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ORDINANCE NO. � F'����d�� ��� ��:��li�c� Z�� � ��
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, ,�
CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT FOR A NEW ��
THREE-STORY 106-ROOM BOUTIQUE HOTEL AND TWO-STORY C
CONDOMINIUM UNIT INCLUDING SIXTEEN 3-BEDROOM LOCKOUT
ROOMS (48 KEYS MAXIMUM) TOTALING A MAXIMUM OF 154 UNITS/KEYS, ��
EXHIBIT"A" AITACHED. �
CASE NO. DA 07-02
.
WHEREAS, the Planning Commission by its Resolution No. 2477 has recommended �.
approval of Case No. DA 07-02; 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 07-02, Exhibit "A" attached, by
Ordinance No. is hereby approved.
SECTION 2: That 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
effect thirly (30) days after its adoption.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert
City Council, held on this day of 2008, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
JEAN M. BENSON, Mayor
ATTEST: '.:ITY C4UNCIL�TION:
APPR�VEI� DENTED
F.ECE I�D �,� OTH�R,��
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RACHELLE KLASSEN, City Clerk�,��,�e (-E [�°° � -�-----
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City of Palm Desert, California �p��;�;
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UERIFIED EiY: �
�riginal an File wi City Clerk's Offir�.
ORDINANCE NO. 1158 ' -
CASE NO. DA 07-02
EXHIBIT "A"
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Paim Desert
73-626 Highway 111
Palm Desert CA 92260
Attn: City Clerk
Exempt from recording fees pursuant to Govt. Code Section 27383
(Space above for recorder's use)
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered
into as of this 26th day of June, 2008, 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 LARKSPUR ASSOCIATES, LLC ("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
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ORDINANCE NO. 1 iss '
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 is the owner of a legal or equitable interest in the Property and
is entitled to have filed the appfication for and to enter into this Agreement. The Project
consists of the future development of the Property. The Property is located at an
important location in 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.
D. 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 General Plan, Commercial Core Area Specific Plan and is
consistent with the existing zoning affecting the Properties.
E. City has further determined that entry into this Agreement will further the
goals and objectives of the City's land use planning policies by, among other things,
encouraging investment, providing precise and supplemental criteria for the uses,
design, circulation and development of the Property, including flexibility in land use
options which may be altered in order to respond to future changes in the surrounding
areas, eliminating uncertainty in planning for, and securing orderly processing and
development of the Project. The benefits conferred on the City by Developer herein will
(i) insure consistent, comprehensive planning which will result in aesthetically pleasing,
environmentally harmonious, and economically viable development within the City; (ii)
provide for the creation of a high quafity, aesthetically pleasing entry statement for the
Ciry; (iii) provide for the construction of storm water system improvements vital to the
City; and (iv) further the development objectives of the City in an orderly manner, all of
which will significantly promote the health, safety and welfare of the residents of the
City. In exchange for these benefits to the City, Developer desires to receive the
assurance that it may proceed with the Project in accordance with the Development
Plan attached to this Agreement as Exhibit "A", and at a rate of development of its
choosing, subject to the terms and conditions contained in this Agreement.
F. Pursuant to Section 65867.5 of the Development Agreement Legislation,
the City Council has found and determined that: (i) this Agreement implements the
goals and policies of the City's General Plan, provides balanced and diversified land
uses, and imposes appropriate standards and requirements with respect to land
development and usage in order to maintain the overall quality of life and the
environment within the City; (ii) this Agreement is in the best interests of and not
detrimental to the public health, safety and general weffare of the City and its residents;
(iii) adopting this Agreement is consistent with the City's General Plan, and each
element thereof and the Commercial Core Area Specific Plan, and constitutes a present
exercise of the City's police power; and (iv) this Agreement is being entered into
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ORDINANCE NO. 1158 '
pursuant to and in compliance with the requirements of Government Code Section
65867 of the Development Agreement Legislation.
G. 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.
H. This Agreement has undergone extensive review by the City's staff, the
Planning Commission and the City Council.
I. In order to effectuate the foregoing, the parties desire to enter into this
Agreement.
AGREEMENT
NOW, THEREFORE, pursuant to the authority contained in the Development
Agreement Legislation, and in consideration of the mutual covenants and promises of
the parties herein contained, the parties agree as follows:
DEFINITIONS.
Defined Terms. Each reference in this Agreement to any of the following
terms shall have the meaning set forth below for each such term.
Aqreement. This Development Agreement.
