c) Any and all uniform codes and regulations
governing the engineering and construction of private or public
improvements adopted by the City. Such codes include without
limitation, the City's Uniform Housing Code, Building Code,
Plumbing Code, Mechanical Code, Electrical Code, Fire Code and
Building Security Code. City agrees that such codes and
regulations, shall be those uniformly applied on a City-wide basis
to all development projects of a similar type as the Project.
(d) Regulations which are reasonably necessary to
protect the residents of the Project or of the immediate community,
or both, from a condition perilous to_their health or safety, or
both; provided, however, the following shall apply:
(i) That to the extent possible, such
regulations shall be applied and construed so as to provide
Developer with the rights and assurances provided in this
Agreement; and
(ii) That such regulations apply uniformly to
all new development projects of a similar type as the Project
within the City; and
(iii) That the City Council finds, based on
substantial evidence, that such regulations are necessary to
eliminate or reduce a public danger perilous to the health or
safety of the residents of the Project or of the immediate
community.
(e) Regulations which do not conflict with the
terms and intent of this Agreement.
(f) Regulations which are in conflict with the
terms and intent of this Agreement, provided Developer has given
written consent to the application of such regulations to
development of the Property.
The provisions of this Section 3.7 shall supplement, not
limit, the police powers of the City as described in Section 3.5
hereof.
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4. Specific Criteria Applicable to Development of the
Project.
4.1 Applicable Ordinances. Except as set forth in
Exhibit A and subject to the provisions of Section 4.2 below and
the Reservations of Authority, the Existing Land Use Ordinances
shall govern the development of the Property hereunder and the
granting or withholding of all permits or approvals required to
develop the Property.
4.2 Amendment to Applicable Ordinances. In the event
that the Palm Desert zoning ordinance is amended by the City in a
manner which provides more favorable site development standards
than those in effect as of the Effective Date, Developer shall have
the right to notify the City in writing of its request to be
subject to all or any such new standards for the remaining term of
this Agreement. If City approves such request, which approval
shall be in the City's reasonable discretion, by resolution of the
City Council or by action of a City official whom the City Council
may designate, such new standards shall become applicable to the
Property. Should City thereafter amend such new standards, upon
the effective date of such amendment, the original new standards
shall continue to apply to the Property as provided above, but
Developer may notify City in writing of its desire to be subject to
all or any such amended new standards and City may agree in the
manner above provided to apply such amended new standards to the
Property.
4.3 Easements; Abandonments. City shall cooperate with
Developer, at Developer's sole cost, expense and liability, in
connection with any arrangements for abandoning existing utility or
other easements and the relocation thereof or creation of any new
easements within the Property necessary or appropriate in
connection with the development of the Project; and if any such
easement is owned by City, City shall at the request of Developer
and in the manner and to the extent permitted by law, process and
consider such action as may be necessary to abandon existing
easements and relocate them, as necessary or appropriate in
connection with the development of the Project, all at the cost and
expense of the Developer.
5. Public Benefits.
5.1 (Reserved]
5.2 Palm Desert Redevelopment Agency. Developer and
City acknowledge that the DDIA provides for certain terms,
conditions and requirements with respect to the construction of the
Minimum Improvements (as defined in the DDIA) by the Developer and
the payment to Developer by the Agency of the Purchase Price (as
defined in the DDIA) for the Parking Rights (as defined in the
DDIA). City and Developer agree that the payment to Developer of
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the Purchase Price shall be controlled in all respects by said
DDIA and that in the event of any inconsistency between the
provisions thereof and of this Agreement in connection with such
payment, the provisions of the DDIA shall be deemed to control.
City agrees that the performance by the Developer of its
obligations under said DDIA shall constitute the performance and
satisfaction of its corresponding obligations hereunder.
5.3 (Reserved]
5.4 (Reserved.]
6. Review for Compliance.
6.1 Periodic Review. The City shall review this
Agreement annually, on or before the anniversary of the Effective
Date (the "Anniversary Date"), in order to ascertain the good faith
compliance by Developer with the material terms of this Agreement.
Developer shall submit to the Planning Director an annual
monitoring report, in a form reasonably acceptable to the City, not
less than thirty (30), nor more than sixty (60), days prior to each
Anniversary Date. The annual monitoring report shall set forth
Developer's good faith compliance with the material terms and
conditions of this Agreement and shall be accompanied by an annual
review and administration fee. The annual review and
administration fee shall be in an amount consistent with then -
existing City fee schedules and resolutions pertaining to the
City's monitoring program for development agreements. Neither City
nor Developer shall have a duty to notify the other of their
respective obligations hereunder and the City's failure to so
conduct such annual reviews shall not affect the rights,
protection, and benefits afforded Developer by the Development
Agreement Legislation and this Agreement.
6.2 Special Review. The Planning Commission or City
Council, upon a finding on the basis of reasonable evidence that
there exists a reasonable basis upon which to conclude that the
Developer may not be in compliance with the material terms and
conditions of this Agreement, may order the Planning Director to
conduct a special review of the Developer's compliance with the
material terms of this Agreement at any time.
6.3 Procedure.
(a) During either a periodic review or a special
review, Developer shall be required to demonstrate good faith
compliance with the material terms of this Agreement. The burden
of proof on this issue shall be on Developer.
(b) Upon completion of a periodic review or a
special review, the Planning Director or his or her designee shall
submit a report to the Planning Commission setting forth the
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evidence concerning good faith compliance by Developer with the
material terms of this Agreement, and his/her recommended finding
on that issue.
(c) If the Planning Commission, upon receipt and
review of the Planning Director's report, finds on the basis of
substantial evidence that Developer has complied in good faith with
the material terms of this Agreement, the review shall be
concluded.
(d) If the Planning Commission, upon recept and
review of the Planning Director's report, makes a preliminary
finding that Developer has not complied in good faith with the
material terms of this Agreement, the Planning Commission may
commence proceedings to terminate this Agreement under Sections 6.4
and 6.5 hereof. Notice of default and the opportunity to cure as
provided under Section 8.4 of this Agreement shall be given to
Developer prior to the commencement of proceedings under Section
6.4 and Section 6.5.
(e) Failure to comply with the material terms of
this Agreement by reason of any facts or circumstances described in
Section 7.1 hereof shall not constitute a failure of good faith
compliance by the Developer with the material terms of this
Agreement. Notwithstanding the foregoing, however, the inability
of Developer to obtain or maintain financing necessary for the
development of the Project shall not be deemed an excuse for the
Developer's failure to comply with the material terms of this
Agreement.
6.4 Proceedings Upon Termination. If, upon a finding
under Section 6.3(d) and the expiration of the cure period provided
in Section 8.4, the Planning Commission determines to proceed with
termination of this Agreement, the Planning Commission shall give
written notice to Developer of its intention to conduct a public
hearing as provided in Section 6.5 hereof. The notice shall be
given at least thirty (30) calendar days prior to the scheduled
hearing and shall contain:
(a) The time and place of the hearing;
(b) A statement as to whether or not the Planning
Commission proposes to terminate the Agreement; and,
(c) Such other information as is reasonably
necessary to inform Developer of the nature of the proceeding and
the factual basis for the Planning Commission's conclusion that
Developer has not substantially complied with the material terms
and conditions of this Agreement.
6.5 Hearing on Termination. At the time and place set
for the hearing on termination, Developer shall be given an
opportunity to be heard. Developer shall be required to demon-
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strate good faith compliance with the material terms of this
Agreement. The burden of proof on this issue shall be on
Developer. If the Planning Commission finds, based upon substan-
tial evidence, that Developer has not complied in good faith with
the material terms of this Agreement and has failed to cure or
commence to cure any such default as provided in Section 8.4
hereof, the Planning Commission may terminate this Agreement.
