HomeMy WebLinkAbout03315 - SHADOWROCK PALM SPRINGS DEVELOPMENT LLC DISP AND DEV AGR Pabe 1 of 1
Kathie Hart
From: Loretta Moffett
Sent: March 07, 2008 10!29 AM
To: Kathie Hart
Cc: Craig Ewing
Subject: Contract- document tracking
1. A3315 Shadowrock R.E. 17ev. - can be closed
2. A5119 I_SA Associates for Boulders & Crescendo - can be closed
3. A5240 Terra Nova Planning — Eagle Canyon Project— can be closed
4. A5355 Terra Nova Planning — One Palm Springs— can be closed —this project was cancelled
5. A5373 Terra Nova Planning — Privado — can be closed — contract was completed-
6 A5494 Hogle-Ireland — Project Planner . .keep open until we've paid for the services....you have the
Amendment #•I approved by Council on Feb. 20 there for final signatures.,.when we get those, we
can pay ail the final invoices Could you check to see when this one will be signed...?
7. Terra Nova Planning — Oasis Hotel Project— can be closed
All others, please keep open for now. Thanks Kathie, I like this document tracking report and reminder, it
helps me keep tabs on these contracts
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03/07/08
CONSENT TO ASSIGNMENT
THIS CONSENT TO ASSIGNMENT ("Consent") executed by the CITY OF PALM
SPRINGS (the "City") as of September,_, 2007 is attached to and made an integral part of and
is incorporated into that certain ASSIGNMENT AND ASSUMPTION AGREEMENT executed
as of the 4th day of September,2007, by and between SHADOWROCK REAL ESTATE
DEVELOPMENT, LT,C, a Delaware limited liability company ("Assignor"), and
SHADOWROCK PALM SPRINGS DEVELOPMENT LLC, a Delaware limited liability
company ("Assignee") (the "Assignment").
WHEREAS the City is a party to that certain Development Agreement executed
November 17, 1993 by and between the City of Palm Springs and Shadowrock Ventures, a
California general partnership, as "Developer", (the "Development Agreement")-
WHEREAS,pursuant to the terms and conditions of the Assignment, Assignor intends to
grant, sell, transfer, convey, assign and delegate to Assignee all of Assignor's right, title interest
ene tts,privileges, duties and obligations arising under or from the Development Agreement.
WHEREFORE, the undersigned agrees as follows:
(1) Pursuant to Section 12.1. of the Development Agreement,the City hereby
consents to the terms and conditions of the Assignment.
(2) Pursuant to Section 12.1. of the Development Agreement, and provided that
Assignor and Assignee enter into the Assigimrent on the terms and conditions provided therein,
Assignor shall be relieved of and from further liability or responsibility for the obligations
arising under the Development Agreement, and the City shall look solely to the Assignee for
compliance by Assignee with the terms, conditions and provisions of the Development
Agreement.
IN WITNESS WHEREOF,the City has executed this Consent as of the day and year first
written above.
CITY OF PALM SPRINGS
y:
Name:
Its:
APPROVED BY:
By:
Name:
Its: a�.tfE
APPROVED BY CITY COUNCIL
STATE OF CALIFORNIA )
,a ) SS:
COUNTY OF
,l't NIP, personally appeared&c,�Li� k'o&j,
personally known to me to be the
person(s)whose n2me(45)31Y�rc subscribed to the within instrument and acknowledged to the that
i /51fe/i'fty executed ibe same in'h s✓flEr/t1Y�ir authorized capacity(Ics), and that by'lu her/their
signature
,M on the instrument the person(aj,or the entity upon behalf of which the person(4
acted, executed the instrument,
WITNESS my hand and official seal. CYNTHIA A. BERARD]
Commission* 1645899
Notary Public•Colifomla
Riverside County
(SEAL)
STATE OF CALIFORNIA )
SS:
COUNTY OF )
On before me, a Notary
Public,personally appeared- _ ,
personally known to me (or proved to me on the basis of satisfactory evidence)to be the
person(s)whose name(s)is/am 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.
WITNESS my hand and official seal.
— (SEAL)
5 000007
RECORDING REQUESTED BY:
W14FN RECORDED MAIL TO:
Gibson, Dunn&Crutcher LLP
333 S. Grand Ave., Suitc-4900
Los Angeles,California 90071
Attention: Dennis B-Arnold, Esq.
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT(this "Assignment")is
executed as of the `/+c day of September,2007,by and between SHADOWROCK REAL
ESTATE DEVELOPMENT, LLC,a Delaware limited liability company("Assignor"),and
SHADOWROCK PALM SPRINGS DEVELOPMENT LLC,a Delaware limited liability
company("Assignee"). Pursuant to that certain AGREEMENT FOR CONVEYANCE OF
REAL PROPERTY entered into as of August 30,2007 (the "Agreement")by and between
Assignor and Assignee,which Agreement is hereby incorporated herein by this reference,and
-- - -- --- for-goad-and-valuable-consid��ptatrd snflreizttcy of Wlriclr c y ac owe ge ,
the undersigned agree as follows:
1. Pursuant to the Agreement, the assigtunent and assumption of the Development
Agreement(as defined below)is a condition to the sale and transfer of the real property subject
to the Development Agreement. The property subject to the Development Agreement is
described in Exhibit"A" attached hereto and incorporated herein by this reference(the"Subject
Property")-
2. Assignor hereby grants,sells,transfers,conveys,assigns and delegates to
Assignee all of Assignor's rights,title, interest,benefits,privileges,duties and obligations(the
"Assigned Rights")arising under or from that certain Development Agreement, entered into on
November 17, 1993 by and between the city of Palm Springs,as "City",and Shadowrock
Ventures,a California general partnership,as "Developer",as amended to the date hereof(the
"Development Agreement"),which Development Agreement is hereby incorporated herein by
this reference, with respect to the Subject Property,excluding therefrom any liabilities resulting
from any breach by Assignor thereunder prior to the date hereof.
3. Assignee hereby accepts the foregoing assignment and assumes and agrees to
perform all of the duties and obligations of Assignor arising under or from the Development
Agreement and,provided that the City of Palm Springs consents to this Assignment,Assignor is
hereby released from all such duties and obligations,excluding therefrom any liabilities resulting
from any breach by Assignor thereunder prior to the date hereof.
4. Assignee agrees to and hereby does indemnify,defend and hold Assignor and its
employees,agents,officers,directors and shareholders, bannless from and against any and all
losses, damages, liabilities, suits,actions,causes of action, claims,fines,proceedings,costs and
expenses(collectively, "Liabilities") which arise from,in respect of, In connection with or
otherwise relate in any manner or to any extent to the Development Agreement and arise on or
I
after the date of this Assignment,including,without limitation,all reasonable atlomcys'fees and
other costs and expenses incurred by Assignor in connection therewith. Assignor agrees to and
hereby does indemnify,defend and hold Assignee harmless from and against any and all
Liabilities which arise from,in respect of,in connection with or otherwise relate in any manner
or to any extent to the Development Agreement and arise prior to the date of this Assigumcnl,
including,without limitation,all reasonable attomeys'fees and other costs and expenses incurred
by Assignee in connection therewitb.
5. Assignor and Assignee execute this Assignment pursuant to Section 12.1 of the
Development Agreement.
6. This Assigmncnt may be executed in counterparts,each of which shall be deemed
an original,and all of which together shall constitute one instrument.
(SIGNATURE PAGE FOLLOWS)
2
IN WITNESS WHEREOF,Assignor and Assignee have executed this Assignment as of
the day and year first above written.
ASSIGNEE:
SHAIJOWROCK PALM SPRINGS
DEVELOPMENT LLC,
a Delaware limited liability company
By: FAIRWAY SHADOWROCK LLC,
a Wisconsin limited liability company,
its Manager
By: SR FINA L C s ger
By:
e obbs
tile;Vice President
ASSIGNOR:
SHADO WROCK REAL ESTATE DEVELOPMENT,
LLC,a Delaware limited liability company
By: Shadowrock LLC,a California limited
liability company
By: Shadowrock Development Corp.,
a California corporation
By:
Name;Mark Bragg
Its: President
Sitnelurc Page to Asslynment end Assulnplion Agreement
3
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of
the day and year first above written.
ASSIGNEE:
SHADOWROCK PALM SPRINGS
DEVELOPMENT LLC,
a Delaware limited liability company
By: FAIRWAY SHADOWROCK LLC
a Wisconsin limited liability company
Its: Manager
By:
Name:
Tithe:
ASSIGNOR:
SHADOWROCK REAL ESTATE DEVELOPMENT,
LLC,a Delaware limilcd liability company
By: Shadowrock, LLC,a California limited
liability company
By: Shadowrock Development Corp_,
a California Gorporatic
By:
Name:Mark Bragg
Its: President
S,Unmure Pagc ru A. jiznmenl and ASngmpryan Agreemcnl
3
STATE OF W15CoN5'T-t4 )
SS:
COUNTY OF_AdjI IyJkUME J
On Auqqg� Q. DO before me,-7r&dU_W, T1Ara 11 ,a Notary
Public, person Ilyappeared hemald r bh
personally known to me(or 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 exccutcd the same in his/hcr/lhcir authorized capacity(ies), and that by his/her/their
signature(s)on the instrument the person(s), or the entity upon behalrof which the person(s)
acted,executed the instrument.
WITNESS my hand and official seal.
�c)Qo�pSARY !`• - - -
(SEAL,) .J' PU6��G •'�5
T9T OF
STATE OF CALIFORNIA )
SS:
COUNTY OF )
On , before me, a Notary
Public,personally appeared
personally known to me(or 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/hcr/their
signatures)On the instrument the person(s), or the entity upon behalf of which the person(s)
acted,executed the instrument.
WITNESS my hand and official seal.
(SEAL)
4
. s •
STATE OF CALIFORNIA JJ )
COUNTY OF Kl✓��5(L/� ) SS_
On Q144 47 ,before me, Od rat /1' 4 2AP'G7 a Notary
Public,personally appeared &a6z rt /-7, r�r
personally known to me(or 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)an the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
cA4Rol a na+lRRnre
WITNESS my hand and official seal- S Commttaton 8 1471a32
Notary FubllI -C4714Ma y
MVCamm.FXplres Fob 21,2fiplt
(SEAL)
STATE OF CALIFORNIA )
SS:
COUNTY OF
On before me,_ a Notary
Public,personally appeared
personally known to me(or 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_
WITNESS my hand and official seal.
(SEAL)
4
Exhibit A
Legal Description
Real property in the City of Palm Springs,County of Riverside, State of California,described as
follows*
PARCEL I:
SECTION 5,TOWNSHIP 4 SOUTI-T, RANGE 4 EAST, SAN BERNARDINO 13ASE AND
MERIDIAN,IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE,STATE OF
CALIFORNIA.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO RIVERSIDE COUNTY
FLOOD CONTROL AND WATER CONSERVATION DISTRICT,BY DEED RECORDED
JULY 12, 1971 AS INSTRUMENT NO, 75722,OFFICIAL RECORDS;
ALSO EXCEPTING THEREFROM,TILAT PORTION CONVEYED TO PARKS OPEN
SPACE AND TRAILS FOUNDATION OF PALM SPRINGS,A CALIFORNIA NON-PROFIT
CORPORATION,BY DEED RECORDED SEPTEMBER 14, 1994 AS INSTRUMENT NO.
353564,OFFICIAL RECORDS;
ALSO EXCEPTING THEREFROM,THAT PORTION LYING WITHIN SAID SECTION 5,
TOWNSHIP 4 SOUTH, RANGE 4 EAST,CONVEYED TO CALIFORNIA DESERT PUBLIC
FINANCING AUTHORITY,A PUBLIC AGENCY,BY DEED RECORDED FEBRUARY 16,
1999 AS INSTRUMENT NOS. 059380 AND 059381 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION THEREOF CONVEYED TO THE
DESERT WATER AGENCY,A PUBLIC AGENCY,BY GRANT DEED RECORDED
OCTOBER 25,2005 AS INSTRUMENT NO.05-880043 OF OFFICIAL RECORDS.
PARCEL 2:
T14E NORTH 14ALF OF SECTION 8,TOWNSHIP 4 SOUTH,RANGE 4 EAST,SAN
BERNARDINO BASE AND MERIDIAN,IN THE CITY OF PALM SPRINGS,COUNTY OF
RIVERSIDE,STATE OF CALIFORNIA.
EXCEPTING THEREFROM,THOSE PORTIONS CONDEMNED BY THE RIVERSIDE
COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BY FINAL
JUDGEMENT OF CONDEMNATION VESTING TITLE, IN UNITED STATES DISTRICT
COURT CENTRAL DISTRICT OF CALIFORNIA, CASE NO. 70-1877111,A CERTIFIED
COPY OF WHICH RECORDED MAY 25, 1971 AS INSTRUMENT NO.55539,OFFICIAL
RECORDS,AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
PARCELS 6070-11A,6070-11C AND 6070-11D,AS SHOWN ON RECORD OF SURVEY
FILED OCTOBER 8, 1969 IN BOOK 54 PAGES 52 THROUGH 55,INCLUSIVE,OF
RECORDS OF SURVEY.
