HomeMy WebLinkAboutOrd 1141A DA 07-01 2nd Reading ORDINANCE NO. 1141A
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF PALM DESERT, AND
BERNARD INVESTMENT GROUP, ATTACHED AS EXHIBIT A.
CASE NO. DA 07-01
WHEREAS, the Planning Commission by its Resolution No. 2449 has recommended
approval of Case No. DA 07-01; and
WHEREAS, at said public hearings, said City Counci! heard and considered all
testimony and arguments of all interested persons.
WHEREAS, said application has complied with requirements of the "City of Palm
Desert Procedures to Implement the California Environmental Quality Act, Resolution
No. 06-78," in that the Director of Community Development has determined the project
was assessed as pa�t of Case Nos. PP/CUP 07-06 for which the project is a Class 32
Categorical Exemption and no further review is necessary; and
The City Council of the City of Palm Desert, California, DOES HEREBY ORDAIN, AS
FOLLOWS:
SECTION 1: That the Development Agreement 07-01 by Ordinance No. 1i41a is
hereby approved.
SECTION 2: The City Clerk of the City of Palm Desert, California, shall certify to the
passage adoption of this Ordinance and shall cause the same to be published once in the
Desert Sun, a newspaper of general circulation, circulated within the City of Palm Desert, and
the same be in full force and effect thirty (30) days after its adoption.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert
City Council, h��qtF�����,y� ,ber 2007, by the following vote, to wit:
APPRO��D DENIED
AYE�ECEIVED OTHER C c�N�k'�7�
(.�'YL��/1/0//�
NOESMEETING DATE jQ- � -c:�
AYES: � ' '�" /�/�L Y1 ¢ 7 i" .c fLE��lv
ABSENTNOES: cl{�1� ' /
ABS ENT:�/�"»7�.
ABSTAI N�BS TAIN:
VERIFIED BY: -,Q �
Original on File wit City C��}}�SDq��4f�Mayor
ATTEST:
RACHELLE KLASSEN, City Clerk
City of Palm Desert, California
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ORDINANCE NO. 114�A
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
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(Space above for Recorder's use Only)
DEVELOPMENT AGREEMENT
Between
THE CITY OF PALM DESERT, CALIFORNIA
and
BERNARD INVESTMENT GROUP, INC.
a California Corporation
Dated: , 2007
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ORDINANCE NO. 1141A
DEVELOPMENT AGREEMENT
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 Bernard Investment Group, Inc., a California Corporation
("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.
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ORDINANCE NO. i14ia
D. Developer intends to use the Property to develop a Project consisting of
low and moderate-income units for residential development and associated amenities
and public improvements.
E. 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
and is consistent with the existing Senior Housing Overlay District.
F. The Developer has applied for precise plan approval pursuant to Chapter
25.52 of the Zoning Ordinance, senior Housing Overlay District which allow for
significant density increases in return for building specialized housing designed and
restricted to residents over age 62 years;
G. Pursuant to City Codes and as a condition of said approval, City has
required that a specified number of units associated with the project be set aside for
lower and moderate income occupants subject to restrictions necessary to insure the
continued occupancy of said units by lower income and moderate senior citizen
households;
H. Developer has been conditionally granted permission by the City to
construct conventional senior housing rental units on the Project by Precise Plan /
Conditional Use Permit No. . Pursuant to a separate agreement, Developer is
required to set aside affordable units for low and moderate income occupants for the
required period of time also set forth in the separate Affordable Housing Agreement.
Said Housing Agreement is an integral part and condition of this Agreement.
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ORDINANCE N0. 1�41A
!. By adopting this Agreement, the Ciry Council has elected to exercise
certain governmental powers at the present time rather than deferring such actions until
an undetermined future date and has done so intending to bind the City and the City
Council and intending to limit the City's future exercise of certain governmental powers,
to the extent permitted by law.
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 Aqreement. 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 Enactinq Ordinance. Ordinance , enacted by the Ciry
Council on , 2007, approving this Agreement.
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ORDINANCE NO. 114tA
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 roning ordinance and the
City's subdivision code, but shall exclude the Building Ordinances.
