HomeMy WebLinkAboutOrd 1164 DA 06-02 Amend 1 and Misc 08-301 Palm Desert Funding Co., LPREQUEST:
MEETING DATE O "
IJ CONTINUED TO
PASSES TO 2ND I EADtNG
CITY OF PALM DESErT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
Approval of an amendment to Development Agreement 06-02,
University Park, between the City of Palm Desert and the Palm
Desert Funding Company deleting the Coachella Valley Water
District well sites from the scope of the development agreement.
SUBMITTED BY: Kevin Swartz, Assistant Planner
APPLICANT: Palm Desert Funding Company, LP
3 San Joaquin Plaza #215
Newport Beach, CA 92660
CASE NOS: DA 06-02 AMENDMENT 1 AND MISC 08-301
DATE: August 28, 2008
CONTENTS: Draft Ordinance No. 1164
Planning Commission Minutes for Case No. DA 06-02 Amendment 1
Planning Commission Resolution No. 2481
Planning Commission Staff Report dated August 5, 2008
Legal Notice
Development Agreement 06-02
Recommendation:
That the City Council waive further reading, and:
1) Pass Ordinance No. 1164 to second reading approving Amendment 1 to
Development Agreement 06-02.
Executive Summary:
Approval of the staff recommendation will delete the Coachella Valley Water
District well sites from the scope of the approved development agreement. The
homeowner association will assume responsibility for maintenance of the
landscaping outside of the well sites.
Discussion:
Staff Report
DA 06-02 Amendment 1
August 28, 2008
Page 2 of 3
Discussion:
I. BACKGROUND/DISCUSSION:
In 1997, pursuant to development agreement 97-2, the City adopted the Wonder
Palms Master Plan. That master plan covered the area around Cook Street at
the Gerald Ford intersection, and included portions of this property. On February
8, 2007 Ordinance No. 1132 was passed approving Development Agreement 06-
02 that superseded Development Agreement 97-2 allowing the applicant, Palm
Desert Funding, to develop the projects contained within the 190 acres of the
University Park Master Plan.
The subject property has two well sites, with Well Site One fronting on Portola
Avenue and College Drive and Well Site Two fronting on Gerald Ford Drive. The
Development Agreement 06-02 states that the property owner must maintain the
well sites for the Coachella Valley Water District. However, the property owner
has expressed concern about in maintaining the well sites for the Coachella
Valley Water District. The City wants a 10 foot wide landscaped parkway off of
College Drive for Well Site One and off of Gerald Ford Drive for Well Site Two,
which will be maintained through the Home Owners Association. The property
owner has agreed to maintain these areas, and is requesting that the City delete
the Coachella Valley Water District from the scope of the development
agreement.
The proposed project was presented to the Planning Commission on August 5,
2008. The Commissioners stated that the modification will not make any
changes to the project as approved; the Commission recommended to City
Council approval of the project on a 4-0 vote.
G:\Planning\Kevin Swartz\Word\DA 06-02 Amendment\CC reprt.doc
Staff Report
DA 06-02 Amendment 1
August 28, 2008
Page 3 of 3
II. ENVIRONMENTAL REVIEW:
This modification to the development agreement will not result in any physical
changes to the built environment. The project was reviewed as part of the
University Park Area Land Use plan process for which a Negative Declaration of
Environmental Impact was certified, and no further environmental review is
necessary.
Submitted By:
)1 4/
Kevin Swartz
Assistant Planner
Homer Croy
ACM for
-rCarIos L. 0
City Manag
velopm
t Services
Department Head:
Lauri Ay
Director, Community Development
G:\Planning\Kevin Swartz\Word\DA 06-02 Amendment\CC report.doc
ORDINANCE NO. 1164
A ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING AN AMENDMENT TO
DEVELOPMENT AGREEMENT 06-02, UNIVERSITY PARK, BETWEEN
THE CITY OF PALM DESERT AND THE PALM DESERT FUNDING
COMPANY DELETING THE COACHELLA VALLEY WATER DISTRICT
WELL SITES FROM THE SCOPE OF THE DEVELOPMENT
AGREEMENT.
CASE NO. DA 06-02 AMENDMENT 1:
WHEREAS, the Planning Commission by its Resolution No. 2481 has recommended
approval of said project; and
WHEREAS, at said public hearings, said City Council heard and considered all
testimony and arguments of all interested persons.
WHEREAS, the City Council of the City of Palm Desert, California, DOES
HEREBY ORDAIN, AS FOLLOWS:
SECTION 1: That the Development Agreement 06-02 Amendment 1 by
Ordinance No. 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, held on this 28th day of August, 2008, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
JEAN M. BENSON, Mayor
ATTEST:
RACHELLE KLASSEN, City Clerk
City of Palm Desert, California
CITY COUNCIL ORDINANCE NO. 1164
RECORDING REQUESTED BY AND WHEN RECORDED MAILED TO:
City of Palm Desert
Attn: City Clerk
73-510 Fred Waring
Palm Desert, CA 92260
FOR THE BENEFIT OF THE CITY OF PALM DESERT
NO FEE
6103 FOR THE GOVERNMENT CODE
Space above this line for Recorder's use
First Amendment to Development Agreement 06-02
This First Amendment to Development Agreement 06-02 (this "Amendment") is made
and entered into this as of this day of , 2008 by and between the CITY
OF PALM DESERT, a California Municipal Corporation ("City"), and PALM
DESERT FUNDING COMPANY, L.P. A DELAWARE LIMITED PARTNERSHIP
("Developer") ("City and Developer are collectively "the Parties"), pursuant to the
authority of Section 65864 et seq. of the Government Code of the State of California.
RECITALS
A. City and Developer entered into that certain Development Agreement 06-02
dated as of the 8th day of March 2007 and recorded on April 2, 2007 as
Document Number 2007-0221432, and the official records of Riverside County,
California (the "Agreement"). The Agreement was entered into to facilitate the
development of certain real property (the "site") more particularly described in the
Agreement.
B. City and Developer now desire to amend the Agreement in the manner set forth
herein pursuant to Section 2.2 of the Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of
the Parties, the Parties hereto agree to as follows:
AGREEMENT
1. Effective Date. This Amendment shall become effective on the date which is two
business days after the date which is thirty days after the date of final adoption
by the City of the ordinance approving this Amendment ("Effective Date"). From
and after the Effective Date, all references to the Agreement shall automatically
be deemed to mean the Agreement as amended by this Amendment.