Building 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 Ciry,
including, without limitation, the City's building, plumbing, electrical, mechanical, grading,
sign, and fire codes.
Citv Council. The legislative body of the City of Palm Desert.
Develoqment Plan. Development Plan means the development and
associated amenities, and on-site and off-site improvements, as permitted under and
described in the Development Plan (Exhibit "A"), to be constructed on the Property, as the
same may hereafter be further refined, enhanced or modified pursuant to the provisions
of this Agreement.
Effective Date. The date on which the Enacting Ordinance becomes
effective.
Enacting Ordinance. Ordinance , enacted by the City Council on
, 2008, approving this Agreement.
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ORDINANCE NO. 115s - -
Existinq Land Use Ordinances. The Land Use Ordinances in effect as of
the Effective Date.
Four-Star Hotel and Four-Star Hotel Standards. Four-Star Hotel shall
mean a hotel where either of the following shall apply: (1) the hotel has or will meet the
requirements of a brand included within the "Luxury" or"Upscale" segments as defined by
J.D. Power and Associates; or (2) the hotel satisfies or will satisfy the published
requirements sufficient for a ranking of no less than four (4) stars in the most recent
annual awards list published by AAA or Mobil Travel Guides. The City Council may, by
resolution, adopt alternative standards as may be necessary. Four-Star Hotel Standards
shall mean the standards of a Four-Star Hotel.
Hotel Manaqer. Hotel Manager means a reputable and experienced
hotel management company or operator who shall have at least five (5) consecutive
years of experience in the hotel management business in hotels that meet the Four Star
Hotel Standards and have no fewer than ten (10) other properties (each in separate
cities, or distinct and separate projects in any given city, nationally or internationally)
under current management.
Land Use Ordinances. The ordinances, resolutions, codes, rules,
regulations and official policies of the City duly adopted and on file in the Office of the City
Clerk, governing the development of the Property, including but not limited to, the
permitted uses of land, the density and intensity of use of land, and the timing of
development, all as applicable to the development of the Property. Specifically, but
without limiting the generality of the foregoing, Land Use Ordinances shall include the
City's General Plan, the City's zoning ordinance and the City's subdivision code, but shall
exclude the Building ordinances.
Mortpaqe. 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.
Municiqal Code means the Palm Desert Municipal Code.
Personal Use means the use or occupancy of a unit by a Unit Owner, or
when a guest of an Unit Owner does not rent and pay for the Owner's unit through the
� �utel Manager. Use of a unit arising out of an exchange program with an affiliated hotel
property shall be subject to Transient Occupancy Tax based on the equivalent daily rental
value for that room exchanged free of charge or otherwise reduced in the program and
shall not be considered personal use by the owner; provided, however, that no provision
herein shall be deemed to permit a timeshare, fractional, or other vacation ownership unit
if otherwise prohibited by this Agreement or the Municipal Code.
Proiect. The development and associated amenities, and on-site and off-
site improvements, as permitted under and described in the Development Plan (Exhibit
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ORDINANCE NO. 115s - �
"A"), to be constructed on the Property, as the same may hereafter be further refined,
enhanced or modified pursuant to the provisions of this Agreement.
Pro e . The real property and any improvements thereon which is
described in Exhibit "B" to this Agreement.
Transient Occuqancy Tax means the tax described and subject to the
provisions of Chapter 3.28 of the Municipal Code, as may be amended from time to time.
Unit Owner means an individual or entity that acquires any ownership
interest in, and holds title to, one or more condominium hotel units within the Project.
Term; Amendment.
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.
Amendment. The parties to this Agreement at their sole discretion and by
their mutual written consent may from time to time amend the provisions and terms of this
Agreement and the Exhibits hereto. Any amendment to this Agreement or the Exhibits
hereto as provided herein shall be effected only upon compliance with the procedures for
amendment, if any, required by the Development Agreement Legislation and the
Development Agreement Ordinance. The City shall, after any such amendment takes
effect, cause an appropriate notice of such amendment to be recorded in the official
records of the County of Riverside.
General Development of the Proiect
Proiect.
The Project is defined and described in the Development Plan
attached to this Agreement as Exhibit "A".
Developer shall have the vested right to develop the Project in
accordance with, and development of the Project during the Term 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
Properry in accordance with this Section 3.1 shall be without regard to future ordinances,
resolutions, rules, regulations and policies of the City or referenda of the voters of the
Ciry, including, without limitation, those with respect to moratoriums for utility service,
other than ordinances, resolutions, rules, regulations and policies of the City which limit or
condition the rate, timing or sequencing of development of the Property and which are
required solely as a result of then existing shortages of utility service capacity or facilities.
