HomeMy WebLinkAboutORD 8880 . . V
ORDINANCE NO. 888
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT
RELATING TO THE DEVELOPMENT OF A 999 UNIT RESORT
TIMESHARE PROJECT ON THE EAST SIDE OF MONTEREY AVENUE
BETWEEN FRANK SINATRA DRIVE AND GERALD FORD DRIVE.
CASE NO DA 98-1 AS IT RELATES TO CASE NO. PP/CUP 98-5 REVISED
WHEREAS, the City Council of the City of Palm Desert, California, did on the 12th day
of November, 1998, hold a duly noticed public hearing which was continued from June 11, July
9, August 27, September 10, October 8, and October 22, 1998, to consider the request by
MARRIOTT OWNERSHIP RESORT, INC., for approval of DA 98-1; and
WHEREAS, the Planning Commission by its Resolution No. 1889 has recommended
approval of Case No. PP/CUP 98-5 Revised, subject to conditions; and
WHEREAS, the Planning Commission by its Resolution No. 1861 has recommended
approval of said development agreement; and
WHEREAS, at said public hearing, City Council heard and considered all testimony and
arguments of all interested persons.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm Desert,
California, as follows:
1. That the above recitations are true and correct and constitute the findings of the
City Council in this case.
2. That DA 98-1 Exhibit "A" attached hereto is hereby approved.
3. The City Clerk of the City of Palm Desert, California, is hereby directed to publish
this ordinance in the Desert Sun, a newspaper of general circulation, circulated in
the City of Palm Desert, California, and shall be in full force and effect thirty (30) .
days after its adoption.
PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this loth day of
December , 1998, by the following vote, to wit:
AYES: Benson, Crites, Ferguson, Kelly, Spiegel
NOES: None
ABSENT: None
ABSTAIN: None
1. �' ROBERT A. SP E , a r
SHEILA R. GfELIGAN, Cjq Clerk
City of Palm Desert, _ I' ornia
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO
City Clerk
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92660
ATTN:
EXEMPT FROM RECORDING FEES
pursuant to Government Code §6103
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this
10thday of December , 1998, by and between the CITY OF PALM DESERT, a
municipal corporation ("City"), and MARRIOTT OWNERSHIP RESORTS, INC., a Delaware
corporation ("Developer") and is made with reference to the background facts and circumstances
set forth in the Recitals below. City and Developer are sometimes hereinafter referred to
individually as a "Party" and collectively as the "Parties". Terms capitalized herein are defined
in the text where the term is first used unless the meaning is self evident, or are listed in Section
1, below, entitled "Definitions".
RECITALS
A. California Government Code Section 65864 et seq., provides that the legislative
body of a city may enter into a development agreement for the development of real property in
order to vest certain rights in the developer and to meet certain public purposes of the local
government. Pursuant to California Government Code Section 65865, the City has adopted
Ordinance Nos. 341 and 589, which establish procedures and requirements for the approval of
development agreements.
B. Developer proposes to develop a timeshare project on real property (the
"Property") within the City as described in Exhibit "A", attached hereto, and incorporated herein
by this reference. In connection therewith, Developer has prepared a plan ("Development Plan")
specifying that the intended development shall comprise 1200 timeshare units, more or less,
along with certain amenities, functional areas and parking areas (the "Project") that shall be
developed pursuant to the terms of this Agreement, all as more fully described in the
Development Plan attached hereto as Exhibit `B" and incorporated herein by this reference.
C. Palm Desert Municipal Code Section 25.100.020 provides, in part, that any
timeshare project shall be developed in conjunction with a resort hotel having 500 rooms or
more, which requirement, as noted below, is satisfied in regards to this Project by the proposed
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development in conjunction with the 884 room Marriott Desert Springs Resort and Spa. The
primary purpose of this Municipal Code requirement is to insure that a timeshare project is
managed and operated in the same qualitative way as a major hotel. As noted above, this Project
3s being developed in conjunction with the 884 room Marriott Desert Springs Resort and Spa and
therefore meets the requirements of that Code Section. Moreover, in furtherance of the purpose
of that Code Section the Project will also conform to and satisfy the following:
1. Subject to the provisions of this Agreement, the Development of the
Project shall be in accordance with the Current Development Approvals,
which Current Development Approvals are mutually agreed shall provide
the City with economic benefits as required pursuant to that Code Section.
2. Developer, its successor or assigns, shall operate this Project in the same
or a similar manner as the other timeshare projects that Developer
operates.
3. The design and construction of the Project will be comparable in quality to
the Marriott Desert Springs Resort and Spa resort hotel, and the
Developer's method of organization and operation shall provide for
management of the Project in the same fashion as that Marriott facility.
D. City has given notice of its intention to adopt this proposed Agreement, has
conducted public hearings thereon pursuant to Government Code Section 65867, and Palm
Desert Municipal Code Ordinance Nos. 341 and 589, has taken action in accordance with the
California Environmental Quality Act, and has found that the provisions of this Agreement and
its purposes are consistent with the objectives, policies, general land uses and programs specified
in the City's general plan, and any applicable specific plan.
E. City has given notice of its intention to adopt this proposed Agreement, has
conducted public hearings thereon pursuant to Government Code Section 65867, and Palm
Desert Municipal Code Ordinance Nos. 341 and 589, has taken action in accordance with the
California Environmental Quality Act, and has found that the provisions of this Agreement and
its purposes are consistent with the objectives, policies, general land uses and programs specified
in the City's general plan, and any applicable specific plan.
F. City, by electing to enter into contractual agreements such as this one,
acknowledges that the obligations of the City shall survive beyond the terms of the present City
Council members of City, and that such action will serve to bind City and future Councils to the
obligations thereby undertaken. In addition, this Agreement shall limit the future exercise of
certain governmental and proprietary powers of City. By approving this Agreement, the City
Council has elected to exercise certain governmental powers at the time of entering this
Agreement rather than deferring its actions to some undetermined date in the future.
G. The terms and conditions of this Agreement have undergone extensive review by
City and its Council and have been found to be fair, just and reasonable. The City and its
Council have further found that the pursuit of the Project will serve the best interest of the
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citizens and that the public health, safety and welfare will be best served by entering this
Agreement.
H. This Agreement and the consent of Developer to each of its terms and conditions
will eliminate uncertainty in planning and provide for the orderly Development of the Property,
eliminate uncertainty about the validity of exactions imposed by the City, ensure timely
installation of necessary improvements, provide for public services appropriate to the
Development of the Project, and generally serve the public interest.
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
contained in this Agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
Definitions. The following terms when used in this Agreement shall be defined as
follows:
"Affiliate" means an entity defined as such in Section 150 of the California Corporations
Code.
"Current Development Approvals" means all Development Approvals approved or issued
before the Effective Date, and still valid and unexpired on the Effective Date.
. "Current Land Use Regulations" means all Land Use Regulations valid in effect and of
public record on the Effective Date.
"Developer" means Marriott Ownership Resorts, Inc., a Delaware corporation, and its
successors in interest to all or any part of the Property.
"Development" means the initial and original improvement of the Property by
constructing and completing the building, structures, improvements, and facilities which are part
of the Project including, but not limited to, grading; the construction of on -site or offsite public
facilities and improvements; and landscaping. "Development" does not include maintenance,
repair, reconstruction or redevelopment of any building, structure, improvement, or facility after
its initial construction and completion unless such repair, reconstruction or redevelopment is
undertaken as a result of casualty or condemnation of the Project and such repair, reconstruction
or redevelopment is performed and completed in a manner consistent with the Development
Plan.
"Development Approvals" means all permits, licenses or other entitlements, whether
discretionary or ministerial, subject to approval or issuance by the City in connection with the
Development of the Property, including, but not limited to, this Development Agreement DA98-
1 (adopted as Ordinance 888 of the City, per City Council action takenDecember 10,
1998), PRECISE PLAN/CONDITIONAL USE PERMIT 98-5 approved by Resolution 98108 ,
Tentative Tract #28818 approved by City Council resolution 98408.
"Development Plan" means the Current Development Approvals and the Current Land
Use Regulations, both of which control Development of the Property, supplemented by the
description of the Project as set forth in Exhibit "B", attached hereto.
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"Effective Date" means the date this Agreement is recorded by the clerk of the legislative
body of the City with the County Recorder, as required by Section 65868.5 of the California
Government Code.
"Land Use Regulations" means all ordinances; resolutions; codes; rules; regulations; and
official policies whether adopted by ordinance, resolution, or otherwise; of the City controlling
or regulating any aspect of the Development and use of land, including, but not limited to, the
permitted uses of land; the density or intensity of use; subdivision requirements; the maximum
height and size of proposed buildings; the reservation or dedication of land for public purposes;
sign regulations; zoning covering any subject, including, but not limited to, those subjects listed
in Government Code Section 65850; and the design, improvement and construction standards
and specifications for Development of the Property. Land Use Regulations does not include any
City ordinance, resolution, code, rule, regulation or official policy, governing the conduct of
business, professions, and occupations; taxes and assessments; the control and abatement of
nuisances; 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 the exercise of the power of
eminent domain.
"Subsequent Development Approvals" means all Development Approvals required after
the Effective Date in connection with the Development of the Property.
"Subsequent Land Use Regulations" means any Land Use Regulations adopted and
effective after the Effective Date of the Agreement.
2. Binding Effect of Agreement. Development of this Property is hereby authorized
and shall be- carried out in accordance with the terms of this Agreement. The Property and
Developer are subject to each term, condition and covenant of this Agreement.
3. Ownership of Property. Developer represents that it is the owner of the Property
which is the subject of this Agreement.
4. Relationship of the Parties. It is hereby specifically understood and
acknowledged that the Project is a private project and that neither City nor Developer will be
deemed to be the agent of the other for any purpose whatsoever. City and Developer hereby
renounce the existence of any form of joint venture or partnership between them and agree that
nothing contained herein or in any document executed in connection herewith shall be construed
as making City and Developer joint venturers or partners.
5. Term. The term ("Term") of this Agreement is twenty (20) years from the
Effective Date, subject to earlier termination or extension as hereinafter provided.
6. Termination. This Agreement shall be deemed terminated and of no further effect
upon mutual consent of the Parties or occurrence of any of the following events:
6.1 Expiration of this Agreement as set forth in Section 5.
6.2. Entry of a final judgment setting aside, voiding or annulling the adoption
of the ordinance approving this Agreement.
