HomeMy WebLinkAbout2051ORDINANCE NO. 2051
AN ORDINANCE OF THE CITY COUNCIL OF CITY OF PALM
SPRINGS, CALIFORNIA, AMENDING SECTION 94.08.09 OF THE
PALM SPRINGS ZONING CODE AND APPROVING A
DEVELOPMENT AGREEMENT AMENDMENT WITH PS
COUNTRY CLUB, LLC, RELATED TO THE SERENA PARK
PROJECT PERFORMANCE SCHEDULE FOR CONSTRUCTION,
THE DEVELOPMENT AGREEMENT FEE PAYMENT DATE, AND
OTHER MINOR REVISIONS RELATED TO THE CONVERSION OF
THE PALM SPRINGS COUNTRY CLUB GOLF COURSE INTO 386
RESIDENTIAL UNITS LOCATED NORTH OF VERONA ROAD,
EAST OF SUNRISE WAY AND SOUTHWEST OF THE
WHITEWATER RIVER WASH (CASE 5.1427 DA AMENDMENT).
City Attorney's Summary
This Ordinance amends Section 94.08.09 of the City's Zoning Code
relating to an amendment to the Development Agreement with PS
Country Club, LLC, to revise the performance schedule for
construction, modify the payment dates of the Development
Agreement Fee, memorialize phasing of utility undergrounding and
other minor revisions related to the Serena Park Project, which is 386
unit residential project proposed on 126-acres of land.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
A. PS Country Club, LLC, a California limited liability company, ("Applicant" or
"Developer") filed an application pursuant to Palm Springs Zoning Code Section 94.07.00
(Zone Map Change / Change of Zone) and Section 94.03.00 (Planned Development
District) seeking approval of a Planned Development District in lieu of a Change of Zone
(Case 5.1327 PD-366) to construct 386 residential dwellings, private streets and open
space, including a public park, on 126-acres of previously disturbed land (defunct golf
course) generally located north of Verona Road, east of Sunrise Way, and southwest of
the Whitewater River channel (APN 501-190-002, 501-190-011, 669-480-027) ("Project").
B. The Applicant submitted related Project applications, including a General Plan
Amendment (Case 5.1327 PD-366/GPA) to change the land use designation from "Open
Space — Parks/Recreation" to "Very Low Density Residential;" a Tentative Tract Map
application (Case TTM 36691) to subdivide the subject property into 386 residential lots
and common area parcels for public and private streets and open space pursuant to Title
9 of the Palm Springs Municipal Code; a Major Architectural application to review
proposed architecture pursuant to Section 94.04.00 of the Zoning Code; and a
Development Agreement (Case 5.1327 DA) to establish conditions, terms and obligations
for the development of the Project.
Ordinance No. 2051
Page 2
C. In accordance with Section 15063 of the California Environmental Quality Act
(CEQA) Guidelines, the City of Palm Springs as the Lead Agency conducted an Initial
Study and determined that the Project raised potentially significant environmental
impacts. An Environmental Impact Report (EIR) was prepared to assure adequate review
and analysis of potentially significant environmental impacts associated with the Project.
D. A notice of a public hearing of the Planning Commission of the City of Palm
Springs, California to consider the above -mentioned applications was given in
accordance with applicable law, and on April 13, 2016, the Planning Commission carefully
reviewed and considered all of the evidence presented in connection with the hearing on
the Project, including but not limited to the staff report, and all written and oral testimony
presented, and voted 5-1 to recommend approval to the City Council of the Project.
E. On April 27, 2016, the Planning Commission carefully reviewed and considered all
of the evidence presented in connection with the proposed Development Agreement and
voted 6-0 to recommend approval to the City Council.
F. A notice of public hearing of the City Council of the City of Palm Springs, California
to consider the above -mentioned applications was given in accordance with applicable
law and on September 7, 2016, the City Council held a public hearing in accordance with
applicable law, and carefully reviewed and considered all of the evidence presented in
connection with the hearing on the Project, including but not limited to the staff report,
and all written and oral testimony presented. The City Council reviewed and certified the
Final EIR for the Project by adopting its Resolution No. 24082, identified as Case No.
5.1327, PD-366, and TTM 36691, and voted 5-0 to conditionally approve the Project.
G. As part of the conditional approval of the Project, the City Council included
Administrative Condition (ADM 13) which states: "Approval of these land use entitlement
applications is contingent upon the approval of a development agreement. The
development agreement shall address the conversion of open space for development
purposes, through in -kind replacement of open space, payment of in -lieu fees for the
acquisition of open space, or replacement of open space through a density transfer,
pursuant to Policy LU2.2 of the City of Palm Springs General Plan."
H. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the Legislature
of the State of California has enacted California Government Code § 65864 et seq. (the
"Development Agreement Statute"), which authorizes City to enter into an agreement with
any person having a legal or equitable interest in real property regarding the development
of such property. This Development Agreement has been processed, considered, and
approved in accordance with the procedures and requirements as set forth in the
Development Agreement Statute.
Ordinance No. 2051
Page 3
I. Pursuant to Government Code section 65865(c), the City of Palm Springs
previously adopted Ord. 1829 § 3, 2013; Ord. 1294, 1988 [PSMC § 94.08.00], that set
forth rules and regulations establishing procedures and requirements for consideration of
development agreements. This Development Agreement has been processed,
considered, and approved in accordance with the procedures and requirements as set
forth in the City's Ordinances and Municipal Codes.
J. A notice of public hearing of the City Council of Palm Springs, California to consider
the Development Agreement associated with the Project was given in accordance with
applicable law and on July 19, 2017, the City Council carefully reviewed and considered
all of the evidence presented in connection with the hearing on the Development
Agreement, including but not limited to the staff report, all written and oral testimony
presented, and voted 4-0 to approve the Development Agreement, by introducing
Ordinance 1931 with a second reading on July 26, 2017. The approved Development
Agreement included a Performance Schedule that included the requirement that certain
milestones be met.
K. On July 8, 2021, the Applicant filed an amendment to the approved Development
Agreement, Case 5.1327 DA, ("Amendment") to postpone payment of the Development
Agreement Fee until November 1, 2022 (Section 4.03 of Development Agreement);
modify and extend the approved Performance Schedule as shown in the table below
(Exhibit D of Development Agreement); and modify the timeframe for utility
undergrounding for the Project as required by the Conditions of Approval.
APPROVED DATE
PROPOSED REVISION
DATE
ACTIVITY
July 19, 2017
DA First Hearin
Se t 2017
DA Second Hearin
November 2018
Final Execution DA Effective Date
March 2019
Financing Phase 1
April 2019
Start Engineering
October 2019
March 2022
Improvement Plan Approval/ Record
Phase 1 Ma
April 2020
Record Phase 2 Ma
June 2020
March 2022
Infrastructure Construction Phase I
Park will be built during thisphase)
September 2020
Aril 2023
Infrastructure Construction Phase 2
March 2021
December 2022
Close Phase 1 First House
April 2021
February 2024
Infrastructure Construction Phase 3
August 2021
February 2024
Close Phase 2 First House
October 2021
January 2024
Record Phase 3 Ma
December 2021
January 2024
Record Phase 4 Ma
January 2022
March 2025
Close Phase 3 First House
A ril 2022
February 2024
Infrastructure Construction Phase 4
January 2023
March 2025
Close First House Phase 4
Ordinance No. 2051
Page 4
L. A notice of a public hearing of the Planning Commission of the City of Palm Springs,
California to consider the proposed Amendment was given in accordance with
applicable law and on September 1, 2021, the Commission carefully reviewed and
considered all of the evidence presented in connection with the hearing on the
Amendment, including but not limited to the staff report, all written and oral testimony
presented and voted 7-0 to recommend conditional approval of the Amendment to the
City Council.
M. A notice of a public hearing of the City Council of the City of Palm Springs, California
to consider the proposed Amendment was given in accordance with applicable law
and on September 30, 2021, the City Council carefully reviewed and considered all of
the evidence presented in connection with the hearing on the Amendment, including
but not limited to the staff report, all written and oral testimony presented.
N. The City Council determined that the Amendment associated with the Project is
considered a "project" pursuant to the terms of the California Environmental Quality
Act ("CEQA").
O. The City Council also found that no further environmental documentation, beyond the
documentation prepared in conjunction with the EIR for the Project, is required
because:
1. There are no substantial changes in the project that will require major
revisions to the EIR due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified
significant effects;
2. There are no substantial changes with respect to the circumstances under
which the project is being undertaken which will require major revisions of
the EIR due to the involvement of new significant environmental effects or
a substantial increase in the severity of previously identified significant
effects; and
3. There is no new information of substantial importance which was not known
and could not have been known with the exercise of reasonable diligence
at the time the EIR was certified showing that:
a. The project will have one or more significant effects not discussed
in the EIR;
b. Significant effects previously examined will be substantially more
severe than shown in the EIR;
c. Mitigation measures or alternatives previously found not to be
feasible would in fact be feasible, and would substantially reduce
one or more significant effects of the project, but those mitigation
measures or alternatives have not been adopted; or
d. Mitigation measures or alternatives considerably different from
those analyzed in the EIR would substantially reduce one or more
significant effects on the environment, but the mitigation measures
or alternatives have not been adopted.
