HomeMy WebLinkAboutOrdinance 1225A Development Agreement 09-507 45640 Highway 111 - PDH Partners LLC* Passed to second reading ar emended to insert the
following language in Sectioct_T— 3.2, Line 10, after the
word Project, "exclusive of payments for the acquisition
if interests in the project or the property)."
3-2 (Finerty, Benson NO) CITY OF PALM DESE
DEPARTMENT OF COMMUNITY DE
STAFF REPORT
REQUEST: ORDINANCE NO. 1225A — AN ORDINANCE OF THE CITY
COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA,
APPROVING A DEVELOPMENT AGREEMENT FOR AN 82-
ROOM HOTEL AND 59-UIT RESIDENTIAL CONDOMINIUM
PROJECT WITH ANCILLARY USES AD AMENITIES ON 4.97+/-
GROSS ACRES OF CURRENTLY VACANT LAND (4.27+/-
ACRES) AND TO -BE -VACATED FRONTAGE ROAD (0.7+/-
ACRES) LOCATED EAST OF HIGHWAY 74, WEST OF
OCOTILLO DRIVE, AND SOUTH OF THE IMAGO ART GALLERY
— SUBJECT PROPERTY ADDRESS KNOWN AS 45-640
HIGHWAY 74.
SUBMITTED BY: Tony Bagato, Principal Planner
APPLICANT: PDH Partners, LLC
9355 Wilshire Boulevard, Suite 200
Los Angeles, CA 90210
CASE NOS: DA/PP/CUP 09-507 and VTTM 36284
DATE: September 29, 2011
CONTENTS: Draft Ordinance No. 1225A, Exhibit A Development Agreement
Recommendation
That the City Council waive further reading and, pursuant to Section
25.37.050 of the Palm Desert Municipal Code, find that the Development
Agreement is consistent with the General Plan as described in the
Findings of the City Council Resolution No. 2011-72 and Pass Ordinance
No.1225A to second reading approving Development Agreement 09-507
as amended by staff.
Staff Report
Case Nos. DA/PP/CUP 09-507 and VTTM 36284
September 29, 2011
Page 2 of 4
Discussion
On September 8th, 2011, the City Council continued the second reading of the
Development Agreement for the hotel / condominium project known as Rosewood,
which was approved on August 25th, 2011.
After the City Council meeting, staff met with the applicant and discussed changes to
the Development Agreement to address the concerns of the public and of the City
Council. On September 21, 2011, a letter from a resident was submitted to the City
Council raising concerns about the Development Agreement. Staff and the Assistant
City Attorney reviewed the letter, and have addressed the comments in addition to the
proposed changes for adoption. A summary of the proposed changes are described
below:
• Term
• Street Vacation
• Initial Hotel Operator
• Transferability
Term:
Section 1.3.2. Term: The previous term requested by the applicant was ten (10) years.
The term is now described as an initial five (5) year term with four (4) extensions based
on City Manager approval for up to a total of ten (10) years of entitlement. The first
extension is for two (2) years based upon the developer demonstrating project -related
investments of $750,000 over a five (5) year period commencing with approval of the
Development Agreement. The applicant has stated that the total investment in
entitlements to date is $2.4 million. The additional $750,000 was requested to illustrate
that a significant investment of more than $3 million has been dedicated to project over
a five (5) year timeframe. The next extensions are three (3) successive one-year
extensions, if the developer demonstrates additional project related investments of
$300,000 each year.
Street Vacation:
Section 1.4.6. Subsequent Approvals: This section has been amended to included
language such that the future vacation of the frontage road will not be recorded until the
issuance of building permits for the project. Based upon the California Street and
Highway Code, vacation of the frontage road requires a separate public hearing that is
not part of the project approval. Tying the recording of the vacated frontage road to
issuance of building permits provides additional control for the City to make sure the
road is not released unless the project is being built as approved.
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Staff Report
Case Nos. DA/PP/CUP 09-507 and VTTM 36284
September 29, 2011
Page 3 of 4
Initial Hotel Operator:
Section 2.11.2 Initial Hotel Operator: In addition to listing "Luxury Hotel Standards", the
Development Agreement has been amended such that the hotel and condominiums will
be co -branded by the following potential 5-star hotel operators: Rosewood, Montage,
Mandarin Oriental, One & Only, Trump, St. Regis, Waldorf Astoria, Orient Express,
Auberge, Raffles, Setai, Peninsula, Aman, Banyan Tree, Park Hyatt, Four Seasons,
and Jumeriah. In addition, there is a provision that is similar to a mini -arbitration if there
is any additional hotel operator(s) that may qualify as a 5-star operator. This section
also includes three (3) hotel consultants to advise staff or the developer.
Staff researched the named hotels and found that the room rates are the same or
higher than the Rosewood room rates. Each one is considered a 5-star quality hotel
and would meet the intent of the approved project.
Transferability:
Section 8.1.1. Transferability: This section has been added to the Development
Agreement to make any transfer of the property transparent to the City. If the developer
seeks to market the property for sale, the City will be notified within 15 days of the
effective date of a listing agreement. In addition, the developer must provide updates at
least as often as every 45 days to the City Manager during any period in which the
developer is actively engaged in marking efforts. In the event the property is sold, this
section also requires the developer to provide the City Manager, for his/her review and
comment, the identity of the transferee, a summary of the transferee's development
and financial qualifications, and a copy of the proposed assignment and assumptions
between the developer and transferee at least 60 days prior to the close of any transfer
in ownership.
CEQA Findings:
In conformance with CEQA Guidelines Sections 15074 and 15162, and City guidelines to
implement CEQA, the City finds, on the basis of the whole record before it (including the
adopted Subsequent Mitigated Negative Declaration and comments received), that the
proposed changes to the project Development Agreement will not result in any
environmental changes that would require a subsequent Mitigated Negative Declaration.
Specifically, the City finds that there have been no substantial changes in the project
or circumstances under which the project is undertaken that would require major revisions
to the adopted Subsequent Mitigated Negative Declaration due to involvement of new
significant environmental effects, nor is there any new information that shows project
impacts not discussed in the adopted, any Subsequent Mitigated Negative Declaration
new significant effects, or the need for new mitigation measures.
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Staff Report
Case Nos. DA/PP/CUP 09-507 and VTTM 36284
September 29, 2011
Page 4 of 4
In the City's role as the lead agency under CEQA, the City Council finds that the Adopted
Mitigated Negative Declaration and Initial Study contain a complete and accurate
reporting of the environmental impacts associated with the Project Development
Agreement. The City further finds that there is no substantial evidence in the record
supporting a fair argument that the proposed modifications to the Project Development
Agreement may result in significant environmental impacts, and that any comments
received regarding the Development Agreement and adopted environmental analysis
have been examined and determined to not modify the conclusions of the Mitigated
Negative Declaration or the City Council.
Conclusion:
The recommended changes incorporated in the Draft Development Agreement will
provide the City with more control and assurance over the term of the development, street
vacation, initial hotel operator and transferability of the project.
Submitted by:
Tony Bagato
Principal Planner
04
Johp(q. Wohlmuth, City Manager
Department Head:
Lauri Aylaian
Director of Community Develoent
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ORDINANCE NO. 1225A
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT
FOR AN 82-ROOM HOTEL AND 59-UIT RESIDENTIAL CONDOMINIUM
PROJECT WITH ANCILLARY USES AD AMENITIES ON 4.97+/- GROSS
ACRES OF CURRENTLY VACANT LAND (4.27+/- ACRES) AND TO -BE -
VACATED FRONTAGE ROAD (0.7+/- ACRES) LOCATED EAST OF
HIGHWAY 74, WEST OF OCOTILLO DRIVE, AND SOUTH OF THE IMAGO
ART GALLERY — SUBJECT PROPERTY ADDRESS KNOWN AS 45-640
HIGHWAY 74.
CASE NO. DA 09-507
WHEREAS, the Planning Commission by its Resolution No. 2554 has
recommended approval of Case No. DA 09-507; and
WHEREAS, at public hearing(s) held on this 14th day of July, 2011, and on this
day 25th of August, 2011, the City Council heard and considered all testimony and
arguments of all interested persons; and
WHEREAS, after the public hearing was closed, at seconding reading on the 8th
day of September, 2011, the City Council requested changes to the Development
Agreement and on this day of , 2011, the Ordinance No.
1225A was introduced for first reading based on significant changes to the benefit of the
City; and
WHEREAS, the City Council finds that the Development Agreement is consistent
with the General Plan GENERAL LAND USE GOALS, POLICIES, AND PROGRAMS Goal
2, Goal 3, and Policy 3 as described in the Findings of the City Council Resolution No.
2011-72; and
WHEREAS, pursuant to the California Environmental Quality Act ("CEQA") (Pub.
Res. Code, § 21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs, tit. 14 §
15000 et seq.), the City is the lead agency for the proposed Project; and
WHEREAS, on the basis of the Initial Study, which concluded that the Project will
not have significant impacts on the environment with mitigation, the City determined that a
Mitigated Negative Declaration ("MND") should be prepared for the Project, and an MND
was prepared pursuant to CEQA and the State CEQA Guidelines; and
WHEREAS, the City distributed a Notice to Intent to Adopt a Mitigated Negative
Declaration on May 5, 2011; and
WHEREAS, In the City's role as the lead agency under CEQA, the City Council
finds that the Adopted Mitigated Negative Declaration and Initial Study contain a complete
and accurate reporting of the environmental impacts associated with the Project
Development Agreement.
NOW, THEREFORE the City Council of the City of Palm Desert, California, DOES
HEREBY ORDAIN, AS FOLLOWS:
SECTION 1: That the Development Agreement 09-507, Exhibit "A" attached
hereto, by Ordinance No. 1225A 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 thirty (30) days
after its adoption.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert
City Council held on this day of 2011, by the following vote,
to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
RACHELLE KLASSEN, City Clerk
City of Palm Desert, California
JEAN M. BENSON, Mayor
2
RECORDING REQUESTED BY AND FOR RECORDER'S USE ONLY
WHEN RECORDED MAIL TO:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
Attn: City Clerk
Record for the Benefit of
the City of Palm Desert
Pursuant to Government Code Section 6103
(Space Above This Line Reserved for Recorder's Use Only)
DEVELOPMENT AGREEMENT 09-507
ORDINANCE NO. 1225A
BY AND BETWEEN
THE CITY OF PALM DESERT
..s
EP-MONTEREY, LLC
ORDINANCE NO. 1225A
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Development Agreement" or "Agreement") is
made and entered into as of , 2011 ("Agreement Date") by and between the CITY OF
PALM DESERT, a municipal corporation organized and existing under the laws of the State of
California ("C�"), and EP-MONTEREY, LLC, a California limited liability company
("Developer"). City and Developer are referred to individually as "Party," and collectively as the
"Parties."
RECITALS
This Agreement is entered upon the basis of the following facts, understandings and
intentions of City and Developer.
A. The lack of certainty in the approval of development projects can result in a
waste of resources, escalate the cost of housing and other development, and discourage
investment in and commitment to comprehensive planning that would make maximum efficient
utilization of resources at the least economic cost to the public.
B. In order to strengthen the public planning process, encourage private
participation in comprehensive planning and reduce the economic costs and risk of
development, the Legislature of the State of California enacted Section 65864 et seq. of the
Government Code (the "Development Agreement Legislation"), which authorizes City and a
developer having a legal or equitable interest in real property to enter into a binding development
agreement, establishing certain development rights in the property.
C. Pursuant to Government Code Section 65865, City has adopted rules and
regulations establishing procedures and requirements for consideration of development
agreements, which procedures and requirements are contained in City Municipal Code Chapter
25.37 (the "City Development Agreement Regulations"). This Development Agreement has
been processed in accordance with the City Development Agreement Regulations.
D. Developer has a legal interest in certain real property consisting of approximately
4.97 acres located at 45640 Highway 74, as more particularly described in Exhibit A attached
hereto, and as depicted in Exhibit B attached hereto (the "Property").
E. Developer intends to develop the Property as a condominium, hotel, and retail
project (defined more fully in Article 2 below as the "Project").
F. The complexity, magnitude and long-range nature of the Project would be difficult
for Developer to undertake if City had not determined, through this Development Agreement, to
inject a sufficient degree of certainty in the land use regulatory process to justify the substantial
financial investment associated with development of the Project. As a result of the execution of
this Development Agreement, both Parties can be assured that the Project can proceed without
disruption caused by a change in City planning and development policies and requirements,
which assurance will thereby reduce the actual or perceived risk of planning, financing and
proceeding with construction of the Project.
G. City is desirous of advancing the socioeconomic interests of City and its
residents by promoting the productive use of property and encouraging quality development and
economic growth, thereby enhancing employment opportunities for residents and expanding
City's property tax base. City is also desirous of gaining the public benefits associated with the
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ORDINANCE NO. 1225A
Project, which are in addition to those dedications, conditions and exactions required by laws or
regulations and as set forth in this Development Agreement, and which advance the planning
objectives of, and provide benefits to, City.
H. City has determined that by entering into this Development Agreement: (1) City
will ensure the productive use of property and foster orderly growth and quality development in
City; (2) development will proceed in accordance with the goals and policies set forth in the City
of Palm Desert General Plan (the "General Plan") and will implement City's stated General Plan
policies; (3) City will receive substantially increased property tax and other tax revenues; and
(4) City will benefit from increased employment opportunities for residents of City created by the
Project.
I. Developer has applied for, and City has granted, the Project Approvals (as
defined in Section 1.4) in order to protect the interests of its citizens in the quality of their
community and environment. As part of the Project Approvals, City has undertaken, pursuant to
the California Environmental Quality Act (Public Resources Code Section 21000 et seq.,
hereinafter "CEQA"), the required analysis of the environmental effects that would be caused by
the Project and has determined those feasible mitigation measures which will eliminate, or
reduce to an acceptable level; the adverse environmental impacts of the Project. The
environmental effects of the proposed development of the Property were originally analyzed by
the MND (as defined in Section 1.4.1) approved by City on August 25, 2011, in connection with
the Project. City has also adopted a mitigation monitoring and reporting program (the "MI'l
to ensure that those mitigation measures incorporated as part of, or imposed on, the Project are
enforced and completed. Those mitigation measures for which Developer is responsible are
incorporated into, and required by, the Project Approvals.
J. In addition to the Project Approvals, the Project may require various additional
land use and construction approvals, termed Subsequent Approvals (as defined in
Section 1.4.6), in connection with development of the Project.
K. City has given the required notice of its intention to adopt this Development
Agreement and has conducted public hearings thereon pursuant to Government Code
Section 65867. As required by Government Code Section 65867.5, City has found that the
provisions of this Development Agreement and its purposes are consistent with the goals,
policies, standards and land use designations specified in City's General Plan.
L. On June 21, 2011, the City of Palm Desert Planning Commission ("Planning
Commission"), the initial hearing body for purposes of development agreement review,
recommended approval of this Development Agreement pursuant to Resolution No. 2254. On
2011, the City of Palm Desert City Council ("City Council") adopted its Ordinance No.
1225A approving this Development Agreement and authorizing its execution.