Exhibit A
l
ALSO EXCEPTING THEREFROM,THAT PORTION CONVEYED TO PARKS OPEN
SPACE AND TRAILS FOUNDATION OF PALM SPRINGS,A CALIFORNIA NONPROFIT
CORPORATION,BY DEED RECORDED SEPTEMBER 14, 1994 AS INSTRUMENT NO,
353564, OFFICIAL RECORDS;
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO CALIFORNIA
DESERT PUBLIC FINANCING AUTHORITY BY DEED RECORDED FEBRUARY 16, 1999
AS INSTRUMENT NO.99-59380 OF OFFICIAL RECORDS.
PARCEL3:
THAT PORTION OF SECTION 5 AND THE NORTH HALF OF SECTION 8,TOWNSHIP 4
SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN,IN THE CITY OF
PALM SPRINGS,COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,LYING WITHIN
THE FOLLOWING DESCRIBED LAND:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 5:
THENCE NORTH 000 55'42"EAST ALONG THE WESTERLY LINE OR SAID SECTION 5
A DISTANCE OF 77.67 FEET TO A POINT ON THE NORTHERLY RIGHT OF WAY LINE
OF THAT CERTAIN ROAD KNOWN AS TRAMWAY ROAD AS DESCRIBED IN
INSTRUMENT 79111 RECORDED SEPTEMBER 14, 1961, OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY,CALIFORNIA,SAID POINT BEING THE TRUE POINT OF
BEGINNING;
THENCE CONTINUING NORTH 000 55' 42"EAST ALONG THE WESTERLY OF SAID
SECTION 5 A DISTANCE OF 1372.33 FEET TO A POINT ON THE SOUTI-TERLY LINE OF
INSTRUMENT NO.353564 RECORDED SEPTEMBER 14, 1994 OF OFFICIAL RECORDS
OF RIVERSIDE COUNTY,CALIFORNIA;THENCE ALONG SAID SOUTHERLY LINE
THE FOLLOWING COURSES;THENCE SOUTH 27' 30' 31" EAST A DISTANCE OF
487.99 FEET;THENCE SOUTH 600 00'00" EAST A DISTANCE OF 1099.00 FEET;
THENCE.NORTH 900 00' 00" EAST A DISTANCE OF 149.00 FEET;THENCE NORTH 00'
007 00"EAST A DISTANCE OF 551.00 FEET;THENCE NORTH 15" 00'00"EAST A
DISTANCE.OF 1000.00 FEET;THENCE LEAVING SAID SOUTHERLY LINE SOUTH 750
00' 00"EAST A DISTANCE OF 150.00 FEET;THENCE SOUTH 120 23' 33" WEST A
DISTANCE OF 949.22 FEET;THENCE SOUTH
070 40' 32"WEST A DISTANCE OF 374.35 FEET;THENCE NORTH
670 18'57" EAST A DISTANCE OF 959,27 FEET;THENCE SOUTH
190 36' 29"EAST A DISTANCE OF 100.00 FEET;THENCE NORTH
540 38' 16"EAST A DISTANCE OF 668.81 FEET;THENCE NORTH
260 20' 14" EAST A DISTANCE OF 295.30 FEET;T14ENCE NORTH
Exhibit A
2
350 21' 44"WEST A DISTANCE OF 80.00 FEET;THENCE NORTH 540 38' 16"EAST A
DISTANCE OF 1028.37 FEET;THENCE NORTH 150 54'02" WEST A DISTANCE OF
586,20 FEET TO A POINT ON SAID SOUTHERLY LINE OF INSTRUMENT NO. 353564;
THENCE ALONG SAID SOUTHERLY LINE NORTH 4W 00' 00"EAST A DISTANCE,OF
1092.99 FEET;THENCE CONTINUING ALONG SAID SOUTHERLY LINE NORTH 90°00'
00"EAST A DISTANCE OF 816.22 FEET TO A POINT ON THE EASTERLY LINE OF
SAID SECTION 5;THENCE SOUTH 010 23' 55"EAST ALONG SAID EASTERLY LINE A
DISTANCE OF 735.12 FEET TO A POINT ON THE NORTHERLY I-fNE OF PARCEL 6070-
10A AS SHOWN ON RECORD Of SURVEY ON FILE IN B BOOK 54 PAGES 52
THROUGH 55,1NCLUSIVE, OF RECORDS OF SURVEYS,OFFICIAL RECORDS OF
RIVERSIDE COUNTY,CALIFORNIA;THENCE ALONG SAID NORTHERLY LINE
SOUTH 326 0 P 58"WEST A DISTANCE OF 2192.12 FEET;THENCE CONTINUING
ALONG SAID NORTHERLY LINE SOUTH 44"21' 58" WEST A DISTANCE OF 1404.29
FEET TO A POINT ON THE SOUTHERLY LINE OF SAID SECTION 5;THENCE
CONTINUING SOUTH 440 28' I V WEST A DISTANCE OF 269.72 FEET TO A POINT ON
THE NORTHERLY LINE OF THAT CERTAIN RIGHT OF WAY SHOWN AS PARCEL
6070-1 I B ON RECORD OF SURVEY ON FILE IN BOOK 54 PAGES 52 THROUGH 55,
INCLUSIVE,OF RECORDS OF SURVEY;THENCE ALONG THE NORTHERLY RIGHT
OF WAY LINE OF SAID PARCEL 6070-11 B AND THE NORTHERLY RIGHT OF WAY
LINE AS SHOWN ON A BUREAU OF INDIAN AFFAIRS PLAT OVER SECTION 8,ONE
FILE IN TIIE SACRAMENTO OFFICE OF THE BUREAU OF INDIAN AFFAIRS AND
THAT CERTAIN ROAD DESCRIBED IN INSTRUMENT NO. 67918 RECORDED MAY 24,
1972 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY,CALIFORNIA AND THAT
CERTAIN RIGHT OF WAY DESCRIBED IN SAID INSTRUMENT 79111 RECORDED
SEPTEMBER 14, 1981 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY,CALIFORNIA,
THE FOLLOWING COURSES:
THENCE SOUTH 78"57'28"WEST A DISTANCE OF 794.66 FEET TO THE BEGINNING
OF A NONTANGENT CURVE,CONCAVE NORTHERLY,HAVING A RADIUS OF 450.00
FEET,A RADIAL LINE PASSING THROU014 SAID POINT BEARS SOUTH 090 22' 59"
EAST;THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 140 19'30"AN ARC DISTANCE OF 112.51 FEET;THENCE
TANGENT TO LAST MENTIONED CURVE,NORTH 859 03' 29"WEST,A DISTANCE OF
666.90 FEET TO THE BEGINNING OF A TANGENT CURVE,CONCAVE NORTHERLY,
HAVING A RADIUS OF 450.00 FEET;THENCE WESTERLY ALONG THE ARC OF SAID
CURVE,TIIROUGH A CENTRAL ANGLE OF 38-47'00",AN ARC DISTANCE OF 304.60
FEET;
THENCE TANGENT TO LAST MENTIONED CURVE NORTH 460 16'29"WEST A
DISTANCE OF 128.93 FEET TO THE BEGINNING OF A TANGENT CURVE,CONCAVE
SOUTHERLY HAVING A RADIUS OF 550.00 FEET;THENCE WESTERLY ALONG THE
ARC OF SAID CURVE,THROUGH A CENTRAL ANGLE OF 47° 18' 07",AN ARC
DISTANCE OF 454,07 FEET TO A POINT,A RADIAL LINE PASSING THROUGH SAID
POINT BEARS NORTH 03"34' 36"WEST,
THENCE NON-TANGENT TO LAST MENTIONED CURVE, SOUTH 86-26'30"WEST A
DISTANCE OF 602.30 FEET TO THE TRUE BEGINNING.
Exhibit A
3
PARCEL 4:
THAT PORTION OF SECTION 5,TOWNSHIP 4 SOUTH,RANGE 4 EAST,SAN
13ERNARDINO BASE AND MERIDIAN,DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 5;THENCE NORTH
009 55'42"EAST ALONG THE.WESTERLY OF SAID SECTION 5 A DISTANCE OF 77.67
FEET TO A POINT ON T14E NORTHERLY RIGHT(S)OF WAY LINE OF THAT CERTAIN
ROAD KNOWN AS TRAMWAY ROAD AS DESCRIBED IN,RECORDED SEPTEMBER
14, 1961 AS INSTRUMENT NO. 79111 OF OFFICIAL RECORDS OF RIVERSIDE
COUNTY,CALIFORNIA;THENCE CONTINUING NORTH 009 55'42"EAST ALONG THE
WESTERLY OF SAID SECTION 5,A DISTANCE OF 1372.33 FEET TO A POINT ON THE
SOUTHERLY LINE RECORDED SEPTEMBER 14, 1994 AS INSTRUMENT NO.353564 OF
OFFICIAL RECORDS OF RIVERSIDE COUNTY,CALIFORNIA;THENCE ALONG SAID
SOUTHERLY LINE THE FOLLOWING COURSES;THENCE SOUTH 279 30' 31"EAST A
DISTANCE OF 487.99 FEET;THENCE SOUTH 60'00' 00" EAST A DISTANCE OF 1099
FEET;THENCE NORTH 909 00' 00"EAST A DISTANCE OF 149 FEET;THENCE NORTH
000 00' 00" EAST A DISTANCE OF 551 FEET;THENCE NORTH 150 00' 00" EAST A
DISTANCE OF 1000 FEET TO THE TRUE POINT OF BEGINNING;THENCE NORTH 400
00'00"EAST A DISTANCE OF 800 FEET;THENCE NORTH 90'00' 00" EAST A
DISTANCE OF 400 FEET;THENCE SOUTH 450 00'00"EAST A DISTANCE OF 800 FEET;
THENCE NORTH 409 00' 00" EAST A DISTANCE OF 1007.01 FEET;THENCE LEAVING
SAID SOUTHERLY LINE SOUTH 150 54'02" EAST A DISTANCE OF 586.20 FEET;
THENCE SOUTH 540 38' 16" WEST A DISTANCE OF 1028.37 FEET;THENCE NORTH
440 26'44"WEST A DISTANCE OF 896.99 FEET;THENCE NORTH 900 OW 00"WEST A
DISTANCE OF 281.14 FEET;THENCE SOUT14 496 22' 48" WEST A DISTANCE OF 520.44
FEET;THENCE NORTH 750 00' 00" WEST A DISTANCE OF 150 FEET TO THE TRUE
POINT OF BEGINNING.
PARCEL 5:
THAT PORTION OF SECTION 33,TOWNSHIP 3 SOUTH, RANGE 4 EAST, SAN
BERNARDINO BASE AND MERIDIAN, AS CONVEYED TO THE STATE OF
CALIFORNIA,BY DEED RECORDED FEBRUARY 21, 1944 IN BOOK 615 PAGE 197 OF
OFFICIAL RECORDS OF RIVERSIDE COUNTY,CALIFORNIA,DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT ON THE EAST LINE OF THE WEST HALF OF THE WEST
HALF OF SAID SECTION 33,DISTANT TIIEREON,SOUTH 16 08'44" WEST,FROM THE
NORTHEAST CORNER OF SAID WEST HALF OF THE WEST HALF,2757.27 FEET,SAID
POINT BEING DESCRIBED IN SAID DEED;THENCE ALONG SAID EAST LINE,NORTH
10 08' 44" EAST 675.50 FEET TO THE BEGINNING OF A NON-TANGENT CURVE
CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 5150 FEET;THENCE
SOUTHEASTERLY ALONG SAID CURVE FROM A TANGENT BEARING OF SOUTH 490
56'57"EAST AN ARC DISTANCE OF 758.86 FEET,THROUGH AN ANGLE OF 89 26' 33",
THENCE SOUTH 589 23' 30" EAST 1962.33 FEET;THENCE SOUTH 310 36' 30"WEST
536.90 FEET;THENCE NORTH 589 23'30"WEST 2033.92 FEET TO TIME BEGINNING OF
Exhibit A
4
i
A TANGENT CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF
5600 FEET;THENCE NORTHWESTERLY ALONG SAID CURVE,AN ARC DISTANCE
OF 342.27 FEET THROUGH AN ANGLE OF 30 30' 07"TO THE POINT OF BEGINNING.
APN: 505-020-035-4(Affects: Portion of Parcel 1); 505-020-027-7(Affects: Parcel 2
and Portion of Parcel 1); 505-020-029-9(Affects:Parcel 3);505-020-030-9(Affects: Portion of
Parcel 1); 505-020-031-0 (Affects:Parcel 4)and 669-320-010-5(Affects: Parcel 5)
Exhibit A
5
i 0
Supplement to item 2Y
Recent Shadowrock Financial Chronology
September 2005 - Fairway Onshore Loan Fund (a Stark subsidiary) makes a
loan to Shadowrock LLC in the amount of $37,500,000.00 towards the
development of the Shadowrock Proejct.
January, 2006 — Shadowrock LLC transfers its interest in the Development
Agreement to Shadowrock Real Estate Development LLC ("SRED"), an entity
that includes Mark Bragg and Barrow Street Investments. The obligation on
the loan becomes an obligation of SRED.