Ordinance No. 2051
Page 5
(Public Resources Code section 21166; CEQA Guidelines section 15162.)
P. The City Council also found that the Amendment complies with the provisions of
Palm Springs Zoning Code Section 94.08.00, as follows:
Is consistent with the objectives, policies, general land uses and programs
specified in the general plan and any applicable specific plan;
The requested revisions to the Development Agreement provide for a
postponement in the commencement of the project and payment of a required fee.
The modifications will not result in inconsistencies to any objectives, policies,
general plan land uses or programs.
2. Is compatible with the uses authorized in, and the regulations prescribed for,
the land use district in which the real property is located;
The uses will not be affected by the Amendment. The Development Agreement
remains the same for the subject property and permits 386 residential units,
streets, and park space.
3. Is in conformity with public convenience, general welfare and good land use
practice;
The Development Agreement remains consistent with the previously approved
entitlements, which will allow attached and detached residential units that are
compatible with adjacent and surrounding residential developments in the vicinity.
4. Will not be detrimental to the health, safety and general welfare;
The amended development agreement allow for the postponement of the project
moving forward by 1.5 years. However, the project benefits will still occur, including
removal of blight, provision of housing, and improvement of park space. Therefore,
the Amendment will not be detrimental to the health, safety and general welfare.
5. Will not adversely affect the orderly development of property or the preservation
of property values.
The Amendment will permit orderly development of single -story homes with a
density that is compatible with surrounding development patterns. The proposed
amendment will only affect the time in which said development occurs, which is
not anticipated to adversely affect the preservation of property values.
Ordinance No. 2051
Page 6
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. The findings and determinations reflected above are all true and correct, and are
incorporated by this reference herein as the cause and foundation for the action taken by and
through this Ordinance.
Section 2. The Final EIR for the Project is the controlling environmental document for the
Council's consideration of the Amendment to the Development Agreement.
Section 3. In accordance with Section 94.08.00 of the Palm Springs Zoning Code, the City
Council hereby approves the Amendment to the Development Agreement, including the
requested date revisions to Exhibit D (Performance Schedule); the requested extension of a
portion of the Development Agreement Fee from November 1, 2021 to November 1, 2022; and
determines the utility undergrounding shall occur prior to occupancy permits for Phase 3B.
Section 4. The City Council authorizes the City Manager to execute the Amendment to the
Development Agreement between the City of Palm Springs and PS Country Club, LLC in a
form substantially similar to that attached to this Ordinance, and incorporated by this reference
herein as EXHIBIT 'A" and to take all steps necessary to complete its recordation.
Section 5. Palm Springs Zoning Code Section 94.08.10 is hereby amended by adding a
new subdivision (A)(4) to read as follows:
14. Amendment to Development Agreement. In 2021, the City Council approved an
amendment modifying Exhibit D, the "PERFORMANCE SCHEDULE." The approved
modification provided for a construction timeline originally scheduled to commence in June of
2020 with the first phase home being completed March of 2021, to commence in March of
2022 with the first phase home being completed in December of 2022. The Council also
approved a deferral of a portion of the Development Agreement Fee until November 1, 2022,
as set forth in the Development Agreement."
Section 6. The Mayor shall sign and the City Clerk shall certify to the passage and adoption
of this Ordinance and shall cause the same, or the summary thereof, to be published and
posted pursuant to the provisions of law and this Ordinance shall take effect thirty (30) days
after passage.
ADOPTED THIS 14TH DAY OF OCTOBER, 2
Ordinance No. 2051
Page 7
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE) ss.
CITY OF PALM SPRINGS)
I, Anthony J. Mejia, City Clerk of the City of Palm Springs, hereby certify that Ordinance
No. 2051 is a full, true and correct copy, and was duly introduced at a regular meeting of
the City Council of the City of Palm Springs on September 30, 2021, and adopted at a
regular meeting of the City Council of the City of Palm Springs on October 14, 2021, by
the following vote:
AYES: Councilmembers Garner, Kors, Woods, Mayor Pro Tern Middleton, and
Mayor Holstege
NOES: None
ABSENT: None
ABSTAIN: None
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the
City of Palm Springs, California, this ;5' day of 06vemb-,/ �zl
Anthony J. Meiia Clerk
City of Palm prings, Lalifornia
1
Ordinance No. 2051
Page 8
RECORDING REQUESTED BY:
CITY OF PALM SPRINGS
AND WHEN RECORDED MAIL TO:
CITY OF PALM SPRINGS
OFFICE OF THE CITY CLERK
3200 E. TAHQUITZ CANYON WAY
PALM SPRINGS, CA 92262
SPACE ABOVE FOR RECORDER'S USE ONLY
Pursuant to Government Code Section 6103, recording fees shall not apply
FIRST AMENDED AND RESTATED
DEVELOPMENT AGREEMENT BY AND BETWEEN
CITY OF PALM SPRINGS
AND
PS COUNTRY CLUB, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
ri •;
SERENA PARK PROJECT
CASE NO. 5.1327, PDD-366, TTM36691
Title of Document
THIS AREA FOR
RECORDER'S
USE ONLY
Ordinance No. 2051
Page 9
FIRST AMENDED AND
RESTATED
DEVELOPMENT AGREEMENT
THIS FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT (this
"Agreement" or "Development Agreement") is entered into by and between the City of
Palm Springs, a California Charter City and municipal corporation, ("City"), and PS
Country Club, LLC, a California Limited Liability Company ("Developer"), pursuant to
California Government Code § 65864 et sue.
RECITALS
A. Development Agreement Statute. To strengthen the public planning process,
encourage private participation in comprehensive planning, and reduce the economic risk
of development, the Legislature of the State of California has enacted California
Government Code § 65864 et seg. (the "Development Agreement Statute"), which
authorizes City to enter into an agreement with any person having a legal or equitable
interest in real property regarding the development of such property. This Development
Agreement has been processed, considered, and executed in accordance with the
procedures and requirements as set forth in the Development Agreement Statute.
B. City Ordinance. Pursuant to Government Code section 65865(c), City has
adopted Ord. 1829 § 3, 2013; Ord. 1294, 1988 [PSMC § 94.08.00], that set forth rules
and regulations establishing procedures and requirements for consideration of
development agreements. The parties acknowledge:
a. This Agreement will assure adequate public facilities at the time of development.
b. This Agreement will assure development in accordance with City's land use policies
and goals
c. This Agreement will provide for orderly growth consistent with the City's General Plan,
and other public policies.
d. This Agreement is intended to provide certainty in the development approval process
by vesting the permitted uses, densities and intensity of use with respect to the subject
property.
e. The execution of this Agreement furthers the public health, safety and general welfare
of the community.
f. This Agreement will remove a nuisance situation and potential liability due to the blight
at no cost to City.
g. This Agreement will protect residents and the City from the issues that typically
accompany blighted areas.
h. This Agreement will allow development of a blighted area with appropriate housing
and open space that is compatible with the surrounding neighborhoods.
i. This Agreement will reduce potential trespasses and nuisances affecting adjacent
neighborhoods.
Ordinance No. 2051
Page 10
j. This Agreement will reduce air pollution by reason of a significant reduction in wind
borne dust and sand to adjacent neighborhoods.
k. This Agreement will increase parkland in an underserved area of the City.
This Agreement will allow legal commitments by Developer over and above those
allowed by state law and the Palm Springs Municipal Code requirements.
C. Description of the Protect and Project Site. Developer represents and warrants
that it has a legal interest in certain real property as legally described in Exhibit attached
hereto (the "Project Site"). The residential project on the Project Site, along with all related
public and private improvements and obligations, is the "Project."
D. Conversion of Open Space — Parks/Recreation Land. The Developer
acknowledges the Project Site is currently designated as "Open Space —
Parks/Recreation" in the City's adopted General Plan and is zoned as "Open Space" and
is therefore subject to the City's Land Use Policy LU2.2 for the conversion of open space
to developable areas. The Parties acknowledge the Developer shall cooperate with the
City to secure the replacement of converted open space areas on the Project Site through
the use of density transfer of property designated for residential development within the
City.