M. For the reasons recited herein, City and Developer have determined that the
Project is a development for which this Development Agreement is appropriate. This
Development Agreement will eliminate uncertainty regarding Project Approvals (including the
Subsequent Approvals), thereby encouraging planning for, investment in and commitment to use
and development of the Property. Continued use and development of the Property will in turn
provide substantial housing, employment, and property and sales tax benefits as well as other
public benefits to City, and contribute to the provision of needed infrastructure for area growth,
thereby achieving the goals and purposes for which the Development Agreement Legislation
was enacted.
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ORDINANCE NO. 1225A
N. The terms and conditions of this Development Agreement have undergone
extensive review by City staff, its Planning Commission and its City Council at publicly noticed
meetings and have been found to be fair, just and reasonable and in conformance with the City
General Plan, the Development Agreement Legislation, and the City Development Agreement
Regulations and, further, the City Council finds that the economic interests of City's residents
and the public health, safety and welfare will be best served by entering into this Development
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth
herein, City and Developer agree as follows:
ARTICLE 1.
GENERAL PROVISIONS
1.1. Parties.
1.1.1. City. City is a California municipal corporation, with offices located at 73-
510 Fred Waring Drive, Palm Desert, CA 92260. "City," as used in this Development
Agreement, shall include City and any assignee of or successor to its rights, powers and
responsibilities.
1.1.2. Developer. Developer shall refer initially to EP-Monterey LLC, a
California limited liability company. "Developer," as used in this Development Agreement, shall
also include any permitted assignee or successor -in -interest as herein provided.
1.2. Property Subject to this Development Agreement.
1.2.1. Property. All of the Property, as described in Exhibit A and shown in
Exhibit B, shall be subject to this Development Agreement.
1.3. Term.
1.3.1. Effective Date. This Development Agreement shall become effective
upon the effectiveness of the ordinance approving this Agreement (the "Effective Date").
1.3.2. Term of the Agreement. The term of this Development Agreement shall
commence upon the Effective Date and shall continue in full force and effect for a period of
five (5) years (the "Initial Period"), unless extended or earlier terminated as provided in this
Agreement (including, without limitation, pursuant to Section 10.2). The Initial Period shall be
extended automatically for a period of two (2) years (the "First Extension") upon Developer
demonstrating to the reasonable satisfaction of the City Manager that Developer has, between
the Effective Date and the expiration of the Initial Period, expended sums in excess of Seven
Hundred Fifty Thousand Dollars ($750,000) on land acquisition, land carry or financing costs,
architectural or engineering costs, or other costs reasonably related to the development of the
Project (collectively, "Project Costs"). Such sum is intended to be in addition to the project
related costs that Developer has incurred prior to the Effective Date, which Developer has
represented exceed Two Million Four Hundred Thousand Dollars. The First Extension may be
extended upon approval by the City Manager, not to be unreasonably withheld, delayed or
conditioned, for three (3) successive additional periods of one (1) year each (each an
"Additional Extension" and collectively, the "Additional Extensions") upon Developer
demonstrating to the reasonable satisfaction of the City Manager that Developer has expended
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additional sums in excess of Three Hundred Thousand Dollars ($300,000) for each Additional
Extension. If the City Manager declines to grant an Additional Extension, the City Manger shall
set forth the reasons in writing as to why the City Manger so acted. Collectively, the Initial
Period, the First Extension, and the Additional Extensions are referred to herein as the "Term."
The Term has been established by the Parties as a reasonable estimate of the time required to
develop the Project and obtain the public benefits associated with the Project.
1.4. Proiect Approvals. Developer has applied for and obtained various
environmental and land use approvals and entitlements related to the development of the
Project, as described below. For purposes of this Development Agreement, the term "Proiect
Approvals" shall mean all of the approvals, plans and agreements described in this Section 1.4.
1.4.1. MND The Mitigated Negative Declaration was approved with findings by
the City Council on August 25, 2011 (the "MND").
1.4.2. Vesting Tentative Tract Map. On August 25, 2011, following Planning
Commission review and recommendation, and after a duly noticed public hearing, the City
Council approved Vesting Tentative Tract Map No. 36284.
1.4.3. Development Agreement. On , 2011, following Planning
Commission review and recommendation, and after a duly noticed public hearing, the City
Council, by Ordinance No. 1225A, approved this Development Agreement and authorized its
execution. This Development Agreement also authorizes exceptions to Special Setbacks under
City Municipal Code Section 25.30.290 and Off -Street Parking under City Municipal Code
Section 25.58, as set forth and depicted more fully in the Project Approvals.
Plan 09-507. 1.4.4. Precise Plan. On August 25, 2011, the City Council approved Precise
1.4.5. Conditional Use Permit. On August 25, 2011, the City Council approved
Conditional Use Permit 09-507.
1.4.6. Subsequent Approvals. In order to develop the Project as contemplated
in this Development Agreement, the Project may require land use approvals, entitlements,
development permits, and use and/or construction approvals other than those listed in
Sections 1.4.1 through 1.4.5, above, which may include, without limitation: development plans,
amendments to applicable redevelopment plans, conditional use permits, variances, subdivision
approvals, street abandonments, design review approvals, demolition permits, improvement
agreements, infrastructure agreements, grading permits, building permits, right-of-way permits,
lot line adjustments, site plans, certificates of occupancy, parcel maps, lot splits, landscaping
plans, master sign programs, transportation demand management programs, encroachment
permits, and amendments thereto and to the Project Approvals (collectively, "Subsequent
Approvals"). At such time as any Subsequent Approval applicable to the Property is approved
by the City, then such Subsequent Approval shall become subject to all the terms and
conditions of this Development Agreement applicable to Project Approvals and shall be treated
as a "Project Approval' under this Development Agreement. The Project includes as a
Subsequent Approval the vacation of the frontage road adjacent to the Property; the Parties
acknowledge and agree that while the vacation hearing is anticipated to occur well in advance
of the issuance of building permits for the Project, the resolution of vacation shall include a
condition that the vacation shall not become effective until the issuance of building permits for
the Project.
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ORDINANCE NO. 1225A
ARTICLE 2.
DEVELOPMENT OF THE PROPERTY
2.1. Project Development. Developer shall have a vested right to develop the Project
on the Property, in accordance with the Vested Elements (defined in Section 2.2).
2.2. Vested Elements. The permitted uses of the Property, the maximum density
and/or number of residential units, the intensity of use, the maximum height and size of the
proposed buildings, provisions for reservation or dedication of land for public purposes, the
conditions, terms, restrictions, and requirements for subsequent discretionary actions, the
provisions for public improvements and financing of public improvements, and the other terms
and conditions of development applicable to the Property are as set forth in:
a. The General Plan of City on the Agreement Date, including the General
Plan Amendments ("Applicable General Plan");
b. The Zoning Ordinance of City on the Agreement Date ("Applicable Zoning
Ordinance");
C. Other rules, regulations, ordinances and policies of City applicable to
development of the Property on the Agreement Date (collectively, together with the Applicable
General Plan and the Applicable Zoning Ordinance, the "Applicable Rules"); and
d. The Project Approvals, as they may be reasonably amended from time to
time upon an amendment in accordance with Section 5.4.2 of this Agreement, are hereby
vested in Developer, subject to, and as provided in, the provisions of this Development
Agreement (the "Vested Elements"). City hereby agrees to be bound with respect to the Vested
Elements, subject to Developer's compliance with the terms and conditions of this Development
Agreement. The intent of this Section 2.2 is to cause all development rights which may be
required to develop the Project in accordance with the Project Approvals to be deemed to be
"vested rights" as that term is defined under California law applicable to the development of land
or property and the right of a public entity to regulate or control such development of land or
property.
2.3. Development Construction Completion.
2.3.1. Timing of Development: Pardee Finding. Because the California
Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that
the failure of the parties therein to provide for the timing of development resulted in a later -
adopted initiative restricting the timing of development to prevail over the parties' agreement, it
is the Parties' intent to cure that deficiency by acknowledging and providing that, subject to any
infrastructure phasing requirements that may be required by the Project Approvals, Developer
shall have the right (without obligation) to develop the Property in such order and at such rate
and at such times as Developer deems appropriate within the exercise of its reasonable
subjective business judgment.
2.3.2. Moratorium. No City -imposed moratorium or other limitation (whether
relating to the rate, timing or sequencing of the development or construction of all or any part of
the Property, whether imposed by ordinance, initiative, resolution, policy, order or otherwise,
and whether enacted by the City Council, an agency of City, the electorate, or otherwise)
affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building
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permits, occupancy certificates or other entitlements, issued or granted within City, or portions
of City, shall apply to the Property to the extent such moratorium or other limitation is in conflict
with this Agreement; provided, however, the provisions of this Section shall not affect City's
compliance with moratoria or other limitations mandated by other governmental agencies or
court -imposed moratoria or other limitations.
2.3.3. No Other Requirements. Nothing in this Development Agreement is
intended to create any affirmative development obligations to develop the Project at all or in any
particular order or manner, or liability in Developer under this Development Agreement if the
development fails to occur.
2.4. Effect of Project Approvals and Applicable Rules; Future Rules.
2.4.1. Governing Rules. Except as otherwise explicitly provided in this
Development Agreement, development of the Property shall be subject solely to (a) the Project
Approvals, and (b) the Applicable Rules.
2.4.2. Changes in Applicable Rules; Future Rules.
a. To the extent any changes in the Applicable Rules, or any
provisions of future General Plans, Specific Plans, Zoning Ordinances or other rules,
regulations, ordinances or policies (whether adopted by means of ordinance, initiative,
referenda, resolution, policy, order, moratorium, or other means, adopted by the City Council,
Planning Commission, or any other board, commission, agency, committee, or department of
City, or any officer or employee thereof, or by the electorate) of City (collectively, "Future Rules")
are not in conflict with the Vested Elements, such Future Rules shall be applicable to the
Project. For purposes of this Section 2.4.2(a), the word "conflict" means Future Rules that
would (i) alter the Vested Elements, or (ii) frustrate in a more than insignificant way the intent or
purpose of the Vested Elements in relation to the Project, or (iii) materially increase the cost of
performance of, or preclude compliance with, any provision of the Vested Elements, or (iv) delay
in a more than insignificant way development of the Project, or (v) limit or restrict the availability
of public utilities, services, infrastructure of facilities to the Project, or (vi) impose limits or
controls in the rate, timing, phasing or sequencing of development of the Project, or
(vii) increase the permitted "Impact Fees" (as defined in Section 2.6.3) or add new Impact Fees,
except as provided in Section 2.6.3, or (viii) limit or control the location of buildings, structures,
grading, or other improvements of the Project in a manner that is inconsistent with or more
restrictive than the limitations included in the Project Approvals; or (ix) apply to the Project any
Future Rules otherwise allowed by this Agreement that is not uniformly applied on a City-wide
basis to all substantially similar types of development projects and project sites; or (x) require
the issuance of additional permits or approvals by the City other than those required by
Applicable Rules; (xi) establish, enact, increase, or impose against the Project or Property any
fees, taxes (including without limitation general, special and excise taxes), assessments, liens
or other monetary obligations (including generating demolition permit fees, encroachment permit
and grading permit fees) other than those specifically permitted by this Agreement or other
connection fees imposed by third party utilities; (xii) impose against the Project any condition,
dedication or other exaction not specifically authorized by Applicable Rules; (xiii) limit or
extending the time for the processing or procuring of applications and approvals of Subsequent
Approvals; or (xiv) in any way materially adversely affect the developability, financability, or any
other critical aspect of the Project. To the extent that Future Rules conflict with the Vested
Elements, they shall not apply to the Project and the Vested Elements shall apply to the Project,
except as provided in Section 2.4.2(c) herein. The City shall provide a minimum of five (5) days
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advance written notice to Developer of any meeting agenda at which a proposed Future Rule
that could affect or be applied to the Property will be discussed.
b. To the maximum extent permitted by law, City shall prevent any
Future Rules from invalidating or prevailing over all or any part of this Agreement, and City shall
cooperate with Developer and shall undertake such actions as may be necessary to ensure this
Agreement remains in full force and effect. City shall not support, adopt or enact any Future
Rule, or take any other action which would violate the express provisions or spirit and intent of
this Agreement or the Project Approvals. Developer reserves the right to challenge in court any
Future Rule that would conflict with the Vested Elements or this Agreement or reduce the
development rights provided by this Agreement.
C. A Future Rule that conflicts with the Vested Elements shall
nonetheless apply to the Property if, and only if (i) consented to in writing by Developer; (ii) it is
determined by City and evidenced through findings adopted by the City Council that the change
or provision is reasonably required in order to prevent a condition dangerous to the public health
or safety; (iii) required by changes in State or Federal law as set forth in Section 2.4.3 below;
(iv) it consists of changes in, or new fees permitted by, Section 2.6; (v) it consists of revisions to,
or new Building Regulations (as defined in Section 2.11) permitted by, Section 2.11; or (vi) it is
otherwise expressly permitted by this Development Agreement.
d. Prior to the Effective Date, the Parties shall have prepared two (2)
sets of the Project Approvals and Applicable Rules, one (1) set for City and one (1) set for
Developer. If it becomes necessary in the future to refer to any of the Project Approvals or
Applicable Rules, the contents of these sets are presumed for all purposes of this Development
Agreement, absent clear clerical error or similar mistake, to constitute the Project Approvals and
Applicable Rules.
2.4.3. Changes in State or Federal Laws. In accordance with California
Government Code Section 65869.5, in the event that state or federal laws or regulations
enacted after the Effective Date ("State or Federal Law") prevent or preclude compliance with
one or more provisions of this Agreement, the Parties shall meet in good faith to determine the
feasibility of any modification or suspension of this Agreement that may be necessary to comply
with such State or Federal Law and to determine the effect such modification or suspension
would have on the purposes and intent of this Agreement and the Vested Elements. City shall
provide written notice to Developer of any proposed or enacted State or Federal Law that could
affect this Agreement within five (5) business days of the City learning of such proposed or
enacted State or Federal Law. Following the meeting between the Parties, the provisions of this
Development Agreement may, to the extent feasible, and upon mutual agreement of the Parties,
be modified or suspended, but only to the minimum extent necessary to comply with such State
or Federal Law. In such an event, this Development Agreement together with any required
modifications shall continue in full force and effect. In the event that the State or Federal Law
operates to frustrate irremediably and materially the vesting of development rights to the Project
as set forth in this Agreement, Developer may terminate this Agreement. In addition, Developer
shall have the right to challenge (by any method, including litigation) the State or Federal Law
preventing compliance with, or performance of, the terms of this Development Agreement and,
in the event that such challenge is successful, this Development Agreement shall remain
unmodified and in full force and effect, unless the Parties mutually agree otherwise, except that
if the Term of this Development Agreement would otherwise terminate during the period of any
such challenge and Developer has not commenced with the development of the Project in
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accordance with this Development Agreement as a result of such challenge, the Term shall be
extended for the period of any such challenge.
2.4.4. Conflicts. In the event of an irreconcilable conflict between the provisions
of the Project Approvals (on the one hand) and the Applicable Rules (on the other hand), the
provisions of the Project Approvals shall apply. In the event of a conflict between the Project
Approvals (on the one hand) and this Development Agreement, in particular, (on the other
hand), the provisions of Project Approvals shall control, unless expressly modified by this
Development Agreement.
