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A7251 - PS COUNTRY CLUB LLC
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 DOC # 2024-0240100 08/12/2024 04:38 PM Fees: $0.00 Page 1 of 25 Recorded in Official Records County of Riverside Peter Aldana Assessor -County Clerk -Recorder "This document was electronically submitted to the County of Riverside for recording" Receipted by: ALEJANDRA#1032 SPACE ABOVE FOR RECORDER'S USE ONLY Pursuant to Government Code Section 6103, recording fees shall not apply FIRST AMENDMENT TO FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF PALM SPRINGS AND PS COUNTRY CLUB, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY /_111-91 SERENA 386, LLC, A DELAWARE LIMITED LIABILITY COMPANY FOR SERENA PARK PROJECT CASE NO.5.1327, PDD-366, TTM36691 THIS AREA FOR RECORDER'S -1- 55575.18145\42385859.4 DOC #2024-0240100 Page 2 of 25 USE ONLY FIRST AMENDMENT TO THE FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT (this "Amendment") is entered into by and between the City of Palm Springs, a California Charter City and municipal corporation, ("City"), PS Country Club, LLC, a California Limited Liability Company ("PS Country Club"), and Serena 386, LLC, a Delaware Limited Liability Company ("Serena 386" or "Developer"), pursuant to California Government Code § 65864 et sue. RECITALS A. First Amended and Restated Development Agreement. On October 14, 2021, the City approved Agreement No. A9378, the First Amended and Restated Development Agreement between the City and PS Country Club, later executed by both parties ("Development Agreement"). The Development Agreement amended and restated a previous development agreement between the Parties. B. In 2022, the City declared PS Country Club to be in default of the Development Agreement. C. PS Country Club is in escrow to sell the development to SERENA 386/Developer. The Development is located on real property that is legally described in Exhibit "3". SERENA 386/Developer will not consummate the transaction without the City's approval of this Amendment. D. The City's approval of this Amendment is contingent upon the acquisition of the project by SERENA 386/Developer. In such event: 1. City hereby approves the assignment of the Development Agreement to SERENA 386/Developer. Upon close of escrow, SERENA 386 shall assume all obligations of "Developer" pursuant to the Development Agreement, as amended. 2. City and SERENA 386/Developer intend to modify and restate all maintenance obligations concerning the Property while the Property is owned by Developer. Any and all prior oral or written commitments by PS Country Club to maintain the Property, including but not limited to that certain Landscape Ground Maintenance Agreement dated December 12, 2012, and any settlement agreement between the parties, are hereby terminated and replaced with the maintenance requirements contained herein. -2- 55575.18145\42385859.4 DOC #2024-0240100 Page 3 of 25 H. Planning Commission — Council Findings. The approval of this Amendment 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 inconformity 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. AMENDMENT 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. DEVELOPMENT AGREEMENT. Section 1.01. Development Agreement. All terms and definitions contained within the Development Agreement shall apply in this Amendment and remain in full force and effect unless specifically amended in this Amendment. ARTICLE 2. INCORPORATION OF RECITALS. Section 2.01. Recitals. The Recitals set forth above, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Amendment as if set forth herein in full. ARTICLE 3. EFFECTIVE DATE Section 3.01. Effective Date of this Amendment. This Amendment shall become effective as of the date PS Country Club sells the project to Developer (i.e. the close of escrow) (the "Amendment Effective Date"). ARTICLE 4. AMENDMENTS TO THE DEVELOPMENT AGREEMENT. Section 4.01. Development Agreement Fee. Section 4.03 e. of the Development Agreement is hereby deleted and replaced as follows: "e. The Development Agreement Fee ("DA Fee") was established at Three Million Dollars ($3,000,000) in the Development Agreement. In 2021, Developer paid Five Hundred Thousand Dollars ($500,000) towards the DA Fee. The -3- 55575.18145\42385859.4 DOC #2024-0240100 Page 4 of 25 balance of the DA Fee of Two Million Five Hundred Thousand Dollars ($2,500,000) was due no later than November 1, 2022, but was not paid by Developer. The Parties agree to a new Development Agreement fee in the amount of Three Million Two Hundred Thousand Dollars ($3,200,000) ("Amended DA Fee"), to be used by the City for acquisition of open space for the purposes of Developer's compliance with the General Land Use Policy 2.2 in generating land use density for the subject property. The Amended DA Fee is in addition to any amount previously paid towards the DA Fee. Unless paid sooner, the Amended DA Fee shall be paid no later than the following dates: i. $663,212 (80 lots) on or before June 30, 2025 ii. $505,699.76 (61 lots) on or before March 31, 2026 iii. $472,539.12 (57 lots) on or before September 30, 2026 iv. $256,994.96 (31 lots) on or before January 31, 2027 v. $522,280.08 (63 lots) on or before May 31, 2027 vi. $762,703.92 (92 lots) on or before November 30, 2027 If development lots are sold to third -party builders or building permits are issued prior to the payment of the Amended DA Fee (or the pro rata amount of the Amended DA Fee for such lots), the Amended DA Fee shall be paid by Developer 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-rata portion of the unpaid principal 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 following any sale of developed lots to a third -party builder, or concurrent with and as a condition precedent to the City issuance of a building permit. The pro-rata portion of the Amended DA Fee shall be calculated as the total Amended DA Fee divided by the total number of residential dwelling units ($3,200,000 / 386), for a per lot fee of $8,290.16 ("Pro -rate Per Lot Fee")." Section 4.02. Infrastructure Financing. City acknowledges that the success of the Project may require the establishment of a Community Facilities District ("CFD") or other similar alternative financing mechanism (i.e. Statewide Community Infrastructure Program ("SCIP") ("Financing District") to reimburse the Developer for public facilities costs for infrastructure to be owned by the City or other public agencies, and associated developer impact fees. At Developer's request, City shall cooperate with Developer in the establishment of an assessment district(s), community facilities district(s) or other public financing mechanism to finance any necessary public improvements for the Project, which public improvements may lawfully be financed with such financing mechanism, substantially consistent with the financing plan ("Financing Plan") set forth in Exhibit 1". Section 4.03. Exhibit D. Exhibit "D", incorporated in Section 7.09 c. thereof, is deleted and replaced in attached hereto as Exhibit "2" to this Amendment. -4- 55575.18145\42385859.4 into the Development Agreement its entirety with a new Exhibit "D", DOC #2024-0240100 Page 5 of 25 Section 4.04. Property Maintenance Obligations. During the term of the Development Agreement, so long as Developer owns the Property, or any portion thereof, Developer shall be responsible to maintain the Property as set forth below. 4.04.01. Trash, Debris & Graffiti. No less than once per month, Developer shall ensure the removal of all trash, debris and graffiti from the Property. 4.04.01.01. Initial Property Cleanup. Within 30 days following the Amendment Effective Date, dead trees, limbs, trash and debris shall be removed from the Property to the reasonable satisfaction of City staff. 4.04.01.02. On -Site Trees. Within 30 days following the Amendment Effective Date, Developer shall retain an arborist to evaluate the condition of all trees on -site. Within 120 days following the Amendment Effective Date, Developer shall remove all trees reasonably deemed necessary for removal by the arborist. 4.04.02. Dust Control. The Parties recognize that the area surrounding the Property is affected by blown dust and sand during wind events. The Parties also recognize that the area is adjacent to stormwater facilities that can also be the cause of dust and sand during wind events. So long as Developer applies a chemical soil stabilizer or binder no less than once annually, Developer shall not be deemed the cause of wind blown dust or sand in the area. Developer shall, within thirty (30) days of notification from City, re -amply a chemical soil stabilizer or binder more frequently than annual re - applications if the City notifies Developer that an area has been disturbed and the previously applied stabilizer/binder is no longer effective. 