Buildinq Permits and Other Approvals and Permits. Subject to (a)
Developer's compliance with this Agreement, the Development Plan, the Existing Land
Use Ordinances and the Building Ordinances, and (b) payment of the usual and
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ORDINANCE NO. 115s '
customary fees and charges of general application charged for the processing of such
applications, permits and certificates and for any utility connection, or similar impact fees
and charges of general application then in effect, the City shall process and issue to
Developer upon application therefore all necessary use permits, building permits,
occupancy certificates, and other required permits for the construction, use and
occupancy of the Project, or any portion thereof, as applied for, including connection to all
utility systems under the City's jurisdiction and control (to the extent that such connections
are physically feasible and that such utility systems are capable of adequately servicing
the Project).
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 pre-approvals (including the usua{ 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 Development Plan.
Effect of Aareement. This Agreement shall constitute a part of the Enacting
Ordinance, as if incorporated by reference therein in full. The parties acknowledge that
this Agreement is intended to grant Developer the right to develop the Project pursuant to
specified and known criteria and rules as set forth in the Development Plan and the
Existing Land Use Ordinances, and to grant the City and the residents of the City certain
benefits which they otherwise would not receive.
This Agreement shall be binding upon the City and its successors in
accordance with and subject to its terms and conditions notwithstanding any
subsequent action of the city, whether taken by ordinance or resolution of the City
Council, by referenda, initiative, or otherwise. The 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 Development Plan and the Existing Land Use Ordinances, and the City has
entered into this Agreement in order to secure the public benefits conferred upon it
hereunder which are essential to alleviate current and potential problems in the City and
to protect the public health, safety and welfare of the City and its residents, and this
Agreement is an essential element in the achievement of those goals.
Operating Memoranda. The parties acknowledge that refinements and
further development of the Project may demonstrate that changes are appropriate with
respect to the details and performance of the parties under this Agreement. The parties
desire to retain a certain degree of flexibility with respect to those items covered in
general terms under this Agreement. If and when the parties mutually find that changes,
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ORDINANCE NO. 1158 ' -
adjustments, or clarifications are appropriate to further the intended purposes of this
Agreement, they may, unless otherwise required by law, effectuate such changes,
adjustments, or clarifications without amendment to this Agreement through one or more
operating memoranda mutually approved by the parties, which, after execution, shall be
attached hereto as addenda and become a part hereof and may be further changed and
amended from time to time as necessary. The City Manager is authorized to approve
such an operating memorandum on behalf of the City without further approval of the City
Council. Unless otherwise required by law or by this Agreement, no such changes,
adjustments, or clarifications shall require prior notice or hearing, public or otherwise.
Specific Criteria Aqplicable to Development of the Proiect.
Applicable Ordinances. Except as set forth in the Development Plan and
subject to the provisions of Section 4.2 below, the Existing Land Use ordinances shall
govern the development of the Property hereunder and the granting or withholding of all
permits or approvals required to develop the Property; provided, however, that (a)
Developer shall be subject to all changes in processing, inspection and plan-check,
impact fees and charges imposed by City in connection with the processing of
applications for development and construction upon the Property so long as such fees
and charges are of general application and are not imposed solely with respect to the
Property, (b) Developer shall abide by the Building ordinances in effect at the time of such
applications, and (c) Developer and/or Operator of the project shall comply with all
ordinances relating to operation including but not limited to Transient Occupancy Tax.
Amendment to Aqplicable Ordinances. In the event that the Palm Desert
zoning ordinance is amended by the City in a manner which provides more favorable site
development standards for the Property or any part thereof than those in effect as of the
Effective Date, Developer shall have the right to notify the City in writing of its desire to be
subject to all or any such new standards for the remaining term of this Agreement. If City
agrees, by resolution of the City Council or by action of a City official whom the Ciry
Council may designate, such new standards 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
Properry as provided above, but Developer may notify City in writing of its desire to be
subject to all or any such amended new standards and City may agree in the manner
above provided to apply such amended new standards to the Property.
Easements; Abandonments. Ciry shall 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 Devefoper and in the manner and to the
extent permitted by law, take such action and execute such documents as may be
necessary to abandon existing easements and relocate them, as necessary or
appropriate in connection with the development of the Project, all at the cost and expense
of the Developer. In addition, to the extent that temporary or permanent easements on
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ORDINANCE NO. 1158 '
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 secure any such required easements.