2.5. Processing Subsequent Approvals.
2.5.1. Processing of Subsequent Approvals. City will act reasonably to accept,
make completeness determinations, and process, promptly and diligently, to completion all
applications for Subsequent Approvals for the Project, in accordance with the terms of this
Development Agreement, including, but not limited to, the following:
a. the processing of applications for and issuance of all discretionary
approvals requiring the exercise of judgment and deliberation by City, including without
limitation, the Subsequent Approvals;
b. the holding of any required public hearings;
C. the processing of applications for and issuing of all ministerial
approvals requiring the determination of conformance with the Applicable Rules, including,
without limitation, site plans, development plans, land use plans, grading plans, improvement
plans, building plans and specifications, and ministerial issuance of one or more final maps,
zoning clearances, demolition permits, grading permits, improvement permits, wall permits,
building permits, lot line adjustments, encroachment permits, temporary use permits, sign
permits, certificates of use and occupancy and approvals and entitlements and related matters
as may be necessary for the completion of the development of the Property ("Ministerial
Approvals").
To the extent that additional information is required from Developer to process an application for
a Subsequent Approval, City shall notify Developer in writing of all such additional materials
within ten (10) day of Developer's initial submission, and City shall process to completion all
such applications with reasonable diligence. In the event that Developer submits multiple
applications for Subsequent Approvals concurrently, the City shall consider all such requests
concurrently unless otherwise requested by Developer.
2.5.2. Scope of Review of Subsequent Approvals. By approving the Project
Approvals, City has made a final policy decision that the Project is in the best interests of the
public health, safety and general welfare. Accordingly, City shall not use its authority in
considering any application for a discretionary Subsequent Approval to change the policy
decisions reflected by the Project Approvals or otherwise to prevent or delay development of the
Project as set forth in the Project Approvals. Instead, the Subsequent Approvals shall be
deemed to be tools to implement those final policy decisions. To the extent permitted by law,
the scope of the review of applications for Subsequent Approvals shall be limited to a review of
substantial conformity with the Vested Elements and the Applicable Rules (except as otherwise
provided by Section 2.4), and compliance with CEQA.
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2.6. Development Fees. Exactions: and Conditions.
2.6.1. General. All fees, exactions, dedications, reservations or other
impositions to which the Project would be subject, but for this Development Agreement, are
referred to in this Development Agreement either as "Processing Fees," (as defined in
Section 2.6.2) or "Impact Fees" (as defined in Section 2.6.3).
2.6.2. Processing Fees. "Processing Fees" mean fees charged on a citywide
basis to cover the cost of City review of applications for any permit or other review by City
departments. Applications for Subsequent Approvals for the Project shall be charged
Processing Fees to allow City to recover its actual and reasonable costs of processing
Developer's Subsequent Approvals with respect to the Project.
2.6.3. Impact Fees. "Impact Fees" means monetary fees, exactions or
impositions, other than taxes or assessments, whether established for or imposed upon the
Project individually or as part of a class of projects, that are imposed by City on the Project in
connection with any Project Approval for the Project for any purpose, including, without
limitation, defraying all or a portion of the cost of public services and/or facilities construction,
improvement, operation and maintenance attributable to the burden created by the Project. Any
fee, exaction or imposition imposed on the Project which is not a Processing Fee is an Impact
Fee. No Impact Fees shall be applicable to the Project except as provided in this Development
Agreement. City understands that long-term assurances by City concerning Impact Fees were
a material consideration for Developer agreeing to develop the Project, to pay the Impact Fees
set forth in Exhibit C of this Development Agreement and to provide the public benefits
associated with the Project.
a. For a period of five (5) years from the Effective Date (the "Fee
Limitation Period"), only the specific Impact Fees listed in Exhibit C shall apply to the Project,
except as otherwise explicitly permitted by this Section 2.6.3(a). During the Fee Limitation
Period, no change to an Impact Fee in Exhibit C (other than by the inflator, if any, permitted in
Exhibit C using the specific index identified herein) resulting in an increase in dollar amounts
charged to the Project that is adopted after the Agreement Date shall apply to the Project. If,
after the Agreement Date, City decreases the rate of any of its Impact Fees existing as of the
Agreement Date, Developer shall pay the reduced Impact Fee in effect at the time of payment.
No Impact Fee other than those listed in Exhibit C may be imposed on the Project unless it is a
fee which meets all of the following criteria: (i) the fee is imposed citywide equally on all new
projects, including without limitation on all new hotels, on a nondiscriminatory basis; (ii) the fee
is not used, directly or indirectly, for new or replacement transportation infrastructure, utility
infrastructure, park facilities or open space acquisition, educational facilities, housing, art or
police or fire facilities; (iii) the fee meets all nexus and rough proportionality tests and other legal
requirements; (iv) the fee is adopted by ordinance by the City pursuant to a nexus study which,
in addition to other legal requirements, calculates the fee on new development based on a
spread of the cost of the subject facility or facilities or to the entire population creating the need
for or benefiting from the facility, whether that population is existing or new due to the
development, and calculates the fee on new development based solely on the new
development's fair share of such cost spread; and (v) the fee is not of a type that would by
operation apply only to the Project and to no other projects located in the City. City
acknowledges that no new fee may impose on new development the fair share of a facility or
repair attributable to or benefiting the existing population, but City must instead charge such
costs to the existing population through other fiscal devices or find alternative funding sources
for such existing population's fair share.
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b. Any Impact Fees levied against or applied to the Project must be
consistent with the provisions of applicable California law, including the provisions of
Government Code Section 66000 et seq. ("AB 1600"). Developer retains all rights set forth in
California Government Code Section 66020. Nothing in this Development Agreement shall
diminish or eliminate any of Developer's rights set forth in such section.
2.6.4. Conditions of Subsequent Approvals.
a. In connection with any Subsequent Approvals, City shall have the
right to impose reasonable conditions including, without limitation, normal and customary
dedications for rights of way or easements for public access, utilities, water, sewers, and
drainage necessary for the Project; provided, however, such conditions and dedications shall
not be inconsistent with the Applicable Rules or Project Approvals, nor inconsistent with the
development of the Project as contemplated by this Agreement. Developer may protest any
conditions, dedications or fees while continuing to develop the Property.
b. No conditions imposed on Subsequent Approvals shall require
dedications or reservations for, or construction or funding of, public infrastructure or public
improvements beyond those already included in the MMRP. In addition, any and all conditions
imposed on Subsequent Approvals for the Project must comply with Sections 2.6.2 and 2.6.3
herein.
2.7. Public Services. City hereby acknowledges that it will have, and shall reserve,
sufficient capacity in its infrastructure and services, including, without limitation, traffic
circulation, storm drainage, and flood control, as and when necessary to serve the Project as it
is developed. To the extent that City renders such services or provides such utilities, City
hereby agrees that it will serve the Project and that there shall be no restriction on hookups or
service for the Project except for reasons beyond City's control.
2.8. Taxes and Assessments.
2.8.1. Assessment Districts or Other Funding Mechanisms. City is unaware of
any pending efforts to initiate, or consider applications for new or increased assessments
covering the Property, or any portion thereof. City understands that long-term assurances by
City concerning fees, taxes and assessments were a material consideration for Developer
agreeing to process the siting of the Project in its present location and to pay long-term fees,
taxes and assessments described in this Agreement. City shall retain the ability to initiate or
process applications for the formation of new assessment districts covering all or any portion of
the Property. Subject to the provisions of Section 2.6 above, City may impose new taxes and
assessments, other than Impact Fees, on the Property in accordance with the then -applicable
laws, but only if such taxes or assessments are adopted by or after City-wide voter or City-wide
landowner approval of such taxes or assessments and are equally imposed on other land and
projects of the same category within the jurisdiction of City, and, as to assessments, only if the
impact thereof does not fall disproportionately on the Property vis-a-vis the other land and
projects within City's jurisdiction or the portion of City's jurisdiction subject to the assessment.
Nothing herein shall be construed so as to limit Developer from exercising whatever rights it
may otherwise have in connection with protesting or otherwise objecting to the imposition of
taxes or assessments on the Property. In the event as assessment district is lawfully formed to
provide funding for services, improvements, maintenance or facilities which are substantially the
same as those services, improvements, maintenance or facilities being funded by the fees or
assessments to be paid by Developer under the Project Approvals or this Agreement, such fees
or assessments to be paid by Developer shall be subject to reduction/credit in an amount equal
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to Developer's new or increased assessment under the assessment district. Alternatively, the
new assessment district shall reduce/credit Developer's new assessment in an amount equal to
such fees or assessments to be paid by Developer under the Project Approvals or this
Agreement.
2.9. Life of Project Approvals and Subdivision Maps.
2.9.1. Life of Subdivision Maps. The terms of any subdivision or parcel map for
the Property, any amendment or reconfiguration thereto, or any subsequent tentative map, shall
be automatically extended such that such tentative maps remain in effect for a period of time
coterminous with the term of this Development Agreement.
2.9.2. Life of Other Project Approvals. The term of all other Project Approvals
shall be automatically extended such that these Project Approvals remain in effect for a period
of time at least as long as the term of this Development Agreement.
2.9.3. Termination of Agreement. In the event that this Agreement is terminated
prior to the expiration of the Term of the Agreement, the term of any subdivision or parcel map
or any other Project Approval and the vesting period for any final subdivision map approved as
a Project Approval shall be the term otherwise applicable to the approval, which shall
commence to run on the date that the Project Approval was granted or as otherwise provided by
applicable law.
2.10. Further CEQA Environmental Review. The MND, which has been approved by
City as being in compliance with CEQA, addresses the potential environmental impacts of the
entire Project as it is described in the Project Approvals. Nothing in this Development
Agreement shall be construed to require CEQA review of Ministerial Approvals. It is agreed
that, in acting on any discretionary Subsequent Approvals for the Project, City will rely on the
MND and the mitigations imposed pursuant thereto to satisfy the requirements of CEQA to the
fullest extent permissible by CEQA and City will not require a new initial study, negative
declaration or environmental impact report unless required by CEQA.
2.11. Design/Development Standards. The Project consists of a hotel and residential
condominium development as set forth in the Project Approvals, including without limitation the
Precise Plan for the Project. The Project's height, parking requirements, and set back
requirements shall be as approved in the Precise Plan for the Project.
2.11.1. Hotel Luxury Standard.
Developer and City agree that, if constructed, the Project shall be constructed to
a minimum of four -plus star quality standard or higher (the "Luxury Standard"). The Project
shall be deemed to have been constructed consistent with the Luxury Standard if the Project is
consistent with each of the following criteria:
(1) The average standard hotel room within the Project is greater than
five -hundred (500) square feet;
(2) The Project includes breakfast, lunch and dinner restaurant dining
services available to Project residents and guests seven (7) days per week; though, breakfast
and lunch may be combined in a brunch service on weekends and holidays; and
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(3) The product of the total amount spent on Furniture, Fixtures & Equipment
("FF&E") for the Project (inclusive of both hotel rooms and publicly available common areas)
divided by the number of hotel rooms constructed in the Project shall equal at least seventy-five
thousand dollars ($75,000) (the "Per Room FF&E Allowance").
Developer shall provide documentation to City prior to issuance of the final
Certificate of Occupancy for the Project establishing that the Project has met the Luxury
Standard.
Notwithstanding the foregoing, commencing on February 1, 2015 (an
"Anniversary Date"), and continuing each year thereafter unit issuance of the final Certificate of
Occupancy for the Project, the Per Room FF&E Allowance shall be increased to reflect any
increase in the cost of living since the prior Anniversary Date, as computed below:
On each such Anniversary Date, the Per Room FF&E Allowance shall be
multiplied by a fraction, the numerator of which shall be the Consumer Price Index for All Urban
Consumers published by the Bureau of Labor Statistics of the US Department of Labor (the
"Bureau") for the Los Angeles -Anaheim -Riverside, California area - All Items (1982-84=100)
(the "CPI") for the month of January of the calendar year in which such Anniversary Date falls,
and the denominator of which shall be the CPI for the month of January of the prior calendar
year. The Per Room FF&E Allowance for the twelve calendar months commencing with the
Anniversary Date in question shall be the greater of the product of such multiplication or the Per
Room FF&E Allowance for the calendar day prior to the Anniversary Date in question.
If the CPI ceases to be published on a monthly basis, City shall propose a
reasonably comparable index published by the Bureau in place of the CPI (the "Replacement
Index"). After City has made its selection of said Replacement Index, City shall notify Developer
of such selection and of any adjustments City believes are reasonably necessary arising out of
City's selection and use of the Replacement Index. Such selection and notification of
adjustments may be objected to and challenged by Developer if either the selection or
adjustments are patently unreasonable.
2.11.2. Initial Hotel Operator.
Developer agrees that both the hotel operator and condo portions of the Proejct
will be franchised (co -branded) initially by a hotel operator that shall be one of the following
hotel operators, each of which are preapproved by the City: Rosewood, Montage, Mandarin
Oriental, One & Only, Trump, St. Regis, Waldorf Astoria, Orient Express, Auberge, Raffles,
Setai, Peninsula, Aman, Banyan Tree, Park Hyatt, Four Seasons, or Jumeriah. Alternatively,
Developer may submit the name of another comparable hotel operator to the City Manager
together with sufficient information for the City Manager to determine that such hotel operator is
comparable to the hotel operators listed herein. The City Manager shall, acting commercially
reasonably, have ten (10) days to consent or object to such proposed comparable hotel
operator, which such consent shall not be unreasonably withheld, delayed or conditioned,
including, without limitation imposing any conditions that change the legal or financial terms of
this Agreement or the Project. In the event of any disagreement regarding the proposed
comparable operator, proposed hotel operator shall be considered comparable upon Developer
producing certified statements from at least two (2) of the following nationally recognized hotel
consultants: (i) Michael Cowan of KPMG; (ii) Bruce Baltin of PKF Consulting; or (iii) James
Rabe of Keyser Marston Associates that the proposed hotel operator is comparable to those
listed herein. In the event that one of the named consultants ceases to remain in business or
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available to serve in this role, then the Parties shall meet and confer to select a new consultant
to serve as a replacement.
2.12. Developer's Right to Rebuild. Developer may renovate or rebuild the Project
within the Term of this Agreement should it become necessary due to natural disaster, changes
in seismic requirements, or should the buildings located within the Project become functionally
outdated, within Developer's sole discretion, due to changes in technology. Any such
renovation or rebuilding shall be subject to the Vested Elements, shall comply with the Project
Approvals, the Building Regulations existing at the time of such rebuilding or reconstruction, and
the requirements of CEQA. Notwithstanding the foregoing, City acknowledges that, due to
market conditions at the time of such rebuilding or reconstruction, Developer may, in its sole
discretion, seek to modify the density or ratio of hotel rooms to residential units as necessary to
meet then current market conditions, which such modification the City acknowledges would be
consistent with the Project Approvals so long as such modification does not result in an overall
net increase in the building square footage or the combined total number of hotel rooms and
residential units. In no case, however, shall Developer be required to modify either the density
or ratio of hotel rooms to residential units.
2.13. Written Verification of Sufficient Water Supply. Any and all tentative subdivision
maps approved for the Project shall comply with Government Code Section 66473.7, if, and to
the extent, required by Government Code Section 65867.5(c).
ARTICLE 3.
ADDITIONAL RIGHTS AND OBLIGATIONS OF THE PARTIES; ALLOCATIONS OF RIGHTS
AND OBLIGATIONS OF THE PARTIES
3.1. Public Infrastructure. In conjunction with construction of the Project, Developer
shall reconstruct and reconfigure a portion of the Highway 74 Frontage Road, the surface
improvements of which shall be conveyed to City in accordance with the terms of this Article 3
(the "Public Infrastructure").