January 4, 2006 -- Palm Springs City Council consents to the transfer from
Shadowrock LLC to SRED.
Early Summer, 2007 — Negotiations between Fairway/ Stark and SRED are
underway for Fairway/ Stark to take over SRED's interest in the Development
Agreement in lieu of Fairway foreclosing on its loan.
Late July, Early August—Agreement in principle reached between Fairway/
Stark to take over SRED's interest in the Development Agreement.
September 5 2007 — Council to act on consent to assignment of SRED's
interest in the Development Agreement to Shadowrock Palm Springs
Development LLC ("SPSD").
September 6. 2007 — If the Council consents, the assignment of the
Development Agreement from SRED to SPSD will become effective. As
described in the Staff Report, 85% of SPSD will be held by Fairway
Shadowrock LLC, an affiliate of Stark Investments. Bragg and others will
have a 15% interest in SPSD. The sole manager of SPSD will be Fairway
Shadowrock LLC, the Stark affiliate.
,J /7Frl�
1701 North Palm Canyon Drive,Suite 5
Palm Springs,California 92262
„ Tel:760:322-3484 F=760;322-3397
(; 1 C� Email USlnvest®AOL.cam
February 21, 2007
Colonel Alex Dorstauder
U.S. Army Corps of Engineers
915 Wilshire Blvd., 11th Floor
.Los Angeles, California 90017-3401
Dear Colonel Domstauder:
On behalf of my project team and myself;I would like to request an urgent meeting with
you to discuss the manner in which the permit application for the Shadowrock project has
been handled by Los Angeles District stag Our application for a Nationwide Permit 39
(No. SPL-2005-2136-DPS)has been on file since March 10,2006, and in the process of
concluding the required Section 7 consultation,we were informed that our application
was unilaterally withdrawn by your staff against the objections of the applicant and the
U.S. Fish and Wildlife Service.
All correspondence from your District regarding our permit directs us to contact Daniel
Swenson to respond to any questions about your agency's action. Despite repeated
attempts to contact Mr. Swenson to discuss our questions, we have received absolutely no
response. When the U.S.Fish and Wildlife Service contacted Mr. Swenson last week to
discuss the Section 7 consultation and its draft biological opinion,Mr. Swenson informed
the Service representative that he would not accept any requests from the Service for a
meeting; only communications from the applicant. Pursuant to the Service's request,we
promptly called Mr. Swenson on February 8 to follow up on his request, and have called
him and emailed him many times since then. To date, Mr,Swenson has not given us the
courtesy of a call back or responded to our repeated requests for a meeting.
By the arbitrary and capricious actions of your staff,your agency staff will effectively
destroy an agreement negotiated between our company,the U.S.Fish&Wildlife Service
and the City of Palm Springs that included more than.$100 million in mitigation
measures and conservation. If we are unable to secure this Nationwide 404 permit,we
will withdraw from our agreement with the USFWS and the mitigation measures we have
voluntarily contributed.
All agencies that have reviewed this project and issued entitlements for it,and those
community groups who have supported the project and its open space,have been
informed that this project and its considerable environmental benefits may now be
f
Colonel Alex Dornstauder
Page Two
Continued
jeopardized by the actions of your staff. Given the critical juncture at which we find
ourselves,I our requesting a meeting with you and our development team at the earliest
possible time. I would like the opportunity to outline our position and the extraordinary
measures we have undertaken in order to be cooperative and to comply with the goals of
the 404 program.
We are available at any time_
Sincerely
Mark A. Bragg,Managing Partner, Shadowrock,LLC
Cc:Mayor Ron Oden&Palm Springs City Council
Congresswoman Mary Bono
Congressman Ken Calvert
Supervisor Marion Ashley
Ms. Therese O'Rourke, USFWS
Glenn Lukos
Ms. Susan Hori,Manatt,Phelps&Phillips
Stan Castleton,DDRM Greatplace,LLC
. Shadowrock Real Estate Dev.
LLC
Development Rights Transfer
AGREEMENT #3313
MO 7792, 01-04-06
TRANSFER OF DEVELOPMENT ictGui6
THIS TRANSFER OF DEVEWPMENT RIGHTS (this "Transfer") is made and entered into
effective as of#&Merhf,47 2, (the "Effective Date"), by Shadowrock, LLC, a California
limited liability company ("Transferor"), to and for the benefit of Shadowrock Real Estate
Development, LLC, a Delaware limited liability company ("Transferee"), in recognition of the
following facts:
A. On November 17, 1993, the City of Palm Springs ("City") and Shadowrock
Ventures, entered into that certain Development Agreement ("DA") pertaining to acres of
real property located in the City, County of Riverside, State of California and more particularly
described on Exhibit "A" attached hereto and incorporated herein by reference (the "Real
Property").
B. On May 5, 1993, the City approved certain land use entitlements for the
development of the Real Property as set forth in the DA, including but not limited to City
Resolution Number 18087, Tract Map Number 28587, City Resolution Number 18086, and Case
5.069-PD-224 (collectively the "Shadowrock Entitlements and Approvals").
C. On April 21, 1996, Shadowrock, LLC, acquired all of the right, title and interest
to the Real Property, the DA, and associated Shadowrock Entitlements and Approvals through a
transfer from Shadowrock Ventures, a California general partnership. The City was notified of
the transfer from Shadowrock Ventures to Shadowrock, LLC, by letter dated April 29, 1996.
D. Transferor and Transferee desire that Transferor shall transfer all of its right,title
and interest in and to the DA and the Shadowrock Entitlements and Approvals to Transferee, and
that Transferee assume all the obligations of Transferor under the DA and the Shadowrock
Entitlements and Approvals and agree to be bound by all of the terns, conditions and provisions
thereof.
E. Transferor and Transferee desire that Transferor assign its right, title and interest
in and to any past, present or future entitlements and City approvals whether or not contemplated
by the DA and the Shadowrock Entitlements and Approvals, including but not limited to all
gaming rights, oil and mineral rights and future development rights pertaining to the Real
Property.
F. Transferor and Transferee desire that Transferor shall transfer all of its right, title
and interest in that certain Settlement Agreement between the California Department of Fish and
Game and the City, dated October 20, 1993 ('Settlement Agreement"), to Transferee, and that
Transferee assume all the obligations of Transferor under the Settlement Agreement and agree to
be bound by all of the terms, conditions and provisions thereof.
G. Pursuant to Section 12 of the DA, certain assignments or transfers of interests,
rights or obligations under the DA require City consent to such assignments or transfers.
S,,
ANDV OtR ^.GFM,47� -�
37642610
0
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, Transferor and Transferee hereby agree as follows:
1. Transfer of the Development Agreement. Subject to the terms of this Transfer, (a)
Transferor hereby transfers and assigns to Transferee all of its right, title and interest in and to
the DA, and (b) Transferee accepts such Transfer and assumes the obligations of Transferor,
under the DA, and agrees to be bound by all of the terms, conditions and provisions thereof, to
the extent arising or accruing from and after the Effective Date hereof.
2. Transfer of Shadowrock Entitlements and ApIprovals. Subject to the terms of this
Transfer, Transferor hereby transfers and assigns to Transferee all of its right, title and interest in
and to the Shadowrock Entitlements and Approvals and in and to any and all past, present or
future entitlements, gaming rights, oil and mineral rights and future development rights
pertaining to the heal Property.
3. Transfer of the Settlement Agreement. Subject to the terms of this Transfer,
Transferor hereby transfers and assigns to Transferee all of its right, title and interest in and to
the Settlement Agreement, and Transferee assumes all the obligations of Transferor under the
Settlement Agreement and agrees to be bound by all of the terms, conditions and provisions
thereof,to the extent arising or accruing from and after the Effective Date hereof.
4. Warr an . Transferor and Transferee each represent and warrant to each other that
they are qualified and have full power and authority to execute this Transfer, and that the person
signing this Transfer on their behalf is authorized to do so. Other than as set forth herein,
Transferor farther represents and warrants to Transferee that Transferor has not previously
transferred any of the rights transferred hereby to any other party, and that all such rights are
owned by Transferor free and clear of any liens, pledges or encumbrances.
5. Indemnification. Transferor shall indemnify, protect, defend and hold harmless
Transferee from and against any and all claims, losses and liabilities incurred by Transferee with
respect to this Transfer accruing prior to the Effective Date. Transferee shall indemnify, protect,
defend and hold harmless Transferor from and against any and all claims, losses and liabilities
incurred by Transferor with respect to this Transfer which accrue from and after the Effective
Date.
6. Successors and Assigns. This Transfer shall inure to the benefit of, and be binding
upon,the parties hereto and their respective successors and assigns_
7. Counterparts. This Transfer may be executed in as many counterparts as may be
deemed necessary and convenient, and by the different parties hereto on separate counterparts,
each of which, when so executed, shall be deemed an original, but all such counterparts shall
constitute one and the same instrument.
8. Entire Agreement: Governing Law. This Transfer and the legal relations between
the parties hereto shall be governed by and construed and enforced in accordance with the laws
of the State of California, without regard to its principles of conflicts of law.
2
376d261V5
9. Changes in Ownership Interest in Transferee. As of the Effective Date, (a) one
hundred percent (100%) of the membership interests in Transferee is owned by Shadowrock
Holdings L.P., a Delaware limited partnership ("Holdings"),- (b) the sole general partner of
Moldings is Shadowrock II, LLC, a California limited liability company; (c) the sole limited
partner of Moldings is Shadowrock, LLC; and (d) Mr. Mark Bragg beneficially owns and
controls both Sbadowrock, LLC and Shadowrock II, LLC. It is contemplated that, over time,
interests in Holdings will be transferred to affiliates of Barrow Street Capital, LLC (collectively,
"Barrow Street") and that Barrow Street may ultimately own and/or control 100% of the interests
in Holdings. City is executing this Transfer in order to acknowledge its consent to the transfer of
rights herein from the Transferor to the Transferee (including, without limitation, the transfer of
the DA), as well as its consent to the subsequent transfer(s) of interests in Holdings to Barrow
Street (City further acknowledging that no additional consents or approvals from City shall be
required with respect to such subsequent transfer(s)).
[SIGNATURES ON FOLLOWING PAGE]
3
376426Iv5
IN WITNESS VaMREOF, this Transfer was made and executed as of the date first
above written.
TRANSFEROR:
SHADOWROCK, LLC,
a California limited liability company
By: Shadowrock Development Corporation
a California corporation
Its Managing Member
By: 1
Title: Mark Bragg, Presforit
TRANSFEREE:
SHADOWROCK REAL ESTATE ,DEVELOPMENT, LLC,
a Delaware limited liability company
By: Shadowrock Holdings, L.P.
a Delaware limited partnership, its sole member-
By: Shadowrock II, LLC
a California limited liability company
Its Administrative General Partner
By:
Title: Mark Bragg, its m ging member
4
3764261v5
11 TMOWLEDGED AND CONSENTED TC,:
ST:
CITY OF PALM SPRINGS
-y C!erk `m
- -- - Name:
APPROVED BY CITY COUNCIL Title,
LN2 1757 14•ob _ k2Nu
APPROVAL AS TO FORM: CITY OF PALM SPRINGS
CITY ATTORNEY
By: �fLm4
Name: / NIA LCs vo
Title: �✓
5
3764Z6iv45
• •
511297376
EXHIBIT "A"
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California,
County of Riverside, City of PALM SPRINGS, described as follows :
PARCEL 1 :
SECTION 5, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE
AND MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE,
STATE OF CALIFORNIA,
EXCEPTING THEREFROM THAT PORTION CONVEYED TO RIVERSIDE COUNTY
FLOO➢ CONTROL AND WATER CONSERVATION DISTRICT, BY DEED RECORDED
JULY 12 , 1971 AS INSTRUMENT NO. 75722, OFFICIAL RECORDS;
ALSO EXCEPTING THEREFROM, THAT PORTION CONVEYED TO PARKS OPEN
SPACE AND TRAILS FOUNDATION OF PALM SPRINGS, A CALIFORNIA
NON-PROFIT CORPORATION, BY DEED RECORDED SEPTEMBER 14 , 1994 AS
INSTRUMENT NO. 353564, OFFICIAL RECORDS;
ALSO EXCEPTING THEREFROM, THAT PORTION LYING WITHIN SAID
SECTION 5, TOWNSHIP 4 SOUTH, RANGE 4 EAST, CONVEYED TO
CALIFORNIA DESERT PUBLIC FINANCING AUTHORITY, A PUBLIC AGENCY,
BY DEED RECORDED FEBRUARY 16, 1999 AS INSTRUMENT NOS . 059380
AND 059381 OF OFFICIAL RECORDS ,
APN' S : 505-020-005; 505-020-020 , AND A PORTION OF 505-020-C27
ALSO EXCEPTING THEREFROM THAT PORTION THEREOF CONVEYED TO THE
DESERT WATER AGENCY, A PUBLIC AGENCY, BY GRANT DEED RECORDED
OCTOBER 25, 2005 AS INSTRUMENT NO. 05-880043 OF OFFICIAL
RECORDS -
PARCEL 2 :
THE NORTH HALF OF SECTION 8, TOWNSHIP 4 SOUTH, RANGE 4 EAST,
SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF PALM SPRINGS,
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA.