Developer may appeal any determination of the Planning Commission
made pursuant to this Section 6.5 to the City Council in accordance
with the then -existing provisions of the City Municipal Code for
appeals of decisions of the Planning Commission to the City
Council. The decision of the City Council shall be based on the
record made before the Planning Commission and any additional
evidence Developer may introduce at the hearing before the City
Council. The decision of the City Council shall be final, subject
to judicial review. Developer shall have the right to cure any
default as provided in Section 8.4 hereof following any judicial
decision upholding any City Council decision made pursuant to this
Section 6.5; provided however, that not withstanding Section 7.4
hereof to the contrary, the Term of this Agreement shall not be
extended for the pendency of such judicial action or proceeding if
such judicial decision upholds the decision of the City Council.
6.6 Certificate of Agreement Compliance. If, at the
conclusion of a Periodic or Special Review, Developer is found to
be in compliance with this Agreement, City shall, upon request by
Developer, promptly issue a Certificate of Agreement Compliance
("Certificate") to Developer stating that after the most recent
Periodic or Special Review and based upon the information known or
made known to the Planning Commission and City Council that (1)
this Agreement remains in effect and (2) Developer is in compliance
with the terms and provisions thereof. The Certificate shall be in
recordable form, shall contain information necessary to communicate
constructive record notice of the finding of compliance, shall
state whether the certificate is issued after a Periodic or Special
Review, and shall state the anticipated date of commencement of the
next Periodic Review. Developer may record the Certificate with
the County Recorder.
Whether or not the Certificate is relied upon by
assignees or other transferees or Developer, City shall not be
bound by a Certificate if a default existed at the time of the
Periodic or Special Review, but was concealed from or otherwise not
known to the City.
7. Permitted Delays; Supersedure by Subsequent Laws.
7.1 Permitted Delays. In addition to any other
provisions of this Agreement with respect to delay, Developer and
City shall be excused from performance of their obligations
hereunder during any period of delay caused by acts of God or civil
commotion, riots, strikes, picketing, or other labor disputes,
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shortage of materials or supplies, or damage to or prevention of
work in process by reason of fire, floods, earthquake, or other
casualties, litigation, acts, neglect, or breach of this Agreement
by the other party, any referendum elections held on the Enacting
Ordinance or the Land Use Ordinances, or any other ordinance
affecting the Project or the approvals, permits or other entitle-
ment related thereto, or restrictions imposed or mandated by
governmental or quasi -governmental entities (provided that the City
shall not be excused from performance by reason of the foregoing if
such ordinance or restriction was enacted by or otherwise insti-
tuted by the City, unless the City was authorized by this Agreement
to impose or enact such ordinance or restriction), enactment of
conflicting provisions of the Constitution or laws of the United
States of America or the State of California or any codes,
statutes, regulations or executive mandates promulgated thereunder
(collectively, "Laws"), orders of courts of competent jurisdiction,
or any event or circumstance giving rise to a permitted delay under
the terms of the DDIA (to the extent that the Developer's
performance under this Agreement is impacted thereby) , or any other
cause similar or dissimilar to the foregoing beyond the reasonable
control of City or Developer, as applicable. Each party shall
promptly notify the other party of any delay hereunder as soon as
possible after the same has been ascertained. The time of
performance of such obligations, and, at Developer's request, the
Term of this Agreement, shall be extended by the period of any
delay hereunder. Notwithstanding anything in this Agreement to the
contrary, the inability of Developer to obtain or maintain
financing necessary for the development of the Project shall not be
cause for an extension of time for performance or of the Term of
this Agreement.
7.2 Supersedure of Subsequent Laws or Judicial Action;
Termination of the Development Agreement. The provisions of this
Agreement shall, to the extent feasible, be modified or suspended
as may be necessary to comply with any new Law or decision issued
by a court of competent jurisdiction (a "Decision"), enacted or
made after the Effective Date which prevents or precludes compli-
ance with one or more provisions of this Agreement. Immediately
after enactment of any such new Law, or issuance of such Decision,
the parties shall meet and confer in good faith to determine the
feasibility of any such modification or suspension based on the
effect such modification or suspension would have on the purposes
and intent of this Agreement. In addition, Developer and City
shall have the right to challenge the new Law or the Decision
preventing compliance with the terms of this Agreement. In the
event that such challenge is successful, this Agreement shall
remain unmodified and in full force and effect, except that the
Term shall be extended, in accordance with Section 7.1 above, for
a period of time equal to the length of time the challenge was
pursued.
If, following such meetings with the City or the failure
of any challenge to such new Law or Decision by either the City or
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Developer, the Developer determines in its sole reasonable business
judgement that a modification or suspension of the terms or
conditions of this Agreement is infeasible, the Developer shall
have the right to terminate this Agreement by giving written notice
to the City.
Subject to the Reservations of Authority, nothing set
forth in this Article 7 shall be construed to permit the City to
enact a Law which conflicts with the terms or intent of this
Agreement.
8. Default and Remedies.
8.1 Remedies in General. It is acknowledged by the
parties that City would not have entered into this Agreement if it
were to be liable in damages under this Agreement, or with respect
to this Agreement or the application thereof, except as otherwise
expressly provided herein.
In general, each of the parties hereto may pursue any
remedy at law or equity available for the breach of any provision
of this Agreement, except that neither party shall be liable in
damages, including, without limitation, attorneys' fees and
litigation costs, to the other party, or to any successor in
interest of the other party, or to any other person, except as
otherwise expressly provided in this Section 8.1, and each party
covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any
cause of action which arises out of this Agreement; or
(b) For the impairment or restriction of any right
or interest conveyed or provided under, with, or pursuant to this
Agreement; or
(c) Arising out of or connected with any dispute,
controversy or issue regarding the application or interpretation or
effect of the provisions of this Agreement.
Nothing contained herein shall modify or abridge
Developer's rights or remedies (including its rights for damages,
if any) resulting from the exercise by City of its power of eminent
domain.
8.2 Specific Performance. The parties acknowledge that
money damages and remedies at law generally are inadequate, and
specific performance and other non -monetary relief, including
temporary and permanent injunctive relief and mandamus, are
particularly appropriate remedies for the enforcement of this
Agreement and should be available to all Parties for the following
reasons:
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(a) Money damages are unavailable against either
party, except as provided in Section 8.1 above.
(b) Due to the size, nature and scope of the
Project, it may not be practical or possible to restore the
Property to its natural condition once implementation of this
Agreement has begun. After such implementation, Developer may be
foreclosed from other choices it may have had to utilize the
Property or portions thereof. Developer has invested significant
time and resources and performed extensive planning and processing
of the Project in agreeing to the terms of this Agreement and will
be investing even more significant time and resources in
implementing the Project in reliance upon the terms of this
Agreement, and it is not possible to determine the sum of money
which would adequately compensate Developer for such efforts; the
parties acknowledge and agree that any injunctive relief may be
ordered on an expedited, priority basis.
8.3 Release. Except for nondamage remedies, including
the remedy of specific performance and judicial review as provided
for in Section 6.5, Developer, for itself, its successors and
assignees, hereby releases the City, its officers, agents and
employees from any and all claims, demands, actions, or suits or
any kind or nature arising out of any liability, known or unknown,
present or future, including, but not limited to, any claim or
liability, based or asserted, pursuant to Article I, Section 19 of
the California Constitution, the Fifth Amendment of the United
States Constitution, or any other law or ordinance which seeks to
impose any other liability or damage, whatsoever, upon the City
because it entered into this Agreement .
8.4 Termination for Default of Developer. City may
terminate this Agreement for any failure of Developer to perform
in good faith any material duty or obligation of Developer under
this Agreement, or to comply in good faith with the material terms
of this Agreement (hereinafter referred to as "default"); provided,
however, City may terminate this Agreement only after providing
written notice to Developer of default setting forth the nature of
the default and the actions, if any, required by Developer to cure
such default and, where the default can be cured, Developer has
failed to take such actions and cure such default within sixty (60)
days after the effective date of such notice or, in the event that
such default cannot be cured within such sixty (60) day period but
can be cured within a longer time, has failed to commence the
actions necessary to cure such default within such sixty (60) day
period and to diligently proceed to complete such actions and cure
such default. The review and hearing procedures set forth in
Section 6 hereof are a condition precedent to the City's ability to
terminate this Agreement pursuant to this Section 8.4.
