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Home My WebLink AboutORD 981ORDINANCE NO. 981 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT BETWEEN ABD PALM DESERT 118, LLC, AND THE CITY OF PALM DESERT FOR 117.5 +/- ACRES AT THE NORTHEAST CORNER OF TAMARISK ROW DRIVE AND COUNTRY CLUB DRIVE. CASE NO. DA 00-01 AS IT RELATES TO CASE NOS, GPA 00-07, C/Z 00-5. TT 29468 AND TT 29555 WHEREAS, the City Council of the City of Palm Desert, California, did on the 22nd day of February, 2001, hold a duly noticed public hearing to consider the request by ABD PALM DESERT 118, LLC, for approval of DA 00-01; and WHEREAS, California law provides the operative date of an ordinance may be made contingent upon the occurrence of a future event; and WHEREAS, it is the intention of City that this Ordinance shall become effective thirty (30) days after the date of its adoption but shall not become operative until the date of recordation of a grant deed conveying title to the Property from the existing owner of the Property, Palm Desert (Riverside) PIP, L.P. to ABD Palm Desert, LLC ("ABD Palm Desert") is recorded in the Official Records of Riverside County (the "Grant Deed Recordation Date"). 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 00-01 Exhibit "A" as 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, published and circulated in the City of Palm Desert, California, and shall take effect thirty (30) days after the date of its adoption; provided, however, this Ordinance shall only become operative upon the Grant Deed Recordation Date. ORDINANCE NO. 981 PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this 12th day of April , 2001, by the following vote, to wit: AYES: BENSON, CRITES, KELLY, SPIEGEL, FERGUSON NOES: NONE ABSENT: NONE ABSTAIN: NONE ATTEST: SHEILA R. GI LIGA City of Palm Desert ity Clerk ifornia 2 ORD I -NANCE NO. 981 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Cox, Castle & Nicholson LLP 2049 Century Park East, 28th Floo Los Angeles, CA 90067 Attn: Ronald I. Silverman, Esq. RECORDING REQUESTED BY CITY OF PALM DESERT GG�E RDI E S EMPT DUE TO RN ENT SECTION 27383 City Space Above Line For Recorder's Use Only) er DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PALM DESERT AND ABD PALM DESERT 118, LLC ORD 11VANCE NO. 981 TABLE OF CONTENTS Page Section I. Definitions ......................................... 5 Section II. BENEFITS TO CITY ................................... 5 Section III. Project Development ............................... 6 A. Permitted Uses ....................................... 6 B. Rules, Regulations and Official Policies ............. 6 1.Applicable Rules ................................... 6 2. Conflicting Enactments ............................. 7 3. Setbacks, Design Guidelines, Landscape Guidelines and Park Improvements ................ 8 C. Future Approvals ..................................... 8 D. Permitted Fees and Exactions ......................... 9 E. Permitted Conditions ................................. 9 F. Term of Map(s) and Other Project Approvals .......... 10 G. Timing of Development ............................... 10 H. Moratorium .......................................... 11 I. Vesting of Owner's Rights ........................... 11 J. Infrastructure Capacity ............................. 12 K. Infrastructure Phasing Flexibility .................. 12 L. Development Agreement/Project Approvals ............. 13 M. Operative Date of Project Approvals ................. 13 Section IV. COOPERATION/IMPLEMENTATION ........................ 14 A. Further Assurances; Covenant to Sign Documents...... 14 CRCHELED/34814/825255v11 i c 02/15/01 CARD I TNANCE NO. 981 B. Reimbursement ....................................... 14 C. Public Financing of Improvements .................... 14 D. Processing .......................................... 15 E. Processing During Third Party Litigation ............ 16 F. State, Federal or Case Law .......................... 16 G. Other Governmental Bodies ........................... 17 H. Defense of Agreement ................................ 17 I. Design/Development Standards ........................ 17 1. Easements ......................................... 17 2. Zoning ............................................ 18 3. Development Plan/Precise Plan ..................... 18 4. Exceptions ........................................ 18 5.Minimum Lot Size .................................. 18 6. Design Review ..................................... 19 7. Building Coverage ................................. 19 8. Common Open Space ................................. 19 9. Building Height ................................... 19 10. Private Roads .................................. 19 11. Parking ........................................ 19 12. Applicable Development Standards ............... 20 Section V. GENERAL PROVISIONS.................................20 A. Covenants Run with the Land ......................... 20 B. Transfers and Assignments ...........................21 1. Right to Assign...................................21 2. Liabilities Upon Transfer ......................... 21 CRCHELED/34814/825255v11 i i 02/15/01 ORD I "NANCE NO. 981 C. Mortgagee Protection................................22 D. Statement of Compliance ............................. 24 E. Default ............................................. 25 F. Annual Review ....................................... 26 G. Default by City ..................................... 26 H. Legal Action ........................................ 26 I. Waiver; Remedies Cumulative ......................... 28 J. Future Litigation Expenses .......................... 29 1. Payment to Prevailing Party ....................... 29 2.Scope of Fees.....................................29 K. Term ................................................ 29 L. Permitted Delays; Supersedure by Subsequent Laws .... 30 1. Permitted Delays .................................. 30 2. Supersedure by Subsequent Laws .................... 31 M. Amendment of Agreement .............................. 32 N. Operating Memoranda ................................. 32 0. Amendments to Project Approvals ..................... 33 Section VI. MISCELLANEOUS ..................................... 33 A. Negation of Partnership ............................. 33 B. No Third Party Beneficiary .......................... 34 C. Entire Agreement .................................... 34 D. Severability........................................ 34 E. Construction of Agreement ........................... 35 F. Section Headings .................................... 35 G. Applicable Law ...................................... 35 CRCHELED/34814/825255v11 i i i 02/15/01 ORD I 1-LANCE NO. 981 H. Notices ............................................. 35 I. Time is of the Essence .............................. 36 J. Limitation of Liability ............................. 37 K. Recordation ......................................... 37 L. Termination ......................................... 37 CRCHELED/34814/825255v11 iv 02/15/01 CARD I NANCE No. 981 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PALM DESERT AND ABD PALM DESERT 118, LLC THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of this 12th day of April , 2001, by and between the CITY OF PALM DESERT, a municipal corporation ("City"), and ABD PALM DESERT 118, LLC, a California Limited Liability Company ("Owner"). W I T N E S S E T H: A. The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. B. California Government Code Sections 65864-65869.5 (the "Development Agreement Statute") were therefore enacted authorizing a municipality to enter into binding development agreements with persons having legal or equitable interests in real property. C. Owner has a legal or equitable interest in certain real property located in City more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"). D. Subject to the provisions of the "Project Approvals" (as defined below), Owner's project will constitute an approximately 255-unit (but in no event more than 270 unit) CRCHELED/34814/825255v11 1 02/15/01 ORD I I'UANCE NO. 981 single-family detached residential community (the "Project") as depicted on the Illustrative Plan ("Illustrative Plan") attached hereto as Exhibit "B" and incorporated herein by this reference. All residential lots shall have a minimum lot size of 10,000 square feet. E. This Agreement is intended by the parties to become effective only upon the date of recordation of a grant deed conveying title to all or a portion of the Property from the existing owner of the Property, Palm Desert (Riverside) PIP, L.P. ("PDPIP"), to Owner (the "Effective Date"). F. Owner currently holds an option to purchase the Property from PDPIP, the existing Owner of the Property. PDPIP holds land for investment purposes only, and does not engage in development or pre -development activities in connection with such land. Therefore, PDPIP is not a party to this Agreement, and Owner has requested and City has agreed to delay the operative date of the "Project Approvals" (as hereinafter defined) and this Agreement until the Effective Date. Therefore, though the Project Approvals (and the Resolution(s) and/or Ordinance(s) approving the Project Approvals) will not become operative until the Effective Date, they will be processed concurrently with Ordinance No. 981 approving this Development Agreement, and shall become effective in the normal course pursuant to the California Government Code. G. On April 12 , 2001, the City Council (the "Council"), upon appeal by Owner of the Planning Commission's CRCHELED/34814/825255v11 2 02/15/01 ORD I'NANCE NO. 981 recommendation of denial of the Project, after making appropriate findings, adopted a negative declaration pursuant to the provisions of the California Environmental Quality Act, adopted Ordinance No. 980 , approving this Agreement, General Plan Amendment No. 00-7, and Zone Change No. 00-0,5 By approving this Agreement and the Project Approvals, City acknowledges that it is approving the Project as depicted on the Illustrative Plan. City shall approve subject to only those conditions authorized herein subsequent Large -Lot Parcel Maps or Tentative Tract Maps substantially consistent with this Agreement and the Project Approvals. H. Collectively General Plan Amendment No.00-7, and Zone Change No. 00-05constitute the project approvals ("Project Approvals"). I. Development of the Project will further the comprehensive planning objectives contained within City's general plan, as amended,(the "General Plan"), and will result in public benefits, including, among others, the following: 1. Fulfilling long-term economic and social goals for City and the community; 2. Providing fiscal benefits to City's General Fund in terms of increased retail spending in City by Project residents and property tax revenues; 3. Providing both short-term construction employment and long-term permanent employment within City by CRCHELED/34814/825255v11 3 02/15/01 ORDINANCE NO. 981 creation of demand for services necessary to serve the residents of the Project; 4. Financing and constructing significant infrastructure improvements that will serve the region and the community; and, 5. Phasing the construction of public infrastructure improvements with private development. J. Owner has requested City to enter into a development agreement pursuant to the Development Agreement Statute. K. For the reasons recited herein, City has determined that the Project is a development for which a development agreement is appropriate under the Development Agreement Statute. L. The Council has determined that this Agreement is consistent with the General Plan and specifically has determined that this Agreement is fair, just and reasonable, and City has concluded that the economic interests of its citizens and the public health, safety and welfare will be best served by entering into this Agreement. M. The Council, after a duly noticed hearing, adopted Ordinance No. 981 , approving this Agreement on April 12, 2001, which Ordinance became effective 30 days later on May 12, 2001 • Notwithstanding the effectiveness of Ordinance No. 981 on April 12 , 2001, the parties intend CRCHELED/34614/B25255v11 4 02/15/01 ORDINANCE NO. 981 that this Agreement shall become effective upon the Effective Date. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, the parties hereto agree as follows: SECTION I. DEFINITIONS. The following terms shall have the meanings defined for such terms in the Sections set forth below: Term Section Agreement Introduction Applicable Rules Section III.B.1. City Introduction Council Recital G Development Agreement Statute Recital B Effective Date Recital E Future Approvals Section III.C. General Plan Recital I Ministerial Approvals Section IV.D.3. Mortgagee Section V.C. Notice of Non -Compliance Section V.F. Owner Introduction PDPIP Recital E Planning Commission Recital G Project Recital D Project Approvals Recital H Property Recital C Related Parties Section VI.J. Subsequent Rules Section III.B.2. Term Section V.K. Vested Rights Section III.I. SECTION II. BENEFITS TO CITY. In consideration of the significant educational, recreational, and infrastructure improvements that Owner will be financing and constructing and/or dedicating for the benefit not only of the Project but of CRCHELED/34814/825255v11 5 02/15/01 ORDINANCE NO. 981 the region and community surrounding the Project and the benefit to the community that the development of the Project represents, all of which will provide a significant overall benefit to City and the community, City has agreed to enter into this Agreement. SECTION III. PROJECT DEVELOPMENT. A. Permitted Uses. The parties hereby agree that, for the term of this Agreement, the permitted uses, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location of public improvements, shall be those set forth in the Project Approvals, the "Applicable Rules" (as hereinafter defined) and this Agreement. B. Rules, Regulations and Official Policies. 1. Applicable Rules. The parties hereby agree that, for the term of this Agreement, the rules, regulations and official policies governing permitted uses, governing density, and governing design, improvement and construction standards and specifications applicable to development of the Property and the Project shall be those rules, regulations and official policies in force at the time of the Effective Date, including those rules as set forth herein (collectively, the "Applicable Rules"). Notwithstanding the foregoing, nothing in this Agreement shall preclude City from applying changes occurring from time to time in the Uniform Building Code, Uniform Electrical Code, Uniform Fire Code, Uniform Mechanical Code, or Uniform Plumbing Code, provided that such changes (i) are found CRCHELED/34814/825255v11 6 02/15/01 ORD I'NANCE NO. 981 by City to be necessary to the health or safety of the citizens of City, (ii) are generally applicable to all similar types of property in City, and (iii) do not prevent or unreasonably delay development of the Project in accordance with this Agreement. Prior to the Effective Date, City and Owner shall use reasonable efforts to identify two identical sets of the Applicable Rules, one set for City and one set for Owner, so that if it becomes necessary in the future to refer to any of the Applicable Rules, there will be a common set of the Applicable Rules available to both parties. 2. Conflicting Enactments. Any change in the Applicable Rules, including, without limitation, any change in any applicable general, area or specific plan, zoning, subdivision or building rule or regulation, adopted or becoming effective after the Effective Date, including, without limitation, any such change by means of an ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the Council, the Planning Commission or any other board, agency, commission, committee, or department of City, or any officer or employee thereof, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Property and which would conflict in any way with or be more restrictive than the Applicable Rules ("Subsequent Rules"), shall not be applied by City to the Property. Owner may give City written notice of its election to have any Subsequent Rule CRCHELED/34814/825255v11 7 02/15/01 -ORD MANCE NO. 981 applied to the Property, in which case such Subsequent Rule shall be deemed to be an Applicable Rule. 3. Setbacks, Desiqn Guidelines, Landscape Guidelines and Park Improvements. Except as may otherwise be provided in this Agreement, the front, side, and rear setbacks and the architectural and landscaping design review for all structures within the Project shall be consistent with and conform to the Applicable Rules, except as contained herein. C. Future Approvals. Any development of the Property shall require all discretionary approvals required by the Applicable Rules (collectively, the "Future Approvals"). It is anticipated that Owner shall pursue timely approval of a Tentative Map and/or Large -Lot Parcel Map consistent with this Agreement and the Project Approvals, including the Illustrative Plan. This Agreement shall obligate City to approve the subsequent Tentative Map and/or Large -Lot Parcel Map as long as it/they are substantially consistent with this Agreement, the Project Approvals, and the Illustrative Plan. D. Permitted Fees and Exactions. Except as otherwise provided in this Agreement, and specifically excluding fees set by entities not controlled by City that are collected by City, City shall only charge and impose those fees and exactions, including, without limitation, dedications and any other fee or tax (including excise, construction or any other tax) relating to development or the privilege of developing, which are in effect on a City-wide basis as of the Effective Date. This CRCHELED/34814/825255v11 8 02/15/01 ORDINANCE NO. 981 Section shall not be construed to limit the authority of City to charge normal and customary application, processing, and permit fees for land use approvals, building permits and other similar permits, which fees are designed to reimburse City's expenses attributable to such application, processing and permitting and are in effect on a City-wide basis at such time as said approvals and permits are granted by City. E. Permitted Conditions. Provided Owner's applications for any Future Approvals are consistent with this Agreement and the Applicable Rules, City shall grant the Future Approvals in accordance with the Applicable Rules and authorize development of the Property for the uses and to the density of the Project described herein. With regard to Owner's application for a Large Lot Parcel Map and/or Vesting Tentative Tract Map, City shall only impose those conditions listed in the attached Exhibit "C." In connection with any other Future Approvals, City shall have the right to impose reasonable conditions including, without limitation, normal and customary dedications for rights of way or easements for public access, utilities, water, sewers, and drainage necessary for the Project; provided, however, such conditions and dedications shall not be inconsistent with the Applicable Rules or Project Approvals, nor inconsistent with the development of the Project as contemplated by this Agreement. Owner may protest any conditions, dedications or fees while continuing to develop the Property; CRCHELED/34814/825255v11 9 02/15/01 ORDINANCE NO. 981 such a protest by Owner shall not delay or stop the issuance of building permits or certificates of occupancy. F. Term of Map(s) and Other Project Approvals. Pursuant to California Government Code Sections 66452.6(a) and 65863.9, the term of any subdivision map that may be processed on all or any portion of the Property and the term of each of the Project Approvals shall be extended for a period of time through the scheduled termination date of this Agreement as set forth in Section V.K below. G. Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the 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 the parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that, subject to any infrastructure phasing requirements that may be required by the Project Approvals or any Future Approvals, Owner shall have the right (without obligation) to develop the Property in such order and at such rate and at such times as Owner deems appropriate within the exercise of its subjective business judgment. H. Moratorium. No City -imposed moratorium or other limitation (whether relating to the rate, timing or sequencing of the development or construction of all or any part of the Property, whether imposed by ordinance, initiative, resolution, CRCHELED/34814/825255v11 10 02/15/01 •ORD I,NANCE NO. 981 policy, order or otherwise, and whether enacted by the Council, an agency of City, the electorate, or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use or service (including, without limitation, water and sewer) approved, issued or granted within City, or portions of City, shall apply to the Property to the extent such moratorium or other limitation is in conflict with this Agreement; provided, however, the provisions of this Section shall not affect City's compliance with moratoria or other limitations mandated by other governmental agencies or court - imposed moratoria or other limitations. I. Vesting of Owner's Rights. The rights and entitlements granted to Owner pursuant to this Agreement shall be and constitute "vested rights" or the equivalent of "vested rights", as that term is defined under California law applicable to the development of land or property and the right of a public entity to regulate or control such development of land or property, including, without limitation, vested rights in and to building permits and certificates of occupancy. J. Infrastructure Capacity. Subject to Owner's installation of infrastructure in accordance with the requirements of the Project Approvals and any Future Approvals, City hereby acknowledges that it will have sufficient capacity in its infrastructure, services and utility systems, including, without limitation, traffic circulation, storm drainage, flood CRCHELED/34814/825255v11 11 02/15/01 ORD 1 ,NANCE NO. 981 control, electric service, sewer collection, sewer treatment, sanitation service and, except for reasons beyond City's control, water supply, treatment, distribution and service, to accommodate the Project. To the extent that City renders such services or provides such utilities, City hereby agrees that it will serve the Project and that there shall be no restriction on hookups or service for the Project except for reasons beyond City's control. K. Infrastructure Phasing Flexibility. Owner and City recognize that economic and market conditions may necessitate changing the order in which the infrastructure necessary to serve the Project is constructed. Therefore, City and Owner hereby agree that should it become necessary or desirable to develop any portion of the Project's infrastructure in an order that differs from the order Vset forth in any of the Project Approvals, Owner and City shall collaborate and City shall permit any modification requested by Owner so long as the modification continues to ensure adequate infrastructure is available to serve that portion of the Project being developed. L. Development Agreement/Project Approvals. In the event of any inconsistency between any Applicable Rule, Project Approval or Future Approval and this Agreement, the provisions of this Agreement shall control. M. Operative Date of Project Approvals. Because PDPIP does not intend to develop the Property, the City agrees that 0 each of the Project Approvals, including General Plan No. 00-,0_1 CRCHELED/34814/825255v11 12 02/15/01 -ORD I,NANCE NO. 981 Zone Change No. 00-05, this Development Agreement, and any subsequent tentative tract map and/or large -lot parcel map shall contain a condition that provides that each Project Approval and this Development Agreement shall become operative only upon the Effective Date and, if not so conditioned, shall be deemed to contain that condition. Nothing in the preceding sentence shall be construed to affect the time that a resolution or ordinance approving the Project Approvals and this Development Agreement becomes effective; it being understood and agreed that any resolution or ordinance approving the Project Approvals shall become effective in the normal course in accordance with the California Government Code. It is only the operative date of the Project Approvals and this Development Agreement that shall be conditioned to occur as of the Effective Date. SECTION IV. COOPERATION/IMPLEMENTATION. A. Further Assurances; Covenant to Sian Documents. Each party shall take all actions and do all things, and execute, with acknowledgment or affidavit, if required, any and all documents and writings, that may be necessary or proper to achieve the purposes and objectives of this Agreement. B. Reimbursement. Nothing in this Agreement precludes City and Owner from entering into any reimbursement agreements for the portion (if any) of the cost of any dedications, public facilities and/or infrastructure that City may require as conditions of the Project Approvals or the Future Approvals, to CRCHELED/34814/825255v11 13 02/15/01 ORDINANCE NO. 981 the extent that they are in excess of those reasonably necessary to mitigate the impacts of the Project. C. Public Financing of Improvements. Owner may, from time to time, request City to establish one or more assessment and/or community facilities districts to finance infrastructure, public facilities and/or fees that may be required in connection with the development of the Project. City agrees to use its best efforts to implement such requests subject to applicable state and federal law and to the Applicable Rules. D. Processing. Upon satisfactory completion by Owner of all required preliminary actions and payments of appropriate processing fees, if any, City shall, subject to all legal requirements, promptly initiate, diligently process, complete at the earliest possible time all required steps and expeditiously grant any approvals and permits necessary for the development by Owner of the Property in accordance with this Agreement, including, but not limited to, the following: 1. The processing of applications for and issuance of all discretionary approvals requiring the exercise of judgment and deliberation by City, including without limitation, the Future Approvals; 2. The holding of any required public hearings; 3. The processing of applications for and issuing of all ministerial approvals requiring the determination of conformance with the Applicable Rules, including, without limitation, site plans, development plans, land use plans, CRCHELED/34814/825255v11 14 02/15/01 ORDINANCE NO. 981 grading plans, improvement plans, building plans and specifications, and ministerial issuance of one or more final maps, zoning clearances, demolition permits, grading permits, improvement permits, wall permits, building permits, lot line adjustments, encroachment permits, conditional and temporary use 0 permits, sign permits, certificates of use and occupancy and approvals and entitlements and related matters as may be necessary for the completion of the development of the Property ("Ministerial Approvals"). 4. The Project Approvals and this Development Agreement will not become operative unless and until the grant deed conveying the Property to Owner is recorded. 5. The City shall use its best efforts in expediting the Final Improvement Plans, Tract Maps, and other required plans and approvals necessary to record the final maps and construct the Project. City will use its best efforts to process and cause to be recorded the Final Large Lot Parcel Map within 30 days of the approval of any Tentative Large Lot Parcel Map consistent with the Project Approvals and this Agreement, but in no event prior to the Effective Date. E. Processing During Third Party Litigation. The filing of any third party lawsuit(s) against City or Owner relating to this Agreement, the Project Approvals, any Future Approvals or to other development issues affecting the Property shall not delay or stop the development, processing or construction of the Project, approval of any Future Approvals, or issuance of CRCHELED/34814/825255v11 15 02/15/01 -ORDI-NANCE NO. 981 Ministerial Approvals, unless the third party obtains a court order preventing the activity. City shall not stipulate to or cooperate in the issuance of any such order. F. State, Federal or Case Law. Where any state, federal or case law allows City to exercise any discretion or take any act with respect to that law, City shall, in an expeditious and timely manner, at the earliest possible time, (a) exercise its discretion in such a way as to be consistent with, and carry out the terms of, this Agreement and (b) take such other actions as may be necessary to carry out in good faith the terms of this Agreement. G. Other Governmental Bodies. To the extent that City, the Council, the Planning Commission or any other board, agency or commission of City constitutes and sits as any other board, agency or commission, committee, or department, it shall not take any action that conflicts with City's obligations under this Agreement. H. Defense of Agreement. City shall cooperate with Owner to uphold the validity and enforceability of this Agreement. If this Agreement is adjudicated or determined to be invalid or unenforceable, City agrees, subject to all legal requirements, to consider modifications to this Agreement to render it valid and enforceable to the extent permitted by applicable law. I. Design/Development Standards. Notwithstanding the provisions of the Applicable Rules, the following design/development standards shall apply to the Project: CRCHELED/34814/825255v11 16 02/15/01 ORDINANCE NO. 981 1. Easements. Easements dedicated for pedestrian use shall be permitted to include easements for underground drainage, water, sewer, gas, electricity, telephone, cable and other utilities and facilities so long as they do not unreasonably interfere with pedestrian use. 2. Zoning. Zone Change No. 00-05 , approved concurrently with this Agreement, rezones the property PR-4 or Planned Residential - 4 units per gross acre as provided in Chapter 25.24 of the Palm Desert Municipal Code ("Code"). As provided in Code section 25.24.010, the purpose of the PR zone district is to provide for flexibility in development, creative and imaginative design, and the development of coordinated projects. 3. Development Plan/Precise Plan. To the extent Chapter 25.24 requires a development plan and/or precise plan, the Illustrative Plan attached as Exhibit "B" shall be deemed to constitute such a development plan and/or precise plan. The Project shall be deemed to have completed the prefiling procedure contained in Code section 25.24.030. 4. Exceptions. As provided in Section 25.24.310 of the Code, to the extent the development standards contained in this Agreement are different from development standards contained in Chapter 25.24 of the Code, this Agreement shall control. 0 5. Minimum Lot Size. The minimum lot size for the Project shall be 10,000 square feet. CRCHELED/34814/825255v11 17 02/15/01 ORDINANCE NO. 981 6. Design Review. Final house design shall be subject to the normal city architectural review process. However, Owner shall not be required to seek design review of the Project within 1 year of approval of any subsequent tentative tract map. 7. Building Coverage. The Project shall have a maximum building coverage of 35 percent for one story homes and may be increased up to a maximum of 50 percent with City Architectural Review Commission approval. 8. Common Open Space. The Project is deemed to have complied with Section 25.24.270 of the Code relating to minimum common open space. 9. Building Height. The maximum building height for the Project shall be a maximum of twenty-four feet for two-story homes and a maximum of eighteen feet for one-story units, subject to design review. 10. Private Roads. With parking on two sides, the private roads in the Project shall be thirty-six feet wide. 11. Parking. The Project shall be deemed to comply with all applicable parking standards based on the two covered garage spaces and two uncovered driveway parking spaces as contemplated in the Project Approvals. 12. Applicable Development Standards. Notwithstanding anything herein to the contrary, the development standards for the Project shall be as follows: a. Minimum lot width: 70 feet; O CRCHELED/34814/825255v11 18 02/15/01 ORDINANCE NO. 981 b. Minimum front yard: 20 feet for one and two story homes; C. Minimum rear yard: 15 feet for one story homes and 25 feet for two story homes; d. Minimum side yards: 14 feet combined, each of which shall not be less than 5 feet for one story homes; e. Minimum street side yard: 10 feet for single story homes and 15 feet for two story homes; f. Minimum dwelling unit size: 1,000 square feet; g. Minimum separation between two story elements: 30 feet. SECTION V. GENERAL PROVISIONS. A. Covenants Run with the Land. In accordance with the Development Agreement Statute, all of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors (by merger, reorganization, consolidation or otherwise) and assigns, devisees, administrators, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors and assigns. All of the CRCHELED/34814/825255v11 19 02/15/01 ORDINANCE NO. 981 provisions of this Agreement shall constitute covenants running with the land. B. Transfers and Assignments. 1. Right to Assign. Owner shall have the right to sell, assign or transfer all or any portion of the Property to any person at any time during the term of this Agreement. 2. Liabilities Upon Transfer. Upon the delegation of all duties and obligations and the sale, transfer or assignment of all or any portion of the Property, Owner shall be released from its obligations under this Agreement with respect to the Property, or portion thereof, so transferred arising subsequent to the Effective Date of such transfer if (i) Owner has provided to City ten days' written notice of such transfer (ii) City has consented to the transfer to the transferee, such consent not to be unreasonably withheld and to be made within 30 days of City's receipt of notice of the transfer; and, (iii) the transferee has agreed in writing to be subject to all of the provisions hereof applicable to the portion of the Property so transferred. Upon any transfer of any portion of the Property and the express assumption of Owner's obligations under this Agreement by such transferee, City agrees to look solely to the transferee for compliance by such transferee with the provisions of this Agreement as such provisions relate to the portion of the Property acquired by such transferee. A default by any transferee shall only affect that portion of the Property owned by such transferee and shall not cancel or diminish in any way CRCHELED/34814/825255v11 2 0 02/15/01 ORD I'NANCE NO. 981 Owner's rights hereunder with respect to any portion of the Property not owned by such transferee. The transferee shall be responsible for the reporting and annual review requirements relating to the portion of the Property owned by such transferee, and any amendment to this Agreement between City and a transferee shall only affect the portion of the Property owned by such transferee. C. Mortgagee Protection. The parties hereto agree that this Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. City acknowledges that the lender(s) providing such financing may require certain Agreement interpretations and modifications and agrees, from time to time, to meet with Owner and representatives of such lender(s) to negotiate in good faith any such request for interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any mortgagee of a mortgage or a beneficiary of a deed of trust ("Mortgagee") of the Property shall be entitled to the following rights and privileges: 1. Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or CRCHELED/34814/825255v11 21 02/15/01 ORDINANCE NO. 981 impair the lien of any mortgage or deed of trust on the Property made in good faith and for value. 2. If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Owner under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten days of sending the notice of default to Owner. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. 3. Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement; provided, however, in no event shall such Mortgagee be liable for any defaults or monetary obligations of Owner arising prior to acquisition of title to the Property by such Mortgagee, except that any such Mortgagee or its successors or assigns shall not be entitled to a building permit or occupancy certificate until all delinquent and current fees and other monetary obligations due under this Agreement for the Property, or portion thereof, acquired by such Mortgagee have been paid to City. D. Statement of Compliance. Within thirty days following any written request which either City or Owner may make from time to time, the other shall execute and deliver to the requesting party a statement certifying that: (1) this CRCHELED/34814/825255v11 22 02/15/01 -ORD I-NANCE NO. 981 Agreement is unmodified and in full force and effect or, if there have been modifications hereto, that this Agreement is in full force and effect, as modified, and stating the date and nature of such modifications; (2) there are no current uncured defaults under this Agreement or specifying the dates and nature of any such defaults; and (3) any other reasonable information requested. The failure to deliver such statement within such time shall be conclusive upon the party which fails to deliver such statement that this Agreement is in full force and effect without modification and that there are no uncured defaults in the performance of the requesting party. The City Manager shall be authorized to execute any such statement. E. Default. Failure by City or Owner to perform any term or provision of this Agreement for a period of thirty days from the receipt of written notice thereof from the other shall constitute a default under this Agreement, subject to extensions of time by mutual consent in writing. Said notice shall specify in detail the nature of the alleged default and the manner in which said default may be satisfactorily cured. If the nature of the alleged default is such that it cannot reasonably be cured within such 30-day period, the commencement of the cure within such time period and the diligent prosecution to completion of the cure shall be deemed a cure within such period. During the time a cure for any alleged default is being diligently prosecuted, no default shall be deemed to exist under this Agreement. CRCHELED/34814/825255v11 2 3 02/15/01 'ORD I'NANCE No. 981 Subject to the foregoing, after notice and expiration of the 30-day period without cure, the notifying party, at its option, may institute legal proceedings pursuant to this Agreement and/or give notice of intent to terminate this Agreement pursuant to Government Code Section 65868. Following such notice of intent to terminate, the matter shall be scheduled for consideration and review by the Council within thirty calendar days in the manner set forth in Government Code Sections 65867 and 65868. Following consideration of the evidence presented in said review before the Council and a determination that a default exists, the party alleging the default by the other party may give written notice of termination of this Agreement to the other party. F. Annual Review. Pursuant to Government Code Section 65865.1, throughout the term of this Agreement, good faith compliance with the terms of this Agreement by Owner shall be reviewed by the Planning Commission at the regularly scheduled Planning Commission meeting next following each anniversary of the Effective Date. If as a result of such review, City reasonably determines, on the basis of substantial evidence presented at such meeting, that Owner has not complied in good faith with the terms and conditions hereof, City shall provide written notice thereof ("Notice of Non -Compliance"), stating in specific detail and specific reasons for such finding. After City delivers the Notice of Non -Compliance, Owner shall have the right to cure such non-compliance as provided in Section V.E. CRCHELED/34814/825255v11 24 02/15/01 ORDINANCE NO. 981 above. City's failure to perform an annual review pursuant to the terms of this Section V.F shall not constitute or be asserted as a default by Owner. G. Default by City. In the event City defaults (as defined in Section V.E. herein) under the terms of this Agreement, Owner shall have all rights and remedies provided herein or under applicable law, including the specific performance of this Agreement. H. Legal Action. Any party may, in addition to any other rights or remedies, institute legal action to cure, correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation hereof, or enforce by specific performance the obligations and rights of the parties hereto. Pursuant to Code of Civil Procedure Section 638, et seq., all legal actions shall be heard by a referee who shall be a retired judge from either the Riverside County Superior Court, the California Court of Appeal, the United States District Court or the United States Court of Appeals, provided that the selected referee shall have experience in resolving land use and real property disputes. Owner and City shall agree upon a single referee who shall then try all issues, whether of fact or law, and report a finding and judgment thereon and issue all legal and equitable relief appropriate under the circumstances of the controversy before such referee. If Owner and City are unable to agree on a referee within ten days of a written CRCHELED/34814/825255v11 2 5 02/15/01 ORDINANCE NO. 981 request to do so by either party hereto, either party may seek to have one appointed pursuant to Code of Civil Procedure Section 640. The cost of such proceeding shall initially be borne equally by the parties. Any referee selected pursuant to this Section V.G. shall be considered a temporary judge appointed pursuant to Article 6, Section 21 of the California Constitution. Notwithstanding the provisions of this Section V.H., either party shall be entitled to seek declaratory and injunctive relief in any court of competent jurisdiction to enforce the terms of this Agreement, or to enjoin the other party from an asserted breach thereof, pending the selection of a referee as provided in this Section V.H., on a showing that the moving party would otherwise suffer irreparable harm. I. Waiver; Remedies Cumulative. Failure by City or Owner to insist upon the strict performance of any of the provisions of this Agreement, irrespective of the length of time for which such failure continues, shall not constitute a waiver of the right to demand strict compliance with this Agreement in the future. No waiver by City or Owner of a default or breach of any other party shall be effective or binding upon it unless made in writing, and no such waiver shall be implied from any omission by City or Owner to take any action with respect to such default or breach. No express written waiver of any defaults or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified in such express waiver. One or CRCHELED/34814/825255v11 26 02/15/01 ORDINANCE NO. 981 more written waivers of a defuault or breach under any provision of this Agreement shall not be a waiver of any subsequent default or breach, and the performance of the same or any other term or provision contained in this Agreement. Subject to notice of default and opportunity to cure under Section V.E., all of the remedies permitted or available under this Agreement, at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. J. Future Litigation Expenses. 1. Payment to Prevailing Party. If City or Owner brings an action or proceeding (including, without limitation, any motion, order to show cause, cross -complaint, counterclaim, or third -party claim) by reason of defaults, breaches, tortious acts, or otherwise arising out of this Agreement, the prevailing party in such action or proceeding shall be entitled to its costs and expenses of suit including, but not limited to, reasonable attorneys' fees and expert witness fees. 2. Scope of Fees. Attorneys' fees under this Section shall include attorneys' fees on any appeal and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs and expenses incurred in connection with such action. In addition to the foregoing award of attorneys' fees to the prevailing party, the prevailing party in any lawsuit shall be entitled to its attorneys' fees incurred CRCHELED/34814/825255v11 27 02/15/01 ORDINANCE NO. 981 in any post -judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. K. Term. This Agreement shall commence upon the Effective Date and shall extend twelve (12) years from the Effective Date (the "Term"), unless said term is otherwise terminated, modified or extended by circumstances set forth in this Agreement or by mutual consent of the parties. Following the expiration of the Term, this Agreement shall be deemed terminated and of no further force or effect; provided, however, such termination shall not affect any right or duty arising from City approvals, including, without limitation, the Project Approvals, the Future Approvals, the Ministerial Approvals and any reimbursement agreement(s) entered into pursuant to the terms of this Agreement. This Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement, without the execution or recordation of any further document, when a certificate of occupancy has been issued for the building(s) on the lot. L. Permitted Delays; Supersedure by Subsequent Laws. 1. Permitted Delays. In addition to any specific provisions of this Agreement, performance of obligations hereunder shall be excused and the Term of this Agreement shall be similarly extended during any period of delay caused at any CRCHELED/34814/825255v11 28 02/15/01 QRD I 'NANCE NO. 981 time by reason of: acts of God such as floods, earthquakes, fires, or similar catastrophes; wars, riots or similar hostilities; strikes and other labor difficulties beyond the party's control (including the party's employment force); the enactment of new laws or restrictions imposed or mandated by other governmental or quasi -governmental entities preventing this Agreement from being implemented; litigation involving this Agreement, the Project Approvals, the Future Approvals or the Ministerial Approvals, which directly or indirectly delays any activity contemplated hereunder; or other causes beyond the party's control. City and Owner shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. 2. Supersedure by Subsequent Laws. If any federal or state law, made or enacted after the Effective Date prevents or precludes compliance with one or more provisions of this Agreement, then the provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to comply with such new law. Immediately after enactment or promulgation of any such new law, City and Owner shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. Owner and/or City shall have the right to challenge the new law preventing compliance with the terms of this Agreement, and in the event such challenge is successful, this CRCHELED/34814/825255v11 2 9 02/15/01 ORD I'NANCE NO. 981 Agreement shall remain unmodified and in full force and effect. At Owner's sole option, the term of this Agreement may be extended for the duration of the period during which such new law precludes compliance with the provisions of this Agreement. M. Amendment of Agreement. This Agreement may be amended from time to time by mutual consent of the parties to this Agreement, in accordance with the provisions of Government Code Sections 65867 and 65868; provided, however, that any amendment which does not relate to the term, permitted uses, density or intensity of use, height or size of buildings, provisions for reservation and dedication of land, or monetary contributions by Owner shall not require notice or public hearing, before the parties may execute an amendment hereto. N. Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between City and Owner and the refinements and further development of the Project may demonstrate that clarifications are appropriate with respect to the details of performance of City and Owner. If and when, from time to time, during the term of this Agreement, City and Owner agree that such clarifications are necessary or appropriate, they shall effectuate such clarifications through operating memoranda approved by City and Owner, which, after execution, shall constitute a part of this Agreement. No such operating memoranda shall constitute an amendment to this Agreement requiring public notice or hearing. The City Attorney shall be authorized to make the determination whether a requested CRCHELED/34814/825255v11 3 0 02/15/01 ORDINANCE NO. 981 clarification may be effectuated pursuant to this Section or whether the requested clarification is of such a character to constitute an amendment herepf pursuant to Section V.M. The City Manager may execute any operating memoranda hereunder without Council or Planning Commission action. O. Amendments to Project Approvals. It is contemplated by City and Owner that Owner may, from time to time, seek amendments to one or more of the Project Approvals. Any such amendments are contemplated by City and Owner as being within the scope of this Agreement as long as they are consistent with the Applicable Rules and shall, upon approval by City, continue to constitute the Project Approvals as referenced herein. The parties agree that any such amendments which are minor in nature may be agreed to in writing by the City Manager or his/her designee and Owner. All other amendments will require approval by the Planning Commission and/or Council, whichever is appropriate under the Applicable Rules. City and Owner agree that any amendments pursuant to this Section V.O shall neither constitute an amendment to this Agreement nor require an amendment to this Agreement SECTION VI. MISCELLANEOUS. A. Negation of Partnership. The Project constitutes private development, neither City nor Owner is acting as the agent of the other in any respect hereunder, and City and Owner are independent entities with respect to the terms and conditions of this Agreement. None of the terms or provisions CRCHELED/34814/825255v11 31 02/15/01 ORDINANCE NO. 981 of this Agreement shall be deemed to create a partnership between or among the parties in the businesses of Owner, the affairs of City, or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. B. No Third Party Beneficiary. This Agreement is not intended, nor shall it be construed, to create any third -party beneficiary rights in any person who is not a party, unless expressly otherwise provided. C. Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. D. Severability. Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any person, by judgment or court order shall in no way affect any of the other provisions hereof or the application thereof to any other person or circumstance, and the same shall remain in full force and effect, unless enforcement of this Agreement, as so invalidated, would be unreasonable or inequitable under all the circumstances or would frustrate the purposes of this Agreement and the rights and obligations of the parties hereto. CRCHELED/34814/825255v11 32 02/15/01 ORDINANCE NO. 981 E. Construction of Agreement. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and consistent with the provisions hereof, in order to achieve the objectives and purposes. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. F. Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. G. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. H. Notices. Any notice shall be in writing and given by delivering the same in person or by sending the same by registered, or certified mail, return receipt requested, with postage prepaid, by overnight delivery, or by facsimile to the respective mailing addresses, as follows: City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert CA 92660 Attention: City Manager Facsimile: 760-340-0574 Copy to: City of Palm Desert c/o Best, Best, & Krieger 39700 Bob Hope Drive, Suite 312 P.O. Box 1555 Rancho Mirage, California 92270 Attention: Dave Erwin, City Attorney Facsimile: 760-340-6698 Owner: ABD Palm Desert 118, LLC CRCHELED/34814/825255v11 33 02/15/01 ORDINANCE NO. 981 c/o American Beauty Development Co. 16830 Ventura Boulevard, Suite 401 Encino, CA 91436 Attention: John Morrisette Facsimile: 818-981-4821 Copy to: Cox, Castle & Nicholson, LLP 2049 Century Park East Los Angeles, CA 90067-3284 Attention: Ronald I. Silverman, Esq. Facsimile: 310-277-7889 Either City or Owner may change its mailing address at any time by giving written notice of such change to the other in the manner provided herein at least ten days prior to the date such change is effected. All notices under this Agreement shall be deemed given, received, made or communicated on the earlier of the date personal delivery is effected or on the delivery date or attempted delivery date shown on the return receipt, air bill or facsimile. I. Time is of the Essence. Time is of the essence of this Agreement and of each and every term and condition hereof. J. Limitation of Liability. City hereby acknowledges and agrees that Owner's obligations under this Agreement are solely those of ABD Palm Desert 118, LLC and in no event shall any present, past or future officer, director, shareholder, employee, partner, affiliate, manager, representative or agent u of Owner ("Related Parties") have any personal liability, directly or indirectly, under this Agreement and recourse shall not be available against any Related Party in connection with this Agreement or any other document or instrument heretofore or hereafter executed in connection with this Agreement. The CRCHELED/34814/825255v11 34 02/15/01 ORDINANCE NO. 981 limitations of liability provided in this Section are in addition to, and not in limitation of, any limitation on liability applicable to Owner or any Related Party provided by law or in any other contract, agreement or instrument. K. Recordation. In order to comply with Section 65868.5 of the Government Code, the parties do hereby direct the City Clerk to record a copy of this Agreement against the Property with the County Recorder of Riverside County within ten (10) days after and not before the Effective Date. L. Termination. If Owner does not acquire fee simple title to the Property on or before August 31, 2002, this Agreement shall automatically terminate and shall be of no further force and effect. All other terms of this Agreement shall remain in full force and effect in the event of Owner's cooperation with City. IN WITNESS WHEREOF, Owner and City have executed this Agreement as of the date first hereinabove written. "City" "Owner" CITY OF PAL DESERT, ABD PALM DESERT 118, LLC, a a munip c ' rporation California limited liability company By: m F ATTEST City C. Sheila R By: American Beauty Development, LLC, a California limited Liability company, as managing Member By: American Beauty Development Co., a California corporation, illig n as managing member CRCHELED/34814/825255v11 35 02/15/01 ORDINANCE NO. 981 Approved as t Form: By: By: Daniel Shine, President Citt�orXey CRCHELED/34814/825255v11 3 6 02/15/01 ORDINANCE NO. 981 STATE OF CALIFORNIA ) ) ss. COUNTY OF t6 r1r&,aeS On APe-'L 13 2001, before me, the undersigned, a Notary Public in and for said County and State, personally appeared `1- CO'A, personally known to me "I't sat; s-gag ggy @* de to be the person (� whose name (st isle subscribed to the within instrument and acknowledged to me that he executed the same in authorized capacity)and that by his i4eF,/}h^� E signature (-s-) on the instrument the person(-63, or the entity upon behalf of which the person(-s+ acted, executed the within instrument. WITNESS my hand and official seal. CHERYL L FOWLERr Commission # 1273148 Z ('�—c - Z Notary Public - California f N o t Pub ]Li Los Angeles County My Comm. Empires Sep 1. 2M4 STATE OF CALIFORNIA � ss. COUNTY OF ) On 2001, before me, the undersigned, a Notary Public in and for said County and State, personally personally known to me sa-t--!s a4a- i �to be the person(s) whose name(s) .ice -/are CRCHELED/34814/825255v11 37 02/15/01 ORDINANCE NO. 981 subscribed to the within instrument and acknowledged to me that hefshe'/they executed the same in his,'her/their authorized capacity(ies), and that by h4-&o r /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the within instrument. WITNESS my hand and official seal. Notary Pub is RACHELLE D. KLA 'M COMM. #1141548 NOTARY PUBLIC - CALFORNIA RNERSDE COUNTY 4 My C=nL Exp. June 13, 20M CRCHELED/34814/825255v11 38 02/15/01 ORDINANCE NO. 981 EXHIBIT, "A" LEGAL DESCRIPTION 0: PROPERTY ALL THAT PORTION OF THE SOUTHWEST QUARTER OF FRACTIONAL SECTION 1, TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY, LYING SOUTHERLY OF THE RIGHT OF WAY OF THE SOUTHERN PACIFIC RAILROAD COMPANY. EXCEPTING THEREFROM THE SOUTH 44 FEET AS CONVEYED TO THE COUNTY OF RIVERSIDE BY DEED RECORDED MARCH 3, 1958 IN BOOK 2246, PAGE 531 OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM THAT PORTION AS CONVEYED TO THE CITY OF PALM DESERT BY DEED RECORDED JULY 10, 1995 AS INSTRUMENT NO. 220685 OFFICIAL RECORDS. SAID LAND IS ALSO KNOWN AS ALL THAT PROPERTY LYING WITHIN THE BOUNDARIES OF TENTATIVE TRACT 29468. CRCHELED/34814/825255v11 Exhibit A - Page 1 02/15/01 ORD I 'NANCE NO. 981 N.NO �M wP 3A M Qww� LA 1M4L ►'7"`� h' NNE -awe awwYu o+►ttwt M .�.�.... w,..........q (w1) rns are J— Si, 2m1 Exbibit "B" Illustrative plan GOUIvi cY _ C u D __ DIuvE 7UII f1 R1 OC 0 d0 ! PRELIMINARY SITE CLAN 10.000 u. YIMIYW \0T SR[ ORDINANCE NO. 981 EXHIBIT "C" CONDITIONS OF APPROVAL CASE NOS. GPA 00-7, C/Z 00-5, TT 29468, TT 29555, DA 00-1 Department of Community Development: The development of the property shall conform substantially with exhibits on file with the Department of Community Development, as modified by the following conditions. 2. Construction of a portion of said project shall commence within the time coinciding with the 12 year term of the approved development agreement unless an extension of time is granted; otherwise said approval shall become null, void and of no effect whatsoever. 3. The development of the property described herein shall be subject to the restrictions and limitations set forth herein which are in addition to all municipal ordinances and state and federal statutes now in force, or which hereafter may be in force. 4. Prior to issuance of a building permit for construction of any use contemplated by this approval, the applicant shall first obtain permits and/or clearance from the following agencies: Coachella Valley Water District Palm Desert Architectural Commission City Fire Marshal Public Works Department Sunline Transit Agency Evidence of said permit or clearance from the above agencies shall be presented to the Department of Building and Safety at the time of issuance of a building permit for the use contemplated herewith. 5. All sidewalk plans shall be reviewed and approved by the Department of Public Works. 6 All new utilities shall be underground. ORDINANCE NO. 981 7. All sidewalk plans shall be reviewed and approved by the department of public works prior to architectural review commission submittal. 8. Applicant agrees to maintain the landscaping required to be installed pursuant to these conditions. Applicant will enter into an agreement to maintain said landscaping for the life of the project, which agreement shall be notarized and which agreement shall be recorded. It is the specific intent of the parties that this condition and agreement run with the land and bind successors and assigns. 9. The project shall be subject to all applicable fees at time of issuance of building permits including, but not limited to, Art in Public Places, Fringe -Toed Lizard, TUMF, School Mitigation and Housing Mitigation fees. Fringe Toed Lizard fee shall be paid at $600/acre. 10. All applicable Planned Residential standards shall apply. 11. A noise study shall be conducted and mitigation measures shall be implemented to insure compliance with the city's noise ordinance. 12. Access points along Tamarisk Row Drive shall be reserved for residents only. 13. Perimeter wall and perimeter landscaping adjacent to Tamarisk Row Drive, Country Club Drive and the entry road off Country Club Drive shall be installed with phase one of the tract. Department of Public Works: Drainage fees in accordance with Palm Desert Municipal Code Section 26.49 and Ordinance No. 653 shall be paid prior to recordation of the final map for TT 29468. 2. Any drainage facility construction required for this project shall be contingent upon a drainage study prepared by a registered civil engineer that is reviewed and approved by the Department of Public Works prior to start of construction. The project shall be designed to retain storm waters associated with the increase in developed vs. undeveloped condition for a 100-year storm. 2 ORDINANCE NO. 981 3. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17 and 79-55, shall be paid prior to issuance of any permits associated with this project. Project shall be responsible for the modification of the existing traffic signal on Country Club Drive at the project entry. Said responsibility shall be limited to one-half of the cost of the modification. Those costs may be used as a credit against the subject signalization fees. Such a credit would be subject to approval by the Palm Desert City Council. 4. The project shall be subject to Transportation Uniform Mitigation Fees (TUMF). Payment of said fees shall be at the time of building permit issuance. 5. A complete preliminary soils investigation, conducted by a registered soils engineer, shall be submitted to, and approved by, the Department of Public Works prior to the issuance of a grading permit. 6. Complete tract maps shall be submitted as required by ordinance to the Director of Public Works for checking and approval prior to the issuance of any permits associated with this project. 7. As required under Palm Desert Municipal Code Section 26.28, and in accordance with Sections 26.40 and 26.44, complete improvement plans and specifications shall be submitted to the Director of Public Works for checking and approval before construction of any improvements is commenced. Offsite improvement plans to be approved by the Public Works Department and a surety posted to guarantee the installation of required offsite improvements prior to permit issuance. 8. All public and private improvements shall be inspected by the Department of Public Works and a standard inspection fee shall be paid prior to issuance of grading permits. 9. In accordance with the Circulation Network of the Palm Desert General Plan, installation of the northerly half landscaped median island in Country Club Drive shall be provided. Landscape shall be drought tolerant in nature. Developer may pay cash in lieu of actual construction. 10. Landscape installation on the property frontages shall be water efficient in nature and shall be in accordance with the City of Palm Desert landscape design standards. Landscaping maintenance for said landscape shall be provided through 3 ORDINANCE NO. 981 a property owners association. Applicant shall be responsible for executing a declaration of Conditions, Covenants and Restrictions, which declaration shall be approved by the City of Palm Desert and recorded with the county recorder. The declaration shall specify: (a) the applicant shall oversee the formation of a property owners association; (b) the property owners association shall be formed prior to the recordation of the final map TT 29468; and c) the aforementioned landscaping maintenance shall be the responsibility of the property owners association. 11. Applicant shall comply with the provisions of Municipal Code Section 24.12, Fugitive Dust Control as well as Section 24.20, Stormwater Management and Discharge Control. 12. Any and all offsite improvements shall be preceded by the approval of plans and the issuance of valid encroachment permits by the Department of Public Works. 13. In accordance with Palm Desert Municipal Code Section 26.44, complete grading plans/site improvement plans and specifications shall be submitted to the Director of Public Works for checking and approval prior to issuance of any permits. 14. Traffic safety striping on Country Club Drive, Tamarisk Row Drive and "I" Street shall be provided to the specifications of the Director of Public Works. A traffic control plan must be submitted to, and approved by, the Director of Public Works prior to the placement of any pavement markings. 15. Full public improvements, as required by Sections 26.40 and 26.44 of the Palm Desert Municipal Code, shall be installed in accordance with applicable City standards. Improvements shall include, but not be limited to the following: Installation of curb and gutter at 43 feet from centerline, AC paving and meandering sidewalk along the Country Club Drive frontage adjacent to property. Installation of curb and gutter at 38 feet from centerline, AC paving and meandering sidewalk along the Tamarisk Row Drive frontage. Installation of street improvements (curb and gutter, AC paving and sidewalk) for "I" Street as 4 ORDINANCE NO. 981 shown on the tentative map exhibit and as described within the project development agreement. Modification to the existing traffic signal on Country Club Drive at "I" Street to provide for full intersection operation. Installation of transit facilities shall be as follows: a. If Sunline provides bus service to this area prior to commencement of construction, the developer shall install a bus shelter. The bus shelter is to be constructed to aesthetically match the architecture of the complex or building(s). The bus shelter dimensions shall be at minimum 8' x 18' x 8'; the bus shelter shall include, but not be limited to, electrical lighting, bench(es), and other components (i.e., trash container) not listed. The bus shelter and pad to be ADA compliant. The pad dimensions shall be a minimum of 10' x 20' and 3.5" thick. b. However, if Sunline does not provide bus service to this area prior to commencement of construction, the developer shall place a bus shelter pad on the site. The pad dimensions should be a minimum of 10' x 20' and 3.5" thick, the pad shall be ADA compliant, and the electrical conduit to be run from the house panel to within 12" but no closer than 6" to the bus shelter pad for future bus shelter installation. Regardless of the timing of Sunline service, a bus turnout shall be installed to Sunline Transit standards during construction of phase one. Lots 272 and 273 along the northerly project boundary shall be dedicated to the City of Palm Desert for pedestrian/bicycle route purposes. R ORDINANCE NO. 981 Residential street sections shall be as shown on the tentative tract map with a minimum width of thirty-six feet. Rights -of -way necessary for the construction of required public improvements shall be provided on the Tract Map. 16. Proposed building pad elevations are subject to review and modification in accordance with Chapter 27 of the Palm Desert Municipal Code. 17. As required under Sections 26.32 and 26.40 of the Palm Desert Municipal Code, all existing overhead utilities shall be placed underground per the respective utility district recommendation. 18. Waiver of access rights to Country Club Drive, Tamarisk Row Drive and "I" Street except at approved locations shall be granted on the Final Map. 19. Prior to start of construction, the applicant shall submit satisfactory evidence to the Director of Public Works of intended compliance with the National Pollutant Discharge Elimination (NPDES) General Permit for storm water discharges associated with construction. Riverside County Fire Department: 1. With respect to the conditions of approval regarding the above referenced project, the fire department recommends the following fire protection measures be provided in accordance with City Municipal Code, NFPA, UFC, and UBC or any recognized Fire Protection Standards: The Fire Department is required to set a minimum fire flow for the remodel or construction of all buildings per UFC article 87. 2. A fire flow of 1500 gpm for a 1 hour duration at 20 psi residual pressure must be available before any combustible material is placed on the job site. 3. Provide or show there exists a water system capable of providing a gpm flow of 1500 gpm for single family dwellings. 4. The required fire flow shall be available from a wet barrel Super Hydrant(s) 4" x 2Y2" x 2'/2", located not less than 25' nor more than 200' from any portion of a single family dwelling measured via vehicular travelway. e ORDINANCE NO. 981 5. Water plans must be approved by the Fire Marshal and include verification that the water system will produce the required fire flow. 6. All buildings shall be accessible by an all-weather roadway extending to within 150' of all portions of the exterior walls of the first story. The roadway shall not be less than 24' of unobstructed width and 136' of vertical clearance. Where parallel parking is required on both sides of the street the roadway must be 36' wide and 32' wide with parking on one side. Dead-end roads in excess of 150' shall be provided with a minimum 45' radius turn- around 55' in industrial developments. 7. Whenever access into private property is controlled through use of gates, barriers or other means provisions shall be made to install a "Knox Box" key over -ride system to allow for emergency vehicle access. Minimum gate width shall be 16' with a minimum vertical clearance of 13'6". 8. All buildings shall have illuminated addresses of size approved by the city. 9. Conditions subject to change with adoption of new codes, ordinances, laws or when building permits are not obtained within 12 months. 7 RECORDING REQUESTED BY, AND WHEN RECORDED, MAIL TO: City Clerk's Office City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 FOR THE BENEFIT OF THE CITY OF PALM DESERT - NO FEE - 6103 OF THE GOVT. CODE DOC # 2008-0576630 10/29/2008 08:00A Fee:NC Page 1 of 57 Recorded in Official Records County of Riverside Larry W. Ward Assessor, County Clerk & Recorder 11111111111111111111111111111111111111111111111111111 kvic R U PAGE SIZE DA MISC LONG RFD COPY A L 465 426 PCOR NCOR SMF JNCH EXAM Ci �C, t,;7frif!1i: 1.