Height Requirements. Buildings constructed on the Property as part of
the Project shall not exceed a height of thirty-seven feet (37') at the parapets or forty-two
feet (42') at the tower in accordance with the Development Plan. The height limits shall
be measured in the manner of other height limits under Title 25 of the Municipal Code.
Parkinp Reauirements. The Project shall provide a minimum of two
hundred three (203) parking spaces in accordance with the Development Plan.
Densit�Requirements. The Project shall not exceed a density of one
hundred fifty four (154} hotel roomslkeys that may be allocated within the components of
the Project as provided in the Development Plan.
LEED Requirements. Developer shall design, develop and construct
the Project as required to secure the "Silver" or higher designation, as selected by the
Developer in the exercise of its reasonable discretion, as established by the U.S. Green
Building Council under the Leadership in Energy and Environmental Design ("LEED")
program.
Coolinq Station Capacitv. An emergency backup power generator onsite
capable of cooling the Project shall be installed and maintained as part of the Project.
The Project shall be used as a "cooling station" for the City in the event of power outage.
Hotel Requirements.
The requirements of this Section 4.9 and Section 4.10 are necessary to
preserve the commercial nature of the Property and insure that the Project retains its
character as a four-star boutique commercial hotel. While the project contains
condominium units in addition to more traditional hotel units, the condominium units are
commercial hotel condominium units and are not intended to, nor shall be used, as long-
term residential units.
The Developer shall comply with and use the property in accordance
with the restrictive covenants set forth in Section 5.1 of the Disposition and Development
Agreement between the Developer and the Redevelopment Agency of the City of Palm
Desert dated on or about the date of this Agreement and pertaining to the Property.
One hundred (100) percent of the condominium units shall be made
available as rental units for hotel guests by the Hotel Manager when not being used by
the Unit Owner for the Unit Owner's Personal Use (as defined in Section 1.14 of this
Agreement). The Unit Owners, through the CC&Rs shall assign their units to the Hotel
Manager for the purposes of rental to transient guests when not being used for Personal
Use.
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ORDINANCE N0. 115� '
A Unit Owner shall be allowed to use the unit for Personal Use no
more than two (2) weeks between November 1 st and May 1 st of each year and for no
more than two (2) weeks between May 2nd and October 31 st of each year without paying
the Transient Occupancy Tax.
Every condominium unit shall be subject to the Transient Occupancy
Tax, except for Personal Use described above, and each condominium unit shall be
made available to hotel guest for transient use.
No condominium unit shall be rented or let for more than twenty-nine
(29) consecutive days.
No condominium unit shall be used or converted into any form of
permanent residence.
No condominium unit shall be used as a timeshare, factional or other
vacation ownership as such terms are defined in Business and Professions Code Section
11212, as may be amended from time to time.
The Developer shall enter into a contract for operation of the
Project with a reputable and experienced hotel manager or operator who shall have at
least five (5) consecutive years of experience in the hotel management business in
hotels that meet the Four Star Hotel Standards and have no fewer than ten (10) other
properties (each in separate cities, or distinct and separate projects in any given City,
nationally or internationally) under current management ("Hotel Manager"). The applicant
shall provide the Director of Community Development with appropriate documentation to
demonstrate that the Hotel Manager meets the requirements of this subsection. Any
future changes in the Hotel Manager shall require review and approval by the Director of
Community Development. The Director of Community Development may modified the
standards for the Hotel Manager upon finding that the Hotel Manager has comparable
experience meeting the interests served by the standards. The Hotel Manager shall
ensure that all portions of the hotel are maintained and operated in accordance with the
Four Star Hotel Standards, including but not limited to the condominium units, lobby and
hallways, front desk, concierge services, landscape and open space areas, parking,
banqueUballroom facilities, conference, restaurant, retail, recreational, and spa facilities,
and other amenities and improvements.
Conditions. Covenants and Restrictions. The Developer shall prepare and
submit to the City CC&R's governing the Project, including the condominium portion of
the Project. The CC&R's must be approved by the Community Development Director and
the City Attorney and recorded against the Properry in the Riverside County Recorder's
Office prior to the issuance of a certificate of occupancy for the Project or any portion
thereof. All CC&R's shall include the �ollowing provisions:
The CC&R's shall specifically include the provisions of Section 4.8
and 4.9 of this Agreement and shall incorporate by reference the terms of this
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ORDINANCE NO. 1�58 '
Agreement and the Disposition and Development Agreement for the Property adopted
on the same date as this Agreement.