E. Entitlements. Concurrent with the approval of this Agreement, City approved
the following land use entitlements for the Project Site, which entitlements are also the
subject of this Agreement:
a. General Plan Amendment: From "Open Space — Parks/Recreation" (OS-P/R) to Very
Low Density Residential (VLDR) for the residential portions of the project.
b. Planned Development District in lieu of Change of Zone: From "Open Space" (0, 0-5)
to Planned Development District (PDD).
c. Tentative Tract Map: To subdivide the property into residential lots, privately owned
common areas and a public park.
d. Major Architectural Approval: Conceptual architectural and landscape plans will be
part of the preliminary PDD.
e. Transfer of Density Agreement: To cooperate in the transfer of residential density
from the other areas in the City including the Chino Cone Specific Plan to the Project
Site consistent with the provisions of the City's General Plan and the Chino Cone
Specific Plan at the ratio of 1.2 units for each unit removed from the Chino Cone.
The above Entitlements have been approved subject to various conditions and
requirements with which Developer will be required to comply in order to develop the
Project Site ("Conditions of Approval"). The approvals described above, including without
limitation the Conditions of Approval as referenced in this Recital and this Agreement,
are referred to herein as the "Entitlements" and have been reviewed and approved in
accordance with the Municipal Code, California Environmental Quality Act, California
Public Resources Code Section 21000 et seq. ("CEQA"), and all other applicable local,
Ordinance No. 2051
Page 11
state, and federal laws and regulations. The Entitlements, Conditions of Approval, and
this Agreement shall be collectively referred to as "the Project Approvals."
F. Substantial Costs to Developer. Developer will incur substantial costs in
order to comply with the Project Approvals and to construct the additional infrastructure
improvements requested by the City to assure development of the Project Site in
accordance with the terms of this Agreement.
G. Vesting of Rights. In exchange for the benefits to City described in the
preceding Recitals, together with the other public benefits that will result from the
development of the Project, Developer will receive by this Agreement assurance that it
may proceed with the Project in accordance with the "Applicable Law" (defined below)
and therefore desires to enter into this Agreement.
H. Planning Commission — Council Findings. The approval of this Agreement is
made pursuant to findings by the Planning Commission and the Council that this
Development Agreement:
a. Is consistent with the objectives, policies, general land uses and programs specified
in the general plan and any applicable specific plan;
b. Is compatible with the uses authorized in, and the regulations prescribed for, the land
use district in which the real property is located;
c. Is in conformity with public convenience, general welfare and good land use practice;
d. Will not be detrimental to the health, safety and general welfare;
e. Will not adversely affect the orderly development of property or the preservation of
property values.
I. City Council Actions. City Council, after public hearings and extensive
environmental analysis, approved the following entitlements:
a. By Resolution No. 24083, dated September 7, 2016, amended City's General Plan
Land Use Designation for the subject property from "Open Space — Parks/Recreation"
(OS-P/R) to Very Low Density Residential (LDR) for the residential portions of the
project.
b. By Ordinance No. 1898, effective October 21, 2016, conditionally adopted the Planned
Development District in lieu of Change of Zone, changing the zoning from "Open
Space" (0, 0-5) to the Planned Development District (PDD-366).
c. By Resolution No. 24085, dated September 7, 2016, conditionally approving Tentative
Tract Map 36691, to subdivide the property into residential lots, privately owned
common areas, and a public park.
d. By Resolution No. 24083, dated September 7, 2016, conditionally approving Major
Architectural Approval: Conceptual architectural and landscape plans.
J. Ordinance. On July 26, 2017, Council adopted Ordinance No. 1931 approving
this Agreement and authorizing the City Manager to execute the Agreement and its
Ordinance No. 2051
Page 12
concomitant Transfer of Density Agreement. The Ordinance was effective on August 25,
2017; a copy of the Ordinance is attached hereto as Exhibit B. On October 134, 2021
following a duly noticed public hearing, the City Council adopted Ordinance No. 2051,
approving this First Amended and Restated Development Agreement and authorizing the
City Manager to execute this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises, covenants, and provisions
set forth herein, the receipt and adequacy of which is hereby acknowledged, the parties
agree as follows:
ARTICLE 1. DEFINITIONS
o "Agreement" shall mean this First Amended and Restated Development Agreement
by and between Developer and City, dated November 1, 2018.
o "Applicable Law" shall have that meaning set forth in Section 7.03 of this Agreement.
o "Changes in the Law" shall have that meaning set forth in Section 7.08 of this
Agreement.
o "City" is the City of Palm Springs, a California Charter City and municipal corporation.
o "Conditions of Approval" shall have that meaning set forth in Section 4.04 of this
Agreement.
o "Default' shall have that meaning set forth in Section 11.01 of this Agreement.
o "Default Notice" shall have that meaning set forth in Section 11.01 of this Agreement.
o "Deficiencies" shall have that meaning set forth in Section 10.02 of this Agreement.
"Development Agreement Statute" shall have that meaning set forth in Recital A of this
Agreement.
o "Developer" is PS Country Club, LLC, a California Limited Liability Company.
o "EIR" shall mean the Final Environmental Impact Report certified by City Council on
September 7, 2016.
o "Entitlements" shall have that meaning set forth in Recital E of this Agreement.
o "Effective Date" shall have that meaning set forth in Section 3.01 of this Agreement.
Ordinance No. 2051
Page 13
o "Excusable Delay" shall have that meaning set forth in Section 11.05 of this
Agreement.
o "Force Majeure" shall have that meaning set forth in Section 11.05 of this Agreement.
o "Judgment" shall have that meaning set forth in Section 10.02 of this Agreement.
o "Project" is defined above.
o "Project Approvals" shall have that meaning set forth in Recital E of this Agreement.
o "Prompt Review" means review of all plans, specifications, and applications by
Developer in accordance with Section 7.11, below.
o "Reasonable Progress" shall mean commercially reasonable efforts by Developer to
achieve full build -out and completion of all executory obligations herein within ten
years in accordance with Section 7.10, below.
o "Term" shall have that meaning set forth in Section 3.02 of this Agreement.
ARTICLE 2. INCORPORATION OF RECITALS.
Section 2.01. Recitals. The Recitals set forth above, the introductory paragraph
preceding the Recitals, and all defined terms set forth in both, are hereby incorporated
into this Agreement as if set forth herein in full.
ARTICLE 3. EFFECTIVE DATE AND TERM
Section 3.01. Effective Date. This Agreement became effective as of the date the
City Council of City approved this Agreement, October 17, 2018 (the "Effective Date").
Section 3.02. Term. The term of this Agreement (the "Term") shall commence upon
the Effective Date and continue for a period of twenty (20) years, unless the Term is
terminated or modified as set forth in this Agreement or by mutual consent of the parties
hereto.
ARTICLE 4. OBLIGATIONS OF DEVELOPER
Section 4.01. Obligations of Developer Generally. In consideration of City entering
into this Agreement, Developer agrees that it will comply with this Agreement and with all
Project Approvals. The parties acknowledge and agree that City's agreement to perform
and abide by the covenants and obligations of City set forth in this Agreement is a material
consideration for Developer's agreement to perform and abide by its long term covenants
and obligations, as set forth herein. The Developer may discharge all of its obligation
under the Agreement by agreeing to have all the property returned to an Open Space
Ordinance No. 2051
Page 14
designation.
Section 4.02. Fees Paid by Developer. As a material consideration for the long term
assurances and vested rights provided by this Agreement, Developer shall pay fees,
exactions, and charges to City as set forth in the Project Approvals not to exceed the
amounts specified in City Council adopted ordinances and resolutions as of the Effective
Date ("City Fees"), per dwelling unit, structure, or improvement, for all fees and charges
imposed by the City and payable no earlier than City's issuance of a building permit. The
amount of the City Fees will be adjusted on the fifth, tenth, and fifteenth annual
anniversary of the Effective Date to reflect and equal the City's fees then in effect on each
such anniversary. The term "City Fees" as used in this Section 4.02 for the purpose of
limiting the ability of the City to increase certain fees, exactions, and charges does not
include fees or charges required or otherwise assessed by any public agency other than
the City or a fee or charge levied by the City to fund an enterprise account, including
without limitation the City's Sewer Fund or Engineering plan check fees. The City Fees
shall be adjusted to include credits against any and all park fees, including but not limited
to, Quimby Fees pursuant to California Government Code §66477, included in the City
Fees, for the costs of both land and improvements provided by the Developer to build the
public park.