8.5 Termination of Agreement for Default of City.
Developer may terminate this Agreement only in the event of a
default by City in the performance of a material term of this
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Agreement and only after providing written notice to City of
default setting forth the nature of the default and the actions,
if any, required by City to cure such default and, where the
default can be cured, City has failed to take such actions and cure
such default within sixty (60) days after the effective date of
such notice or, in the event that such default cannot be cured
within such sixty (60) day period but can be cured within a longer
time, has failed to commence the actions necessary to cure such
default within such sixty (60) day period and to diligently proceed
to complete such actions and cure such default.
8.6 Effect of Termination. Termination of this
Agreement by one party due to the other party's default shall not
affect any right or duty emanating from any approvals, permits,
certificates or other entitlements with respect to the Property or
the Project which were issued, approved or provided by the City
prior to the date of termination of this Agreement. If City
terminates this Agreement because of Developer's default, then City
shall retain any and all benefits, including money, land or
improvements conveyed to or received by the City prior to the date
of termination of this Agreement. If Developer terminates this
Agreement because of City's default or pursuant to Section 8.7
hereof, then Developer shall be entitled to all of the benefits
arising out of, or approvals, permits, certificates or other
entitlements on account of, any Exactions paid, given or dedicated
to, or received by, City prior to the date of termination of this
Agreement. Except as provided in this Section 8.6 or otherwise in
this Agreement, all of the rights, duties and obligations of the
parties hereunder shall otherwise cease as of the date of the
termination of this Agreement.
If this Agreement is terminated pursuant to any provision
hereof, then the City shall, after such action takes effect, cause
an appropriate notice of such action to be recorded in the official
records of the County of Riverside. The cost of such recordation
shall be borne by the party causing such action.
8.7 Effect of Termination of DDIA. No termination of
the DDIA shall terminate this Agreement unless the cause for
termination of the DDIA is likewise cause for termination of this
Agreement, as provided herein; provided, however, that Developer
shall have the right to terminate this Agreement without cost or
liability to the City or Developer if the DDIA is terminated.
9. Third Party Litigation.
9.1 General Plan Litigation. City has determined that
this Agreement is consistent with its Comprehensive General Plan,
herein called General Plan, and that the General Plan meets all
requirements of law. Developer has reviewed the General Plan and
concurs with City's determination.
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Neither the City nor the Developer shall have any
liability under this Agreement for any failure of City or Developer
to perform under this Agreement or the inability of Developer to
develop the Property as contemplated by the Development Plan of
this Agreement as the result of a judicial determination that on
the Effective Date, or at any time thereafter, the General Plan, or
portions thereof, are invalid or inadequate or not in compliance
with law.
9.2 jReserved]
9.3 Indemnity. Developer agrees to and shall defend,
indemnify and hold the City and the Agency and their respective
officers, employees, contractors and agents harmless from and
against all liability, loss, damage, costs or expenses (including
reasonable attorney's fees and court costs) arising from or as a
result of the death of any person or any accident, injury, loss or
damage whatsoever caused to any person or to the property of any
person which shall occur directly or indirectly as a result of this
Agreement or any actions taken by Developer pursuant to this
Agreement, and which shall be directly or indirectly caused by any
negligent or wrongful errors or omissions of the Developer or its
agents, servants, employees or contractors with respect to the
construction of the Project. The Developer shall not be responsi-
ble for, and such indemnity shall not apply to, any acts, errors or
omissions (or breach of this Agreement) of the City or the Agency
or their respective agents, servants, employees or contractors.
9.4 Environmental Contamination. Developer shall
indemnify and hold City, its officers, agents, and employees free
and harmless from any liability, based or asserted, upon any act or
omission of Developer, its officers, agents, employees, subcontrac-
tors, and independent contractors, in violation of any federal,
state or local law, ordinance or regulation relating to industrial
hygiene or to environmental conditions on or under any portion of
the Property which may be dedicated or transferred to City by
Developer including, but not limited to, soil and groundwater
conditions. Developer shall defend, at its sole cost and expense,
including attorneys fees and litigation costs, City, its officers,
agents, contractors, and employees in any action based or asserted
upon any such alleged act or omission. City may in its discretion
participate in the defense of any such claim, action or proceeding.
9.5 City to Approve Counsel. With respect to Sections
9.3 and 9.4 hereof, City reserves the right to either (1) approve
the attorney(s) which Developer selects, hires or otherwise engages
to defend City hereunder, which approval shall not be unreasonably
withheld, or (2) conduct its own defense; provided, however, that
if City reasonably disapproves any attorney(s) selected by
Developer, Developer shall promptly reimburse City for any and all
reasonable expenses incurred by City for such defense, including
reasonable attorneys' fees, upon billing and accounting therefor.
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9.6 Accept Reasonable Good Faith Settlement. With
respect to Sections 9.3 and 9.4 hereof, City shall not reject any
reasonable good faith settlement. If City does reject a
reasonable, good faith settlement that is acceptable to Developer,
Developer may enter into a settlement of the action, as it relates
to Developer, and City shall thereafter defend such action
(including appeals) at its own cost and be solely responsible for
any judgments rendered in connection with such action. This
Section 9.6 applies exclusively to settlements pertaining to
monetary damages or damages which are remedial by the payment of
monetary compensation. Developer and City expressly agree that
this Section 9.6 does not apply to any settlement which requires an
exercise of the City's police powers, limits the City's exercise of
its police powers, or affects the conduct of the City's municipal
operations.
9.7 Survival. The provisions of Sections 9.1 through
9.6 inclusive, shall survive the termination or expiration of this
Agreement as to matters arising prior to termination or expiration.
10. Mortgagee Protection; Certain Rights of Cure. Nothing
contained herein including, but not limited to, Section 11.2, shall
limit Developer, in any manner and at Developer's sole discretion,
from encumbering the Project or any portion thereof by one or more
Mortgages or from assigning Developer's rights, title and interests
under this Agreement to a Mortgagee or interfere with the lien of
or the remedies of a Mortgagee (a "Mortgagee" includes the holder
of any Mortgage or any beneficial interest under a Mortgage, or the
purchaser at a judicial or nonjudicial foreclosure sale pursuant to
the remedies provided in a Mortgage, or any person or entity which
acquires title to the Property or any part thereof pursuant to a
deed in lieu of foreclosure, or any successor, assignee or
transferee thereof) and no breach hereof shall defeat, render
invalid, diminish or impair the lien of any Mortgage.
10.1 Mortgagee Not Obligated. No Mortgagee shall have an
obligation or duty under this -Agreement to perform Developer's
obligations or duties hereunder or to guarantee the Developer's
performance thereof.
10.2 Notice of Default; Ricrht to Cure. If a Mortgagee
files with the City Clerk a written notice requesting a copy of any
notice of default given Developer hereunder and specifying the
address for delivery thereof, then City shall deliver to such
Mortgagee, concurrently with delivery thereof to Developer, any
notice given to Developer with respect to any claim of City that
Developer has not complied with the terms hereof or is otherwise in
default hereunder. The failure of the City to provide such notice,
however, shall not impair or defeat the City's exercise of its
rights or remedies under this Agreement or otherwise; subject to
the rights of a Mortgagee pursuant to this Section 10. Each such
Mortgagee shall have the right (but not the obligation) for a
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period of sixty (60) days after receipt of such notice from City to
cure or remedy, or to commence to cure or remedy, the claim of
default or noncompliance set forth in the City's notice. If any
such default or noncompliance cannot, with diligence, be remedied
or cured within such sixty (60) day period, then such Mortgagee
shall have such additional time as may be reasonably necessary to
remedy or cure such default or noncompliance if such Mortgagee
commences to remedy or cure within such sixty (60) day period, and
thereafter diligently pursues and completes such remedy or cure.