2. Defined Terms: All capitalized terms used but not defined herein shall have the
meeting set forth in the Agreement.
3. Effect on Site: This Amendment will bind the Site upon the Effective Date.
4. Amendment to Exhibit "A": Exhibit "A" legal description shall be revised by
removing the properties described in Exhibit "AA", attached, from the Site. The
properties described in Exhibit "AA" shall no longer be a part of the property
entitled and restricted under the terms of Development Agreement 06-02.
CITY COUNCIL ORDINANCE NO. 1164
5. Covenants Run With Land: It is specifically understood and agreed by and
between the Parties hereto that the Agreement and this Amendment shall not be
severable from Developer's interest in the Site and the provisions of this
Agreement as amended by this Amendment shall constitute covenants which
shall run with the Site or any portion thereof upon the recordation of this
Amendment, and that thereafter the benefits and burdens of the Agreement as
amended by this Amendment shall bind and inure to all successors in interest to
the Parties who require any interest in this Site.
6. Interpretation: This Amendment shall be interpreted to give each of the
provisions their plain meaning. The Recitals are incorporated into this
Amendment.
7. Entire Agreement: This Amendment is executed in duplicate originals each of
which is deemed to be an original.
8. Status of Agreement: Except as modified by this Amendment, the terms and
provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the
date and year first above written.
City of Palm Desert, a California Municipal Corporation by:
By: Effective Date: , 2008
Jean M. Benson, Mayor
City of Palm Desert
ATTEST:
Carlos L. Ortega
City Manager
APPROVED AS TO FORM:
Dave Erwin
City Attorney
DEVELOPER:
Palm Desert Funding Company L.P.
A Delaware Limited Partnership
BY:
ITS:
CITY COUNCIL ORDINANCE NO. 1164
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , before me, Notary
Public, personally appeared
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
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , before me, Notary
Public, personally appeared
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
[SEAL]
5
ORDINANCE N0 . 1164
501412638A
Policy No. : CNJP-2228-
CALIFORNIA LAND TITLE ASSOCIATION
STANDARD COVERAGE - 1990
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California,
County of Riverside, City of PALM DESERT, described as follows:
THAT CERTAIN PARCEL OF LAND SITUATED IN THE CITY OF PALM DESERT,
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, BEING A PORTION OF
PARCEL 3 , AS SHOWN ON PARCEL MAP NO. 31730 FILED IN BOOK 211
PAGES 63 THROUGH 75, INCLUSIVE, OF PARCEL MApS, RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS
FOLLOWS :
COMMENCING AT THE CENTERLINE INTERSECTION OF PORTOLA AVENUE AND
COLLEGE DRIVE AS SHOWN ON SAID PARCEL MAP NO. 31730;
THENCE ALONG THE CENTERLINE OF SAID COLLEGE DRIVE NORTH
89°54 ' 28" EAST 121 .37 FEET;
THENCE NORTH 00°05 ' 32" WEST 54 FEET TO THE TRUE POINT OF
BEGINNING;
THENCE NORTH 47°41 ' 41" WEST 45 . 19 FEET TO A LINE PARALLEL AND
38 . 00 FEET EAST OF THE WESTERLY LINE OF SAID PARCEL 3 ;
THENCE ALONG SAID PAR.ALLEL LINE, NORTH 00°05 ' 32" WEST 110 .11
FEET;
THENCE LEAVING SAID PARALLEL LINE, NORTH 89°54 ' 28" EAST 97 . 33
FEET TO A POINT ON A NON-TANGENT CURVE CONCAVE NORTHEASTERLY
AND HAVING A RADIUS OF 45 . 50 FEET, A RADIAL LINE OF SAID CURVE
FROM SAID POINT BEARS NORTH 65°46 ' 56" EAST;
THENCE ALONG SAID CURVE SOUTHEASTERLY AND EASTERLY 71 . 68 FEET
THROUGH A CENTRAL ANGLE OF 90°16 ' 08" TO A POINT OF REVERSE
CURVATURE WITH A CURVE CONCAVE SOUTHEASTERLY AND HAVING A
RADIUS OF 34 . 50 FEET, A RADIAL LINE OF SAID CURVE FROM SAID
POINT BEARS SOUTH 24°29 ' 12" EAST;
THENCE ALONG SAID CURVE EASTERLY 14 . 69 FEET THROUGH A CENTRAL
ANGLE OF 24°23 '40" ;
Continued on next page
6 Exhibit "AA" of DA 06-02 Amd 1
ORDINANCE N0 . 1164
501412638A
Policy No. : CNJP-222g-
CALIFORNIA LAND TITLE ASSOCIATION
STANDARD COVERAGE - 1990
THENCE TANGENT FROM SAID CURVE NORTH 89°54 ' 28" EAST 13 . 33 FEET;
THENCE SOUTH 00°05 ' 32" EAST 126 . 81 FEET TO A LINE PARALLEL WITH
AND 10 FEET NORTH OF THE SOUTHERLY LINE OF SAID PARCEL 3 , SAID
LINE ALSO BEING THE NORTHERLY RIGHT(S) OF WAY LINE OF SAID
COLLEGE DRIVE;
THENCE SOUTH 89°54 ' 28" WEST 29. 98 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 315. 00 FEET;
THENCE ALONG SAID CURVE WESTERLY 41 .94 FEET THROUGH A CENTRAL
ANGLE OF 07°37 '41" TO A POINT OF REVERSE CURVATURE WITH A CURVE
CONCAVE SOUTHERLY AND HAVING A RADIUS OF 363 . 00 FEET, A RADIAL
LINE OF SAID CURVE FROM SAID POINT BEARS SOUTH 07°32 ' 10" WEST;
THENCE ALONG SAID CURVE WESTERLY 48 . 33 FEET THROUGH A CENTRAL
ANGLE OF 07°37 ' 41" ;
THENCE TANGENT FROM SAID CURVE SOUTH 89°54 ' 28" WEST 31 . 88 FEET
TO THE TRUE POINT OF BEGINNING.