The CC&R's shall give the approved Hotel Manager the right,
power and obligation to enforce the Four Star Hotel Standards including, without
limitation, the right to enter any portion of the hotel and condominium units, and any
individual condominium units upon sale or assignment of the Unit, to cure any failure to
meet the Four Star Hotel Standards. The Hotel Manager shall provide transient rental
services to all owners of the condominium units. The CC&Rs shall provide that the Unit
Owners shall assign their units to the Hotel Manager for the purposes of rental to
transient guests when not being used for Personal Use.
The CC&R's shall give the Hotel Manager the exclusive right to
provide to the condominium hotel, the property, and to unit owners, lessees and other
occupants, any or all "on property" services commonly provided at Four-Star Hotels,
restaurants and resorts, including without limitation, reservation programs, maid and
housekeeping services, maintenance, laundry and dry cleaning, room service, catering
and other food and beverage services, massage, personal training and other spa
services. The use of such services, if offered, shall be conditioned upon payment of
such charges or fees as may be imposed on unit owners or hotel guests by the Hotel
Manager. Unit owners shall be required to enter into a unit maintenance agreement with
the Hotel Manager, to be approved by the Director of Community Development.
The CC&R's shall for the authority, but not the obligation, of the City
to enforce, in its discretion, the provisions of the Development Plan and this Agreement.
Subject to applicable California general law and Department of Real
Estate regulations, the CC&R's shall provide that the obligation to pay the Transient
Occupancy Tax shall constitute a lien by the City on the units for the amount owed,
including any permitted penalties or interest, and that the City shall have the right, but not
the duty, to foreclose on any such liens through equitable or legal proceedings.
The CC&R's shall provide that they shall not be amended without the
prior written approval of the Director of Community Development.
Completion of Hotel and Condo-Hotel Components of Proiect. Developer
shall complete construction of the hotel component of the Project prior to or concurrently
with completion of construction of the condominium component of the Project. The City
shall not issue a certificate of occupancy for the condominium component of the Project,
or any part thereof, until the hotel component of the Project is completed and eligible for
an unrestricted certificate of occupancy from the Ciry and all other applicable
requirements for issuance of a certificate of occupancy for the condominium component
of the Project have been fulfilled.
Art in Public Places. The City and Developer desire to cooperate with each other
to secure the introduction and integration of public art into the Project for the purpose of
enhancing the image of the City and the Project. Developer shall, at the request of the
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ORDINANCE NO. 1158 ' -
Ciry, provide such easements upon the Property as may be reasonably required for the
installation and maintenance of such public art. The location of such easements shall
be mutually approved by the City and Developer. In addition to providing such
easements as may be reasonably required for the installation and maintenance of such
public art, Devefoper shall pay to the City in lieu art fees at the time of and in
connection with the development of the Property, or portions thereof, in accordance
with the fee levels and other payment and procedural requirements of Chapter 4.10 of
the Municipal Code of the City lawfully imposed at the time of development of the
Property, or portions thereof.
Periodic Review of Compliance. In accordance with Govt. Code Section 65865.1,
the Department of Community DevelopmendPlanning Staff 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
City, and after reasonable exercise of its discretion and after reasonable notice to
Developer, may require.
Permitted Delays; Supersede bv Subsequent Laws.
Permitted Delays. In addition to any other provisions of this Agreement with
respect to delay, Developer and City shall be excused from performance of their
obligations hereunder during any period of delay caused by acts of mother nature, civil
commotion, riots, strikes, picketing, or other labor disputes, shortage of materials or
supplies, or damage to or prevention of work in process by reason of fire, floods,
earthquake, or other casualties, litigation, acts or neglect of the other party, any
referendum elections held on the Enacting Ordinance, or the Land Use Ordinances, or
any other ordinance effecting the Project or the approvals, permits or other entitlements
related thereto, or restrictions imposed or mandated by governmental or quasi-
governmental entities, enactment of conflicting provisions of the Constitution or laws of
the United States of America or the State of California or any codes, statutes, regulations
or executive mandates promulgated thereunder (collectively, "Laws") , orders of courts of
competent jurisdiction, or any other cause similar or dissimilar to the foregoing beyond the
reasonable control of City or Developer, as applicable. Each party shall promptly notify
the other party of any delay hereunder as soon as possibfe after the same has been
ascertained. The time of performance of such obligations shall be extended by the period
of any delay hereunder.
