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HomeMy WebLinkAboutOrd 1132 DA 06-02 Palm Desert Funding Co., LP �(�(�--�-� /��� C�� AtiENE1A P ,AGK�iI' SGV 111iR,��w�innn�w �.—.,7�_.� MEETIM6 DATE a - aa -o� City of Palm D � � Office of the City Manager . MEMORANDUM To: Honorable Mayor and Members of the City Council From: Carlos L. Ortega, City Manager Date: February 22, 2007 Re: University Park Master Plan Development Agreement The attached staff report and accompanying agreement should be substituted for the agreement currently in the Council's packet. The new agreement addresses the Council's concern that it may not want to approve a total development agreement for the University Park Master Plan, and only deals with that portion where the Wonder Palms Agreement and the University Park Master Plan overlap. This agreement allows the City to provide for new land uses in the University Park Master Plan that are not in the Wonder Palms Agreement. This needs to be done in order for the City to accept and finance the park sites. a, � CARLOS L. ORTE A :�, c> City Manager � ��+ � m� Attachment a`�"v �r� �y r�1^� � ��'� ��� � �'u'r+� ��� � C�-�n � �n W rrt CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT REQUEST: Approval of the University Park Master Plan Development Agreement as it relates to 190 +/- acres generally located south of Gerald Ford Drive and east of Portola Avenue, 74-500 College Drive. SUBMITTED BY: Steve Smith, Acting Director of Community Development `.�..v..,.� APPLICANT: Palm Desert Funding Company, LP 3 San Joaquin Plaza #215 Newport Beach, CA 92660 n � Q CASE NO: DA 06-02 related to C/Z 06-04 � `�;" � � DATE: February 22, 2007 continued from February 8, 2007 t1S � � CONTENTS: e�� � cc � o ~ N Draft Ordinance and Development Agreement � w � Legal Notice �; z W Planning Commission Minutes dated January 16, 2007 � o � Planning Commission Staff Report dated January 16, 2007 � U � Draft City Council Minutes of February 8, 2007 � ❑ Recommendation: That Ordinance No. 1132 approving Case No. DA 06-02 be passed to second reading. Current Proposal: The applicant seeks approval of this development agreement to vest and guarantee its right to develop the projects contained within the University Park Master Plan (Case No. C/Z 06-04). Background: The University Park Master Plan includes approximately 190 acres (204 gross acres) with seven project sites. MAX. # OF UNITS PARCEL PER GENERAL PLAN STATUS Parcel A 115 No project proposed Parcel B 213 Approved TT 34680 195 units (Permits pending) Parcel C 141 Approved TT 34055 242 lots Parcel D 102 Parcel E 141 Approved TT 34051 141 lots Parcel F 72 Approved TT 34074 72 lots Parcel X 2f�$ Approved TT 32655 268 Iots 1,052 units 918 units/lots For the area we have 918 units entitled with one parcei unentitled with a maximum potential of 115 units for an area total of 1,033 units versus the general plan maximum of 1,052 units. Over the gross area, the density is 4.5 units per acre. Discussion: This Development Agreement essentially has two purposes. First it guarantees the property owners the right to develop their properties for a period of ten (10) years versus the normal Map Act limitations of two years plus a one year time extension. Therefore, by approving this Development Agreement we would extend the life of the projects from three years to ten years or longer if a future City Councif decides to extend the term. Looked at another way, we will lock in six relatively low density projects (4.5 units per acre) for a period of ten years and reduce the likelihood of a developer seeking amendment to increase the density of the approved projects. Second, the Development Agreement will supersede the existing Wonder Palms Development Agreement for certain areas where there is an overlap of the finro master plans. It is critical that these overlapping areas be removed from the Wonder Palms Development Agreement because the land uses are significantly different. Specifically, the Wonder Palms Plan shows the area south of Gerald Ford east of Portola (14.5 acres) Planning Area 8 as high density residential (18 units per acre) while the new University Park Plan shows this area as low density residential 5.4 units per acre. Additionally, portions of Parcels B, F and TT 32655 are also within the Wonder Palms plan as Planning Area 5 which was a mixed use commercial and residential designation with no park sites identified. The University Park Plan shows residential only in this area with two park sites in this area. The City Attorney and Bond Counsel for the CFD indicate that these inconsistent land uses must be corrected. Failure to supersede the Wonder Palms Development Agreement or otherwise remove the areas of overlapping land use from the Wonder Palms area could create a cloud on the title. Under the worst case scenario, the tax exempt status of the previously issued bonds ($50 million) could be called into quesfion. Response to City Council Questions: At the February 8, 2007 meeting, Council members asked questions as follows: 1. Is park maintenance included in the CFD? Response: No. See attached memo from the Parks Manager delineating anticipated maintenance costs. 2. Does the diagonal line along the southwest limit of the area undulate? Response: Yes. At the scale used on the location map the undulation may be imperceptible, but the undulation does occur. 3. What was the term for the Wonder Pa1ms Development Agreement? Response: The Wonder Palms Development Agreement was approved in April 1997 for a term of 15 years. Alternative Action: In the event the Council determines not to approve to recommend Development Agreement, an alternative Agreement is also provided which modifies the Wonder Palms Agreement to the extent it affects the property that has been designated as Park and low density residential. The cioud on title of the Wonder Palms agreement would be removed and clean title to the City of the park land would be provided. The alternate Agreement aiso contains the timing provision for the early development of the Parks. Your action would be to pass Ordinance 1132A to Second reading approving Case No. DA 06-02. The agreement does not yet have the approvai of the Developer, Park Desert Funding Company LP. Submitted by: Review and Approve: S eve Smith Homer Croy Acting Director of Community ACM for Development Services Development Review and Concur: Review and Concur: � i i t�',� ' � � r � L ;1: ` ,C! Carlos Orte David J. in City Manager City Attorney DEVELnPMEN1' AGREFMENT (Universit�� Park) "I�E�IS DCVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of this day of , 2007, by and between the City of Palm Desert, California, a municipal cotporation organized and existing under the laws of the State of Califoinia (the "City"), and Palm Desert Funding Company, L.P., a Delaware limited partnership ("Developer"), with reference to the following facts, understandings and intentions of the parties: RECITALS A. These Recitals refer to and utilize ceRain capitalized terms which are defined in this Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. Government Code Sections 65684 through 65869.5 inclusive (the "Development Agreement Legislation") authorize the City to enter into development agreements in connection with the dcvelopment of real property within its jurisdiction. On August 11, 1983, the City enacted by Ordinance No. 341, as amended on December 7, 1989 by Ordinance No. 589 (collectively, the "Development Agreement Ordinance"), procedures and requirements for the consideration of development agreements thereunder pursuant to the Development Agreement Legislation. C. Developer owns or is purchasing certain property in the City of Palm Desert Califo�nia (the "Property") which Property is more particularly described on Exhibit "A" attach�d here�o and incorporated herein by this reference. D. I�eveloper intends to use the Property to develop a Project consisting ot� the I11c;CI]Ulll and ]u�v density residential development and associated amenities and public improvements. L. The Property is located within an important planning area (University Park Area) of tlle City and the coordinated development of the Project pursuant to this Agreement represents an important and mutually beneficial economic development and land usage planning opportunity for the City and Developer. F. In April 1997, the City Council, by its Ordinance No. 838, approved a Development Agreement (DA 97-2), and said DA 97-2 was recorded in the official records of the County Recorder for the County of Riverside on May 22, 1997 as Instrument No. 179687. D�1 97-2 included a development plan for a large area of land which was centered around the Cook Sti•cet and Gerald Ford Drive intersection. DA 97-2 incorporated the Wonder Palms Development Plan, including eight planning areas. A portion of the Property was included in the approved Wonder Palms Development Plan as Planning Areas 3 and 5. It is the intent of the parties to this Agreement that this Agreement amend and supercede DA 97-2 with respect to any portion of the Property subject to DA 97-2. This Agreement shall not affect any portion of the land ai'fected by the Wonder Palms Development Plan outside the boundaries of the Property. G. In the 2004 General Plan update, the section (Section 33) within which the Property is located, (bounded by Frank Sinatra on the south, Poriola on the west, Gerald Ford on the north, and Cook on the east), was considered a distinet planning area which made up part of the Uni�-ersity� Park Ai•�a I I. The City has determined that the development of the Project as contemplated by this Agrcement is consistent with and in furtherance of the development goals, policies, general 2 land uses and developiile�lt pro�rams of the C:ity as set forth in the City's University Park Are� of the General Plan, and is consistent with the existing Planned Community Development (PCD) Overlay loile. I. In order to effectuate the foregoing, the parties desire to enter into this Agreemeiit. NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, and in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: 1. Detinitions. 1.1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. 1.2 A�reement. This Development Agreement. 1.3 BuildinQ Ordinances. Those building standards, of general and uniform application throughout the City and not imposed solely with respect to the Property, in effect from time to time that govern building and construction standards within the City, including, without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire codes. • 1.4 Citv Council. The legislative body of the City of Palm Desert. 1.5 Effective Date. The date on which the Enacting Ordinance becomes effective. 1.6 Enactin� Ordinance. Ordinance , enacted by the City Council o�l , 2007, approving this Agreement. 3 1.7 Existin� Land Use Ordinances. T'he Land Lise Ordinances in effect as of the L:ftective Date. 1.8 Land Use Ordinances. The ordinances, resolutions, codes, i•ules, regulations and official policies of the City, governing the development of the Property, including but not limited to, the permitted uses of land, the density and intensity of use of land, and the timing of development, all as applicable to the development of the Property. Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shal] include the City's General Plan, the City's zoning ordinance and the City's subdivision code, but shall exclude the Building Ordinances. 1.9 Mortgage. A mortgage, deed of trust, sale and leaseback arrangement in �vhich all or a part of the Property, or an interest in it, is sold and leased back concurrently, or other transactions in which all or a part of the Property, or an interest in it, is pledged as security, contracted in good faith and for fair value. 1.10 Proiect. The medium and low density residential development and associated amenities, and on-site and off-site improvements, as permitted under and described in the Master Development Plan (Exhibit "B"), to be constructed on the Property, as the same may hereafier be further refined, enhanced or modified pursuant to the provisions of this Agreement and pursuant to the conditions of approval imposed on any further land use entitlement applications that may be reasonably required in order to implement the development of the Project. 