Notwithstanding the foregoing, if the default or noncompliance is
of a nature which can only be cured by such Mortgagee obtaining
possession, such Mortgagee shall be deemed to have remedied or
cured such default or noncompliance if such Mortgagee shall, within
such sixty (60) day period, commence efforts to obtain possession
and carry the same forward with diligence and continuity through
implementation of foreclosure, appointment of a receiver or
otherwise, and shall thereafter remedy or cure or commence to
remedy or cure the default or noncompliance within sixty (60) days
after obtaining possession.
10.3 Bankruptcy. Notwithstanding the provisions of
Section 10.2 above, if any Mortgagee is prohibited from commencing
or prosecuting foreclosure or other appropriate proceedings in the
nature thereof to obtain possession of the Property by any process
or injunction issued by any court or by reason of any action by any
court having jurisdiction of any bankruptcy or insolvency proceed-
ing involving Developer, the Mortgagee shall for the purposes
hereof be deemed to be proceeding with diligence and continuity to
obtain possession of the Property during the period of such
prohibition if the Mortgagee is proceeding diligently to terminate
such prohibition.
10.4 Estoppel Certificates. Either party may, at any
time, and from time to time, deliver written notice to the other
party requesting such party to certify in writing that, to the
knowledge of the certifying party, (i) this Agreement is in full
force and effect and a binding obligation of the parties, (ii) this
Agreement has not been amended -or modified, or if so amended or
modified, identifying such amendments or modifications, and (iii)
the requesting party is not in default in the performance of its
obligations under this Agreement, or if in default, describing
therein the nature and amount of any such defaults. A party
receiving a request hereunder shall execute and return such
certificate within thirty (30) days following the receipt thereof.
City acknowledges that a certificate hereunder may be relied upon
by transferees, assignees and lessees of the Developer and any
Mortgagee.
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11. Transfers and Assignments: Effect of Agreement on Title.
11.1 Rights and Interests Appurtenant. The rights and
interests conveyed as provided herein to Developer benefit and are
appurtenant to the Property.
11.2 Transfer.
(a) No voluntary or involuntary successor in
interest of the Developer shall acquire any rights under this
Agreement with respect to the Property or assume, or be deemed to
have assumed, any obligations or duties hereunder with respect to
the development of the Property except as expressly set forth
herein.
(b) Developer has the right to sell, assign and
transfer any and all of its rights and interests hereunder, and to
assign and transfer any and all of its duties and obligations
hereunder, only in accordance with the provisions of this Section
11.2, subject to Section 10 hereof.
(c) Prior to the earlier of:
(i) The termination of this Agreement or the
expiration of its Term; or
(ii) The date that the City is required to
issue a certificate of 9occupancy for the improvements to be
constructed in accordance with the Precise Plan, the Developer's
rights and interests hereunder may not be sold, transferred or
assigned except in compliance with the following conditions:
(i) Said rights and interests may be sold,
transferred or assigned only together with and as an incident of
the sale, lease, transfer or assignment of the portions of the
Property to which they relate, including any transfer or assignment
pursuant to the granting of any Mortgage, any foreclosure of a
Mortgage, or a deed in lieu of such foreclosure; and
(ii) At least thirty (30) days prior to any
such sale, assignment or transfer of said rights or interests
(other than pursuant to the granting of a Mortgage, any foreclosure
of a Mortgage, or a deed in lieu of foreclosure), Developer shall
notify City in writing of such sale, transfer or assignment, the
portion(s) of the Property to which the sale, assignment or
transfer is appurtenant (if the whole of the Property is not being
sold, leased, transferred or assigned), and the name and address
(for purposes of notices hereunder) of the purchaser, transferee or
assignee, and the purchaser, transferee or assignee shall provide
a written notice to City specifying whether or not the purchaser,
transferee or assignee has assumed any of Developer's obligations
hereunder and, if so, which such obligations have been assumed.
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(d) Following any sale, transfer or assignment of
any of the rights or interests of Developer under this Agreement,
the exercise, use and enjoyment thereof shall continue to be
subject to the terms of this Agreement to the same extent as if the
purchaser, transferee or assignee were Developer hereunder.
Without limiting the generality of the foregoing, (i) the further
sale, transfer or assignment of the rights or interests of the
Developer under this Agreement (other than by a Mortgagee) shall be
made only in accordance with and subject to the terms of this
Agreement, and (ii) the rights and interests of the Developer sold,
transferred or assigned shall be subject to termination only in
accordance with this Agreement.
(e) Developer shall not transfer or assign any of
its executory obligations or affirmative covenants with respect to
the development of the Property without having first received the
written consent of the City, which consent may be given or withheld
by the City in the exercise of its reasonable discretion; provided,
however, that such consent shall not be required in the event of a
delegation or assignment to a Developer Affiliate. A "Developer
Affiliate" shall mean (i) a partnership or joint venture in which
any of The Madison Realty Partnership, Limited Partnership
("Madison"), John P. Boorn ("Boorn"), James S. Bennett ("Bennett"),
or William Bone ("Bone") or any entity which is, directly or
indirectly, controlled by Madison, Boorn, Bennett or Bone, singly
or in any combination, is a general partner; or (ii) any other
entity which is, directly or indirectly, controlled by Madison,
Boorn, Bennett or Bone, singly or in any combination.
(f) In order to allow City to make an informed
decision regarding the consent to an assignment or transfer by
Developer of any of its obligations or covenants under this
Agreement as described in subsection (e) above, City may reasonably
require the proposed transferee (other than a Developer Affiliate)
to submit financial statements and evidence of its fitness,
experience and ability (or that of its senior managerial personnel)
to comply with the obligations being assumed. Prior to the date of
such assignment, the transferee including any Developer Affiliate)
shall post cash, surety bonds, letters of credit or other
collateral reasonably acceptable to City, if and to the extent any
security has been previously provided by Developer to City, to
secure the transferee's performance of its obligations with respect
to the portion of the Project being acquired by such transferee.
It is understood and agreed that until all of the conditions set
forth in this subsection (f) and subsection (e) above have been
performed, Developer shall not be relieved of and from liability or
responsibility for compliance with the obligations arising under
this Agreement with respect to the portion of the Project being
transferred.
(g) Notwithstanding anything to the contrary
contained herein, any permitted transferees or assignees of any of
the rights and interests of Developer in accordance with the
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148085
provisions of this Section 11.2 shall have no duty or obligation to
perform Developer's executory obligations or other affirmative
covenants of Developer under this Agreement, unless such executory
obligations or affirmative covenants are expressly assumed in
connection with the conveyance of such rights and interests.
(h) In the event that any permitted transferee or
assignee does not assume such executory obligations or affirmative
covenants, the Developer shall remain responsible for the complete
and faithful performance of those obligations and affirmative
covenants. In the event that Developer fails to perform such
obligations or affirmative covenants in accordance with the
provisions of this Agreement, then the failure of the Developer to
so perform shall constitute an event of default hereunder with
respect to any portion of the Property acquired by any transferee
or assignee and to any portion of the Property retained by
Developer. In such event, the City may commence termination
proceedings pursuant to Section 6 and 8.4 of this Agreement with
respect to anyportion of the Property acquired by any transferee or
assignee and to any portion of the Property retained by Developer.
(i) In the event such executory obligations or
affirmative covenants with respect to any portion of the Property
acquired by any permitted transferee or assignee are assumed by
such permitted transferee or assignee, no subsequent failure by
such transferee or assignee (or any subsequent transferee or
assignee) to perform or comply with such executory obligations or
affirmative covenants shall be deemed an event of default by the
Developer hereunder. Similarly, no failure of the Developer to
perform or comply with its executory obligations or affirmative
covenants which have not been so transferred or assigned
shallconstitute an event of default hereunder with respect to such
transferee or assignee (or subsequent transferee or assignee).
(j) The provisions of subsections (e), (f) and (h)
of this Section 11.2 shall not apply to the following:
(i) Any Mortgage or Mortgagee.