EXCEPTING THEREFROM, THOSE PORTIONS CONDEMNED BY THE RIVERSIDE
COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BY FINAL
JUDGEMENT OF CONDEMNATION VESTING TITLE, IN UNITED STATES
DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, CASE 140. 70-1877
IH, A CERTIFIED COPY OF WHICH RECORDED MAY 25, 1971 AS
INSTRUMENT NO. 55539, OFFICIAL RECORDS, AND MORE PARTICULARLY
DESCRIBED AS FOLLOWS :
PARCELS 6070-11A, 6070-11C AND 6070-11D, AS SHOWN ON RECORD OF
SURVEY FILED OCTOBER 6 , 1969 IN BOOK 54 PAGES 52 THROUGH 55,
-1-
511297376
INCLUSIVE, OF RECORDS OF SURVEY,
ALSO EXCEPTING THEREFROM, THAT PORTION CONVEYED TO PARKS OPEN
SPACE AND TRAILS FOUNDATION OF PALM SPRINGS, A CALIFORNIA
NONPROFIT CORPORATION, BY DEED RECORDED SEPTEMBER 14, 1994 AS
INSTRUMENT NO. 353564, OFFICIAL RECORDS;
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO CALIFORNIA
DESERT PUBLIC FINANCING AUTHORITY BY DEED RECORDED FEBRUARY 16,
1999 AS INSTRUMENT NO. 99-59380 OF OFFICIAL RECORDS .
APN: 505-020-027
PARCEL 3 :
THAT PORTION OF SECTION 5 AND THE NORTH HALF OF SECTION 8,
TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND
MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE,
STATE OF CALIFORNIA, LYING WITHIN THE FOLLOWING DESCRIBED LAND:
COMMENCING AT THE SOUTHWEST CORNER OF SAI➢ SECTION 5 :
THENCE NORTH 00055' 42" EAST ALONG THE WESTERLY LINE OR SAID
SECTION 5 A DISTANCE OF 77 . 67 FEET TO A POINT ON THE NORTHERLY
RIGHT OF WAY LINE OF THAT CERTAIN ROAD KNOWN AS TRAMWAY ROAD AS
DESCRIBED IN INSTRUMENT 79111 RECORDED SEPTEMBER 14 , 1961, OF
OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, SAID POINT
BEING THE TRUE POINT OF BEGINNING;
THENCE CONTINUING NORTH 00055' 42" EAST ALONG THE WESTERLY OF
SAID SECTION 5 A DISTANCE OF 1372 .33 FEET TO A POINT ON THE
SOUTHERLY LINE OF INSTRUMENT NO. 353564 RECORDED SEPTEMBER 14,
1994 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA;
THENCE ALONG SAID SOUTHERLY LINE THE FOLLOWING COURSES; THENCE
SOUTH 27030' 31 " EAST A DISTANCE OF 487 . 99 FEET; THENCE SOUTH
60°00' 00" EAST A DISTANCE OF 1099. 00 FEET; THENCE NORTH
90000 ' 00" EAST A DISTANCE OF 149 . 00 FEET; THENCE NORTH
00000100" EAST A DISTANCE OF 551 . 00 FEET; THENCE NORTH 15000' 00"
EAST A DISTANCE OF 1000 . 00 FEET; THENCE LEAVING SAID SOUTHERLY
L1NE SOUTH 75'00' 00" EAST A DISTANCE OF 150 . 00 FEET; THENCE
SOUTH 12023 ' 33 " WEST A DISTANCE OF 949 .22 FEET; THENCE SOUTH
07040 ' 32" WEST A DISTANCE OF 374 .35 FEET; THENCE NORTH
67018 ' 57" EAST A DISTANCE OF 959 .27 FEET; THENCE SOUTH
19036' 29" EAST A DISTANCE OF 100 . 00 FEET; THENCE NORTH
54038 ' 16" EAST A DISTANCE OF 698 . 81 FEET; THENCE NORTH
26020' 14" EAST A DISTANCE OF 295 . 30 FEET; THENCE NORTH
35021' 44 " WEST A DISTANCE OF 60 . 00 FEET; THENCE NORTH 54038 ' 16"
BAST A DISTANCE OF 1028 . 37 FEET; THENCE NORTH 15954' 02" WEST A
DISTANCE OF 586 .20 FEET TO A POINT ON SAID SOUTHERLY LINE OF
-2-
511257376
INSTRUMENT NO. 353564 ; THENCE ALONG SAID SOUTHERLY LINE NORTH
40000' 00 " EAST A DISTANCE OF 1092 . 99 FEET; THENCE CONTINUING
ALONG SAID SOUTHERLY LINE NORTH 90000' 00" EAST A DISTANCE OF
218 .22 FEET TO A POINT ON THE EASTERLY LINE OF SAID SECTION 5;
THENCE SOUTH 01°23 ' 55" EAST ALONG SAID EASTERLY LINE A DISTANCE
OF 735 . 12 FEET TO A POINT ON THE NORTHERLY LINE OF PARCEL
6070-10A AS SHOWN ON RECORD OF SURVEY ON FILE IN B BOOK 5A
PAGES 52 THROUGH 55, INCLUSIVE, OF RECORDS OF SURVEYS, OFFICIAL
RECORDS OF RIVERSIDE COUNTY, CALIFORNIA; THENCE ALONG SAID
NORTHERLY LINE SOUTH 32001'58" WEST A DISTANCE OF 2192 . 12 FEET;
THENCE CONTINUING ALONG SAID NORTHERLY LINE SOUTH 44021' 58" WEST
A DISTANCE OF 1404 .29 FEET TO A POINT ON THE SOUTHERLY LINE OF
SAID SECTION 5 ; THENCE CONTINUING SOUTH 44028' 11" WEST A
DISTANCE OF 269 . 72 FEET TO A POINT ON THE NORTHERLY LINE OF
THAT CERTAIN RIGHT OF WAY SHOWN AS PARCEL 6070-118 ON RECORD OF
SURVEY ON FILE IN BOOK 54 PAGES 52 THROUGH 55, INCLUSIVE, OF
RECORDS OF SURVEY; THENCE ALONG THE NORTHERLY RIGHT OF WAY LINE
OF SAID PARCEL 6070-118 AND THE NORTHERLY RIGHT OF WAY LINE AS
SHOWN ON A BUREAU OF INDIAN AFFAIRS PLAT OVER SECTION 8, ONE
FILE IN THE SACRAMENTO OFFICE OF THE BUREAU OF INDIAN AFFAIRS
AND THAT CERTAIN ROAD DESCRIBED IN INSTRUMENT NO. 67918
RECORDED MAY 24 , 1972 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA AND THAT CERTAIN RIGHT OF WAY DESCRIBED IN SAID
INSTRUMENT 79111 RECORDED SEPTEMBER 14, 1981 OF OFFICIAL
RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, THE FOLLOWING COURSES:
THENCE SOUTH 78057'28" WEST A DISTANCE OF 794 . 66 FEET TO THE
BEGINNING OF A NONTANGENT CURVE, CONCAVE NORTHERLY, HAVING A
RADIUS OF 450 . 00 FEET, A RADIAL LINE PASSING THROUGH SAID POINT
BEARS SOUTH 09022 ' 59" EAST; THENCE WESTERLY ALONG THE ARC OF
SAI➢ CURVE THROUGH A CENTRAL ANGLE OF 14019' 30" AN ARC DISTANCE
OF 112 . 51 FEET; THENCE TANGENT TO LAST MENTIONED CURVE, NORTH
85°03 '29" WEST, A DISTANCE OF 666. 90 FEET TO THE BEGINNING OF A
TANGENT CURVE, CONCAVE NORTHERLY, HAVING A RADIUS OF 450 . 00
FEET; THENCE WESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A
CENTRAL ANGLE OF 38047' 00" , AN ARC DISTANCE OF 304 . 60 FEET;
THENCE TANGENT TO LAST MENTIONED CURVE NORTH 46916' 29" WEST A
DISTANCE OF 128 . 93 FEET TO THE BEGINNING OF A TANGENT CURVE,
CONCAVE SOUTHERLY HAVING A RADIUS OF 550 . 00 FEET; THENCE
WESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE
OF 47018' 07" , AN ARC DISTANCE OF 454 . 07 FEET TO A POINT, A
RADIAL LINE PASSING THROUGH SAID POINT BEARS NORTH 03034' 36"
WEST;
THENCE NON-TANGENT TO LAST MENTIONED CURVE, SOUTH 86°26' 30 "
WEST A DISTANCE OF 602 . 30 FEET TO THE TRUE BEGINNING.
APN: 505-020-029
-3-
511297376
PARCEL 4 :
THAT PORTION OF SECTION 5, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN
BERNARDINO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 5 ; THENCE
NORTH 00055' 42" EAST ALONG THE WESTERLY OF SAID SECTION 5 A
DISTANCE OF 77 . 67 FEET TO A POINT ON THE NORTHERLY RIGHT (S) OF
WAY LINE OF THAT CERTAIN ROAD KNOWN AS TRAMWAY ROAD AS DESCRIBED
IN, RECORDED SEPTEMBER 14, 1961 AS INSTRUMENT NO. 79111 OF
OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA; THENCE
CONTINUING NORTH 00055' 42" EAST ALONG THE WESTERLY OF SAID
SECTION 5, A DISTANCE OF 1372 . 33 PEET TO A POINT ON THE
SOUTHERLY LINE RECORDED SEPTEMBER 14, 1994 AS INSTRUMENT NO,
253564 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA;
THENCE ALONG SAID SOUTHERLY LINE THE FOLLOWING COURSES : THENCE
SOUTH 27030' 31" EAST A DISTANCE OF 427. 99 FEET; THENCE SOUTH
60000' 00" EAST A DISTANCE OF 1099 FEET; THENCE NORTH 90000' 00"
EAST A DISTANCE OF 149 FEET; THENCE NORTH 00000' 00" EAST A
DISTANCE OF 551 FEET; THENCE NORTH 15000' 00" EAST A DISTANCE OF
I000 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH
40000 ' 00" EAST A DISTANCE OF 800 FEET; THENCE NORTH 90000' 00"
EAST A DISTANCE OF 400 FEET; THENCE SOUTH 45000' 00 " EAST A
DISTANCE OF 800 FEET; THENCE NORTH 40'00' 00" EAST A DISTANCE OF
1007 . 01 FEET; TI•LENCE LEAVING SAID SOUTHERLY LINE SOUTH
15054 ' 02 " EAST A DISTANCE OF 586 .20 FEET; THENCE SOUTH
54038' 16" WEST A DISTANCE OF 1028 . 37 FEET; THENCE NORTH
44026' 44" WEST A DISTANCE OF 896. 99 FEET; THENCE NORTH
90000' 00" WEST A DISTANCE OF 281 . 14 FEET; THENCE SOUTH
49022 ' 48" WEST A DISTANCE OF 520 .44 FEET; THENCE NORTH
75000' 00" WEST A DISTANCE OF 150 FEET TO THE TRUE POINT OF
BEGINNING,
APN: 505-020-021
PARCEL H:
THAT PORTION OF SECTION 33, TOWNSHIP 3 SOUTH, RANGE 4 EAST, SAN
BERNARDINO EASE AND MERIDIAN, AS CONVEYED TO THE STATE OF
CALIFORNIA, BY DEED RECORDED FEBRUARY 21, 1944 IN BOOK 615 PAGE
197 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE EAST LINE OF THE WEST HALF OF THE
WEST HALF OF SAID SECTION 33 , DISTANT THEREON, SOUTH I008' 44"
WEST, FROM THE NORTHEAST CORNER OF SAID WEST HALF OF THE WEST
HALF, 2757 . 27 FEET, SAID POINT BEING DESCRIBED IN SAID DEED;
THENCE ALONG SAID EAST LINE, NORTH 1008' 44" EAST 675 . 50 FEET TO
THE BEGINNING OF A NON-TANGENT CURVE CONCAVE TO THE NORTHEAST
-4-
511297376
AND HAVING A RADIUS OF 5150 FEET; THENCE SOUTHEASTERLY ALONG
SAID CURVE FROM A TANGENT HEARING OF SOi7TH 49056' 57 " EAST AN
ARC ➢ISTANCE OF 758 . 86 FEET, THROUGH AN ANGLE OF 6026' 33" ;
THENCE SOUTH 58023130" EAST 1962 .33 FEET; THENCE SOUTH
31036' 30 " WEST 536 . 90 FEET; THENCE NORTH 58023 ' 30 " WEST 2033 . 92
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO TEE
NORTHEAST AND RAVING A RADIUS OF 5600 FEET; THENCE NORTHWESTERLY
ALONG SAID CURVE, AN ARC ➢ISTANCE OF 342 .27 FEET THROUGH AN
ANGLE OF 3030' 07" TO THE POINT OF BEGINNING.