1.11 Pro er �. The real property and any improvements thereon which is desceibed in Exhibit "A" to this Agreement. 4 1.12 Tract Maps. Tract Maps 326�5, 32655-1, tentative tract maps 34455, 3�057. �4074. and 3�6?6 and any other tract map affecting the Property and implen�enting the I'rojecl, appi•oved liei•eafter with the consent of the Devcloper. 2. Term; Amendment. 2.1 Term. The term of this Agreement (the "Term") shall commence on the F..ffective Date and shall terminate on the ten (10) year anniversary date of the Effective Date, unless sooner terminaied or extended as hereinafter provided. 2.2 Amendment. The parties to this Agreement at their sole discretion and by their mutual written consent may from time to time amend the provisions and terms of this Agreement and the Exhibits hereto. Any amendment to this Agreement or the Exhibits hereto as provided herein shall be effected only upon compliance with the procedures for amendment, if any, required by the Development Agreement Legislation and the Development Agreement Oi•dinance. The City shall, after any such amendment takes effect, cause an appropriate notice of such amendmeni to be recorded in the official records of the County of Riverside. 3. Sunercede DA 97-2. This Agreement shall amend and supercede DA 97-2 (recorded by Riverside County Recorder on May 22, 1997 as Instrument No. 179687) with cespect to any portion of the Property subject to DA 97-2. 4. General Development of the Proiect. 4.1 Proiect. (a) The Project is defined and described in the University Park Master Develupiuent Ylan attached to this Agreement as EYhibit "B", which specifies for the purpose of tllis Agreement all of the following aspects of the Project: (i) proposed land uses of the Property; (ii) the maximum (and probable) density and intensity of development of the Property; (iii) 5 clevelopmcnt stanciards; (iv) open space and park requirements; (v) certain requirements t•elating to access �nd traffic cireulation ���ithin the Property; arid (vi) certain design guideli�ies relating t� the construction of on-site and off-site impruvements. (b) The development shall be subject to the payment of all fees or exactions in the categories and in the amounts as required at the time such fees are due and payable which may be at the time of issuance of building permits, or otherwise as specified by applicable law, as existing at the time such fees are due and payable, it being understood that this Agreecnent shall not prevent the City from establishing any new City fees, including new development impact fees, or increasing any existing City fees, and to apply such new or increased fees to the project or applicable portion thereof. (c} The development shall be subject to the reservation or dedication of land for public purposes or payment of fees in lieu thereof as required at the time such reseivations or dedications or payments in lieu are required under applicable law to be made or paid. 5. Timing of Construction. 5.1 Timin� of Parks Construction. The University Park Master Uevelopment Plan includes parks to serve the community. Various business agreements related to the Community Facilities District for this area provide that the City purchase the parkland fi•om the developer and the developer subsequently constructs the park improvements to City specifications. The City desires assurance that the construction of the park improvements be commenced and completed in a timely manner. Accordingly, the developer agrees that the parks shall be constructed and completed as part of the first phase of the tract in which they are located. More 6 sp�citically, these parks shall be completed prior to the issuance of a Certificate of Occupancy rl,1P illll' 1'�S1C��11Ce lll t�711 tI'1C1. 5.2 Exceqtion to 5.1 Provisions. The developers are requesting that the City issue another $20 million in bond monies in the near future. IRS tax regulations require that the C:it}� needs to liave a reasonable expectation that they are going to spend the bond monies within three (3) years of such additional issuance. Therefore, notwithstanding the provisions of Section 5.1 above, the City reserves the right to require that the monies be expended and the parks be constructed within three years of such issuance 6. Periodic Review of Compliance. In accordance with Govt. Code 5ection 65865.1, the City Council shall review this Agreement at least each calendar year during the tei•m of tliis Agreement. At such periodic reviews, Developer must demonstrate its good faith compliance with the terms of this Agreement. Developer agrees to furnish such �vidence of good f'aith compliance as the City, and after reasonable exercise of its discretion and after reasonable notice to Developer, may require. 7. Permitted Delays; Sunersedure bv Subsequent Laws. 7.1 Permitted Delays. In addition to any other provisions of this Agreement with respect to delay, Developer and City shall be excused from performance of their obligations het•eunder during any period of delay caused by acts of mother nature, civil commotion, riots, strikes, picketing, or other labor disputes, shortage of materials or supplies, or damage to or pre:vention oi�worl: in process by reason of fire, floods, earthquake, or other casualties, litigation, acts or ne�lect of the other party, any referendum elections held on the Enacting Ordinance> or the Land Use Ordinances. or any other ordinance effecting the Project or the approvals, permits 7 oc uther entitlements c•elated thereto, or restrictions imposed or mandated by governmental or yuasi-�ov�rnmental entities, enactment of conflicting provisions of the Constitution or laws of the Unitcd States of America or the State of California or any codes, statutes, regulations or executive mandates promulgated tllereundei• (collectively, "Laws"), orders of courts of competent jurisdiction, or any other cause similar or dissimilar to the foregoing beyond the reasonable control of City or Developer, as applicable. �,ach party shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. The time of performance of such obligations shall be extended by the period of any delay hereunder. 7.2 Sunersedure of Subseauent Laws or Judicial Action. The provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to comply with any new law or decision issued by a court of competent jurisdiction (a "Decision"), enacted or made after the Effective Date which prevents or precludes compliance with one or more provisions of this Agreement. Promptly after enactment of any such new Law, or issuance of�such Decision, the parties shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. In addition, Developer and City shall have ihe right to challenge the new Law or the Decision preventing compliance with the terms of this Agreement. In the event that such challenge is successful, this agreement shall remain unmodified and in full force and effect, except that the Term shall be extended, in accordance with Section 7.1 above, for a period of time equal to the length of time the challenge was ptu�sued. 8 3. Cvents of 1)efault; Remedies; Termination. 8.1 Events of Default. Subject to any eatensions of time by mutual consent in writing, and subject to the provisions of Section 7 above regarding permitted delays, the tailure of either party to perform any material term or provision of this Agreemeni shall constitute an event of default hereunder ("Event of Default") if such defaulting party does not cure sucli failure within ninety (90) days following receipt of written notice of default from the other party; provided, however, that if the nature of the default is such that it cannot be cured within such ninety (90) day period, the commencement of the cure within such ninety (90) day period and the diligent prosecution to completion of the cure shall be deemed to be a cure within such period. Any notice of default given hereunder shall specify in detail the nature of the alleged Event of Default and the manner, if any, in which such Event of Default may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the party charged therewith shall not be considered to be in default for purposes of termination of this Agreement, institution of legal proceedings with respect thereto, or issuance of any permit, map, certificate of occupancy, approval or entitlement with respect to the Project. 8.2 Remedies. Upon t11e occurrence of an Event of Default, the nondefaulting party shall have such rights and remedies against the defaulting party as it may have at law or in equity, including, but not limited to, the right to damages and the right to terminate this n�r��ment or seek mandamus, specific performance, injunctive or declaratory relief. Not�vithstanding the fo►•egoing and except as otherwise provided, if either Developer or City elects to terminatc this Abreement as a result of the occurrence of an Event of Default, such 9 pr��ceedin� oI� termination shall constitute such party's exclusive and sole remedy, and with r�spect to such election and City and Developer hei•eby waive, release and relinquish aiiy other ri�ht or r�medy otherwise available under this Agreement or at law or equity. 8.3 Waiver: Remedies Cumulative. Failure by a party to insist upon thc strict performancc of any of the provisions of this Agreement by the other party shall not constitute waiver of such party's right to demand strict compliance by such other party in the future. All waivers must be in writing to be effective or binding upon the waiving party, and no waiver shall be implied from any omission by a party to take any action with respect to such Event of Default. No express written waiver of any Event of Default shall affect any other Event of Default, or cover any other period of time specified in such express waiver. 8.4 Effect of Termination. Termination of this Agreement by one party due to the other party's default, or as a result of the exercise of the right of termination provided to the Developer under Section 8.1 hereof, shall not affect any right or duty emanating from any appi•ovals, permits, certificates or other entitlements with respect to the Property or the Project which were issued, approved or provided by the City prior to the date of termination of this agreement. If City terminates this agreement because of developer's default, then City shall retain any and all benefits, including money, land or improvements conveyed to or received by the City prior to the date of termination of this agreement, subject to any reimbursement obligations of the City. If developer terminates this agreement because of City's default, or as a result of the exercise of the right of termination provided to the developer under section 8.1 hereuf, then developer shall be entitled to all of the benefits arising out of, or approvals, permits, certiticates or uther entitlements on account of, any exactions paid, given or dedicated to, or recei��ed by, City prior to the date of termination of this agreement. EYcept as otherwise 10 pri�vided in this section 8.4, all oi�the rights, duties and obligations of the parties hereunder shall other��ise cease 1s of the date of the terminalion of this agreement. I1�this agreement is terminated pursuant to any pi•ovision hereof, then the City shall, after such aciion takes effect, cause an appropriate notice of such action to be recorded in the official recoi•ds of the county of riverside. The eost of such recordation shall be borne by the party causing such action. 8.5 Third Partv Actions. Any court action or proceeding brought by any thii•d party to challenge this agreement or any permit or approval required from City or any other governmental entity for development or construction of all or any portion of the project, whether or not developer is a party defendant to or real party defendant in interest in such action or "proceeding, shall constitute a permitted delay under section 7.1. 9. Transfers and Assignments; Effect of AQreement on Title. 