3.1.1. Acceptance: Maintenance. Upon completion of any and all Public
Infrastructure to be completed by Developer, Developer shall offer for dedication to City from
time to time as such Public Infrastructure is completed, and City shall, acting reasonably,
promptly accept from Developer the completed Public Infrastructure (and release to Developer
any bonds or other security posted in connection with performance thereof in accordance with
the terms of such bonds), and thereafter City shall maintain the Public Infrastructure. Developer
may offer dedication of Public Infrastructure in phases and the City shall not unreasonably
refuse to accept such phased dedications or unreasonably refuse phased releases of bonds or
other security so long as all other conditions for acceptance have been satisfied.
3.2. Public Improvements. City shall use its best efforts to work with Developer to
ensure that all Public Infrastructure in connection with the Project is (i) designed and
constructed in accordance with all applicable City standards, (ii) reviewed and accepted by City
in the most expeditious fashion possible, and (iii) maintained by City after acceptance, including,
without limitation, maintenance of the public parks. Developer (or its affiliates or contractor(s))
shall be responsible for obtaining all permits and approvals necessary for development of the
public infrastructure.
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ARTICLE 4.
ANNUAL REVIEW
4.1. Annual Review. The annual review required by California Government Code
Section 65865.1 and Section 25.37.070 of the City Municipal Code shall be conducted for the
purposes and in the manner stated in those laws as further provided herein. As part of that
review, City and Developer shall have a reasonable opportunity to assert action(s) that either
Party reasonably believes have not been undertaken in accordance with this Development
Agreement, to explain the basis for such assertion, and to receive from the other Party a
justification for the other Party's position with respect to such action(s), and to take such actions
as permitted by law. The procedure set forth in this Article shall be used by Developer and City
in complying with the annual review requirement.
4.2. Commencement of Process. The Director of City's Department of Community
Development/Planning (the "Planning Director") shall commence the annual review process by
notifying Developer in writing at least forty-five (45) days prior to the anniversary of the Effective
Date each year that the annual review process shall commence as specified in Section 4.1.
Failure of Planning Director to send such notification shall be deemed to extend the time period
in which annual review is required until at least forty-five (45) days after such notice is provided.
City's failure to perform an annual review pursuant to the terms of this Article 4 shall not
constitute or be asserted as a default by Developer.
4.3. Developer Compliance Letter. Not more than thirty (30) days after receipt of the
Planning Director's notice pursuant to Section 4.2, Developer shall submit a letter to the
Planning Director demonstrating Developer's good faith compliance with the material terms and
conditions of this Development Agreement and shall include in the letter a statement that the
letter is being submitted to City pursuant to the requirements of Government Code
Section 65865.1.
4.4. Planning Director Review. Within thirty (30) days after the receipt of Developer's
letter, the Planning Director shall review Developer's submission and reasonably determine
whether Developer has, for the year under review, demonstrated good faith compliance with the
material terms and conditions of this Development Agreement.
4.5. Planning Director Compliance Finding. If the Planning Director finds that
Developer has so complied, the Planning Director shall schedule the annual review for the next
available meeting of the Planning Commission and shall prepare a staff report to the Planning
Commission, which shall include, in addition to Developer's letter, (i) a demonstration of City's
good faith compliance with the material terms and conditions of this Development Agreement;
and (ii) the Planning Director's recommendation that the Planning Commission find Developer to
be in good faith compliance with the material terms and conditions of this Development
Agreement.
4.6. Planning Director Noncompliance Finding. If the Planning Director (or the
Planning Commission, on review of the Planning Director's recommendation pursuant to
Section 4.5) reasonably finds and determines that there is substantial evidence that Developer
has not complied in good faith with the material terms and conditions of this Development
Agreement and that Developer is in material breach of this Development Agreement for the year
under review, the Planning Director shall issue and deliver to Developer a written "Notice of
Alleged Default" specifying in detail the nature of the failures in performance that the Planning
Director (or Planning Commission) reasonably claim constitutes material noncompliance, all
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facts demonstrating substantial evidence of material noncompliance, and the manner in which
such noncompliance may be satisfactorily cured in accordance with the Development
Agreement. In the event that the material noncompliance, if proven to be true, would qualify an
Event of Default pursuant to Article 6 herein, the Parties shall be entitled to their respective
rights and obligations under both Articles 4 and 6 herein, except that the particular entity
allegedly in default shall be accorded only one of the 60-day cure periods referred to in
Sections 4.7 and 6.1 herein.
4.7. Cure Period. If the Planning Director or Planning Commission reasonably finds
that Developer is not in compliance, the Planning Director shall grant a reasonable period of
time for Developer to cure the alleged noncompliance. The Planning Director shall grant a cure
period of at least sixty (60) days and shall extend the sixty (60) day period if Developer is
proceeding in good faith to cure the noncompliance and additional time is reasonably needed.
At the conclusion of the cure period, the Planning Director shall either (i) find that Developer is
in compliance and refer the matter to the Planning Commission as specified in Section 4.5; or
(ii) find that Developer is not in compliance and refer the matter to the Planning Commission as
specified in Section 4.8.
4.8. Referral of Noncompliance to Planning Commission. The Planning Director shall
refer the alleged default to the Planning Commission if Developer fails to cure the alleged
noncompliance to the Planning Director's reasonable satisfaction during the prescribed cure
period and any extensions thereto. In addition, the Planning Director shall refer the alleged
noncompliance to the Planning Commission if Developer requests a hearing before the
Planning Commission to review the Planning Director's determination of non-compliance. The
Planning Director shall prepare a staff report to the Planning Commission which shall include, in
addition to Developer's letter, if any, (i) demonstration of City's good faith compliance with the
terms and conditions of this Development Agreement; (ii) the Notice of Alleged Default; and
(iii) a description of any cure undertaken by Developer during the cure period.
4.9. Delivery of Documents. At least five (5) days prior to any City hearing regarding
Developer's compliance with this Development Agreement, City shall deliver to Developer all
staff reports and all other relevant documents pertaining to the hearing.
4.10. Planning Commission Compliance Finding. If the Planning Commission,
following a noticed public hearing pursuant to Section 4.5 or 4.8, determines that Developer is in
compliance with the material terms and conditions of this Development Agreement, and that
determination is not appealed to the City Council, the annual review shall be deemed
concluded. City shall, at Developer's request, issue and have recorded a Certificate of
Compliance indicating Developer's compliance with the terms of this Development Agreement.
4.11. Planning Commission Noncompliance Finding; Referral to City Council. If the
Planning Commission, at a properly noticed public hearing pursuant to Section 4.5 or 4.8,
reasonably finds and determines, on the basis of substantial evidence, that Developer has not
complied in good faith with the material terms or conditions of this Development Agreement and
that Developer is in material breach of this Development Agreement, Developer shall have a
reasonable time determined by the Planning Commission to meet the reasonable terms of
compliance approved by the Planning Commission, which time shall be not less than fifteen (15)
days. If Developer does not complete the terms of compliance within the time specified, the
Planning Commission shall forward its recommendations to the City Council and the City
Council shall hold a public hearing regarding termination or modification of this Development
Agreement. Notification of intention to modify or terminate this Development Agreement shall
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be delivered to Developer by certified mail containing: (i) the time and place of the City Council
hearing; (ii) a statement as to whether City proposes to terminate or modify this Development
Agreement and the terms of any proposed modification; and (iii) any other information
reasonably necessary to inform Developer of the nature of the proceedings. At the time of the
hearing, Developer shall be given an opportunity to be heard. The City Council may impose
conditions to the action it takes as necessary to protect the interests of City; provided that any
modification or termination of this Development Agreement pursuant to this provision shall bear
a reasonable nexus to, and be proportional in severity to the magnitude of, the alleged breach,
and in no event shall termination be permitted except in accordance with Article 6 herein.
4.12. Relationship to Default Provisions. The above procedures shall supplement and
shall not replace that provision of Section 6.4 of this Development Agreement whereby either
City or Developer may, at any time, assert matters which either Party believes have not been
undertaken in accordance with this Development Agreement by delivering a written Notice of
Alleged Default and following the procedures set forth in said Section 6.4.
ARTICLE 5.
AMENDMENTS
5.1. Amendments to Development Agreement Legislation. This Development
Agreement has been entered into in reliance upon the provisions of the Development
Agreement Legislation as those provisions existed at the Agreement Date. No amendment or
addition to those provisions or any other federal or state law and regulation that would materially
adversely affect the interpretation or enforceability of this Development Agreement or would
prevent or preclude compliance with one or more provisions of this Development Agreement
shall be applicable to this Development Agreement unless such amendment or addition is
specifically required by the change in law, or is mandated by a court of competent jurisdiction.
In the event of the application of such a change in law, the Parties shall meet in good faith to
reasonably determine the feasibility of any modification or suspension that may be necessary to
comply with such new law or regulation and to determine the effect such modification or
suspension would have on the purposes and intent of this Development Agreement and the
Vested Elements. Following the meeting between the Parties, the provisions of this
Development Agreement may, to the extent feasible, and upon mutual agreement of the Parties,
be modified or suspended but only to the minimum extent necessary to comply with such new
law or regulation. If such amendment or change is permissive (as opposed to mandatory), this
Development Agreement shall not be affected by same unless the Parties mutually agree in
writing to amend this Development Agreement to permit such applicability. Developer and/or
City shall have the right to challenge any new law or regulation preventing compliance with the
terms of this Agreement, and in the event such challenge is successful, this Agreement shall
remain unmodified and in full force and effect. The Term of this Agreement may be extended
for the duration of the period during which such new law or regulation precludes compliance
with the provisions of this Agreement.
5.2. Amendments to or Cancellation of Development Agreement. This Development
Agreement may be amended from time to time or canceled in whole or in part by mutual
consent of both Parties in writing in accordance with the provisions of the Development
Agreement Legislation and the City Development Agreement Regulations. Review and
approval of an amendment to this Development Agreement shall be strictly limited to
consideration of only those provisions to be added or modified. No amendment, modification,
waiver or change to this Development Agreement or any provision hereof shall be effective for
any purpose unless specifically set forth in a writing that expressly refers to this Development
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Agreement and signed by the duly authorized representatives of both Parties. All amendments
to this Development Agreement shall automatically become part of the Project Approvals.
5.3. Operating Memoranda. The provisions of this Development Agreement require a
close degree of cooperation between City and Developer and development of the Property
hereunder may demonstrate that refinements and clarifications are appropriate with respect to
the details of performance of City and Developer. If and when, from time to time, during the
term of this Development Agreement, City and Developer reasonably agree that such
clarifications are necessary or appropriate, City and Developer shall effectuate such
clarifications through operating memoranda approved by City and Developer, which, after
execution, shall be attached hereto as addenda and become a part hereof, and may be further
clarified from time to time as necessary with future approval by City and Developer. No such
operating memoranda shall constitute an amendment to this Development Agreement requiring
public notice or hearing. The City Manager, in consultation with the City Attorney, shall make
the determination on behalf of City whether a requested clarification may be effectuated
pursuant to this Section 5.3 or whether the requested clarification is of such a character to
constitute an amendment hereof pursuant to Section 5.2 above. The City Manager shall be
authorized to execute any operating memoranda hereunder on behalf of City.
5.4. Amendments to Project Approvals. Notwithstanding any other provision of this
Development Agreement, Developer may seek and City may review and grant amendments or
modifications to the Project Approvals (including the Subsequent Approvals) subject to the
following (except that the procedures for amendment of this Development Agreement are set
forth in Section 5.2 herein).
5.4.1. Amendments to Project Approvals. Project Approvals (except for this
Development Agreement the amendment process for which is set forth in Section 5.2) may be
amended or modified from time to time, but only with the written consent of both Developer and
the City (in their respective sole discretion) and in accordance with Section 2.4. All
amendments to the Project Approvals shall automatically become part of the Project Approvals.
The permitted uses of the Property, the maximum density, the intensity of use, the maximum
height and size of the proposed buildings, provisions for reservation or dedication of land for
public purposes, the conditions, terms, restrictions and requirements for subsequent
discretionary actions, the provisions for public improvements and financing of public
improvements, and the other terms and conditions of development as set forth in all such
amendments shall be automatically vested pursuant to this Development Agreement, without
requiring an amendment to this Development Agreement. Amendments to the Project
Approvals shall be governed by the Project Approvals and the Applicable Rules, subject to
Section 2.4.
5.4.2. Administrative Amendments. Upon the request of Developer for an
amendment or modification of any Project Approval, the Planning Director or his/her designee
shall reasonably determine: (a) whether the requested amendment or modification is minor
when considered in light of the Project as a whole; and (b) whether the requested amendment
or modification substantially conforms with the material terms of this Development Agreement
and the Applicable Rules. If the Planning Director or his/her designee reasonably finds that the
requested amendment or modification is both minor and substantially conforms with the material
terms of this Development Agreement and the Applicable Rules, the amendment or modification
shall be determined to be an "Administrative Amendment," and the Planning Director or his/her
designee may approve the Administrative Amendment, without public notice or a public hearing.
In those instances where the Planning Director believes an application for administrative
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amendment will generate significant public interest or significant policy issues, the Planning
Director may refer the application to the Planning Commission for review and action. Each
decision made by the Planning Director pursuant to delegated authority in accordance with this
Section shall be placed as an information item on the Planning Commission agenda together
with a summary of the Administrative Amendment. If the Planning Director receives a written
request for a Planning Commission public hearing and action by the Planning Commission any
time during the review process but no later than ten (10) days after the action of the Planning
Director, or at the Planning Commission meeting for which the information item is on the
agenda, then the Administrative Amendment shall be set for Planning Commission public
hearing and action. Without limiting the generality of the foregoing, lot line adjustments,
reductions in the density, intensity, scale or scope of the Project, minor alterations in vehicle
circulation patterns or vehicle access points, variations in the location of structures that do not
substantially alter the overall design concepts of the Project, substitution of comparable
landscaping for any landscaping shown on any development plan or landscape plan, variations
in the location or installation of utilities and other infrastructure connections and facilities that do
not substantially alter design concepts of the Project, amendments to the master sign program,
and minor adjustments to a subdivision map or the Property legal description shall be deemed
to be minor amendments or modifications. Any request of Developer for an amendment or
modification to a Project Approval that is determined not to be an Administrative Amendment as
set forth above shall be subject to review, consideration and action pursuant to the Applicable
Rules and this Agreement.
ARTICLE 6.
DEFAULT, REMEDIES AND TERMINATION
6.1. Events of Default. Subject to any extensions of time by mutual consent of the
Parties in writing, and subject to the provisions of Section 10.2 hereof regarding permitted
delays and a Mortgagee's right to cure pursuant to Section 9.3 hereof, any failure by either
Party to perform any material term or provision of this Development Agreement (not including
any failure by Developer to perform any term or provision of any other Project Approvals) shall
constitute an "Event of Default," (i) if such defaulting Party does not cure such failure within one
hundred twenty (120) days (such one hundred twenty (120) day period is not in addition to any
cure period under Section 4.7, if Section 4.7 is applicable) following written notice of default
from the other Party, where such failure is of a nature that can be cured within such one
hundred twenty (120) day period, or (ii) if such failure is not of a nature which can be cured
within such one hundred twenty (120) day period, the defaulting Party does not within such one
hundred twenty (120) day period commence substantial efforts to cure such failure, or thereafter
does not within a reasonable time prosecute to completion with diligence and continuity the
curing of such failure. Any notice of default given hereunder shall specify in detail the nature of
the failures in performance that the noticing Party claims constitutes the Event of Default, all
facts constituting substantial evidence of such failure, and the manner in which such failure may
be satisfactorily cured in accordance with the terms and conditions of this Development
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 (a) termination
of this Development Agreement, (b) institution of legal proceedings with respect thereto, or
(c) issuance of any approval with respect to the Project. The waiver by either Party of any
default under this Development Agreement shall not operate as a waiver of any subsequent
breach of the same or any other provision of this Development Agreement.