�� T; CTY UNI O IW (This Space for Recorder's Use Only) 4, Development Agreement 00-01 Between City of Palm Desert, California and ABD Palm Desert 118, LLC a California Limited Liability Company Legal Description of Property Northeast Corner of Tamarisk Row Drive and Country Club Drive ORDINANCE NO. 981 (Case No. DA 00-01 As It Relates To Case Nos. GPA 00-07, C/Z 00-5, TT 29468 and TT 29555) Dated: April 12, 2001 (Title of Document) r :::J [This page has intentionally been left blank.] OR'D I NANCE NO. 98 -1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Cox, Castle & Nicholson LLP 2049 Century Park East, 28th Floo Los Angeles, CA 90067 Attn: Ronald I. Silverman, Esq. RECORDING REQUESTED BY CITY OF PALM DESERT �E7 RDI FE S EMPT DUE TO N ENT SECTION 27383 City Crer Space Above Line For Recorder's Use Only) DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PALM DESERT AND ABD PALM DESERT 118, LLC ORDINANCE NO. 98.1 TABLE OF CONTENTS Page Section I. Definitions ......................................... 5 Section II. BENEFITS TO CITY ................................... 5 Section III. Project Development ............................... 6 A. Permitted Uses ....................................... 6 B. Rules, Regulations and Official Policies ............. 6 1. Applicable Rules ................................... 6 2. Conflicting Enactments ............................. 7 3. Setbacks, Design Guidelines, Landscape Guidelines and Park Improvements ................ 8 C. Future Approvals ..................................... 8 D. Permitted Fees and Exactions ......................... 9 E. Permitted Conditions ................................. 9 F. Term of Map(s) and Other Project Approvals .......... 10 G. Timing of Development ............................... 10 H. Moratorium .......................................... 11 I. Vesting of Owner's Rights ........................... 11 J. Infrastructure Capacity ............................. 12 K. Infrastructure Phasing Flexibility .................. 12 L. Development Agreement/Project Approvals ............. 13 M. Operative Date of Project Approvals ................. 13 Section IV. COOPERATION/IMPLEMENTATION ........................14 A. Further Assurances; Covenant to Sign Documents ...... 14 CRCHELED/34814/825255v11 i 02/15/01 OOE) I liJANCE NO. 98 ' B. Reimbursement ....................................... 14 C. Public Financing of Improvements .................... 14 D. Processing .......................................... 15 E. Processing During Third Party Litigation ............ 16 F. State, Federal or Case Law .......................... 16 G. Other Governmental Bodies ........................... 17 H. Defense of Agreement ................................ 17 I. Design/Development Standards ........................ 17 1. Easements ......................................... 17 2. Zoning ............................................ 18 3. Development Plan/Precise Plan ..................... 18 4. Exceptions ........................................ 18 5.Minimum Lot Size .................................. 18 6. Design Review ..................................... 19 7. Building Coverage ................................. 19 8. Common Open Space ................................. 19 9. Building Height ................................... 19 10. Private Roads .................................. 19 11. Parking ........................................ 19 12. Applicable Development Standards ............... 20 Section V. GENERAL PROVISIONS.................................20 A. Covenants Run with the Land ......................... 20 B. Transfers and Assignments ...........................21 1. Right to Assign...................................21 2. Liabilities Upon Transfer ......................... 21 CRCHELED/34814/825255v11 1 1 02/15/01 ORD I iNANCE NO. 98' C. Mortgagee Protection ................................ 22 D. Statement of Compliance .............................24 E. Default ............................................. 25 F. Annual Review ....................................... 26 G. Default by City ..................................... 26 H. Legal Action ........................................ 26 I. Waiver; Remedies Cumulative ......................... 28 J. Future Litigation Expenses .......................... 29 1. Payment to Prevailing Party.......................29 2.Scope of Fees ..................................... 29 K. Term ................................................ 29 L. Permitted Delays; Supersedure by Subsequent Laws .... 30 1. Permitted Delays .................................. 30 2. Supersedure by Subsequent Laws .................... 31 M. Amendment of Agreement .............................. 32 N. Operating Memoranda ................................. 32 0. Amendments to Project Approvals ..................... 33 Section VI. MISCELLANEOUS ..................................... 33 A. Negation of Partnership ............................. 33 B. No Third Party Beneficiary .......................... 34 C. Entire Agreement .................................... 34 D. Severability........................................ 34 E. Construction of Agreement ........................... 35 F. Section Headings .................................... 35 G. Applicable Law ...................................... 35 CRCHELED/34814/825255v11 i i i 02/15/01 ORDINANCE NO. 98- H. Notices ............................................. 35 I. Time is of the Essence .............................. 36 J. Limitation of Liability ............................. 37 K. Recordation ......................................... 37 L. Termination ......................................... 37 CRCHELED/34814/825255v11 iv 02/15/01 ORDINANCE NO. 981 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PALM DESERT AND ABD PALM DESERT 118, LLC THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of this 12th day of April , 2001, by and between the CITY OF PALM DESERT, a municipal corporation ("City"), and ABD PALM DESERT 118, LLC, a California Limited Liability Company ("Owner"). W I T N E S S E T H: A. The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. B. California Government Code Sections 65864-65869.5 (the "Development Agreement Statute") were therefore enacted authorizing a municipality to enter into binding development agreements with persons having legal or equitable interests in real property. C. Owner has a legal or equitable interest in certain real property located in City more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"). D. Subject to the provisions of the "Project Approvals" (as defined below), Owner's project will constitute an approximately 255-unit (but in no event more than 270 unit) CRCHELED/34814/825255v11 1 02/15/01 NCE NO. 98 ' single-family detached residential community (the "Project") as depicted on the Illustrative Plan ("Illustrative Plan") attached hereto as Exhibit "B" and incorporated herein by this reference. All residential lots shall have a minimum lot size of 10,000 square feet. E. This Agreement is intended by the parties to become effective only upon the date of recordation of a grant deed conveying title to all or a portion of the Property from the existing owner of the Property, Palm Desert (Riverside) PIP, L.P. ("PDPIP"), to Owner (the "Effective Date"). F. Owner currently holds an option to purchase the Property from PDPIP, the existing Owner of the Property. PDPIP holds land for investment purposes only, and does not engage in development or pre -development activities in connection with such land. Therefore, PDPIP is not a party to this Agreement, and Owner has requested and City has agreed to delay the operative date of the "Project Approvals" (as hereinafter defined) and this Agreement until the Effective Date. Therefore, though the Project Approvals (and the Resolution(s) and/or Ordinance(s) approving the Project Approvals) will not become operative until the Effective Date, they will be processed concurrently with Ordinance No. 981 approving this Development Agreement, and shall become effective in the normal course pursuant to the California Government Code. G. On April 12 , 2001, the City Council (the "Council"), upon appeal by Owner of the Planning Commission's CRCHELED/34814/B25255v11 2 02/15/01 ORDINANCE NO. 98 recommendation bf denial of the Project, after making appropriate findings, adopted a negative declaration pursuant to the provisions of the California Environmental Quality Act, adopted Ordinance No. 980 , approving this Agreement, General Plan Amendment No. 00-7, and Zone Change No. 00415 By approving this Agreement and the Project Approvals, City acknowledges that it is approving the Project as depicted on the Illustrative Plan. City shall approve subject to only those conditions authorized herein subsequent Large -Lot Parcel Maps or Tentative Tract Maps substantially consistent with this Agreement and the Project Approvals. H. Collectively General Plan Amendment No.00-7, and Zone Change No. 00-05constitute the project approvals ("Project Approvals"). I. Development of the Project will further the comprehensive planning objectives contained within City's general plan, as amended,(the "General Plan"), and will result in public benefits, including, among others, the following: 1. Fulfilling long-term economic and social goals for City and the community; 2. Providing fiscal benefits to City's General Fund in terms of increased retail spending in City by Project residents and property tax revenues; 3. Providing both short-term construction employment and long-term permanent employment within City by CRCHELED/34814/825255v11 3 02/15/01 ORDINANCE NO. 984 creation of demand for services necessary to serve the resident-s of the Project; 4. Financing and constructing significant infrastructure improvements that will serve the region and the community; and, 5. Phasing the construction of public infrastructure improvements with private development. J. Owner has requested City to enter into a development agreement pursuant to the Development Agreement Statute. K. For the reasons recited herein, City has determined that the Project is a development for which a development agreement is appropriate under the Development Agreement Statute. L. The Council has determined that this Agreement is consistent with the General Plan and specifically has determined that this Agreement is fair, just and reasonable, and City has concluded that the economic interests of its citizens and the public health, safety and welfare will be best served by entering into this Agreement. M. The Council, after a duly noticed hearing, adopted Ordinance No. 981 , approving this Agreement on April 12, 2001, which Ordinance became effective 30 days later on May 12, 2001 . Notwithstanding the effectiveness of Ordinance No. 981 , on April 12 , 2001, the parties intend CRCHELED/34814/825255v11 4 02/15/01 ORDINANCE NO. 984 that this Agreement shall become effective upon the Effective Date. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, the parties hereto agree as follows: SECTION I. DEFINITIONS. The following terms shall have the meanings defined for such terms in the Sections set forth below:. Term Section Agreement Introduction Applicable Rules Section III.B.1. City Introduction Council Recital G Development Agreement Statute Recital B Effective Date Recital E Future Approvals Section III.C. General Plan Recital I Ministerial Approvals Section IV.D.3. Mortgagee Section V.C. Notice of Non -Compliance Section V.F. Owner Introduction PDPIP Recital E Planning Commission Recital G Project Recital D Project Approvals Recital H Property Recital C Related Parties Section VI.J. Subsequent Rules Section III.B.2. Term Section V.K. Vested Rights Section III.I. SECTION II. BENEFITS TO CITY. In consideration of the significant educational, recreational, and infrastructure improvements that Owner will be financing and constructing and/or dedicating for the benefit not only of the Project but of CRCHELED/34814/825255v11 5 02/15/01 ORDINANCE NO. 98 the region and community surrounding the Project and the benefi-t to the community that the development of the Project represents, all of which will provide a significant overall benefit to City and the community, City has agreed to enter into this Agreement. SECTION III. PROJECT DEVELOPMENT. A. Permitted Uses. The parties hereby agree that, for the term of this Agreement, the permitted uses, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location of public improvements, shall be those set forth in the Project Approvals, the "Applicable Rules" (as hereinafter defined) and this Agreement. B. Rules. Reaulations and Official Policies. 1. Applicable Rules. The parties hereby agree that, for the term of this Agreement, the rules, regulations and official policies governing permitted uses, governing density, and governing design, improvement and construction standards and specifications applicable to development of the Property and the Project shall be those rules, regulations and official policies in force at the time of the Effective Date, including those rules as set forth herein (collectively, the "Applicable Rules"). Notwithstanding the foregoing, nothing in this Agreement shall preclude City from applying changes occurring from time to time in the Uniform Building Code, Uniform Electrical Code, Uniform Fire Code, Uniform Mechanical Code, or Uniform Plumbing Code, provided that such changes (i) are found CRCHELED/34814/825255v11 6 02/15/01 ORDINANCE NO. 98-1 by City to be necessary to the health or safety of the citizens of City, (ii) are generally applicable to all similar types of property in City, and (iii) do not prevent or unreasonably delay development of the Project in accordance with this Agreement. Prior to the Effective Date, City and Owner shall use reasonable efforts to identify two identical sets of the Applicable Rules, one set for City and one set for Owner, so that if it becomes necessary in the future to refer to any of the Applicable Rules, there will be a common set of the Applicable Rules available to both parties. 2. Conflicting Enactments. Any change in the Applicable Rules, including, without limitation, any change in any applicable general, area or specific plan, zoning, subdivision or building rule or regulation, adopted or becoming effective after the Effective Date, including, without limitation, any such change by means of an ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the Council, the Planning Commission or any other board, agency, commission, committee, or department of City, or any officer or employee thereof, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Property and which would conflict in any way with or be more restrictive than the Applicable Rules ("Subsequent Rules"), shall not be applied by City to the Property. Owner may give City written notice of its election to have any Subsequent Rule CRCHELED/34814/825255v11 7 02/15/01 ORDINANCE NO. 98' applied to the Property, in which case such Subsequent Rule shall be deemed to be an Applicable Rule. 3. Setbacks, Design Guidelines, Landscape Guidelines and Park Improvements. Except as may otherwise be provided in this Agreement, the front, side, and rear setbacks and the architectural and landscaping design review for all structures within the Project shall be consistent with and conform to the Applicable Rules, except as contained herein. C. Future Approvals. Any development of the Property shall require all discretionary approvals required by the Applicable Rules (collectively, the "Future Approvals"). It is anticipated that Owner shall pursue timely approval of a Tentative Map and/or Large -Lot Parcel Map consistent with this Agreement and the Project Approvals, including the Illustrative Plan. This Agreement shall obligate City to approve the subsequent Tentative Map and/or Large -Lot Parcel Map as long as it/they are substantially consistent with this Agreement, the Project Approvals, and the Illustrative Plan. D. Permitted Fees and Exactions. Except as otherwise provided in this Agreement, and specifically excluding fees set by entities not controlled by City that are collected by City, City shall only charge and impose those fees and exactions, including, without limitation, dedications and any other fee or tax (including excise, construction or any other tax) relating to development or the privilege of developing, which are in effect on a City-wide basis as of the Effective Date. This CRCHELED/34814/825255v11 8 02/15/01 ORDINANCE NO. 9�- Section shall not be construed to limit the authority of City to charge normal and customary application, processing, and permit fees for land use approvals, building permits and other similar permits, which fees are designed to reimburse City's expenses attributable to such application, processing and permitting and are in effect on a City-wide basis at such time as said approvals and permits are granted by City. E. Permitted Conditions. Provided Owner's applications for any Future Approvals are consistent with this Agreement and the Applicable Rules, City shall grant the Future Approvals in accordance with the Applicable Rules and authorize development of the Property for the uses and to the density of the Project described herein. With regard to Owner's application for a Large Lot Parcel Map and/or Vesting Tentative Tract Map, City shall only impose those conditions listed in the attached Exhibit "C." In connection with any other Future Approvals, City shall have the right to impose reasonable conditions including, without limitation, normal and customary dedications for rights of way or easements for public access, utilities, water, sewers, and drainage necessary for the Project; provided, however, such conditions and dedications shall not be inconsistent with the Applicable Rules or Project Approvals, nor inconsistent with the development of the Project as contemplated by this Agreement. Owner may protest any conditions, dedications or fees while continuing to develop the Property; CRCHELED/34814/825255v11 9 02/15/01 ORDINANCE NO. 98 such a protest by Owner shall not delay or stop the issuance of building permits or certificates of occupancy. F. Term of Map(s) and Other Project Approvals. Pursuant to California Government Code Sections 66452.6(a) and 65863.9, the term of any subdivision map that may be processed on all or any portion of the Property and the term of each of the Project Approvals shall be extended for a period of time through the scheduled termination date of this Agreement as set forth in Section V.K below. G. Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the 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 the parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that, subject to any infrastructure phasing requirements that may be required by the Project Approvals or any Future Approvals, Owner shall have the right (without obligation) to develop the Property in such order and at such rate and at such times as Owner deems appropriate within the exercise of its subjective business judgment. H. Moratorium. No City -imposed moratorium or other limitation (whether relating to the rate, timing or sequencing of the development or construction of all or any part of the Property, whether imposed by ordinance, initiative, resolution, CRCHELED/34814/825255v11 10 02/15/01 ORDINANCE NO. 98 " policy, order or otherwise, and whether enacted by the Council, an agency of City, the electorate, or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use or service (including, without limitation, water and sewer) approved, issued or granted within City, or portions of City, shall apply to the Property to the extent such moratorium or other limitation is in conflict with this Agreement; provided, however, the provisions of this Section shall not affect City's compliance with moratoria or other limitations mandated by other governmental agencies or court - imposed moratoria or other limitations. I. Vesting of Owner's Rights. The rights and entitlements granted to Owner pursuant to this Agreement shall be and constitute "vested rights" or the equivalent of "vested rights", as that term is defined under California law applicable to the development of land or property and the right of a public entity to regulate or control such development of land or property, including, without limitation, vested rights in and to building permits and certificates of occupancy. J. Infrastructure Capacity. Subject to Owner's installation of infrastructure in accordance with the requirements of the Project Approvals and any Future Approvals, City hereby acknowledges that it will have sufficient capacity in its infrastructure, services and utility systems, including, without limitation, traffic circulation, storm drainage, flood CRCHELED/34814/825255v11 11 02/15/01 ORDINANCE NO. 98' control, electric service, sewer collection, sewer treatment, sanitation service and, except for reasons beyond City's control, water supply, treatment, distribution and service, to accommodate the Project. To the extent that City renders such services or provides such utilities, City hereby agrees that it will serve the Project and that there shall be no restriction on hookups or service for the Project except for reasons beyond City's control. K. Infrastructure Phasing Flexibility. Owner and City recognize that economic and market conditions may necessitate changing the order in which the infrastructure necessary to serve the Project is constructed. Therefore, City and Owner hereby agree that should it become necessary or desirable to develop any portion of the Project's infrastructure in an order that differs from the order Vset forth in any of the Project Approvals, Owner and City shall collaborate and City shall permit any modification requested by Owner so long as the modification continues to ensure adequate infrastructure is available to serve that portion of the Project being developed. L. Development Agreement/Project Approvals. In the event of any inconsistency between any Applicable Rule, Project Approval or Future Approval and this Agreement, the provisions of this Agreement shall control. M. Operative Date of Project Approvals. Because PDPIP does not intend to develop the Property, the City agrees that 0 each of the Project Approvals, including General Plan No. 00-,0_1 CRCHELED/34814/825255v11 12 02/15/01 ORDINANCE NO. 98-1 Zone Change No.-00-05, this Development Agreement, and any subsequent tentative tract map and/or large -lot parcel map shall contain a condition that provides that each Project Approval and this Development Agreement shall become operative only upon the Effective Date and, if not so conditioned, shall be deemed to contain that condition. Nothing in the preceding sentence shall be construed to affect the time that a resolution or ordinance approving the Project Approvals and this Development Agreement becomes effective; it being understood and agreed that any resolution or ordinance approving the Project Approvals shall become effective in the normal course in accordance with the California Government Code. It is only the operative date of the Project Approvals and this Development Agreement that shall be conditioned to occur as of the Effective Date. SECTION IV. COOPERATION/IMPLEMENTATION. A. Further Assurances; Covenant to Siqn Documents. Each party shall take all actions and do all things, and execute, with acknowledgment or affidavit, if required, any and all documents and writings, that may be necessary or proper to achieve the purposes and objectives of this Agreement. B. Reimbursement. Nothing in this Agreement precludes City and Owner from entering into any reimbursement agreements for the portion (if any) of the cost of any dedications, public facilities and/or infrastructure that City may require as conditions of the Project Approvals or the Future Approvals, to CRCHELED/34814/825255v11 13 02/15/01 ORDINANCE NO. 98 " the extent that -they are in excess of those reasonably necessar-y to mitigate the impacts of the Project. C. Public Financing of Improvements. Owner may, from time to time, request City to establish one or more assessment and/or community facilities districts to finance infrastructure, public facilities and/or fees that may be required in connection with the development of the Project. City agrees to use its best efforts to implement such requests subject to applicable state and federal law and to the Applicable Rules. D. Processing. Upon satisfactory completion by Owner of all required preliminary actions and payments of appropriate processing fees, if any, City shall, subject to all legal requirements, promptly initiate, diligently process, complete at the earliest possible time all required steps and expeditiously grant any approvals and permits necessary for the development by Owner of the Property in accordance with this Agreement, including, but not limited to, the following: 1. The processing of applications for and issuance of all discretionary approvals requiring the exercise of judgment and deliberation by City, including without limitation, the Future Approvals; 2. The holding of any required public hearings; 3. The processing of applications for and issuing of all ministerial approvals requiring the determination of conformance with the Applicable Rules, including, without limitation, site plans, development plans, land use plans, CRCHELED/34814/B25255v11 14 02/15/01 ORDINANCE NO. 984 grading plans, improvement plans, building plans and specifications, and ministerial issuance of one or more final maps, zoning clearances, demolition permits, grading permits, improvement permits, wall permits, building permits, lot line adjustments, encroachment permits, conditional and temporary use 0 permits, sign permits, certificates of use and occupancy and approvals and entitlements and related matters as may be necessary for the completion of the development of the Property ("Ministerial Approvals"). 4. The Project Approvals and this Development Agreement will not become operative unless and until the grant deed conveying the Property to Owner is recorded. 5. The City shall use its best efforts in expediting the Final Improvement Plans, Tract Maps, and other required plans and approvals necessary to record the final maps and construct the Project. City will use its best efforts to process and cause to be recorded the Final Large Lot Parcel Map within 30 days of the approval of any Tentative Large Lot Parcel Map consistent with the Project Approvals and this Agreement, but in no event prior to the Effective Date. E. Processing During Third Party Litigation. The filing of any third party lawsuit(s) against City or Owner relating to this Agreement, the Project Approvals, any Future Approvals or to other development issues affecting the Property shall not delay or stop the development, processing or construction of the Project, approval of any Future Approvals, or issuance of CRCHELED/34814/825255v11 15 02/15/01 ORD I I'IANCE NO. 98 Ministerial Approvals, unless the third party obtains a court order preventing the activity. City shall not stipulate to or cooperate in the issuance of any such order. F. State_, Federal or Case Law. Where any state, federal or case law allows City to exercise any discretion or take any act with respect to that law, City shall, in an expeditious and timely manner, at the earliest possible time, (a) exercise its discretion in such a way as to be consistent with, and carry out_ the terms of, this Agreement and (b) take such other actions as may be necessary to carry out in good faith the terms of this Agreement. G. Other Governmental Bodies. To the extent that City, the Council, the Planning Commission or any other board, agency or commission of City constitutes and sits as any other board, agency or commission, committee, or department, it shall not take any action that conflicts with City's obligations under this Agreement. H. Defense of Agreement. City shall cooperate with Owner to uphold the validity and enforceability of this Agreement. If this Agreement is adjudicated or determined to be invalid or unenforceable, City agrees, subject to all legal requirements, to consider modifications to this Agreement to render it valid and enforceable to the extent permitted by applicable law. I. Design/Development Standards. Notwithstanding the provisions of the Applicable Rules, the following design/development standards shall apply to the Project: CRCHELED/34814/825255v11 16 02/15/01 INANCE NO. 98-1 1. -Easements. Easements dedicated for pedestrian use shall be permitted to include easements for underground drainage, water, sewer, gas, electricity, telephone, cable and other utilities and facilities so long as they do not unreasonably interfere with pedestrian use. 2. Zoning. Zone Change No. 00-05 , approved concurrently with this Agreement, rezones the property PR-4 or Planned Residential - 4 units per gross acre as provided in Chapter 25.24 of the Palm Desert Municipal Code ("Code"). As provided in Code section 25.24.010, the purpose of the PR zone district is to provide for flexibility in development, creative and imaginative design, and the development of coordinated projects. 3. Development Plan/Precise Plan. To the extent Chapter 25.24 requires a development plan and/or precise plan, the Illustrative Plan attached as Exhibit "B" shall be deemed to constitute such a development plan and/or precise plan. The Project shall be deemed to have completed the prefiling procedure contained in Code section 25.24.030. 4. Exceptions. As provided in Section 25.24.310 of the Code, to the extent the development standards contained in this Agreement are different from development standards contained in Chapter 25.24 of the Code, this Agreement shall control. 0 5. Minimum Lot Size. The minimum lot size for the Project shall be 10,000 square feet. CRCHELED/34814/825255v11 17 02/15/01 ORDINANCE NO. 98' 6. -Design Review. Final house design shall be subject to the normal city architectural review process. However, Owner shall not be required to seek design review of the Project within 1 year of approval of any subsequent tentative tract map. 7. Building Coverage. The Project shall have a maximum building coverage of 35 percent for one story homes and may be increased up to a maximum of 50 percent with City Architectural Review Commission approval. 8. Common Open Space. The Project is deemed to have complied with Section 25.24.270 of the Code relating to minimum common open space. 9. Building Height. The maximum building height for the Project shall be a maximum of twenty-four feet for two-story homes and a maximum of eighteen feet for one-story units, subject to design review. 10. Private Roads. With parking on two sides, the private roads in the Project shall be thirty-six feet wide. 11. Parking. The Project shall be deemed to comply with all applicable parking standards based on the two covered garage spaces and two uncovered driveway parking spaces as contemplated in the Project Approvals. 12. Applicable Development Standards. Notwithstanding anything herein to the contrary, the development standards for the Project shall be as follows: a. Minimum lot width: 70 feet; 0 CRCHELED/34814/825255v11 18 02/15/01 ORDINANCE NC-..,. b. Minimum front yard: 20 feet for one and two story homes; C. Minimum rear yard: 15 feet for one story homes and 25 feet for two story homes; d. Minimum side yards: 14 feet combined, each of which shall not be less than 5 feet for one story homes; a e. Minimum street side yard: 10 feet for single story homes and 15 feet for two story homes; f. Minimum dwelling unit size: 1,000 square feet; g. Minimum separation between two story elements: 30 feet. SECTION V. GENERAL PROVISIONS. A. Covenants Run with the Land. In accordance with the Development Agreement Statute, all of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors (by merger, reorganization, consolidation or otherwise) and assigns, devisees, administrators, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors and assigns. All of the CRCHELED/34814/825255v11 19 02/15/01 ORDINANCE NO. 98' provisions of this Agreement shall constitute covenants running with the land. B. Transfers and Assignments. 1. Right to Assign. Owner shall have the right to sell, assign or transfer all or any portion of the Property to any person at any time during the term of this Agreement. 2. Liabilities Upon Transfer. Upon the delegation of all duties and obligations and the sale, transfer or assignment of all or any portion of the Property, Owner shall be released from its obligations under this Agreement with respect to the Property, or portion thereof, so transferred arising subsequent to the Effective Date of such transfer if (i) Owner has provided to City ten days' written notice of such transfer (ii) City has consented to the transfer to the transferee, such consent not to be unreasonably withheld and to be made within 30 days of City's receipt of notice of the transfer; and, (iii) the transferee has agreed in writing to be subject to all of the provisions hereof applicable to the portion of the Property so transferred. Upon any transfer of any portion of the Property and the express assumption of Owner's obligations under this Agreement by such transferee, City agrees to look solely to the transferee for compliance by such transferee with the provisions of this Agreement as such provisions relate to the portion of the Property acquired by such transferee. A default by any transferee shall only affect that portion of the Property owned by such transferee and shall not cancel or diminish in any way CRCHELED/34814/825255v11 2 0 02/15/01 ORDINANCE NO. 98-1 Owner's rights hereunder with respect to any portion of the Property not owned by such transferee. The transferee shall be responsible for the reporting and annual review requirements relating to the portion of the Property owned by such transferee, and any amendment to this Agreement between City and a transferee shall only affect the portion of the Property owned by such transferee. C. Mortgagee Protection. The parties hereto agree that this Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. City acknowledges that the lender(s) providing such financing may require certain Agreement interpretations and modifications and agrees, from time to time, to meet with Owner and representatives of such lender(s) to negotiate in good faith any such request for interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any mortgagee of a mortgage or a beneficiary of a deed of trust ("Mortgagee") of the Property shall be entitled to the following rights and privileges: 1. Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or CRCHELED/34814/825255v11 2 1 02/15/01 ORDINANCE NO. 98' impair the lien -of any mortgage or deed of trust on the Property made in good faith and for value. 2. If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Owner under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten days of sending the notice of default to Owner. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. 3. Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement; provided, however, in no event shall such Mortgagee be liable for any defaults or monetary obligations of Owner arising prior to acquisition of title to the Property by such Mortgagee, except that any such Mortgagee or its successors or assigns shall not be entitled to a building permit or occupancy certificate until all delinquent and current fees and other monetary obligations due under this Agreement for the Property, or portion thereof, acquired by such Mortgagee have been paid to City. D. Statement of Compliance. Within thirty days following any written request which either City or Owner may make from time to time, the other shall execute and deliver to the requesting party a statement certifying that: (1) this CRCHELED/34814/825255v11 22 02/15/01 ORDINANCE NO. 98' Agreement is unmodified and in full force and effect or, if there have been modifications hereto, that this Agreement is in full force and effect, as modified, and stating the date and nature of such modifications; (2) there are no current uncured defaults under this Agreement or specifying the dates and nature of any such defaults; and (3) any other reasonable information requested. The failure to deliver such statement within such time shall be conclusive upon the party which fails to deliver such statement that this Agreement is in full force and effect without modification and that there are no uncured defaults in the performance of the requesting party. The City Manager shall be authorized to execute any such statement. E. Default. Failure by City or Owner to perform any term or provision of this Agreement for a period of thirty days from the receipt of written notice thereof from the other shall constitute a default under this Agreement, subject to extensions of time by mutual consent in writing. Said notice shall specify in detail the nature of the alleged default and the manner in which said default may be satisfactorily cured. If the nature of the alleged default is such that it cannot reasonably be cured within such 30-day period, the commencement of the cure within such time period and the diligent prosecution to completion of the cure shall be deemed a cure within such period. During the time a cure for any alleged default is being diligently prosecuted, no default shall be deemed to exist under this Agreement. CRCHELED/34814/825255v11 2 3 02/15/01 ORDINANCE NO. 98 , Subject to the foregoing, after notice and expiration of the 30-day period without cure, the notifying party, at its option, may institute legal proceedings pursuant to this Agreement and/or give notice of intent to terminate this Agreement pursuant to Government Code Section 65868. Following such notice of intent to terminate, the matter shall be scheduled for consideration and review by the Council within thirty calendar days in the manner set forth in Government Code Sections 65867 and 65868. Following consideration of the evidence presented in said review before the Council and a determination that a default exists, the party alleging the default by the other party may give written notice of termination of this Agreement to the other party. F. Annual Review. Pursuant to Government Code Section 65865.1, throughout the term of this Agreement, good faith compliance with the terms of this Agreement by Owner shall be reviewed by the Planning Commission at the regularly scheduled Planning Commission meeting next following each anniversary of the Effective Date. If as a result of such review, City reasonably determines, on the basis of substantial evidence presented at such meeting, that Owner has not complied in good faith with the terms and conditions hereof, City shall provide written notice thereof ("Notice of Non -Compliance"), stating in specific detail and specific reasons for such finding. After City delivers the Notice of Non -Compliance, Owner shall have the right to cure such non-compliance as provided in Section V.E. CRCHELED/34814/825255v11 24 02/15/01 ORDINANCE NO. 98-1 above. City's failure to perform an annual review pursuant to the terms of this Section V.F shall not constitute or be asserted as a default by Owner. G. Default by City. In the event City defaults (as defined in Section V.E. herein) under the terms of this Agreement, Owner shall have all rights and remedies provided herein or under applicable law, including the specific performance of this Agreement. H. Legal Action. Any party may, in addition to any other rights or remedies, institute legal action to cure, correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation hereof, or enforce by specific performance the obligations and rights of the parties hereto. Pursuant to Code of Civil Procedure Section 638, et sue., all legal actions shall be heard by a referee who shall be a retired judge from either the Riverside County Superior Court, the California Court of Appeal, the United States District Court or the United States Court of Appeals, provided that the selected referee shall have experience in resolving land use and real property disputes. Owner and City shall agree upon a single referee who shall then try all issues, whether of fact or law, and report a finding and judgment thereon and issue all legal and equitable relief appropriate under the circumstances of the controversy before such referee. If Owner and City are unable to agree on a referee within ten days of a written CRCHELED/34814/825255v11 2 5 02/15/01 ORDINANCE NO. 98- request to do so by either party hereto, either party may seek - to have one appointed pursuant to Code of Civil Procedure Section 640. The cost of such proceeding shall initially be borne equally by the parties. Any referee selected pursuant to this Section V.G. shall be considered a temporary judge appointed pursuant to Article 6, Section 21 of the California Constitution. Notwithstanding the provisions of this Section V.H., either party shall be entitled to seek declaratory and injunctive relief in any court of competent jurisdiction to enforce the terms of this Agreement, or to enjoin the other party from an asserted breach thereof, pending the selection of a referee as provided in this Section V.H., on a showing that the moving party would otherwise suffer irreparable harm. I. Waiver; Remedies Cumulative. Failure by City or Owner to insist upon the strict performance of any of the provisions of this Agreement, irrespective of the length of time for which such failure continues, shall not constitute a waiver of the right to demand strict compliance with this Agreement in the future. No waiver by City or Owner of a default or breach of any other party shall be effective or binding upon it unless made in writing, and no such waiver shall be implied from any omission by City or Owner to take any action with respect to such default or breach. No express written waiver of any defaults or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified in such express waiver. One or CRCHELED/34814/825255v11 26 02/15/01 ORDINANCE NO. 98" more written waivers of a defuault or breach under any provision of this Agreement shall not be a waiver of any subsequent default or breach, and the performance of the same or any other term or provision contained in this Agreement. Subject to notice of default and opportunity to cure under Section V.E., all of the remedies permitted or available under this Agreement, at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. J. Future Litigation Expenses. 1. Payment to Prevailing Party. If City or Owner brings an action or proceeding (including, without limitation, any motion, order to show cause, cross -complaint, counterclaim, or third -party claim) by reason of defaults, breaches, tortious acts, or otherwise arising out of this Agreement, the prevailing party in such action or proceeding shall be entitled to its costs and expenses of suit including, but not limited to, reasonable attorneys' fees and expert witness fees. 2. Scope of Fees. Attorneys' fees under this Section shall include attorneys' fees on any appeal and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs and expenses incurred in connection with such action. In addition to the foregoing award of attorneys' fees to the prevailing party, the prevailing party in any lawsuit shall be entitled to its attorneys' fees incurred CRCHELED/34814/825255v11 27 02/15/01 ORDINANCE NO. 98 in any post -judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. K. Term. This Agreement shall commence upon the Effective Date and shall extend twelve (12) years from the Effective Date (the "Term"), unless said term is otherwise terminated, modified or extended by circumstances set forth in this Agreement or by mutual consent of the parties. Following the expiration of the Term, this Agreement shall be deemed terminated and of no further force or effect; provided, however, such termination shall not affect any right or duty arising from City approvals, including, without limitation, the Project Approvals, the Future Approvals, the Ministerial Approvals and any reimbursement agreement(s) entered into pursuant to the terms of this Agreement. This Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement, without the execution or recordation of any further document, when a certificate of occupancy has been issued for the building(s) on the lot. L. Permitted Delays; Supersedure by Subsequent Laws. 1. Permitted Delays. In addition to any specific provisions of this Agreement, performance of obligations hereunder shall be excused and the Term of this Agreement shall be similarly extended during any period of delay caused at any CRCHELED/34814/825255v11 2 8 02/15/01 ORDINANCE NO. 981 time by reason of: acts of God such as floods, earthquakes, fires, or similar catastrophes; wars, riots or similar hostilities; strikes and other labor difficulties beyond the party's control (including the party's employment force); the enactment of new laws or restrictions imposed or mandated by other governmental or quasi -governmental entities preventing this Agreement from being implemented; litigation involving this Agreement, the Project Approvals, the Future Approvals or the Ministerial Approvals, which directly or indirectly delays any activity contemplated hereunder; or other causes beyond the party's control. City and Owner shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. 2. Supersedure by Subsequent Laws. If any federal or state law, made or enacted after the Effective Date prevents or precludes compliance with one or more provisions of this Agreement, then the provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to comply with such new law. Immediately after enactment or promulgation of any such new law, City and Owner shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. Owner and/or City shall have the right to challenge the new law preventing compliance with the terms of this Agreement, and in the event such challenge is successful, this CRCHELED/34814/825255v11 2 9 02/15/01 ORDINANCE NO. 98' Agreement shall -remain unmodified and in full force and effect. At Owner's sole option, the term of this Agreement may be extended for the duration of the period during which such new law precludes compliance with the provisions of this Agreement. M. Amendment of Agreement. This Agreement may be amended from time to time by mutual consent of the parties to this Agreement, in accordance with the provisions of Government Code Sections 65867 and 65868; provided, however, that any amendment which does not relate to the term, permitted uses, density or intensity of use, height or size of buildings, provisions for reservation and dedication of land, or monetary contributions by Owner shall not require notice or public hearing, before the parties may execute an amendment hereto. N. Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between City and Owner and the refinements and further development of the Project may demonstrate that clarifications are appropriate with respect to the details of performance of City and Owner. If and when, from time to time, during the term of this Agreement, City and Owner agree that such clarifications are necessary or appropriate, they shall effectuate such clarifications through operating memoranda approved by City and Owner, which, after execution, shall constitute a part of this Agreement. No such operating memoranda shall constitute an amendment to this Agreement requiring public notice or hearing. The City Attorney shall be authorized to make the determination whether a requested CRCHELED/34814/825255v11 3 0 02/15/01 ORDINANCE NO. 981 clarification may be effectuated pursuant to this Section or whether the requested clarification is of such a character to constitute an amendment herepf pursuant to Section V.M. The City Manager may execute any operating memoranda hereunder without Council or Planning Commission action. O. Amendments to Project Approvals. It is contemplated by City and Owner that Owner may, from time to time, seek amendments to one or more of the Project Approvals. Any such amendments are contemplated by City and Owner as being within the scope of this Agreement as long as they are consistent with the Applicable Rules and shall, upon approval by City, continue to constitute the Project Approvals as referenced herein. The parties agree that any such amendments which are minor in nature may be agreed to in writing by the City Manager or his/her designee and Owner. All other amendments will require approval by the Planning Commission and/or Council, whichever is appropriate under the Applicable Rules. City and Owner agree that any amendments pursuant to this Section V.O shall neither constitute an amendment to this Agreement nor require an amendment to this Agreement SECTION VI. MISCELLANEOUS. A. Negation of Partnership. The Project constitutes private development, neither City nor Owner is acting as the agent of the other in any respect hereunder, and City and Owner are independent entities with respect to the terms and conditions of this Agreement. None of the terms or provisions CRCHELED/34814/825255v11 31 02/15/01 ORDINANCE NO. 98 ' of this Agreement shall be deemed to create a partnership between or among the parties in the businesses of Owner, the affairs of City, or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. B. No Third Party Beneficiary. This Agreement is not intended, nor shall it be construed, to create any third -party beneficiary rights in any person who is not a party, unless expressly otherwise provided. C. Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. D. Severability. Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any person, by judgment or court order shall in no way affect any of the other provisions hereof or the application thereof to any other person or circumstance, and the same shall remain in full force and effect, unless enforcement of this Agreement, as so invalidated, would be unreasonable or inequitable under all the circumstances or would frustrate the purposes of this Agreement and the rights and obligations of the parties hereto. CRCHELED/34814/825255v11 32 02/15/01 ORDINANCE NO. 98-1 E. Construction of Agreement. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and consistent with the provisions hereof, in order to achieve the objectives and purposes. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. F. Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. G. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. H. Notices. Any notice shall be in writing and given by delivering the same in person or by sending the same by registered, or certified mail, return receipt requested, with postage prepaid, by overnight delivery, or by facsimile to the respective mailing addresses, as follows: City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert CA 92660 Attention: City Manager Facsimile: 760-340-0574 Copy to: City of Palm Desert c/o Best, Best, & Krieger 39700 Bob Hope Drive, Suite 312 P.O. Box 1555 Rancho Mirage, California 92270 Attention: Dave Erwin, City Attorney Facsimile: 760-340-6698 Owner: ABD Palm Desert 118, LLC CRCHELED/34814/825255v11 3 3 02/15/01 ORDINANCE NO. 98' c/o American Beauty Development Co. i6830 Ventura Boulevard, Suite 401 Encino, CA 91436 Attention: John Morrisette Facsimile: 818-981-4821 Copy to: Cox, Castle & Nicholson, LLP 2049 Century Park East Los Angeles, CA 90067-3284 Attention: Ronald I. Silverman, Esq. Facsimile: 310-277-7889 Either City or Owner may change its mailing address at any time by giving written notice of such change to the other in the manner provided herein at least ten days prior to the date such change is effected. All notices under this Agreement shall be deemed given, received, made or communicated on the earlier of the date personal delivery is effected or on the delivery date or attempted delivery date shown on the return receipt, air bill or facsimile. I. Time is of the Essence. Time is of the essence of this Agreement and of each and every term and condition hereof. J. Limitation of Liability. City hereby acknowledges and agrees that Owner's obligations under this Agreement are solely those of ABD Palm Desert 118, LLC and in no event shall any present, past or future officer, director, shareholder, employee, partner, affiliate, manager, representative or agent of Owner ("Related Parties") have any personal liability, directly or indirectly, under this Agreement and recourse shall not be available against any Related Party in connection with this Agreement or any other document or instrument heretofore or hereafter executed in connection with this Agreement. The CRCHELED/34814/825255v11 34 02/15/01 ORDINANCE NO. 98 -1 limitations of liability provided in this Section are in addition to, and not in limitation of, any limitation on liability applicable to Owner or any Related Party provided by law or in any other contract, agreement or instrument. K. Recordation. In order to comply with Section 65868.5 of the Government Code, the parties do hereby direct the City Clerk to record a copy of this Agreement against the Property with the County Recorder of Riverside County within. ten (10) days after and not before the Effective Date. L. Termination. If Owner does not acquire fee simple title to the Property on or before August 31, 2002, this Agreement shall automatically terminate and shall be of no further force and effect. All other terms of this Agreement shall remain in full force and effect in the event of Owner's cooperation with City. IN WITNESS WHEREOF, Owner and City have executed this Agreement as of the date first hereinabove written. "City" "Owner" CITY OF PAL DESERT, ABD PALM DESERT 118, LLC, a a mun_' ip c rporation California limited liability company By: American Beauty Development, By: ?