Section 4.03. Public benefits provided by Developer.
a. All conditions of approval of the Project adopted and accepted by the Developer.
b. Reservation of lands for public use, owned and maintained by Developer or any
successor HOA, in accordance with Exhibit C attached hereto.
c. Construction of a portion of an alternate for the CV Link Trail from Verona Road and
Whitewater Club Drive to Sunrise Way across development.
d. Indemnification over and above the indemnification allowed under the Map Act.
e. Payment of Development Agreement Fee over and above the fees referred to in
paragraph 4.02, above, to be used by the City for acquisition of open space for the
purposes of Developer's compliance with the City's General Plan Land Use Policy 2.2
in generating land use density for the subject property. The Development Agreement
Fee shall be Three Million Dollars ($3,000,000.00) paid to City, including Five Hundred
Thousand Dollars ($500,000) due no later than November 1, 2021 and the
balanGeremainder of Two Million, Five Hundred Thousand Dollars ($2,500,000)_ due
no later than November 1, 2022. If development lots are sold to third -party builders
or building permits are issued prior to one or more of those dates. Tthe Development
Agreement Fee shall be paid such that as construction of the Project occurs, and
either (i) developed lots are sold to third -party builders, or (ii) building permits are
issued for construction of residential dwelling units, the Developer shall pay to City a
pro -rats portion of the unpaid principale at the time vacant lots are sold to third -party
merchant builders or building permits are issued for construction of residential dwelling
units. Each payment to the City shall take place within ten (10) business days of any
sale of developed lots to a third -party builder, or concurrent with City issuance of a
building permit. The pro -rats portion of the Development Agreement Fee shall be
Ordinance No. 2051
Page 15
calculated as the total Development Agreement Fee divided by the total number of
residential dwelling units ($3,000,000 / 386), for a per lot fee of $7,772.02. By the
thir eFsaFy da dateof the -� Gti„ate November 1, 2022, the entire unpaid
principale on the Development Agreement Fee shall immediately become due and
payable to the City. Failure to pay the initial Five Hundred Thousand Dollars
($500,000) by November 1, 2021 or the entireremainder of the Development
Agreement Fee by November 1, 2022, shall constitute a default pursuant to Section
11.01 of this Agreement, whereupon, in addition to such other remedies otherwise
available to the City, the City may, in its sole discretion, withhold issuance of building
permits or other ministerial approvals related to the Project Site, until such default is
adequately cured to the City's satisfaction.
f. Conversion of a portion of Golden Sands Drive from a private to a public street to
match the current and projected use patterns and more fairly apportion the burden of
maintenance and liability from the Four Seasons HOA.
g. Developer will build and maintain a public park in the approximate location shown on
Exhibit C. Prior to City acceptance of the Park improvements or final acceptance of
any subdivision improvements for the Project, Developer shall assign all of its rights
and obligations to the Homeowners' Association with responsibility over the Project to
maintain the Park and to preserve public access to the Park in perpetuity. Construction
of the public park shall occur as part of Phase 1.
h. Developer will provide 67 acres of open space within the development over and above
City requirements and the Public Park.
i. Fixed development standards and enforceable commitments to the adjacent HOA's:
1) The maximum height of any buildings in the development shall be no higher than
19 feet;
2) Planting of landscape trees adjacent to existing homes shall be of species and
spacing that minimize blocking of existing views;
3) New walls adjacent to any phase of the Whitewater Condominiums shall be built
per the landscape exhibits in the Planned Development Permit prior to the
commencement of grading on any areas adjacent to that phase;
4) Property lines adjacent to Phases 1, 2, 3 and 5 of the Whitewater Condominiums
shall be changed with lot line adjustments in accordance with the tentative map
exhibits or as requested by the HOA of the adjoining phase prior to the recordation
of any final map;
5) The connection of Francis Drive to the Property shall be for emergency access,
only. A Knox -Box type gated entry control for police and fire services shall be
provided;
6) Four pedestrian gates shall be provided connecting the Whitewater Condominiums
to the Property, one in Phase 1, one in Phase 3 and one on either side of
Whitewater Club Drive near the entrance gates to the Whitewater Condominiums;
7) A Knox -Box style gated entry for police and fire services shall be installed at the
end of each of the cul de sacs adjacent to the entry road at Whitewater Club Drive;
Ordinance No. 2051
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8) Landscaping and Irrigation incorporating existing mature trees shall be provided in
an eight foot wide landscape area on both sides of Whitewater Club Drive within
the Property;
9) A six foot high slumpstone wall shall be built eight feet behind the existing paved
road on both sides of Whitewater Club Drive, except where pedestrian and
emergency access gates are provided.
Securities submitted in conjunction with a Subdivision Improvement Agreement
required with the City's approval of any final map shall include a contingency to assure
that if the Developer fails to timely complete public improvements as provided under
any subdivision agreement or allows any portion of the property to remain in a
disturbed condition or in violation of any ordinance of the City regarding property
maintenance for more than thirty (30) days after the expiration or termination of any
permit applicable to the affected property, the City may find the Developer to be in
default in which case the default provisions of this Agreement, including notice
provisions shall apply. In addition to whatever other remedies the City may have, the
City may demand the Developer restore such property to a natural and safe condition
and remove any fencing along or adjacent to such property. The City may use self-
help upon refusal or non-compliance by Developer. This obligation may be secured
through such other security as the Developer and City Manager may agree.
Section 4.04. Compliance with Project Conditions. In addition to any and all
obligations contained in this Agreement, Developer shall comply with and fulfill any and
all Conditions of Approval. The Development of the Project and Project Site shall be
governed by the terms of the Conditions of Approval and this Agreement. The Conditions
of Approval and this Agreement shall, to the fullest extent possible, be read and
considered as fully integrated documents, and shall be interpreted so as to avoid
inconsistencies, comply with all applicable federal and state laws and City Law, and
ensure that the objectives of the parties will be fully realized.
In accordance with the Developer's written request dated July 8, 2021, which is
incorporated by reference herein, the City will accept a proposal to underground overhead
utilities required by Project Conditions. Said utilities shall be installed underground prior
to, and as a condition precedent to, the issuance of the first certificate of occupancy
permit for Phase 3B.
Nothing in this Agreement is intended to supersede, terminate, modify or otherwise
affect any provision of the Conditions of Approval, except to the extent that a provision of
this Agreement is in direct conflict with a provision of such Condition of Approval. Then,
and only in that event, the provisions of this Agreement shall prevail over the contradictory
provisions of any such Condition of Approval. The execution of this Agreement by the
parties hereto shall in no way otherwise affect the validity of any or all of the provisions of
the Conditions of Approval.
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ARTICLE 5. OBLIGATIONS OF CITY
In consideration of Developer entering into this Agreement, City agrees that it will
comply with the terms and conditions of this Agreement. The parties acknowledge and
agree that Developer's agreement to perform and abide by its covenants and obligations
set forth in this Agreement is a material consideration for the City's agreement to perform
and abide by the long term covenants and obligations of the City, as set forth herein.
ARTICLE 6. COOPERATION - IMPLEMENTATION
The parties agree to cooperate in good faith to implement this Agreement.
ARTICLE 7. STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT
Section 7.01. Vested Right to Develop. Developer shall have a vested right to build
out the Project through the Term on the Project Site in accordance with the terms and
conditions of the Project Approvals.
Section 7.02. Permitted Uses Vested by This Agreement. The permitted residential
use of the Project Site, the density and intensity of use of the Project Site, the maximum
height, bulk and size of proposed buildings, provisions for reservation or dedication of
land for public purposes and the location of public improvements, the general location of
public utilities, and other terms and conditions of development applicable to the Project,
are set forth in the Project Approvals.
Section 7.03. Applicable Law. The rules, regulations, official policies, standards and
specifications applicable to the Project (the "Applicable Law") shall be those set forth in
the Project Approvals, and, with respect to matters not addressed by the Project
Approvals, those rules, regulations, official policies, standards and specifications
(including City ordinances and resolutions) governing permitted uses, building locations,
timing of construction, densities, design, heights, fees, exactions, and taxes in force and
effect on the Effective Date of this Agreement.
Section 7.04. Uniform Codes. City may apply to the Project Site, at any time during
the Term, the then current Uniform building construction, fire or other codes, as the same
may be adopted or amended from time to time by City, and City's then current design and
construction standards for public improvements, as the same may be adopted or
amended from time to time, provided any such uniform code or standard has been
adopted and uniformly applied by City on a citywide basis, and provided that no such code
or standard is adopted for the purpose of preventing or otherwise limiting construction of
all or any part of the Project.
Section 7.05. No Conflicting Enactments. City shall not impose on the Project
(whether by action of the City Council or by initiative, referendum or other means) any
ordinance, resolution, rule, regulation, standard, directive, condition or other measure
(each individually, a "City Law") that is in conflict with Applicable Law, or the Project
Ordinance No. 2051
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Approvals, or that reduces the development rights or assurances provided by this
Agreement with respect to the Project. Without limiting the generality of the foregoing,
such City Law may be allowed to address a significant public health or safety issue.