9.1 Riehts and Interests Appurtenant. The rights and interests conveyed as provided herein to developer benefit and are appurtenant to the property. Developer has the right to sell, assign and transfer any and all of its rights and interests hereunder and to delegate and assign any and all of its duties and abligations hereunder. Such rights and interests hereunder may not be sold, transferred or assigned and such duties and obligations may not be delegated or assigned except in compliance with the following conditions: (i) Said rights and interests may be sold, transferred or assigned only together with and as an incident of the sale, lease, transfer or assignment of the portions of the property to �vhich thcy relate, including any transfer or assignment pursuant to any foreclosure of a morlgage or a deed in lieu of such foreclosure. Following any such sale, transfer or assignment of any of the rights and intcrests of developer under this agreement, the exercise, use and enjoyment I1 thr�•eof' shall continue to he subject to tile terms of this agreement to the same extent as if ihe purchaser, transfer�e or assignee were developer hereunder. 9.2 Covenants Run witl� Land. (i) All of the provisions, agreements, rights, powers, standards, te�ms, covenants and obligations contained in this agreement shall be binding upon the parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees, lessees, ai�d all other persons acquiring any rights or interests in the property, or any portion tliereoC, whether by operation of laws or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns; (ii) All of the provisions of this agreement shall be enforceable as equitable servitudes and constitute covenants ruruiing with the land pursuant to applicable law; (iii) Each covenant to do or refrain from doing some act on the property hereunder (a) is for the benefit of and is a burden upon every portion of the property, (b) runs with such lands, and (c) is binding upon each party and each successive owner during its Ownership of the property or any portions thereof, and shall benefit each party and its lands hereunder, and each such other person or entity succeeding to an interest in such lands. 10. Notices. Any notice to either party shall be in writing and given by delivering the same to such party in person or by sending the same by registered or certified mail, return receipt requested, with postage prepaid, to the following addresses: IP t� City: City Clerk of the City of Palm Desert 73-510 Fred Waring drive Palm Desert, California 92260 l2 It�to Developer: Palni Desert F'unding Company, L.P. c/o Hover Development 3 San Joaguin Plaza, #215 Newpori Beach, CA 92660 Attention: 1'om Hover Either party may change its mailing address at any time by giving written notice of such change to the other party in the manner provided herein. All notices under this agreement shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. l 1. Indemnification: lleveloner's Obli�ation. ll.l Develoner's Wrong-Doing. Developer will defend, indemnify and hold the City and its elected officials, officers and employees ("indemnified parties") free and harmless from any loss, cost or liability (including, without limitation, liability arising from injui•y or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any obligation which arises from the development of the propeRy including, without limitation, obligations for the payment of money for material and labor; (ii) any failure on the part of developer to take any action which he is required to take as provided in tliis agreement; (iii) any action taken by developer which he prohibited from taking as provided in this agreement and (iv) any claim which results from any willful or negligent act or omission of developer. 11.2 Environmental Assurances. Developer shall indemnify and hold the indem►iilied parties free a�id liarmless from a�iy liability deriving from the City's execution or �et•formance of this lgreement, based or asserted, upon any act or omission of developer, its ofticers, agents. employees. contractors, subcontractors and independent contractors for any viulation of any fedei•a1, staie or local law, oc•dinance or regulation relatitig to hazardous oi• toxic 13 111�C1'1'1�1�5, industrial hygiene, or environmental conditions created by developer or its officers. �I��11fS UC llll}��Oyees, contractoi•s, subcontractoi•s and independent contracto�s aftei• tlle effective clate and developer shall defend, at its expense, including attorneys fees, the indemnified parties in any actioii based or asserted upon any such alleged act or omission. 11.3 Challen�es to A�reement. Developer agrees and shall indemnify, hold hai•mless and defend the indemnified parties from any challenge to the validity of this agreement, or to the City's implementations of its rights under this agreement. 11:4 Defense by Counsel Chosen by City. In the event the indemnificd parties are made a party to any action, lawsuit other adversarial proceeding in any way involving claims speciiied in sections 11.1, 11.2, or 11.3, developer shall provide a defense to the indemnified parties, with counsel reasonably acceptable to City. Developer shall be obligated to promptly pay all costs of def'ense, including all reasonable attorneys' fees, and any final judgment or portion thereof rendered against the indemnified parties. 11.5 Non-liability of Citv OfGcers and Emplovees. No official, officer, employee, agent, or representative of the City, acting in his/her official capacity, shall be personally liable to developer, or any successor or assign, for any loss, cost, damages, claim, liability or judgment arising out of or in connection to this agreement, or for any act or omission on tlic part of the City. 11.6 Survival. The provisions of these sections 11.1, 11.2, 11.3, 11.4 and 11.5 shall survive the ter►nination or expiration of this agreement. 12. Miscellaneous. 12.1 Relationshi� of Parties. It is understood that the project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and 14 tllat eacl� pat•ty is �n inclependent contractor. It is fiirther understood that none of the terms or pruvisiuns of this agreemenc are intended to or shall be deemed to create a partnership, _join� venture or joint cnterprise between the parties hereto. 12.2 Consents. Unless otherwise herein provided, whenever approval, consent, acceptance or satisfaction (collectively, a "consent") is required of a party pursuant to this agrcement, it shall not be unreasonably withheld or delayed. Unless provision is otherwise specified in this agreement or otherwise required by law for a specific time period, consent shall be deemed given within thirty (30) days after receipt of the written request for consent, and if a pat-ty shall neitller approve nor disapprove within such thirty (30) day period, or other time period as may be specified in this agreement or otherwise required by laver for consent, that party shall then be deemed to have given its consent. If a party shall disapprove, the reasons therefor shall be stated in reasonable detail in writing. This section does not apply to development approvals by the City. 12.3 Not a Public lledication. Except as otherwise expressly provided herein, nothing herein contained shall be deemed to be a gift or dedication of the property, or of the project or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this agreemenl be sti•ictly limited to and for the purposes herein expressed for the development of the project as private property. 12.4 Severabilitv. If any term, provision covenant or condition of this a�r�ement shall be determined invalid, void or uncnforceable by judgment or courl order, the ren►ainder of this agreement shall remain in full force and effect, unless enforcement of this 15 a�l'�Zlll�lll as so invalidated would be unreasonable or grossly inequitable under all the relevant circumstanees or�vould frustrate the purposes of this a�reement. 12.5 Exliibits. The exhibits listed in the table of coiitents, to which reference is made herein, are deemed incorporated into this agreement in their entirety by reference thereto. 12.6 Entire A�reement. This written agreement and the exhibits hei•eto contain all the representations and the entire agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this agreement and the exhibits hereto, any prioi• correspondence, memoranda, agreements, warranties or representations are superseded in total by this agreement and exhibits hereto. 12.7 Governin� Law; Construction of A�reement. This agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. The provisions of this agreement and the exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties hereunder. The captions preceding the text of each section, subsection and the table of contents hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this agreement. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. 12.8 Sienature Pa�es. For convenience, the signatures of the parties of this agrcement niay be exccuted and ackno�vledged on separate pages which, when attached to this agreement, shall constitute this as one complete agreement. 16 12.9 'I'ime. 'l�ime is of' the essencc of this agreement and of each and every term anci cu�ldition liereof. 12.10 Prevailin� Yartv's Attornev's Fees and Costs. lf any party to this agreement shall fail to perform any of its obligations hereunder, or if�a dispute arises with respect to �he meaning or interpretation of any provision hereof or the performance of the obligations of any party hereto, the defaulting party or the party not prevailing in such dispute, as the case may be, shall promptly pay any and all costs and expenses (including without limitation, all court costs and reasonable attorneys' fees and expenses) incurred by the other party with respect to such to such dispute or in enforcing or establishing its rights hereunder. IN WiTNESS WHEREOF, the parties have executed this agreement as of the date and year first above-written. DEVELOPER: PALM DESERT FUNDING COMPANY, L.P., A Delaware Limited Partnership By: Its: general partner By: President CITY: CITY OF PALM DESERT, CALIFORNIA, a municipal corporation organized and existing under the laws of the State of California By: Richard S. Kelly, Mayor Attest; Rachelle ll. Klassen, City Clerk 17 S"(�A"f� UF C'ALIFORNIA ) ) ss COUN`I�Y Or ) On , 2007, bcfot�e me, , a notary public i�i a�ld ior said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they cxecuted the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed thc instrument. W itness my hand and official seal. 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' ��� ��'�� � � � 'i U � ��� � ,� �'�����'„ ` � � � � � �c i � � /' � � ,��. � O � � � � �!'��� ; � � � �p� �'� � �I�y u� / i f,/J /,1 � � � � W � i, a p� � u r �r'�� ii��r1r ��;� � VJJ � � i� � �,.' ��'j' '�lf � � � C � r ���;i'���?� . � ,' jir 1' { � W � � . i� '� ! `��1 'I�/',�l'1!�1 � � � C1) c�d i� � � ��(fr,f�ljrl t !� � �' �L � Q � ��� �,J,� � ,I � p 0 � � � � � �. �j � �"; O � i� � � 'e� � � � � � ' I � ' r, i ii � ^ � � � �� � �;' ��(� �� � � I � ���y � �� � i � ����� r i � �� ��+- I i,' "':,_�: �� � m I r'� � m I i '� q .