Supersedure of Subseauent Laws or Judicial Action. The provisions of this
Agreement shall, to the extent feasible, be modified or suspended as may be necessary
to comply with any new Law or decision issued by a court of competent jurisdiction (a
"Decision"), enacted or made after the Effective Date which prevents or precludes
compliance with one or more provisions of this Agreement. Promptly after enactment of
any such new Law, or issuance of such Decision, the parties shall meet and confer in
good faith to determine the feasibility of any such modification or suspension based on
the effect such modification or suspension would have on the purposes and intent of this
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ORDINANCE NO. 1�ss '
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 7.1 above,
for a period of time equal to the length of time the challenge was pursued.
Events of Default; Remedies: Termination.
Events of Default. Subject to any extensions of time by mutual consent in
writing, and subject to the provisions of Section 7.1 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 DefaulY') 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 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.
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 terminate this Agreement or seek
mandamus, specific performance, injunctive or declaratory relief but not the right to
damages. 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 City and Developer
hereby waive, release and relinquish any other right or remedy otherwise available under
this Agreement or at law or equity.
Waiver; Remedies Cumulative. Failure by a party to insist upon the strict
performance of any of the provisions of this Agreement by the other party shall not
constitute waiver of such party's right to demand strict compliance by such other party in
the future. All waivers must be in writing to be effective or binding upon the waiving party,
and no waiver shall be implied from any omission by a party to take any action with
respect to such Event of Default. No express written waiver of any Event of Default shall
affect any other Event of Default, or cover any other period of time specified in such
express waiver.
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ORDINANCE NO. 115s '
Effect of Termination. Termination of this Agreement by one party due to
the other party's default, or as a result of the exercise of the right of termination provided
to the Developer under Section 8.2 hereof, shall not affect any right or duty emanating,
from any approvals, permits, certificates or other entitlements with respect to the Property
or the Project which were issued, approved or provided by the City prior to the date of
termination of this Agreement. If City terminates this Agreement because of Developer's
default, then City shall retain any and all benefits, incfuding money, land or improvements
conveyed to or received by the City prior to the date of termination of this Agreement,
subject to any reimbursement obligations of the City. If Developer terminates this
Agreement because of City's default, or as a result of the exercise of the right of
termination provided to the Developer under Section 8.2 hereof, then Developer shall be
entitled to all of the benefits arising out of, or approvals, permits, certificates or other
entitlements, on account of, any Exactions paid, given or dedicated to, or received by,
City prior to the date of termination of this Agreement. Except as otherwise provided in
this Section 8.4, all of the rights, duties and obligations of the parties hereunder shall
otherwise cease as of the date of the termination of this Agreement.
If this Agreement is terminated pursuant to any provision hereof, then the Ciry
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.
Third Party Actions. Any court action or proceeding brought by any third
party to challenge this Agreement or any permit or approval required from Ciry or any
other governmental entity for development or construction of all or any portion of the
Project, whether or not Developer is a party defendant to or real party defendant in
interest in such action or proceeding, shall constitute a permitted delay under Section 7.1.
Encumbrances on Propertv.
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 Ciry 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.
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
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ORDINANCE NO. 1158 '
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.
Mortgaaee Not Obliqated. Notwithstanding the provisions of Section 9.2, no
Mortgagee will have any obligation or duty under this Agreement to perform the
obligations of Developer or other affirmative covenants of Developer hereunder, or to
guarantee such performance, except that to the extent that any covenant to be performed
by Developer is a condition to the performance of a covenant by City, the performance
thereof shall continue to be a condition precedent to City's performance hereunder.
Estoqpe{ Certificates. Either party may, at any time, and from time to time,
deliver written notice to the other party requesting such party to certify in writing that, to
the knowledge of the certifying party, (i) this Agreement is in full force and effect and a
binding obligation of the parties, (ii) this Agreement has not been amended or modified, or
if so amended or modified, identifying such amendments or modifications, and (iii) the
requesting party is not in default in the performance of its obligations under this
Agreement, or if in default, describing therein the nature and amount of any such defaults.
A party receiving a request hereunder shall execute and return such certificate within
thirry (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.
Transfers and Assianments: Effect of Agreement on Title.
Riqhts and Interests Appurtenant. The rights and interests conveyed as
provided herein to Developer benefit and are appurtenant to the Property. Developer has
the right to sell, assign and transfer any and all of its rights and interests hereunder and to
delegate and assign any and all of its duties and obligations hereunder. Such rights and
interests hereunder may not be sold, transferred or assigned and such duties and
obligations may not be delegated or assigned except in compliance with the following
conditions:
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.