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6.3 The adoption of a referendum measure overriding or repealing the
ordinance approving this Agreement, or overriding or repealing any ordinance, law or Current
Land Use Regulation which Developer determines is reasonably necessary to the completion of
the Project in accordance with the Development Plan and Developer's budget thereof.
6.4 Termination of the POA or Developer's failure to acquire the Property.
6.5 Termination as provided by Section 65865.1 of the California Government
Code or other applicable provisions of law.
Upon termination of this Agreement, no Party shall have any further right or obligation
hereunder except with respect to: (a) any obligation to have been performed before such
termination; (b) any default in performance of the provisions of this Agreement which has
occurred before such termination; or (c) any obligations which are specifically set forth as
surviving this Agreement.
7. Project Approval and Vesting Rights. Developer shall submit applications for and
diligently pursue the processing of such Development Approvals as are required by City's
ordinances or policies in connection with the implementation of the Development Plan.
7.1 CEOA Review. The Project implements a land use plan for which full
compliance with the California Environmental Quality Act ("CEQA") was certified as City of
Palm Desert Resolution 98-108 on November 12 , 1998. Therefore, the
provisions of CEQA have been fully met and satisfied.
7.2 Rights to Develop. The City hereby approves the proposed uses of the
Property, the density and intensity of use, the maximum height and size of proposed buildings,
and provisions for reservation and dedication of land for purposes as set forth in the
Development Plan.
7.3 Existing Rules to Govern, Vesting Provision. Subject to the terms,
conditions and covenants of this Agreement, Developer is hereby granted a vested right to
develop the Project in accordance with the Development Plan, including any conditions of
approval associated with the Current Land Use Regulations, during the Term of this Agreement.
Such rules and regulations shall continue to apply, notwithstanding the development of the
Project as provided herein, to the reconstruction of any Developer Improvements or offsite
improvements damaged or destroyed from any cause. Except as otherwise provided in this
Agreement, the use designation for the Property, the permitted uses of the Property, the density
or intensity of use, the maximum height and size of any proposed buildings and the reservation
or dedication of land for public purposes are as set forth in the Development Plan as approved by
the City for the Property prior to the Effective Date. As a material inducement to the Developer
to continue with diligent efforts to promote the development of the Property as contemplated
herein, the City desires to cause all development rights consistent with the General Plan, the
Development Plan and this Agreement which may be required to develop the Project to
completion to be deemed vested in Developer to the full extent permitted by law. The
Developer's decision to commence the development of the Project is based on expectations of
proceeding to completion with all land use entitlements vested by virtue of this Agreement. The
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City agrees to take all steps reasonably necessary, in a timely manner, to facilitate the review and
approval of subdivision, site planning, construction applications and all Subsequent
Development Approvals requested by Developer subsequent to the Effective Date with respect to
the Project.
7.4 Timing of Development; Extension of Maps. The Parties acknowledge
that Developer cannot at this time predict when or the rate at which phases of the Property 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, absorption, completion and
other similar factors. City agrees that the Developer, its successors and assigns shall be entitled
to proceed with development of the Project at such times as Developer may choose, and that no
delays, moratoriums, or general suspension in project development approvals will be imposed by
the City on the Property during the term hereof. In addition to and not in limitation of the
foregoing, the City agrees that no moratorium or other limitation (whether relating to the rate,
timing or sequencing of the development or construction of all or any part of the Project, whether
imposed by ordinance, resolution or other action by, in the name of, or on behalf of the City)
affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building
permits, occupancy permits, utility service and/or utility clearances or other entitlements to use
or service portions of the Property (including, without limitation, water and sewer services)
approved, issued or granted by the City shall apply to the Project to the extent such moratorium
or other limitation is in conflict with this Agreement. Because the California Supreme Court
ruled in Pardee Construction Co. v. Cily of Camarillo (1984) 37 Ca1.3d 465, that failure of the
parties therein to provide for the timing of development resulted in a later adopted initiative
restricting the timing of development to prevail over such parties' agreement, it is the Parties
intent to cure that deficiency by acknowledging and providing that Developer shall have the right
to obtain all permits (including, without limitation, grading and/or building permits), construct
improvements and develop the Project in such order and at such rate and at such times as
Developer deems appropriate, within the exercise of its subjective business judgment, and
consistent with this Agreement. In order to facilitate the above rights of Developer to develop in
accordance with market demand, City agrees that pursuant to the provisions of California
Government Code. §66452.6(a), the tern of tentative maps and/or vesting tentative maps
submitted by Developer with respect to any portion of the Property and approved by the City
shall be extended beyond the normal expiration period for an additional time to coincide with the
Term of this Agreement, including any extensions.
7.5 Findina Related to Palm Desert Municipal Code Section 25.100.020. The
City finds that the Project is being developed in conjunction with the Marriott Desert Springs
Resort and Spa, as noted in Recital C, above, and that the provisions of Palm Desert Municipal
Code Section 25.100.020 requiring that a time-share project shall be developed in conjunction
with a five hundred (500) room hotel are thereby satisfied.
7.6 Weekly Facilities Fee. The Developer also agrees, for so long as the
Developer shall control the association of timeshare interest owners at the Project (the
"Association"), to cause, and from and after the date on which the Developer shall no longer
control the Association, to use its best efforts to cause the collection of a $30.00 per week fee for
the use of each timeshare interest sold (the "Weekly Facilities Fee"). The Weekly Facilities Fee
will be adjusted annually on July 1 beginning July 1, 1999, using the Consumer Price Index for
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Los Angeles/Riverside/Orange Counties (March to March). The Weekly Facilities Fee shall be
paid to the City on a quarterly basis beginning with the first payment on the first day of the
fourth month following the Effective Date of this Agreement. The first payment shall include
payment of the Weekly Facilities Fee for the balance of the first month plus the next two months.
Thereafter, the Weekly Facilities Fee shall be paid on the first day of each third month for the
next three-month period. Provided, however, that the agreement of the Developer to cause or use
its best efforts to cause the collection of the Weekly Facilities Fee does not constitute the
obligation of the Developer (except to the extent that Developer has purchased a weekly
timeshare interest), its successors or assigns to pay the Weekly Facilities Fee, and nothing herein
shall be deemed to create an obligation on Developer to pay the Weekly Facilities Fee.
8. Public Works. If Developer is required by the Development Plan or this
Agreement to construct any public works facilities or improvement of which will be dedicated to
the City or any other public agency upon completion, and if required by the applicable laws to do
so, Developer shall perform such work in the same manner and subject to the same requirements
as would be. applicable to the City or such other public agency should it have undertaken the
construction.
9. Regulation by Other Public A eg n`cies. It is acknowledged by the Parties that other
public agencies not within the control of the City possess authority to regulate aspects of the
Development of the Property, separately or jointly with the City, and this Agreement does not
limit the authority of such other public agencies.
10. Processing of Applications and Permits. Notwithstanding any other provision of
this Agreement, the following Subsequent Land Use Regulations and Subsequent Development
Approvals shall apply to the Development of the Property:
10.1 Processing of building permits as required by law relating to any specific
improvements proposed for the Project pursuant to the applicable provisions of the City's
Municipal Code which are in effect on the Effective Date of this Agreement.
10.2 Processing fees and charges usually and uniformly imposed by the City on
applicants and projects to cover the estimated actual costs to the City of processing applications
for: (a) Development Approvals, including, but not limited to, architectural review; (b)
monitoring compliance with any Development Approvals; and (c) monitoring compliance with
environmental mitigation measures. City shall diligently process all applications for such
permits or other entitlements with respect to the Project and the use of the Property in accordance
with this Agreement.
10.3 Procedural regulations relating to hearing bodies, petitions, applications,
notices, findings, records, hearings, reports, recommendations, appeals and any other matter of
procedure.
10.4 Regulations governing construction standards and specifications
including, without limitation, the City's Building Code, Plumbing Code, Mechanical Code,
Electrical Code, Fire Code, and Grading Code.
PJWALSH/30507/38627v16 7
10.5 Regulations which may be in conflict with the Development Plan, but
which are reasonably necessary to protect the public health and safety. To the extent possible,
any such regulations shall be applied and construed so as to provide Developer with the rights
and assurances provided under this Agreement.
10.6 Regulations which are not in conflict with the Development Plan.
10.7 Regulations which are in conflict with the Development Plan provided
Developer has given written consent to. the application of such regulations to the Development of
the Property, which consent may be granted or withheld in Developer's sole and absolute
discretion.
11. Assignment.
11.1 Limits on Assignment. No sale, transfer or assignment of any right or
interest under this Agreement shall be made to any person or entity which, upon the effective
date of the assignment, does not own or operate a resort hotel having 500 rooms or more within
the City of Palm Desert.
11.2 Right to Assign. Developer shall have the right to sell, transfer or assign
all or any portion of the Property (provided that no such partial transfer of the Property shall be
permitted to cause a violation of Government Code Sections 66410, et seq.) to other individuals
or entities during the term of this Agreement, subject to 11.1 above.
11.2.1 Concurrently with any such sale, transfer or assignment Developer
shall provide the City with an agreement, in a form reasonably acceptable to the City, executed
by the purchaser, transferee or assignee, stating that the purchaser, transferee or assignee
expressly assumes all the duties and obligations of Developer under this Agreement.
11.2.2 Notwithstanding the failure of any purchaser, transferee or
assignee to execute the agreement required by Section 11.2.1, the burdens of this Agreement
shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement
shall not inure to the benefit of such purchaser, transferee or assignee until or unless such
agreement is executed.
11.3 Change in Controlling Interest. The change in controlling interest of
Developer, or the sale, transfer or assignment of the Property and this Agreement to an entity
which is an Affiliate of Developer (as the term "Affiliate" is defined in Section 1 hereof) shall
not be deemed an assignment for purposes of this Section 11; provided, however, that no such
change in controlling interest or sale, transfer or assignment to an Affiliate shall release the
original Developer named herein from the obligations and duties hereof unless such release is
approved by the City.
12. Review of Compliance.
12.1 Periodic Review. The Director of Community Development or the
Planning Commission shall review this Agreement at least once each calendar year during the
Term of this Agreement in order to ascertain whether Developer is in compliance with the terms
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and conditions set forth herein. Within thirty (30) days of receiving a request from the Director
of Community Development, Developer shall submit an annual report, in a form acceptable to
the Director of Community Development, to the City.
12.2 Special Review. In the event of an alleged default of this Agreement the
Director of Community Development or the Planning Commission may order a special review to
determine if Developer is in compliance with this Agreement. Said special review shall be
conducted by the Director of Community Development or the Planning Commission.
