HomeMy WebLinkAboutOrdinance 1225 Development Agreement 09-507 PDH Parnters LLC - RosewoodV' y .•tea.
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ORDINANCE NO.
HE CITY COUNCIL OF THE
DESERT, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT
FOR A 82 ROOM HOTEL AND 59 UNIT RESIDENTIAL CONDOMINIUM
PROJECT WITH ANCILLARY USES AND AMENITIES ON 4.97± GROSS
ACRES OF CURRENTLY VACANT LAND (4.27± ACRES) AND TO-BE-
P. `" VACATED FRONTAGE ROAD (0.7± ACRES) LOCATED EAST OF
s HIGHWAY 74, WEST OF OCOTILLO DRIVE, AND SOUTH OF THE IMAGO
,0 ca luART GALLERY. THE SUBJECT PROPERTY ADDRESS IS KNOWN AS
M o I 45-640 HIGHWAY 74.
,o, o s CASE NO. DA 09-507
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o 4-44J WHEREAS, the Planning Commission by its Resolution No. 2554 has
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N o ,, - recommended approval of Case No. DA 09-507; and
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p WHEREAS, at public hearing(s) held on this 14 day of July, 2011 and on this day
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'a r . of , 2011, the City Council heard and considered all testimony
v o and arguments of all interested persons; and
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a on o
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� "' v WHEREAS, the City Council finds that the Development Agreement is consistent
o 0 with the General Plan GENERAL LAND USE GOALS, POLICIES, AND PROGRAMS Goal
a - 2, Goal 3, and Policy 3 as described in the Findings of the City Council Resolution No.
Z011-72 and
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Q, ; � P WHEREAS, pursuant to the California Environmental Quality Act ("CEQA") (Pub.
a ro W Res. Code, § 21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs, tit. 14 §
P 15000 et seq.), the City is the lead agency for the proposed Project; and
4-4 a
b •• a o
o a � P WHEREAS, on the basis of the Initial Study, which concluded that the Project will
a not have significant impacts on the environment with mitigation, the City determined that a
o c -o G w Mitigated Negative Declaration ("MND") should be prepared for the Project, and an MND
g ° N � 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, the City Council has reviewed the MND, Initial Study, and all other
relevant information contained in the record regarding the Development Agreement and
Project and approved the MND; and
WHEREAS, 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. 1225 is hereby approved.
ORDINANCE NO. 1225
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. 1225
BY AND BETWEEN
THE CITY OF PALM DESERT
AND
EP-MONTEREY, LLC
ORDINANCE NO. 1225
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 ("City"), 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
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ORDINANCE NO. 1225
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 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 , 2011, in connection with the Project. City
has also adopted a mitigation monitoring and reporting program (the "MMRP") 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.
ORDINANCE NO. 1225
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. [ ] 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.
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. Cam. 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 is a California limited liability company.
"Developer," as used in this Development Agreement, shall 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.
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ORDINANCE NO. 1225
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 ("Term") of this Development
Agreement shall commence upon the Effective Date and shall continue in full force and
effect for a period of ten (10) years, unless extended or earlier terminated as provided in
this Agreement (including, without limitation, pursuant to Section 10.2). 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. Prolect 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 "Prolect 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 [date] (the "MND").
1.4.2. Vesting Tentative Tract Map. On June 21, 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. Development Agreement. On June 21,
2011, following Planning Commission review and recommendation, and after a duly
noticed public hearing, the City Council, by Ordinance No. [ ] approved this
Development Agreement, which incorporates 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 other Prolect Approvals 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.
1.4.4. Precise Plan. On , 2011, the City Council approved Precise
Plan [ ].
1.4.5. Conditional Use Permit. On , 2011, the City Council
approved Conditional Use Permit [ I.
1.4.6. Subseauent 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,
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ORDINANCE NO. 1225
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.
ARTICLE 2.
DEVELOPMENT OF THE PROPERTY
2.1. Proiect 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
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ORDINANCE NO. 1225
entity to regulate or control such development of land or property, including, without
limitation, vested rights in and to building permits and certificates of occupancy.