4.04.03. Surveillance Cameras. Within 60 days following the Amendment Effective Date, Developer shall install surveillance cameras at no less than four on -site locations, as designated by the City, and maintain their operation until home construction begins at each location. Each camera shall have video recording capabilities enabled 24 hours, seven day per week. Developer shall maintain video recordings of all four cameras for a rolling fourteen (14) day period, which recordings shall be made available to the City, upon request. Developer shall repair any broken cameras in a timely manner, but in no event longer than 10 business days after notification by the City. If the Project is built in phases, City and Developer can mutually agree to reduce the number of cameras as each phase is built. 4.04.04. Patrols. Developer shall contract with a company to provide daily patrols of the Property to provide a deterrence to trespassers and inform Developer of any maintenance or disturbance issues witnessed at the Property. 4.04.05. Signs. "No trespassing" signs shall be posted and maintained by Developer at the three vehicular access point to the property (Verona/Whitewater, San Rafael/Golden Sands and Francis terminus) and no less than four locations along easterly boundary along the stormwater channel. -5- 55575.18145\42385859.4 DOC #2024-0240100 Page 6 of 25 4.04.06. Contact Person/ Neighborhood Communications. Developer shall designate a contact person who, at any time during normal business hours, is available to respond to calls or complaints from the City or neighbors concerning the Property's condition. This individual is responsible for promptly and effectively coordinating the correction of any observed violations of the Property Maintenance Obligations in this Amendment. Developer shall make itself available for regular (i.e., no less frequently than once per quarter) meetings (whether in person or virtual) with neighborhood groups and their Homeowners' Associations, in order to provide updates and maintain open communication. 4.04.07. Default of Property Maintenance Obligations. Developer shall be in default of these Property Maintenance Obligations if a violation occurs, the City provides written notice to Developer to correct the violation, and the violation is not corrected by Developer within thirty (30) days for the Dust Control measure (Section 4.04.02) and seventy two (72) hours for all other property maintenance obligations. In addition to any other remedy available to the City, in the event Developer does not correct any such violation following notice and the opportunity to correct, City may correct any such violation. The City shall provide the Developer with at least ten (10) days' written notice prior to initiating any work for which it may intend to recover costs. The City shall be entitled to collect the reasonable costs of such correction, whether as a money judgment, or as a lien against the subject property or as a special assessment. Section 4.05. Additional Project Entrance, Golden Sands Road. Landscaping and Park. 4.05.01. Additional Project Entrance. Developer shall provide a third additional vehicular entrance to the Project, as evaluated in the Project entitlements. 4.05.02. Golden Sands Road. Developer shall rehabilitate Golden Sands Road and replacement of the stop sign, all in accordance with standards established by the City Engineer. Such work shall be commenced within two hundred and seventy (270) days following the Amendment Effective Date, and shall be completed within forty five (45) days. Landscaping along Golden Sands Road shall be rehabilitated by Developer within one hundred and twenty (120) days following the Amendment Effective Date. 4.05.03 Golden Sands Road Sidewalk. Developer shall install a temporary sidewalk that is acceptable to the City Engineer along Golden Sands Road between the end of the sidewalk east of Savanna Trail to Golden Sands Mobile Home Park as part of the Project's first phase. 4.05.04. Park Timing. The Park shall be completed as a condition precedent to the City's issuance of the 52"d building permit for the Project. -6- 55575.18145\42385859.4 DOC #2024-0240100 Page 7 of 25 Section 4.06. Miscellaneous. Section 4.06.01. Enforceability. The Parties agree that unless this Amendment is amended or terminated pursuant to the provisions of the Development Agreement, as amended, this Amendment 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 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 as of the Amendment Effective Date, as provided by California Government Code Section 65866. Section 4.06.02. Severability. If any term or provision of this Amendment, or the application of any term or provision of this Amendment 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 Amendment, or the application of this Amendment 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 Amendment, 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 Amendment by providing written notice of such termination to the other party. Section 4.06.03. 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 or this Amendment and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder. Section 4.06.04. Construction. Each reference in this Amendment to this Amendment or any of the Project Approvals shall be deemed to refer to the Amendment 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 Amendment has been reviewed and revised by legal counsel for City, PS Country Club and Developer, respectively, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Amendment. Section 4.06.05. 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 Amendment, the signer obligations are joint and several. Section 4.06.06. Covenants Running with the Land. All of the provisions contained in this Amendment 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, -7- 55575.18145\42385859.4 DOC #2024-0240100 Page 8 of 25 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 Amendment 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 4.06.07. Entire Agreement. Counterparts and Exhibits. This Amendment is executed in duplicate, each of which is deemed to be an original. This Amendment consists of 9 pages and three exhibits which constitute, except for the Development Agreement, the full, final and exclusive understanding and amendment to the Development Agreement, and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. Section 4.06.08. Waiver. Any waivers of the provisions of this Amendment or any breach of covenants or conditions contained in this Amendment 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 4.06.09. Recordation of Development Agreement. No later than thirty (30) days after the Amendment Effective Date, the City Clerk shall record an executed copy of this Amendment in the Official Records of the County of Riverside. Section 4.06.10. 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, PS Country Club, and Developer, any rights, remedies, obligations or liabilities under or by reason of this Amendment. Section 4.06.11. Titles of Parts and Sections. Any titles of the sections or subsections of this Amendment are inserted for convenience of reference only and shall be disregarded in interpreting any part of this Amendment's provisions. Section 4.06.12. Discretion of City. City's execution of this Amendment 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 4.06.13. Representations of Authority. As to each person signing this Amendment on behalf of an entity, all necessary legal prerequisites to that party's execution of this Amendment have been satisfied and he or she has been authorized to sign this Amendment and bind the party on whose behalf he or she signs. -8- 55575.18145\42385859.4 DOC #2024-0240100 Page 9 of 25 [SIGNATURES ON NEXT PAGE] -9- 55575.18145\42385859.4 DOC #2024-0240100 Page 10 of 25 IN WITNESS WHEREOF, the City of Palm Springs California, a California Charter City and municipal corporation, has authorized the execution of this Development Agreement Amendment in duplicate by its City Manager and attestation by its City Clerk, and approved by the Council of the City on the 9th day of July, 2024, and adopted by City Council Ordinance No. 2097, and PS Country Club and Developer have caused this Amendment to be executed by its authorized representative. "CITY" City of Palm Springs Date: r 2- By: Scott Stiles City Manager APPROVED AS TO FORM: Jeffrey S. Ballinger City Attorney APPROVED BY CITY COUNCIL: 41 q;?.a-4 14cm 1, G, Date: ,�Agreement No. By: Brenda Pree, 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. [SIGNATURES CONTINUE ON NEXT PAGE] -10- 55575.18145\42385859.4 DOC #2024-0240100 Pagel 1 of 25 IN WITNESS WHEREOF, the City of Palm Springs California, a California Charter City and municipal corporation, has authorized the execution of this Development Agreement Amendment in duplicate by its City Manager and attestation by its City Clerk, and approved by the Council of the City on the 9th day of July, 2024, and adopted by City Council Ordinance No. 2097, and PS Country Club and Developer have caused this Amendment to be executed by its authorized representative. "CITY" City of Palm Springs Date: By,. d'm �°Unte�Pa� cott Stiles City Manager APPROVED AS TO FORM: ATTEST B _ B ea `� G°��teCpac� y. ��gn qyreUBallinger Brenda Pree, MMC City Attorney City Clerk APPROVED BY CITY COUNCIL: Date: Agreement No. 