12.3 Procedure for Review.
12.3.1 During any periodic or special review, Developer shall have the
burden of proof with respect to and must demonstrate its good faith compliance with the terms of
this Agreement.
12.3.2 Upon completion of a periodic or special review, the Director of
Community Development or the Planning Commission, as applicable, shall make a
determination as to whether Developer has complied in good faith with the terms of this
Agreement. If the Director of Community Development or the Planning Commission, as
applicable, determines, on the basis of substantial evidence, that Developer has complied in good
faith with the terms and conditions of this Agreement, the review shall be concluded.
12.3.3 If the Director of Community Development or the Planning
Commission, as applicable, determines, on the basis of substantial evidence, that Developer has
not complied in good faith with the terms of this Agreement, the findings of the Director of
Community Development or the Planning Commission, as applicable, shall be submitted to the
City Council.
12.3.4 The City Council shall thereafter set the matter for public hearing
and shall provide the Developer with at least ten (10) days prior notice of the hearing. Said
notice shall contain: (a) the time and place of hearing; (b) a detailed statement of the City's facts
and contentions; and (c) such other information as is reasonably necessary to inform Developer
of the nature of the claims being asserted by the City.
12.3.5 At the time and place set for hearing, Developer shall be given an
opportunity to be heard, to present oral and written evidence and to respond to the contentions of
the City. If the City Council finds, based on all the evidence, that Developer has not complied in
good faith with the terms of this Agreement, the City Council may, subject to Developer's right
to cure (if any) exercise its remedies provided by law, including, without limitation, the right to
modify or terminate this Agreement as provided in Government Code Section 65865.1.
12.3.6 If the City Council finds, based on all the evidence, that Developer
has complied in good faith with the terms of the Agreement, the City shall, upon the request of
Developer, issue a Certificate of Compliance, stating that the Agreement remains in effect and
Developer is acting in good faith compliance of its terms.
13. Minor Deviations Not Amendments. The Parties acknowledge that refinement of
the Property may require Subsequent Development Approvals and may demonstrate that changes
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are appropriate and mutually desirable in the Current Development Approvals. In the event that
Developer finds that a change in the Current Development Approvals is necessary or appropriate,
Developer shall apply for a Subsequent Development Approval to effectuate such change, and
the City shall process and act on such application to approve, approve conditionally, or deny, it
in accordance with the Current Land Use Regulations, except as otherwise provided by this
Agreement. Unless otherwise required by law, a change to the Current Development Approvals
shall be deemed "minor" and shall not require an Amendment to this Agreement provided such
change does not:
13.1 Alter the permitted uses of the Property in whole or in part; or
13.2 Increase the density or intensity of use above that permitted by underlying
zoning of the Property; or
13.3 Increase the maximum height and size of permitted buildings; or
13.4 Constitute a project requiring a subsequent or supplemental environmental
impact report pursuant to Public Resources Code Section 21166.
Before a minor deviation is implemented, the other Party must be given notice of such
contemplated deviation. Deviations which are not consented to by the other Party shall require
submission to the amendment process.
14. Modification or Suspension by State or Federal Law. In the event that State or
Federal laws or regulations enacted after the Effective Date of this Agreement preempt the
Agreement or City's authority to perform hereunder, or the action or inaction of any affected
governmental jurisdiction other than City or any instrumentality thereof prevents or precludes
compliance with one or more provisions of this Agreement as a matter of law, such provisions
shall be modified or suspended as may be necessary to comply with the State or Federal law or
regulation. The remainder of the Agreement shall remain in full force and effect to the extent
that the Parties agree that it is not inconsistent with such laws and regulations and to the extent
that such laws and regulations do not render the remaining provisions impractical to enforce.
15. Vesting Tentative Maps. If any tentative or final subdivision map, or tentative or
final parcel map, heretofore or hereafter approved in connection with Development of the
Property, is a vesting map under the Subdivision Map Act, Government Code Section 66410, et
seq., and if this Agreement is determined by a final judgment to be invalid or unenforceable
insofar as it grants a vested right to develop to Developer, then and to that extent the rights and
protections afforded Developer under the laws and ordinances applicable to vesting maps shall
supersede the provisions of this Agreement. Except as set forth immediately above,
Development of the Property shall occur only as provided in this Agreement, and the provisions
in this Agreement shall be controlling over any conflicting provision of law or ordinance
concerning vested maps.
16. Indemnification. From and after the date that Developer acquires title to the
Property, Developer agrees to and shall indemnify and hold City and its agents, officers,
servants, employees and contractors harmless from any liability, whatsoever, based or asserted
upon any negligent or intentional act or omission of Developer, its officers, agents, employees,
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subcontractors, and independent contractors for property damage, bodily injury or death to any
person (Developer's employees included), or any other element of damage of any kind or nature,
relating to or in any way connected with the Property or arising from the activities contemplated
hereunder, save and except claims for damages arising through the negligence or willful
misconduct of the City. Developer shall defend, at its expense, including attorneys' fees, the
City, its officers, agents, employees and independent contractors in any legal action based upon
such alleged acts or omissions. The City may in its discretion participate in the defense of any
such legal action. The provisions of this Section 16 shall survive the termination of this
Agreement.
17. Defense Obli ation. From and after the date of the execution of this Agreement,
Developer agrees to and shall, at Developer's expense, defend, pay all costs and provide a
defense for the City and the City's Redevelopment Agency and their respective agents, officers,
servants and employees in any action challenging the validity of this Agreement. The City and
the City's Redevelopment Agency may, in their sole discretion, participate in the defense of any
such legal action through legal counsel of such City's or Agency's choice at Developer's
expense. The provisions of this Section 17 shall survive the termination of this Agreement.
18. Environmental Assurances. Developer shall indemnify and hold the 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, contractors, subcontractors and
independent contractors for any violation of any federal, state or local law, ordinance or
regulation relating to hazardous or toxic materials, industrial hygiene, or environmental
conditions created by Developer or its officers, agents or employees, contractors, subcontractors
and independent contractors after the Effective Date on or under the Property, including but not
limited to soil and groundwater conditions, and Developer shall defend, at its expense, including
attorneys' fees, the City, its officers, agents and employees in any action based or asserted upon
any such alleged act or omission. The City may in its discretion participate in the defense of any
such action. The provisions of this Section 18 shall survive the termination of this Agreement.
19. Reservation of Rights. With respect to Sections 17 and 18, the City reserves the
right to: (a) approve the attorney(s) which Developer selects, hires or otherwise engages to
defend the City hereunder, which approval shall not be unreasonably withheld or delayed, or (b)
select its own counsel subject to the reasonable approval of Developer. Developer shall
reimburse the City forthwith for any and all reasonable expenses incurred for such defense,
including attorneys' fees, upon conclusion of any such legal action.
20. Notices. All notices or other communications required or permitted hereunder
shall be in writing and shall be either (i) personally delivered (which shall include delivery by
means of professional overnight courier service which confirms receipt in writing (such as
Federal Express or UPS)), (ii) sent by telecopier or facsimile machine capable of confirming
transmission and receipt, along with a true copy sent that same day by regular mail, or (iii) sent
by certified or registered mail, return receipt requested, postage prepaid to the following parties
at the following addresses or numbers:
PI WALSw30507/38627v 16 11
If to City: City of Palm Desert
City Clerk
73-510 Fred Waring Drive
Palm Desert, California 92260
Telephone: (760) 346-0611
Facsimile: (760) 340-0524
with a copy to: Best Best & Krieger LLP
Attn: David J. Erwin
39700 Bob Hope Drive, Suite 312
Rancho Mirage, California 92270
Telephone: (760) 568-2611
Facsimile: (760) 340-6698
If to Developer: Marriott Ownership Resorts, Inc.
Attn: Vice President Development
6649 Westwood Boulevard, Suite 500
Orlando, Florida 32821
Telephone: (407) 206-6102
Facsimile: (407) 206-6030
with a copy to: Marriott Ownership Resorts, Inc.
Attn: Assistant General Counsel
6649 Westwood Boulevard, Suite 500
Orlando, Florida 32821
Telephone: (407) 206-6400
Facsimile: (407) 206-6420
Notices sent in accordance with this paragraph shall be deemed delivered on: (i) the date of
delivery as indicated on the written confirmation of delivery (if sent by overnight courier
service); (ii) the date of actual receipt (if personally delivered by other means permitted above);
or (iii) the date of delivery as.indicated on the return receipt if sent by certified or registered
mail, return receipt requested. Notice of change of address shall be given by written notice in the
manner detailed in this paragraph.
21. Events of Default by Developer. Developer shall be in default under the terms of
this Agreement for any of the following reasons:
21.1 Developer's failure to perform any material obligation or provision set
forth herein, or failure to comply with any material provision or obligation of the Development
Plan.
21.2 Any representation or warranty made herein by Developer proves to have
been incorrect in any material respect when made.
21.3 Any sale or transfer of the Property or the Project, or any portion thereof,
without compliance with the provisions of Section 11 hereof.
PJWALSI V30507/38627v 16 12
21.4 Developer becomes the subject of an order for relief by a bankruptcy
court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment
for the benefit of creditors; or Developer applies or consents to the appointment of a receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer (each, a "Security
Officer"), or such Security Officer is appointed without the application of or consent of
Developer and the appointment continues undischarged or unstayed for ninety (90) days; or the
Developer institutes or consents to any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, dissolution, custodianship, conservatorship, liquidation, rehabilitation or
similar proceeding relating to it or any part of its property; or any similar proceeding is instituted
without the consent of the Developer and continues undismissed or unstayed for ninety (90)
days.
Notwithstanding any provision of this Agreement to the contrary,
Developer shall be deemed to be in default under this Agreement only after the City provides
Developer with written notice of default, which notice shall specify the nature of such default,
and Developer has not cured the default within ninety (90) days after receipt of the notice of
default, or thereafter fails to diligently pursue the cure of such default until completion.
21.5 Events of Default by City. The City shall be deemed in default in the
event of a failure by the City to perform a material term of this Agreement; provided, however,
the City shall be deemed in default only after the Developer provides the City with written notice
of default setting forth the nature of the default and the actions, if any, required by the City to
cure such default and where the default can be cured, the City has failed to take such actions to
cure the default within thirty (30) days after the effective date of the notice, or in the event the
default cannot be cured within thirty (30) days, the City has failed to commence the actions
necessary to cure the default within such thirty (30) day period.