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 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 Proiect 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
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ORDINANCE NO. 1225
"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
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 or the grant of any approval(s) to another project that could have the
effect of adversely affecting the capability or adequacy of the systems serving the
Project (e.g., traffic, sewage, water impacts).
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
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ORDINANCE NO. 1225
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 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 this Development
Agreement shall control.
ORDINANCE NO. 1225
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, conditional and 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 within thirty (30) days of the initial
submission. 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. 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. Where such substantial conformity/compliance exists, City shall not deny an
application for a Subsequent Approval for the Project.
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ORDINANCE NO. 1225
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
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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.
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; such a protest by Developer shall not delay or stop the
issuance of building permits or certificates of occupancy.
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, services and utility systems, including,
without limitation, traffic circulation, storm drainage, flood control, and sanitation service,
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
ORDINANCE NO. 1225
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 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 termination
of this Agreement takes effect (including any extensions).
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 to satisfy the requirements of CEQA
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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 and will
not impose on the Project any mitigation measures or other conditions of approval other
than those specifically imposed by the Project Approvals and the MMRP or specifically
required by the Applicable Rules.
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 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
(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 in the hotel) 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
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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.
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 less 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
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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 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,
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(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 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.
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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 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
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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 amendment will generate significant public interest or significant policy
issues, the Planning Director may refer the application to the Planning Commission for
ORDINANCE NO. 1225
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
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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 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
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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 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
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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 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
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ORDINANCE NO. 1225
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.
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, to select its own counsel (and pay for such
counsel at its own expense), and to control its participation and conduct in the litigation
in all respects permitted by law. If both Parties elect to defend, the Parties hereby
agree to affirmatively cooperate in defending said action and to execute a joint defense
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ORDINANCE NO. 1225
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. City
retains the option to select and employ independent defense counsel at its own
expense. If, in the exercise of its sole discretion, Developer agrees to pay for defense
counsel for City, Developer shall jointly participate in the selection of such counsel.
Notwithstanding the provisions of California Government Code Section 66474.9, City
shall not require, as a condition for a tentative map application or approval, or any other
applications for Project Approvals, that Developer defend, indemnify or hold harmless
the City from any claim, action or proceeding against the City to attack, set aside, void
or annul a City approval concerning a subdivision. 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, at the earliest possible time, (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 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.
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
24
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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. Other than Transfers of individual residential condominium
units located on the Property, Developer shall provide City no later than thirty (30) days
prior to the close of escrow for any Transfer the identity of the proposed transferee, a
summary of the proposed transferee's qualifications, and a copy of the proposed
assignment and assumption agreement between Developer and the proposed
transferee.
8.2. Release upon Transfer. Upon the Transfer of Developer's rights and
interests under this Development Agreement pursuant to Section 8.1, 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 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
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ORDINANCE NO. 1225
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 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 a Mortgagee shall not be entitled to
devote the Property to any uses or to construct any improvements thereon other than
those uses or improvements provided for or authorized by this Development
Agreement, or by the Project Approvals and Applicable Rules.
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
26
ORDINANCE NO. 1225
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 Maieure. 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 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,
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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
ORDINANCE NO. 1225
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 Undertakinq; 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,
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ORDINANCE NO. 1225
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.
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
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ORDINANCE NO. 1225
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.
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.
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ORDINANCE NO. 1225
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.
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 , City Clerk
APPROVED AS TO FORM:
City Attorney
32
ORDINANCE NO. 1225
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.
[Seal]
Signature of Notary Public
33
ORDINANCE NO. 1225
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.