Without limiting the generality of the foregoing, any City Law shall be deemed to conflict
with Applicable Law, or the Project Approvals, or reduce the development rights provided
hereby if it would accomplish any of the following results, either by specific reference to
the Project or as part of a general enactment which applies to or affects the Project.
Approvals:
a. Change any land use designation or permitted use of the Project Site existing as of
the Effective Date of this Agreement;
b. Limit or control the availability of public utilities, services or facilities or any privileges
or rights to public utilities, services, or facilities (for example, water rights, water
connections or sewage capacity rights, sewer connections, etc.) for the Project, unless
such limitation is necessary to address significant health and safety issues;
c. 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;
d. Limit or control the rate, timing, phasing or sequencing of the approval, development
or construction of all or any part of the Project in any manner inconsistent with the
Project Approvals;
e. Apply to the Project any City Law otherwise allowed by this Agreement that is not
uniformly applied on a the citywide basis to all substantially similar types of
development projects and project sites;
f. Result in Developer having to substantially delay construction of the Project or require
the issuance of additional permits or approvals by the City other than those required
by the Project Approvals or Applicable Law;
g. Substantially increase the cost of constructing or developing the Project or any portion
thereof;
h. Establish, enact, increase, or impose against the Projector Project Site any fees, taxes
(including without limitation general, special and excise taxes), assessments, liens or
other monetary obligations other than those specifically permitted by this Agreement;
Impose against the Project any condition, dedication or other exaction not specifically
authorized by the Project Approvals or Applicable Law;
Ordinance No. 2051
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Grant any development right, entitlement or approval for any portion of the Property
that will reduce, limit or encumber Developer's rights hereunder, or
k. Unreasonably limit the timing, processing or procuring of applications and approvals.
If City attempts to apply to the Project a City Law that Developer believes to conflict
with Applicable Law or the Project Approvals, Developer shall provide to City in writing a
notice describing the legal and factual basis for Developer's position. The parties shall
meet and confer within thirty (30) days after the date of such written notice with the
objective of attempting to arrive at a mutually acceptable solution to this disagreement. If
no mutually acceptable solution can be reached, either party may take such action as may
be permitted under Section 11.08, below.
Section 7.06. Initiatives and Referenda.
a. To the maximum extent permitted by law, if any City Law is enacted or imposed by
initiative or referendum, or by the City Council directly or indirectly in connection with
any proposed initiative or referendum, which City Law would conflict with Applicable
Law, or the Project Approvals or reduce the development rights provided by this
Agreement, such City Law shall not apply to the Project.
b. Without limiting the generality of any of the foregoing and to the maximum extent
permitted by law, no moratorium or other limitation (whether relating to the rate, timing,
phasing or sequencing of development) affecting building permits or other entitlements
to which Developer is entitled pursuant to the Project Approvals shall apply to the
Project.
c. To the maximum extent permitted by law, City shall take reasonable actions to prevent
any City Law from invalidating or prevailing over all or any part of this Agreement, and
City shall cooperate with Developer and shall undertake such reasonable actions as
may be necessary to ensure this Agreement remains in full force and effect.
d. City shall not support, adopt or enact any City Law, or take any other action which
would violate the express provisions or spirit and intent of this Agreement or the
Project Approvals.
e. Developer reserves the right to challenge in court any City Law that is enacted after
the Effective Date of this Agreement that would conflict with Applicable Law or this
Agreement or reduce the development rights provided by this Agreement.
Section 7.07. Environmental Mitigation. The parties understand that the EIR was
intended to be used in connection with all of the Project Approvals needed for the Project.
Section 7.08. State and Federal Law. As provided in California Government Code §
65869.5, this Agreement shall not preclude the application to the Project of changes in
laws, regulations, plans or policies, to the extent that such changes are specifically
mandated and required by changes in state or federal laws or regulations, or by any
Ordinance No. 2051
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regional governmental agency that, due to the operation of state law, has binding legal
authority on City ("Changes in the Law"). In the event Changes in the Law prevent or
preclude compliance with one or more provisions of this Agreement, such provisions of
the Agreement shall be modified or suspended, or performance thereof delayed, as may
be necessary to comply with Changes in the Law, and City and Developer shall take such
action as may be required pursuant to this Agreement including, without limitation, Article
10 (Cooperation -Implementation) and Section 11.05 (Force Majeure and Excusable
Delays; Extension of Time of Performance). Not in limitation of the foregoing, nothing in
this Agreement shall preclude City from imposing on Developer any fee specifically
mandated and required by state or federal laws and regulations, provided that nothing
shall limit Developer's ability to challenge such laws and the imposition of such fees.
Section 7.09. Timinq of Project Construction and Completion.
a. Project Timing. The parties acknowledge that Developer cannot predict the timing,
rate, order or actual timing with certainty. The timing, order and rate of development
shall be in Developer's sole discretion, except as otherwise provided in the Project
Approvals.
b. In light of the foregoing, the parties agree that Developer shall be able to develop in
accordance with Developer's own time schedule as such schedule may exist from time
to time. In particular, and not in limitation of any of the foregoing, since the California
Supreme Court held in Pardee Construction Co. v. the City of Camarillo, 37 Cal.3d
465 (1984), that the failure of the parties therein to consider and expressly provide for
the timing of development resulted in a later -adopted initiative restricting the timing of
development to prevail over such parties' agreement, it is the parties' desire to avoid
that result by acknowledging that Developer shall have the right to develop the Project
at such rate and at such times as Developer deems appropriate within the exercise of
its subjective business judgment, provided that such schedule is consistent with this
Agreement.
c. The Developer shall use its best efforts to meet the Agreed Proposed Schedule
attached hereto as Exhibit "D".
Section 7.10. Annual Review. City shall, at least every twelve (12) months during
the term of this Agreement, review the extent of good faith substantial compliance by
Developer and Landowner with the terms of this Agreement. The review may specifically
include a review of whether Developer is making Reasonable Progress. To assess such
progress, the City Planning Director may require at any time subsequent to the execution
of this Agreement, and as frequently as annually thereafter, a development planned
schedule showing a ten-year (or less) completion schedule. Reasonable Progress shall
take into account market conditions, commercial realities, the sensitivities of adjacent
residents and prudent construction practices. Reasonable Progress is expressly subject
to City's obligation of Prompt Review specified in Section 7.11, below. City may charge
Ordinance No. 2051
Page 21
fees as necessary to cover the costs of conducting the annual review. Such periodic
review shall be limited in scope to compliance with the terms of this Agreement pursuant
to California Government Code Section 65865.1. Said review shall be diligently
completed. Notice of such annual review shall include the statement that any review may
result in amendment or termination of this Agreement. A finding by City of good faith
compliance by Developer and Landowner with the terms of the Agreement shall
conclusively determine said issue up to and including the date of said review. City shall
deposit in the mail or fax to Developer and/or Landowner a copy of all staff reports and,
to the extent practical, related exhibits concerning contract performance at least seven
(7) calendar days prior to such periodic review. Developer or Landowner shall be
permitted an opportunity to be heard orally or in writing regarding its performance under
this Agreement before the City Council and, if the matter is referred to a City Planning
Commission, before said Commission
Section 7.11. Prompt Review by the City. City and Developer shall cooperate and
use commercially reasonable efforts to timely review and approve the development
design review process, building plan review process, improvement plan review process,
and if necessary, the entitlement review process for the residential and other
developments to be located within the Project. Review of any application provided by this
subparagraph shall not be deemed to waive any of the Applicable Law pertaining to review
or approval of such application, including, but not limited to, a public hearing, if any,
required therefore. In the event the Parties agree to use an expedited process to perform
any review pursuant to this subparagraph, Developer authorizes the imposition of City
Fees paid to the City sufficient to cover City's estimated costs of utilizing City staff,
retaining an outside consultant or any combination thereof in order to expedite the review
process. Any such process shall terminate upon the expiration or termination of this
Agreement or the issuance of the final certificate of occupancy for development within the
Project, whichever occurs first.
Section 7.12. Exempting Fees Imposed by Outside Agencies. Except as specified
in 7.08, above, City agrees to exclude Developer from any and all collection agreements
regarding fees, including, but not limited to, development impact fees which other public
agencies or responsible agencies request City to impose at City's discretion on the Project
or the Project Site after the Effective Date through the Term of this Agreement, provided,
however, that Developer will not be exempted from fees included in the Project Approvals.
ARTICLE 8. AMENDMENT
This Agreement may be amended from time to time, in whole or in part, by mutual
written consent of the parties hereto or their successors in interest, in accordance with
the Development Agreement Statute.