21.6 Remedies. Upon an event of default by either Party, the non -defaulting
Party may pursue any remedy at law or in equity available, including termination of or
modification of this Agreement. In the event of the termination of this Agreement, all
Development Approvals shall terminate except to the extent they would have otherwise vested in
Developer by operation of law without this Agreement.
In addition to the foregoing remedies, the Parties acknowledge that irreparable harm is
likely to occur to the non -breaching Party and damages will be an inadequate remedy.
Therefore, to the extent permitted by law, it is expressly recognized that injunctive relief and
specific enforcement of this Agreement are proper and desirable remedies.
22. Riphts and Remedies are Cumulative. The rights and remedies of the Parties are
cumulative, and the exercise by either Party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same time or different times, of any other rights and remedies
for the same default or any other default by the other Party.
23. Entire Agreement. This Agreement and the exhibits herein contain the entire
agreement between the Parties, and is intended by the Parties to completely state the Agreement
in full. Any agreement or representation respecting the matters dealt with herein or the duties of
any Party in relation thereto, not expressly set forth in this Agreement, is null and void.
PIWALSN/30507/38627v16 13
24. Severability. If any term, provision, condition, or covenant of this Agreement, or
the application thereof to any Party or circumstance, shall to any extent be held invalid or
unenforceable, the remainder of the instrument, or the application of such term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected thereby and each term and provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
25. Attorneys' Fees. In the event of any action or proceeding, including an arbitration
or a reference pursuant to Section 638, et seq., of the Code of Civil Procedure, brought by either
Party against the other under this Agreement, the prevailing Party shall be entitled to recover its
reasonable attorneys' fees and all fees, costs and expenses incurred for prosecution, defense,
consultation, or advice in such action or proceeding. Such fees., costs and expenses shall include
fees, costs and expenses incurred on appeal or in collection of any judgments. This provision is
separate and several and shall survive the merger of this Agreement into any judgment on this
Agreement.
26. Counterparts. This Agreement may be executed in one or more counterparts, each
of which will be deemed an original, but all of which constitute one and the same instrument.
27. Encumbrances on Property.
27.1 Discretion to Encumber. The Parties hereto agree that this Agreement
shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from
encumbering the Property or any portion thereof or any improvements thereon with any
mortgage, deed of trust or other security device ("Security Device") securing financing with
respect to the Development of the Property. The execution of any Security Device shall not be
considered a sale, transfer or assignment for purposes of Section 11.
27.2 Security Device Cooperation. The City acknowledges that the lenders
providing Security Devices may require certain modifications, and the City agrees upon request,
from time -to -time, to meet with Developer and/or representatives of such lenders to consider any
request for interpretation or modification which is consistent with the intent and purposes of this
Agreement and which will not diminish in any manner the benefits of this Agreement to the City.
28. Regulatory�Device Cooperation. This Agreement shall not prevent or limit
Developer, in any manner, at Developer's sole discretion, from obtaining the approval of any
regulatory agency necessary to the approval of any sale, transfer or assignment of the Property or
interests therein, subject to the terms and conditions of this Agreement. The City acknowledges
that governmental authorities and agencies may request certain interpretations and modifications
of this Agreement. The City agrees upon request, from time -to -time, to meet with Developer
and/or representatives of such governmental authorities to consider any request for interpretation
or modification which is consistent with the intent and purposes of this Agreement and which
will not diminish in any manner the benefits of this Agreement to the City.
29. School Mitigation. Developer will fulfill all statutory obligations concerning
school mitigation fees.
P)WALSH/30507l38627v16 14
30. Covenants. Developer warrants and covenants that it shall abide by and perform
all obligations and provisions required herein.
31. Recitals Incorporated. The Recitals to this Agreement are hereby incorporated
within this Agreement.
32. Governing Law. The Agreement and any dispute arising hereunder shall be
governed and interpreted in accordance with the laws of the State of California.
33. Headings. All section headings and subheadings are inserted for convenience
only and shall have no effect on the construction or interpretation of the Agreement.
34. Joint and Several Obligations. If at any time during the Term of this Agreement
the Property is owned, in whole or in part, by more than one Developer, all obligations of such
Development Agreement shall be joint and several, but the default of any one such Developer
shall not be attributed to any other Developer.
35. Time is of Essence. Time is of the essence in the performance of the provisions
of this Agreement as to which time is an element.
36. Binding on Successors. The burdens of the Agreement are binding upon, and the
benefits of the Agreement inure to the benefit of, all successors -in -interest of the Parties to the
Agreement, and constitute covenants which run with the Property. In order to provide continued
notice thereof, this Agreement shall be recorded by the Parties.
37. Waiver. Failure by a Party to insist upon strict performance of any of the
provisions of this Agreement by the other Party, or the failure by the Party to exercise is rights
upon the default of the other Party, shall not constitute a waiver of such party's right to insist and
demand thereafter strict compliance by the other Party with the terms of this Agreement.
38. Further Actions. Each of the Parties hereto shall cooperate with and provide
reasonable assistance to the other to the extent contemplated in the performance of all obligations
under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request
of either Party at any time, the other shall promptly execute, with acknowledgement or affidavit
if reasonably required, and file or record such instruments and writings and take any actions as
may be reasonably necessary under the terms of this Agreement or to evidence or consummate
the transactions contemplated by this Agreement.
39. Eminent Domain. No provision of this Agreement shall be construed to limit or
restrict the City's power of eminent domain.
40. Agent for Service of Process. In the event that Developer is not a resident of the
State of California, or it is an association, partnership or joint venture without a member, partner
or joint venture without a member, partner or joint venturer resident within the State of
California, or it is a foreign corporation, Developer shall file with the City, upon its execution of
this Agreement, a designation of a natural person as its agent for the purpose of serving process
in any court action arising out of or based upon this Agreement. Said designation shall include
the person's name and residence and business address. The delivery to such agent of a copy of
PJWALSW30507/38627v16 15
any process in any such action shall constitute valid service upon Developer. If service of
process of such agent is infeasible for any reason, Developer may be personally served with such
process out of this County, and such service shall constitute valid service upon Developer.
Developer is amenable to any such process so served.
41. Authority to Execute. The person or persons executing this Agreement warrant
and represent that they have the authority to execute this Agreement and warrant and represent
that they have the authority to bind the Party on whose behalf they sign.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the year
and date set forth below.
City
CITY OF PALM DESERT,
a municipal corporation
By:_� -
ROBERT A. SPIEGEL, yor
Attest:
%SHEILA R.•GILLIGAN, City Clerk
Approved a �tcjm: %
DAVID J. R , City Attorney
Developer
MARRIOTT OWNERSHIP RESORTS, INC.,
a Delaware rporation
Its:
Its:
7
NWALSH/30507/38627v16 16
STATE OF CALIFORNIA )
) ss:
COUNTY OF c - )
On- - , , JyQW , before me the undersigned, a Notary Public in and for said
County and State, personally appeared j ,1 r ; � rn "I , personally known tome (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
p,AcHeu.E�N
COMM, 01141948
NOTARY PUBLIC - CAIFOR��.�
1' p!VERS^= Cou'-y
1
otary Pub is
M.WINS
y� F!,%C"ZLLE D. KLASSE4
COMM. i1141948
�G: c NOTARY PUBLIC - CALFORM
.. 4 MERSDE COUNTY
Alp Comm. Exp..Axw 13, 2001 i
'wnti
0
STATE OF CALIFORNIA )
) ss:
COUNTY OF Qk yaOS Y--_ )
On before me, the undersigned, a Notary Public in and for said
County and State, personally appeared Cam, -A. SP,�.F+—: personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/shelthey executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
;a IM c. ia.aMWO
ssa
COMM, 01141948
NOTARY PUBW • CALFCP
MWERSOE CCUNIY
ly Coma. EqL.1n 13. 2=
Notary Pub
1—'
1
STATE OF CALIFORNIA )
ss:
COUNTY OF , )
On i 498 , before me, the undersi ed, a Notary Public in and for said
County and State, personally appearedo (�- si, L 4c.,nJ, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument andacknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
'
RACHELLE D. KLASSEN
' L r
COMM.81141948
NOTARY P1JWC - GLFORNIA
`
+
RNERSDE COUNTY
My Comm. Exp Ju» m =
Notary PubHc
DEC 07 '98 05 : 57PM 1-0-imm I V I I - -Hw ix r i
PARCEL A:
THE SOUTHWEST ONE -QUARTER OF SECTION 32, TOWNSHIP 4, SOUTH,
RANGE 6 EAST, SAN BERNARDING BASE MZ= AN.,
TOGETHER WITH PARCEL 2 OF PARCEL MAP NO. 19504 ON FILE IN BOOK
119, PAGES 98 AND 99 OF PARCEL 14iAPS, RECORDS OF RIVERSIDE COUNTY
RECORDER -
SUBJECT TO EXISTING EASEMENTS AND RIGHTS OF WAY OF RECORD.
COMPRISING 295.19 ACRES. MORE AND LESS.
PARCEL B;
THAT PORTION OF SECTION 32. TOWNSHM 4 SOUTH, RANGE 6 EAST, SAN
BERNARDINO BASE MERRMIAN.,
DESCRIBED AS FOLLOWS:
THE SOUTHERLY 362.90 FEET OF PARCEL 1 OF PARCEL MAP NO. 19504 ON
FILE LN BOOK 118, PAGES 98 AND 99 OF PARCEL. MAPS, RECORDS OF
RIVERSIDE COUNTY RECORDER -
PARCEL PARCEL C:
THAT PORTION OF SECTION 32, TOWNSHIP 4 SOUTH, R .NGE 6 EAST, SAN
BERNARDLNO BASE NfElLMIA'v,
DESCRIBED AS FOLLOWS:
PARCEL I OF PARCEL MAP NO. 19504 ON FILE IN BOOK 118, PAGES 98 AN_D
99 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY RECORDER
EXCEPTING THEREFROM THE SOUTHERLY 362.90 FEET THEREOF.
1A'j TO Be
caff on
By: r
17
PE�EI' 'ED TIME DEC. 7. 3: 01PM PRINT TIME DEC. 7. 3: 03PM
1
r
Exhibit "B"
Development Plan for Property
BASIC CONFIGURATION
The Property designated in Exhibit "A" as the 306 +/- acre "Initial Parcel' shall be developed as
a timeshare project comprising approximately 999 two bedroom lockout units (1998 keys), each
two bedroom unit being referred to herein as a "Villa". The units will be approximately 1,253
square feet in size. Corridors will be single loaded and the buildings will be a maximum of three
stories in height, with an elevator for guest access.