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. [SIGNATURES CONTINUE ON NEXT PAGE] -10- 55575.18145\42385859.4 DOC #2024-0240100 Page 12 of 25 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of _ K1%\.) `AI, "%A,--, I On �u.�u�sS d-0z-1 before me, I VVd�t/IG Date L L C Here Insert Name and Title of e Officer personally appeared J-�I I e S Name(s) of Signer(s) 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 4bmy BRENT RASI Notary Public • CaliforniaverRiside CountyCommission 4 2398347 Comm, Expires Mar 24, 2026 Place Notary Seal and/or Stamp Above 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 /e Signature of Notary Public /111TIA\I A I Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached D Title or Type of Document Date: Signer(s) Other' Capacity(ies) Claimed by Signer(s) Signer's Name: i e.FF bcak� "&(- ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee /� ❑ Guardian or Conservator gOther: Ci f A-ihcm,4 Sigler is Representing: Gi ©2019 National Notary Association Signer's Name: fSryy , Prje-Q ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator 1&Other: Saner is Regrese ing: - Gi Tit a✓j DOC #2024-0240100 Page 13 of 25 "DEVELOPER" SERENA 386, LLC, a Delaware limited liability company By ,0 By Signature (Notarized) N(C ®(a 0 Printed Name itle "PS COUNTRY CLUB" PS Country Club, LLC, a California limited liability company Byes By Signature (Notarized) c�e Printed Namerfitle Signature (Notarized) Printed Name/Title a� Signature (Notari 0G Printe e/Title -11- 55575.18145\42385859.4 DOC #2024-0240100 Page 14 of 25 CALIFORNIA ALL- PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the -individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County Of v } Daniel Barrientos Cruz Notary Public On _ ^ Z� before me, C ere nsert name an U e o e a eer personally appeared C Gil Gt G{ �- who proved to me on the basis of satisfactory vi a ce to be the person(s) whose name(s) is/are subscribed to the within instru en 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. DANIEL BARRiENTOS CRUI� WITNESS iiand official al. Comm.# 2348413 NOTARY PUBLIC-CALIFORNIA ORANGE CCJNTY '• NY Comm. Exp. WAR.17, 2025^' No ublic lgnature (Notary Public Seal) ADDITIONAL OPTIONAL INFORMATION ThiINSTRUCTIONS FOR COMPLETING THIS FORM s form complies with current California statutes regcn diirg notary wording and. DESCRIPTION OF THE ATT CHED DOCUMENT (needed, should be completed and attached to the document. Acknowledgments from other states may be completed for documents being sent to that state so long F A A ; O r _ / 5� as the wording does not require the California notary to violate California not law. (Title or description of atlached document) State and County information must be the State and County where the document igner(s) personally appeared before the notary public for acknowledgment.. (Title or description of attar ed document eonti ued) Date of notarization must be the date that the signer(s) -personally appeared which must also be the same date the acknowledgment is completed. • 'The notary public must print his or her name as it appears within his or her dumber of Pages Document Date commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. CAPACITY CLAIMED BY THE SIGNER • indicate the correct singular or plural forms by crossing off incorrect forms (i.e. ❑ I ndivldual (s) Wshe/theyr is /are ) or circling the correct forms. Failure to correctly indicate this iriformalion may lead to rejection of document recording. ❑ Corporate Officer • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re -seal if a (Title) sufficient area permits, otherwise complete a different acknowledgment form. ❑ Partner(s) Signature of the notary public must match the signature on file with the office of the county clerk. ❑ Attorney -In -Fact Additional information is not required but could help to ensure this ❑ Trustee(s) acknowledgment is not misused or attached to a different document. ❑ Other Indicate title or type of attached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary) 2915 Verdoir Y: r.�,frlJataryClusst:y.co(rt •" a-EI: i ;)olio; • Securely attach this document to the signed document with a staple. DOC #2024-0240100 Page 15 of 25 "DEVELOPER" SERENA 386, LLC, a Delaware limited liability company I By �Q By GO Signature (Notarized) e 4q,Printed Name/Title "PS COUNTRY CLUB" PS Country Club, LLC, a California limited liability company By Signature (Notarized) Printed Name/Title By V `yen w6 ignature (Notarized) Signature (Notarized) I4 Printed Name/Title ' Printed Name/Title i -11- 55575.18145\423 85859.4 DOC #2024-0240100 Page 16 of 25 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of LOS ANGELES On AUGUST 1, 2024 before me, GEOFFREY WILLIAMS, NOTARY PUBLIC (insert name and title of the officer) personally appeared MATTHEW HAVERIM 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 5E" GEOFFREY WILLIAMS a W` Notary Public - California = W Los Angeles County Commission; 2354834 My Comm. Expires Apr 18, 2025 (Seal) DOC #2024-0240100 Page 17 of 25 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of LOS ANGELES On AUGUST 11 2024 before me, GEOFFREY WILLIAMS, NOTARY PUBLIC (insert name and title of the officer) personally appeared BEHROOZ HAVERIM who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 45E��1o,1atiF GEOFFREY WILLIAMS Y� No Public California z Los Angeles County r +` Commission # 2354834 ��4cor.M�e My Comm. Expires Apr 18, 2025 DOC #2024-0240100 Page 18 of 25 EXHIBIT "1" FINANCING PLAN This Financing Plan sets forth the basic terms and conditions pursuant to which City and Developer will cooperate to establish a Community Facilities District or Community Facilities Districts (each, a "District") pursuant to the Mello -Roos Act to finance the acquisition or construction of certain public improvements in connection with the Project. Capitalized terms not otherwise defined in this Financing Plan shall be defined as provided in the Development Agreement ("Agreement"). Objectives. The principal objectives of this Financing Plan are to: a. Provide City and Developer reasonable certainty that any District will be established in accordance with the Goals and Policies, except as any specific goal or policy may be explicitly supplemented, amended or waived as set forth herein. b. Provide for the issuance of bonds by or for the District or Districts or any Improvement Areas (defined below) therein in one or more series in order to minimize carrying costs and improve overall bondholder security. C. Implement and document certain determinations by City pursuant to the Goals and Policies. To the extent this Financing Plan is inconsistent with other parts of the Agreement to which this Financing Plan is an exhibit, the provisions of this Financing Plan shall govern. 2. Formation. City shall initiate proceedings to establish a District, upon Developer's written request and submittal of the City's standard application form and receipt of an advance from the Developer in an amount determined by the City to pay for the City's estimated costs to be incurred in undertaking the proceedings to establish the District ("Formation Proceeding Costs"). City agrees that all such advanced City costs incurred in connection with the formation of such District shall be eligible for reimbursement out of the first available District bond proceeds and/or special taxes. The exact terms and conditions for the advance of funds by Developer and the reimbursement of such advances as mutually agreed upon shall be memorialized in a separate agreement between the City and the Developer. City agrees to use its best efforts to complete the proceedings to form such District and record the notice of special tax lien within two hundred ten (210) days after City's receipt of Developer's complete application and deposit. In the event such District is not or cannot be formed by the City or bonds cannot be issued for such District to finance the facilities as provided for in this Financing Plan due to unforeseen changes in state or federal law or other reasons, City shall reasonably cooperate with Developer in using the Statewide Community Infrastructure Program ("SCIP") or other community facilities district financing program available through the California Statewide Communities Development Authority to finance, acquire, and/or construct the public improvements described herein. Exhibit "1" 55575.18145\42385859.4 DOC #2024-0240100 Page 19 of 25 3. Boundary. The District boundary shall encompass the Project and may contain multiple improvement areas (each, an "Improvement Area") based on phasing of the Project. It is currently contemplated that the District will contain both residential and non-residential land uses and may be subject to the levy of special taxes by the District as set forth herein. 