6.2. Meet and Confer. During the time periods specified in Section 6.1 for cure of a
failure of performance, the Parties shall meet and confer in a reasonably timely and responsive
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manner, to attempt to resolve any matters prior to litigation or other action being taken, including
without limitation any action in law or equity; provided, however, nothing herein shall be
construed to extend the time period for this meet and confer obligation beyond the 120-day cure
period referred to in Section 6.1 (even if the 120-day cure period itself is extended pursuant to
Section 6.1(ii)) unless the Parties agree otherwise in writing.
6.3. Remedies and Termination. If, after notice and expiration of the cure periods and
procedures set forth in Sections 6.1 and 6.2, the alleged Event of Default is not cured, the non -
defaulting Party, at its option, may institute legal or judicial reference proceedings pursuant to
Section 6.4 or 6.6 of this Development Agreement and/or terminate this Development
Agreement pursuant to Section 6.7 herein. In the event that this Development Agreement is
terminated pursuant to Section 6.7 herein and litigation or judicial reference is instituted that
results in a final decision that such termination was improper, then this Development Agreement
shall immediately be reinstated as though it had never been terminated.
6.4. Legal Action by Parties.
6.4.1. Remedies. Either Party may, in addition to any other rights or remedies,
institute legal action to cure, correct or remedy any default, enforce any covenant or agreement
herein, enjoin any threatened or attempted violation thereof, enforce by specific performance
the obligations and rights of the Parties hereto or to obtain any remedies consistent with the
purpose of this Development Agreement. All remedies shall be cumulative and not exclusive of
one another, and the exercise of any one or more of these remedies shall not constitute a
waiver or election with respect to any other available remedy. Without limiting the foregoing,
Developer reserves the right to challenge in court any Future Rules that would conflict with the
Vested Elements or the Subsequent Approvals for the Project or reduce the development rights
provided by the Project Approvals.
6.4.2. No Damages. In no event shall either Party, or its boards, commissions,
officers, agents or employees, be liable in damages for any default under this Development
Agreement, it being expressly understood and agreed that the sole legal remedy available to
either Party for a breach or violation of this Development Agreement by the other Party shall be
an action in mandamus, specific performance or other injunctive or declaratory relief to enforce
the provisions of this Development Agreement by the other Party, or to terminate this
Development Agreement. This limitation on damages shall not preclude actions by a Party to
enforce payments of monies or the performance of obligations requiring an obligation of money
from the other Party under the terms of this Development Agreement including, but not limited to
obligations to pay attorneys' fees and obligations to advance monies or reimburse monies. In
connection with the foregoing provisions, each Party acknowledges, warrants and represents
that it has been fully informed with respect to, and represented by counsel of such Party's
choice in connection with, the rights and remedies of such Party hereunder and the waivers
herein contained, and after such advice and consultation has presently and actually intended,
with full knowledge of such Party's rights and remedies otherwise available at law or in equity, to
waive and relinquish such rights and remedies to the extent specified herein, and to rely to the
extent herein specified solely on the remedies provided for herein with respect to any breach of
this Development Agreement by the other Party.
6.5. Effects of Litigation. In the event that litigation is timely instituted, and a final
judgment is obtained, which invalidates in its entirety this Development Agreement, then
Developer shall have no obligations whatsoever under this Development Agreement. In the
event that any payment(s) have been made by or on behalf of Developer to City pursuant to the
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obligations contained in Section 2.6, City shall give to Developer a refund of the monies
remaining in any segregated City account into which such payment(s) were deposited, if any,
along with interest which has accrued, if any. To the extent the payment(s) made by or on
behalf of Developer were not deposited, or no longer are, in the segregated City account, City
shall give Developer a credit for the amount of said payment(s) as determined pursuant to this
Section 6.5, along with interest, if any, that has accrued, which credit may be applied by
Developer to any costs or fees imposed by City on Developer in connection with construction or
development within or outside the Property. Developer shall be entitled to use all or any portion
of the credit at its own discretion until such time as the credit has been depleted. Any credits
due to Developer pursuant to this Section 6.5 may, at Developer's own discretion, be
transferred by Developer to a third party for application by said third party to any costs or fees
imposed by City on the third party in connection with construction or the development of
property within City, whether or not related to the Project. In the event that Developer has
already developed or is developing a portion of the Project at the time of any invalidation of the
Development Agreement, then any such refund or credit shall be limited to the amount paid by
Developer that exceeds, on a pro rata basis, the proportion and uses of the Property retained by
Developer to the entire Property. This Section 6.5 shall survive the termination or expiration of
this Development Agreement.
6.6. Judicial Reference. Pursuant to Code of Civil Procedure Section 638, et seq., all
legal actions shall be heard by a referee who shall be a retired judge from either the Riverside
County Superior Court, the California Court of Appeal, the United States District Court or the
United States Court of Appeals, provided that the selected referee shall have experience in
resolving land use and real property disputes. Developer and City shall agree upon a single
referee who shall then try all issues, whether of fact or law, and report a finding and judgment
thereon and issue all legal and equitable relief appropriate under the circumstances of the
controversy before such referee. If Developer and City are unable to agree on a referee within
ten (10) days of a written request to do so by either Party hereto, either Party may seek to have
one appointed pursuant to Code of Civil Procedure Section 640. The cost of such proceeding
shall initially be borne equally by the Parties. Any referee selected pursuant to this Section 6.6
shall be considered a temporary judge appointed pursuant to Article 6, Section 21 of the
California Constitution. Notwithstanding the provisions of this Section 6.6, either Party shall be
entitled to seek declaratory and injunctive relief in any court of competent jurisdiction to enforce
the terms of this Agreement, or to enjoin the other Party from an asserted breach thereof,
pending the selection of a referee as provided in this Section 6.6, on a showing that the moving
party would otherwise suffer irreparable harm. Upon the mutual agreement by both Parties, any
legal action shall be submitted to non -binding arbitration in accordance with rules to be mutually
agreed upon by the Parties.
6.7. Termination.
6.7.1. Expiration of Term. Except as otherwise provided in this Development
Agreement, this Development Agreement shall be deemed terminated and of no further effect
upon the expiration of the Term of this Development Agreement as set forth in Section 1.3.
6.7.2. Survival of Obligations. Upon the termination or expiration of this
Development Agreement as provided herein, neither Party shall have any further right or
obligation with respect to the Property under this Development Agreement except with respect
to any obligation that is specifically set forth as surviving the termination or expiration of this
Development Agreement. The termination or expiration of this Development Agreement shall
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not affect the validity of the Project Approvals (other than this Development Agreement) for the
Project.
6.7.3. Termination by City. Notwithstanding any other provision of this
Development Agreement, City shall not have the right to terminate this Development Agreement
with respect to all or any portion of the Property before the expiration of its Term unless City
complies with all termination procedures set forth in the Development Agreement Legislation
and there is an Event of Default by Developer and such Event of Default is not cured pursuant
to Article 4 herein or this Article 6 and Developer has first been afforded an opportunity to be
heard regarding the alleged default before the City Council and this Development Agreement is
terminated only with respect to that portion of the Property to which the default applies.
Compliance with the procedures set forth in Sections 6.1 through 6.3 and 6.7.3 shall be deemed
full compliance with the requirements of the California Claims Act (Government Code
Sections 900 et seq.) including, but not limited to, the notice of an event of default hereunder
constituting full compliance with the requirements of Government Code Section 910.
ARTICLE 7.
COOPERATION AND IMPLEMENTATION
7.1. Further Actions and Instruments. Each Party to this Development Agreement
shall reasonably cooperate with and provide reasonable assistance to the other Party and take
all actions necessary to ensure that the Parties receive the benefits of this Development
Agreement, subject to satisfaction of the conditions of this Development Agreement. Upon the
request of any Party, the other Party shall promptly execute, with acknowledgment or affidavit if
reasonably required, and file or record such required instruments and writings and take any
actions as may be reasonably necessary under the terms of this Development Agreement to
carry out the intent and to fulfill the provisions of this Development Agreement or to evidence or
consummate the transactions contemplated by this Development Agreement.
7.2. Regulation by Other Public Agencies. Other public agencies not within the
control of City may possess authority to regulate aspects of the development of the Property
separately from or jointly with City, and this Development Agreement does not limit the authority
of such other public agencies. Nevertheless, City shall be bound by, and shall abide by, its
covenants and obligations under this Development Agreement in all respects when dealing with
any such agency regarding the Property. To the extent that City, the City Council, the Planning
Commission or any other board, agency, committee, department or commission of City
constitutes and sits as any other board, agency, commission, committee, or department, it shall
not take any action that conflicts with City's obligations under this Agreement.
7.3. Other Governmental Permits and Approvals: Grants. Developer shall apply in a
timely manner in accordance with Developer's construction schedule for the permits and
approvals from other governmental or quasi -governmental agencies having jurisdiction over the
Project as may be required for the development of, or provision of services to, the Project.
Developer shall comply with all such permits, requirements and approvals. City shall
reasonably cooperate with Developer in its endeavors to obtain (a) such permits and approvals
and shall, from time to time, at the request of Developer, attempt with due diligence and in good
faith to enter into binding agreements with any such entity to ensure the availability of such
permits and approvals, or services, at each stage of the development of the Project; and (b) any
grants for the Project for which Developer applies.
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7.4. Cooperation in the Event of Legal Challenge.
7.4.1. The filing of any third party lawsuit(s) against City or Developer relating to
this Agreement, the Project Approvals or other development issues affecting the Property shall
not delay or stop the development, processing or construction of the Project or approval of any
Subsequent Approvals, unless the third party obtains a court order preventing the activity. City
shall not stipulate to or cooperate in the issuance of any such order.
7.4.2. In the event of any administrative, legal or equitable action instituted by a
third party challenging the validity of any provision of this Development Agreement, the
procedures leading to its adoption, or the Project Approvals for the Project, Developer and City
each shall have the right, in its sole discretion, to elect whether or not to defend such action.
Developer shall defend, indemnify, and hold harmless the City (including its agents, officers and
employees) from any such action, claim, or proceeding with counsel chosen by the City, subject
to Developer's approval of counsel, which shall not be unreasonably denied, and at Developer's
sole expense. If the City is aware of such an action or proceeding, it shall promptly notify
Developer and cooperate in the defense. Developer upon such notification shall deposit with
City sufficient funds in the judgment of City Finance Director to cover the expense of defending
such action without any offset or claim against said deposit to assure that the City expends no
City funds. If both Parties elect to defend, the Parties hereby agree to affirmatively cooperate in
defending said action and to execute a joint defense and confidentiality agreement in order to
share and protect information, under the joint defense privilege recognized under applicable
law. As part of the cooperation in defending an action, City and Developer shall coordinate their
defense in order to make the most efficient use of legal counsel and to share and protect
information. Developer and City shall each have sole discretion to terminate its defense at any
time. The City shall not settle any third party litigation of Project Approvals without Developer's
consent, which consent shall not be unreasonably withheld, conditioned or delayed.
7.5. Revision to Project. In the event of a court order issued as a result of a
successful legal challenge, City shall, to the extent permitted by law or court order, in good faith
seek to comply with the court order in such a manner as will maintain the integrity of the Project
Approvals and avoid or minimize to the greatest extent possible (i) any impact to the
development of the Project as provided for in, and contemplated by, the Vested Elements, or
(ii) any conflict with the Vested Elements or frustration of the intent or purpose of the Vested
Elements.
7.6. State. Federal or Case Law. Where any state, federal or case law allows City to
exercise any discretion or take any act with respect to that law, City shall, in an expeditious and
timely manner, and to extent consistent with law, (a) exercise its discretion in such a way as to
be consistent with, and carry out the terms of, this Agreement and (b) take such other
reasonable actions as may be necessary to carry out in good faith the terms of this Agreement.
7.7. Defense of Agreement. City shall take all actions that are necessary or advisable
to uphold the validity and enforceability of this Agreement. If this Agreement is adjudicated or
determined to be invalid or unenforceable, City agrees, subject to all legal requirements, to
consider modifications to this Agreement to render it valid and enforceable to the extent
permitted by applicable law.
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ARTICLE 8.
TRANSFERS AND ASSIGNMENTS
8.1. Right to Assign. Developer shall have the right to sell, assign or transfer
("Transfer") in whole or in part its rights, duties and obligations under this Development
Agreement, to any person or entity at any time during the Term of this Development Agreement;
provided, however, in no event shall the rights, duties and obligations conferred upon Developer
pursuant to this Development Agreement be at any time so Transferred except through a
transfer of the Property. In the event of a transfer of a portion of the Property, Developer shall
have the right to Transfer its rights, duties and obligations under this Development Agreement
that are applicable to the transferred portion, and to retain all rights, duties and obligations
applicable to the retained portions of the Property. Upon Developer's request, City shall
reasonably cooperate with Developer and any proposed transferee to allocate rights, duties and
obligations under this Development Agreement and the Project Approvals among the
transferred Property and the retained Property.
8.1.1. Transfers to Third Parties. Other than Transfers of individual residential
condominium units located on the Property, Developer shall provide notice to the City in
accordance with this Section 8.1.1. Developer shall notify City of Developer entering into an
agreement with a third party to market the Property for sale within fifteen (15) days of the
effective date of such agreement, and no later than five (5) days prior to their publication,
Developer shall provide the City Manager with draft marketing materials to afford the City an
opportunity to comment on such materials, which such comments may be incorporated by
Developer in Developer's reasonable discretion. Developer shall provide updates at least as
frequently as every forty-five (45) days, in writing, to the City Manager during any period in
which Developer is actively engaged in any such marketing efforts. In the event that Developer
enters into a written agreement for any sale of the Property to a third party, then at least
sixty (60) days prior to close of any such transfer, Developer shall provide the City Manager, for
his review and comment, the identity of the proposed transferee, a summary of the proposed
transferee's developer and financial qualifications, and a copy of the proposed assignment and
assumption agreement between Developer and the proposed transferee, subject to a
reasonable confidentiality agreement, if necessary. Within thirty (30) days of receipt of such
notice, the City Manager may provide to Developer written comments or seek reasonable
additional information regarding such proposed transferee. Notwithstanding the foregoing, a
foreclosing Mortgagee (defined below) shall provide notice to City upon acquiring title to the
Property. Further, notwithstanding the foregoing, in the event of a Transfer of the Property from
EP-Monterey LLC to PDH Partners LLC, a Delaware limited liability company, Developer shall
provide notice to the City of such Transfer together with a copy of the assignment and
assumption agreement between EP-Monterey LLC and PDH Partners LLC concurrent with such
Transfer.