(ii) The sale, ground leasing or transfer of
any portion of the Property to any purchaser, transferee or tenant
occupying at least 15,000 square feet of gross leasable area in the
Project ("Major"), provided such Major is an experienced retailer
which generally acquires sites in retail centers for the purposes
of erecting, constructing, maintaining and operating (or causing to
be erected, constructed, maintained and operated) retail stores,
and provided further that such Major's use or proposed use of the
Property or the improvements thereon is the consistent with the
Precise Plan approved by the City pursuant to this Agreement.
(iii) The conveyance or dedication of any
portion of the Property to the City, Agency or other appropriate
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148385
governmental agency, or the granting of easements or permits to
facilitate the development of the Property.
(iv) The leasing of space for occupancy in the
Project.
(v) The sale, ground leasing or leasing of any
portion of the Property and improvements thereon for development
pads permitted by the Precise Plan approved by the City.
It is understood and agreed that the exceptions provided in
subparagraphs (ii) and (v) above shall apply only if the aggregate
amount of all prior sales, ground leases or transfers of any
portion of the Property is less than 1/3 of the total gross
leasable area constructed or to be constructed in the Project .
(k) Provided that all conditions of this Section
11.2 have been satisfied, the City shall take all actions
reasonably necessary to accomplish the sale, transfer, assignment,
conveyance or delegation of such rights and interests and such
duties and obligations as permitted pursuant to this Section 11.2,
including, but not limited to, the execution by the City of such
instruments or documents as the Developer may reasonably request to
evidence the release of the Developer from any such duties or
obligations; provided, however, that the City shall not be required
to so act if it reasonably believes that to do so would materially
impair its rights or obligations under this Agreement.
11.3 Termination of Agreement with Respect to Property.
Notwithstanding any provisions of this Agreement to the contrary,
the burdens of this Agreement shall terminate as to any portion of
the Property with respect to which a final subdivision map or
parcel map conforming to the terms and provisions of this Agreement
has been recorded, and thereupon, and without the execution or
recordation of any further document or instrument, such portion of
the Property shall be released from and shall no longer be subject
to or burdened by the provisions of this Agreement; provided,
however, that (i) the foregoing shall not be construed to release
Developer from any then unperformed obligations under this
Agreement with respect to such portion of the Property, and
(ii) the benefits of this Agreement shall continue to run as to
such portion of the Property until such time as such portion of the
Property is developed and the benefits of this Agreement with
respect thereto are fully utilized by the construction of a
building or buildings or other improvements thereon.
Upon receipt of written request therefor and subject to
the provisions of Section 11.2 hereof and this Section 11.3 , the
City shall promptly provide to the Developer, or any transferee or
assignee of an interest of the Developer in the Property, a written
statement confirming the release of any portion of the Property
from the burdens of this Agreement or the termination of this
Agreement with respect to such portion of the Property, which
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statement shall be in form appropriate for recording in the
official records of Riverside County and shall impart constructive
record notice of such release or termination.
11.4 Covenants Run with Land. Subject to the foregoing
provisions of this Section 11 and Section 10 hereof:
(i) All of the provisions, agreements, rights,
powers, standards, terms, covenants and obligations contained in
this Agreement shall be binding upon the parties and their
respective heirs, successors (by merger, consolidation, or
otherwise) and assigns, devisees, lessees, and all other persons
acquiring any rights or interests in the Property, or any portion
thereof, whether by operation of laws or in any manner whatsoever,
and shall inure to the benefit of the parties and their respective
heirs, successors (by merger, consolidation or otherwise) and
assigns;
(ii) All of the provisions of this Agreement shall
be enforceable as equitable servitude$ and constitute covenants
running with the land pursuant to applicable law; ;•
(iii) Each covenant to do or refrain from doing some
act on the Property hereunder (A) is for the benefit of and is a
burden upon every portion of the Property, (B) runs with such
lands, and (C) is binding upon each party and each successive owner
during its ownership of the Property or any portions thereof, and
shall benefit each party and its lands hereunder, and each such
other person or entity succeeding to an interest in such lands.
Notwithstanding any of the foregoing or anything to the
contrary contained in this Agreement, any transferee or assignee or
Mortgagee which acquires any right or interest in or with respect
to the Property or any portion thereof shall take and hold such
rights and interests subject to this Agreement and shall not have
been deemed to have assumed any obligations or duties of the
Developer hereunder except to the extent that any such transferees
or assignees or Mortgagees have expressly assumed in writing any
of the duties or obligations of the Developer hereunder.
12. Notices.
Any notice to either party shall be in writing and given by
delivering the same to such party in person or by sending the same
by registered or certified mail, return receipt requested, with
postage prepaid, to the following addresses:
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1489M5
If to City:
City Clerk of the City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
If to Developer:
The Madison Realty Partnership, Limited
Partnership
7 West 7th Street
Cincinnati, Ohio 45202
Attention: Mr. John P. Boorn
with a copy to:
The Madison Realty Partnership, Limited
Partnership
7 West 7th Street
Cincinnati, Ohio 45202
Attention: Mr. James S. Bennett
with a copy to:
Pircher, Nichols & Meeks
1999 Avenue of the Stars, Suite 2600
Los Angeles, California 90067-6077
Attention: PN&M Notices (SAH)
Either party may change its mailing address at any time by giving
written notice of such change to the other party in the manner
provided herein. All notices under this Agreement shall be deemed
given, received, made or communicated on the date personal delivery
is effected or, if mailed, on the delivery date or attempted
delivery date shown on the return receipt.
13. Miscellaneous.
13.1 Relationship of Parties. It is understood that the
Project is a private development, that neither party is acting as
the agent of the other in any respect hereunder, and that each
party iis an independent contractor. It is further understood that
none of the terms or provisions of this Agreement are intended to
or shall be deemed to create a partnership, joint venture or joint
enterprise between the parties hereto.
13.2 Consents. Unless otherwise herein provided,
whenever approval, consent, acceptance or satisfaction
(collectively, a "consent") is required of a party pursuant to this
Agreement, it shall not be unreasonably withheld or delayed.
Unless provision is otherwise specified in this Agreement or
otherwise required by law for a specific time period, consent shall
be deemed given within thirty (30) days after receipt of the
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148985
written request for consent, and if a party shall neither approve
nor disapprove within such thirty (30) day period, or other time
period as may be specified in this Agreement or otherwise required
by law for consent, that party shall then be deemed to have given
its consent. If a party shall disapprove, the reasons therefor
shall be stated in reasonable detail in writing. This Section 13.2
does not apply to Development Approvals.
13.3 Not a Public Dedication. Except as otherwise
expressly provided herein, nothing herein contained shall be deemed
to be a gift or dedication of the Property, or of the Project, or
any portion thereof, to the general public, for the general public,
or for any public use or purpose whatsoever, it being the intention
and understanding of the parties that this Agreement be strictly
limited to and for the purposes herein expressed for the
development of the Project as private property. Except for any
portion of the Property which has been conveyed to the City by
Developer as provided in this Agreement or the DDIA, Developer
shall have the right to prevent or prohibit the use of the
Property, or the Project, or any portion thereof, including common
areas and buildings and improvements located thereon, by any person
for any purpose inimical to the development or operation of the
Project as contemplated by this Agreement. Any portion of the
Property conveyed to the City by Developer as provided herein shall
be held and used by the City only for the purposes contemplated
herein or otherwise provided in such conveyance, and City shall not
take or permit to be taken (if within the power or authority of the
City) any action or activity with respect to such portion of the
Property that would deprive the Developer of the material benefits
of this Agreement or would materially and unreasonably interfere
with the development of the Project as contemplated by this
Agreement.
13.4 Severability. If any term, provision covenant or
condition of this Agreement shall be determined invalid, void or
unenforceable by judgment or court order, the remainder of this
Agreement shall remain in full force and effect, unless enforcement
of this Agreement as so invalidated would be unreasonable or
grossly inequitable under all the relevant circumstances or would
frustrate the purposes of this Agreement.