4. Eligible Public Facilities and Discrete Components and Fee Facilities. Subject to the condition set forth in the following paragraph, the City will authorize the District to finance the following types of public improvements ("Eligible Public Facilities") and fee facilities ("Fee Facilities") which by the approval of the Agreement City has determined are consistent with the Goals and Policies or constitute an approved exception to the Goals and Policies for the Project may include, but is not limited to the following Eligible Public Facilities: way a. Public Streets and other related improvements within public right of b. Potable and Non -Potable Water Facilities C. Sewer Facilities d. Dry Utilities e. Public Parks, Open Space and Landscaping Storm Water Drainage, Retention and Detention Facilities g. Fire Facilities, Police Facilities and other Government Facilities The Eligible Public Facilities shall be financed with the proceeds of special taxes and/or bonds of the District ("District Proceeds") regardless of the Improvement Area(s) from which such District Proceeds. are derived. Costs of the Eligible Public Facilities to be constructed by Owner that are eligible to be financed with District Proceeds are as follows: (i) The actual hard costs for the construction or the value of an Eligible Public Facility, including labor, materials and equipment costs; (ii) The costs of grading related to an Eligible Public Facility; (iii) The costs incurred in designing, engineering and preparing the plans and specifications for an Eligible Public Facility; (iv) The costs of environmental evaluation and mitigation of or relating to the Eligible Public Facility; (v) Fees paid to governmental agencies for, and costs incurred in connection with, obtaining permits, licenses or other governmental approvals, including the Amended DA Fee (if eligible), for an Eligible Public Facility; Exhibit "1" 55575.18145\42385859.4 DOC #2024-0240100 Page 20 of 25 (vi) Costs of construction administration and supervision up to five percent (5.0%) of the total cost of the Eligible Public Facility; (vii) Professional costs associated with each Eligible Public Facility, such as engineering, legal, accounting, inspection, construction staking, materials and testing and similar professional services; (viii) Costs of payment, performance and/or maintenance bonds and insurance costs directly related to the construction of an Eligible Public Facility; and (ix) Fee Facilities includes all fees established and imposed upon the Project by the City or any other participating agencies. City and Developer agree that "Discrete Components" of each Eligible Public Facility may be approved for payment from District Proceeds in an amount equal to actual cost of the Discrete Component less a 25% retention, and that City shall not accept an Eligible Public Facility of which a Discrete Component is a part, or pay any prior retention relating to such Discrete Component, until the entire Eligible Public Facility has been completed. Each Discrete Component is a component of an Eligible Public Facility that City has agreed can be separately identified and/or inspected. City acknowledges that a Discrete Component that consists of construction or installation work does not have to be accepted by City as a condition precedent to the payment of acquisition thereof, but City shall not be obligated to make such payment until such Discrete Component has been "substantially completed," which shall mean that it is substantially complete for its intended use in accordance with its plans and specifications, notwithstanding any final "punch list" items still required to be completed. Master Developer shall be entitled to make a separate payment request to City for the costs of final "punch list" items and other eligible costs not previously reimbursed upon completion of such work. The Eligible Public Facilities shall be bid, contracted for and constructed in accordance with a funding and acquisition agreement ("Acquisition Agreement") to be entered into between City and Developer at the time of formation of the District. The Acquisition Agreement shall provide additional detail, consistent with the provisions of this Development Agreement, with respect to the District and the acquisition and construction of the Eligible Public Facilities with District Proceeds. 5. Financing Parameters. City agrees to levy special taxes of the District and issue District bonds in one or more series to finance the acquisition and construction of the Eligible Public Facilities using the parameters set forth below: a. A precondition to the issuance of bonds shall be that the value of the real property subject to special taxes required to repay the bonds shall be at least three (3) times the amount of the bonds and any other governmentally -imposed land -secured debt (excluding any proceeds of the bonds to be deposited in an escrow fund); provided, however, that City, its bond counsel, its financial advisor and the underwriter of the bonds do not view such ratio as posing an unusual credit risk. In order to reduce issuance, administrative and interests costs, provide certainty as to the availability of the proceeds Exhibit "I" 55575.18145\42385859.4 DOC #2024-0240100 Page 21 of 25 of the bonds to fund the Eligible Public Facilities, and facilitate efficiency in such funding and the construction of the Eligible Public Facilities, bonds may be issued and a portion of the proceeds escrowed that is reasonably expected by the City to be released within three (3) years pending increases in the value of property subject to special taxes to achieve a 4:1 value -to -lien ratio. b. Each series of bonds shall have a minimum term of thirty (30) years; provided, however, the term of any individual series of bonds may be less than thirty (30) years if the District's authority to levy the special taxes securing the payment of such bonds or the underwriting conditions in the market for land secured bonds at the time of the issuance of such bonds require the issuance of such bonds with a shorter term. C. Each series of bonds may include up to eighteen (18) months of capitalized interest or such other lesser amount as may be requested by Developer. d. Each series of District bonds to be issued for an Improvement Area shall be sized based upon the estimated annual special tax revenues from such Improvement Area at build -out being equal to one hundred ten percent (110%) of (i) annual debt service, plus (ii) priority annual administrative expenses. Priority administrative expenses shall not exceed $50,000 for the first series of bonds issued for an Improvement Area. e. The total effective tax rate within each Improvement Area applicable to any residential parcel on which a residential dwelling has or is to be constructed, taking into account all ad valorem property taxes, voter -approved ad valorem property taxes in excess of one percent (1 %) of assessed value, the annual special taxes of existing community facilities districts and community facilities districts under consideration and reasonably expected to be established, the annual assessments (including any administrative surcharge) of existing assessment districts and assessment districts under consideration and reasonably expected to be established, and the special taxes of the District, shall not exceed two percent (2.00%) of the projected initial sales price of the residential dwelling unit and such parcel, as projected at the time of District formation. f. Special taxes shall be levied on Developed Property within an Improvement Area at the maximum assigned special tax rate prior to the issuance of bonds to finance the Eligible Public Facilities. "Developed Property" means a parcel for which a building permit has been issued. "Undeveloped Property" shall mean all