1.9 Mortqaqe. 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 Pro ect. The low and moderate income residential development
and associated amenities, and on-site and off-site improvements, as permitted under
and described in Precise Plan/Conditional Use Permit No. to be constructed
on the Property, as the same may hereafter 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 Propertv. The real property and any improvements thereon which
is described in Exhibit "A" to this Agreement.
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ORDINANCE NO. 1141A
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. The term
of this Agreement shall not modify the Terms of any other Agreement dealing with low
and moderate income households.
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 shal( be effected only upon compliance with the
procedures for amendment, if any, required by ihe 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. General Develoament of the Proiect.
3.1 Pro ect.
(a) The Project is described in the Precise Plan/Conditional Use
Permit No. as the same may be modified by a separate Affordable Housing
Agreement with the City which is an integral part hereof.
(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 approvals given by Precise Plan/Conditional Use Permit No.
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ORDINANCE NO. 114��
as modified by any other agreement for affordable housing and the Existing Land Use
Ordinances. Developer's right to develop the Property in accordance with this Section
3.1 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 al( ordinances, regulations, rules, laws,
plans, policies, and guidelines of the City and its City Council, Planning Commission,
and all other City boards, commissions, and commitiees 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 abiliry to develop the Project in
accordance with the Development Plan unless such New Laws are (A) adopted by the
Ciry 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 Ciry to sustain a
loss of funds or Ioss 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 or approval associated therewith, including but not limited to Project
Tract Maps and building permits,
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ORDINANCE N0. 1 t4in
(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, aw
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;
(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 thereafter, 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.
3.2 Prolect Timinq: 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
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ORDINANCE NO. 1 t+��
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 under the Agreement given.
3.3 Bufldinq Permits and Other Approvals and Permits. Subject to
(a) Developer's (or its assignee's) compliance with this Agreement, 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 simi(ar fees and
charges of general application, the City shall process and issue to Developer or its
assignee promptly upon application therefore all necessary use permits, building permits,
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ORDINANCE NO. 1141A
occupancy certificates, and other required permits for the construction, use and
occupancy of the Project, or any portion thereof, as applied for, including connection to
all utility systems under the City's jurisdiction and control (to the extent that such
connections are physically feasible and that such utility systems are capable of
adequately servicing the Project).
3.4 Procedures 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 consistent
with the Agreements
3.5 Effects of Aqreement. 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 Ciry certain benefits which they otherwise would not receive.
This Agreement shall be binding upon the Ciry and its successors in accordance
with and subject to its terms and conditions notwithstanding any subsequent action of
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ORDINANCE NO. 1141n
the City, whether taken by ordinance or resolution of the City Council, by referenda,
initiative, or otherwise. The parties acknowledge and agree that by entering into this
Agreement and relying thereupon, the Developer has obtained, subject to the terms and
conditions of this Agreement, a vested right to proceed with its development of the
Project in accordance with the proposed uses of the Property, the 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 Plan and the Existing
Land Use Ordinances, and the timing provisions of Section 3.2, 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 public heafth, safety and welfare of the City and its residents, and this
Agreement is an essential element in the achievement of those goals.
3.6 Oaeratinq Memoranda. Developer and City acknowledge that
the provisions of this Agreement require a close degree of cooperation between
Developer and City, and that refinements and further development of the Project may
demonstrate that changes or additional provisions are appropriate with respect to the
details of performance of the parties under 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
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ORDINANCE NO. 1141A
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 rece+pt 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.
4. Periodic Review of Compliance. In accordance with Govt. Code Section
65865.1, the City Counci! shall review this Agreement at least each calendar year
during the 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 Cit, and after
reasonable exercise of its discretion and after reasonable notice to Developer, may
require.
5. Permitted Delays: Supersedure bv Subseauent Laws.
5.1 Permitted Delays. In addition to any other provisions of this
Agreement with respect to delay, Developer and Ciry shall be excused from
performance of their obligations hereunder during any pe�iod of delay caused by acts
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ORDINANCE NO. 1i4in
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 pracess 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.
5.2 Supercedure of Subsequent Laws or Judicial Actio�. 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 feasibiliry of any such
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ORDINANCE NO. 1141A
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 5.1 above, for a period of time equal
to the length of time the challenge was pursued.