AMENITIES
The Property shall be developed to include a main pool and several local pools, developed to
provide approximately 30 square feet of water area per Villa, a whirlpool spa, and related
decking, to be more fully described on the final approved site plan for the Project. The local
pool areas will typically include a building with the pool area grill, toilets, and vending
equipment. The main amenity will be a golf course of approximately 6,800 yards, along with
facilities for a teaching institute and a clubhouse facility. Other amenities shall include a fitness
center including health/gym facilities, a sauna, steam room lockers, and toilets.
PARKING
The following parking shall be provided:
1. Parking shall be provided at a count of 1.1 spaces per Villa of which 1 space per Villa
shall be covered.
2. Parking at the sales center shall be provided at a count of 220 spaces.
PHASING
Developer shall be permitted to phase development of the Project into six (6) "Villages", and
Villages are internally phased based on sales demand. The Villages are initially contemplated to
have the following number of Villas: Village A, 171 Villas; Village B, 153 Villas; Village C,
135 Villas; Village D, 240 Villas; Village E 102 Villas; Village F, 198.
ATTACHED IS SITE PLAN TO PRECISE PLAN/CONDITIONAL USE PERMIT 98-5
PJ WALSW30507/38627v 16
18
■■�Ifl'llllll --
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO
City Clerk
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert. CA 92660
ATTN:
EXEMPT FROM RECORDING FEES
pursuant to Government Code §6103
041346
REMVED FOR RECORD
AT 8:00 AM
DEVELOPMENT AGREEMENT
FEB -1 1999
Oki" 0�
Fla S n- am
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this
lOth day of December 1998, by and between the CITY OF PALM DESERT, a
municipal corporation ("City"), and MARRIOTT OWNERSHIP RESORTS, INC., a Delaware
corporation ("Developer") and is made with reference to the background facts and circumstances
set forth in the Recitals below. City and Developer are sometimes hereinafter referred to
individually as a "Party" and collectively as the "Parties". Terms capitalized herein are defined
in the text where the term is first used unless the meaning is self evident, or are listed in Section
1, below, entitled "Definitions".
RECITALS
A. California Government Code Section 65864 et seq., provides that the legislative
body of a city may enter into a development agreement for the development of real property in
order to vest certain rights in the developer and to meet certain public purposes of the local
government. Pursuant to California Government Code Section 65865, the City has adopted
Ordinance Nos. 341 and 589, which establish procedures and requirements for the approval of
development agreements.
B. Developer proposes to develop a timeshare project on real property (the
"Property") within the City as described in Exhibit "A", attached hereto, and incorporated herein
by this reference. In connection therewith, Developer has prepared a plan ("Development Plan")
specifying that the intended development shall comprise 1200 timeshare units, more or less,
along with certain amenities, functional areas and parking areas (the "Project") that shall be
developed pursuant to the terms of this Agreement, all as more fully described in the
Development Plan attached hereto as Exhibit "B" and incorporated herein by this reference.
C. Palm Desert Municipal Code Section 25.100.020 provides, in part, that any
timeshare project shall be developed in conjunction with a resort hotel having 500 rooms or
more, which requirement, as noted below, is satisfied in regards to this Project by the proposed
,J
413,1.6
development in conjunction with the 884 room Marriott Desert Springs Resort and Spa. The
primary purpose of this Municipal Code requirement is to insure that a timeshare project is
managed and operated in the same qualitative way as a major hotel. As noted above, this Project
is being developed in conjunction with the 884 room Marriott Desert Springs Resort and Spa and
therefore meets the requirements of that Code Section. Moreover, in furtherance of the purpose
of that Code Section the Project will also conform to and satisfy the following:
Subject to the provisions of this Agreement, the Development of the
Project shall be in accordance with the Current Development Approvals,
which Current Development Approvals are mutually agreed shall provide
the City with economic benefits as required pursuant to that Code Section.
2. Developer, its successor or assigns, shall operate this Project in the same
or a similar manner as the other timeshare projects that Developer
operates.
3. The design and construction of the Project will be comparable in quality to
the Marriott Desert Springs Resort and Spa resort hotel, and the
Developer's method of organization and operation shall provide for
management of the Project in the same fashion as that Marriott facility.
D. City has given notice of its intention to adopt this proposed Agreement, has
conducted public hearings thereon pursuant to Government Code Section 65867, and Palm
Desert Municipal Code Ordinance Nos. 341 and 589, has taken action in accordance with the
California Environmental Quality Act, and has found that the provisions of this Agreement and
its purposes are consistent with the objectives, policies, general land uses and programs specified
in the City's general plan, and any applicable specific plan.
E. City has given notice of its intention to adopt this proposed Agreement, has
conducted public hearings thereon pursuant to Government Code Section 65867, and Palm
Desert Municipal Code Ordinance Nos. 341 and 589, has taken action in accordance with the
California Environmental Quality Act, and has found that the provisions of this Agreement and
its purposes are consistent with the objectives, policies, general land uses and programs specified
in the City's general plan, and any applicable specific plan.
F. City, by electing to enter into contractual agreements such as this one,
acknowledges that the obligations of the City shall survive beyond the terms of the present City
Council members of City, and that such action will serve to bind City and future Councils to the
obligations thereby undertaken. In addition, this Agreement shall limit the future exercise of
certain governmental and proprietary powers of City. By approving this Agreement, the City
Council has elected to exercise certain governmental powers at the time of entering this
Agreement rather than deferring its actions to some undetermined date in the future.
G. The terms and conditions of this Agreement have undergone extensive review by
City and its Council and have been found to be fair, just and reasonable. The City and its
Council have further found that the pursuit of the Project will serve the best interest of the
III"k II ',I I, Mh(;I IKf. , IF
�13�fi
citizens and that the public health, safety and welfare will be best served by entering this
Agreement.
H. This Agreement and the consent of Developer to each of its terms and conditions
will eliminate uncertainty in planning and provide for the orderly Development of the Property,
eliminate uncertainty about the validity of exactions imposed by the City, ensure timely
installation of necessary improvements, provide for public services appropriate to the
Development of the Project, and generally serve the public interest.
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
contained in this Agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
1. Definitions. The following terms when used in this Agreement shall be defined as
follows:
"Affiliate" means an entity defined as such in Section 150 of the California Corporations
Code.
"Current Development Approvals" means all Development Approvals approved or issued
before the Effective Date, and still valid and unexpired on the Effective Date.
"Current Land Use Regulations" means all Land Use Regulations valid in effect and of
public record on the Effective Date.
"Developer" means Marriott Ownership Resorts, Inc., a Delaware corporation, and its
successors in interest to all or any part of the Property.
"Development" means the initial and original improvement of the Property by
constructing and completing the building, structures, improvements, and facilities which are part
of the Project including, but not limited to, grading; the construction of on -site or offsite public
facilities and improvements; and landscaping. "Development" does not include maintenance,
repair, reconstruction or redevelopment of any building, structure, improvement, or facility after
its initial construction and completion unless such repair, reconstruction or redevelopment is
undertaken as a result of casualty or condemnation of the Project and such repair, reconstruction
or redevelopment is performed and completed in a manner consistent with the Development
Plan.
"Development Approvals" means all permits, licenses or other entitlements, whether
discretionary or ministerial, subject to approval or issuance by the City in connection with the
Development of the Property, including, but not limited to, this Development Agreement DA98-
1 (adopted as Ordinance 888 of the City, per City Council action takenDecember 10,
1998), PRECISE PLAN/CONDITIONAL USE PERMIT 98-5 approved by Resolution 98-108,
Tentative Tract 428818 approved by City Council resolution 98-108.
"Development Plan" means the Current Development Approvals and the Current Land
Use Regulations, both of which control Development of the Property, supplemented by the
description of the Project as set forth in Exhibit "B", attached hereto.
41:3,16
"Effective Date" means the date this Agreement is recorded by the clerk of the legislative
body of the City with the County Recorder, as required by Section 65868.5 of the California
Government Code.
"Land Use Regulations" means all ordinances; resolutions; codes; rules; regulations; and
official policies whether adopted by ordinance, resolution, or otherwise; of the City controlling
or regulating any aspect of the Development and use of land, including, but not limited to, the
permitted uses of land; the density or intensity of use; subdivision requirements; the maximum
height and size of proposed buildings; the reservation or dedication of land for public purposes;
sign regulations; zoning covering any subject, including, but not limited to, those subjects listed
in Government Code Section 65850; and the design, improvement and construction standards
and specifications for Development of the Property. Land Use Regulations does not include any
City ordinance, resolution, code, rule, regulation or official policy, governing the conduct of
business, professions, and occupations; taxes and assessments; the control and abatement of
nuisances; 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 the exercise of the power of
eminent domain.
"Subsequent Development Approvals" means all Development Approvals required after
the Effective Date in connection with the Development of the Property.
"Subsequent Land Use Regulations" means any Land Use Regulations adopted and
effective after the Effective Date of the Agreement.
2. Bindinp, Effect of Agreement. Development of this Property is hereby authorized
and shall be .carried out in accordance with the terms of this Agreement. The Property and
Developer are subject to each term, condition and covenant of this Agreement.
3. Ownership of Property. Developer represents that it is the owner of the Property
which is the subject of this Agreement.
4. Relationship of the Parties. It is hereby specifically understood and
acknowledged that the Project is a private project and that neither City nor Developer will be
deemed to be the agent of the other for any purpose whatsoever. City and Developer hereby
renounce the existence of any form of joint venture or partnership between them and agree that
nothing contained herein or in any document executed in connection herewith shall be construed
as making City and Developer joint venturers or partners.
5. Term. The term ("Term") of this Agreement is twenty (20) years from the
Effective Date, subject to earlier termination or extension as hereinafter provided.
6. Termination. This Agreement shall be deemed terminated and of no further effect
upon mutual consent of the Parties or occurrence of any of the following events:
6.1 Expiration of this Agreement as set forth in Section 5.
6.2 Entry of a final judgment setting aside, voiding or annulling the adoption
of the ordinance approving this Agreement.
L .. LI �.,
413�S�i
6.3 The adoption of a referendum measure overriding or repealing the
ordinance approving this Agreement, or overriding or repealing any ordinance, law or Current
Land Use Regulation which Developer determines is reasonably necessary to the completion of
the Project in accordance with the Development Plan and Developer's budget thereof.