8.2. Release upon Transfer. Upon the Transfer of Developer's rights and interests
under this Development Agreement pursuant to Sections 8.1 and 8.1.1, Developer shall
automatically be released from its obligations and liabilities under this Development Agreement
with respect to that portion of the Property transferred, and any subsequent default or breach
with respect to the Transferred rights and/or obligations shall not constitute a default or breach
with respect to the retained rights and/or obligations under this Development Agreement,
provided that (i) Developer has provided to City written notice of such Transfer, and (ii) the
transferee executes and delivers to City a written agreement in which (a) the name and address
of the transferee is set forth and (b) the transferee expressly and unconditionally assumes all of
the obligations of Developer under this Development Agreement with respect to that portion of
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the Property transferred. Upon any transfer of any portion of the Property and the express
assumption of Developer's obligations under this Agreement by such transferee, City agrees to
look solely to the transferee for compliance by such transferee with the provisions of this
Agreement as such provisions relate to the portion of the Property acquired by such transferee.
A default by any transferee shall only affect that portion of the Property owned by such
transferee and shall not cancel or diminish in any way Developer's rights hereunder with respect
to any portion of the Property not owned by such transferee. The transferor and the transferee
shall each be solely responsible for the reporting and annual review requirements relating to the
portion of the Property owned by such transferor/transferee, and any amendment to this
Agreement between City and a transferor or a transferee shall only affect the portion of the
Property owned by such transferor or transferee. Failure to deliver a written assumption
agreement hereunder shall not affect the running of any covenants herein with the land, as
provided in Section 8.3 below, nor shall such failure negate, modify or otherwise affect the
liability of any transferee pursuant to the provisions of this Development Agreement.
Notwithstanding anything to the contrary contained herein, the individual owner of any
residential condominium unit located on the Property that has been finally subdivided,
constructed and sold, shall have no obligations under this Development Agreement, including
without limitation, the obligation to participate in periodic review as required under Article 4,
above.
8.3. Covenants Run with the Land. All of the provisions, agreements, rights, powers,
standards, terms, covenants and obligations contained in this Development Agreement shall be
binding upon the Parties and their respective successors (by merger, reorganization,
consolidation, or otherwise) and assigns, devisees, administrators, representatives, lessees,
and all of the persons or entities acquiring the Property or any portion thereof, or any interest
therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit
of the Parties and their respective successors (by merger, consolidation or otherwise) and
assigns. All of the provisions of this Development Agreement shall be enforceable as equitable
servitudes and constitute covenants running with the land pursuant to applicable law, including
but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to
do, or refrain from doing, some act on the Property hereunder (i) is for the benefit of such
Property and is a burden upon such Property, (ii) runs with such Property, (iii) is binding upon
each Party and each successive owner during its ownership of such Property or any portion
thereof, and (iv) each person or entity having any interest therein derived in any manner through
any owner of such Property, or any portion thereof, and shall benefit the Property hereunder,
and each other person or entity succeeding to an interest in such Property.
ARTICLE 9.
MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE
9.1. Mortgagee Protection. 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 improvement thereon by any mortgage, deed of trust or other security device securing
financing with respect to the Property ("Mortgage"). This Development Agreement shall be
superior and senior to any lien placed upon the Property or any portion thereof after the date of
recording this Development Agreement, including the lien of any Mortgage. Notwithstanding the
foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any
Mortgage made in good faith and for value, but all of the terms and conditions contained in this
Development Agreement shall be binding upon and effective against and inure to the benefit of
any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who
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acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu
of foreclosure, or otherwise.
9.2. Mortgagee Not Obligated. Notwithstanding the provisions of Section 9.1 above,
no Mortgagee shall have any obligation or duty under this Development Agreement to perform
Developer's obligations or other affirmative covenants of Developer hereunder; provided,
however, that if a Mortgagee elects not to assume the obligations under this Development
Agreement, then the Mortgagee shall have no right to receive the benefits of this Development
Agreement.
9.3. Notice of Default to Mortgagee: Right of Mortgagee to Cure. If City receives a
notice from a Mortgagee requesting a copy of any Notice of Default given to Developer
hereunder and specifying the address for service thereof, then City shall deliver to such
Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with
respect to any claim by City that Developer has committed a default, and if City makes a
determination of noncompliance hereunder, City shall likewise serve notice of such
noncompliance on such Mortgagee concurrently with service thereof on Developer. Each
Mortgagee shall have the right (but not the obligation) during the same period available to
Developer to cure or remedy, or to commence to cure or remedy, the Event of Default claimed
or the areas of noncompliance set forth in City's notice.
9.4. No Supersedure. Nothing in this Article 9 shall be deemed to supersede or
release a Mortgagee or modify a Mortgagee's obligations under any subdivision improvement
agreement or other obligation incurred with respect to the Project outside this Development
Agreement, nor shall any provision of this Article 9 constitute an obligation of City to such
Mortgagee, except as to the notice requirements of Section 9.3.
9.5. Technical Amendments to this Article 9. City agrees to reasonably consider and
approve interpretations and/or technical amendments to the provisions of this Agreement that
are required by lenders for the acquisition and construction of the improvements on the Property
or any refinancing thereof and to otherwise cooperate in good faith to facilitate Developer's
negotiations with lenders.
ARTICLE 10.
MISCELLANEOUS PROVISIONS
10.1. Limitation on Liability. Notwithstanding anything to the contrary contained in this
Development Agreement, in no event shall: (a) any partner, officer, director, member,
shareholder, employee, affiliate, manager, representative, or agent of Developer or any general
partner of Developer or its general partners be personally liable for any breach of this
Development Agreement by Developer, or for any amount which may become due to City under
the terms of this Development Agreement; or (b) any member, officer, agent or employee of City
be personally liable for any breach of this Development Agreement by City or for any amount
which may become due to Developer under the terms of this Development Agreement.
10.2. Force Majeure. The Term of this Development Agreement and the Project
Approvals and the time within which Developer shall be required to perform any act under this
Development Agreement shall be extended by a period of time equal to the number of days
during which performance of such act is delayed unavoidably and beyond the reasonable
control of the Party seeking the delay by strikes, lock -outs and other labor difficulties, Acts of
God, inclement weather, failure or inability to secure materials or labor by reason of priority or
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similar regulations or order of any governmental or regulatory body, changes in local, state or
federal laws or regulations, any development moratorium or any action of other public agencies
that regulate land use, development or the provision of services prevents, prohibits or delays
construction of the Project, enemy action, civil disturbances, wars, terrorist acts, fire,
unavoidable casualties, litigation involving this Agreement or the Project Approvals, or any other
cause beyond the reasonable control of Developer which substantially interferes with carrying
out the development of the Project. Such extension(s) of time shall not constitute an Event of
Default and shall occur at the request of any Party. In addition, the Term of this Development
Agreement and any subdivision map or any of the other Project Approvals shall not include any
period of time during which (i) a development moratorium is in effect; (ii) the actions of public
agencies that regulate land use, development or the provision of services to the Property
prevent, prohibit or delay either the construction, funding or development of the Project or
(iii) there is any mediation, arbitration; litigation or other administrative or judicial proceeding
pending involving the Vested Elements, or Project Approvals. The Term of the Project
Approvals shall therefore be extended by the length of any development moratorium or similar
action; the amount of time any actions of public agencies prevent, prohibit or delay the
construction, funding or development of the Project or prevents, prohibits or delays the
construction, funding or development of the Project; or the amount of time to finally resolve any
mediation, arbitration, litigation or other administrative or judicial proceeding involving the
Vested Elements, or Project Approvals. Furthermore, in the event the issuance of a building
permit for any part of the Project is delayed as a result of Developer's inability to obtain any
other required permit or approval, then the Term of this Development Agreement shall be
extended by the period of any such delay.
10.3. Notices. Demands and Communications Between the Parties. Formal written
notices, demands, correspondence and communications between City and Developer shall be
sufficiently given if delivered personally (including delivery by private courier), dispatched by
certified mail, postage prepaid and return receipt requested, or delivered by nationally
recognized overnight courier service, or by electronic facsimile transmission followed by delivery
of a "hard" copy to the offices of City and Developer indicated below. Such written notices,
demands, correspondence and communications may be sent in the same manner to such
persons and addresses as either Party may from time -to -time designate in writing at least
fifteen (15) days prior to the name and/or address change and as provided in this Section 10.3.
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
Attn: City Manager
with copies to: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
Attn: City Attorney
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
Attn: Planning Director
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Developer: EP-Monterey, LLC
c/o Friedman Equities, LLC
150 East 58th Street, 21 st Floor
New York, NY 10155
Attn: Mr. Peter Friedman
with copies to: Friedman Equities, LLC
9355 Wilshire Blvd., Suite 200
Beverly Hills, CA 90210
Attn: Mr. Matthew Joblon
JMH Development
401 West Street, 3rd Floor
New York, NY 10014
Attn: Mr. Jason Halpern
Notices personally delivered shall be deemed to have been received upon delivery. Notices
delivered by certified mail, as provided above, shall be deemed to have been given and
received on the first to occur of (i) actual receipt by any of the addresses designated above as
the Party to whom notices are to be sent, or (ii) within five (5) days after a certified letter
containing such notice, properly addressed, with postage prepaid, is deposited in the United
States mail. Notices delivered by overnight courier service as provided above shall be deemed
to have been received twenty-four (24) hours after the date of deposit. Notices delivered by
electronic facsimile transmission shall be deemed received upon receipt of sender of electronic
confirmation of delivery, provided that a "hard" copy is delivered as provided above.
10.4. Project as a Private Undertaking; No Joint Venture or Partnership. The Project
constitutes private development, neither City nor Developer is acting as the agent of the other in
any respect hereunder, and City and Developer are independent entities with respect to the
terms and conditions of this Agreement. Nothing contained in this Development Agreement or
in any document executed in connection with this Development Agreement shall be construed
as making City and Developer joint venturers or partners.
10.5. Severability. If any terms or provision(s) of this Development Agreement or the
application of any term(s)or provision(s) of this Development Agreement to a particular situation,
is (are) held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of this Development Agreement or the application of this Development Agreement to
other situations, shall remain in full force and effect unless amended or modified by mutual
consent of the Parties; provided that, if the invalidation, voiding or enforceability would deprive
either City or Developer of material benefits derived from this Development Agreement, or make
performance under this Development Agreement unreasonably difficult, then City and
Developer shall meet and confer and shall make good faith efforts to amend or modify this
Development Agreement in a manner that is mutually acceptable to City and Developer.
Notwithstanding the foregoing, if any material provision of this Development Agreement, or the
application of such provision to a particular situation, is held to be invalid, void or unenforceable,
Developer (in its sole and absolute discretion) may terminate this Development Agreement by
providing written notice of such termination to City.
10.6. Section Headings. Article and Section headings in this Development Agreement
are for convenience only and are not intended to be used in interpreting or construing the terms,
covenants or conditions of this Development Agreement.
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10.7. Construction of Agreement. This Development Agreement has been reviewed
and revised by legal counsel for both Developer and City, and no presumption or rule that
ambiguities shall be construed against the drafting Party shall apply to the interpretation or
enforcement of this Development Agreement.
10.8. Entire Agreement. This Development Agreement is executed in (_)
duplicate originals, each of which is deemed to be an original. This Development Agreement
consists of (_) pages including the Recitals, and (_) exhibits, attached hereto and
incorporated by reference herein, which, together with the Project Approvals, constitute the
entire understanding and agreement of the Parties and supersedes all negotiations or previous
agreements between the Parties with respect to all or any part of the subject matter hereof. The
exhibits and appendices are as follows:
Exhibit A Legal Description of the Property
Exhibit B Map of the Property
Exhibit C Impact Fees
10.9. Estoppel Certificates. Either Party may, at any time during the Term of this
Development Agreement, 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
Development Agreement is in full force and effect and a binding obligation of the Parties, (ii) this
Development Agreement has not been amended or modified either orally or in writing, or if
amended; identifying the amendments, (iii) the requesting Party is not in default in the
performance of its obligations under this Development Agreement, or if in default, to describe
therein the nature and amount of any such defaults, and (iv) any other information reasonably
requested. The Party receiving a request hereunder shall execute and return such certificate or
give a written, detailed response explaining why it will not do so within five (5) business days
following the receipt thereof. The failure of either Party to provide the requested certificate
within such five (5) business day period shall constitute a confirmation that this Agreement is in
full force and effect and no modification or default exists. Either the City Manager or the
Planning Director shall have the right to execute any certificate requested by Developer
hereunder. City acknowledges that a certificate hereunder may be relied upon by transferees
and Mortgagees.
10.10. Recordation. Pursuant to California Government Code Section 65868.5, within
ten (10) days after the later of execution of the Parties of this Development Agreement or the
Effective Date, the City Clerk shall record this Development Agreement with the Riverside
County Recorder. Thereafter, if this Development Agreement is terminated, modified or
amended, the City Clerk shall record notice of such action with the Riverside County Recorder.
10.11. No Waiver. No delay or omission by either Party in exercising any right or power
accruing upon noncompliance or failure to perform by the other Party under any of the
provisions of this Development Agreement shall impair any such right or power or be construed
to be a waiver thereof. A waiver by either Party of any of the covenants or conditions to be
performed by the other Party shall be in writing and signed by a duly authorized representative
of the Party against whom enforcement of a waiver is sought, and any such waiver shall not be
construed as a waiver of any succeeding breach or non-performance of the same or other
covenants and conditions hereof.
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10.12. Time Is of the Essence. Time is of the essence for each provision of this
Development Agreement for which time is an element.
10.13. Applicable Law. This Development Agreement shall be construed and enforced
in accordance with the laws of the State of California.
10.14. Attorneys' Fees. Should any legal action be brought by either Party because of a
breach of this Development Agreement or to enforce any provision of this Development
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and such other
costs as may be found by the referee. Attorneys' fees under this Section shall include
attorneys' fees on any appeal and, in addition, a Party entitled to attorneys' fees shall be entitled
to all other reasonable costs and expenses, including without limitation, expert witness fees,
incurred in connection with such action. In addition to the foregoing award of attorneys fees to
the prevailing party, the prevailing party in any lawsuit shall be entitled to its attorneys' fees
incurred in any post -judgment proceedings to collect or enforce the judgment. This provision is
separate and several and shall survive the merger of this Agreement into any judgment on this
Agreement.
10.15. Third Party Beneficiaries. Except as otherwise provided herein, City and
Developer hereby renounce the existence of any third party beneficiary to this Development
Agreement and agree that nothing contained herein shall be construed as giving any other
person or entity third party beneficiary status.
10.16. Constructive Notice and Acceptance. Every person who now or hereafter owns
or acquires any right, title or interest in or to any portion of the Property is and shall be
conclusively deemed to have consented and agreed to every provision contained herein,
whether or not any reference to this Development Agreement is contained in the instrument by
which such person acquired an interest in the Property.
10.17. Counterparts. This Development Agreement may be executed by each Party on
a separate signature page, and when the executed signature pages are combined, shall
constitute one single instrument.
10.18. Authority. Each party to this Agreement represents and warrants that the person
or persons executing this Agreement on such party's behalf has the authority to bind his or her
respective Party and that all necessary board of directors', shareholders', partners', city
councils', redevelopment agencies' or other approvals have been obtained.
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ORDINANCE NO. 1225A
IN WITNESS WHEREOF, City and Developer have executed this Development
Agreement as of the date first set forth above.