End of Legal Description
Continued on next page
7 Exhibit "AA" of DA U6-U2 Amd 1
ORDINANCE NO , 1164
SEC. 33, T.4S. , R.6E. 50 0 50 100 150
SCALE: 1 "=50'
�
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�, ,, �.,� WELL SITE 1 0�L; c��v
� � � 0.554 AC. , �� - �� O9
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� 50' � � � T.P.O,B. o�a NI
V I N �i
13 I SOUTHERL Y
O 12 � 11 �� LINE OF
PARCEL 3
TEMPORARY ACCESS
EASEMENT OO I �. �? NORTHERL Y RIGHT-OF-N'A Y -
O � — L INE OF COLLEGE ORI�E 00
1
P.o.c. � C L COLLEG °
� / E DRIVE x
�
DATA TABLE g
O BEARING/DELTA RAOIUS LENGTH ^
1 N89'S4'28"E -- 121.37 �
2 N00 05 32 W -- 54.00 DENOTES TEMPORARY ACCESS EASEMENT m
3 N47°41 41'W -- 45. 19'
4 N00°o5'32 w — �io. i i� L _ J RECORDED ON AS �
5 N89'54'28"E -- 97.33' I NSTRUMENT NO. �
6 90 16'08 45.50 71.68'
7 24'23'40' 34.50' 14.69' �
8 N89'S4 28"E -- 13.33' �
9 S00'OS'32"E -- i26.81' �
10 S89 54'28 W -- 29.98' �,
11 07'37'41" 315.OQ' 41.94' �
12 07 37'41" 363.00' 48.33' �
i3 sss'Sa'28"W -- 31.88' SHEET 1 OF 1 SHEET �
EXHIBIT �r� P�ANNINO ■ OES�pN ■ CON9TW�JCTiON %
0
�
PLAT TO ACCOMPANY A � � � �a-no cou�rtar c�.,e owve s:xre�rn �
PALN OE�i�i.CAL,FOFTIA 92Y80-'655 �
LEGAL DESCRIP710N FOR C O N 5 U LTI N�i �ec-�ae-�ae,. FAl(780.94683�5. ,Y,Y,r��a,,, �
WELL SITE PURPOSES. DATE: MAY 8, 2007 JN: 20—iC0707—G5 i
_
8 Exhibit "AA" of DA 06-02 Amd 1
ORDINANCE N0 . 1164
501418444A
Policy No. : CNJP-2228-
CALIFORNIA I,AIVD TITLE ASSOCIATION
STANDARD COVERAGE - 1990
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California,
County of Riverside, City of PALM DESERT, described as follows:
THAT CERTAIN PARCEL OF LAND gITIJATED IN THE CITY pg pp�,M DESERT,
COUNTY OF RIVERSIDE, STATE OF CAI,Igp-]�Ip�� BEING A PORTION OF
PARCEL 4, AS SHOWN ON PARCEL MAP NO. 31730, FILED IN BOOK 211
PAGES 63 THROUGH 75, OF PARCEL MApg, RECORDS OF RIVERSIDE
COUNTy, CALIFORNIA, MORE PARTICULARLy DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTERLINE INTERSECTION OF GERAT,D FORD DRIVE
AND PACIFIC AVENUE AS SHOWN ON SAID PARCEL MAP NO. 31730;
THENCE ALONG THE CENTERLINE OF SAID GERALD FORD DRIVE, NORTH
89°56 ' 07�� EAST 373 . 93 FEET TO THE BEGINNING OF
CONCAVE SOUTHWESTERLY AND Hp,VING A RADIUS OF 1000TFEETNT CLTRVE
THENCE ALONG SAID CURVE EASTERLY 523 .05 FEET THROUGH A CENTRAL
ANGLE OF 29°58 ' 07";
THENCE LEAVING SAID CENTERLINE RAI)IALLY FROM SAID CURVE SOUTH
29°54 '14" WEST 95 FEET TO THE TERMINLJg OF A CURVE LYING 95 FEET
SOUTHERLY AND CONCENTRIC WITH THE SAID CENTERLINE OF GERALD
FORD DRIVE, BEING A POINT ON A NON-TANGENT CURVE CONCAVE
SOUTHWESTERLY AND HAVING A RADIUS OF 905 FEET,
SAID CURVE FROM SAID POINT gEARg SOUTH 29°54 '14�" WREST�SAIDE OF
POINT ALSO BEING THE TRUE POINT OF BEGINNING;
THENCE ALONG SAID CURVE SOUTHEASTERLY 189.39 FEET THROUGH A
CENTRAL ANGLE OF 11°59'26�� .
.
THENCE NON-TANGENT FROM SAID CURVE SOUTH 22°13 ' 53" WEST 139. 12
FEET TO A POINT ON A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 283 FEET, A R.ADIAL LINE OF SAID CURVE
FROM SAID POINT BF.ARg SOUTH 22°13 'S3" WEST;
THENCE ALONG SAID CURVE WESTERLY 102 . 99 FEET THROUGH A CENTRAI,
ANGLE OF 20°51 'OS" •
,
THENCE NON-TANGENT FRaM SAID CURVE NORTH 00°03 'S3" WEST 21g . 6�
Continued on next page
9 Exhibit "AA" of DA 06-02 Amd 1
ORDINANCE N0 . 1164
501418444A
Policy No. : CNJP-2228-
CALIFORNIA LAND TITLE ASSOCIATION
STANDARD COVERAGE - 1990
FEET TO THE TRUE POINT OF BEGINNING.