13.5 Exhibits. The Exhibits listed in the Table of
Contents, to which reference is made herein, are deemed
incorporated into this Agreement in their entirety by reference
thereto.
13.6 Entire Agreement. This written Agreement and the
Exhibits hereto contain all the representations and the entire
agreement between the parties with respect to the subject matter
hereof. Except as otherwise specified in this Agreement and the
Exhibits hereto, any prior correspondence, memoranda, agreements,
warranties or representations are superseded in total by this
Agreement and Exhibits hereto.
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14898s
13.7 Governing Law; Construction of Agreement. This
Agreement, and the rights and obligations of the parties, shall be
governed by and interpreted in accordance with the laws of the
State of California. The provisions of this Agreement and the
Exhibits hereto shall be construed as a whole according to their
common meaning and not strictly for or against any party and
consistent with the provisions hereof, in order to achieve the
objectives and purposes of the parties hereunder. The captions
preceding the text of each Section, subsection and the Table of
Contents hereof are included only for convenience of reference and
shall be disregarded in the construction and interpretation of this
Agreement. Wherever required by the context, the singular shall
include the plural and vice versa, and the masculine gender shall
include the feminine or neuter genders, or vice versa.
13.8 Signature Pages. For convenience, the signatures of
the parties to this Agreement may be executed and acknowledged on
separate pages which, when attached to this Agreement, shall
constitute this as one complete Agreement.
13.9 Time. Time is of the essence of this Agreement and
of each and every term and condition hereof.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date and year first above -written.
DEVELOPER:
THE MADISON REALTY PARTNERSHIP,
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: The Boorn Bennett Limited
Partnership, an Ohio limited
partnership, its general partner
By:
CITY:
Boorn, Inc., an Ohio
corporation, its general
partner
THE CITY OF PALM DESERT, CALIFORNIA,
a municipal corporation organized
and existing under the laws of the
State of California
By: -
AMayo
Attest:C-
city Oilerk
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014
STATE OF
148085
COUNTY OF N ram! CCU �-1 0 N )
On 19_L,-,4 of re me the undersigned
notary public, ersonally appeared
personally known to me OR 0 prove to me on the basis of
satisfactory evidence to be the pers n(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.
ure
SS my_hand and official seal.
w cwwg iori ex i Fib. ii, Im
CAPACITY CLAIMED BY SIGNER:
I■
■
■
■
■
■
■
Individuals)
Corporate
Officer(s)
Partner(s)
Attorney -in -Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
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148085
STATE OF CALIFORNIA )
COUNTY OF
On c�.-�. s , i� -
abefore m , the undersi ne
�y g
notary public, p rsonally appeared J rOiP� l"RiT-E5
personally known to me OR A prow d to me on the basis of
satisfactory evidence to be the person(#) whose name tQ) is/fie
subscribed to the within instrument and acknowledged to me that
he/ a/t)%-&y executed the same in his/2Kr/to6ir authorized
cap ity ( ) , and that by his/l> er/t]p(eir signature (A) on the
instrument the person), or the entity upon behalf of which the
person W acted, executed the instrument.
WITNESS my hand and official seal.
VAUGHN DISHMAN
o COMM. #979686 =
Sig atur of Notary = I RPRDE COUNTY
Uecvm ber 3,1 r6
CAPACITY CLAIMED BY SIGNER:
❑ Individual(s)
0 Corporate
Officer(s)
❑ Partner(s)
❑ Attorney -in -Fact
❑ Trustee(s)
0 Subscribing Witness
❑ Guardian/Consery Qr
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
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148985
STATE OF CALIFORNIA )
COUNTY OF I E-R614 F )
On ��oc,v�_ S II& be ore me, the undersigned
notary public, rsonally appeared A4jo V V.
personally known to me OR prove to me on the basis of
satisfactory evidence to behe person (j whose name pb`) is/
e
subscrita9y
to the within instrument and acknowled ed to me that
/ she/ executed the same in h /her/tYy�ir authorized
capacit (�s), and that by h4/her/tfKir signature04 on the
instrume t the person(,, or the entity upon behalf of which the
person( acted, executed the instrument.
ITNESS my hand a d official seal.
VAUGHN DISHMAN
o COMM. 0979686
Signatur of lTdtary z "Rv?npu c�OUNTY
Myy Commirton Explr�
. Dec�nber 3,1996
CAPACITY CLAIMED BY SIGNER:
■
■
■
■
■
P
Individuals)
Corporate
Officers)
Partner(s)
Attorney -in -Fact
Trustee(s)
Subscribing Witness
Guardi /ConservatQr
Other
It U
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
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EXHIBIT "A"
PALM DESERT PROJECT
DEVELOPMENT STANDARDS FOR THE PROJECT
I. Purpose of Development Standards
II. Project Introduction
A. Overview and Location
B. Project Statistical Summary
III. General Notes and Conditions
IV. General Development of Project
A.
Proposed Uses
B.
Building Square Footage Limits and
Maximum Heights
C.
Density and Intensity of Use
D.
Open Space
V. Planning Guidelines
A.
Purpose
B.
Site Planning and Circulation
C.
Grading/Drainage/Street Standards
D.
Landscaping, Walls and Lighting
E.
Design Concept of Buildings/Parking/
Loading Area
F.
Utility Services and Structures
G.
Project and Business Identification
VI. Plan Review Requirements
A. Purpose
B. Development/Precise Plan Review
C. Development/Precise Plan Contents
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I. Purpose of Development Standards
The purpose of the development standards for the
Project is to:
1. Provide the Developer with a planning and
development process which will result in a
Project that is consistent with the City's
General Plan and in furtherance of the goals of
the City as set forth in the Agreement.
2. Provide supplemental criteria for the use,
design, density, circulation and development of
the Project (as described in II.B hereof) that
will result in an aesthetically pleasing,
environmentally harmonious and commercially
viable product that expands the goods and
services presently available to the community.
3. Ensure that development occurs in an orderly
fashion through long-range planning.
4. Encourage development that is operationally
functional to both the building operator and
the consumer.
5. Provide for the development of the Project in a
manner which is consistent with the terms and
provisions of the Agreement and the Existing
Land Use Ordinances.
II. Project Introduction
A. Overview
The Project presents an opportunity to master
plan one of the remaining large vacant
properties within the area of the City subject
to the City's Commercial Core Area Specific
Plan. The development of the Project in
accordance with the provisions of the Agreement
and these development standards furthers the
development objectives of the City in an
orderly manner.
The development of the Project in accordance
with the provisions of the Agreement and the
development standards provides a number of
benefits:
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1. It maximizes the potential for high
quality economic development of the
Commercial Core Area.
2. It addresses specific policy
recommendations of the Palm Desert
Commercial Core Area Specific Plan.
3. It provides for the completion of all
necessary signalization and pedestrian
amenities for E1 Paseo, Shadow Mountain
Drive, Larkspur Lane and San Pablo Avenue
in the vicinity of the Project, as
provided for in Exhibit "D".
B. Project Statistical Summary
Common Name: Sun Lodge Colony
Location: SWC E1 Paseo.and Larkspur Lane
Acreage: 10.3 acres
Site Topography: generally flat with slight
slope up to the south.
III. General Notes
A. Purpose
This section III is included to: (i) provide
certain definitions for use with respect to
this Exhibit "A"; (ii) to describe the
relationship of this Exhibit "A" to the
Existing Land Use Ordinances and the Building
Ordinances; and (iii) provide other
miscellaneous _ provisions necessary to
effectuate the purposes and intent of the
Agreement.
B. General Notes
1. Terms contained in this Exhibit "A" shall
have the same meaning as defined in the
Agreement unless otherwise defined herein.
2. Except as otherwise provided in this
Exhibit "A" and in the Agreement, the
development of the Project shall be in
accordance with, and the development of
the Project during the Term shall be
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governed by, the Existing Land Use
Ordinances.