APN: 689-320-010-5
End of Legal Description
-5-
•
ESTOPPEL CERTIFICATE
Date Requested: September 15, 2004
Date of Certificate , 2
On November 17, 1993, the City of Palm Springs approved the "Development
Agreement between the Shadowrock Ventures, a California General Partnership and the City
of Palm Springs" (the "Development Agreement").
This Estoppel Certificate certifies that, as of the "Date of Certificate" set forth above.
[CHECK WHERE APPLICABLE]
I. The Development Agreement remains binding and effective.
2. The Development has not been amended.
❑ 3. The Development Agreement has been amended in the following
respects:
■ 4. To the best of our knowledge, neither Developer nor any of its
successors is in default under the Development Agreement.
❑ 5. The following defaults exist under the Development Agreement:
This Estoppel Certificate may be relied upon by an transferee or mortgagee of any
interest in the property which is the subject of the Development Agreement.
CITY OF PALM SPRINGS
Dave Alesl$ e City Attorney Douglas R aus
Director of Stragetic Planning
_ 4
David H. Ready
City Manager
u'id"u�JG71V-EC.i L•( L'uo adi �
SENT BY:RUTAN & TUCKER ' 9-21-95 2:121 RUTAN & TUCKER-, 61932382874 3
JCr^ LI OJ &,-om Fm Pl'tl}, r 1 v'J r�r�eiWy , • r
0
r
September 2 7 1995
Mr_David 3. leshire,Esq. Y 1@911mil
CITY ATTo11' .Y,CITY pF PALM 5F� $ [r i 4)546-9035
c10 Rutan 8r ucker
P.Q-Box 195)
Costa Mom , .A 92628-1950
Rol 6h lid nnrock Ventures.L{t1 -r6J,, A¢ of Uwnershiu
Dear Dave.
Thank you for your letter of September 7, 1995, regarding the transfer of Shadowrock
Ventures,it California folnt vetitute, to Shadovnock Ventures,Ltd.,a California limited partnership,
hr your letter suggested, the transfer to the limited partnership is exempt from Cite approval as
follows:
poor—s'—Vmmwg Intarests w a 1913 Venous:
1. Mark A Bragg&Margaret M. CroorizM as a general pawner 67Y9
Z_ Ferrero Properties, Ltd.,M a general partner 33%
Cttrreht Ovme�p Intere�t3�Y Limited partnetahin•
I. Mark A Bragg do Margaret M. Goettzen, as limited partners 5Dy.
2, Femro Properties,lAd., as the sole general partner 50°/.
Dave,as you can sae,no new partoma have been added This was a change in the respective
permitege ownership u9cmt5 exclusively of the general partners comprising the developer. i hope
tins letter clarifies the transfer and the exception of City approval thereof as your letter stated,
If you have any 1 rrther questions, or need additional information,please do not hesitate to
all me. Its in the osse oftheDevelopment Agme amt,we Appreciate your continued efforts and our
ability to work together,
Sincetely Yours,
Anthon Ferr�
Principal
P.O.Sox 10189,MnVKI t Hexed,CA 92638(714)721-9311+Fusi n ile(714)721-0310
�m TO t Fdl- pRGE.0�2 **
NOTICE OF COMMENCEMENT
OF TRUSTEE'S SALE
PROCEEDINGS
CHICAGO TITLE r_1q
CHICAGO TITLE COMPANY
560 East Hospitality Lane
Date: 01/31/95 San Bernardino, CA 92408
T.S. No. : 5300-39 (909) 884-0448
CITY CLERK
CITY OF PALM SPRINGS RECEIVED
BOX 2743
PALM SPRINGS, CA 92263 FEB 6 2 S-51
CITY CLERK
Re: Your Record Interest " n
THE TERMS, COVENANTS AND PROVISIONS OF THAT CERTIAN DEVELOPMENT
AGREEMENT EXECUTED BY AND BETWEEN THE CITY OF PALM SPRINGS AND
SHADOWROCK VENTURES, A CALIFORIA GENERAL PARTNERSHIP RECORDED
DECEMBER 27, 1993 AS INSTRUMENT NO. 513407, OFFICIAL RECORDS AND
THE EFFECT OF ANY FAILURE TO COMPLY WITH SAME.
Enclosed is a copy of the Notice of Default and Election to Sell
under Deed of Trust.
As a courtesy this company is notifying interested parties of an impend-
ing trustee's sale. Three months after the recordation of the Notice ofl
Default and Election to sell under Deed of Trust in the office of the
County Recorder the property described therein may be advertised for
sale.
CHICAGO TITLE COMPANY
a California corporation, Trustee
Sandy Stokes/tl
Foreclosure Officer
l
We hereby certifv that the within inetrument
^is a f) true nd rre '-stay of that certain
RECORDING REQUESTED B� f
CHICAGO ME COWANY rxorded in the office of the
AND WHEN RECORDED MAIL TO County Recorders /-/�7 z-'� in
CHICAGO TITLE COMPANY Book := . Pace's Officlal Reccrde,
FORECLOSURE SERVICE CENTER 360 E.HOSPITALITY LANE ors instrument No. 46
" /d?1 - —
SAN BERlLI1ROIr10,CA 02406 By. rjHICA�TI.EAIIy
(W9)W4-0�4Ia �_'�l ^�i.Y
Attn: Trustee Offices Space above this line for recorder's ue4
Title Order No. Wt+ Trustee Sale No. 5300-39� Reference No,
SUBSTITUTION OF TRUSTEE
WHEREAS, SHADOWROCK VENTURES, A CALIFORNIA JOINT VENTURE AS TO PARCEL I
AND, FERRERO PROPERTIES, A CALIFORNIA GENERAL PARTNER AND, MARK A. BRAGG
AND MARGARET M. GOERTZEN, AS TO PARCEL 2
was the original Trustor,
SHOSHONE SERVICE CORPORATION, A CALIFORNIA CORPORATION
was the original Trustee, and
FERRERO ENTERPRISES, INC. , A CALIFORNIA CORPORATION
was the original Beneficiary
under that certain Deed of trust dated 10/2 8/91, Recorded on 10 S 91 as
Document No. 372581* Book Page of Official Records
in the office of the Recorder of RIVERSIDE County, California, and
WHEREAS, FERRERO ENTERPRISES, INC. , A CALIFORNIA CORPORATION
*MODIFICATION RECORDED 7/24/92, INSTRUMENT 11275798; MODIFICATION RECORDED 2/9/93,
INSTRUMENT #51947; MODIFICATION RECORDED 4/2/93, INSTRUMENT #124420; MODIFICATION
RECORDED 1125/94, INSTRUMENT #033215, OFFICIAL RECORDS.
the undersigned, is the present Beneficiary under said Deed of Trust, and,
WHEREAS, the undersigned desires to substitute a new Trustee under said Deed of Trust in the place of and
stood of said original Trustee thereunder.
Now, THEREFORE, the undersigned Beneficiary hereby substitutes
CHICAGO TITLE COMPANY, a California Corporation,
FORECLOSURE SERVICE CENTER
560 E. HOSPITALITY LANE
SAN BERNARDINO, CA 92408
as Trustee of Said Deed of Trust_
RECEIVED
FEB a 2 19Yi
Conanuad on Papa 2 CITy cLERK
• Page t -
(CASBST2A)
The Order No.
Trustee Sale No. 5300-39
Reference No.
Whenever the context hereof so requires, the masculine gender Includes the feminine and/or neuter, and
the singular number indicates the plural.
DATE, 01/11/95
FERRERO ENTERPRISES, INC.
B J ONY A. FEP.RERO,
PRESIDENT
� X X
BY:
CAUFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
On 01/12/95 before me, S ndra L. Stokes a Notary Public In and for said county, personally appeared
**Anthn= A. Ferrero** personally knaen
to me (r proved to me m the basis of aansfacfory evidence) to be the person(s) whom name(s) Isla subscribed in the within
Instrument and acknowledged ao me Mat hs/sheAMy executed the some in hial herAhelr rnhorlxed eapacny(les),and that by hisAhrAhelr
sigmdure(s)an the Insrument the praan(a),or the en ty upon behalf of which the person(s)acted,shteouted the InebumeaL
WITNESS my hand anti official a".
� 1471 y/ ) SACOMW L.STOKES
�v r� coMM. fsri4a2D Z
Notary?sahibs In a=hd for sid Ca-.R!y and 5* g N^r-APY PUBLIC-G4ffOFINLA
$AN BONARDINO COUNTY r
hhiaeton Explma Februuy 2. 1998
���aaaallll aOeteR�eeapei
-Page 2-
(CMBST211)
I
We he, cartHy th9 within instrument
is a t e and qpy of that pgrtin
' RECORDING REQUESTED BY tI�{}�✓
recorded in the ofQe of tha fir'
AND WHEN RECORDED MAIL TO �z���
CHICAGO TITLE COMPANY County Recorder on � in
FORECLOSURE SERVICE CENTER Bock pass GffiCial Records,
S60 I-HOSPITALITY LANE �/,�/
SAN BERNARDINO,CA 9240e a$instrument No. -/.�
(9g9)a9a_aws Ulii aG0 T CCw^IPAN
Some above this 11m for mc~a use
Title Order No. Trustee Sale No. 5300-39 Reference No.
APN No.
IMPORTANT NOTICE
NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST
IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN
YOUR PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, and you
may have the legal right to bring your account in good standing by paying all of your past
due payments plus permitted costs and expenses within the time permitted by law for
reinstatement of your account, which Is normally five business days prior to the date set for
the sale of your property. No sale date may be set until three months from the date this
notice of default may be recorded (which date of recordation appears on this notice).
This amount iS $2,985,107.49 as of 01/11/95 and will Increase until your account
becomes current.
While your property Is In foreclosure, you still must pay other obligations (such as insurance
and taxes). required by your note and deed of trust or mortgage. If you fail to make future
payments on the loan, pay taxes on the property, provide Insurance on the property, or pay
other obligations as required In the note and deed of trust or mortgage, the beneficiary or
mortgagee may insist that you'do so In order to reinstate your account in good standing. In
addition, the beneficiary or mortgagee may require as a condition to reinstatement that you
provide reliable written evidence that you paid all senior (lens, property taxes, and hazard
Insurance premiums.
Upon your written request, the beneficiary or mortgagee will give you a written itemization of
the entire amount you must pay. You may not have to pay the entire unpaid portion of your
account, even though full payment was demanded, but you must pay all amounts In default
at the time payment Is made. However, you and your beneficiary or mortgagee may mutually
agree in writing prior to the time the notice of sale is posted (which may not be earlier than
the end of the three-month period stated above) to, among other things, (1) provide
additional time in which to cure the default by transfer of the property or otherwise; or (2)
establish a schedule of payments In order to cure your default; or both 1) and (2).
Following the expiration of the time period referred to In the first paragraph of this notice,
unless the obligation being foreclosed upon or a separate written agreement between you
and your creditor permits a longer period, you have only the legal right to stop the sale of
your property by paying the entire amount demanded by your creditor.
To find out the amount you must pay, or to arrange for payment to stop the foreclosure, or if
your property is In foreclosure for any other reason, contact:
FERRERO ENTERPRISES, INC. , ATTN: ANTHONY A. FERRERO, 44 SEA ISLAND
DRIVE, NEWPORT BEACH, CA 92660 (714) 721-9311 (71A)721-0310 Ext. FAX
C*dnmdan pop 2 RECEIVED ,
CANOTDIA t - f"E B 6
Continued k*m paps 7
TnruW 4W No. 5300-39
If you have any questions, you should contact a lawyer or the governmental agency which
may have insured your loan_ Notwithstanding the fact that your property Is In foreclosure,
you may offer your property for sale, provided the sale is concluded prior to the conclusion
of the foreclosure.
REMEMBER, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION.
NOTICE IS HEREBY GIVEN THAT:
CHICAGO TITLE COMPANY, a California corporation
is the duly appointed Trustee under a Deed of Trust dated 10/29/91 , executed by
SHADOKROCK VENTURES, A CALIFORNIA JOINT VENTURE AS TO PARCEL 1 AND,
FERRERO PROPERTIES, A CALIFORNIA GENERAL PARTNER AND, MAR$ A. BRAGG AND
MARGARET M. GOERTZEN, AS TO PARCEL 2
as Trustor, to secure obligations In favor of FERRERO ENTERPRISES, INC. , A
CALIFORNIA CORPORATION
as Beneficiary recorded on 10/28/91 as instrument no. 372581* in
booK page of Official Records in the Office of the Recorder
Of RIVERSIDE ountyC�ltornia, as more fully described on said Deed of Trust.
Inclu mg 1 notes tar the sum of 52.03o,000. oo ; that the beneficial interest under
said Deed—of Trust and the obligations secured thereby are presently held by the current
beneficiary; that a breach of, and default in, the obligations for which said Deed of Trust is
security has occurred In that the payment has not been made Of: THE UNPAID PRINCIPAL
BALANCE OF $2r330, 000. 00 DUE AND PAYABLE 09/01/94 TOGETHER WITH INTEREST
FROM THE ❑IBURSEMENT DATES AT THE RATE OF 9.00% PER ANNUM.