End of Legal Description
Continued cn next page
10 Exhibit ",-�A" o� DA 06-02 :�md 1
ORDINANCE N0 . 1164
SEC. 33, T.4S. , R.6E. N41 °53'40"E �R�
�- - -- - - -
0 N22° 13'S3"E �R)
TEMPORARY ACCESS /�
EASEMENT
�O•
0 WfLL S/TE Z
��� 0.552 AC. O
�ti � O\ �
3
�� � T.P.O.B. O ��01 °22_48"W �R�
1
� �
'� �529°54'14"W �R�
� V
�
� ��
� �Q
O �° PARCEL 4
� o PARC£L MAP 31730
�� P.M.B. 211/63-75
��
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J r1'
�
� V SCALE: 1°=100'
�
I 75' � �
Z o 100 0 100 200 300
SCALE: 1"=100'
�
— :
�
DATA TABLE �
�
WESTERLY LINE OO 6EARING/DELTA RADIUS LENGTH "'
1 OF PARCEL 4 1 N89 56'0�'E -- 373.93' �
I2 29 58 07' 1000.00 523.05' g
EASrERLY RIGHT,OF-WAY � 3 s2s°54'�4"w -- ss.00' �
L INE OF PACIFIC A�ENUE � 4 t�'S9'26" 905.Qo' 189.39' g
5 S22 13 53 W R -- 139. 12' �
P.O.C. I 6 20 51'05' 283.00' 102.99 �
C/L PACIFIC AVENUE � Noo•o3'S3"w -- zi8.s� o
, �
�
�---� DENOTES TEMPORARY ACCESS EASEMENT RECORDED ON AS �
� � �
L___J INSTRUMENT N0. g
SHEET 1 CF 1 SHEET �
EXHtBlT �`/ � PLANNINO ■ DCH16N ■ CONiTqIJCT10N n
n
8
74-�0 COIN�!'AY CLUB DfiIVE,SIRE 201
PLAT TO ACCOMPANY A • • • �u�;�ssrr,cu�n�szeo-:ess �
LEGAL DESCRIPTION FOR C O N S U LTI N G �eo-�.,e-;,a,. =nx�eo,<e.ea,s. �,„.a��a,,, �
WELL S17E PURPOSES. GATE: ,4fAY 9, 2C07 „�N: 20-100707—G6 �
t
11 Exhibit "AA" of DA 06-02 Amd 1
MINUTES
PALM DESERT PLANNING COMMISSION AUGUST 5 2008
A. Case No. VAR 08-254— SIGN DESIGNS INC., AND LONGS
DRUGS, Applicants
Request for approval of a variance for an exception to Palm
Desert Municipal Code Section 25.68 Signs to permit a
larger sign than the ordinance allows for Longs Drugs
located at 74-527 Highway 111.
Mr. Kevin Swartz reviewed the staff repq��t,, Staff believed that the
proposed signage was overwhelming and toal� �w�y from the architecture,
and since Longs Drugs would be easily v��ible frc�tr� three public streets,
felt the 82 square feet per elevation ��wed by cod�was sufficient. Staff
recommended adoption of the findin��and adoption of th� draft resolution
denying the variance request.
Chairperson Tanner o ened the ��41ic h���i�g�and asked the applicant to
address the Commission. The app(���t�; was not present. Chairperson
Tanner asked if anyon��.wished to s�e� in FAVOR of or OPPOSED to
the proposed sign var������. T�ere was n���e and the public hearing was
closed. Chairperson T�rt�er����ed for Cornm�ssion comments.
Commissi �� Campbel�, thot��h�t ih���th� building already had great
exposu �° � �� _�� ,, ignag����Ic�v�ied for tl�+��building was adequate, and
conc� ;������ with sta:%; recomm�ndation.
��
��;
Action: ;�. �� �
;:,,� ��� ��.
I was m � or`n�"' . Campbell, seconded by Commissioner
<���, � ;:r �r, v�%;,;s
, �, � ap�� ng the findin � as presented by staff. Motion carried 4-0
��;�� (Cor� �:'� ione�;� hmidt absent).
\ ,��� �����.
�
It was mo��by �� � issioner S. Campbell, seconded by Commissioner
� Limont, adt���ng PI�� nning Commission Resolution No. 2480, denying
��ase No ��R 08-254. Motion carried 4-0 (Commissioner Schmidt
��'�nt). � ��
�, ,,
' �� �,
�,"�, B. ���e Nos. DA 06-02 Amendment #1 and MISC 08-301 — PALM
�\
C��SERT FUNDtNG COMPANY, LP, Applicant
Request for a recommendation of approval to City Council of
an amendment to Development Agreement 06-02, University
Park (generally located south Gerald Ford Drive, east of
Portola Avenue), deleting the Coachella Valley Water District
well sites from the scope of the development agreement.
3
MINUTES
PALM DESERT PLANNING COMMIS�ION AUGUST 5 2008
Mr. Kevin Swartz explained that in 1997, Development Agreement 97-2
was adopted for the Wonder Palms Master Plan which encompassed
property in the area of Portola Avenue, Gerald Ford and Cook. On
February 8, 2007, Ordinance No. 1132 was passed approving
Development Agreement 06-02 that superseded Development Agreement
97-2 and allowed the applicant, Palm Desert Funding, to develop the
project contained within the 190-acres of the Uni sity Park Master Plan.
Mr. Swartz showed the location of the well site ;; he displayed map. He
stated that the property has two well sites; ite #1 fronting on Portola
Avenue and College Drive; well site #2 fr erald Ford Drive.
��,
He further indicated that Develop _� �greemen�� ,, ,;,p2 states that the
property owner must maintain the � " ites for the Co` Ila Valley Water
District (CVWD). The prope , s � ner has expresse �� ncern about
a-�
maintaining the well sites. Mr.'_„ rtz state t it didn't m� to the City
who maintained it, the City just° ed t �� a 10-foot wide' andscaped
parkway off of College Drive and d Drive. Well site #2 at Gerald
Ford had a 20-fo ndscaped way. He explained that the
landscaped area wou ' tained t h a homeowners association.
The property owner a '� ; � s req�`' ,' g that the City delete the
Coachella Valley Wate':,� istric�� the " '; pe of the development
agreement
y o�.
Staff ���mmendet���at the� � nning Commission adopt the findings and
the F?I�nning Com��ssion Re � , tion recommending to the City Council
approv�l �f Develc�pr�ent �gre� „� nt 06-02 Amendment #1. He asked for
�� : , . , o
�n�r quest�t�n�� �, �
% Cha�r '
��on T��ner asked if there was any down side to approving this
°� � ` reques�.'��� Swa���said no, not as long as the parkway is landscaped and
maintaine� °,��,hrougt� a homeowners association. Chairperson Tanner
� asked for cl���cation'that that had been agreed to. Mr. Swartz said yes.
% ,�,
� ,
,. ;,
;;
�
���missio��;�Limont asked if staff talked with CVWD and they were fine
wi�'��ie���ndment. Ms. Aylaian said yes.
�,,.;,,,;,
i'%'!':
There vwrere no other questions for staff. Chairperson Tanner opened the
public hearing and asked for any testimony in FAVOR of or OPPOSED to
the proposed amendment. There was no response. Chairperson Tanner
closed the public hearing and asked for Commission comments.
4
MINUTES
ERT PLANNING COMMISSION AUGUST 5 2008
Action:
It was moved by Commissioner S. Campbell, seconded by Commissioner
Limont, approving the findings as presented by staff. Motion carried 4-0
(Commissioner Schmidt absent).
It was moved by Commissioner S. Campbell, seconded by Commissioner
Limont, adopting Planning Commission olution No. 2481,
recommending to City Council approval of Dev '� ent Agreement 06-02
Amendment #1 and MISC 08-301. Motio y� ried 4-0 (Commissioner
Schmidt absent). -��
, ;,.