3. Except as otherwise provided in this
Exhibit "A" and in the Agreement, all
construction of improvements upon the
Property shall conform to the building and
construction standards established by the
building ordinances.
4. Whenever the provisions of this Exhibit
"A" conflict with the provisions of the
Existing Land Use Ordinances or the
Building Ordinances the provisions of this
Exhibit "A" shall be deemed to control to
the extent necessary to effectuate the
purposes and intent of the Agreement.
5. The maximum aggregate allowable building
square footage for the Project shall be
167,000 s.f. of gross leasable area;
provided, however, that the Project may
include up to an additional 30,000 square
feet of gross leasable area if a lease or
other occupancy agreement is entered into
with a major specialty store such as Saks
Fifth Avenue or similar type specialty
store. Developer shall submit the name of
any major specialty store (other than Saks
Fifth Avenue, for which no approval shall
be required) proposed to satisfy the
requirements of this Section III. B. 5. of
this Exhibit A to the City Council for its
review and consideration. The
requirements of this Section III. B. 5. of
this Exhibit A shall not be deemed to be
satisfied unless the City Council has
approved the proposed major specialty
store (other than Saks Fifth Avenue, for
which no approval shall be required);
provided, however, that the City's
approval shall not be unreasonably
withheld. The City Council shall have
thirty (30) days following the Developer's
submission of a proposed major specialty
store to review, consider and take action
upon the Developer's proposal. If the
City fails to take action within this
thirty (30) day period, the Developer's
proposal will be deemed to have been
approved. The City covenants and agrees
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that the amendments to the Development
Agreement set forth in this paragraph 5
relating to the permitted size of the
Project shall not result in a reduction of
the maximum aggregate allowable building
square footage provided in the Development
Agreement for the properties affected
thereby (or otherwise obtained from the
City by the developers of such properties
in the course of their development).
6. Development of the Property may
accommodate all uses permitted in the C-1
zone as identified in the Existing Land
Use Ordinances.
7. Parking requirements for layouts and sizes
for the Project shall be based upon the
requirements for general retail and office
use as described in the Existing Land Use
Ordinances. Parking requirements,
including ratios, shall be based upon the
less stringent of the following: (a) the
requirements for general retail and office
use as described in the Existing Land Use
Ordinances, or (b) four spaces per 1,000
square feet of gross leasable area.
Notwithstanding anything to the contrary
set forth in paragraph IIIB6 or this
paragraph IIIB7 or in the Existing Land
Use Ordinances, up to 25% of the total
gross leasable area may be developed as
restaurant space with no additional
parking requirements.
8. Changes in the location or configuration
of the buildable zones within the Project
may occur as specific site plans are
developed. Any such changes will be
subject to the prior approval of the
Community Development Director of the
City.
9. Tentative Tract Maps may be filed and
approved subject to consistency with the
Precise Plan.
10. Except as otherwise provided herein, all
approvals of the City, the Community
Development Director, or the Planning
Commission of the City required as
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provided herein shall be based upon the
criteria and standards for such approval
set forth in the Existing Land Use
Ordinances and the Building Ordinances.
11. Prior to the issuance of any building
permit with respect to the Project, a
Precise Plan for the development of the
Project shall be submitted to the Planning
Commission and shall be approved by the
Planning Commission if such Precise Plan
is consistent with and complies with the
provisions of the Agreement.
12. The Developer shall be permitted to
establish a Project office on the Property
upon execution of the Agreement by the
City.
13. Sizing of all backbone utility facilities
shall be predicated on the maximum density
proposed for the Project and shall not be
required to be oversized to accommodate
uses other than with respect to the
Project.
14. Unless otherwise provided in the Precise
Plan, all improvements required as
Exactions pursuant to the attached Exhibit
"D" shall be constructed by Developer as
and when such improvements are necessary
with respect to Project development, as
determined by the City.
IV. General Development of the Project
A. Proposed Uses
Any or all uses permitted in the C-1 zone of
the Existing Land Use Ordinances.
B. Maximum Building Sauare Footage Limits and
Maximum Heights
Maximum S.F. 167,000 (subject to increase as
set forth in paragraph IIIB5).
Height Limit
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Per applicable Existing Land Use Ordinances, or
a greater height if approved in the Precise
Plan.
C. Density and Intensity of Use
The Developer shall be entitled to develop the
Property to the maximum building site coverage
percentage provided in the applicable Existing
Land Use Ordinance as it pertains to the
Property. The Precise Plan shall depict the
eligible building areas within the Property.
Buildings shall be reasonably distributed
within the Property to permit ease of vehicular
and pedestrian access, circulation and egress
and for proper operational building service
requirements.
V. Planning Guidelines
A. Purpose
Except as otherwise provided in the Agreement
or this Exhibit "A", the development of the
Property shall be subject to and controlled by
the design and development guidelines
established by the Existing Land Use Ordinances
and the Building Ordinances. The following
guidelines are intended to be supplemental to
those established by the Existing Land Use
Ordinances and the Building Ordinances and to
the extent they are inconsistent or in conflict
with the guidelines established by the Existing
Land Use Ordinances and the Building
Ordinances, these guidelines shall be deemed
controlling. Subject to the foregoing, all
development plans for the Property shall comply
with the following guidelines.
B. Site Planning and Circulation
Interior vehicular circulation shall be
patterned to permit ease of ingress and egress
as well as the distribution of buildings in
relation to parking areas to allow for the
dispersion of vehicles and pedestrians
throughout the Property. The Project shall
have clearly defined pedestrian routes into and
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throughout the Property in order to minimize
potential points of conflict between
pedestrians and vehicles. Individual entries
shall occur at the designated locations on the
Precise Plan. Building setbacks shall be as
depicted on the Precise Plan.
C. Grading/Drainage
Grading design shall reinforce the
architectural and landscape designs in the
following ways:
A. Assist in screening parking, loading and
service areas.
B. Reduce the perception of height and mass
of large buildings.
C. Provide a reasonable transition from the
street to the Property.
The applicant may obtain permits for rough
grading after approval of conceptual grading
plans by the Director of Public Works and the
Director of Community Development.
Grading shall be permitted outside of an area
of immediate development if consistent with the
conceptual grading plan.
Drainage of surface parking areas and roof
areas shall terminate at an underground storm
drain system in the public streets. Points of
connection will be provided for the Property.
D. Landscaping
Landscape materials shall enhance the major
architectural design elements through the
coordinated use of indigenous and introduced
plant species, lighting, massing, etc.
Landscaping shall be in accordance with a
landscape concept plan as provided in the
Existing Land Use Ordinances. The landscape
concept plan will be submitted as part of the
Precise Plan at the time development of the
Property is proposed.
The landscape framework will be compatible with
the desert environment.
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E. Design Concept of Buildings/Parking/Loading
Areas
The architecture of the Project shall possess
an underlying compatibility among the various
buildings through the use of similar materials,
finishes, colors and amenities while allowing a
degree of flexibility for expression and
identity. All building designs shall be
aesthetically agreeable with the desert
environment.
The Property shall provide 200 parking spaces
in addition to the number of parking spaces
otherwise required by paragraph IIIB7.
Loading docks, service delivery areas, where
provided, are required to be screened,
recessed, and/or enclosed so as not to be
visible from adjacent streets and properties.
Loading, service and delivery areas shall not
encroach into any setback areas.
F. Utilities and Utility Structures
Public services and utilities will be provided
by the following public/private agencies unless
otherwise approved by the Director of Community
Development:
a. Water - Coachella Valley Water District
b. Sewer - Coachella Valley Water District
C. Flood Control - Coachella Valley Water
District
d. Electricity - Southern California Edison
Company
e. Natural Gas - Southern California Gas
Company
f. Telephone - General Telephone Company
g. Schools - Palm Springs and Desert Sands
Unified School District
h. Public Parks - Coachella Recreation and
Parks District
i. Fire Protection - Riverside County Sheriff
Department
j. Police Protection - Riverside County
Sheriff Department
k. Solid Waste Disposal - Riverside County
Road Department and Palm Desert Disposal
Services
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1. Television - Coachella Valley Television
All utilities shall be installed and maintained
underground. Utility design shall not place
excessive burdens upon offsite systems.