*MODIFICATION RECORDED 7/24/92, INSTRUMENT #275798; MODIFICATION RECORDED 2/9193,
INST.RULENT #I 1947; MODIFICATION RECORDED 4/2/93, INSTRUMENT #124420; MODIFICATION
RECORDED 1/25194, INSTRUMENT #033215, OFFICIAL RECORDS.
That by reason thereof, the present beneficiary under such Deed of Trust has executed and
delivered to said Trustee a written Declaration and Demand for Sale, and has deposited with
said duly appointed Trustee such Deed of Trust and all documents evidencing the
obligations secured thereby, and has declared and does hereby declare all sums secured
thereby immediately due and payable, and has elected and does hereby elect to cause the
trust property to be sold to satisfy the obligations secured thereby.
DATE: 31/11/9 5 This notice must be reeotd6d by
FERRERO ENTERPRISES, INC. Chicago This company.
r�
Y: iTHO ��Ar RRFRO, PRESIDENT
BY:-
(CANPTD2t, - Peg@ 2.
Shadowrock Development _ "Side
iLetter" re Sec 5 & 17.6 of DDA
- AGREEMENT #3315
R U T A N fx T U C K E R signed by A. Lamphar for CA
ATTORNEYS AT LAW 11`24-93
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November 24, 1993 P" .1D.�=�A` III
Mr. Anthony A. Ferrero
SHADOWROCK VENTURES
620 Newport Center Drive
11th Floor
Newport Beach, California 92660
Mr. Lon T. Stephens
STEPHENS & KRAY
5000 Birch Street Suite 410
Newport Beach, California 92660
Re: Shadowrock Development - city of Palm Springs
Development Agreement
Gentlemen:
The purpose of this letter is to clarify certain under-
standings between the parties with respect to the Development
Agreement. capitalized terms used herein shall have the same
meanings as set forth in the Development Agreement.
section 5 of the Development Agreement states that the
Developer has the right to decide the timing for the development of
the phases of the Project, subject, of course, to the restrictions
in the Agreement such as those set forth in section 5. 2. Because
of the long term nature of this development, the timing
requirements with respect to the construction of the Public
Improvements by necessity can not be precisely defined. An attempt
to summarize the basis for the City's future determinations for the
phasing of the Public Improvements is set forth in Section 5. 3 .
However, Developer has expressed concern that the provision may be
construed as vague and unenforceable and that the City may argue
sometime in the future that such vagueness should invalidate the
entire Development Agreement. This letter will confirm that the
City has specifically assured Developer that it has no such
FS210531014084.0059\2063114.4 11/24/93
RUTAN £ TUCKER
ATTORNEYS AT LAW
Mr. Anthony A. Ferrero
Mr. Lon T. Stephens
November 24, 1993
Page 2
intention and that the City shall be deemed estopped from making
any such argument.
Under section 17. 6, Developer is responsible to reimburse the
City for the costs of the EIR as well as all attorney fees and
costs incurred by the city with respect to (i) the defense of the
Existing Lawsuit, and (ii) the drafting and negotiation of the
Development Agreement ("Reimbursable Expenses") . As of the date of
this letter, the total cost incurred by the City with respect to
the ETR has been paid in full by you. To date the total attorneys
fees incurred to date for (i) the drafting and negotiation of the
Development Agreement total $15,480, and (ii) the defense of the
Existing Lawsuit total $15, 920. Since the Development Agreement
appears to be nearly completed additional attorneys fees for
completing the Agreement are expected to be minimal. However, we
can not give any estimate with respect to the attorney's fees and
costs which may be incurred for the continued defense of the
Existing Lawsuit. Developer has previously delivered the sum of
$7 , 500 to the city as a deposit for such obligations which monies
have been previously applied against a portion of the Reimbursable
Expenses. Accordingly, as of the date of this letter, the total of
the outstanding Reimbursable Expenses for which you are responsible
is $26,400.
The City is amenable to the payment of the Reimbursable
Expenses being made within thirty (30) days after the first to
occur of: (i) any new financial partner invests in the Project, or
(ii) the sale of the Project. Developer covenants to promptly
notify the City in writing of the addition of any such financial
partner or sale. In the event Developer fails to pay said
obligations in the time specified above, Developer shall pay also
interest thereon from the date said sums were due under this
paragraph until actually paid in full by Developer at the lesser
of: (i) the monthly avarage rate that the City received for the
applicable period on its investments through the Local Agency
Investment Fund (which currently is approximately 4.5%) , or (ii)
the maximum rate permitted by law for private citizens.
If the foregoing accurately summarize your understanding of
these matters, please execute the enclosed copy of this letter and
return same to us.
P52105310140M-005912063114.4 W24193
RUTAN & TUCKER
ATTORNEYS AT LAW
Mr. Anthony A. Ferrero
Mr. Lon T. Stephens
November 24, 1993
Page 3
If you have any questions, please do hesitate to contact us.
We look forward to working with you in the development of this
Project.
Very truly yours,
RUW
&� TUCKER
David Aleshire /
City Attorney
City of Palm Springs
ANLla
cc: Douglas Evans, Director of Planning & Zoning
Rob Parkins, City Manager
READ/ AND APPROVED THIS DAY OF
J"'zr/ , 1993
SHADOWROCK VENTURES,
a Cali -fornia G neral Partnership
By:
Mark Bragg (/
General Par er
By: FERRERO PROPERTIES, LTD. ,
a California limited partnership,
General Partner
By: FERRERO ENTERPRISES, INC. ,
a California Corporation
General Partner
By:
nthon Fer o
Presid t
FS2\053T14094-0059\2063114.4 11/24/93
r
O n
RECORDING REQUESTED BY W rYj cri
AND WHEN RECORDED, MAIL TO: a 0 C" N
117 0
-- - RETURN7O; N G
p o U
CCTV Ci Ebmb m W
GITYOFPALM SPRINGS �� 998 111 Q FE
\ FAX 2743 I V
\ALM SPRINGS,CA£\2,ZO Ul
by
(Space above this line for recorder' s use only)
Shadowrock Ventures, a Calif
Gen Partnrship - Disp. & Dev
re Proj near Tram
AGREEMENT #3315
DEVELOPMENT AGREEMENT 0rd1460 11-17-93
THE CITY OF PALM SPRINGS
(11citxll) JAIN 2 5 fgplf
CITY CLERK
SEADOWROCA VENTDRES,
a California General Partnership
("Developer")
Fs2\053\0140640059\2o41266.6 nn5193
513,107
Y
TABLE OF CONTENTS
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 3
1. 1 Adjacent Property . . . . . . . . . . . . . . . 3
1 .2 ,Applications . . . . . . . . . . . . . . . . 3
1 . 3 Approved Master Tentative Map . . . . . . . . . . 3
1.4 Assignment . . . . . . . . . . . . . . . . . . . . 3
1. 5 Authorizing Ordinance . . . . . . . . . . . . . . 4
1 . 6 The City . . . . . . . . . . . . . . . . . . . . . 4
1 . 7 City Council . . . . . . . . . . . . . . . . 4
1. 8 City Development Agreement Ordinance . . . . . 4
1 .9 Claims or Litigation . . . . . . . . . . . . . . . 4
1 . 10 Default . . . . . . . . . . . . . . . . . . . . . 4
1 . 11 Development . . . . . . . . . . . . . . . . . . . 4
1. 12 Development Agreement Statute . . . . . . . . . . 4
1 . 13 Development .Approvals . . . . . . . . . . . . . . 4
1. 14 Development Plan . . . . . . . . . . . . . . . . . 5
1 .15 Effective Date . . . . . . . . . . . . . . . . . . 5
1 . 16 Exaction . . . . . . . . . . . . . . . . . . . 5
1. 17 Existing Development Approvals . . . . . . . . . . 5
1 .18 Existing Lawsuit . . . . . . . . . . . . . . . 5
1 . 19 Existing Land Use Regulations . . . . . . . . . . 5
1.20 Future Development Approvals . . . . . . . . . . . 5
1 .21 Land Use Regulations . . . . . . . . . . . . . . . 5
1 .22 Legal or Equitable Interest . . . . . . . . . . . 6
1.23 Mortgage . . . . . . . . . . . . . . . . . . . . . 6
1 .24 Mortgagee . . . . . . . . . . . . . . . . • . . . 6
1 .25 Developer . . . . . . . . . . . . . . . . . . . . 6
1.26 Developer' s Property. . . . . . . . . . . . . . . _ 6
1.28 PDD Area . . . . . . . . . . . . . . . . . . . 6
1.33 Planning Director . . . . . . . . . . . . . . . . 7
1. 34 Project . . . . . . . . . . . . . . . . . . . . . 7
1.35 Related Entity . . . . . . . . . . . . . . . . 7
1.36 Reservations of Authority . . . . . . . . . . . . 7
1. 37 'Term . . . . . . . . . . . . . . . . . . . . . . . 7
2 . EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . 7
3 . TERM . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3 . 1 Term . . . . . . . . . . . . . . . . . . . . . . 8
3 .2 Effective Date . . . . . . . . . . . . . . . . . . 8
3 .3 Extension of Original Term . . . . . . . . . . . . 8
4 . DEVELOPMENT OF THE DEVELOPER' S PROPERTY . . . . . . . . 8
4 .1 Right to Develop . . . . . . . . . . . . . . . . . 8
4 .2 Existing Development Approvals . . . . . . . . 8
4 . 3 Obligation of City Respecting Financing 8
F5210531014084-0059\2041266.6 11115/93 1
4 .4 Later Enacted Measures . . . . . . . . . . . . . . 9
S . TIME FOR CONSTRUCTION AND COMPLETION OF PROJECT 9
5 . 1 Right of Developer to Control Timing. . . . . . . . 9
5 .2 Timing Constraints to Development Plan . . . . . . 10
5 . 3 Public Improvements . . . . . . . . . . . . . 10
5 .4 Determination of Phase IV Alternatives , . . . . . 11
6 . FEES, TAKES AND ASSESSMENTS . . . . . . . . . . . . . . 11
7 . PROCESSING OF REQUESTS AND APPLICATIONS; OTHER
GOVERNMENT PERMITS . . . . . . . . . . . . . . . . . . . 12
7 . 1 Processing . . . . . . . . . . . . . . . . . . 12
7 .2 Vesting Tentative Subdivision Maps . . . . . . . . 12
7.3 Phased Final Maps . . . . . . . . . . . . . 13
7.4 Other Governmental Permits . . . . . . . . . . . . 13
7.5 Public Agency Coordination . . . . . . . . . . . . 13
8 . AMENDMENT OF DEVELOPMENT AGREEMENT . . . . . . . . . . . 13
8 . 1 Initiation of Amendment . . . . . . . . . . . . 13
8 .2 Procedure . . . . . . . . . . . . . . . . . . . . 13
8 .3 Consent . . . . . . . . . . . . . . . . . . 13
8 .4 Minor Modifications . . . . . . . . . . . . . . . 13
8 .5 Effect of Amendment to Development Agreement . . . 14
9 . RESERVATIONS OF AUTHORITY . . . . . . . . . 14
9 . 1 Limitations, Reservations and Exceptions . . . . . 14
9 .2 Regulation by Other Public Agencies . . . . . . 16
10 . ANNUAL REVIEW . . . . . . . . . . . . . . . . . . _ . 16
10 . 1 Annual Monitoring Review . . . . . . . . . . . . . 16
10 .2 Certificate of Compliance . . . . . . . . . . 16
10 . 3 Failure to Conduct Annual Review . . . . . . . . 17
11. DEFAULT, REMEDIES AND TERMINATION . . . . . . . . . . . 17
11.1 Rights of Non-Defaulting Party after Default . . . 17
11.2 Notice and Opportunity to Cure . . . . . . . . . . 17
11. 3 Waiver of Breach . . . . . . . . . . . . . . . . . 18
11.4 Monetary Default . . . . . . . . . 18
11.5 Rights and Duties Following Termination 18
12 . ASSIGNMENT . . . - . . . . . . . . . . . . . . . . . . 18
12 .1 Right to Assign . . . . . . . . . . . . . . . 18
12 .2 Sale to Residential Builder . . . . . . . . . . . 21
12 .3 Termination of Agreement With Respect to
Individual Parcels Upon Sale to Public . . . . . . 21
12 .4 Declaration of Covenants, Conditions and
Restrictions . . . . . . . . . . . . . . . . . . . 21
13 . INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . 22
F8210531014094-006M041266.6 11/15/93
13 . 1 Third-Party Litigation . . . . . . . . . . . . . 22
13 .2 Hold Harmless; Developer' s Construction and Other
Activities . . . . . . . . . . . . . . . . . . 23
13 . 3 Acknowledgment of Existing Lawsuit , 23
13 .4 Survival of Indemnity Obligations . . . . . . . . 23
14. EFFECT OF AGREEMENT ON TITLE . . . . . . . . . . . . . . 24
14 . 1 Covenant Run with the Land . . . . . . . . . . . . 24
15 . CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION . . . . 24
15 .1 Non-liability of City Officers and Employees . . . 24
15 .2 Conflict of Interest . . . . . . . . . . . . . 24
15 .3 Covenant Against Discrimination . . . . . . . . . 25
16 . MORTGAGEE PROTECTION . . . . . . . . . . . . . . . . . . 25
16 . 1 Definitions . . . . . . . . . . . . . . . . . . . 25
16 .2 No Encumbrances Except Mortgages to Finance the
Project . . . . . . . . . . . . . . . . . . 25
16.3 Developer' s Breach Not Defeat Mortgage Lien . . . 26
16.4 Holder Not Obligated to Construct or Complete
Improvements . . . . . . . . . . . . . . . . 26
16.5 Notice of Default to Mortgagee, Deed of Trust or
Other Security Interest Holders . . . . . . . . . 26
16 . 6 Right to Cure . . . . . . . . . . . . 26
16 . 7 City' s Rights upon Failure of Holder to Complete
Improvements . . . . . . . . . . . . . . . . . . . 27
16 . 8 Right of City to Cure Mortgage, Deed of Trust or
Other Security Interest Default . . . . . 28
16 .9 Right of the City to Satisfy Other Liens on the
Property After Conveyance of Title . . . . . . . . 29
17. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . 29
17. 1 Estoppel Certificates . . . . . . . . . . . . . . 29
17.2 Force Majeure . . . . . . . . . . . . . . 30
17. 3 Construction of Development Agreement . . . . . . 30
17 .4 Severability . . . . . . . . . . . . . . . . . . . 30
17.5 Attorney' s Fees . . . . . . . . . . . . . . . . . 30
17. 6 Reimbursement of Costs . . . . . . . . . . . . . . 30
17. 7 Joint and Several Obligations . . . . . . . . . . 31
17. 8 Time of Essence . . . . . . . . . . . . . . . . . 31
17.9 Waiver . . . . . . . . . . . . . . . 31
17. 10 No Third Party Beneficiaries . . . . . . . . . . . 31
17.11 Mutual. Covenants . . . . . . . . . . . . . . . . . 31
17. 12 Counterparts . . . . . . . . . . . . . . . . . . . 31
17. 13 Authority to Execute . . . . . . . . . . . . . . . 31
17. 14 Notice . . . . . . . . . . . . . . . . . . . . 32
17. 15 Further Actions and Instruments . . . . . . . . . 33
17. 16 Recitals . . . . . . . . . . . . . . . . . . . . . 33
17. 17 Recording . . . . . . . . . . . . . . . . . . 33
17. 18 Relationship of Parties . . . . . . . . . . . . . 33
P82\053\01408¢005912041266.6 11/15/93 -1 1 1-
313,107
17. 19 Entire Agreement . . . . . . . . . . . . . . . . 33
ls2\453\O14aSd.0059\2M1266.6 I11M93 -iv-
• 313,107
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (thi� "Development Agreement" or
this "Agreement" ) is entered into on LA� F1 , 1993 , by the
CITY OF PALM SPRINGS (the "City") , a municipal corporation, and
SHADOWROCK VENTURES, a California General Partnership ( "Developer")
pursuant to Article 2 . 5 of Chapter 4 of Division 1 of Title 7,
Sections 65864 through 65869 .5 of the California Government Code.