ARTICLE 9. ASSIGNMENT, TRANSFER AND NOTICE
Section 9.01. Assignment of Interests, Riqhts and Obligations. Developer may only
transfer or assign all or any portion of its interests, rights or obligations under the Project
Approvals to another person or entity acquiring an interest or estate in the Project or any
Ordinance No. 2051
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portion thereof including, without limitation, purchasers or ground lessees of lots, parcels
or facilities that accepts all of the then -applicable responsibilities of the Developer.
Section 9.02. Limits of Liability. To the extent the Developer's responsibilities are
transferred in good faith to another person or entity, Developer shall be free from any and
all liabilities accruing on or after the date of any assignment or transfer with respect to
those obligations assumed by a transferee pursuant to a Transfer Agreement. No breach
or default hereunder by any person succeeding to any portion of Developer's obligations
under this Agreement shall be attributed to Developer, nor may Developer's rights
hereunder be canceled or diminished in any way by any breach or default by any such
person.
ARTICLE 10. COOPERATION IN THE EVENT OF LEGAL CHALLENGE
Section 10.01. Cooperation.
a. In the event of any administrative, legal or equitable action or other proceeding
instituted by any person not a party to this Agreement challenging the validity of any
provision of the Agreement or any Project Approval, the parties shall cooperate in
defending such action or proceeding. The parties shall use best efforts to select
mutually agreeable legal counsel to defend such action, and Developer shall pay
compensation for such legal counsel; provided, however, that such compensation
shall include only compensation paid to counsel not otherwise employed as City staff
and shall exclude, without limitation, City Attorney time and overhead costs and other
City staff overhead costs and normal day-to-day business expenses incurred by City.
In the event City and Developer are unable to select mutually agreeable legal counsel
to defend such action or proceeding, each party may select its own legal counsel.
b. The parties agree that this Section 10.01 shall constitute a separate agreement
entered into concurrently, and that if any other provision of this Agreement, or the
Agreement as a whole, is invalidated, rendered null, or set aside by a court of
competent jurisdiction, the parties agree to be bound by the terms of this section,
which shall survive such invalidation, nullification or setting aside.
Section 10.02. Waiver of Challenges to Project Approvals.
a. As a condition precedent to receiving the benefits of this Agreement, Developer, its
successors in interest, transferees, assignees, etc., expressly waive any legal or
equitable right to challenge any Project Approvals or other act, entitlement, fee, or
approval expressly set forth in this Agreement, including without limitation, all acts of
protest pursuant to California Government Code Sections 66008 and 66009 as to any
fee against which Developer has vested in accordance with this Agreement.
b. The parties agree that this Section 10.03(b) shall constitute a separate agreement
entered into concurrently, and that if any other provision of this Agreement, or the
Agreement as a whole, is invalidated, rendered null, or set aside by a court of
Ordinance No. 2051
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competent jurisdiction, the parties agree to be bound by the terms of this section,
which shall survive such invalidation, nullification or setting aside.
ARTICLE 11. DEFAULT; REMEDIES; TERMINATION
Section 11.01. Defaults. Any failure by either party to perform any term or provision
of this Agreement, which failure continues uncured for a period of thirty (30) days following
written notice of such failure from the other party (unless such period is extended by
mutual written consent), shall constitute a default under this Agreement ("Default"). Any
notice given pursuant to the preceding sentence ("Default Notice") shall specify the nature
of the alleged failure and, where appropriate, the manner in which said failure satisfactorily
may be cured. If the nature of the alleged failure is such that it cannot reasonably be
cured within such 30-day period, then the commencement of the cure within such time
period, and the diligent prosecution to completion of the cure thereafter, shall be deemed
to be a cure within such 30- day period. Upon the occurrence of a Default under this
Agreement, the non -defaulting party may institute legal proceedings to enforce the terms
of this Agreement or, in the event of a material Default, terminate this Agreement. If the
Default is cured, then no Default shall exist and the noticing party shall take no further
action.
Section 11.02. Enumerated City Rights and Remedies for Developer Default. City
and Developer agree that notwithstanding any provision of this Agreement, in the event
of any Default by Developer, the City, in addition and cumulative to all rights and remedies
provided in this Agreement, shall have two (2) enumerated rights and remedies, each in
an exercise of City's absolute discretion, enumerated in this Section 11.02. First, City may
initiate and approve the Project Site's reversion to acreage in conformance with California
Government Code, Title 7, Division 2, Chapter 6, Reversions and Exclusions (Sections
66499.11 through 66499.29) and Municipal Code, Title 9, Chapter 9.66 Reversions
(Sections 9.66.010 through 9.66.110), unless City waives said Municipal Code provisions.
Second, the City may take unilateral action to summarily abate any condition representing
a nuisance at the Project Site or any portion thereof. City abatement pursuant to this
Section 11.02 shall conform to to the "summary abatement" process reflected in Municipal
Code Section 11.72.245, as that provision may be amended from time to time. The scope
and nature of any City abatement hereunder shall be restoration of the Project Site, and
any part thereof, to a natural and safe condition as determined, in an exercise of absolute
discretion, by the City. The costs of the City's abatement shall be recoverable by the City
pursuant to Municipal Code Chapter 11.72.
Section 11.03. Termination. If City elects to consider terminating this Agreement due
to a material Default of Developer, then City shall give a notice of intent to terminate this
Agreement. City shall give written notice of termination of this Agreement to Developer by
certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter.
Section 11.04. Default by City or Developer. In the event that City or Developer
defaults under the terms of this Agreement, the City or Developer shall have all rights and
remedies provided herein or under law.
Ordinance No. 2051
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Section 11.05. Force Majeure and Excusable Delay; Extension of Time of
Performance. In addition to specific provisions of this Agreement, neither party shall be
deemed to be in Default where delays in performance or failures to perform are due to,
and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk-
outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or
mandated by other governmental entities (including new or supplemental environmental
regulations), enactment of conflicting state or federal laws or regulations, judicial
decisions, or similar basis for excusable performance which is not within the reasonable
control of the party to be excused (collectively "Force Majeure"). Litigation attacking the
validity of this Agreement or any of the Project Approvals, or any permit, ordinance,
entitlement or other action of a governmental agency other than City necessary for the
development of the Project pursuant to this Agreement, shall also be deemed to create
an excusable delay as to Developer (collectively "Excusable Delay"). The party whose
performance is prevented or delayed by such event of Force Majeure or Excusable Delay
shall give prompt written notice thereof to the other party and both parties shall have
agreed that performance is appropriately excused or delayed pursuant to this Section
11.05 In the event of Force Majeure or Excusable Delay, the parties shall memorialize in
writing the extension of time for the performance of any obligation whose performance
has been so prevented or delayed. The term of any such extension shall be equal to the
period of the Excusable Delay or Force Majeure or such other period as may be mutually
agreed upon by both parties.
Section 11.06. Legal Action. 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,
recover damages for any default, enforce by specific performance the obligations and
rights of the parties hereto, or to obtain any remedies consistent with the purpose of this
Agreement.
Section 11.07. California Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California. Venue for any action shall be in
Riverside County, California.
Section 11.08. Resolution of Disputes. With regard to any dispute involving
development of the Project, the resolution of which is not provided for by this Agreement
or Applicable Law, Developer and City shall, at the request of the party, meet and shall
attempt in good faith to resolve any such disputes. Nothing in this Section 11.08 shall in
any way be interpreted as requiring that Developer and City and/or City's designee reach
an agreement with regard to those matters being addressed, nor shall the outcome of
these meetings be binding in any way on City or Developer unless expressly agreed to
by the parties to such meetings.
Section 11.09. Attorneys' Fees. In any legal action or other proceeding brought by
either party to enforce or interpret a provision of this Agreement, each party shall bear its
own costs and expenses, including attorneys' fees.
Ordinance No. 2051
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Section 11.10. Hold Harmless. Developer shall, at its sole expense, defend and hold
City and its elected and appointed officers, agents, employees, and representatives
harmless from all claims, costs, and liabilities for any personal injury, death, or property
damage which arises directly or indirectly as a result of the construction of the Project,
the Project Site, or of operations performed under this Agreement by Developer or by
Developer's contractors, subcontractors, agents or employees, whether such operations
were performed by Developer or any of Developer's contractors, subcontractors, agents,
or by any one or more persons directly or indirectly employed by or acting as agent for
Developer or any of Developer's contractors or subcontractors. Nothing in this section
shall be construed to mean that Developer shall hold City harmless from any claims of
personal injury, death or property damage arising from, or alleged to arise solely from,
any negligent or intentional act, or failure to act, on the part of City, its elected and
appointed representatives, officers, agents and employees.
This hold harmless agreement applies to all damages or claims for damages
suffered or alleged to have been suffered by reason of the operations referred to in this
section regardless of whether or not City prepared, supplied or approved plans or
specifications, or both, for the Project and/or Project Site.