other taxable property. Special Taxes may be levied on Undeveloped Property within an Improvement Area only after the issuance of bonds and only to the extent the annual debt service on the bonds, administrative expenses, the delinquency rate for special taxes levied in the previous fiscal year within the Improvement Area for all subsequent fiscal years in which the special taxes are levied, and the reserve fund replenishment amount is not able to be paid in full from Developed Property special taxes levied and collected within the applicable Improvement Area. g. Any affordable housing units, rental units or non-residential land uses may, at Developer's option, be exempted from special taxes of the District. Exhibit "1" 55575.18145\42385859.4 DOC #2024-0240100 Page 22 of 25 h. Full or partial prepayment of the special taxes shall be permitted. i. As permitted by the Goals and Policies, at Developer's election at the time of submittal of its written request, the City shall allow the special taxes within an Improvement Area to escalate by two percent (2%) per year and debt service on the bonds to escalate at the same rate as the special tax escalation. Exhibit "I" 55575.18145\42385859.4 DOC #2024-0240100 Page 23 of 25 EXHIBIT "2" REPLACES EXHIBIT "D" OF DEVELOPMENT AGREEMENT SERENA PARK DEVELOPMENT AGREEMENT PERFORMANCE SCHEDULE DATE ACTIVITY NOTE June 2025 Ready to record Phase IA Map 51 Lots June 2025 Ready to Record Phase I Map 29 Park built as part of Lots this phase March2026 Ready to Record Phase 2 Map 61 Lots September 2026 Ready to Record Phase 3A Map 57 Lots January 2027 Ready to Record Phase 313 Map 31 Lots May 2027 Ready to Record Phase 4A Map 43 Lots May2027 Ready to Record Phase 3C Map 20 Lots November 2027 Ready to Record Phase 413 Map 92 Lots Exhibit "2" 55575.18145\42385859.4 DOC #2024-0240100 Page 24 of 25 Exhibit "Y Description of Development REAL PROPERTY DESCRIPTION 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. 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 89'59'13" West 88.65 feet; Thence North 38°24'39" West 476.26 feet; Thence North 47046'07" West 450.07 feet; Thence North 61 °23'04" West 329.68 feet; Thence North 28004'13" West 200.02 feet; Thence South 80°57'45" West 440.06 feet; Thence South 75005'43" West 318.05 feet; Exhibit "3" 55575.18145\42385859.4 DOC #2024-0240100 Page 25 of 25 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 00'15'30" West 300.00 feet, to the South line of said Section 36; Thence, along said South line of Section 36, South 89°45'52" 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 89°45'52" East 814.00 feet; Thence, leaving said South line, parallel to the West line of said Section 36, North 0015'30" 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 89°35'48" East 417.44 feet; Thence South 88010'53" East 316.61 feet; Thence North 49027'44" East 107.85 feet; Thence North 45027'43" West 330.33 feet; Thence North 82049028" West 18.54 feet; Thence North 53011'47" West 872.71 feet; Thence South 74057'13" West 528.72 feet; 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 70°00'00" West,105.00 feet; Thence South 75012'28" West, 59.03 feet; Thence North 31 000'00" West, a distance of 163.00 feet, to a point on the West line of said South half of the Southeast quarter; Thence South W06'30" West, along said West line, a distance of 160.00 feet to the Point of Beginning. Exhibit "3" 55575.18145\42385859.4 Ip // // // i • Z 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 Pursuant to Government Code Section 1.2.19 05/06/2024 11:52 All Fee $ 0.00 Page 1 of 33 Recorded in Official Records County of Riverside Peter Aldana Assessor -County Clerk -Recorder SPACE ABOVE FOR RECORDER'S USE ONLY recording FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF PALM SPRINGS m PS COUNTRY CLUB, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY FOR SERENA PARK PROJECT CASE NO. 5.1327, PDD-366, TTM36691 THIS AREA FOR RECORDER'S USE ONLY r1olm 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 sue. (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 § 94.08.001, 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. Q 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. I. 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 Project and Project Site. Developer represents and warrants that it has a legal interest in certain real property as legally described in Exhibit A 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 3 applicable local, 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 4 this Agreement and authorizing the City Manager to execute the Agreement and its 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 14, 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 October 14, 2021. The original Development Agreement, dated November 1, 2018, was recorded . 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. j o "Effective Date" shall have that meaning set forth in Section 3.01 of this Agreement. 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 21 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 designation. Section 4.02. Fees Paid bV 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 remainder 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, the 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 (H) building permits are issued for construction of residential dwelling units, the Developer shall pay to City a pro-rata portion of the unpaid principal at the time vacant lots are sold to third -party 7 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-rata portion of the Development Agreement Fee shall be 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 November 1, 2022, the entire unpaid principal 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 remainder 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; 8 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; 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. j. 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 W 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. 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 10 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 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 11 portion thereof; h. Establish, enact, increase, or impose against the Project or 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; i. Impose against the Project any condition, dedication or other exaction not specifically authorized by the Project Approvals or Applicable Law; j. 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 shali 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. 12 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 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. Timing 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 13 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 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, 14 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, Rights 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 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, 15 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. 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. 17 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 parry, 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. 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) m 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 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. 