The City and Developer shall be referred to within this Development
,Agreement jointly as the "Parties" and individually as a "Party. "
R E C I T A L S:
A. Capitalized Terms . The capitalized terms used in these
recitals and throughout this Agreement shall have the meaning
assigned to them in Article 1_ Any capitalized terms not defined
in Article 1 shall have the meaning otherwise assigned to them in
this Agreement or apparent from the context in which they are used.
B. Development of Property. The City approved Planned
Development District No. 224 on May 6, 1993 by Resolution No. 18087
( "PDD" ) for the development of approximately 1, 100 acres more or
less in the northern portion of Palm Springs (the 11PDD Area") and
at the same time certified EIR No. 92052104 by Resolution No.
18086 . Developer has a legal or equitable interest in a portion of
the PDD Area as described in Exhibit "A11 (the "Developer' s
Property") . Developer may acquire adjacent real property in which
it does not presently have a legal or equitable interest to be
incorporated into the Project.
C. Legislation Authorizing Development Agreements. 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
adopted the Development Agreement Statute, Sections 65864, AL seq. ,
of the Government Code, authorizing City to enter into an agreement
with any person having a legal or equitable interest in real
property providing for the development of such property and
establishing certain development rights therein. The legislative
findings and declarations underlying the Development Agreement
Statute and the provisions governing contents of development
agreements state, in Government Code Sections 65864 (c) and 65865 .2,
that the lack of public facilities, including, but not limited to,
streets, sewerage, transportation, drinking water, school, and
utility facilities is a serious impediment to the development of
new housing, and that applicants and local governments may include
provisions in development agreements relating to applicant
financing of necessary public facilities and subsequent
reimbursement over time.
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D. Intendnt of the Parties. Developer and City have
determined that the Project is a development for which a
development agreement is appropriate. The parties desire to define
the parameters within which the obligations of Developer for
infrastructure and public improvements and facilities will be met,
and to provide for the orderly development of the Developer's
Property, assist in attaining the most effective utilization of
resources within the City, and otherwise achieve the goals of the
Development Agreement Statute. In consideration of these benefits
to the City and the public benefits of the development of the
Developer' s Property, Developer will receive assurances that the
City shall grant all permits and approvals required for total
development of the Developer' s Property in accordance with this
Agreement .
E. Public Benefits Of Project. The grant of development
rights hereunder is consideration for Developer' s good faith
efforts to complete the development of a multi-million dollar
destination resort project composed of (a) an 18 hole championship
golf course, clubhouse and driving range, (b) 135 single family and
luxury estate homes, (c) 10 luxury bungalows, (d) 200 luxury
condominiums, and (e) a 60 unit hotel building and
spa/fitness/tennis facility, as described in the PDD. The PDD also
approved two alternative development scenarios as to the hotel and
tennis facility phase: (i) alternative 1 being a 490 unit hotel,
and (ii) alternative 2 being 211 single family and luxury estate
homes. The project with the alternatives as approved by the PDD is
hereinafter referred to as the "Project" . The Project will benefit
the City by creating new jobs in the community as well as aiding in
the revitalization of the tourist trade and general economy of the
City.
F. Public Hearings. Findings. In accordance with the
requirements of the California Environmental Quality Act (Public
Resources Code Sections 21000, et sea. ("CEQA") ) , appropriate
studies, analyses, reports or documents were prepared and
considered by the Planning Commission and the City Council . The
Planning Commission, after a public hearing on April 21, 1993, by
Resolution No. 4237, recommended, and the City Council, after
making appropriate findings, certified, by Resolution No. 18086
adopted on May 5, 1993, a Final Environmental Impact Report for the
Project in compliance with CEQA, more specifically identified as
the "Shadowrock Planned Development District Final Environmental
Impact Report" , dated April, 1993 , State Clearinghouse No.
92052104, Case No. 5 .0609-PD-224 (the "EIR" ) . On 2/10/93 ,
1993, the Planning Commission of the City (the "Planning
Commission") , after giving notice pursuant to Government Code
Sections 65090, 65091, 65092 and 65094, held a public hearing on
Developer' s application for this Agreement. On 11/3/93
1993, the City Council, after providing public notice as required
by law, held a public hearing to consider Developer' s application
for this Agreement. The Planning Commission and the City Council
have found on the basis of substantial evidence that the Agreement
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is consistent with all applicable plans, rules, regulations and
official policies of the City.
G. Mutual Agreement. Based on the foregoing and subject to
the terms and conditions set forth herein, Developer and City
desire to enter into this Development Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, and having determined that the
foregoing recitals are true and correct and should be and hereby
are incorporated into this Agreement, the parties agree as follows:
I . DEFINITIONS .
The following words and phrases are used as defined terms
throughout this Development Agreement. Each defined term shall
have the meaning set forth below.
1. 1 Adjacent Proper=. The "Adjacent Property" means that
certain real property described in the PDD but in which Developer
does not hold a legal or equitable interest as of the Effective
Date. The Adjacent Property is not subject to this Agreement as of
the Effective Date but upon Developer's acquisition of a legal or
equitable interest therein, Developer may request that such
property be deemed within the definition of "Developer's Property"
and be treated as a part of Developer' s Property for purposes of
this Agreement. Subsequent to such acquisition and subject to
approval by the City, a supplemental legal description may be
recorded in the Official Records of Riverside County pursuant to
Section 8 .4 (a) .
1.2 Applications. The term "Application (s) " shall mean a
complete application for the applicable land use approvals (such as
a subdivision map, planned development district, etc. ) meeting all
of the current ordinances of the City provided that any additional
or alternate requirements in said ordinances enacted after the
Effective Date which affect the Project application shall apply
only to the extent permitted by this Agreement.
1. 3 Approved Master Tentative Man. "Approved Master
Tentative Map" shall mean a master tentative map which has been
approved by the City in accordance with the California Subdivision
Map Act showing a resort and residential project consistent with
the PDD.
1.4 Assignment. All forms of use of the verb "assign" and
the nouns "assignment" and "assignee" shall include all contexts of
hypothecations, sales, conveyances, transfers, leases, and
assignments .
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1 . 5 Authorizing Ordinance. The "Authorizing Ordinance"
means Ordinance No. /u/ approving this Development
Agreement.
1. 6 The City. The "City" means the City of Palm Springs,
California.
1 . 7 Ci_ty Council . The "City Council" means the governing
body of the City of Palm Springs .
1. 8 City Development Agreement Ordinance. The "City
Development Agreement Ordinance" means Section 9408 of the Zoning
Ordinance which establishes a procedure for the consideration and
approval of development agreements pursuant to the Development
Agreement Statute.
1. 9 Claims or Litigation. The term "Claims or Litigation"
shall mean any challenge by adjacent owners or any other third
parties (i) to the legality, validity or adequacy of the General
Plan, Land Use Regulations, this Development Agreement, Development
Approvals, or other actions of City pertaining to the Project,
including but not limited to the Existing Lawsuit, or (ii) seeking
damages against City as a consequence of the foregoing actions or
for the taking or diminution in value of their property, or in any
other manner.
1. 10 Default . A "Default" refers to any material default,
breach, or violation of a provision, of this Development Agreement
as defined in Section 11_ A "City Default" refers to a Default by
the City, while an "Developer Default" refers to a Default by
Developer.
1 .11 Development. "Development" means the improvement of
the Developer' s Property for purposes of effecting the structures,
improvements and facilities comprising the Project including,
without limitation: grading, the construction of infrastructure and
public facilities related to the Project whether located within or
outside the Developer's Property; the construction of structures
and buildings; and the installation of landscaping; but not
including the maintenance, repair, reconstruction or redevelopment
of any structures, improvements or facilities after the
construction and completion thereof.
1. 12 Development Agreement Statute. The "Development
Agreement Statute" means Sections 65864 through 65869 .5 of the
California Government Code as it exists on the Development
Agreement Date.
1. 13 Development Approvals. "Development Approvals" means
all site-specific (meaning specifically applicable to the
Developer' s Property only and not generally applicable to some or
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all other properties within the City) plans, maps, permits, and
entitlements to use of every kind and nature. Development
,Approvals includes, but is not limited to, specific plans, site
plans, tentative and final subdivision maps, vesting tentative
maps, variances, zoning designations, planned unit developments,
conditional use permits, grading, building, and other similar
permits, the site-specific provisions of general plans,
environmental assessments, including environmental impact reports,
and any amendments or modifications to those plans, maps, permits,
assessments and entitlements. The term Development Approvals does
not include rules, regulations, policies, and other enactments of
general application within the City.
1. 14 Development Plan. The "Development Plan" means the
Existing Development Approvals, Future Development Approvals and
Existing Land Use Regulations_
1. 15 Effective Date. The "Effective Date" means the date
the Agreement becomes effective as set forth in Section 3 .2 _
1. 16 Exaction_ "Exaction" means dedications of land,
payment of development fees and/or construction of public
infrastructure by Developer as part of the Development.
1. 17 Existing Development Approvals. The "Existing
Development Approvals" means only the Development Approvals which
are listed on Exhibit "C" .
1. 18 Existing Lawsuit. The term "Existing Lawsuit" shall
mean that certain complaint filed by California Department of Fish
and Game, as plaintiff, as Case No. 1-69777 in the Superior Court
of the State of California for the County of Riverside, as a
Petition for Writ of Mandate and Complaint for Injunctive Relief.
1. 19 Existing Land Use Regulations. The "Existing Land Use
Regulations" means those certain Land Use Regulations applicable to
the Property in effect on the Effective Date.
1.20 Future Develonment Approvals. "Future Development
Approvals" means those Development Approvals applicable to the
Property approved by the City after the Effective Date.
1.21 Land Use Regulations. The "Land Use Regulations" means
those ordinances, laws, statutes, rules, regulations, initiatives,
policies, requirements, guidelines, constraints, codes or other
actions of the City which affect, govern, or apply to the Property
or the implementation of the Development Plan_ Land Use
Regulations include the ordinances and regulations adopted by the
City which govern permitted uses of land, density and intensity of
use and the design of buildings, applicable to the Property,
including, but not limited to, the General Plan, specific plans,
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zoning ordinances, development moratoria, implementing growth
management and phased development programs, ordinances establishing
development exactions, subdivision and park codes, any other
similar or related codes and building and improvements standards,
mitigation measures required in order to lessen or compensate for
the adverse impacts of a project on the environment and other
public interests and concerns or similar matters. The term Land
Use Regulations does not include, however, regulations relating to
the conduct of business, professions, and occupations generally;
taxes and assessments; regulations for the control and abatement of
nuisances; building codes; encroachment and other permits and the
conveyances of rights and interests which provide for the use of or
entry upon public property; any exercise of the power of eminent
domain; or similar matters.