6.4 Termination of the POA or Developer's failure to acquire the Property.
6.5 Termination as provided by Section 65865.1 of the California Government
Code or other applicable provisions of law.
Upon termination of this Agreement, no Party shall have any further right or obligation
hereunder except with respect to: (a) any obligation to have been performed before such
termination; (b) any default in performance of the provisions of this Agreement which has
occurred before such termination; or (c) any obligations which are specifically set forth as
surviving this Agreement.
7. Project Approval and Vesting Rights. Developer shall submit applications for and
diligently pursue the processing of such Development Approvals as are required by City's
ordinances or policies in connection with the implementation of the Development Plan.
7.1 CEQA Review. The Project implements a land use plan for which full
compliance with the California Environmental Quality Act ("CEQA") was certified as City of
Palm Desert Resolution 98-108 on November 12 , 1998. Therefore, the
provisions of CEQA have been fully met and satisfied.
7.2 Rights to Develop. The City hereby approves the proposed uses of the
Property, the density and intensity of use, the maximum height and size of proposed buildings,
and provisions for reservation and dedication of land for purposes as set forth in the
Development Plan.
7.3 Existing Rules to Govern; Vesting Provision. Subject to the terms,
conditions and covenants of this Agreement, Developer is hereby granted a vested right to
develop the Project in accordance with the Development Plan, including any conditions of
approval associated with the Current Land Use Regulations, during the Term of this Agreement.
Such rules and regulations shall continue to apply, notwithstanding the development of the
Project as provided herein, to the reconstruction of any Developer Improvements or offsite
improvements damaged or destroyed from any cause. Except as otherwise provided in this
Agreement, the use designation for the Property, the permitted uses of the Property, the density
or intensity of use, the maximum height and size of any proposed buildings and the reservation
or dedication of land for public purposes are as set forth in the Development Plan as approved by
the City for the Property prior to the Effective Date. As a material inducement to the Developer
to continue with diligent efforts to promote the development of the Property as contemplated
herein, the City desires to cause all development rights consistent with the General Plan, the
Development Plan and this Agreement which may be required to develop the Project to
completion to be deemed vested in Developer to the full extent permitted by law. The
Developer's decision to commence the development of the Project is based on expectations of
proceeding to completion with all land use entitlements vested by virtue of this Agreement. The
4Z:3,s43
City agrees to take all steps reasonably necessary, in a timely manner, to facilitate the review and
approval of subdivision, site planning, construction applications and all Subsequent
Development Approvals requested by Developer subsequent to the Effective Date with respect to
the Project.
7.4 Timing of Development; Extension of Maps. The Parties acknowledge
that Developer cannot at this time predict when or the rate at which phases of the Property 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, absorption, completion and
other similar factors. City agrees that the Developer, its successors and assigns shall be entitled
to proceed with development of the Project at such times as Developer may choose, and that no
delays, moratoriums, or general suspension in project development approvals will be imposed by
the City on the Property during the term hereof. In addition to and not in limitation of the
foregoing, the City agrees that no moratorium or other limitation (whether relating to the rate,
timing or sequencing of the development or construction of all or any part of the Project, whether
imposed by ordinance, resolution or other action by, in the name of, or on behalf of the City)
affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building
permits, occupancy permits, utility service and/or utility clearances or other entitlements to use
or service portions of the Property (including, without limitation, water and sewer services)
approved, issued or granted by the City shall apply to the Project to the extent such moratorium
or other limitation is in conflict with this Agreement. Because the California Supreme Court
ruled in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, that failure of the
parties therein to provide for the timing of development resulted in a later adopted initiative
restricting the timing of development to prevail over such parties' agreement, it is the Parties
intent to cure that deficiency by acknowledging and providing that Developer shall have the right
to obtain all permits (including; without limitation, grading and/or building permits), construct
improvements and develop the Project in such order and at such rate and at such times as
Developer deems appropriate, within the exercise of its subjective business judgment, and
consistent with this Agreement. In order to facilitate the above rights of Developer to develop in
accordance with market demand, City agrees that pursuant to the provisions of California
Government Code §66452.6(a), the term of tentative maps and/or vesting tentative maps
submitted by Developer with respect to any portion of the Property and approved by the City
shall be extended beyond the normal expiration period for an additional time to coincide with the
Term of this Agreement, including any extensions.
7.5 Finding Related to Palm Desert Municipal Code Section 25.100.020. The
City finds that the Project is being developed in conjunction with the Marriott Desert Springs
Resort and Spa, as noted in Recital C, above, and that the provisions of Palm Desert Municipal
Code Section 25.100.020 requiring that a time-share project shall be developed in conjunction
with a five hundred (500) room hotel are thereby satisfied.
7.6 Weekly Facilities Fee. The Developer also agrees, for so long as the
Developer shall control the association of timeshare interest owners at the Project (the
"Association"), to cause, and from and after the date on which the Developer shall no longer
control the Association, to use its best efforts to cause the collection of a $30.00 per week fee for
the use of each timeshare interest sold (the "Weekly Facilities Fee"). The Weekly Facilities Fee
will be adjusted annually on July I beginning July 1, 1999, using the Consumer Price Index for
Los Angeles/Riverside/Orange Counties (March to March). The Weekly Facilities Fee shall be
paid to the City on a quarterly basis beginning with the first payment on the first day of the
fourth month following the Effective Date of this Agreement. The first payment shall include
payment of the Weekly Facilities Fee for the balance of the first month plus the next two months.
Thereafter, the Weekly Facilities Fee shall be paid on the first day of each third month for the
next three-month period. Provided, however, that the agreement of the Developer to cause or use
its best efforts to cause the collection of the Weekly Facilities Fee does not constitute the
obligation of the Developer (except to the extent that Developer has purchased a weekly
timeshare interest), its successors or assigns to pay the Weekly Facilities Fee, and nothing herein
shall be deemed to create an obligation on Developer to pay the Weekly Facilities Fee.
8. Public Works. If Developer is required by the Development Plan or this
Agreement to construct any public works facilities or improvement of which will be dedicated to
the City or any other public agency upon completion, and if required by the applicable laws to do
so, Developer shall perform such work in the same manner and subject to the same requirements
as would be applicable to the City or such other public agency should it have undertaken the
construction.
9. Regulation by Other Public Agencies. ncies. It is acknowledged by the Parties that other
public agencies not within the control of the City possess authority to regulate aspects of the
Development of the Property, separately or jointly with the City, and this Agreement does not
limit the authority of such other public agencies.
10. Processing of Applications and Permits. Notwithstanding any other provision of
this Agreement, the following Subsequent Land Use Regulations and Subsequent Development
Approvals shall apply to the Development of the Property:
10.1 Processing of building permits as required by law relating to any specific
improvements proposed for the Project pursuant to the applicable provisions of the City's
Municipal Code which are in effect on the Effective Date of this Agreement.
10.2 Processing fees and charges usually and uniformly imposed by the City on
applicants and projects to cover the estimated actual costs to the City of processing applications
for: (a) Development Approvals, including, but not limited to, architectural review; (b)
monitoring compliance with any Development Approvals; and (c) monitoring compliance with
environmental mitigation measures. City shall diligently process all applications for such
permits or other entitlements with respect to the Project and the use of the Property in accordance
with this Agreement.
10.3 Procedural regulations relating to hearing bodies, petitions, applications,
notices, findings, records, hearings, reports, recommendations, appeals and any other matter of
procedure.
10.4 Regulations governing construction standards and specifications
including, without limitation, the City's Building Code, Plumbing Code, Mechanical Code,
Electrical Code, Fire Code, and Grading Code.
413,343
10.5 Regulations which may be in conflict with the Development Plan, but
which are reasonably necessary to protect the public health and safety. To the extent possible,
any such regulations shall be applied and construed so as to provide Developer with the rights
and assurances provided under this Agreement.
10.6 Regulations which are not in conflict with the Development Plan.
10.7 Regulations which are in conflict with the Development Plan provided
Developer has given written consent to the application of such regulations to the Development of
the Property, which consent may be granted or withheld in Developer's sole and absolute
discretion.
11. Assignment.
11.1 Limits on Assignment. No sale, transfer or assignment of any right or
interest under this Agreement shall be made to any person or entity which, upon the effective
date of the assignment, does not own or operate a resort hotel having 500 rooms or more within
the City of Palm Desert.
11.2 Right to Assign. Developer shall have the right to sell, transfer or assign
all or any portion of the Property. (provided that no such partial transfer of the Property shall be
permitted to cause a violation of Government Code Sections 66410, et seq.) to other individuals
or entities during the term of this Agreement, subject to 11.I above.
11.2.1 Concurrently with any such sale, transfer or assignment Developer
shall provide the City with an agreement, in a form reasonably acceptable to the City, executed
by the purchaser, transferee or assignee, stating that the purchaser, transferee or assignee
expressly assumes all the duties and obligations of Developer under this Agreement.
11.2.2 Notwithstanding the failure of any purchaser, transferee or
assignee to execute the agreement required by Section 11.2.1, the burdens of this Agreement
shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement
shall not inure to the benefit of such purchaser, transferee or assignee until or unless such
agreement is executed.
11.3 Change in Controlling Interest. The change in controlling interest of
Developer, or the sale, transfer or assignment of the Property and this Agreement to an entity
which is an Affiliate of .Developer (as the term "Affiliate" is defined in Section I hereof) shall
not be deemed an assignment for purposes of this Section 11; provided, however, that no such
change in controlling interest or sale, transfer or assignment to an Affiliate shall release the
original Developer named herein from the obligations and duties hereof unless such release is
approved by the City.
12. Review of Compliance.
12.1 Periodic Review. The Director of Community Development or the
Planning Commission shall review this Agreement at least once each calendar year during the
Term of this Agreement in order to ascertain whether Developer is in compliance with the terms
34 #3
and conditions set forth herein. Within thirty (30) days of receiving a request from the Director
of Community Development, Developer shall submit an annual report, in a form acceptable to
the Director of Community Development, to the City.
12.2 Special Review. In the event of an alleged default of this Agreement the
Director of Community Development or the Planning Commission may order a special review to
determine if Developer is in compliance with this Agreement. Said special review shall be
conducted by the Director of Community Development or the Planning Commission.
12.3 Procedure for Review.
12.3.1 During any periodic or special review, Developer shall have the
burden of proof with respect to and must demonstrate its good faith compliance with the terms of
this Agreement.