The parties agree that this Section 11.10 shall constitute a separate agreement
entered into concurrently, and that if any other provision of this Agreement, or the
Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent
jurisdiction, the parties agree to be bound by the terms of this section, which shall survive
such invalidation, nullification or setting aside.
ARTICLE 12. NO AGENCY, JOINT VENTURE OR PARTNERSHIP
It is specifically understood and agreed to by and between the parties hereto that: (i)
the subject development is a private development; (ii) City has no interest or
responsibilities for, or duty to, third parties concerning any improvements until such time,
and only until such time, that City accepts the same pursuant to the provisions of this
Agreement or in connection with the various Project Approvals; (iii) Developer shall have
full power over and exclusive control of the Project herein described, subject only to the
limitations and obligations of Developer under this Agreement, the Project Approvals and
Applicable Law; and (iv) City and Developer hereby renounce the existence of any form
of agency relationship, joint venture or partnership between City and Developer and agree
that nothing contained herein or in any document executed in connection herewith shall
be construed as creating any such relationship between City and Developer.
ARTICLE 13. MISCELLANEOUS
Section 13.01. Enforceability. City and Developer agree that unless this Agreement
is amended or terminated pursuant to the provisions of this Agreement, this Agreement
shall be enforceable by any party hereto, notwithstanding any change hereafter enacted
or adopted (whether by ordinance, resolution, initiative, or any other means) in any
Ordinance No. 2051
Page 26
applicable general plan, specific plan, zoning ordinance, subdivision ordinance, or any
other land use ordinance or building ordinance, resolution or other rule, regulation or
policy adopted by City that changes, alters or amends the rules, regulations and policies
applicable to the development of the Project Site at the time of the approval of this
Agreement as provided by California Government Code Section 65866.
Section 13.02. Severability. If any term or provision of this Agreement, or the
application of any term or provision of this Agreement to a particular situation, is held by
a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms
and provisions of this Agreement, or the application of this Agreement to other situations,
shall continue in full force and effect unless amended or modified by mutual consent of
the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or
the application of such provision to a particular situation, is held to be invalid, void or
unenforceable, either City or Developer may (in their sole and absolute discretion)
terminate this Agreement by providing written notice of such termination to the other party.
Section 13.03. Other Necessary Acts. Each party shall execute and deliver to the
other all such other further instruments and documents as may be reasonably necessary
to carry out the Project Approvals and to provide and secure to the other party the full and
complete enjoyment of its rights and privileges hereunder.
Section 13.04. Construction. Each reference in this Agreement to this Agreement or
any of the Project Approvals shall be deemed to refer to the Agreement or the Project
Approvals as they may be amended from time to time, whether or not the particular
reference refers to such possible amendment. This Agreement has been reviewed and
revised by legal counsel for both City and Developer, and no presumption or rule that
ambiguities shall be construed against the drafting party shall apply to the interpretation
or enforcement of this Agreement.
Section 13.05. Other Miscellaneous Terms. The singular shall include the plural; the
masculine gender shall include the feminine; "shall" is mandatory; "may" is permissive. If
there is more than one signer of this Agreement, the signer obligations are joint and
several.
Section 13.06. Covenants Running with the Land. All of the provisions contained in
this Agreement shall constitute covenants or servitudes which shall run with the land
comprising the Project Site and the burdens and benefits hereof shall be binding upon
and inure to the benefit of the parties and their respective heirs, successors in interest,
transferees and assignees, representatives, lessees, and all other persons acquiring all
or a portion of the Project or the Project Site, or any interest therein, whether by operation
of law or in any manner whatsoever. All of the provisions contained in this Agreement
shall be enforceable as equitable servitudes and shall constitute covenants running with
the land pursuant to California law including, without limitation, Civil Code Section 1468.
Section 13.07. Notices. Any notice or communication required hereunder between
City or Developer must be in writing, and may be given either personally, by facsimile
(with original forwarded by regular U.S. Mail) by registered or certified mail (return receipt
Ordinance No. 2051
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requested), or by Federal Express or other similar courier promising overnight delivery. If
personally delivered, a notice shall be deemed to have been given when delivered to the
party to whom it is addressed. If given by facsimile transmission, a notice or
communication shall be deemed to have been given and received upon actual physical
receipt of the entire document by the receiving party's facsimile machine. Notices
transmitted by facsimile after 5:00 p.m. on a normal business day or on a Saturday,
Sunday or holiday shall be deemed to have been given and received on the next normal
business day. If given by registered or certified mail, such notice or communication shall
be deemed to have been given and received on the first to occur of (i) actual receipt by
any of the addressees designated below as the party to whom notices are to be sent, or
(ii) five (5) days after a registered or certified letter containing such notice, properly
addressed, with postage prepaid, is deposited in the United States mail. If given by
Federal Express or similar courier, a notice or communication shall be deemed to have
been given and received on the date delivered as shown on a receipt issued by the
courier. Any party hereto may at any time, by giving ten (10) days written notice to the
other party hereto, designate any other address in substitution of the address to which
such notice or communication shall be given. Such notices or communications shall be
given to the parties at their addresses set forth below:
If to the City, to:
Justin Clifton
City Manager
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Fax: (760) 322-8362
Justin.Clifton@palmsprings-ca.gov
With Copies to:
Jeffrey Ballinger
City Attorney
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Fax: (760) 323-8299
Jeff. Ballinger@bbklaw.com
If to Developer, to:
Eric Taylor
Somis Investments
300 E. Esplanade, Suite 1785
Oxnard, CA 93036
Tel: 805-633-1037
Fax: 805-633-4523
etaylor@somisinvestments.com
With Copies to:
Mark C. Allen, III
The Claremont Land Group Attorneys
5861 Pine Avenue, Suite A-1
Chino Hills, CA 91709-6540
Tel: (909) 398-44041
Fax: (909) 398-1883
(909) 333-5254 - Direct
Mark@mcallen3.com
Ordinance No. 2051
Page 28
Section 13.08. Entire Agreement, Counterparts and Exhibits. This Agreement is
executed in duplicate, each of which is deemed to be an original. This Agreement consists
of 21 pages and four exhibits which constitute in full, the final and exclusive understanding
and agreement of the parties and supersedes all negotiations or previous agreements of
the parties with respect to all or any part of the subject matter hereof.
Section 13.09. Waiver. Any waivers of the provisions of this Agreement or any breach
of covenants or conditions contained in this Agreement shall be effective only if in writing
and signed by the appropriate authorities of City and Developer. A waiver of one provision
or breach shall not be considered as a continuing waiver, shall not constitute a waiver of
any other conditions or covenants and shall not operate to bar or prevent the other party
from declaring a forfeiture or exercising its rights for any succeeding breach of either the
same or other condition or covenant.
Section 13.10. Recordation of Development Agreement. No later than ten (10) days
after City enters into this Agreement, the City Clerk shall record an executed copy of this
Agreement in the Official Records of the County of Riverside.
Section 13.11. No Third Party Beneficiaries. No person or entity shall be deemed to
be a third party beneficiary hereof and nothing in this Agreement (either express or
implied) is intended to confer upon any person or entity, other than City and Developer,
any rights, remedies, obligations or liabilities under or by reason of this Agreement.
Section 13.12. Titles of Parts and Sections. Any titles of the sections or subsections
of this Agreement are inserted for convenience of reference only and shall be disregarded
in interpreting any part of this Agreement's provisions.
Section 13.13. Discretion of City. City's execution of this Agreement in no way limits
the discretion of City in the permit or approval process in connection with any site plan
approvals, subsequent entitlements, land use decisions, construction or improvements
which are within City's jurisdiction, except to the extent expressly and unequivocally stated
herein.
Section 13.14. Representations of Authority. As to each person signing this
Agreement on behalf of an entity, all necessary legal prerequisites to that party's
execution of this Agreement have been satisfied and he or she has been authorized to
sign this Agreement and bind the party on whose behalf he or she signs.
[SIGNATURES ON NEXT PAGE]
Ordinance No. 2051
Page 29
IN WITNESS WHEREOF, the City of Palm Springs California, a California Charter City
and municipal corporation, has authorized the execution of this Development
Agreement in duplicate by its City Manager and attestation by its City Clerk, and
approved by the Council of the City on the 14t" day of October, 2021, and amended by
City Council Ordinance No. [2051], and Developer has caused this Agreement to be
executed by its authorized representative.
Date:
APPROVED AS TO FORM:
as
Jeffrey S. Ballinger
City Attorney
APPROVED BY CITY COUNCIL:
Date: Agreement No.
"CITY"
City of Palm Springs
By:
Justin Clifton
City Manager
ATTEST
By:
Anthony J. Mejia, MMC
City Clerk
Corporations require two notarized signatures. One signature must be from Chairman of Board, President, or any Vice
President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief
Financial Officer.