C. Case No. TPM 35982 IAM POPE/J� �� NGINEERING,
�z- �:
INC., Applicant , ���
�,;
�� �
Request for approval of a` , tive� � �el map to subdi�de a
1.16-acre parcel into 13 5` or condominium sale
purposes. Th� , erty is loca t 74-794 42�d Avenue.
a;,
Ms. Missy Grisa revi �� d��`��� �= ff rep Staff recommended
�� , �;,
approval of TPM 35982, ject t�� ; nditi ", .
� ���o ��y
r'
Chairper��°T�nn�r o en " � ublic h ' ing and asked for any
testimp���in FAVt�� of or"������ POSED to the proposed project.
There was no re��nse. C �_��`� erson Tanner closed the public
hearing �nd asked��ir Gommis�� , comments.
���� � � � � �
`�,���(��ssio��r �imont said he� concern with something like this is
,,,
� alwai����rkin� �he missed Dave Tschopp, because he would
�;���� always ���on fha�� To her it looked like this project would provide
�"� four spac��'���er 1,6(���;square feet per parcel and asked if that was
`��correct. Ms ����� isa confirmed that the parking should be sufficient.
` ��`�� �;�
�,\ \�
�����
�missia�t���S. Campbell noted that they have approved similar
prt�� , ss���iave never had any problems. She was in favor of the
prop�����roject and moved for approval.
,.
,��
Action:
It was moved by Commissioner S. Campbell, seconded by Commissioner
Limont, approving the findings as presented by staff. Motion carried 4-0
(Commissioner Schmidt absent).
It was moved by Commissioner S. Campbell, seconded by Commissioner
Limont, adopting Planning Commission Resolution No. 2482, approving
5
PLANNING COMMISSION RESOLUTION NO. 2481
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO
THE CITY COUNCIL APPROVAL TO AMEND DEVELOPMENT
AGREEMENT 06-02, DELETING THE COACHELLA VALLEY
WATER DISTRICT WELL SITES FROM THE SCOPE OF THE
DEVELOPMENT
CASE NOS. DA 06-02 AMENDMENT #1, MISC 08-301
WHEREAS, the Planning Commission of the City of Palm Desert, California, did
on the 5t" of August, 2008, hold a duly noticed public hearing to consider the request of
Palm Desert Funding for the above mentioned project; and
WHEREAS, at said public hearing, upon hearing and considering all testimony
and arguments, if any, of all interested persons desiring to be heard, said Planning
Commission did find the following facts and reasons to exist to justify recommending
approval of Development Agreement 06-02 Amendment #1:
1 . Modification will not make any changes to the quality or extent of the
project as �pproved, or to the level at which it is maintained.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City
of Palm Desert, California, as follows:
1. That the above recitations are true and correct and constitute the findings
of the Commission in this case.
2. That approval of Development Agreement 06-02 Amendment #1, and
Miscellaneous 08-301, are hereby recommended to the City Council,
subject to the attached conditions.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert
Planning Commission, held on this 5t" day of August 2008, by the following vote, to wit:
AYES: CAMPBELL, CAMPBELL, LIMONT, TANNER
NOES: NONE
ABSENT: SCHMIDT
ABSTAIN: NONE
VAN G. TANNER, Chairperson
ATTEST:
LAURI AYLAIAN, Secretary
Palm Desert Planning Commission
PLANNING COMMISSION RESOLUTION NO. 2481
CONDITIONS OF APPROVAL
CASE NOS. DA 06-02 AMENDMENT #1 AND MISC OS-301
Department of Communitv Development:
1. That all conditions of approval imposed on the original Development Agreement
06-02 shall apply to this application except for the proposed amendment,
attached.
2
PLANNING COMMISSION RESOLUTION NO. 2481
RECORDING REQUESTED BY AND WHEN RECORDED MAILED TO:
City of Palm Desert
Attn: City Clerk
73-510 Fred Waring
Palm Desert, CA 92260
FOR THE BENEFIT OF THE CITY OF PALM DESERT
NO FEE
6103 FOR THE GOVERNMENT CODE
Space above this line for Recorder's use
First Amendment to Development Agreement 06-02
This First Amendment to Development Agreement 06-02 (this "AmendmenY') is made and
entered into this as of this day of , 2008 by and between the CITY OF PALM
DESERT, a California Municipal Corporation ("Cit�'), and PALM DESERT FUNDING
COMPANY, L.P. A DELAWARE LIMITED PARTNERSHIP ("Developer") ("City and Developer
are collectively "the Parties"), pursuant to the authority of Section 65864 et seq. of the
Government Code of the State of California.
RECITALS
A. City and Developer entered into that certain Development Agreement 06-02 dated as of
the 8th day of March 2007 and recorded on April 2, 2007 as Document Number 2007-
0221432, and the official records of Riverside County, California (the "Agreement"). The
Agreement was entered into to facilitate the development of certain real property (the
"site") more particularly described in the Agreement.
B. City and Developer now desire to amend the Agreement in the manner set forth herein
pursuant to Section 2.2 of the Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the
Parties, the Parties hereto agree to as follows:
AGREEMENT
1. Effective Date. This Amendment shall become effective on the date which is two
business days after the date which is thirty days after the date of final adoption by the
City of the ordinance approving this Amendment ("Effective Date"). From and after the
Effective Date, all references to the Agreement shall automatically be deemed to mean
the Agreement as amended by this Amendment.
2. Defined Terms: All capitalized terms used but not defined herein shall have the
meeting set forth in the Agreement.
3. Effect on Site: This Amendment will bind the Site upon the Effective Date.
4. Amendment to Exhibit "A": Exhibit "A" legal description shall be revised by removing the
properties described in Exhibit "AA", attached, from the Site. The properties described in
Exhibit "AA" shall no longer be a part of the property entitled and restricted under the
terms of Development Agreement 06-02.Covenants Run With Land: It is specifically
understood and agreed by and between the Parties hereto that the Agreement and this
3
PLANNING COMMISSION RESOLUTION NO. 2481
Amendment shall not be severable from Developer's interest in the Site and the
provisions of this Agreement as amended by this Amendment shall constitute covenants
which shall run with the Site or any portion thereof upon the recordation of this
Amendment, and that thereafter the benefits and burdens of the Agreement as amended
by this Amendment shall bind and inure to all successors in interest to the Parties who
require any interest in this Site.