12.3.2 Upon completion of a periodic or special review, the Director of
Community Development or the Planning Commission, as applicable, shall make a
determination as to whether Developer has complied in good faith with the terms of this
Agreement. If the Director of Community Development or the Planning Commission, as
applicable, determines, on the basis of substantial evidence, that Developer has complied in good
faith with the terms and conditions of this Agreement, the review shall be concluded.
12.3.3 If the Director of Community Development or the Planning
Commission, as applicable, determines, on the basis of substantial evidence, that Developer has
not complied in good faith with the terms of this Agreement, the findings of the Director of
Community Development or the Planning Commission, as applicable, shall be submitted to the
City Council.
12.3.4 The City Council shall thereafter set the matter for public hearing
and shall provide the Developer with at least ten (10) days prior notice of the hearing. Said
notice shall contain: (a) the time and place of hearing; (b) a detailed statement of the City's facts
and contentions; and (c) such other information as is reasonably necessary to inform Developer
of the nature of the claims being asserted by the City.
12.3.5 At the time and place set for hearing, Developer shall be given an
opportunity to be heard, to present oral and written evidence and to respond to the contentions of
the City. If the City Council finds, based on all the evidence, that Developer has not complied in
good faith with the terms of this Agreement, the City Council may, subject to Developer's right
to cure (if any) exercise its remedies provided by law, including, without limitation, the right to
modify or terminate this Agreement as provided in Government Code Section 65865.1.
12.3.6 If the City Council finds, based on all the evidence, that Developer
has complied in good faith with the terms of the Agreement, the City shall, upon the request of
Developer, issue a Certificate of Compliance, stating that the Agreement remains in effect and
Developer is acting in good faith compliance of its terms.
13. Minor Deviations Not Amendments. The Parties acknowledge that refinement of
the Property may require Subsequent Development Approvals and may demonstrate that changes
are appropriate and mutually desirable in the Current Development Approvals. In the event that
Developer finds that a change in the Current Development Approvals is necessary or appropriate,
Developer shall apply for a Subsequent Development Approval to effectuate such change, and
the City shall process and act on such application to approve, approve conditionally, or deny, it
in accordance with the Current Land Use Regulations, except as otherwise provided by this
Agreement. Unless otherwise required by law, a change to the Current Development Approvals
shall be deemed "minor" and shall not require an Amendment to this Agreement provided such
change does not:
13.1 Alter the permitted uses of the Property in whole or in part; or
13.2 Increase the density or intensity of use above that permitted by underlying
zoning of the Property; or
13.3 Increase the maximum height and size of permitted buildings; or
I3.4 Constitute a project requiring a subsequent or supplemental environmental
impact report pursuant to Public Resources Code Section 21166.
Before a minor deviation is implemented, the other Party must be given notice of such
contemplated deviation. Deviations which are not consented to by the other Party shall require
submission to the amendment process.
14. Modification or Suspension by State or Federal Law. In the event that State or
Federal laws or regulations enacted after the Effective Date of this Agreement preempt the
Agreement or City's authority to perform hereunder, or the action or inaction of any affected
governmental jurisdiction other than City or any instrumentality thereof prevents or precludes
compliance with one or more provisions of this Agreement as a matter of law, such provisions
shall be modified or suspended as may be necessary to comply with the State or Federal law or
regulation. The remainder of the Agreement shall remain in full force and effect to the extent
that the Parties agree that it is not inconsistent with such laws and regulations and to the extent
that such laws and regulations do not render the remaining provisions impractical to enforce.
15. Vesting Tentative Maps. If any tentative or final subdivision map, or tentative or
final parcel map, heretofore or hereafter approved in connection with Development of the
Property, is a vesting map under the Subdivision Map Act, Government Code Section 66410, et
seq., and if this Agreement is determined by a final judgment to be invalid or unenforceable
insofar as it grants a vested right to develop to Developer, then and to that extent the rights and
protections afforded Developer under the laws and ordinances applicable to vesting maps shall
supersede the provisions of this Agreement. Except as set forth immediately above,
Development of the Property shall occur only as provided in this Agreement, and the provisions
in this Agreement shall be controlling over any conflicting provision of law or ordinance
concerning vested maps.
16. Indemnification. From and after the date that Developer acquires title to the
Property, Developer agrees to and shall indemnify and hold City and its agents, officers,
servants, employees and contractors harmless from any liability, whatsoever, based or asserted
upon any negligent or intentional act or omission of Developer, its officers, agents, employees,
subcontractors, and independent contractors for property damage, bodily injury or death to any
person (Developer's employees included), or any other element of damage of any kind or nature,
relating to or in any way connected with the Property or arising from the activities contemplated
hereunder, save and except claims for damages arising through the negligence or willful
misconduct of the City. Developer shall defend, at its expense, including attorneys' fees, the
City, its officers, agents, employees and independent contractors in any legal action based upon
such alleged acts or omissions. The City may in its discretion participate in the defense of any
such legal action. The provisions of this Section 16 shall survive the termination of this
Agreement.
17. Defense Obligation. From and after the date of the execution of this Agreement,
Developer agrees to and shall, at Developer's expense, defend, pay all costs and provide a
defense for the City and the City's Redevelopment Agency and their respective agents, officers,
servants and employees in any action challenging the validity of this Agreement. The City and
the City's Redevelopment Agency may, in their sole discretion, participate in the defense of any
such legal action through legal counsel of such City's or Agency's choice at Developer's
expense. The provisions of this Section 17 shall survive the termination of this Agreement.
18. Environmental Assurances. Developer shall indemnify and hold the 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, contractors, subcontractors and
independent contractors for any violation of any federal, state or local law, ordinance or
regulation relating to hazardous or toxic materials, industrial hygiene, or environmental
conditions created by Developer or its officers, agents or employees, contractors, subcontractors
and independent contractors after the Effective Date on or under the Property, including but not
limited to soil and groundwater conditions, and Developer shall defend, at its expense, including
attorneys' fees, the City, its officers, agents and employees in any action based or asserted upon
any such alleged act or omission. The City may in its discretion participate in the defense of any
such action. The provisions of this Section 18 shall survive the termination of this Agreement.
19. Reservation of Rights. With respect to Sections 17 and 18, the City reserves the
right to: (a) approve the attorneys) which Developer selects, hires or otherwise engages to
defend the City hereunder, which approval shall not be unreasonably withheld or delayed, or (b)
.select its own counsel subject to the reasonable approval of Developer. Developer shall
reimburse the City forthwith for any and all reasonable expenses incurred for such defense,
including attorneys' fees, upon conclusion of any such legal action.
20. Notices. All notices or other communications required or permitted hereunder
shall be in writing and shall be either (i) personally delivered (which shall include delivery by
means of professional overnight courier service which confirms receipt in writing (such as
Federal Express or UPS)), (ii) sent by telecopier or facsimile machine capable of confirming
transmission and receipt, along with a true copy sent that same day by regular mail, or (iii) sent
by certified or registered mail, return receipt requested, postage prepaid to the following parties
at the following addresses or numbers:
'11:3,103
If to City: City of Palm Desert
City Clerk
73-510 Fred Waring Drive
Palm Desert, California 92260
Telephone: (760) 346-0611
Facsimile: (760) 340-0524
with a copy to: Best Best & Krieger LLP
Attn: David J. Erwin
39700 Bob Hope Drive, Suite 312
Rancho Mirage, California 92270
Telephone: (760) 568-2611
Facsimile: (760) 340-6698
If to Developer: Marriott Ownership Resorts, Inc.
Attn: Vice President Development
6649 Westwood Boulevard, Suite 500
Orlando, Florida 32821
Telephone: (407) 206-6102
Facsimile: (407) 206-6030
with a copy to: Marriott Ownership Resorts, Inc.
Attn: Assistant General Counsel
6649 Westwood Boulevard, Suite 500
Orlando, Florida 32921
Telephone: (407) 206-6400
Facsimile: (407) 206-6420
Notices sent in accordance with this paragraph shall be deemed delivered on: (i) the date of
delivery as indicated on the written confirmation of delivery (if sent by overnight courier
service); (ii) the date of actual receipt (if personally delivered by other means permitted above);
or (iii) the date of delivery as indicated on the return receipt if sent by certified or registered
mail, return receipt requested. Notice of change of address shall be given by written notice in the
manner detailed in this paragraph.
21. Events of Default by Developer. Developer shall be in default under the terms of
this Agreement for any of the following reasons:
21.1 Developer's failure to perform any material obligation or provision set
forth herein, or failure to comply with any material provision or obligation of the Development
Plan.
21.2 Any representation or warranty made herein by Developer proves to have
been incorrect in any material respect when made.
21.3 Any sale or transfer of the Property or the Project, or any portion thereof,
without compliance with the provisions of' Section I 1 hereof.
PII1 ',I 04"'W -107:38617e 1" j 1
'! 1 "3,3 6
21.4 Developer becomes the subject of an order for relief by a bankruptcy
court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment
for the benefit of creditors; or Developer applies or consents to the appointment of a receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer (each, a "Security
Officer"), or such Security Officer is appointed without the application of or consent of
Developer and the appointment continues undischarged or unstayed for ninety (90) days; or the
Developer institutes or consents to any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, dissolution, custodianship, conservatorship, liquidation, rehabilitation or
similar proceeding relating to it or any part of its property; or any similar proceeding is instituted
without the consent of the Developer and continues undismissed or unstayed for ninety (90)
days.
Notwithstanding any provision of this Agreement to the contrary,
Developer shall be deemed to be in default under this Agreement only after the City provides
Developer with written notice of default, which notice shall specify the nature of such default,
and Developer has not cured the default within ninety (90) days after receipt of the notice of
default, or thereafter fails to diligently pursue the cure of such default until completion.
21.5 Events of .Default by City. The City shall be deemed in default in the
event of a failure by the City to perform a material term of this Agreement; provided, however,
the City shall be deemed in default only after the Developer provides the City with written notice
of default setting forth the nature of the default and the actions, if any, required by the City to
cure such default and where the default can be cured, the City has failed to take such actions to
cure the default within thirty (30) days after the effective date of the notice, or in the event the
default cannot be cured within thirty (30) days, the City has failed to continence the actions
necessary to cure the default within such thirty (30) day period.
21.6 Remedies. Upon an event of default by either Party, the non -defaulting
Party may pursue any remedy at law or in equity available, including termination of or
modification of this Agreement. In the event of the termination of this Agreement, all
Development Approvals shall terminate except to the extent they would have otherwise vested in
Developer by operation of law without this Agreement.