DEVELOPER:
EP-Monterey, LLC,
a California limited liability company
By:
Name:
Title:
CITY:
CITY OF PALM DESERT,
a California municipal corporation
By:
Name:
Title:
ATTESTATION:
By:
APPROVED AS TO FORM:
By:
City Clerk
City Attorney
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ORDINANCE NO. 1225A
STATE OF CALIFORNIA )
ss:
COUNTY OF RIVERSIDE )
On _ , 2011 before me, (here insert name of the
officer), 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 of Notary Public
[Seal]
STATE OF CALIFORNIA
ss:
COUNTY OF
On _ , 2011 before me, (here insert name of the
officer), 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 of Notary Public
[Seal]
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ORDINANCE NO. 1225A
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
PARCEL 1:
LOTS 10 AND 11 OF BLOCK NO. A-3 OF PALM DESERT UNIT NO. 3, IN THE CITY OF
PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP
ON FILE IN BOOK 21, PAGES 81 THROUGH 84, INCLUSIVE OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 2:
LOTS 12, 13, 14, 19, 20, 21, 22 AND 23 OF BLOCK NO. A-3 OF PALM DESERT UNIT NO. 3,
IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS
SHOWN BY MAP ON FILE IN BOOK 21, PAGES 81 THROUGH 84, INCLUSIVE OF MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
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EXHIBIT B
MAP OF PROPERTY
YI�LINITY MAP
NOT" M SCALE,
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ORDINANCE NO. 1225A
EXHIBIT C
IMPACT FEES
All terms not defined herein shall have the meaning ascribed to them in the
Development Agreement to which this Exhibit C is attached to and a part thereof.
The following Impact Fees shall apply to the Project as provided in Section 2.6.3 of this
Development Agreement:
1. The Transportation Uniform Mitigation Fee (PDMC Ch. 3.44)
2. The Childcare Facilities Impact Mitigation Fee (PDMC Ch. 3.45)
3. The Multiple Species Habitat Conservation Plan Local Development Mitigation
Fee (PDMC Ch. 3.46)
4. The Neighborhood and Community Public Facilities Fee (PDMC Ch. 26.48)
5. The Drainage Facility Fee (PDMC Ch. 26.49)
6. The City Signalization Fee
7. Art in Public Places Fee (PDMC Ch. 4.10)
8. Low Income Housing Fee
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ORDINANCE NO. 1225A
TABLE OF CONTENTS
Page
ARTICLE 1. GENERAL PROVISIONS........................................................................................3
1.1. Parties.................................................................................................................3
1.2. Property Subject to this Development Agreement ................................................ 3
1.3. Term.................................................................................................................... 3
1.4. Project Approvals................................................................................................. 4
ARTICLE 2. DEVELOPMENT OF THE PROPERTY.................................................................. 5
2.1. Project Development........................................................................................... 5
2.2. Vested Elements.................................................................................................5
2.3. Development Construction Completion................................................................5
2.4. Effect of Project Approvals and Applicable Rules: Future Rules ..........................6
2.5. Processing Subsequent Approvals...................................................................... 8
2.6. Development Fees. Exactions; and Conditions....................................................9
2.7. Public Services..................................................................................................10
2.8. Taxes and Assessments....................................................................................10
2.9. Life of Project Approvals and Subdivision Maps................................................11
2.10. Further CEQA Environmental Review................................................................11
2.11. Design/Development Standards.............................................:..........................11
2.12. Developer's Right to Rebuild.............................................................................13
2.13. Written Verification of Sufficient Water Supply...................................................13
ARTICLE 3. ADDITIONAL RIGHTS AND OBLIGATIONS OF THE PARTIES;
ALLOCATIONS OF RIGHTS AND OBLIGATIONS OF THE PARTIES.....................................13
3.1. Public Infrastructure...........................................................................................13
3.2. Public Improvements.........................................................................................13
ARTICLE4. ANNUAL REVIEW................................................................................................14
4.1.
Annual Review...................................................................................................14
4.2.
Commencement of Process...............................................................................14
4.3.
Developer Compliance Letter............................................................................14
4.4.
Planning Director Review...................................................................................14
4.5.
Planning Director Compliance Finding...............................................................14
4.6.
Planning Director Noncompliance Finding.........................................................14
4.7.
Cure Period....................................................................................................15
...on
4.8.
Referral of Noncompliance to Planning Commissi.........................................15
4.9.
Delivery of Documents.......................................................................................15
4.10.
Planning Commission Compliance Finding........................................................15
4.11.
Planning Commission Noncompliance Finding; Referral to Citv
Council..............................................................................................................15
4.12.
Relationship to Default Provisions.....................................................................16
ARTICLE5. AMENDMENTS....................................................................................................16
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5.1. Amendments to Development Agreement Legislation ........................................16
5.2. Amendments to or Cancellation of Development Agreement .............................16
5.3. Operating Memoranda.......................................................................................17
5.4. Amendments to Project Approvals.....................................................................17
ARTICLE 6. DEFAULT, REMEDIES AND TERMINATION.......................................................18
6.1. Events of Default...............................................................................................18
6.2. Meet and Confer................................................................................................18
6.3. Remedies and Termination................................................................................19
6.4. Legal Action by Parties......................................................................................19
6.5. Effects of Litigation............................................................................................19
6.6. Judicial Reference............................................................................................. 20
6.7. Termination........................................................................................................20
ARTICLE 7. COOPERATION AND IMPLEMENTATION...........................................................21
7.1. Further Actions and Instruments........................................................................21
7.2. Regulation by Other Public Agencies.................................................................21
7.3. Other Governmental Permits and Approvals Grants ......................................... 21
7.4. Cooperation in the Event of Legal Challenge.....................................................22
7.5. Revision to Proiect.............................................................................................22
7.6. State. Federal or Case Law............................................................................... 22
7.7. Defense of Agreement.......................................................................................22
ARTICLE 8. TRANSFERS AND ASSIGNMENTS..................................................................... 23
8.1. Right to Assign..................................................................................................23
8.2. Release upon Transfer...................................................................................... 23
8.3. Covenants Run with the Land............................................................................ 24
ARTICLE 9. MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE..............................24
9.1. Mortga-gee Protection........................................................................................24
9.2. Mortgagee Not Obli -gated ...................................................................................25
9.3. Notice of Default to Mortgagee: Right of Mortgagee to Cure..............................25
9.4. No Supersedure................................................................................................25
9.5. Technical Amendments to this Article 9.............................................................25
ARTICLE 10. MISCELLANEOUS PROVISIONS.......................................................................25
10.1. Limitation on Liability......................................................................................... 25
10.2. Force Maieure...................................................................................................25
10.3. Notices. Demands and Communications Between the Parties ...........................26
10.4. Project as a Private Undertaking: No Joint Venture or Partnership .................... 27
10.5. Severability........................................................................................................27
10.6. Section Headings..............................................................................................27
10.7. Construction of Agreement................................................................................ 28
10.8. Entire Agreement...............................................................................................28
10.9. Estoppel Certificates..........................................................................................28
10.10. Recordation....................................................................................................... 28
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10.11. No Waiver..........................................................................................................28
10.12. Time Is of the Essence...................................................................................... 29
10.13. Applicable Law..................................................................................................29
10.14. Attorneys' Fees..................................................................................................29
10.15. Third Party Beneficiaries....................................................................................29
10.16. Constructive Notice and Acceptance................................................................. 29
10.17. Counterparts......................................................................................................29
10.18. Authority............................................................................................................ 29
EXHIBITA................................................................................................................................32
EXHIBITB................................................................................................................................33
EXHIBITC................................................................................................................................34
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September 20, 2011
�a
Members of the City Council
cn
73510 Fred Waring Dr.
-_r
Palm Desert, CA 92260
o
m rrr
RE: Development Agreement for Proposed Hotel
-4 CD
w
>
m
Members of the City Council,
I reviewed the Development Agreement (DA) for the Highway 74 hotel and continue to be
concerned about several features of the document. First, I do not believe that city property
should be transferred until the developer is in a position to start construction. This provides
assurances that, in fact, the developer will build the project, and not simply flip it to some
unknown entity after the city has transferred the frontage road. Second, in light of the
continued representations by the developer, it is unclear why the DA stipulates that a "four
star" hotel will be built. Shouldn't this be a "five star" facility particularly after the developer's
testimony at the August 25, 2011, council meeting that the desert market is "saturated" with
three and four star hotels already? Below are additional, specific concerns.
1. Section 1.3.2: Term: It is unclear why the DA contains a ten-year window to start
construction. The developer has "sold" his project during the planning approval process
on the purported revenue to the city, including benefits to the El Paseo businesses and
surrounding property values. In view of his insistence of the viability of this project, it is
puzzling that he needs ten years to pull building_ permits. This length of time undercuts
the short- and medium -term benefits that have been expressed repeatedly as justification
for the project.
2. Definitions - The DA should include a section of definitions, including what is included
in Furniture, Fixtures and Equipment (FF&E), see below.
3. Section 2.3.3: No Other Requirements: The section puts no affirmative obligation on
the developer to perform on the project. Given the dedication of city property to the
project, there needs to be some assurances that certain performance milestones are met.
At a minimum no dedication of city property should be made until building permits are
pulled to ensure the project will proceed.
4. Section 10.18: Authority: The name of the parties to the DA are confusing and
unclear. Thus far the names PDH Partners and Friedman Equities have been represented
to the city in the context of the development team. Yet, the DA is executed by EP-
Monterey, LLC. Who is this entity? How does it relate to PDH and Friedman? Has the
City done a check on EP-Monterey, LLC and its members?
5. Section 8.1.: Right to Assign: This provision allows the developer to sell, transfer or
assign the project, without City approval. Because of the dedication of city resources,
including the number of exceptions made in the planning process on the purported
strength of the development team, this section needs to be eliminated.
6. Section 2.11.1 (3): Hotel Luxury Standard: This section states that to achieve the
purported four star quality standard, the developer shall spend at least $75,000 (the "Per
Room FF&E Allowance") which is the product of the total amount spent "inclusive of
both hotel rooms and publicly available common areas" and divided by the number of
hotel rooms. This number will be skewed by the high costs to develop common areas
including the restaurant, lobby bar and outdoor lounge, pool area (including bar and
grill,) spa, ultra -lounge, retail, and meeting space. I am not clear on how the $75,000
minimum was derived, and whether it correlates to a "four star" rating. In any event,
the DA should define each term - including what constitutes a furnishing, fixture and
equipment, as well as list the common areas. This is particularly important given the
developer repeatedly stresses that he will spend $75,000 per room. Thus, there seems to
be some inconsistency between the developer representations and the DA
7. Correct Dates - All dates in the DA should be reviewed to reflect actual meetings.
8. Section 2.9.3: Termination of Agreement - This provision seemingly allows the
developer a way around the current ten year term of the DA. If the developer is unable
to perform within the DA term, there should be no additional time extended via the
Subdivision Map act.
9. Section 2.11.1: Hotel Luxury Standard - In view of testimony about how ratings are
rendered, perhaps this section needs to be strengthened with language defining the
required hotel management experience of the hotel manager/operator.
10. Section 4.3: Developer Compliance Letter: This allows an open-ended response time
from the developer. It should state "Not more than thirty (30) days", or "Within thirty
(30) days".
11. Section 5.3: Operating Memoranda: Defers all decisions related to changes in
Operating Memoranda to the City Manager. Are you comfortable with this delegation
of power?
12. While I am skeptical of the feasibility of the project, I find that justifying the project as
a means of "saving" El Paseo businesses is inconsistent with the developer's own market
study. It states "The boutique hotel will be designed as an all-inclusive experience
where guests can dine, relax, and enjoy an active night scene without leaving the
Property"
13. Regarding the pricing of the condos at an average of $2 million, it is hard to reconcile
the developer's numbers with the realities of the market. Enclosed find a detached unit
for sale in Bighorn Golf Club, furnished, for $1,395,000.
I am available to you in person or by phone to discuss this matter further.
Respectfully,
Kim Housken
73237 Somera
Palm Desert, CA 92260
760-346-3931
143 Wikil Place, Palm Desert
A private gated courtyard entry with lush landscaping, bubbling water feature and
relaxing spa is the perfect start to this 3 bedroom/3.5 bath retreat. This Bighorn
Villa includes a great room with fireplace and wet bar with views to the pool and
hillside night lit waterfall.
A bright, well equipped granite kitchen is a central hub in between casual and
formal dining rooms offering plenty of preparation and storage space in this
thoughtful floor plan.
The master bedroom is complete with fireplace, spacious walk-in closet, double
vanities, soaking tub and access outdoors.
Principal rooms with walls of glass open to a fantastic back patio tucked against
a desert scape hillside for ultimate seclusion while swimming, sunning and
entertaining.
3 bedrooms & 3.5 baths
Built 1995
Home approximately 2,985 sq. ft.
Lot size approximately 11,326 sq. ft.
Wet bar
2 fireplaces
Outdoor fire ring
Swimming pool w/waterfall
Front courtyard spa
2 car plus golf cart garage
Excellent proximity to practice range
Offered at $1,395,000 Furnished
September 22, 2011
Ms. Ricki Brodie
40591 Pebble Beach Circle
Palm Desert, CA 92211
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Mayor Jean M. Benson
City of Palm Desert
City Hall
73-510 Fred Waring Dr.
Palm Desert, CA 92260
Dear Mayor Benson,
I was so glad to hear that you had voted against The Rosewood Project. I think it seems
like a boondoggle. I see no reason to believe that people will buy a $2,000,000 condo at
the Rosewood Project when so many bargains are available at Country Clubs like
Thunderbird, and Big Horn.
If there is no way you can get the project stopped —can you at least get the 10 year time
limit that has been given The Rosewood Project down to something reasonable — perhaps
three years? Ten years is a long time to give to any business holding such valuable land
and part of Palm Desert's future.
Again, thank you for all your good work.
Sincerely yours, p
Ricki Brodie
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September 22, 2011
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Ms. Ricki Brodie
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Palm Desert, CA 92211
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Councilwoman Cindy Finerty
City of Palm Desert
City Hall
73 -5 10 Fred Waring Dr.
Palm Desert, CA 92260
Dear Councilwoman Finerty,
I was glad to hear that you had voted against The Rosewood Project. I think it's a waste
of the City's time, prestige and land. I see no reason to believe that people will buy a
$2,000,000 condo at the Rosewood Project when so many bargains are available at
Country Clubs like Thunderbird, and Big Horn.
Further, the jobs in the hotel business are usually low paying (maids and food servers,
etc.) and it seems unlikely that most people working at the hotel can afford to live in
Palm Desert.
If there is no way you can get the project stopped, can you at least get the 10 year time
limit that has been given The Rosewood Project down to something reasonable — perhaps
three years? Ten years is a long time to give to any business holding such valuable land
and part of Palm Desert's future.
Again, thank you for all your good work.
Sincerely yours,
Ricki Brodie
September 23, 2011
Ms. Ricki Brodie
40591 Pebble Beach Circle
Palm Desert, CA 92211
Councilman Robert A. Spiegel
City of Palm Desert
City Hall
73-510 Fred Waring Dr.
Palm Desert, CA 92260
Dear Councilman Spiegel,
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I was disappointed to learn of your support for The Rosewood Project. I think it's a
waste of the City's land. I see no reason to believe that people will buy a $2,000,000
condo at the Rosewood Project when so many bargains are available at country clubs like
the Thunderbird, and Big Horn.