19 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 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: Scott Stiles City Manager 3200 E. Tahquitz Canyon Way 20 Palm Springs, CA 92262 Fax: (760) 322-8362 Teresa.Gallavan@paimsprings-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) 398-4404; Fax: (909) 398-1883 (909) 333-5254 - Direct Mark@mcallen3.com 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 21 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 parry on whose behalf he or she signs. [SIGNATURES ON NEXT PAGE] 22 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 17" day of October, 2018, and amended by City Council Ordinance No. 2051, and Developer has caused this Agreement to be executed by its authorized representative. "CITY" City of Palm Springs Date: s��z� By: / L Scott Stiles City Manager APPROVED AS TO FORM: ATTEST By: l By Jet# ey 97 BAllintfer City Attorney APPROVED BY CITY COUNCIL: Date: 9 3a/Z Agreement No. A5 1 ext� Brenda Pree 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 23 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" CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of 1�VtT 5 t e, On TAM ( r %OLN before me, &V �ix6r OIarU P�/� Dcfte Here Insert Title 604he Officer personally appeared S acill S-Pe5 Nome(s) of Signers) 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. *my !RENT RASI Notary Public- California Riverside County Commission N 239t247 Comm. Expires war 24, 2M Place Notary Seal and/or Stamp Above 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 449—/ tiv Signature of Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited;G--ard Gene ❑ Individual rney in Fact ❑ Trustee ian or Conservator ❑ Other: Signer 02019 National Notary Association of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or -validity of that document. State of California County of Los Angeles On APRIL 3, 2024 before me, Mark C. Glode Notary Public (insert name and title of the officer) personally appeared MATTHEW HAVERIM 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 h (Seal) MARK C. GLODE Notary Public - California S Los anyeles County Commission p 2337965 _ My Comm. Expires Dec 18, 2024 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or -validity of that document. State of California County of Los Angeles On APRIL 3, 2024 before me, Mark C. Glode Notary Public (insert name and title of the officer) personally appeared BEHROOZ HAVERIM 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 paragraph is true and correct. WITNESS my Signature laws of the State of California that the foregoing (Seal) MARK C. GLGDE Notary Public - California € Los Angeles County Commission M 2337965 My Comm, Expires Dec ig, 2024 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" 3" 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 28004'13" West 200.02 feet; Thence South 80057'45" West 440.06 feet; Thence South 75005'43" West 318.05 feet; Thence South 58000'55" West 386.18 feet; Thence South 5014'30" 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 00°15'30" 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 89°45'52" East 814.00 feet; Thence, leaving said South line, parallel to the West line of said Section 36, North 0015'30" 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 89045'52" East 718.85 feet; Thence, leaving said parallel line, South 89035'48" East 417.44 feet; Thence South 88010'53" East 316.61 feet; Thence North 49027'44" East 107.85 feet; Thence North 45°27'43" West 330.33 feet; Thence North 82049028" West 18.54 feet; Thence North 53'11'47" West 872.71 feet; Thence South 74057'13" West 528.72 feet; Exhibit "A" Thence South 0008'38" West 30.73 feet; Thence South 72041'33" West 113.63 feet; Thence South 3029'01" 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 89052'00" 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 75012'28" West, 59.03 feet; Thence North 31000'00" 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" EXHIBIT B ORDINANCE NO. 1931 FOLLOWS THIS PAGE Exhibit "B" 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" The conceptual plan for the public park is on file with the Planning Department, City of Palm Springs Serena Park Tract No. 36691 Exhibit "C" 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" 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 2019-0086225 03/14/2019 11:20 ftH Fee: $ 0.00 Page 1 of 38 Recorded in Official Records County of Riverside Peter flldana flssessor-County Clerk-Recorder II n Ml SPACE ABOVE FOR RECORDER'S USE ONLY Pursuant to Government Code Section 6103, recording fees shall not apply DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF PALM SPRINGS AND PS COUNTRY CLUB, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY FOR SERENA PARK PROJECT CASE NO. 5.1327, PDD-366, TTM36691 Title of Document THIS AREA FOR RECORDER'S USE ONLY 1.2.19 DEVELOPMENT AGREEMENT THIS 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 sea. 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 sea, (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. Citv 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. j. This Agreement will reduce air pollution by reason of a significant reduction in wind borne dust and sand to adjacent neighborhoods. 1.2.19 k. This Agreement will increase parkland in an underserved area of the City. I. 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 Proiect and Proiect Site. Developer represents and warrants that it has a legal interest in certain real property as legally described in Exhibit A 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 sea. ("CEQA"), and all other applicable local, state, and federal laws and regulations. The Entitlements, Conditions of Approval, and this Agreement shall be collectively referred to as "the Project 1.2.19 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. Citv 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 1.2.19 concomitant Transfer of Density Agreement. The Ordinance was effective on August 25, 2017; a copy of the Ordinance is attached hereto as Exhibit B. 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 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. o "Excusable Delay" shall have that meaning set forth in Section 11.05 of this Agreement. 1.2.19 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 Generallv. 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 designation. Section 4.02. Fees Paid bv Developer. As a material consideration for the long term assurances and vested rights provided by this Agreement, Developer shall pay fees, 1.2.19 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 othenwise 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 bv 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 no later than November 1, 2021. The 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-rata portion of the principle 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-rata portion of the Development Agreement Fee shall be 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 third anniversary date of the Effective Date, the entire unpaid principle on the Development Agreement Fee shall immediately become due and payable to the City. Failure to pay the entire Development Agreement Fee by November 1, 2021, 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 1.2.19 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; 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; 1.2.19 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. j. 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 Proiect 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. Nothing in this Agreement is intended to supersede, terminate, modify or othenwise 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 othen/vise affect the validity of any or all of the provisions of the Conditions of Approval. 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 1.2.19 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 bv 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 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. 1.2.19 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 othenwise 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 Project or 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; i. Impose against the Project any condition, dedication or other exaction not specifically authorized by the Project Approvals or Applicable Law; j. 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 1.2.19 10 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 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, 1.2.19 11 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. Timing of Proiect 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.Sd 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 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 1.2.19 12 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 bv the Citv. 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 bv 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. Rights 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 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 Liabilitv. To the extent the Developer's responsibilities are transferred in good faith to another person or entity. Developer shall be free from any 1.2.19 13 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 Challenaes to Proiect 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 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 1.2.19 14 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 Citv 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 bv Citv 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. Section 11.05. Force Maieure and Excusable Delav: Extension of Time of 1.2.19 15 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. Attornevs' 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. 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 1.2.19 16 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. Enforceabilitv. 