6. Events of Default; Remedies: Termination.
6.1 Events of Default. Subject to any extensions of time by mutual
consent in writing, and subject to the provisions of Section 5 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
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
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ORDINANCE NO. �i4�A
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.
6.2 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 6.1 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.
6.3 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 parry 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.
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ORDINANCE NO. 1 i4in
6.4 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 6.2 hereof, shall not affect any
right or dury 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 6.2
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, Ciry prior to the date of termination of this Agreement.
Except as otherwise provided in this section 6.2, 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.
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ORDINANCE NO, i141n
6.5 Third Partv 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 proceeding, shall constitute a permitted delay under section
5.1.
7. Encumbrances on Proaertv.
7.1 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.
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ORDINANCE NO. li4ia
7.2 Mortaaqe 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.
7.3 Mortqaqee Not Obliqated. Notwithstanding the provisions of
Section 7.2, 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.
7.4 Estoapel 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
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ORDINANCE NO. 1141�
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.
8. Transfers and Assiqnments; Effect of Aqreement on Title.
S.1 RiQhts and Interests Aapurtenant. 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 delegated or
assigned except in compfiance with the folfowing 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.
8.2 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
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ORDINANCE NO. 1141A
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) AI( 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,
(8) runs with suc� lands, and (C) is binding upon each parry 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.
9. Notices. Any notice to either party shall be in writing and given by
delivering the same to such party in person or by sending the same by registered or
certified mail, return receipt requested, with postage prepaid, to the following addresses:
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ORDINANCE NO. �141A
If to City:
City Cierk of Palm Desert
73-510 Fred Waring drive
Palm Desert, California 92260
If to Developer:
Bernard Investment Group
Attention:
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.
10. Indemnification: Develoqer's ObliQation.
10.1 Developer's Wronq-Doin4. 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 liabiliry (including, without limitation, liability arising
from injury or damage to persons or property, including wrongful death and worker's
compensation ctaims) 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.
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ORDINANCE NO. 114�A
10.2 Environmental Assurances. Developer shall indemnify and hold
the indemnified parties free and harmless from any liability deriving from the City's
execution or pertormance 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.
10.3 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.
10.4 Defense bv Ccunsel 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 arising from this Agreement or Project, 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 defense, including all
reasonable attorneys' fees, and any final judgment or portion thereof rendered against
the indemnified parties.
10.5 Non-liabilitv of Citv Officers and Emplovees. No official, officer,
employee, agent, or representative of the City, acting in his/her official capaciry, shall be
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ORDINANCE N0. tt4in
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 Ciry.
10.6 Survival. The provisions of these sections 10.1, 10.2, 10.3 and
10.4 shall survive the termination or expiration of this agreement.
11. Miscellaneous.
11.1 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.
11.2 Consents. Unless otherwise herein provided, whenever approval,
consent, acceptance or satisfaction (collectively, a "consent") is required of a party
pursuant to this Agreement, it shall not be unreasonably withheld or delayed. Unless
provision is otherwise specified in this Agreemeni 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 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
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ORDINANCE NO. i a
stated in reasonable detail in writing. This section does not apply to development
approvals by the City.
11.3 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.
11.4 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 Agreemeni 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.
11.5 Exhibits. The exhibits listed in the Tabte of Contents, to which
reference is made herein, are deemed incorporated into this Agreement in their entirety
by reference thereto.
11.6 Entire Aqreement. This written Agreement and the Exhibits hereto
contain all the representations and the entire Agreement between the parties with
respect to the subject matter hereof. Except as otherwise specified in this Agreement
and the Exhibits hereto, any prior correspondence, memoranda, agreements,
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ORDINANCE NO. 1141A
warranties or representations are superseded in total by this Agreement and Exhibits
hereto.
11.7 Governinq Law; Construction of Aqreement. 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.
11.8 Siqnature Paqes. 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.
11.9 Time. Time is of the essence of this Agreement and of each and
every term and condition hereof.
11.10 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
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ORDINANCE NO. t14in
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, ihe parties have executed this Agreement as of the
date and year first above-written.
DEVELOPER:
BERNARD INVESTMENT GROUP
A California Corporation
By:
By:
C I TY:
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
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ORDINANCE NO. �t4�A
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/herltheir 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
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ORDINANCE NO. 1141A
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
[to be attached prior to recording]
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