� 1'� � � h o I ' n i� �' o ' i W � � _ � � I � � � � � n � N � h lD O O C U ¢ . ¢ REQUEST: MEETING DATE - 4T, CITY OF PALM DESERT u CONTINUED TO - �a - 0 7 DEPARTMENT OF COMMUNITY DEVEOPMENT ❑PASSED TO 2ND READING STAFF REPORT Approval of the University Park Master Plan Development Agreement as it relates to 190 +/- acres generally located south of Gerald Ford Drive and east of Portola Avenue, 73-500 College Drive. SUBMITTED BY: Steve Smith, Acting Director of Community Development APPLICANT: Palm Desert Funding Company, LP 3 San Joaquin Plaza #215 Newport Beach, CA 92660 CASE NO: DA 06-02 related to C/Z 06-04 DATE: February 8, 2007 CONTENTS: Draft Ordinance and Development Agreement Legal Notice Planning Commission Minutes dated January 16, 2007 Planning Commission Staff Report dated January 16, 2007 Recommendation: That Ordinance No. 1132 approving Case No. DA 06-02 be passed to second reading. Current Proposal: The applicant seeks approval of this development agreement to vest and guarantee its right to develop the projects contained within the University Park Master Plan (Case No. C/Z 06-04). Background: May 11, 2006 the City Council gave second reading to Ordinance No. 1116 approving the University Park Master Plan and Planned Community Development Overlay Zone (PCD) pursuant to Case No. C/Z 06-04. The Development Agreement relating to the master plan had not been prepared at that time so it was not acted upon. Staff Report Case No. DA 06-02 related to C/Z 06-04 Page 2 February 8, 2007 Adjacent Zoning and Land Use: North: PCD / Vacant / Wonder Palms Development Agreement South: PR-5 / Vacant (Ogulnick Project) East: PCD / Evans Commercial / Wonder Palms Development Agreement West: PR-5 / Single Family Dwellings Planning Commission Action: The Planning Commission considered this matter at its January 16, 2007 meeting and recommended approval on a 4-0 vote with Commissioner Tanner absent. Discussion: In 1997 the City adopted, pursuant to DA 97-2, the Wonder Palms Master Plan. That master plan covered the area around the Cook Street / Gerald Ford intersection and included portions of this property. DA 06-02 will supersede DA 97-2 with respect to any portion of the property subject to DA 97-2. DA 06-02 will guarantee the applicant the right to develop his property pursuant to the provisions of the University Park Master Plan and will have an initial term of 10 years with extensions possible. CEQA Review: This project was reviewed as part of the University Park Area Land Use Plan process for which a Negative Declaration of Environmental Impact was certified. No further environmental review is necessary. Submitted by: Revi- and Appy¢ e: Steve Smith v Homer Croy Acting Director of Community Development ACM for Development Services Review and Concur: Carlos L. OrteEr City Manager (W pdocs\tm\sr\CA06-02.cc) ORDINANCE NO. �132 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND PALM DESERT FUNDING COMPANY, L.P., A DELAWARE LiMITED PARTNERSHIP. CASE NO. DA 06-02 related to C/Z 06-04 WHEREAS, the City Council of the City of Palm Desert, California, did on the 8th day of February, 2007, hold a duly noticed public hearing to consider WHEREAS, the Planning Commission by its Resolution No. 2431 has recommended approval; and WHEREAS, the Development Agreement is consistent with the General Plan; and WHEREAS, said application has complied with requirements of the "City of Palm Desert Procedures to Implement the Califomia Environmental Quality Act, Resolution No. 06-78," in that the Director of Community Development has determined the project was previously assessed as part of Case No. C/Z 06-04 for which a Negative Declaration of Environmental Impact was certified and no further review is necessary; and WHEREAS, at said public hearing, City Council heard and considered all testimony and arguments of all interested persons. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Palm Desert, as foNows: 1. That the above recitations are true and correct and constitute the consideration of the City Council in this case. 2. That Development Agreement 06-02, Exhibit A attached hereto, is hereby approved. 3. The City Clerk of the City of Palm Desert, California, is hereby directed to publish this ordinance in the Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effective thirty (30) days after its adoption. ORDINANCE NO. 1132 PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this day of , 2007, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: RICHARD S. KELLY, Mayor ATTEST: RACHELLE D. KLASSEN, City Clerk City of Palm Desert, California 2 ORDINANCE N0. 1132 EXHIBIT A RECORDING REQUESTED BY, AND EXEMPT FROM FILING FEE WHEN RECORDED, MAIL TO: PURSUANT TO GOVT. CODE§6103 City Clerk's Office City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 ---------------------------------------------------------------------------------------------------- (Space above for Recorder's use Only) DEVELOPMENT AGREEMENT Between THE CITY OF PALM DESERT, CALIFORNIA and PALM DESERT FUNDING COMPANY, L.P., A Delaware limited parmership (UNIVERSITY PARK MASTER DEVELOPMENT PLAN) Dated: , 2007 C:�Documents and Settings�Robert.}Iargreavcs�My Documenu\PALM DESL•R'I -University Development Ylan Development Agreement vl. a��l ORDINANCE NO. 1132 DEVELOPMENT AGREEMENT (University Park) THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of this day of , 2007, by and between the City of Palm Desert, California, a municipal corporation organized and existing under the laws of the State of California (the "City), and Palm Desert Funding Company, L.P., a Delaware limited partnership ("Developer"), with reference to the following facts, understandings and intentions of the parties: RECITALS A. These Recitals refer to and utilize certain capitalized terms which are defined in this Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. Government Code Sections 65684 through 65869.5 inclusive (the "Development Agreement Legislation") authorize the City to enter into development agreements in connection with the development of real property within its jurisdiction. On August 11, 1983, the City enacted by Ordinance No. 341, as amended on December 7, 1989 by Ordinance No. 589 (collectively, the "Development Agreement Ordinance"), procedures and requirements for the consideration of development agreements thereunder pursuant to the Development Agreement Legislation. C. Developer owns or is purchasing certain property in the City of Palm Desert California (the "Property") which Property is more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference. 1 Hovrry Univrrsity Yark nevelopment Agrccment vl.dcx ORDINANCE NO. 1132 D. Developer intends to use the Property to develop a Project consisting of the medium and low density residential development and associated amenities and public improvements. E. The Property is located within an important planning area (University Park Area) of the City and the coordinated development of the Project pursuant to this Agreement represents an important and mutually beneficial economic deveiopment and land usage planning opportunity for the City and Developer. F. In April 1997, the City Council, by its Ordinance No. 838, approved a Development Agreement (DA 97-2), and said DA 97-2 was recorded in the official records of the County Recorder for the County of Riverside on May 22, 1997 as Instrument No. 179687. DA 97-2 included a development plan for a large area of land which was centered around the Cook Street and Gerald Ford Drive intersection. DA 97-2 incorporated the Wonder Palms Development Plan, including eight planning areas. A portion of the Property was included in the approved Wonder Palms Development Plan as Planning Areas 3 and 5. It is the intent of the parties to this Agreement that this Agreement amend and supercede DA 97-2 with respect to any portion of the PropeRy subject to DA 97-2. This Agreement shall not affect any portion of the land affected by the Wonder Palms Development Plan outside the boundaries of the Property. G. In the 2004 General Plan update, the section (Section 33) within which the Property is located, (bounded by Frank Sinatra on the south, Portola on the west, Gerald Ford on the north, and Cook on the east), was considered a distinct planning area which made up part of the University Park Area. 2 I{over-Universily Park Development Agreement vl.doc ORDINANCE NO. 1132 H. The City has determined that the development of the Project as contemplated by this Agreement is consistent with and in furtherance of the development goals, policies, general land uses and development programs of the City as set forth in the City's University Park Area of the General Plan, and is consistent with the existing Planned Community Development (PCD) Overlay Zone. I. City has further determined that entry into this Agreement will further the goals and objectives of the City's land use planning policies by, among other things, encouraging investment, providing precise and supplemental criteria for the uses, design, circulation and development of the Property, including flexibility in land use options which may be altered in order to respond to future changes in the surrounding areas, eliminating uncertainty in planning for, and securing orderly processing and development of, the Project. The benefits conferred on the City by Developer herein will (i) ensure consistent, comprehensive planning which will result in aesthetically pleasing, environmentally harmonious, and economically viable development within the City; and (ii) further the development objectives of the City in an orderly manner, all of which will significantly promote the health, safety and welfare of the residents of the City. In exchange for these benefits to the City, Developer desires to receive the assurance that it may proceed with the Project in accordance with the University Park Master Development Plan as approved by the City on April 27, 2006 ("Development Plan") attached to this Agreement as Exhibit "B", and at a rate of development of its choosing, subject to the terms and conditions contained in this Agreement and subject to the processing of additional land use approvals as may be reasonably required to implement the Development Plan. J. By adopting this Agreement, the City Council has elected to exercise certain 3 Ilovcr-Umvcrsity Park Development Agreement vl.doc ORDINANCE NO. 1132 governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. K. This Ageement has undergone extensive review by the City's staff, the Planning Commission and the City Council. L. In order to effectuate the foregoing, the parties desire to enter into this Agreement. NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, and in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: 1. Definitions. l.l Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set foRh below for each such term. 1.2 AQreement. This Development Agreement. 1.3 Buildin� Ordinances. Those building standards, of general and uniform application throughout the City and not imposed solely with respect to the Property, in effect from time to time that govern building and construction standards within the City, including, without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire codes. 1.4 City Council. The legislative body of the City of Palm Desert. 4 Hovcr-University Park Development Agrcement v I.doc ORDINANCE NO. 1132 1.5 Effective Date. The date on which the Enacting Ordinance becomes effective. 1.6 Enacting Ordinance. Ordinance , enacted by the City Council on , 2007, approving this Agreement. 1.7 ExistinQ Land Use Ordinances. The Land Use Ordinances in effect as of the Effective Date. 1.8 Land Use Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of the City, governing the development of the Property, including but not limited to, the permitted uses of land, the density and intensity of use of land, and the timing of development, all as applicable to the development of the Property. Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shall include the City's General Plan, the City's zoning ordinance and the City's subdivision code, but shall exclude the Building Ordinances. 1.9 Mortga�e. A mortgage, deed of trust, sale and leaseback arrangement in which all or a part of the Property, or an interest in it, is sold and leased back concurrently, or other transactions in which all or a part of the Property, or an interest in it, is pledged as security, contracted in good faith and for fair value. 1.10 Proiect. The medium and low density residential development and associated amenities, and on-site and off-site improvements, as permitted under and described in the Master Development Plan (Exhibit "B"), to be constructed on the Property, as the same may hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement 5 Ilovcr-University Park Dcvclopmcnt Agreement vl.doc ORDINANCE NO. 1132 and pursuant to the conditions of approval imposed on any furiher land use entitlement applications that may be reasonably required in order to implement the development of the Project. 1.11 Pro er . The real property and any improvements thereon which is described in Exhibit "A"to this Agreement. 