Covenants Run with Land.
All of the provisions, agreements, rights, powers, standards, terms,
covenants and obligations contained in this Agreement shall be binding upon the
parties and their respective heirs, successors (by merger, consolidation, or otherwise)
and assigns, devisees, lessees, and all other persons acquiring any rights or interests in
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ORDINANCE NO. 1158 '
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;
All of the provisions of this Agreement shall be enforceable as
equitable servitudes and constitute covenants running with the land pursuant to
applicable law;
Each covenant to do or refrain from doing some act on the
Property hereunder (A) is for the benefit of and is a burden upon every portion of the
Property, (B) runs with such lands, and (C) is binding upon each party and each
successive owner during its ownership of the Property or any portions thereof, and shall
benefit each party and its lands hereunder, and each such other person or entity
succeeding to an interest in such lands�
Notices. Any notice to either party shall be in writing and given by delivering the
same to such party in person or by sending the same by registered or certified mail,
return receipt requested, with postage prepaid, to the following addresses:
If to City:
City Clerk of the City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
If to Developer:
Larkspur Associates LLC
73626 Highway 111
Palm Desert, CA 92260
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. A{I notices under this
Agreement shall be deemed given, received, made or communicated on the date
personal delivery is affected or, if mailed, on the delivery date or attempted delivery
date shown on the return receipt.
Indemnification.
Develoqer's Oblipation. Developer will defend, indemnify and hold the City
and its elected officials, officers and employee 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 claims) which results from
(i) any obligation which arises from the development of the Property including, without
limitation, obligations for the payment of money for material and labor; (ii) any failure on
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ORDINANCE NO. 115s '
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.
12.2 Environmental Assurances. Developer shall indemnify and hold
the city, its officers, agents and employees free and harmless from any liability deriving
from the City's execution or performance of this Agreement, based or asserted, upon
any act or omission of Developer, its officers, agents, employees, contractors,
subcontractors and independent contractors for any violation of any federal, state or
local law, ordinance or regulation relating to hazardous or toxic materials, industrial
hygiene, or environmental conditions created by Developer or its officers, agents or
employees, contractors, subcontractors and independent contractors after the Effective
Date on, under which the Property, including, but not limited to soil and groundwater
conditions, and Developer shall defend, at its expense, including attorneys fees, the
City its officers, agents and employees in any action based or asserted upon any such
alleged act or omission. The City may in its discretion participate in the defense of any
such action. The provisions of this Section shall survive the termination or expiration of
this Agreement.
Miscellaneous
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.
Consents. 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 shaN 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 law for consent, that party shall then be deemed to have given its consent. If
a party shall disapprove, the reasons therefor shall be stated in reasonable detail in
writing. This Section does not apply to development approvals by the City.
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.
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ORDINANCE NO. 1158 '
Severabilitv. If any term, provision covenant or condition of this Agreement
shall be determined invalid, void or unenforceable by judgment or court order, the
remainder of this Agreement shall remain in full force and effect, unless enforcement of
this Agreement as so invalidated would be unreasonable or grossly inequitable under all
the relevant circumstances or would frustrate the purposes of this Agreement.
Exhibits. The following Exhibits, to which reference is made herein, are
deemed incorporated into this Agreement in their entirety by reference thereto:
Exhibit A Description of Project
Exhibit B Legal Description of the Property
Entire Aareement. 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, warranties or
representations are superseded in total by this Agreement and Exhibits hereto.
Governing Law; Construction of Agreement. This Agreement, and the
rights and obligations of the parties, shall be governed by and interpreted in accordance
with the laws of the state of California. The provisions of this Agreement and the Exhibits
hereto shall be construed as a whole according to their common meaning and not strictly
for or against any party and consistent with the provisions hereof, in order to achieve the
objectives and purposes of the parties hereunder. The captions preceding the text of
each Section, subsection and the Table of Contents hereof are included only for
convenience of reference and shall be disregarded in the construction and interpretation
of this Agreement. Wherever required by the context, the singular shall include the plural
and vice versa, and the masculine gender shall include the feminine or neuter genders, or
vice versa.
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.
Time. Time is of the essence of this Agreement and of each and every
term and condition hereof.