In addition to the foregoing remedies, the Parties acknowledge that irreparable harm is
likely to occur to the non -breaching Party and damages will be an inadequate remedy.
Therefore, to the extent permitted by law, it is expressly recognized that injunctive relief and
specific enforcement of this Agreement are proper and desirable remedies.
22. Rights and Remedies are Cumulative. The rights and remedies of the Parties are
cumulative, and the exercise by either Party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same time or different times, of any other rights and remedies
for the same default or any other default by the other Party.
23, Entire Agreement. This Agreement and the exhibits herein contain the entire
agreement between the Parties, and is intended by the Parties to completely state the Agreement
in full. Any agreement or representation respecting the matters dealt with herein or the duties of
any Party in relation thereto, not expressly set forth in this Agreement, is null and void.
413,16
24. Severability. If any term, provision, condition, or covenant of this Agreement, or
the application thereof to any Party or circumstance, shall to any extent be held invalid or
unenforceable, the remainder of the instrument, or the application of such term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected thereby and each term and provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
25. Attorneys' Fees. In the event of any action or proceeding, including an arbitration
or a reference pursuant to Section 638, et seq., of the Code of Civil Procedure, brought by either
Party against the other under this Agreement, the prevailing Party shall be entitled to recover its
reasonable attorneys' fees and all fees, costs and expenses incurred for prosecution, defense,
consultation, or advice in such action or proceeding. Such fees, costs and expenses shall include
fees, costs and expenses incurred on appeal or in collection of any judgments. This provision is
separate and several and shall survive the merger of this Agreement into any judgment on this
Agreement.
26. Counterparts. This Agreement may be executed in one or more counterparts, each
of which will be deemed an original, but all of which constitute one and the same instrument.
27. Encumbrances on Property.
27.1 Discretion to Encumber. The Parties hereto agree that this Agreement
shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from
encumbering the Property or any portion thereof or any improvements thereon with any
mortgage, deed of trust or other security device ("Security Device") securing financing with
respect to the Development of the Property. The execution of any Security Device shall not be
considered a sale, transfer or assignment for purposes of Section 11.
27.2 Security Device Cooperation. The City acknowledges that the lenders
providing Security Devices may require certain modifications, and the City agrees upon request,
from time -to -time, to meet with Developer and/or representatives of such lenders to consider any
request for interpretation or modification which is consistent with the intent and purposes of this
Agreement and which will not diminish in any manner the benefits of this Agreement to the City.
28. Regulatory Device Cooperation. This Agreement shall not prevent or limit
Developer, in any manner, at Developer's sole discretion, from obtaining the approval of any
regulatory agency necessary to the approval of any sale, transfer or assignment of the Property or
interests therein, subject to the terms and conditions of this Agreement. The City acknowledges
that governmental authorities and agencies may request certain interpretations and modifications
of this Agreement. The City agrees upon request, from time -to -time, to meet with Developer
and/or representatives of such governmental authorities to consider any request for interpretation
or modification which is consistent with the intent and purposes of this Agreement and which
will not diminish in any manner the benefits of this Agreement to the City.
29. School Mitigation. Developer will fulfill all statutory obligations concerning
school mitigation fees.
4I;3.10S
30. Covenants. Developer warrants and covenants that it shall abide by and perform
all obligations and provisions required herein.
31. Recitals Incorporated. The Recitals to this Agreement are hereby incorporated
within this Agreement.
32. Governing Law. The Agreement and any dispute arising hereunder shall be
governed and interpreted in accordance with the laws of the State of California.
33. Headings. All section headings and subheadings are inserted for convenience
only and shall have no effect on the construction or interpretation of the Agreement.
34. Joint and Several Obligations. If at any time during the Term of this Agreement
the Property is owned, in whole or in part, by more than one Developer, all obligations of such
Development Agreement shall be joint and several, but the default of any one such Developer
shall not be attributed to any other Developer.
35. Time is of Essence. Time is of the essence in the performance of the provisions
of this Agreement as to which time is an element.
36. Binding on Successors. The burdens of the Agreement are binding upon, and the
benefits of the Agreement inure to the benefit of, all successors -in -interest of the Parties to the
Agreement, and constitute covenants which run with the Property. In order to provide continued
notice thereof, this Agreement shall be recorded by the Parties.
37. Waiver. Failure by a Party to insist upon strict performance of any of the
provisions of this Agreement by the other Party, or the failure by the Party to exercise is rights
upon the default of the other Party, shall not constitute a waiver of such party's right to insist and
demand thereafter strict compliance by the other Party with the terms of this Agreement.
38. Further Actions. Each of the Parties hereto shall cooperate with and provide
reasonable assistance to the other to the extent contemplated in the performance of all obligations
under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request
of either Party at any time, the other shall promptly execute, with acknowledgement or affidavit
if reasonably required, and file or record such instruments and writings and take any actions as
may be reasonably necessary under the terms of this Agreement or to evidence or consummate
the transactions contemplated by this Agreement.
39. Eminent Domain. No provision of this Agreement shall be construed to limit or
restrict the City's power of eminent domain.
40. Agent for Service of Process. In the event that Developer is not a resident of the
State of California, or it is an association, partnership or joint venture without a member, partner
or joint venture without a member, partner or joint venturer resident within the State of
California, or it is a foreign corporation, Developer shall the with the City, upon its execution of
this Agreement, a designation of a natural person as its agent for the purpose of serving process
in any court action arising out of or based upon this Agreement. Said designation shall include
the person's name and residence and business address. "Che delivery to such agent of a copy of
any process in any such action shall constitute valid service upon Developer. If service of
process of such agent is infeasible for any reason, Developer may be personally served with such
process out of this County, and such service shall constitute valid service upon Developer.
Developer is amenable to any such process so served.
41. Authority to Execute. The person or persons executing this Agreement warrant
and represent that they have the authority to execute this Agreement and warrant and represent
that they have the authority to bind the Party on whose behalf they sign.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the year
and date set forth below.
City Developer
CITY OF PALM DESERT, MARRIOTT OWNERSHIP RESORTS, INC.,
a municipal corporation a Delawareorporation p
i d
By: By: _
ROBERT A: IEGE , Ma or Its:
Att � ? .
By.
Its.
SHEILA R..O TLIGAT , gffy Clerk
Approve s Co'/fu !1;
DAVff r IN, City Attorney
41;3,1ig
STATE OF CALIFORNIA )
) ss:
COUNTY OF 23&�- )
On LrIr,JIt-) , before me the undersigned, a Notary Public in and for said
County and State, personally appeared personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Pu c
coRntxiBl.E D KtAsset
Mr�w�� �ooe
41:3Z�i
STATE OF CALIFORNIA }
ss:
COUNTY OF
On - j aQg , before me the undersigned, a Notary Public in and for said
County and State, personally appeared &BEgEA.Si gfi , personally lmown to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(&.) dare
subscribed to the within instrument and acknowledged to me that helshehhey executed the same
in hi&gw/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Pu lic
wu�u,Eaiaxsse+i �
oosea 0141we
M)VWPU"-fXFQVM1.
w #
'113,s 03
STATE OF CALIFORNIA )
) ss:
COUNTY OF ?WaS ixws-)
OR_Daa_,� t , 14?q g , before me, the undersi ed, a Notary Public in and for said
County and State, personally appearedpersonally known to me (or
proved to me on the basis of satisfactory evidence) to be the persons) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
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PARCEL A:
THE SOUTHWEST ONE -QUARTER OF SECTION 32, TOWNSHIP 4, SOUTH,
RANGE 6 EAST, SAN BERNARDINO BASE MERIDIAN,
TOGETHER WITH PARCEL 2 OF PARCEL MAP NO. 19504 ON FILE IN BOOK
118, PAGES 98 AND 99 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY
RECORDER -
SUBJECT TO EXISTING EASEMENTS AND RIGHTS OF WAY OF RECORD.
COMPRISING 295.18 ACRES, MORE AND LESS.
PARCEL B:
THAT PORTION OF SECTION 32, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN
BERNARDINO BASE MERIDIAN,
DESCRIBED AS FOLLOWS:
THE SOUTHERLY 362.90 FEET OF PARCEL I OF PARCEL MAP NO. 19504 ON
FILE IN BOOK 118, PAGES 98 AND 99 OF PARCEL MAPS, RECORDS OF
RIVERSIDE COUNTY RECORDER.
PARCEL C:
THAT PORTION OF SECTION 32, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN
BERNARDINO BASE MERIDIAN,
DESCRIBED AS FOLLOWS:
PARCEL I OF PARCEL MAP NO. 19504 ON FILE IN BOOK 118, PAGES 98 AND
99 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY RECORDER
EXCEPTING THEREFROM THE SOUTHERLY 362.90 FEET THEREOF.
Exhibit "B"
Development Plan for Property
BASIC CONFIGURATION
The Property designated in Exhibit "A" as the 306 +/- acre "Initial Parcel' shall be developed as
a timeshare project comprising approximately 999 two bedroom lockout units (1998 keys), each
two bedroom unit being referred to herein as a "Villa". The units will be approximately 1,253
square feet in size. Corridors will be single loaded and the buildings will be a maximum of three
stories in height, with an elevator for guest access.
AMENITIES
The Property shall be developed to include a main pool and several local pools, developed to
provide approximately 30 square feet of water area per Villa, a whirlpool spa, and related
decking, to be more fully described on the final approved site plan for the Project. The local
pool areas will typically include a building with the pool area grill, toilets, and vending
equipment. The main amenity will be a golf course of approximately 6,800 yards, along with
facilities for a teaching institute and a clubhouse facility. Other amenities shall include a fitness
center including health/gym facilities, a sauna, steam room lockers, and toilets.
PARKING
The following parking shall be provided:
1. Parking shall be provided at a count of 1.1 spaces per Villa of which 1 space per Villa
shall be covered.
2. Parking at the sales center shall be provided at a count of 220 spaces.
PHASING
Developer shall be permitted to phase development of the Project into six (6) "Villages", and
Villages are internally phased based on sales demand. The Villages are initially contemplated to
have the following number of Villas: Village A, 171 Villas; Village B, 153 Villas; Village C,
135 Villas; Village D, 240 Villas; Village E 102 Villas; Village F, 198.
ATTACHED IS SITE PLAN TO PRECISE PLAN/CONDITIONAL USE PERMIT 98-5