1.12 Tract Maps. Tract Maps 32655, 32655-1, tentative tract maps 34055, 34057, 34074, and 34626 and any other tract map affecting the Property and implementing the Project, approved hereafter with the consent of the Developer. 2. Term; Amendment. 2.1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate on the ten (10) year anniversary date of the Effective Date, unless sooner terminated or extended as hereinafter provided. 2.2 Amendment. The parties to this Agreement at their sole discretion and by their mutual written consent may from time to time amend the provisions and terms of this Agreement and the Exhibits hereto. Any amendment to this Agreement or the Exhibits hereto as provided herein shall be effected only upon compliance with the procedures for amendment, if any, required by the Development Agreement Legislation and the Development Agreement Ordinance. The City shall, after any such amendment takes effect, cause an appropriate notice of such amendment to be recorded in the official records of the County of Riverside. 3. Supercede DA 97-2. This Agreement shall amend and supercede DA 97-2 (recorded by Riverside County Recorder on May 22, 1997 as Instrument No. 179687) with 6 Hover-Umvcrsity Park Dcvclopment Agreement vl.doc ORDINANCE NO. 1132 respect to any portion of the Property subject to DA 97-2. 4. General Development of the Proiect. 4.1 Proiect. (a) The Project is defined and described in the University Park Master Development Plan attached to this Agreement as Exhibit "B", which specifies for the purpose of this Agreement all of the following aspects of the Project: (i) proposed land uses of the Property; (ii) the maximum (and probable) density and intensity of development of the Property; (iii} development standards; (iv) open space and park requirements; (v) certain requirements relating to access and traffic circulation within the Property; and (vi) certain design guidelines relating to the construction of on-site and off-site improvements. (b) During the Term hereof, Developer shall have the vested right to develop the Project in accordance with, and development of the Project shall be governed by, the Development Plan and, to the extent not inconsistent with or modified by the Development Plan, the Existing Land Use Ordinances. Developer's right to develop the Property in accordance with this Section 4.1 shall remain subject to: (i) all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and contained within the Existing Land Use Ordinances; (ii) all amendments or modifications to Existing Land Use Ordinances after the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, 7 Ho�cr-Umvcrsity Park Development Agrccmcnt v I.doc ORDINANCE NO. 1132 commissions, and committees enacted or adopted after the Effective Date of this Agreement (collectively, "New Laws"), except such New Laws which would prevent or materially impair Developer's ability to develop the Project in accordance with the Development Plan unless such New Laws are (A) adopted by the City on a City-wide basis and applied to the Site in a non- discriminatory manner, (B) required by a non-City entity to be adopted by or applied by the City {or if optional the failure to adopt or apply such non-City law or regulation would cause City to sustain a loss of funds or loss of access to funding or other resources), or(C) New Laws the City reserves the right to apply under this Agreement; (iii) all subsequent development approvals implementing the Project and the conditions of approval associated therewith, including but not limited to Project Tract Maps and building permits, (iv) the payment of all fees or exactions in the categories and in the amounts as required at the time such fees are due and payable which may be at the time of issuance of building permits, or otherwise as specified by applicable law, as existing at the time such fees are due and payable, it being understood that this Agreement shall not prevent the City from establishing any new City fees, including new development impact fees, or increasing any existing City fees, and to apply such new or increased fees to the Project or applicable portion thereof, (v) the reservation or dedication of land for public purposes or payment of fees in lieu thereof as required at the time such reservations or dedications or payments in lieu are required under applicable law to be made or paid, 8 Hovcr-Umversity Park Devclopment Agreement v 1.doc ORDINANCE NO. 1132 (vi) Building, electrical, mechanical, fire and similar building codes based upon uniform codes adopted in, or incorporated by reference into, the Palm Desert Municipal Code, as existing on the Effective Date of this Agreement or as may be enacted or amended thereaRer, applied to the Project in a nondiscriminatory manner. (c) Notwithstanding any condition setting forth the earlier expiration of any of the Tentative Maps, each of the Tentative Maps shall remain effective for the Term of this Agreement unless modified with the concurrence of Developer, its successors or assigns. 4Z Proiect Timing; Construction Entitlement. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which parts of the Project will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. Therefore, the parties hereto acknowledge and expressly agree that Developer is hereby granted by the City the vested and guaranteed right to develop the Project in such manner and at such rate and at such times as Developer deems appropriate within the exercise of its sole subjective business judgment. Therefore, City expressly agrees that Developer shall be entitled to apply for precise plans, subdivision maps, building permits, occupancy certificates and other land use and development entitlements for its use at any time provided that such application is made in accordance with the Development Plan and this Agreement. Notwithstanding any provisions to the contrary in this Agreement or the Existing Land Use Ordinances, Developer shall have the right, but not the obligation, to construct not less than the maximum number of square feet of gross floor area or dwelling units of any permitted use 9 1lovcr-Umvcrsity Park Development Agrcement vl.doc ORDINANCE NO. 1132 under the Development Plan specified with respect to any designated Planning Area set forth in the Development Plan. Developer acknowledges that additional land use entitlements may reasonably be required pursuant to the City's Existing Land Use Ordinances, before Developer may obtain permits for construction on the Property. 4.3 Buildin� Permits and Other Aaarovals and Permits. Subject to (a) Developer's (or its assignee's) compliance with this Agreement, the Development Plan, the Existing Land Use Ordinances and the Building Ordinances, and (b) payment of the usual and customary fees and charges of general application charged for the processing of such applications, permits and certificates and for any utility connection, or similar fees and charges of general application, the City shall process and issue to Developer or its assignee promptly upon application therefor all necessary use permits, building permits, occupancy certificates, and other required permits for the construction, use and occupancy of the Project, or any portion thereof, as applied for, including connection to all utility systems under the City's jurisdiction and control (to the extent that such connections are physically feasible and that such utility systems are capable of adequately servicing the Project). 4.4 Procedures and Standards. The standards for granting or withholding permits or approvals required hereunder in connection with the development of the Project shall be governed as provided herein by the standards, terms and conditions of this Agreement and the Development Plan, and to the extent not inconsistent therewith, the Existing Land Use Ordinances, but the procedures for processing applications for such permits or approvals (including the usual and customary fees of general application charged for such processing) shall be governed by such ordinances and regulations as may then be applicable and which are 10 Hover-lJniversity Park Development Agrcement vl.doc ORDINANCE NO. 1132 consistent with the Development Plan. 4.5 Effect of A�reement. This Agreement shall constitute a part of the Enacting Ordinance, as if incorporated by reference therein in full. The parties acknowledge that this Agreement is intended to grant Developer the right to develop the Project pursuant to specified and known criteria and rules as set forth in the Development Plan and the Existing Land Use Ordinances, and to grant the City and the residents of the City certain benefits which they otherwise would not receive. This Agreement shall be binding upon the City and its successors in accordance with and subject to its terms and conditions notwithstanding any subsequent action of the City, whether taken by ordinance or resolution of the City Council, by referenda, initiative, or otherwise. The paRies acknowledge and agree that by entering into this Agreement and relying thereupon, the Developer has obtained, subject to the terms and conditions of this Agreement, a vested right to proceed with its development of the Project in accordance with the proposed uses of the Property, the density and intensity of development of the Property and the requirements and guidelines for the construction or provision of on-site and off-site improvements as set forth in the Development Plan and the Existing Land Use Ordinances, and the timing provisions of Section 4.2, and the City has entered into this Agreement in order to secure the public benefits conferred upon it hereunder which are essential to alleviate current and potential problems in the City and to protect the public health, safety and welfare of the City and its residents, and this Agreement is an essential element in the achievement of those goals. 4.6 Oueratin� Memoranda. Developer and City acknowledge that the provisions of this Ageement require a close degree of cooperation between Developer and City, 11 Nover-Unrversity Park Development Agreemcnt vl.doc ORDINANCE NO. 1132 and that refinements and further development of the Project may demonstrate that changes or additional provisions are appropriate with respect to the details of performance of the pariies under this Agreement in order to effectuate the purpose of this Agreement and the intent of the parties with respect thereto. If and when, from time to time, the parties find that such changes or additional provisions are necessary or appropriate, and subject to the provisions of the next succeeding sentence, they shall effectuate such changes or provide for such additional provisions through operating memoranda to be approved in good faith by the parties, which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further changed or supplemented from time to time as necessary, with further good faith approval of Developer and City. Upon receipt by the City of an opinion of the City Attorney to the effect that the subject matter of such operating memoranda does not require the amendment of this Agreement in the manner provided in Section 65868 of the California Government Code, then no such operating memoranda shall require prior notice or hearing, or constitute an amendment to this Agreement; and in the case of the City, such operating memoranda may be approved and executed by its Community Development Director or City Manager without further action of the City Council. Failure of the parties to enter into any such operating memoranda shall not affect or abrogate any of the rights, duties or obligations of the parties hereunder or the provisions of this Agreement. 5. Snecific Criteria Aaplicable to Development of the Proiect. 