5. Interpretation: This Amendment shall be interpreted to give each of the provisions their
plain meaning. The Recitals are incorporated into this Amendment.
6. Entire Agreement: This Amendment is executed in duplicate originals each of which is
deemed to be an original.
7. Status of Agreement: Except as modified by this Amendment, the terms and
provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Second Amendment as of the
date and year first above written.
"CITY" CITY OF PALM DESERT, a California
Municipal Corporation
Effective Date: By:
(Mayor, City of Palm Desert)
, 2008
Attest:
Carlos L. Ortega
City Manager
Approved as to form:
David Erwin
City Attorney
"DEVELOPER" PALM DESERT FUNDING
a Delaware limited liability company
Date of Submission by Developer: By:
, 2008
4
PLANNING COMMISSION RESOLUTION NO. 2481
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , before me, Notary
Public, personally appeared
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
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , before me, Notary
Public, personally appeared
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
[SEAL]
5
�
�
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
PLANNING COMMISSION STAFF REPORT
REQUEST: Recommendation of approval to the City Council of an amendment
to Development Agreement 06-02, University Park, deleting the
Coachella Valley Water District well sites from the scope of the
development agreement.
SUBMITTED BY: Kevin Swartz
Assistant Planner
APPLICANT: Palm Desert Funding Company, LP
3 San Joaquin Plaza #215
Newport Beach, CA 92660
CASE NO(s): DA 06-02 AMENDMENT#1 AND MISC 08-301
DATE: August 5, 2008
1. EXECUTIVE SUMMARY:
Approval of staff's recommendation will recommend to City Council approval
to delete the Coachella Valley Water District well sites from the scope of the
approved development agreement.
II. BACKGROUND/DISCUSSION:
In 1997, pursuant to development agreement 97-2, the City adopted the Wonder
Palms Master Plan. That master plan covered the area around Cook Street at
the Gerald Ford intersection, and included portions of this property. On February
8, 2007 Ordinance No. 1132 was passed approving Development Agreement 06-
02 that will supersede Deve�opment Agreement 97-2 allowing the applicant,
Palm Desert Funding, to develop the projects contained within the 190 acres of
the University Park Master Plan.
The property has two well sites, with Well Site One fronting on Portola Avenue
and College Drive and Well Site Two fronting on Gerald Ford Drive. The
Development Agreement 06-02 states that the property owner must maintain the
well sites for the Coachella Valley Water District. The property owner has
expressed concern about in maintaining the well sites for the Coachella Valley
Water District. The City wants to see a 10 foot wide landscaped parkway off of
College Drive for Well Site One and off of Gerald Ford Drive for Well Site Two,
I
� Staff Report
Case Nos. DA 06-02 Amendment and MISC 08-301
August 5, 2008
Page 2 of 2
which will be maintained through the Home Owners Association. The property
owner has agreed and is requesting that the City delete the Coachella Valley
Water District from the scope of the development agreement.
III. ENVIRONMENTAL REVIEW:
This modification to the development agreement will not result in any physical
changes to the built environment. The project was reviewed as part of the
University Park Area Land Use plan process for which a Negative Declaration of
Environmental Impact was certified, and no further environmental review is
necessary.
IV. RECOMMENDATION:
That the Planning Commission adopt the findings and adopt Planning
Commission Resolution No. , recommending to City Council approval of
Development Agreement 06-02 Amendment and MISC 08- 301.
V. ATTACHMENTS:
A. Draft Resolution
B. First Amendment to Development Agreement 06-02
C. Legal Notice
D. Approved Development Agreement 06-02
E. Plans and Exhibits
Submitted by: Department Head:
� � �.�.....------ ._:-� -,
��
Kevin Swartz a ri Aylaian
Assistant Planner Director of Community Development
Approval•
Homer Croy
ACM for Develop t Services
G:\PlanninglKevin Swartz\Word\DA OE02 Amendment\PC stat report.doc
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- CITY OF PALM DESERT
LEGAL NOTICE
CASE NO. DA 06-02 Amendment 1
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(University Park)to
Amend Development Agreement 06-02,deleting the Coachelia Valley Water District
Well sites,from the scope of the Development Agreement.
Ci of Palm Desert Ma
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SAID public hearing will be held on Thursday, August 28, 2008, at 4:00 p.m. in the
Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm
Desert, California, at which time and place all interested persons are invited to attend and
be heard. Written comments concerning all items covered by this public hearing notice
shall be accepted up to the date of the hearing. Information concerning the proposed
project and/or negative declaration is available for review in the Department of
Community Development at the above address between the hours of 8:00 a.m. and 5:00
p.m. Monday through Friday. If you challenge the proposed actions in court, you may be
limited to raising only those issues you or someone else raised at the public hearing
described in this notice, or in written correspondence delivered to the City Council at, or
prior to,the public hearing.
PUBLISH: Desert Sun RACHELLE KLASSEN,City Clerk
August 18,2008 Palm Desert City Council
ORDINANCE NO. 1132
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFQRNIA, 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 California 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-U4 for which a Negative
Declaration of Environmental lmpact was certified and no further review is necessary;
and
WHEREAS, at said public hearing, City Councif 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 follows:
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 8th
day of March, 2007, by the foliowing vote, to wit:
AYES: BENSON, FERGUSON� FINERTY� SPIEGEL, and KELLY
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE �
RICHARD S. KEL , MAYOR
ATTEST:
_ �
CH LLE . KLASSE , CITY CLERK
CITY OF PALM DESERT, CALIFORNIA �
EACH OOCUMENT TO WHICH THIS CERTIFlCATE 13
/►TTACHED.IS CERTIFIED TO BE A FULL,TRUE AND
CORRECT COPY OF THE ORIGINAL ON FILE AND ON
RECORD IN MY OFFiC
Dated:
RACNEILE D.KLASSEN,City Cierlc
� ���
8Y
2
DOC # 20�7-p221432
RECORDING REQUESTED BY ANp 04/02/2007 08:00A Fee:NC
WHEN RECORDED� MAIL TO: � P°�� 3 of t2o
Reeorded in Official Rteo�ds
County of Riversid�
La�ry U. Ward
Cil� (��@�(�$ OffiCe Assessor, Counly Clerk 8 R�eorder
City of Palm Desert I I��III IIII�II III�I III Ilf�l!Ilil II�II'���I I I I
73-510 Fred Waring Drive I Il ilil,III
Paim Desert, CA 92260-2578
FOR THE BENEFIT OF THE
CITY OF PALM DESERT S R U PAGE SIZE DA MISG LONG RFD CpPy
- NO FEE - !