Temporary overhead power and telephone
facilities are permitted during construction
only.
Any device for transmission or reception of
communication signals shall be screened.
Rooftop devices shall not extend above the
building's highest architectural element or be
visible within a horizontal line of sight.
Ground -mounted devices shall be screened from
view from adjacent streets and property.
outdoor trash areas shall be visually screened
by a 6-ft.-high (minimum), non combustible
enclosure constructed of the same materials and
finishes as the adjacent building. Enclosures
shall be designed and located so as not to be
highly visible from adjacent streets and
property.
G. Project and Business Identification
Project entry statements composed of signage,
landscaping, architectural features, or a
combination of same, will be depicted on the
landscape concept plan.
VI. Plan Review Requirements
A. Purpose
This section is established to ensure that the
overall purpose and intent of the Project is
satisfied and implemented in an orderly manner.
B. Development/Precise Plan Review
When the actual development of the Property is
proposed, an application for approval of a
Precise Plan shall be filed with and such
Precise Plan shall be approved by the Planning
Commission if it is consistent with the Precise
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Plan and complies with the provisions of this
Agreement and this Exhibit "A".
C. Precise Plan Contents
Subject to the provisions of the Agreement and
this Exhibit A, the Precise Plan shall comply
with the requirements of Section 25.73.011 of
the Existing Land Use Ordinances..
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EXHIBIT "B"
THE PROPERTY
THE FOLLOWING REAL PROPERTY IN THE CITY OF PALM DESERT, COUNTY
OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
The following legal description encompasses the entirety of
the Property on the Precise Plan.
Parcels 1 and 2 of Parcel Map 4655, in the City of Palm
Desert, County of Riverside, State of California, as shown by
Map on file in Book 7, Page 42 of Parcel Maps, in the Office
of the County Recorder of said County.
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Activity
EXHIBIT "C"
V=�1r��Wpj9jij��
I. Execution of Agreement
Agreement authorized,
executed and delivered
to Developer by City of
Palm Desert
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Entitlement/Maximum Rate
Development
Developer may obtain all
necessary approvals,
consents, permits, or other
entitlement for the
construction and occupancy
of not less than 100,000
square feet of gross floor
area within the Property and
not more than that permitted
by paragraph IIIB5 of
Exhibit A.
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EXHIBIT "D"
EXACTIONS
As provided in the Agreement, the following
constitutes those Exactions which may be imposed by the City
with respect to the development of the Project. The following
Exactions include all of the mitigation measures with respect
to the Project for which the Developer will be responsible for
satisfying and which were identified in the Environmental
Impact Report (the "EIR") pertaining to the Project and
certified as complete by the City on November 16, 1989.
Unless otherwise provided for in this Exhibit "D", all
Exactions shall be constructed or provided by the Developer in
conformance with the requirements of the Existing Land Use
Ordinances. Those Exactions identified herein, while intended
to be specific in nature, will remain subject to specific
Project review as provided in Exhibit "A". The City and the
Developer will in good faith attempt to agree as to any
modifications of the following Exactions which are requested
by the City as a result of such specific Project review.
1. Street Improvements
All street improvements are subject to the
review and approval of construction documents
pertaining thereto by the City of Palm Desert
Department of Public Works. All of the
following street improvements are to be located
adjacent to the Project.
A. South side of E1 Paseo between San Pablo
Avenue and Larkspur Lane -- completion of
all pedestrian amenities including street
lighting, landscaping, bus stations,
sidewalks, benches, and decorations.
B. West side of Larkspur Lane between El
Paseo and Shadow Mountain Drive --
completion of all pedestrian amenities
including street lighting, landscaping,
and sidewalks.
C. East side of San Pablo Avenue between E1
Paseo and Shadow Mountain Drive --
completion of all pedestrian amenities
including street lighting, landscaping,
and sidewalks.
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D. North side of Shadow Mountain Drive
between Larkspur Lane and San Pablo
Avenue -- completion of all pedestrian
amenities including street lighting,
landscaping, and sidewalks.
E. The Developer acknowledges its obligation
to widen San Pablo Street between Highway
Ill and E1 Paseo within the existing
right-of-way and to construct new paving,
curbing, gutter and sidewalks. The City
has agreed to accept the sum of $75,000
from the Developer in full satisfaction of
the foregoing obligation, payable at the
time that the building permit for one or
more buildings in the Project is issued.
The payment of this $75,000 shall be in
addition to all other circulation or
traffic impact mitigation fees which may
be lawfully imposed against the Project in
accordance with 'the terms of this
Agreement.
F. Modification of existing median left turn
pockets at E1 Paseo/San Pablo Avenue and
El Paseo/Larkspur Lane to provide
additional vehicle stacking capacity.
2. Traffic Signals
All of the following traffic signal
improvements and signal modifications are to be
located adjacent to the Project. As used in
this Paragraph 2, the "related improvements"
shall mean those improvements identified by the
City of Palm Desert Department of Public Works
as necessary to implement the traffic signal
modifications to which they relate.
A. New traffic signal and related
improvements at the intersection of El
Paseo and Larkspur Lane, all as required
by the EIR.
B. Traffic signal modifications and related
improvements at E1 Paseo and San Pablo
Avenue, all as required by the EIR. Any
actual out-of-pocket third party costs
incurred and paid by the Developer
pursuant to this Section 2.B. for the
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traffic signal modifications and related
improvements at the intersection of E1
Paseo and San Pablo shall be credited
against the Developer's signalization fee
obligations as provided in Section 7.B. of
this Exhibit D.
3. Storm Drains
A. Construction of all necessary drainage
systems with respect to the Project and
the facilities necessary to connect such
systems to the existing underground storm
drain systems in the public streets, all
as required by the EIR.
4. Transit
A. Construction of bus turnouts and shelters
for the Project, all as required by the
EIR.
B. Provide a Transportation Demand Management
Study as required by the EIR.
5. Parking
In conjunction with the construction of the
private commercial/retail facilities to be
located on the Property (if constructed), the
Developer shall provide 200 additional parking
spaces above project parking requirements for
the Property as required by paragraph IIIB7 of
Exhibit A. Prior to the commencement of
construction of the commercial/retail
facilities to be located on the Property, the
Developer and the Agency shall have in good
faith negotiated and entered into the Parking
Management Agreement described in Section 5.1
of the DDIA. It is the intent of the Developer
and the City that, subject to the provisions of
the DDIA pertaining to the payment by the
Agency to the Developer of the Purchase Price
for the Parking Rights, the Developer will pay
all costs of constructing such parking spaces.
6. Housinct
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The Developer will pay a housing mitigation fee
for the Project at the time of building permit
issuance with respect thereto. The proceeds of
such fees shall be used by the City, along with
other revenues of the City, to address the very
low, low and moderate income housing needs
generated by the development of the Project
consistent with the housing programs identified
or to be identified in the housing element of
the City's General Plan. Such fee shall be in
the amount of $1.00 per square foot of building
floor space for mixed commercial/retail
development and $.50 per square foot of
building floor space for professional office
development. This fee shall be payable by the
Developer only if a similar fee equal to or
greater than this fee will be required by the
City with respect to all other commercial
development within the City. In no event and
under no circumstances will such fee exceed
$197,000.
7. Fees
A. T.U.M.F. Fees
B. Signalization Fee
C. Drainage Fees
D. Art in Public Places Fees, which fees
shall be one half of one percent (.5%) of
the total building valuation (valuation
for building permit purposes), with no
maximum limit.
E. The usual and customary fees of general
application charged for processing of
applications for permits and approvals
pertaining to the development of the
Project.
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EXHIBIT "E"
[Reserved]
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EXHIBIT "F"
DISPOSITION, DEVELOPMENT AND IMPLEMENTATION
AGREEMENT
(INTENr(0)YALLY pM 1 nee
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