5.1 Universitv Park Master Development Plan. The Development Plan is a regulatory plan which, upon adoption by ordinance, will constitute the basic land use and development criteria of the properiy. Development plans or agreements, tract or parcel maps, precise development plans or any other action requiring ministerial or discretionary approval of 12 f lovcr-Univ�vsiry Park I�evelopment Agrecment vl.doc ORDINANCE NO. 1132 their property shall be consistent with the Development Plan. Should the regulations contained in the Development Plan differ from the regulations of the Palm Desert Zoning Ordinance, the regulations of the Development Plan shall take precedence to the extent provided within the approved Development Plan. 5.2 Anplicable Ordinances. Except as set forth in the Development Plan and subject to the provisions of Section 5.3 and 5.4 below, the Existing Land Use Ordinances shall govern the development of the Property hereunder and the granting or withholding of all permits or approvals required to develop the Property; provided, however, that (a) Developer shall be subject to all changes in processing, inspection and plan-check fees and charges imposed by City in connection with the processing of applications for development and construction upon the Property so long as such Fees and charges are of general application ana are not imposed solely with respect to the Property, and (b) Developer shall abide by the Building Ordinances in effect at the time of such applications. 5.3 Amendment to Applicable Ordinances. In the event that the Palm Desert zoning ordinance is amended by the City in a manner which provides more favorable site development standards for the Property or any part thereof than those in effect as of the Effective Date, Developer shall have the right to notify the City in writing of its desire to be subject to all or any such new standards for the remaining term of this Agreement. If City agrees, by resolution of the City Council or by action of a City official whom the City Council may designate, such new standards shall become applicable to the Property or poRions thereof. Should City thereafter amend such new standards, upon the effective date of such amendment, the original new standards shall continue to apply to the Property as provided above, but Developer may 13 Hover-University Park Dcvelopment Agreement vl.doc ORDINANCE NO. 1132 notify City in writing of its desire to be subject to all or any such amended new standards and City may agree in the manner above provided to apply such amended new standards to the Property. 5.4 Modification or Susaension bv State Law or Federal Law. In the event that state or federal laws or regulations, enacted after the effective date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations, and to the extent that such laws or regulations do not render such remaining provisions impractical to enforce. 5.5 Easements; Abandonments. City shall reasonably cooperate with Developer in connection with any arrangements for abandoning existing utility or other easements and the relocation thereof or creation of any new easements within the Property necessary or appropriate in connection with the development of the Project; and if any such easement is owned by City, City shall, at the request of Developer and in the manner and to the extent permitted by law, process such action as may be necessary to abandon existing easements and relocate them to a location mutually acceptable to City and Developer, as necessary or appropriate in connection with the development of the Project, all at the cost and expense of the Developer. In addition, to the extent that temporary or permanent easements on property adjacent or in close proximity to the Property will be required in order for Developer to develop all or portions of the Project, the City shall cooperate with Developer in efforts to obtain or 14 Hovcr-Univcrsiry Park Uevelopment Agreement vl.doc ORDINANCE NO. 1132 secure any such required easements. 6. Timing of Construction. 6.1 TiminQ of Parks Construction. The University Park Master Development Plan includes parks to serve the community. Various business agreements related to the Community Facilities District for this area provide that the City purchase the parkland from the developer and the developer subsequently constructs the park improvements to City specifications. The City desires assurance that the construction of the park improvements be commenced and completed in a timely manner. Accordingly, the developer agrees that the parks shall be constructed and completed as part of the first phase of the tract in which they are located. More specifically, these parks shall be completed prior to the issuance of a Certificate of Occupancy for any residence in that tract. 6.2 Exceutioa to 6.1 Provisions. The developers are requesting that the City issue another $20 million in bond monies in the near future. IRS tax regulations require that the City needs to have a reasonable expectation that they are going to spend the bond monies within three (3) years of such additional issuance. Therefore, notwithstanding the provisions of Section 6(a) above, the City reserves the right to require that the monies be expended and the parks be constructed within three years of such issuance. 7. Periodic Review of Comaliance. In accordance with Govt. Code Section 65865.1, the City Council shall review this Agreement at least each calendar year during the 15 laover-University Park Developmcnt Agreement vl.doc ORDINANCE NO. 1132 term of this Agreement. At such periodic reviews, Developer must demonstrate its good faith compliance with the terms of this Agreement. Developer agrees to furnish such evidence of good faith compliance as the City, and after reasonable exercise of its discretion and after reasonable notice to Developer, may require. 8. Permitted Delays; Suaersedure bv Subsequent Laws. 8.1 Permitted Delays. In addition to any other provisions of this Agreement with respect to delay, Developer and City shall be excused from performance of their obligations hereunder during any period of delay caused by acts of mother nature, civil commotion, riots, strikes, picketing, or other labor disputes, shortage of materials or supplies, or damage to or prevention of work in process by reason of fire, floods, earthquake, or other casualties, litigation, acts or neglect of the other party, any referendum elections held on the Enacting Ordinance, or the Land Use Ordinances, or any other ordinance effecting the Project or the approvals, permits or other entitlements related thereto, or restrictions imposed or mandated by governmental or quasi-governmental entities, enactment of conflicting provisions of the Constitution or laws of the United States of America or the State of California or any codes, statutes, regulations or executive mandates promulgated thereunder (collectively, "Laws"), orders of courts of competent jurisdiction, or any other cause similar or dissimilar to the foregoing beyond the reasonable control of City or Developer, as applicable. Each party shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. The time of performance of such obligations shall be extended by the period of any delay hereunder. 8.2 Supercedure of Subsequent Laws or Judicial Action. The provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to 16 f iovcr-University Park Devclopment Agreement vl.doc ORDINANCE NO. 1132 comply with any new Law or decision issued by a court of competent jurisdiction (a"Decision"), enacted or made after the Effective Date which prevents or precludes compliance with one or more provisions of this Agreement. Promptly after enactment of any such new Law, or issuance of such Decision, the parties shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. In addition, Developer and City shall have the right to challenge the new Law or the Decision preventing compliance with the terms of this Agreement. In the event that such challenge is successful, this Agreement shall remain unmodified and in full force and effect, except that the Term shall be extended, in accordance with Section 8.1 above, for a period of time equal to the length of time the challenge was pursued. 9. Events of Default; Remedies; Termination. 9.1 Events of Default. Subject to any extensions of time by mutual consent in writing, and subject to the provisions of Section 7 above regarding permitted delays, the failure of either party to perform any material term or provision of this Agreement shall constitute an event of default hereunder ("Event of Default") if such defaulting party does not cure such failure within ninety (90) days following receipt of written notice of default from the other party; provided, however, that if the nature of the default is such that it cannot be cured within such ninety (90) day period, the commencement of the cure within such ninety (90) day period and the diligent prosecution to completion of the cure shall be deemed to be a cure within such period. Any notice of default given hereunder shall specify in detail the nature of the alleged Event of Default and the manner, if any, in which such Event of Default may be 17 Hovcry University Park Development Agreemcnt vl.doc ORDINANCE NO. 1132 satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the party charged therewith shall not be considered to be in default for purposes of termination of this Agreement, institution of legal proceedings with respect thereto, or issuance of any permit, map, certificate of occupancy, approval or entitlement with respect to the Project. 9.2 Remedies. Upon the occurrence of an Event of Default, the nondefaulting party shall have such rights and remedies against the defaulting party as it may have at law or in equity, including, but not limited to, the right to damages and the right to terminate this Agreement or seek mandamus, specific performance, injunctive or declaratory relief. Notwithstanding the foregoing and except as otherwise provided in Section 8.4 hereof, if either Developer or City elects to terminate this Agreement as a result of the occurrence of an Event of Default, such proceeding of termination shall constitute such party's exclusive and sole remedy, and with respect to such election and City and Developer hereby waive, release and relinquish any other right or remedy otherwise available under this Agreement or at law or equity. 9.3 Waiver; Remedies Cumulative. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party shall not constitute waiver of such party's right to demand strict compliance by such other party in the future. All waivers must be in writing to be effective or binding upon the waiving party, and no waiver shall be implied from any omission by a party to take any action with respect to such Event of Default. No express written waiver of any Event of Default shall affect any other Event of Default, or cover any other period of time specified in such express waiver. 9.4 Effect of Termination. Termination of this Agreement by one party due 18 Huvcr-Umversrty Park Development Agrcement vl.dcx ORDINANCE NO. 1132 to the other party's default, or as a result of the exercise of the right of termination provided to the Developer under Section 7.2 hereof, shall not affect any right or duty emanating from any approvals, permits, certificates or other entitlements with respect to the Property or the Project which were issued, approved or provided by the City prior to the date of termination of this Agreement. If City terminates this Agreement because of Developer's default, then City shall retain any and all benefits, including money, land or improvements conveyed to or received by the City prior to the date of termination of this Agreement, subject to any reimbursement obligations of the City. If Developer terminates this Agreement because of City's default, or as a result of the exercise of the right of termination provided to the Developer under Section 7.2 hereof, then Developer shall be entitled to all of the benefits arising out of, or approvals, permits, certificates or other entitlements on account of, any Exactions paid, given or dedicated to, or received by, City prior to the date of termination of this Agreement. Except as otherwise provided in this Section 8.4, all of the rights, duties and obligations of the parties hereunder shall otherwise cease as of the date of the termination of this Agreement. If this Agreement is terminated pursuant to any provision hereof, then the City shall, after such action takes effect, cause an appropriate notice of such action to be recorded in the official records of the County of Riverside. The cost of such recordation shall be borne by the party causing such action. 