6103 OF THE GOVT. CODE � 1
M A L 485 �26 PCOR NCOR SMF NCM Ex'''M
�3C
�
Development Agreement 06-0 M
2 036
Befinreen
City of Palm Desert
and
Palm Desert Fundin Com an
A Del g p Y, L. P. ,
aware Limited Partnership
(University Park Master Development Plan
)
Dated: �=�h 8, Zoo�
ORDINANCE NO. 1132
Case No. DA 06-02 Related to C/Z 06-04
(Titb of Dp�ymenq
[THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.]
EXHIBIT A
OR,DINANCE NO. 1132
DEVELOPMENT AGREEMENT
(University Park)
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as
of this 8th day of harch _, 200�, 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:
REC--- 1—T —AL.S
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 l l, 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.
Hovcr Univers�ty park peveloprr�ent Agrtement vi.doc ]
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 azea (University Park Area)
of the 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.
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 incoiporated 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 affected by the Wonder Palms Development Plan outside the boundaries of the Property.
G. In the 2004 Generat 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 Pazk Area.
2
flovcr-I:ntveis+ty Park Ucoc!opment Agrnemcnt vl doc
ORDINANCE NO. 1 j 32
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.
j. 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 aliered 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 v�,hich witl 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 welfaze 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 ("Developmeni 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 Counci[ has elccted to exercise certain
Ho���'U���ersity Park p�vNopmcnt Agreemcnt v l.doc 3
ORDINANCE NO. 1132
govemmental powers at the present time rathcr 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 Agreement 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 follaws:
1. DeGuitions.
__.�_
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 Aereement. This Development Agreement.
l.3 Buildine 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 Iimitation, the City's building, plumbing, electrical, mechanicai, grading, sign, and fire
codes.
1.4 Citv Cauncil. The legislative body of the City of Palm Desert.
4
Huver Gnrvcrsiry Park Ucvclopmcnt Agrcemcnc v i.doc
ORDINANCF NO. 1132
1.5 Eftective Date. The date on which the Enacting Ordinance becomes
effective.
1•6 Enactine Ordinance. Ordinance 1_, enacted by the City Council
on �rch 8
, 2007, approving this Agreement.
1.7 Existing Land Use Ordinances, The Land Use Ordinances in effect as of
the Effective Date.
1•8 Laod Use Ordinances. The ordinances, resolutions, codes, cules,
regalations 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, a{I as applicable to the development of the Property.
Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shail
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 Mor„te�aQe, q 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 paR of the Property, or an interest in it, is pledged as security,
contracted in good faith and for fair value.
1.]0 Pro'ect. The rnedium 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 "H"), to be constructed on the Property, as the same may
hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement
iluvei-Ur,,�crsny Prrk UevdopmcntAgrcanent vl doc 5
ORDINANCE NO. 1132
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.
l.11 Pro e . The rea( property and any improvements thereon which is
described in Exhibit"A"to this Agreement.
1.12 Tract Maus. 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 tirne 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 Instnzment No. 179687) with
6
Nuver-Umvcrsity Park Dcvelupment Agreement v t doc
ORDINANCE NO. 1132
respect to any portion of the Property subject to DA 97-2.
4• General Develonment of the Proiect.
4.1 Pr_ oie�t.
(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 Propeny; ii�
�� �)
development standards; (iv) open space and pazk 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;
(��) all amendments or modifications to Existing Land Use Ordinartces 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,
Itovcr-U>>�vcrsiry Park Develupment Agreement vi doc 7
ORDINANCE NO. 1132
commissions, and committees enacted or adopted after the Effective Date of this Agreement
(collectively, "New Laws"), exccpt 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 poriion
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, __
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(��) Building, electrical, mechanical, fire and similar building codes based
upon uniConn codes adopted in, or incorporated by reference into, the Palm Desert Munici al
Code, as ex�sting on the Effective Date of this Agreement or as may be enacted p
or amended
thereafter, applied to the Project in a nondiscriminatory manner.
(�) 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.
a•� Proiect Timin¢• Conctn...r;.... �_.:�.
• •.�� �u�����ment. The part�es 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 ma�s, 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
Huoer-i;nivcisity Park Uevelopment Agreement vt doc C�
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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 Building Permits and Other Aoarovals 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 necessazy 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 pecmits 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
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consistent with the Development Ptan.
4.5 Effect of Agreement. 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 Existin
8
Land Use Ordinances, and to grant ihe City and the residents of the City certain beaefits which
they otherwise would not receive.
This Agrecment 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
parties acknowledge and agree that by entering into this Agreement and relying thereupon, the
Developer has obtained, subject to the tecros 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 pubIic 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 OperatinQ Memoranda. Developer and City acknowledge that the
provisions of this Agreement require a close degree of cooperation between Developer and City,
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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 A�reement in order to effectuate the purpose of this Agreement and thc 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 shali 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 prov�ded in Section 65868 of the Califomia Government Code, then no such operating
rnemoranda 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 furiher 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. Specific Criteria Aaalicable to Develoament of t6e 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
devetopment criteria of the property. Development plans or agreements, tract or parcel maps,
precise development plans or any other action requiring ministerial or discretionary approval of
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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 thc
approved Development Plan.
5•2 Apolicable 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 atl
permits or approvals required to develop the Property; provided, ho�vever, that (a) Developer
shall be subject to all changes in processing, inspection and plan-check fees and chazges 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 and 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 A nlicable 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 Counci! or by action of a City official whorn the City Council may designate, such
new standazds shall become applicable to the Property or portions 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
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notify City in wiiting 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 �r suspended as may be necessary to comply
with such state or federal laws or regulations, provided, however, that this Agreement shall
�emain 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 necessazy 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
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secure any such required easements.
6. Timine of Construct,_ion,
6•1 Timing 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 pazk improvements to City
speci fications.
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 compieted as part of the first phase of the tract in which they aze 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 Exceation 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 pazks be constructed within three years of
such issuance.
7• Periodic Review of Comoliance. In accordance with Govt. Code Section
65865.1, the City Council shaff review this Agreement at ]east each calendar year during the
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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 reas�nable cxercise of its discretion and after
reasonable notice to Developer, may require.