`-- J LLC, a California limited Ma ur m F rgu rri Liability company, as managing Member ATTEST J By: American Beauty Development City C r Co., a California corporation, Sheila R. Gillig6n/ as managing member CRCHELED/34814/825255v11 3 5 02/15/01 ORDINANCE NO. Approved as t9-Form: By: C i t to rXey 1 By: . —` Daniel Shine, President CRCHELED/34814/825255v11 3 6 02/15/01 ORDINANCE NO. 98' STATE OF CALIFORNIA ss. COUNTY OF t6 On 2001, before me, the undersigned, a Notary Public in and for said County and State, personally appeared S�Cti`1 _ k -J i\-- 1 _C- -- ---= personally known to me *; ��^*^r• 9„4-deRee , to be the person Hs-� whose name (-s}- is> ate subscribed to the within instrument and acknowledged to me that he executed the same in his/her444ai— authorized capacity-ies) , and that by his/h^Y 4he i- signature (-&� on the instrument the person(-s3, or the entity upon behalf of which the person(-s+ acted, executed the within instrument. WITNESS my hand and official seal. CHERYL L FOWLER 1 Commission # 1273148 Notary Public - Co6toaNa Not P u b �i Los Angeles County My Comm. aphes Sep 1, 2M4 STATE OF CALIFORNIA � ss. COUNTY OF �[� ) On 2001, before me, the undersigned, a Notary Public in and for said County and Striate, personally appeared �} 1 fr1 C—r,4�,Od _a-L[/-L-A K . awl e,..enl personally known to me -rna-t- &fa,e-� �to be the person(s) whose name(s) �/are CRCHELED/34814/825255v11 37 02/15/01 ORDINANCE NO. 98 subscribed to the within instrument and acknowledged to me that *efsirvc/they executed the same in hig'her/their authorized capacity(ies), and that by h4—,44:h—_ff/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the within instrument. WITNESS my hand and official seal. No ary Pub is i RACFIrLLE D. KLA-•EN 1141"6 a NOTARY PUBUC - CALFORNIA AWOMIDE COUNTY "3+✓` My Comm. ExP. June 13. 20M CRCHELED/34814/825255v11 3 8 02/15/01 ORDINANCE NO. 98-1 EXHIBIT, LEGAL DESCRIPTION OP PROPERTY ALL THAT PORTION OF THE SOUTHWEST QUARTER OF FRACTIONAL SECTION 1, TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY, LYING SOUTHERLY OF THE RIGHT OF WAY OF THE SOUTHERN PACIFIC RAILROAD COMPANY. EXCEPTING THEREFROM THE SOUTH 44 FEET AS CONVEYED TO THE COUNTY OF RIVERSIDE BY DEED RECORDED MARCH 3, 1958 IN BOOK 2246, PAGE 531 OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM THAT PORTION AS CONVEYED TO THE CITY OF PALM DESERT BY DEED RECORDED JULY 10, 1995 AS INSTRUMENT NO. 220685 OFFICIAL RECORDS. SAID LAND IS ALSO KNOWN AS ALL THAT PROPERTY LYING WITHIN THE BOUNDARIES OF TENTATIVE TRACT 29468. CRCHELED/34814/825255v11 Exhibit A - Page 1 02/15/01 ORDINANCE NO. 98 " Exhibit "B" Illustrative plan sw[ r FUT PRELIMINARY SITE PLA 10.000 W. W1111" LOT SIZE rea NL�.�. u p oRrvE ORDINANCE NO. 98' EXHIBIT "C" CONDITIONS OF APPROVAL - CASE NOS. GPA 00-7, C/Z 00-5, TT 29468, TT 29555, DA 00-1 Department of Community Development: 1. The development of the property shall conform substantially with exhibits on file with the Department of Community Development, as modified by the following conditions. 2. Construction of a portion of said project shall commence within the time coinciding with the 12 year term of the approved development agreement unless an extension of time is granted; otherwise said approval shall become null, void and of no effect whatsoever. 3. The development of the property described herein shall be subject to the restrictions and limitations set forth herein which are in addition to all municipal ordinances and state and federal statutes now in force, or which hereafter may be in force. 4. Prior to issuance of a building permit for construction of any use contemplated by this approval, the applicant shall first obtain permits and/or clearance from the following agencies: Coachella Valley Water District Palm Desert Architectural Commission City Fire Marshal Public Works Department Sunline Transit Agency Evidence of said permit or clearance from the above agencies shall be presented to the Department of Building and Safety at the time of issuance of a building permit for the use contemplated herewith. 5. All sidewalk plans shall be reviewed and approved by the Department of Public Works. 6 All new utilities shall be underground. ORDINANCE NO. 98" 7. All sidewalk plans shall be reviewed and approved by the department of public works prior to architectural review commission submittal. 8. Applicant agrees to maintain the landscaping required to be installed pursuant to these conditions. Applicant will enter into an agreement to maintain said landscaping for the life of the project, which agreement shall be notarized and which agreement shall be recorded. It is the specific intent of the parties that this condition and agreement run with the land and bind successors and assigns. 9. The project shall be subject to all applicable fees at time of issuance of building permits including, but not limited to, Art in Public Places, Fringe -Toed Lizard, TUMF, School Mitigation and Housing Mitigation fees. Fringe Toed Lizard fee shall be paid at $600/acre. 10. All applicable Planned Residential standards shall apply. 11. A noise study shall be conducted and mitigation measures shall be implemented to insure compliance with the city's noise ordinance. 12. Access points along Tamarisk Row Drive shall be reserved for residents only. 13. Perimeter wall and perimeter landscaping adjacent to Tamarisk Row Drive, Country Club Drive and the entry road off Country Club Drive shall be installed with phase one of the tract. Department of Public Works: Drainage fees in accordance with Palm Desert Municipal Code Section 26.49 and Ordinance No. 653 shall be paid prior to recordation of the final map for TT 29468. 2. Any drainage facility construction required for this project shall be contingent upon a drainage study prepared by a registered civil engineer that is reviewed and approved by the Department of Public Works prior to start of construction. The project shall be designed to retain storm waters associated with the increase in developed vs. undeveloped condition for a 100-year storm. ORDINANCE NO. 9S' 3. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17 and 79-55, shall be paid prior to issuance of any permits associated with this project. Project shall be responsible for the modification of the existing traffic signal on Country Club Drive at the project entry. Said responsibility shall be limited to one-half of the cost of the modification. Those costs may be used as a credit against the subject signalization fees. Such a credit would be subject to approval by the Palm Desert City Council. 4. The project shall be subject to Transportation Uniform Mitigation Fees (TUMF). Payment of said fees shall be at the time of building permit issuance. 5. A complete preliminary soils investigation, conducted by a registered soils engineer, shall be submitted to, and approved by, the Department of Public Works priorto the issuance of a grading permit. 6. Complete tract maps shall be submitted as required by ordinance to the Director of Public Works for checking and approval prior to the issuance of any permits associated with this project. 7. As required under Palm Desert Municipal Code Section 26.28, and in accordance with Sections 26.40 and 26.44, complete improvement plans and specifications shall be submitted to the Director of Public Works for checking and approval before construction of any improvements is commenced. Offsite improvement plans to be approved by the Public Works Department and a surety posted to guarantee the installation of required offsite improvements prior to permit issuance. 8. All public and private improvements shall be inspected by the Department of Public Works and a standard inspection fee shall be paid prior to issuance of grading permits. 9. In accordance with the Circulation Network of the Palm Desert General Plan, installation of the northerly half landscaped median island in Country Club Drive shall be provided. Landscape shall be drought tolerant in nature. Developer may pay cash in lieu of actual construction. 10. Landscape installation on the property frontages shall be water efficient in nature and shall be in accordance with the City of Palm Desert landscape design standards. Landscaping maintenance for said landscape shall be provided through 3 ORDINANCE NO. 98' a property owners association. Applicant shall be responsible for executing a declaration of Conditions, Covenants and Restrictions, which declaration shall be approved by the City of Palm Desert and recorded with the county recorder. The declaration shall specify: (a) the applicant shall oversee the formation of a property owners association; (b) the property owners association shall be formed prior to the recordation of the final map TT 29468; and c) the aforementioned landscaping maintenance shall be the responsibility of the property owners association. 11. Applicant shall comply with the provisions of Municipal Code Section 24.12, Fugitive Dust Control as well as Section 24.20, Stormwater Management and Discharge Control. 12. Any and all offsite improvements shall be preceded by the approval of plans and the issuance of valid encroachment permits by the Department of Public Works. 13. In accordance with Palm Desert Municipal Code Section 26.44, complete grading plans/site improvement plans and specifications shall be submitted to the Director of Public Works for checking and approval prior to issuance of any permits. 14. Traffic safety striping on Country Club Drive, Tamarisk Row Drive and "I" Street shall be provided to the specifications of the Director of Public Works. A traffic control plan must be submitted to, and approved by, the Director of Public Works prior to the placement of any pavement markings. 15. Full public improvements, as required by Sections 26.40 and 26.44 of the Palm Desert Municipal Code, shall be installed in accordance with applicable City standards. Improvements shall include, but not be limited to the following: Installation of curb and gutter at 43 feet from centerline, AC paving and meandering sidewalk along the Country Club Drive frontage adjacent to property. Installation of curb and gutter at 38 feet from centerline, AC paving and meandering sidewalk along the Tamarisk Row Drive frontage. Installation of street improvements (curb and gutter, AC paving and sidewalk) for "I" Street as 4 ORDINANCE NO. 98' shown on the tentative map exhibit and as described within the project development agreement. * Modification to the existing traffic signal on Country Club Drive at "I" Street to provide for full intersection operation. * Installation of transit facilities shall be as follows: a. If Sunline provides bus service to this area prior to commencement of construction, the developer shall install a bus shelter. The bus shelter is to be constructed to aesthetically match the architecture of the complex or building(s). The bus shelter dimensions shall be at minimum 8' x 18' x 8'; the bus shelter shall include, but not be limited to, electrical lighting, bench(es), and other components (i.e., trash container) not listed. The bus shelter and pad to be ADA compliant. The pad dimensions shall be a minimum of 10' x 20' and 3.5" thick. b. However, if Sunline does not provide bus service to this area prior to commencement of construction, the developer shall place a bus shelter pad on the site. The pad dimensions should be a minimum of 10' x 20' and 3.5" thick, the pad shall be ADA compliant, and the electrical conduit to be run from the house panel to within 12" but no closer than 6" to the bus shelter pad for future bus shelter installation. Regardless of the timing of Sunline service, a bus turnout shall be installed to Sunline Transit standards during construction of phase one. * Lots 272 and 273 along the northerly project boundary shall be dedicated to the City of Palm Desert for pedestrian/bicycle route purposes. 5 ORDINANCE NO. 98 Residential street sections shall be as shown on the tentative tract map with a minimum width of thirty-six feet. Rights -of -way necessary for the construction of required public improvements shall be provided on the Tract Map. 16. Proposed building pad elevations are subject to review and modification in accordance with Chapter 27 of the Palm Desert Municipal Code. 17. As required under Sections 26.32 and 26.40 of the Palm Desert Municipal Code, all existing overhead utilities shall be placed underground per the respective utility district recommendation. 18. Waiver of access rights to Country Club Drive, Tamarisk Row Drive and "I" Street except at approved locations shall be granted on the Final Map. 19. Prior to start of construction, the applicant shall submit satisfactory evidence to the Director of Public Works of intended compliance with the National Pollutant Discharge Elimination (NPDES) General Permit for storm water discharges associated with construction. Riverside County Fire Department: With respect to the conditions of approval regarding the above referenced project, the fire department recommends the following fire protection measures be provided in accordance with City Municipal Code, NFPA, UFC, and UBC or any recognized Fire Protection Standards: The Fire Department is required to set a minimum fire flow for the remodel or construction of all buildings per UFC article 87. 2. A fire flow of 1500 gpm for a 1 hour duration at 20 psi residual pressure must be available before any combustible material is placed on the job site. 3. Provide or show there exists a water system capable of providing a gpm flow of 1500 gpm for single family dwellings. 4. The required fire flow shall be available from a wet barrel Super Hydrant(s) 4" x 2'/2" x 2Yz", located not less than 25' nor more than 200' from any portion of a single family dwelling measured via vehicular travelway. n ORDINANCE NO. 98' 5. Water plans must be approved by the Fire Marshal and include verification that the water system will produce the required fire flow. 6. All buildings shall be accessible by an all-weather roadway extending to within 150' of all portions of the exterior walls of the first story. The roadway shall not be less than 24' of unobstructed width and 13'6" of vertical clearance. Where parallel parking is required on both sides of the street the roadway must be 36' wide and 32' wide with parking on one side. Dead-end roads in excess of 150' shall be provided with a minimum 45' radius turn-_ around 55' in industrial developments. 7. Whenever access into private property is controlled through use of gates, barriers or other means provisions shall be made to install a "Knox Box" key over -ride system to allow for emergency vehicle access. Minimum gate width shall be 16' with a minimum vertical clearance of 13'6". 8. All buildings shall have illuminated addresses of size approved by the city. 9. Conditions subject to change with adoption of new codes, ordinances, laws or when building permits are not obtained within 12 months. 7 ORDINANCE NO. 981 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT BETWEEN ABD PALM DESERT 118, LLC, AND THE CITY OF PALM DESERT FOR 117.5 +/- ACRES AT THE NORTHEAST CORNER OF TAMARISK ROW DRIVE AND COUNTRY CLUB DRIVE. CASE NO, DA 00-01 AS IT RELATES TO CASE NOS. GPA 00-07, C/Z 00-5. TT 29468 AND TT 29555 WHEREAS, the City Council of the City of Palm Desert, California, did on the 22nd day of February, 2001, hold a duly noticed public hearing to consider the request by ABD PALM DESERT 118, LLC, for approval of DA 00-01; and WHEREAS, California law provides the operative date of an ordinance may be made contingent upon the occurrence of a future event; and WHEREAS, it is the intention of City that this Ordinance shall become effective thirty (30) days after the date of its adoption but shall not become operative until the date of recordation of a grant deed conveying title to the Property from the existing owner of the Property, Palm Desert (Riverside) PIP, L.P. to ABD Palm Desert, LLC ("ABD Palm Desert") is recorded in the Official Records of Riverside County (the "Grant Deed Recordation Date"). 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: That the above recitations are true and correct and constitute the findings of the City Council in this case. 2. That DA 00-01 Exhibit "A" as 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, published and circulated in the City of Palm Desert, California, and shall take effect thirty (30) days after the date of its adoption; provided, however, this Ordinance shall only become operative upon the Grant Deed Recordation Date. ORDINANCE NO. 981 PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this 12th day of April , 2001, by the following vote, to wit: AYES: BENSON, CRITES, KELLY, SPIEGEL, FERGUSON NOES: NONE ABSENT: NONE ABSTAIN: NONE ATTEST: SHEILA R. GIELIGAI K, Pity Clerk City of Palm Deser, , Slalifornia EACH DOCUMENT TO WHICH THIS CERTIFICATE IS K!TA.CHED. IS CERTIFIED TO BE A FULL, TRUE AND CORRECT COPY OF THE ORIGINAL ON FILE AND ON RECORD IN MY OFFICE. 2 Itec LARRY W. WARD de` P.O..o. Bo. 751 COUNTY OF RIVERSIDE Riverside, CA 92502-0751 ASSESSOR -COUNTY CLERK -RECORDER (951) 486-7000 www.riversideacr.com CERTIFICATION Pursuant to the provisions of Government Code 27361.7, l certify under the penalty of perjury that the following is a true copy of illegible wording found in the attached document: (Print or type the page number(s) and wording below): Development Agreement No. 00-01 (Ordinance No. 981) Page 35 Embossed Seal reads as follows: Palm Desert Incorporated 1973 November 26 Date: i �_ - ._,�(? L, Signature: Print Name: ACR 601P-AS4RG0 (Rev. 092005) Available in Alternate Fonnats