9.5 Third Party Actions. Any court action or proceeding brought by any third party to challenge this Agreement or any permit or approval required from City or any other governmental entity for development or construction of all or any portion of the Project, whether or not Developer is a party defendant to or real party defendant in interest in such action or 19 Hover-Univcrsity PaTk Development Agreement v l.doc ORDINANCE NO. 1132 proceeding, shall constitute a permitted delay under Section 7.1. 10. Encumbrances on Propertv. 10.1 Discretion to Encumber. The parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering the Property or any portion thereof or any improvements thereon with any mortgage, deed of trust or other security device ("Mortgage") securing financing with respect to the Property. The City acknowledges that the lenders providing such financing may require certain modifications to this Agreement, and the City agrees upon request, from time-to-time, to meet with Developer and/or representatives of such lenders to negotiate in good faith any such request for modification. City further agrees that it will not unreasonably withhold its consent to any such requested modification. Any Mortgage on the Property shall include appropriate provisions for the partial release of said Mortgage to assure that Developer can convey to the City, free and clear of encumbrances, any portions of the Property which Developer is conditioned to convey or has otherwise agreed to convey to the City or its designee. 10.2 Mortga�e Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Site or any portion thereof by a Mortgagee (whether pursuant to a Mortgage, foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise) shall be subject to all of the terms and conditions of this Agreement. 20 1lover-University Park Develupment Agrccment v l.doc ORDINANCE NO. 1132 10.3 MortgaQee Not ObliQated. Notwithstanding the provisions of Section 9.2, no Mortgagee will have any obligation or duty under this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that to the extent that any covenant to be performed by Developer is a condition to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's performance hereunder. 10.4 Estoppel Certificates. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended or modified, identifying such amendments or modifications, and (iii) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof. City acknowledges that a certificate hereunder may be relied upon by transferees, assignees and lessees of the Developer and the holders of any Mortgage. 11. Transfers and Assi�nments; Effect of Agreement on Title. 111 Rights and Interests Appurtenant. The rights and interests conveyed as provided herein to Developer benefit and are appurtenant to the Property. Developer has the right to sell, assign and transfer any and all of its rights and interests hereunder and to delegate and assign any and all of its duties and obligations hereunder. Such rights and interests hereunder may not be sold, transferred or assigned and such duties and obligations may not be 21 Hovcr-Universiry Park Developnxnt Agrecmcnt vl.doc ORDINANCE NO. 1132 delegated or assigned except in compliance with the following conditions: (i) Said rights and interests may be sold, transferred or assigned only together with and as an incident of the sale, lease, transfer or assignment of the portions of the Property to which they relate, including any transfer or assignment pursuant to any foreclosure of a Mortgage or a deed in lieu of such foreclosure. Following any such sale, transfer or assignment of any of the rights and interests of Developer under this Agreement, the exercise, use and enjoyment thereof shall continue to be subject to the terms of this Agreement to the same extent as if the purchaser, transferee or assignee were Developer hereunder. 11.2 Covenants Run with Land. (i) All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees, lessees, and all other persons acquiring any rights or interests in the Property, or any portion thereof, whether by operation of laws or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns; (ii) All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law; (iii) Each covenant to do or refrain from doing some act on the Property hereunder (A) is for the benefit of and is a burden upon every portion of the Property, (B) runs with such lands, and (C) is binding upon each party and each successive owner during its 22 Hovery llnivcrsity Park Deve{opment Agreement vl.doc ORDINANCE NO. 1132 ownership of the Property or any poriions thereof, and shall benefit each party and its lands hereunder, and each such other person or entity succeeding to an interest in such lands. 12. Notices. Any notice to either party shall be in writing and given by delivering the same to such party in person or by sending the same by registered or certified mail, return receipt requested, with postage prepaid, to the following addresses: If to City: City Clerk of the City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 922G0 If to Developer: Palm Desert Funding Company, L.P. c/o Hover Development 3 San Joaquin Plaza, #215 Newport Beach, CA 92660 Attention: Tom Hover Either party may change its mailing address at any time by giving written notice of such change to the other party in the manner provided herein. All notices under this Agreement shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. 13. Indemnification: Develoaer's Obli�ation. 13.1 Developer's Wron�-DoinQ. Developer will defend, indemnify and hold the City and its elected officials, officers and employees ("Indemnified Parties") free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation 23 Hover-Umversity Park Development Agreement vl.doc ORDINANCE NO. 1132 claims) which results from (i) any obligation which arises from the development of the Property including, without limitation, obligations for the payment of money for material and labor; (ii) any failure on the part of Developer to take any action which he is required to take as provided in this Agreement; (iii) any action taken by Developer which he prohibited from taking as provided in this Agreement and (iv) any claim which results from any willful or negligent act or omission of Developer. 13.2 Environmental Assurances. Developer shall indemnify and hold the Indemnified Parties free and harmless from any liability deriving from the City's execution or performance of this Agreement, based or asserted, upon any act or omission of Developer, its officers, agents, employees, contractors, subcontractors and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to hazardous or toxic materials, industrial hygiene, or environmental conditions created by Developer or its officers, agents or employees, contractors, subcontractors and independent contractors after the Effective Date and Developer shall defend, at its expense, including attorneys fees, the Indemnified Parties in any action based or asserted upon any such alleged act or omission. 13.3 ChallenQes to AQreement. Developer agrees and shall indemnify, hold harmless and defend the Indemnified Parties from any challenge to the validity of this Agreement, or to the City's implementations of its rights under this Agreement. 13.4 Defense bv Counsel Chosen bv Citv. In the event the Indemnified Parties are made a party to any action, lawsuit other adversarial proceeding in any way involving claims specified in Sections 12.1, 12.2, or 12.3, Developer shall provide a defense to the Indemnified Parties, with counsel reasonably acceptable to City. Developer shall be 24 Hover-lJniversity Park Development Agreement vl.doc ORDINANCE NO. 1132 obligated to promptly pay all costs of defense, including all reasonable attorneys' fees, and any final judgment or portion thereof rendered against the Indemnified Parties. 13.5 Non-Liabilitv of Citv Officers and Emplovees. No official, officer, employee, agent, or representative of the City, acting in his/her official capacity, shall be personally liable to Developer, or any successor or assign, for any loss, cost, damages, claim, liability or judgment arising out of or in connection to this Agreement, or for any act or omission on the part of the City. 13.6 Survival. The provisions of these Sections 12.1, 12.2, 12.3, and 12.4 shall survive the termination or expiration of this Agreement. 14. Miscellaneous. 14.1 Relationship of Parties. It is understood that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contractor. It is further understood that none of the terms or provisions of this Agreement are intended to or shall be deemed to create a partnership, joint venture or joint enterprise between the parties hereto. 14.2 Consents. Unless otherwise herein provided, whenever approval, consent, acceptance or satisfaction (collectively, a "consent") is required of a party pursuant to this Agreement, it shall not be unreasonably withheld or delayed. Unless provision is othcrwise specified in this Agreement or otherwise required by law for a specific time period, consent shall be deemed given within thirty (30) days after receipt of the written request for consent, and if a party shall neither approve nor disapprove within such thirty (30) day period, or other time 25 1 tovcr-Unrversiry Park Development Agreement v I.doc ORDINANCE NO. 1132 period as may be specified in this Agreement or otherwise required by law for consent, that party shall then be deemed to have given its consent. If a party shall disapprove, the reasons therefor shall be stated in reasonable detail in writing. This Section does not apply to development approvals by the City. 14.3 Not a Public Dedication. Except as otherwise expressly provided herein, nothing herein contained shall be deemed to be a gift or dedication of the Property, or of the Project or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. 14.4 Severabilitv. If any term, provision covenant or condition of this Agreement shall be determined invalid, void or unenforceable by judgment or court order, the remainder of this Agreement shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the relevant circumstances or would frustrate the purposes of this Agreement. 14.5 Exhibits. The Exhibits listed in the Table of Contents, to which reference is made herein, are deemed incorporated into this Agreement in their entirety by reference thereto. 14.6 Entire A�reement. This written Agreement and the Exhibits hereto contain all the representations and the entire agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, 26 Hover-Umvcrsity Park Devetopment Agreemcnt v I.doc ORDINANCE NO. 1132 any prior correspondence, memoranda, agreements, warranties or representations are superseded in total by this Agreement and Exhibits hereto. 14.7 Governing Law; Construction of Agreement. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties hereunder. The captions preceding the text of each Section, subsection and the Table of Contents hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. 14.8 SiQnature Pages. For convenience, the signatures of the parties of this Agreement may be executed and acknowledged on separate pages which, when attached to this Agreement, shall constitute this as one complete Agreement. 14.9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 14.10 PrevailinQ Partv's Attornev's Fees and Costs. If any party to this Agreement shall fail to perform any of its obligations hereunder, or if a dispute arises with respect to the meaning or interpretation of any provision hereof or the performance of the obligations of any party hereto, the defaulting party or the party not prevailing in such dispute, as 27 Iiover-Unrversiry Park Development Agtcemcnt vl.doc ORDINANCE NO. 1132 the case may be, shall promptly pay any and all costs and expenses (including without limitation, all court costs and reasonable attorneys' fees and expenses) incurred by the other party with respect to such to such dispute or in enforcing or establishing its rights hereunder. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above-written. DEVELOPER: PALM DESERT FUNDING COMPANY, L.P., A Delaware Limited Partnership By: Its: General Partner By: President CITY: CITY OF PALM DESERT, CALIFORNIA, a municipal corporation organized and existing under the laws of the State of California By: Richard S. Kelly, Mayor Attest: Rachelle D. Klassen, City Clerk 28 1lover-Umvrrsity Park Development Agrcement vl.doc ORDINANCE NO. 1132 STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , 2007, before me, , a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public 29 f lovcr-Univcrsity Park Development Agreement vl.doc ORDINANCE NO. 1132 TABLE OF CONTENTS PAGE RECITALS ..................................................................................................................................... 1 1. Definitions................................................................................................................................4 1.1 Defined Terms ............................................................................................................... 4 1.2 A�reement...................................................................................................................... 4 1.3 Buildin� Ordinances ...................................................................................................... 4 1.4 Citv Council................................................................................................................... 5 1.5 Effective Date................................................................................................................ 5 1.6 Enactin�Ordinance........................................................................................................ 5 1.7 Existing Land Use Ordinances....................................................................................... 5 1.8 Land Use Ordinance ...................................................................................................... 5 1.9 Mort�aQe........................................................................................................................ 5 1.10 Proiect............................................................................................................................ 5 1.11 Pronertv.......................................................................................................................... G 1.12 Tract Mays.........................................................................................6 2. Term: Amendment................................................................................................................... 6 2.1 Term............................................................................................................................... 6 2.2 Amendment..................................................................................................................... 6 3. Supercede DA 97-2.................................................................................................................. G 4. General Development of the Proiect...................................................................7 4.1 Proiect............................................................................................................................ 7 4.2 Project TiminQ; Construction Entitlement..................................................................... 9 4.3 Building Permits and Other Approvals and Permits........................................10 4.4 Procedures and Standards............................................................................................. 10 4.5 Effect of A�c'eement...................................................................................................... 11 4.6 O�eratinQ Memoranda.................................................................................................. 11 5. S�ecific Criteria Applicable to Development of the Proiect ................................................. 12 5.1 Universitv Park Master Development Plan................................................................... 12 5.2 Aonlicable Ordinances.................................................................................................. 13 5.3 Amendment to Applicable Ordinances......................................................................... 13 5.4 Modification or Suspension bv State Law or Federal Law........................................... 14 5.5 Easements�Abandonments........................................................................................... 14 6. Timin� of Construction.................................................................................15 6.1 Timing of Parks Construction...................................................................15 G.2 Excention to 6.1 Provisions.....................................................................15 7. Periodic Review of Compliance............................................................................................ 15 8. Permitted Delays; Supersedure by Subsequent Laws............................................................ 16 8.1 Permitted Delays........................................................................................................... 16 8.2 Supersedure of SubseQuent Laws or Judicial Action.................................................... 16 9. Events of Default; Remedies; Termination............................................................................ 17 9.1 Events of Default.......................................................................................................... 17 9.2 Remedies....................................................................................................................... 18 9.3 Waiver: Remedies Cumulative..................................................................................... 18 Hover-Univrrsity Park Uevelopment Agreement v4.doc ORDINANCE NO. 1132 9.4 Effect of Termination.................................................................................................... 18 9.5 Third Partv Actions....................................................................................................... 19 10. Encumbrances on Property............................................................................20 10.1 Discretion to Encumber.............................................................................................. 20 10.2 MortgaQe Protection.................................................................................................... 20 10.3 Mort�a�ee Not Obligated ........................................................................................... 21 10.4 Estonnel Certificates................................................................................................... 21 11. Transfers and Assignments; Effect of A�reement on Title ................................................... 21 1 1.1 Ri�hts and Interests Apnurtenant.................................................................................. 21 1 1.2 Covenants Run with Land............................................................................................. 22 12. Notices ................................................................................................................................... 23 13. Indemnification: Developer's ObliQation............................................................................... 23 13.1 Developer's Wron�-Doing............................................................................................ 23 13.2 Environmental Assurances............................................................................................ 24 13.3 ChallenQes to AQreement.............................................................................................. 24 13.4 Defense bv Counsel Chosen bv Citv ............................................................................ 24 13.5 Non-Liabilitv of Citv Officers and Employees............................................................. 25 13.6 Survival......................................................................................................................... 25 14. Miscellaneous. ....................................................................................................................... 25 14.1 Relationship of Parties................................................................................................... 25 14.2 Consents......................................................................................................................... 25 14.3 Not a Public Dedication................................................................................................. 26 14.4 Severabilitv.................................................................................................................... 26 14.5 Exhibits.......................................................................................................................... 26 14.6 Entire Agreement........................................................................................................... 26 14.7 Governing Law; Construction of AQreement ................................................................ 27 14.8 Signature Pa�es.............................................................................................................. 27 14.9 Time............................................................................................................................... 27 14.10 Prevailin� Partv's Attornev's Fees and Costs............................................................... 27 ii C':�Documents and Settings\Robert.Hargreavcs\My Documcnts�}'ALM DES�R'I�-l�nrvcrsity Devclopment Plan Development Agreement v l.doc ORDINANCE NO. 1132 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY [to be attached prior to recording] i (':\I�ocuments and Settings\Robert.11argreavesVvly Documents\PALM UESERT-Umversiry Development Plan Development Agreement vl.doc ORDINANCE NO. 1132 EXHIBIT B UNIVERSITY PARK MASTER DEVELOPMENT PLAN [to be attached prior to recording] ii C'\I)ocumcnts and Settings\Robert.HargreavesVvly Documents\I'ALM DESER'I'-lJniversity Development Plan Development Agreement v I dur CITY Of PRIM DESERT 73-510 FRED WAKING DRIVE PALM DESERT, CALIFORNIA 92260-2578 TEu 760 346-06u FAX: 760 341-7098 info palm-detert.arg CITY OF PALM DESERT LEGAL NOTICE CASE NO. DA 06-02 UNIVERSITY PARK MASTER PLAN DEVELOPMENT AGREEMENT NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert City Council to consider a request by PALM DESERT FUNDING COMPANY LP for approval of the University Park Master Plan Development Agreement as it relates to 190 +/- acres generally located south of Gerald Ford Drive and east of Portola Avenue, 74-500 College Drive. • ' uluu • 'l:aai i'lii 1.11111 ulnn. 4111111 1..1111 +lupin uuu■ 11":11 11L`.li► .1111111k© •ll.all auu. nnu.. •uiuu • SAID public hearing will be held on Thursday, February 8, 2007, at 4:00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, Califomia, at which time and place all interested persons are invited to attend and be heard. Written Smith, Steve From: Steele, Janis Sent: Friday, February 09, 2007 11:26 AM To: Smith, Steve Cc: Niemczak, Jay Subject: University Parks Steve, The cost of landscape maintenance for all 4 parks would be approximately $67,500. This includes landscape maintenance, overseed cost and fertilizer. This is about $6,600 an acre PLUS $1,500 to re -sod the dog park annually (we have to do that at our other dog parks now). Total Landscape Maintenance = $67,500 Utilities will be approximately per park): Electric: $5,050 (x 4 parks) = $20,200 Water: $7,500 (x 4 parks) = $30,000 Total Utilities = $50,200 With 4 new parks, we estimate that we will need 1 additional park inspector/maintenance worker to oversee the contracts and perform park inspections, perform irrigation repairs, maintenance etc.: Personnel: 1 x (114 Grade) = $52,187 + benefits 45% ($23,484) = Total: $75,671 Total Operating Costs for 4 parks = $193,371 Let me know if you have questions. Janis Janis R. Steele, CPRP Parks & Recreation Services Manager City of Palm Desert 73-510 Fred Waring Road Palm Desert, CA 92260 Phone: 760-776-6423 Fax: 760-779-1044 E-mail: Jsteele@ci.palm-desertca.us 1