Prevailinp Partv's Attornev's Fees and Costs. If any party to this Agreement
shall fail to perform any of its obligations hereunder, or if a dispute arises with respect to
the meaning or interpretation of any provision hereof or the performance of the
obligations of any party hereto, the defaulting party or the party not prevailing in such
dispute, as 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. Notwithstanding the foregoing, City shall not be required
to pay any costs or expenses (including without limitation, reasonable attorneys' fees and
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ORDINANCE NO. 1158 '
expenses) which Developer may incur in respect of any hearing held pursuant to Section
7 hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date and year first above written.
DEVELOPER:
LARKSPUR ASSOCIATES, LLC, a
California limited liability company
By:
Name:
Title:
By:
Name:
Title:
CITY:
CITY OF PALM DESERT,
CALIFORNIA, a municipal corporation
organized and existing under the laws of
the State of California
By:
Mayor
Attest:
Rachelle Klausen, City Clerk
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ORDINANCE NO. �,15� �
State of California }
}
County of Riverside }
On , before me,
, a notary public, personally appeared
who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
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ORDINANCE NO. 1158 - -
State of California }
}
County of Riverside }
On , before me,
, a notary public, personally appeared
who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
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ORDINANCE NO. llss '
EXHIBIT "A"
DEVELOPMENT PLAN/PROJECT DESCRIPTION
The Development Plan and Project Description shall consist of the following:
1. The Developer shall develop, build and operate a Four-Star boutique hotel
with a maximum of 154 units/keys consisting of two fully integrated components: (1) a
three-story Four Star boutique hotel with one hundred six (106) hotel rooms; and (2) a
two-story condominium project consisting a maximum of sixteen (16) condominium hotel
suites each with three (3) bedroom lockout rooms (forty-eight keys maximum) as
specifically described the City's approvals of DA 07-02, PP 07-11 and CUP 07-14, and
the site plans approved therein.
2. The maximum number of keys for the Project shall be one hundred fifty four
(154). The Project also includes a two hundred three (203) underground parking spaces,
a restaurant area, gift shop, conference and meeting rooms, spa, and amenities including
a roof deck pool and bar, roof deck garden and roof deck patios on eleven (11) of the
sixteen (16) condominium hotel units.
3. Subsequent land use approvals in accordance with the terms of this
Development Agreement.
4. The Project is located at 45-400 Larkspur Lane, Palm Desert, California,
APNs 627-262-008 and 627-262-011.
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QRDINANCE NO. 115s - -
EXHIBIT "B"
LEGAL DESCRIPTION OF PROPERTY
ALL OF LOTS 6 AND 7, A PORTION OF LOT 1 AND A PORTION OF LOT 5 IN
BLOCK Q OF PALM DESERT UNIT NO. 1, AS PER MAP RECORDED IN BOOK 21,
PAGES 50 TO 54 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 7; THENCE ON THE
EASTERLY LINE OF SAID LOT 7 AND ITS SOUTHERLY PROLONGATION, SOUTH
0°08'35" EAST, 400.00 FEET TO THE NORTHERLY LINE OF SHADOW MOUNTAIN
DRIVE, 60.00 FEET WIDE; THENCE ON SAID NORTHERLY LINE, 500 SOUTH
89°44'35" WEST, 199.96 FEET TO THE BEGINNING OF A TANGENT CURVE
CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 20.00 FEET; THENCE
NORTHWESTERLY ON SAID CURVE THROUGH A CENTRAL ANGLE OF 90°06'S0",
A DISTANCE OF 31.46 FEET TO THE EASTERLY LINE OF LARKSPUR LANE, 60
FEET WIDE; THENCE TANGENT TO SA{D CURVE AND ON THE EASTERLY LINE,
NORTH 00°08'35" WEST, 379.96 FEET TO THE NORTHWEST CORNER OF SAID
LOT 7; THENCE ON THE NORTHERLY LINE OF SAID LOT 7, NORTH 8944'35"
EASTER, 62.11 FEET; THENCE LEAVING SAID NORTHERLY LINE, NORTH
66°04'55" EAST, 96.85 FEET; THENCE NORTH 73°15'25" EAST, 36.83 FEET;
THENCE SOUTH 13°49'41" EAST, 19.88 FEET; THENCE SOUTH 12°31'53" WEST,
30.76 FEET TO THE AFOREMENTIONED NORTHERLY LINE OF LOT 7; THENCE
ON SAID NORTHERLY LINE, NORTH 89°44'35" EAST, 36.01 FEE TO THE POINT OF
BEGINNING.
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