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 applicable general plan, specific plan, zoning ordinance, subdivision ordinance, or any 1.2.19 17 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. Severabilitv. 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 Necessarv 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 1.2.19 18 (with original forwarded by regular U.S. Mail) by registered or certified mail (return receipt 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: David H. Ready, Esq., Ph.D. City Manager 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Fax: (760) 322-8362 David.Ready@palmsprings-ca.gov With Copies to: Edward Z. Kotkin City Attorney 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Fax: (760) 323-8299 Edward. Kotkin@palmspringsca.gov 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: MarkC. Allen, III The Claremont Land Group Attorneys 5861 Pine Avenue, Suite A-1 .Chino Hills, CA 91709-6540 Tel: (909) 398-4404; Fax:(909)398-1883 (909) 333-5254 - Direct' Mark@mcallen3.com 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 1.2.19 19 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. Recordatlon 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 Partv 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 CItv. City's execution of this Agreement In no way limits the discretlorr of CityJri tbiS *p6CCnit 9.1", ^PRroval process In connection with any site plan approvals, subsequent entitlements, land use decisions, construction or Improvements which are within City's ■jurisdlction.^except to the extent expressly and unequivocally stated herein. Section 13.14. Representations of Authorltv. 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. ^ t . * [S((^ATPRES ON NEXT PAGE] 1.2.19 20 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 17^^ day of October, 2018, and Developer has caused this Agreement to be executed by its authorized representative. "CITY" City of Palm Springs Date:3|4lfL APPROVED AS TO FORM: By: ^ David H. Ready, PhD, Esq! City Manager ATTEST Edward Z. Kotkin City Attorney fthony J City Clerk APPRO^D^ycrT,^coj|NciL: //n/r/ fK I ^ Date 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 ^Siflnature (Notarfeed)^ ^ ., Si^afture (Notarized) ^ . a ^•Eric. Printed^^e/T^ Name/Title 1.2.19 21 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE §1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California \jen^krr\County of before me, Date l^ere Insert Name ana Title of the Officer \ personally appeared .V\ TO cT] . .O\\Nf\ 0l i(lv|1£1 Name(s) of Signer(s) 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^he/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. meqhann percv Commlsfloii # 214578O WotiryPubHc.CiWorni. wntura County 9Mn\ WITNESS Signature nd official seal ignature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document Description of Attached Document Title or Type of Document: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Do Signer's Nam cument Date: □ Corporate Officer — Title(s): [ 1 Partner — □ Limited □ General □ Individual [ I Attorney in Fact □ Trustee □ Guardian or Conservator □ Other: Signer Is Representing: e: □ Corporate Officer — Title(s): n Partner — □ Limited □ General □ Individual □ Attorney in Fact n Trustee □ Guardian or Conservator □ Other: Signer Is Representing: ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 ACKNOWLEDGMENT OF INSTRUMENT (Gal. Civil Code Section 1181) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthftjlness, accuracy, or validity of that document. State of California County of Riverside City of Palm Springs ss. ) On March 7, 2019, before me, ANTHONY J. MEJIA, CITY CLERK, CITY OF PALM SPRINGS, CALIFORNIA, personally appeared DAVID H. READY, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his official and authorized capacity, and that by his signature on the instrument the person or entity upon behalf of which the person acted, executed the agreement. 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 the official seal of the City of Palm Springs, California, this 7^^ day of March, 2019. Signature: ANTHONY Jt MEJIA, MMC CITY CLERK, CITY OF PALM SPRINGS gplTATtS Title or Type of Document Development Agreement By and Between City of Palm Springs and PS Country Club, LLC, A California Limited Liability Company, for Serena Park Project, Case No. 5.1327, PDD-366, TTM36691 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" Parcels: (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 89®59'13" West 88.65 feet; Thence North 38''24'39" West 476.26 feet; Thence North 47®46'07" West 450.07 feet; Thence North 61 °23'04" West 329.68 feet; Thence North 28*'04'13" West 200.02 feet; Thence South 80®57'45" West 440.06 feet; Thence South 75''05'43" West 318.05 feet; Thence South 5B''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 00®15'30" West 300.00 feet, to the South line of said Section 36; Thence, along said South line of Section 36, South 89°45'52" 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 89''45'52" 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 89®35'48" East 417.44 feet; Thence South SS'^IO'SS" East 316.61 feet; Thence North 49°27'44" East 107.85 feet; Thence North 45°27'43" West 330.33 feet; Thence North 82M9''28" West 18.54 feet; Thence North 53^11'47" West 872.71 feet; Thence South 74''57'13" West 528.72 feet; Exhibit "A" Thence South 0°08'38" West 30.73 feet; Thence South 72''4r33" West 113.63 feet; Thence South 3®29'0T' 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 70"00'00" 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 0®06'30" West, along said West line, a distance of 160.00 feet to the Point of Beginning. Exhibit "A" EXHIBIT B ORDINANCE NO. 1931 FOLLOWS THIS PAGE Exhibit "B" ORDINANCE NO. 1931 AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA. APPROVING A DEVELOPMENT AGREEMENT WITH PS COUNTRY CLUB LLC, RELATED TO CONVERSION OF THE PALM SPRINGS COUNTRY CLUB GOLF COURSE INTO A RESIDENTIAL SUBDIVISION OF UP TO 386 RESIDENTIAL UNITS IDENTIFIED AS THE SERENA PARK PROJECT, LOCATED NORTH OF VERONA ROAD. EAST OF SUNRISE WAY AND SOUTHWEST OF THE WHITEWATER RIVER WASH (CASE NOS. 5.1327, PDD-366, ZC, GPA, DA. MAJ AND TTM 36691). City Attorney's Summary This Ordinance approves a Development Agreement for a term of 20 years vesting the discretionary entitlements associated with the Serena Park Project, identified by Case No.'s 5.1327, PD'366, ZC, DA, MAJ, and TTM 36691. Pursuant to the terms of the Development Agreement, payment to the City of an in-lieu fee for acquisition of open space is required to ensure compliance with General Plan Land Use Policy 2.2 in exchange for transfer of density onto the underlying property. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS ORDAINS: A. Palm Springs Country Club, LLC, a Califomia 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, term's and obligations for the development of the Project. Exhibit "B" Ordinance No. 1931 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 concems. An Environmental Impact Report (EIR) was prepared to assure adequate review and analysis of potentially significant 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, Califomia 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 TIM 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 Califomia has enacted Califomia Govemment 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., and Exhibit "B" Ordinance No. 1931 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. Notice of a public hearing of the City Council of the City of Palm Springs, California, to consider the Development Agreement was given in accordance with applicable law for the meeting of July 19, 2017. The City Council held a public hearing in accordance with applicable law, considered the Staff Report and all evidence and testimony presented. K. The City Council finds that no further environmental documentation beyond the documentation prepared in conjunction with the EIR for the Project is required because: (i) 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; (ii) 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 (iii) 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. (Public Resources Code section 21166; CEQA Guidelines section 15162.) NOW THEREFORE, THE CITY COUNCiL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The foregoing findings are all true and correct. SECTION 2. The Final EIR for the Project is the controlling environmental document for the Council's consideration of the Development Agreement. SECTION 3. The Development Agreement complies with the provisions of the Palm Springs Municipai Code PSMC § 94.08.00. as follows: Exhibit "B" Ordinance No. 1931 Page 4 a. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan. The Development Agreement is consistent with the City of Palm Springs General Plan in that the Development Agreement directly reflects the land uses approved through General Plan Amendment Case No. 5.1327, Planned Development District- 366, and Tentative Tract Map 36691 by the City Council, and these land uses are either permitted or conditionally permitted in the General Plan Land Use Element. b. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located. Tentative Tract Map 36691 is consistent with the General Plan Land Use Element, because the General Plan designation for the site is Very Low Density Residential (up to 4 du/ac). Tentative Tract Map 36691 was approved with a maximum of 386 residential units with a maximum density of 3.1 dwelling units per acre (du/ac) and is thus consistent with the General Plan in terms of density. c. The Development Agreement is in conformity with public convenience, general welfare and good land use practice. The Development Agreement is in conformance with established City goals, objectives, and regulations outlined in the City's General Plan and the City's Zoning Ordinance. d. The Development Agreement will not be detrimental to the health, safety and general welfare. The Development Agreement is not detrimental to the health, safety, and welfare of the community in that all established zoning and development standards continue to be applicable. e. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values. The Development Agreement reflects the approved conditions of approval of the Project which serve to insure the preservation of property values in the vicinity. SECTION 4. The Development Agreement is hereby approved in exchange for the following mutual benefits: a. The Development Agreement will assure adequate public facilities at the time of development. b. The Development Agreement will assure development in accordance with City's land use policies and goals c. The Development Agreement will provide for orderly growth consistent with the Exhibit "B" Ordinance No. 1931 Page 5 City's General Plan, and other public policies. d. The Development 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. The Development Agreement will remove a nuisance situation and potential liability due to the blight at no cost to City. g. The Development Agreement will protect residents and the City from the issues that typically accompany blighted areas. h. The Development Agreement will allow development of a blighted area with appropriate housing and open space that is compatible with the surrounding neighborhoods. i. The Development Agreement will reduce potential trespasses and nuisances affecting adjacent neighborhoods. j. The Development Agreement will reduce air pollution by reason of a significant reduction in wind borne dust and sand to adjacent neighborhoods. k. The Development Agreement will increase parkland in an underserved area of the City. I. The Development Agreement will allow legal commitments by Developer over and above those allowed by state law and the Palm Springs Municipal Code requirements. SECTION 5. Approval of the Serena Park Proiect Development Agreement. The City Council hereby approves the Serena Park Project Development Agreement, the text of which is set forth in the document entitled "Development Agreement by and between City of Palm Springs and PS Country Club, LLC, a California limited liability company, for Serena Park Project, Case No. 5.1327, PDD-366, TTM36691," and authorizes execution thereof by the City Manager. The provisions of this section shall apply to all property described on Exhibit "A". SECTION 6. The Palm Springs Zoning Code § 94.08 is hereby amended by adding Section 94.08.09 to read as follows: "Section 94.08.09 Serena Park Project Development Agreement A. Serena Park Project Development Agreement 1. Purpose. The purpose of this section is to establish a development agreement to guide the orderly development and improvement of that portion of the city previously developed as the Palm Springs Country Club golf course, which is located north of Verona Road, east of Sunrise Way, and southwest of the Whitewater River Wash, in Section 36, Township 3 South, Range 4 East, and in Section 1, Township 4 South, Exhibit "B" Ordinance No. 1931 Page 6 Range 4 East, San Bernardino Base and Meridian, In the City of Palm Springs as legally described on Exhibit "A" of the Development Agreement, attached to the Ordinance codified in this section and incorporated herein by reference. The property is designated Very Low Density Residential (VLDR) land use designation in the general plan, as applicable. Hereafter, the property shall also be designated "Development Agreement No. 5" or "DAS" which shall be an overlay designation incorporating the restrictions of the "Serena Park Project Development Agreement". The Serena Park Project Development Agreement replaces within said property the usual development standards othenArise applicable to the property. The Serena Park Project Development Agreement provides for ultimate development of a residential project consisting of 92 attached single-family units on minimum 5,000 square foot lots, 214 detached single- family units on minimum 5,000 square foot lots, and 60 detached single family units on minimum 8,000 square foot lots, and is consistent with the general plan objectives, policies, and programs of the City. 2. Adoption of Serena Park Project Development Agreement. There is adopted the Serena Park Project Development Agreement, the text of which is set forth in the document entitled "Development Agreement by and between City of Palm Springs and PS Country Club, LLC, a California limited liability company, for Serena Park Project, Case No. 5.1327, PDD-366, TTM36691," included with the ordinance which codified this section, which agreement is incorporated in this section by reference. The provisions of this section shall apply to all property described on Exhibit A" attached to the Development Agreement and incorporated herein by reference. 3. Property Development and Other Standards. All property which is subject to the Serena Park Project Development Agreement shall be maintained in accordance with all policies, requirements, regulations, and provisions set forth in the Serena Park Project Development Agreement. The developer's performance of its obligations under the Serena Park Project Development Agreement shall be subject to annual review as provided therein. SECTION 7. The Official Zoning Map of the City of Palm Springs is hereby amended by reclassifying from PD-366 to being subject to the Serena Park Project Development Agreement "Development Agreement No. 5" or "DAS," all of that real property described in Exhibit "A". SECTION 8. EFFECTIVE DATE. This Ordinance shall be in full force and effect thirty (30) days after passage. SECTION 9. PUBLICATION. The City Clerk is hereby ordered and directed to certify to the passage of this Ordinance, and to cause the same or a summary thereof or a display advertisement, duly prepared according to law, to be published in accordance with law. Exhibit "B' Ordinance No. 1931 Page? PASSED, APPROVED, AND ADOPTED B:£JUE_PALM SPRINGS COUNCIL THIS 26™ DAY OF JULY, 2017. ROBERT MOON, MAYOR ATTEST; KATHLEEN D. HART, MMC ^ INTERIM CITY CLERK CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, KATHLEEN D. HART, Interim City Clerk of the City of Palm Springs, do hereby certify that Ordinance No. 1931 is a full, true, and correct copy, and was introduced at a regular meeting of the Palm Springs City Council held on July 19, 2017. and adopted at an adjourned regular and special meeting held on July 26, 2017, by the following vote: AYES: Councilmembers Kors, Mills, Roberts, and Mayor Moon NOES: None ABSENT: None ABSTAIN: None RECUSED: Mayor Pro Tem Foat noting conflict of interest KATHLEEN D. HART. MMC INTERIM CITY CLERK Exhibit "B" 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 The conceptual plan for the public park is on file in the Planning Department, City of Palm Springs Serena Park Tract No. 36691 Exhibits" 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 October 2019 Improvement Plan Approval/ Record Phase 1 Map April 2020 Record Phase 2 Map June 2020 Infrastructure Construction Phase 1 Park will be built during this phase September 2020 Infrastructure Construction Phase 2 - March 2021 Close Phase 1 First House April 2021 Infrastructure Construction Phase 3 August 2021 Close Phase 2 First House October 2021 Record Phase 3 Map December 2021 Record Phase 4 Map January 2022 Close Phase 3 First House April 2022 Infrastructure Construction Phase 4 January 2023 Close First House Phase 4 Exhibit "D"