34
ORDINANCE NO. 1225
EXHIBIT B
MAP OF PROPERTY
TY MAP
w
NO r M SL ,
35
ORDINANCE NO. 1225
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
36
ORDINANCE NO. 1225
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...........................................................................................................4
1.4. Proiect Approvals.......................................................................................4
ARTICLE 2. DEVELOPMENT OF THE PROPERTY.......................................................5
2.1. Proiect Development..................................................................................5
2.2. Vested Elements........................................................................................5
2.3. Development Construction Completion......................................................6
2.4. Effect of Proiect Approvals and Applicable Rules• Future
Rules.......................................................................................................... 6
2.5. Processino Subsequent Approvals............................................................9
2.6. Development Fees, Exactions; and Conditions........................................10
2.7. Public Services.........................................................................................11
2.8. Taxes and Assessments..........................................................................11
2.9. Life of Proiect Approvals and Subdivision Maps......................................12
2.10. Further CEQA Environmental Review......................................................12
2.11. Design/Development Standards...............................................................13
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................................................................................14
ARTICLE 4. 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.....................................................15
4.6. Planning Director Noncompliance Finding...............................................15
4.7. Cure Period.............................................................................................15
4.8. Referral of Noncompliance to Planning Commission...............................15
4.9. Delivery of Documents.............................................................................16
ORDINANCE NO. 1225
4.10. Planning Commission Compliance Finding..............................................16
4.11. Planning Commission Noncompliance Finding• Referral to
CityCouncil..............................................................................................16
4.12. Relationship to Default Provisions .......................................
ARTICLE5. AMENDMENTS.........................................................................................17
5.1. Amendments to Development Agreement Legislation .............................17
5.2. Amendments to or Cancellation of Development Agreement...................17
5.3. Operating Memoranda.............................................................................17
5.4. Amendments to Project Approvals...........................................................18
ARTICLE 6. DEFAULT, REMEDIES AND TERMINATION...........................................19
6.1. Events of Default......................................................................................19
6.2. Meet and Confer......................................................................................20
6.3. Remedies and Termination......................................................................20
6.4. Legal Action by Parties.............................................................................20
6.5. Effects of Litigation................................................................................... 21
6.6. Judicial Reference....................................................................................21
6.7. Termination..............................................................................................22
ARTICLE 7. COOPERATION AND IMPLEMENTATION...............................................22
7.1. Further Actions and Instruments..............................................................22
7.2. Regulation by Other Public Agencies.......................................................23
7.3. Other Governmental Permits and Approvals• Grants...............................23
7.4. Cooperation in the Event of Legal Challenge...........................................23
7.5. Revision to Proiect...................................................................................24
7.6. State. Federal or Case Law......................................................................24
7.7. Defense of Agreement.............................................................................24
ARTICLE 8. TRANSFERS AND ASSIGNMENTS.........................................................24
8.1. Right to Assign.........................................................................................24
8.2. Release upon Transfer.............................................................................25
8.3. Covenants Run with the Land..................................................................25
ARTICLE 9. MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE..................26
9.1. Mortgagee Protection...............................................................................26
9.2. Mortgagee Not Obligated.........................................................................26
9.3. Notice of Default to Mortgagee; Right of Mortgagee to Cure....................26
9.4. No Supersedure.......................................................................................27
9.5. Technical Amendments to this Article 9...................................................27
ARTICLE 10. MISCELLANEOUS PROVISIONS...........................................................27
an
ORDINANCE NO. 1225
10.1. Limitation on Liability................................................................................27
10.2. Force Maieure..........................................................................................27
10.3. Notices. Demands and Communications Between the
Parties...................................................................................................... 28
10.4. Proiect as a Private Undertaking• No Joint Venture or
Partnership............................................................................................... 29
10.5. Severability...............................................................................................29
10.6. Section Headings..................................................................................... 30
10.7. Construction of Agreement.......................................................................30
10.8. Entire Agreement.....................................................................................30
10.9. Estoppel Certificates
10.10. Recordation.............................................................................................. 30
10.11. No Waiver................................................................................................31
10.12. Time Is of the Essence.............................................................................31
10.13. Applicable Law......................................................................................... 31
10.14. Attorneys' Fees........................................................................................31
10.15. Third Party Beneficiaries..........................................................................31
10.16. Constructive Notice and Acceptance........................................................31
10.17. Counterparts............................................................................................31
10.18. Authority...................................................................................................32
EXHIBITA.....................................................................................................................34
EXHIBITB.....................................................................................................................35
EXHIBITC....................................................................................................................36
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