Further, the jobs in the hotel business are usually low paying (maids and food servers,
etc.) and it seems unlikely that most people working at the hotel can afford to live in
Palm Desert.
A way to increase business on El Paseo would be to have a weekly Street Fair. You
would be surprised how many well-off people enjoy attending Street Fairs, buy gifts and
go to dinner at local restaurants.
Would it be possible to get the 10 year time limit that has been given The Rosewood
Project down to something reasonable — perhaps three years? Ten years is a long time to
give to any business holding such valuable land and part of Palm Desert's future.
Sincerely yours,
Ricki Brodie
Klassen, Rachelle
From: Bagato, Tony
Sent: Tuesday, September 27, 2011 1:48 PM
To: Klassen, Rachelle
Subject: FW: Development agreement 09-507 / "Rosewood Hotel' project
Rachelle,
I am not sure if you received this, so I am passing it on.
Tony
From: jani @dslextreme.com [mailto:jani@dslextreme.com]
Sent: Tuesday, September 27, 2011 1:30 PM
To: Bagato, Tony
Subject: Development agreement 09-507 / 'Rosewood Hotel' project
jan co{fyn
363 sandpiper
Palm clesert, ca
Jani@cislextremexom
MEETING DATE: September 29, 2011
City of Palm desert, City Council:
Mayor Jean Benson
Mayor Pro Tem Robert Spiegel
Council Member Cindy Finerty
Council Member Jan Harnik
Council Member William Kroonen
1
Tony Bagato, Principal Planner
(please forward to the Council - thx)
RE: ROSEWOOD HOTEL / 5 Star Hotel Project
Dear Council and Mr Bagato:
I have heard that the Rosewood Hotel project is still an active issue, in that their Development
Plan was not acceptable. I do not know if this opens the door for citizen comments, so please
accept my apologies if I am "out of order".
Putting aside my opinion that the proposal is not in keeping with Palm Desert appeal, is too
massive for the site, and that Mr. Joblin has distorted many elements in his presentations, I have
two reservations that I am compelled to voice.
(1) Of major concern is the lack of an obligated beginning date for this project to break
ground. Two council members specifically stated Palm Desert's need for greater finances to
support our town services, particularly our safety services. This is a black vs. red finances - if
we need more revenues, it must be collected now, today Maybe the PD treasurer can "hang in
there" for a couple years; however, Mr. Joblin does not want to start this project until it is
financially beneficial to him, not until the "economy improves", which means no commitment
Many economists fear recovery may take as long as 5 years: 5 years to recover and then break
ground, plus 3-4 years to build means - best scenario completion date would be 2019. If this is
realistic, why did he say he anticipated celebrating opening day in 2015? Can we wait that
long? When the economy recovers our City will be in better financial shape without the hotel
that is just starting construction.
(2) Will this project proceed as originally presented, a 5 star hotel, Rosewood or another name
matters not:? Many people, citizens and business owners, spoke and/or wrote in favor of a 5
Star project. Would they do the same to add another 4 Star resort to our town? The difference
is very measurable. I am including my research on 4* vs 5*. It is lengthy, uncensored, but a
quick read and illustrates the dramatic difference for patron expectations, and thus influences
hotel revenues to the City and to businesses.
4
The guide below is by necessity a generalization, as star ratings are awarded by each country according to their
own rules, and the difference between a 3-star and a 4-star may be something as obscure as having a minibar in
each room. It's also worth noting that star ratings are often 'sticky', in the sense that once awarded they're rarely
taken away: a four -star built last year is probably still pretty good, but a four -star opened in 1962 and never
renovated since may well have turned into a dump.
Note also that the ratings are weakening as marketers misuse them.
Five-star hotels
The five-star hotels is the quintessential luxury hotel, offering thrills above and beyond the actual needs of the
travel. They have restaurants and night spots that are world class, with food and entertainment that draw non -
guests to sample it too.
Five-star hotels also tend to have opulent and expensive decorations; fancy gyms, swimming pools and spas.
Major five-star chains compete to offer the most ludicrous thrills imaginable: Loews offers dog -walking services,
while Conrad will let you order from a menu of pillows. Needless to say, all this comes at a steep price, and
you're unlikely to be able to justify the expense of a five-star for ordinary business travel. The other downside to
five -stardom is that hotels that can jump through all the hoops to achieve the rating are likely to be large and
impersonal.
Four -star hotels
The four -star hotel is a good business hotel. Everything works smoothly, there's Internet in every room, a well-
equipped business center, they'll arrange your airport transfer and room service is palatable and only somewhat
expensive. And your boss will probably not faint when they see the bill.
Ratings
If the hotel meets the vast list of criteria, it qualifies for a four -star rating. If, in addition to that list, it meets or
exceeds the standards of another list of about 20 detailed service benchmarks, then it qualifies for a five-star
rating award, which is the highest rating by Mobil. Five-star hotels have, for example, fresh flowers in each
room, individual showers and phones in the bathrooms, stereos and 24-hour room service.
The Difference Between Four -Star & Five -Star Hotels
by Gabi Logan, Demand Media
Butlers at five-star hotels can help you shave, draw a bath or lay out your clothes.
Hotels gain cache with their history or celebrity -studded guest list, but star ratings show potential guests what
hotels offer besides glamorous fellow visitors. Forbes Travel Guide issues hotel star ratings, also known as
Mobil Stars, according to a thorough, independent inspection of hundreds of details. To gain a four- or five-star
rating, hotels must exhibit an exacting array of high -end characteristics.
Rooms
According to the Mobil Star lodging criteria, both four -star and five-star hotels provide a luxury environment
for their guest. The differences in the physical environment, particularly the guest rooms, lie in the details. Four -
star rooms offer pampering basics such as triple -sheeted beds, no less than 10 types of hangers, and live plants.
Meanwhile, five-star rooms also include thoughtful touches that create an experience, such as fresh flowers,
high -quality glass drink -mixing materials and glasses and a stereo system.
Service
One of the key differences between four -star and five-star locations is the comprehensiveness of services
provided and graciousness of the service personnel. Four -star hotels offer polite, respectful and personal
service, bringing complimentary drinks, tidying up during turn -down service, personal service and using guest
names where appropriate. In a five-star hotel, no guest request is too outlandish, or even met with shock or
reticence. At the Lanesborough Hotel (lanesborough.com) in London, requests for rare Japanese apples, zebra
milk or a last minute call for a five -course private dinner for eight are just an average day's work for the staff of
on -call butlers.
Amenities
At either four- or five-star, you can expect your every whim to be attended to, if not already thought of before
your arrival. Guest rooms feature premium cable and two -- or three, in the case of five-star hotels -- phone
lines. Fitness rooms include personal headphones or televisions and the latest magazines. But these are really
just the bare -minimum requirements for these high star ratings. In four -star locations, expect premium modern
amenities like iPod docking alarm clocks and Wad room service ordering systems, while five-star hotels pull out
all the stops with amenities like pet room service, personally monogrammed robes and baby butlers.
Location and Environment
Five-star hotels MUST provide a distinctive experience, standing out as one of the best lodging options in their
country. Consequently, marry of the world's most well-known accommodations carry the five-star hotel
ranking: the Hotel Plaza Ahhenee (plaza-athenee-paris.com) in Paris, the Ritz Carlton (ritzcarlton.com) in New
York City and the Savoy Hotel (fairmont.com) in London. Apart from superlative service and truly plush
accommodations, these hotels share a historical pedigree that sets them apart from their four -star counterparts.
Mr. Joblin and the Rosewood (?) now talk about a 4*. Is this project is being down graded because
than likely it will not meet the demands or expectations of a 5* patron? Many of these required 5*
luxuries were not part of his presentations, only the impressive $75,000 per room decor investment
and required 10' ceilings (which was not referenced as required for 5* rating in my findings.).
Thank you for your dedication and listening, I plan to attend your meeting this Thursday. If
you have question of me please call at 949.494.2940, or 760.341.7914.
Respectfully submitted,
Jan Coffyn
September 26, 2011
Ms. Ricki Brodie
40591 Pebble Beach Circle
Palm Desert, CA 92211
Councilman William Kroonen
City of Palm Desert
City Hall
73 -5 10 Fred Waring Dr.
Palm Desert, CA 92260
Dear Councilman Kroonen,
I was disappointed to learn of your support for The Rosewood Project. I think it's a
waste of the City's property. I see no reason to believe that people will buy a $2,000,000
condo at the Rosewood Project when so many bargains are available at country clubs like
the Thunderbird, and Big Horn.
Further, the jobs in the hotel business are usually low paying (maids and food servers,
etc.) and it seems unlikely that most people working at the hotel can afford to live in
Palm Desert.
Would it be possible to get the 10 year time limit that has been given The Rosewood
Project down to something reasonable — perhaps three years? Ten years is a long time to
give to any business holding such valuable land and part of Palm Desert's future.
Sincerely yours,
Ricki Brodie
10
September 26, 2011
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Councilwoman Jan Harnik
City of Palm Desert
City Hall
73-510 Fred Waring Dr.
Palm Desert, CA 92260
Dear Councilwoman Harnik,
I was disappointed to learn of your support for The Rosewood Project. I think it's a
waste of the City's property. I see no reason to believe that people will buy a $2,000,000
condo at the Rosewood Project when so many bargains are available at country clubs like
the Thunderbird, and Big Hom.
Further, the jobs in the hotel business are usually low paying (maids and food servers,
etc.) and it seems unlikely that most people working at the hotel can afford to live in
Palm Desert.
Would it be possible to get the 10 year time limit that has been given The Rosewood
Project down to something reasonable — perhaps three years? Ten years is a long time to
give to any business holding such valuable land and part of Palm Desert's future.
Sincerely yours,
Ricki Brodie
Michelson, Wilma
From: Dianne Funk [difu1@aol.com]
Sent: Wednesday, September 28, 2011 1:59 PM
To: CityhallMail
Subject: Email for Councilmember Kroonen
September 28, 2011
Dear Councilmember Kroonen,
I am very sorry that you voted approval of the Rosewood project, taking into consideration the lobbying
efforts of the Palm Desert AREA Chamber of Commerce, over the concerns of actual local residents in
proximity to this over -sized hotel+condos.
Although those against this plan are called NIMBYs , out-of-date and nay -sayers who oppose change, I would
dispute that claim by stating we are local residents who will be most affected by this plan that exceeds the
current elevation standards. We are individuals who live here and have a right to disagree and state our
concerns about density and traffic. Personally, I would love a boutique hotel in walking distance from my
backyard!
You said at the council meeting and in the newspaper that your concerns were addressed. If you recall at the
meeting when addressing my particular concern about traffic egress from Pitahaya -- whether there was going
to be a stop light -- the answer was no to the stoplight. I hope you take the time before your next meeting to
drive over to Pitahaya and make a left hand turn from it onto Highway 74. Then, using the center median as a
safety net before merging into the right traffic lane(s), pretend and visualize traffic headed south also being in
the center median and intending to turn left into the Rosewood Hotel entry just maybe 15- 25 yards north.
What happens then?
I also hope you go to Ocotillo Street at sunset to envision the wall that will be in front of you -- though you
will have to visualize that too, since there is no way to really be sure of the height without story poles. I guess
you can just look at the images digitalized for you by the firm.
What about all those stairs, and how do all those $2million condos squeeze into that space? The
$118,000,000.00 from that sale goes to whom????? Will they ever be sold for that price without even a golf
course, let alone an ocean view? Actually, from the rendering, hardly any have a view of anything but a
courtyard and a views of other rooms.
We are not Rodeo Drive and do not have the surrounding demographics, attractions, or amenities of it. We
need to be realistic and have some sensibility.
I wish you would reconsider your thinking because you have certainly lost my support.
Dianne Funk
72755 Pitahaya
Palm Desert
Michelson, Wilma
From: Dianne Funk [difu1 @aol.com]
Sent: Wednesday, September 28, 2011 2:01 PM
To: CityhallMail
Subject: Email for Mayor Benson and Councilmember Finerty
September 28, 2011
Dear Mayor Benson and Councilmember Finerty,
I have been remiss in thanking you for your votes against the Rosewood project.
Your concern for citizens over the lobbying effort of the chamber, is very much appreciated.
The Palm Desert AREA (new name) Chamber is nothing more than a lobby enticing businesses by claiming a
hotel will be a financial boom and thereby their salvation. They have been extremely successful in their
efforts. Many members are not even from Palm Desert, as they stated at chamber's microphone their
business address -- not home address -- during public comment.
Contrary to how these members refer to those against the project, we are not opposed to change NIMBY's.
We are local residents, and I, personally, would NOT mind a hotel of smaller size in our backyard, and with
traffic concerns taken into consideration.
What has this group turned into? What is their mission? It appears they have become the primary organizer
for city elections and campaigns. What type of subsidy do they receive from the city? How much rent do they
pay to be in the beautiful new building?
I could go on, but won't. My intent was to thank you both!
Sincerely,
Dianne Funk
72755 Pitahaya
Palm Desert
Ms. Ricki Brodie
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40591 Pebble Beach Circle
Palm Desert, CA 92211
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Mayor Jean M. Bensons
City of Palm Desert
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City Hall
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73-510 Fred Waring Dr.
Palm Desert, CA 92260
Dear Mayor Benson,
Did you see the headline in yesterday's Desert Sun, it follows -
Palm Desert hotel investor
pleaded guilty to bribery in 1999
Please tell me, why are we cavorting with crooks? This Rosewood
Project involves giving away nearly an acre of land to a convicted felon
and the group he works with. Who needs this?
Palm Desert is a "clean city." Let's keep it that way and keep out New
York style corruption.
Sincerely yours,
Ricki Brodie
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Sep-28-11 12:33pm From -PALM DESERT CHAMBER OF COMMERCE
+760-346-3263 T-899 P.01/02 F-220
Palm desert area
chamber of commerce
OPENING DOORS FOR BUSINESS
Palm Desert Area
Chamber of Commerce°
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72559 Hwy 111, Palm Desert, CA 92260
(760) 346-6111 FAX (760) 346-3263 Website: www.pdcc.ora Email: info@pdcc.orq
Palm Desert Chamber of Commerce
since 1954
the leading force of the business community
Promotion & Advertising Opportunities
■ Business Expo
• Table Top Expo
• Business Directory Advertising
• Newsletter Advertising
■ Flyer Insert Packet Inclusion
■ City Map Advertising
■ Chamber Website www.Ddcc.oE
■ Website Banner Advertising
■ Grand Openings/ Ribbon Cuttings
■ Member Labels
■ Member Referrals
Networking Opportunities
■ "Business After Hours" Mixers
■ Golf Tournament
■ Monthly Breakfasts
Educational Opportunities
■ S.C.O.R.E. Counseling Sessions
■ State of the City luncheon
■ Seminars & Workshops
■ "Business to Business" Articles
Legislative Advocate
■ Business Voice for Pending legislation
Community Events
■ Make Someone A Star Breakfast
■ Palm Desert Golf Cart Parade
■ Peace Officer & Public Safety
Appreciation Day
■ Awards Programs
■ Putt Putt on El Paseo
Services
Notary
■ Certificates of Origin
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Palm Desert Chamber of Commerce
Fax # (760) 346-3263
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