"DEVELOPER"
Palm Springs Country Club, LLC,
a California limited liability company
By By
Signature (Notarized) Signature (Notarized)
Printed NamelTitle
Printed Name/Title
Ordinance No. 2051
Page 30
EXHIBIT A
REAL PROPERTY DESCRIPTION
All that certain real property conveyed from Palm Springs Country Club Investors, LLC, a
California limited liability company and Jeffrey G. Gomberg, a single man, to PS Country
Club, LLC, a California limited liability company, by Grant Deed recorded March 6, 2013,
as Document No. 2013-0111566, as further described herein:
All that certain real property situated In the County of Riverside, State of California,
described as follows:
Parcel 1: (501-190-002, and a portion of 501-190-011)
The Northeast quarter of Section 1, Township 4 South, Range 4 East, San Bernardino
Meridian, in the City of Palm Springs, County of Riverside, State of California, according
to the official plat thereof.
Except any portion lying within the following subdivisions:
A. Desert Park Estates No. 10, as per map recorded in Book 33 Page 20 of Maps, in the
office of the County Recorder of said County.
B. Ranch Country Club Estates No. 1, as per map recorded In Book 36, Page 64 of Maps,
in the office of the County Recorder of said County.
C. Tract No. 4362, as per Map recorded in Book 70, Pages 89 and 90 of Maps, in the
office of the County Recorder of said County.
D. Tract No. 4362-1, as per Map recorded in Book 81, Pages 29 and 30 of Maps, in the
office of the County Recorder of said County.
E. Tract 9317, as per Map recorded in Book 91, Pages 44 and 45 of Maps, in the office
of the County Recorder of said County.
F. Tract 14029, as per Map recorded In Book 112, Pages 61and 62 of Maps, in the office
of the County Recorder of said County.
Parcel 2: (a portion of 501-190-011)
Lot 1 of Ranch Country Estates No.1, in the City of Palm Springs, County of Riverside,
State of California, as per map recorded in Book 36, Page 64, of Maps, in the office of the
County Recorder of said County.
Exhibit "A"
Ordinance No. 2051
Page 31
Parcel3: (669-480-027)
Parcel 1 of that Lot Line Adjustment No. 02-12 recorded February 26, 2004 as Instrument
No.2004-134481 of Official Records, described as follows:
A parcel of land, situated in the City of Palm Springs, County of Riverside, State of
California, lying over a portion of the Southwest Quarter of Section 36, Township 3 South,
Range 4 East, San Bernardino Base and Meridian, being more particularly described as
follows..
Beginning at the South Quarter corner of said Section 36;
Thence, along the North -South centerline of said Section 36, North 0°12'43" East 420.46
feet;
Thence, leaving said North -South centerline North 89059'13" West 88.65 feet,
Thence North 38024'39" West 476.26 feet;
Thence North 47046'07" West 450.07 feet;
Thence North 61 °23'04" West 329.68 feet;
Thence North 28'04'13" West 200.02 feet;
Thence South 80057'45" West 440.06 feet;
Thence South 75005'43" West 318.05 feet;
Thence South 58°00'55" West 386.18 feet;
Thence South 5°14'30" East 769.65 feet to the Intersection of a line parallel to, and 554.00
feet Easterly, when measured at right angles, to the West line of said Section 36, with a
line parallel to, and 300.00 feet Northerly, when measured at right angles, to the South
line of said Section 36;
Thence, along said line parallel to the West line of said Section 36, South 00015'30" West
300.00 feet, to the South line of said Section 36;
Thence, along said South line of Section 36, South 89045'52" East 2100.33 feet to the
point of beginning.
Excepting therefrom that portion of said parcel of land being more particularly described
as follows:
Commencing at the Southwest corner of said Section 36;
Thence, along the South line of said Section 36, South 89045'52" East 814.00 feet;
Thence, leaving said South line, parallel to the West line of said Section 36, North 0°15'30"
East 300.00 feet to a line parallel to, and 300.00 feet Northerly of, said South line of
Section 36 and the True Point of Beginning;
Thence, along said line parallel to the South line of Section 36, South 89°45'52" East
718.85 feet;
Thence, leaving said parallel line, South 89035'48" East 417.44 feet;
Thence South 88'10'53" East 316.61 feet;
Thence North 49027'44" East 107.85 feet;
Thence North 45027'43" West 330.33 feet;
Thence North 82°49028" West 18.54 feet;
Thence North 53'11'47" West 872.71 feet;
Thence South 74057" 3" West 528.72 feet;
Exhibit "A"
Ordinance No. 2051
Page 32
Thence South 0008'38" West 30.73 feet;
Thence South 72041'33" West 113.63 feet;
Thence South 3°29'01" East 610.32 feet to the True Point of Beginning.
Parcel 4: (669-590-066)
That portion of the South half of the Southeast quarter of Section 36, Township 3 South,
Range 4 East, San Bernardino Meridian, in the City of Palm Springs, County of Riverside,
State of California, according to the official plat thereof, described as follows:
Beginning at the Southwest corner of said South half of the Southeast quarter;
Thence South 89°52'00" East, along the South line of said South half of the Southeast
quarter, a distance of 240.00 feet;
Thence North 70000'00" West,105.00 feet;
Thence South 75'12'28" West, 59.03 feet;
Thence North 31 °00'00" West, a distance of 163.00 feet, to a point on the West line of
said South half of the Southeast quarter;
Thence South 0006'30" West, along said West line, a distance of 160.00 feet to the Point
of Beginning.
Exhibit "A"
Ordinance No. 2051
Page 33
EXHIBIT B
ORDINANCE NO. 1931 FOLLOWS THIS PAGE
Exhibit "B"
Ordinance No. 2051
Page 34
EXHIBIT C
PUBLIC PARK
The Developer is obligated to provide a park, accessible to the public, and maintained by
the Homeowners' Association with responsibility over the Project. The specific Conditions
of Approvals relative to the public park are listed below:
PLN 20. Park. A park shall be provided in accordance with the approved site plan,
and shall be properly maintained by the HOA and accessible to the general public. The
development agreement shall set forth the minimum maintenance obligations, the
recreational amenities and improvements provided by the applicant, and the
construction/completion schedule for the park.
PLN 24. Public Benefit. In accordance with adopted City Council policy, the following
items shall be considered as public benefits:
e. Provision of a park, maintained by the HOA, and accessible to the general public, -
The public park has two areas "West" and "East" separated by the public "Spine Road".
The West area will include the following recreational amenities and improvements:
• Two (2) tennis courts;
• Shade grove of trees;
• Bicycle rack;
• 10 parking spaces;
• Meandering trail and landscaping extending to Verona Road.
The East area will include the following recreational amenities and improvements:
• Turf play area with tree shade, two play structures, 3' wrought iron fencing, shade
canopies, poured in place rubber surfacing, drinking fountain, bench seating, trash
cans, and associated amenities;
• A restroom building providing two unisex ADA accessible restrooms;
• Bicycle parking;
• Eight parking spaces;
• A separate fenced dog park for large dogs with turf, shade structure, bench seating,
trash cans, drinking fountain, dog wash/sprinkler, and associated amenities;
• A practice golf range with simulated turf;
• A separate fenced dog park for small dogs with turf, shade structure, bench seating,
trash cans, drinking fountain, dog wash/sprinkler, and associated amenities;
• A large open play area with turf and shade trees;
• A decomposed granite pedestrian walking/hiking trail;
• A demonstration garden.
The conceptual plan for the public park is shown on the next page. The full scope and
requirements for the public park will be further identified in the Final Development Plans
for Planned Development District 366 (PDD-366) approved by the City and shall be
constructed as part of the first phase of development.
Exhibit "C"
Ordinance No. 2051
Page 35
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Tract No. 36691
Conceptual Landv-*pe Plan • Public Park
f..
Ordinance No. 2051
Page 36
EXHIBIT D
PERFORMANCE SCHEDULE
DATE
ACTIVITY
NOTE
July 19, 2017
DA First Hearing
Sept 2017
DA Second Hearing
November
2018
Final Execution DA Effective Date
March 2019
Financing Phase 1
April 2019
Start Engineering
March 2022
Improvement Plan Approval/ Record
Phase 1 Map
March 2022
Record Phase 2 Map
March 2022
Infrastructure Construction Phase I
Park will be built during this
phase
April 2023
Infrastructure Construction Phase 2 -
December
2022
Close Phase 1 First House
February 2024
Infrastructure Construction Phase 3
February 2024
Close Phase 2 First House
January 2024
Record Phase 3 Map
January 2024
Record Phase 4 Map
March 2025
Close Phase 3 First House
February 2024
Infrastructure Construction Phase 4
March 2025
Close First House Phase 4
Exhibit "D"