8. Permitted Delays; Supersedure bv Subseauent 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-govemmental 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 pacty 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
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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 af�er enactment of any such new Law, or issuance
of such Decision, the parties shail 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 shal] 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
unmodiFed 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
llooe�-i'mversiry Yark 7cvelopment Agreemenc vl.dce �7
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satisfactorily cured in accordance with the tcrn�s and conditions of this Agreement. During the
time periods herein spccified 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 entittement 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 nvt 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 perforrnance 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
ft�ture. 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
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Novcr t,nrvcrsity Park Devclopment Agrcement v I.d�u
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to the other party's default, or as a result of the exercise of the right of termination provided to
the Ueveloper under Section 7.2 hereof, shall not affect any right or duty emanating fro�n 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
Agrcement. 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 shail
otherwise cease as of the date of the termination of this Agreement.
1f 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 P$rtv Actions. Any court action or proceeding brought by any
third party to chalienge this Agreement or any permit or approval required &om 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
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proceeding, shall constitute a pennitted delay under Section 7.1.
10. Encumbrances on Property.
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 a�iy 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 rnodification. City further agrees that it wil( 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 MortQa�e Protectioa. 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 foseclosure or otherwise) shall be subject to a11 of the terms and
conditions of this Agreement.
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10.3 Mort a ee Not Obli ated. 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 Esto�nel Certificates. Either pacty 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 parry, (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 modificd, 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 retvrn 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.
i l. Transt'ers and Assi nments• Effect of A reement on Title.
I 1 l Rigitts and lnterests Annurtenant. The rights and interests conveyed as
provided herein to Developer benefit and are appurtenant to the Property. Devetoper 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
Hovei-Unwersity P;�rk Uevelopmrnt Agreement vt.doc 21
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delega�ed 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, consotidation, 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 maru�er 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
Hovec-Un�versity Park I)evelopment Agreement vt doc
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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.
12• 1Vat�ces. 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, retum 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 92260
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 an the date personal delivery is effected or, if
mailed, on the delivery date or attempted delivery date shown on the return receipt.
13• Indemaiftcation: Develo er's Obii ation.
13.] Develoaer's Wrone-Doin . 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
Hnver-Unive,siry Perk llevciopment Agreemcnt v I doc 23
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claims) which results from (i) any obligation which arises from the development of the Property
incfuding, without limitation, obiigations for the payment of money for material and labor; (ii)
any failure on the parl 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 hoid the
Indemnified Parties free and harmtess from any liabifity 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 dr regulation relating to hazazdous 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 Challen$es to Aereement. 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.
I3.4 Defense bv Counsel Chosen by 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 defcnse to
the Indemnified PaRies, with counsel rcasonably acceptable to City. Developer shall be
24
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obligated to promptly pay all costs of defense, including all reasonabie attorneys' fees, and any
finai judgment or portion thereof rendered against the Indemnified Parties.
13.5 Non-Liabilitv of Citv Oft7cers and Emolovees. No official, officer,
employee, agent, or representative of the City, acting in his/her official capacity, shall be
personally Iiable to Developer, or any successor or assign, for any Ioss, 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.b Su„rvi_v,al, The provisions of these Sections 12.1, 12.2, 12.3, and 12.4 shall
survive the termination or expiration of this Agreement.
14. Miscellaaeous.
14.1 Relationshiu 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 aze intended to or shall be deemed to create a partnership, joint
venture or joint enterprise between the parties hereto.
14.2 Co__nsents. Unless otherwise herein provided,whenever approval, consent,
acceptance or satisfaction (collectively, a "consenY') is required of a party pursuant to this
Agreement, it shall not be unreasonably withheld or delayed. Unless provision is otherwise
specified in this Agreement or otherwise required by law for a specific time period, consent shall
be deemed given within thirty (30) days after receipt of the written request for consent, and if a
party shall neither approve nor disapprove within such thirty (30) day period, or other time
Hoven[;nioers�ry Park Development Agrcemcnt vt.da: �5
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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 reasonabfe 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 Severability. 1f 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 Agrecment in their entirety by reference
thereto.
14.6 Entire Aereement, This written Agreement and the Exhibits hereto
contain all the representations and the cntire agreement between the parties with respect to the
subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, -
26
Hovei-L1�wers�ty Park Dcvelopment Agree�ncnt v I Aa:
ORlliNANCE NO. l I32
any prior correspondence, memoranda, agreements, warranties or representatioas are superseded
in tota! by this Agreement and Exhibits hereto.
14.7 Governin¢ Law: Construction of A reemenk Ttuis Agreement, and the
rights and obligations of the parties, shall be govemed by and interpreted in accordance with the
laws of the State of California. The provisions of th�s Agreement and the Exhibits hereto shall
be construed as a whole according to their common meaning a,nd 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 coz�venience of reference and shall be disregarded
_ in the construction and interpretation of this Agreement. Wherever required by the context, the
singular sha11 include the plural and vice versa, and the masculine gender shall include the
ferninine or neuter genders,or vice versa.
14.8 Signatare Pa�es. For convenience, the signatures of the parties of this
Agreement may be executed and aclmowledged on sepazate 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 Prevailine Party's qttor�ev'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
Hovcr-Universiry Park Develupmeni Agrecment v1 doc 27
ORDINANC�; NO. 113?_
the case may bc, shall promptly pay any and all costs and expenscs (includino��ithc�ut limitation.
al] court costs and reasonable attomeys' fees and expenses) incu�Ted by the othei• party �vith
respect to such to such dispute or in enforcing or establishing its rights hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreernent as of the
date and year first above-written.
DEVELOPER:
PALM DESERT FtJNDING COMPANY, L.P.,
A Delaware Limited Partnership
By: Hover Development Company, Inc.
Its: thorized R presentative
By ._
homas I. H ver, President
CIT •
CITY OF PALM DESERT, CALIFORNIA, a
municipal cotporation organized and existing under
the laws of he State of California
�
By:
d or
Attes .
che e D. assen, 'ty lerk
zx
Ffaver-Urrversiry Pziic 1)evelupmcnt��eem�t vi Aoc
, --�----
ORDINANCE NO. 1132
STATE OF CALIFORNIA �
COUNTY OF � ss
)
On �I , 2007, before me, �
a Notary Public in and
for said State, personally appeared �
� —�— , personaUy t�o�
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 acknow(edged 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 bli
�MI►�.��w�,audp�
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�"�nVCf-tip1VCT51ly?ark Devciopmrnt Agreement vl.doc Zy