1.22 Legal or Equitable Interest. The term "legal or
equitable interest" shall mean (i) a long-term leasehold interest
as evidenced by a recorded lease or memorandum of lease, and
appropriate title insurance issued in favor of Developer, or (ii)
fee title evidenced by a recorded grant deed and appropriate title
insurance issued in favor of Developer.
1.23 Mortgage. "Mortgage" means a mortgage, deed of trust,
or sale and leaseback arrangement or other transaction in which all
or any portion of or interest in the Developer' s Property is
pledged as security.
1.24 Mortgagee. "Mortgagee" refers to the holder of a
beneficial interest under a Mortgage.
1.25 Developer_ "Developer" means Shadowrock Ventures, a
California General Partnership, and any permitted assignee in
accordance with Section 12 .
1.26 Developer' s, Property_ The "Developer' s Property" means
that real property shown and described on Exhibit "A" in which
Developer currently holds a legal or equitable interest and to
which this Development Agreement applies subject to being expanded
in accordance with Section 8 .4.
1.27 Planned Develo ment District or PDD. The "Planned
Development District" or "PDD" means the zoning designation of the
City of Palm Springs designed to provide for compatible land uses
within a planned development as specifically approved by the City
for the Project under Planned Development District No. 224 on May
6, 1993 by Resolution No. 18087.
1 .28 PDD Area. The "PDD Area" means all that real property
which is subject to the PDD.
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1.29 Phase or Phases. The term "Phase" or "Phases" or
references to a specific Phase shall mean those portions of the
Project as designated in the Phasing Plan summarized on Exhibit
❑$"
1 .30 Phasing Plan. _ The term "Phasing Plan" shall mean the
phasing plan for the Project summarized on Exhibit "S" .
1. 31 Phase IV Alternative 1. The term "Phase IV Alternative
1" shall mean the alternative development plan for Phase IV which
alternative was approved under the PDD and provides for a 490 unit
hotel.
1 . 32 Phase IV Alternative 2 . The term "Phase IV Alternative
2 " shall mean the alternative development plan for Phase IV which
alternative was approved under the PDD and provides for 211 single
family and luxury estate homes.
1.33 Planning Director. "Planning Director" shall mean the
Director of Planning and Zoning or similar officer of City.
1.34 Project. The "Project" means the development of the
Developer' s Property pursuant to the Development Plan and this
Agreement.
1.35 Related Entity. The term "Related Entity" shall mean
any person, entity or group of persons or entities acting in
concert having more than twenty-five percent (25$) of the ownership
and/or control of Participant or any general partner of
Participant.
1.36 Reservations of Authority. The term "Reservation of
Authority" shall have the meaning set forth in Section 9 of this
Agreement.
1.37 Term. The "Term" means that period of time during
which this Development Agreement shall be in effect and bind the
Parties, as defined in Section 3 . 1 .
2 . EXRIBITS.
The following are the Exhibits to this Agreement_
Exhibit A: Map and Legal Description of the Developer' s
Property
Exhibit B: Phase Plan
Exhibit C: Existing Development Approvals
Exhibit D: Estoppel Certificate
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Exhibit F: Summary of Fees, Taxes and Assessments
Existing as of the Effective Date
3 . TERNS.
3 . 1 Term. The term of this Development Agreement (the
"Term" ) shall commence on the Effective Date and shall continue for
a period of ten (10) years ( "Original Term") unless otherwise
expressly provided by this Agreement including, but not limited to,
extensions thereof pursuant to Section 3 . 3 .
3 .2 Effective Date. This Agreement shall become effective
upon the date thirty (30) days after the adoption of the
Authorizing Ordinance.
3 .3 Extension of Original „Term. The Original Term of this
Agreement specified in Section 3 . 1 shall be extended by the amount
of time commencing with the Effective Date and ending with the date
that the Existing Lawsuit is settled or otherwise disposed by final
judicial action. Upon such final termination of the Existing
Lawsuit, the parties shall execute a written agreement specifying
the new date of the expiration of the Original Term as so extended.
4. DEVELOPMENT OF THE DEVELOPER' S PROPERTY.
4 .1 Right to Develop. During the Term, Developer shall
have a vested right to develop the Developer' s Property (subject to
Section 5 below) to the full extent permitted by the Development
Plan and this Development Agreement. Except as provided within
this Development Agreement, the Development Plan shall exclusively
control the development of the Property (including the uses of the
Property, the density or intensity of use, the maximum height and
size of proposed buildings, the provisions for reservation or
dedication of land for public purposes and the design, improvement
and construction standards and specifications applicable to the
Project) .
4 .2 Existing Development Approvals_ Only those items
specifically set forth on Exhibit "C" hereto are deemed Existing
Development Approvals for purposes of this Agreement. Any
approvals not included within Exhibit "C" shall not apply to the
Project_
4.3 Obligation of City Respecting__Financincr. Nothing to
the contrary in this Agreement withstanding, the Developer shall
have the right to request City to commence proceedings to consider
forming assessment, benefit, maintenance or other districts
(including without limitation Mello-Roos Community Facilities
Districts) under applicable laws to pay for the costs and expenses
associated with the Public Improvements or any of them and if in
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513407
the exercise of its sole and absolute discretion the City elects to
so form a district, City shall issue or cause to be issued project
bonds of such district in an amount to be determined by City. The
Developer may request City to consider utilizing any other
financing method then available under applicable laws; provided
that in connection with any such request relating to any other
financing method, City shall give due consideration to utilization
of the requested other financing method, taking into account the
requirements of applicable laws, and the benefit to be derived with
respect to development of the Project of such public financing
methods as they relate to reduce in cost of development of the
Project and the enhancement thereof to achieve the intent of the
parties hereunder. If, after such good faith consideration as
aforesaid, City in its sole discretion decides to provide such
public assistance, then City agrees to use its best efforts to take
all actions as may be necessary or appropriate in order to do so,
and the Developer shall cooperate in connection therewith. The
City makes no representation to Participant that project bonds may
be issued respecting this Project and/or the amount of same due to
a number of potential legal issues, including but not limited to,
that if any portion of the underlying zeal property interest is a
leasehold interest on Indian land then upon a default under the
leasehold, the fee interest may not be subject to the applicable
requirements. Furthermore, Developer understands and agrees that
nothing herein shall be construed to require City to issue general
obligation bonds, or to pledge its full faith and credit to any
bond issues.
4 .4 Later Enacted Measures. This Development Agreement is
a legally binding contract which will supersede any initiative,
measure, moratorium, statute, ordinance, or other limitation
enacted after the Effective Date, except as provided in Section 9 .
.Any such enactment which affects, restricts, impairs, delays,
conditions, or otherwise impacts the implementation of the
Development Plan (including the issuance of all necessary Future
Project Approvals or permits for the Project) in any way contrary
to the terms and intent of this Development Agreement shall not
apply to the Project unless otherwise provided by State law.
5 . TIME FOR CONSTRUCTION AND COMPLETION of PROJECT.
5 .1 Riaht of Developer to Control Timing. Developer cannot
fully predict the timing, phasing, or sequencing in which the
Project will be developed, if at all . Such decisions depend upon
numerous factors, many of which are not completely within the
control of Developer, such as market orientation and demand,
interest rates, absorption, completion, and the state of the
general economy. Therefore, Developer may decide, subject to the
limitations set forth in this Agreement, the timing, phasing, and
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sequencing of the Project in Developer's own subjective business
analysis .
5 .2 Timincf Constraints to Development Plan. Developer
agrees that as a part of the Phasing Plan for the Project (as shown
on Exhibit 'IS" hereto) , the Project will be undertaken consistent
with the following timing constraints:
(a) Developer will submit completed Applications for
all necessary subdivision maps and final planned development
district for Phase I within five (5) years of the Effective
Date; provided, however, that said time limit shall be
extended by the amount of time that the Original Term is
extended pursuant to Section 3 .3 -
(b) Phase I will be developed first.
(c) Developer shall commence construction of the
residential phases within the term of this Agreement.
(d) The timing constraints for construction of public
improvements shall be as provided in Section 5.3 .
5 -3 Public Smnrovements. The parties understand and agree
that PDD identifies the public infrastructure but does not specify
precisely the phasing of the public infrastructure. The City
desires that required public infrastructure generally be
constructed in the early phases of the development cycle subject to
the guidelines specified below. In consideration of the foregoing,
notwithstanding any provision herein to the contrary, the City
shall retain the right to condition any Future Approvals to require
Developer to dedicate necessary land, pay the development fees
specified in Section 7, and/or to construct the required public
infrastructure ( "Exactions") at such time as City shall determine
subject to the following conditions:
(a) The dedication, payment or construction must be to
alleviate an impact caused by the Project or be of benefit to
the Project; and
(b) The timing of the Exaction should be reasonably
related to the phasing of the development of the Project and
said public improvements shall be phased to be commensurate
with the logical progression of the Project development as
well as the reasonable needs of the public and completed based
upon the needs of the public existing from time to time.
City will not unreasonably withhold consent to allow
Developer to develop above ground transmission/utility lines due to
the extreme expense and difficulty of trenching provided, however,
F5210531014084.0059UN1266,6 11115193
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that City may condition such consent upon Developer utilizing
appropriate treatments for safety, access and aesthetics.
When Developer is required by this Development
Agreement and/or the Development Plan to construct any public works
facilities which will be dedicated to the City or any other public
agency upon completion and if required by applicable laws to do so,
Developer shall perform such work in the same manner and subject to
the same construction standards as would be applicable to the City
or such other public agency should it have undertaken such
construction work.
5 .4 Determination of Phase TV Alternatives. If Developer
elects to develop Phase TV under either Phase TV Alternative I or
II, Developer will need to make such determination and submit such
requests to the City in accordance with the provisions set forth in
Section 9 . 1 (d) .
6 . FEES , TAXES AND ASSESSMENTS .
The City shall not, without the prior written consent of
Developer, impose any additional fees, taxes or assessments on all
or any portion of the Project, whether as a condition to a Future
Development Approval or otherwise, except such fees, taxes and
assessments as are described in or required by this Development
Agreement and/or the Development Plan This Development Agreement
shall not prohibit the application of fees, taxes or assessments as
follows :
(a) Developer shall be obligated to pay those fees,
taxes or assessments which exist as of the Effective Date and
any increases or decreases in same as adopted by the City
Council and imposed on a city-wide basis. A list of the fees,
taxes and assessments in effect in the City as of the
Effective Date are set forth on Exhibit "E° attached hereto.
(b) Developer shall be obligated to pay any fees or
taxes imposed on a City-wide basis which are not related to
construction or development activities such as business
license fees or taxes and utility taxes.
(c) Developer shall be obligated to pay all fees
applicable to a permit application as charged by the City at
the time such application is filed by Developer.
(d) Developer shall be obligated to pay any fees,
taxes or assessments which are imposed on a city-wide basis or
area-wide basis such as a utility tax, landscape or lighting
assessment, or a community services assessment so long as the
tax, fee or assessment was not directed exclusively or even
F5210331014034-005912061266.6 11/15/93 - 1-
primarily against owners, lessees, businesses, residents or
occupants of the Project.
(a) Developer shall be obligated to pay any fees as
imposed pursuant to any assessment district established within
the Project otherwise proposed or consented to by Developer_
(f) Developer shall be obligated to pay any fees which
were imposed as conditions of approval in the PDD_
7. PROCESSING OF REOUESTS AND APPLICATIONS : OTHER GOVERNMENT
PERMITS.
7 .1 processing. In reviewing Future Development
Approvals which are discretionary, the City may impose only those
conditions, exactions, and restrictions which are allowed by the
Development Plan and this Development Agreement. Upon satisfactory
completion by Developer of all required preliminary actions,
meetings, submittal of required information and payment of
appropriate processing fees, if any, the City shall promptly
commence and diligently proceed to complete all required steps
necessary for the implementation of this Development Agreement and
the development by Developer of the Project in accordance with the
Existing Development Approvals. In this regard, Developer, in a
timely manner, will provide City with all documents, applications,
plans and other information necessary for the City to carry out its
obligations hereunder and will cause Developer' s planners,
engineers and all other consultants to submit in a timely manner
all required materials and documents therefor. It is the express
intent of this Development Agreement that the parties cooperate and
diligently work to implement any zoning or other land use, site
plan, subdivision, grading, building or other approvals for
development of the Project in accordance with the Existing
Development Approvals. Notwithstanding the foregoing, nothing
contained herein shall be construed to require City to process
Developer' s applications ahead of other projects in process in the
City and City's obligations hereunder shall be subject to the
City' s workload and staffing at any given time. If Developer
elects, in its sole discretion, to request the City to incur
overtime or additional consulting services to receive expedited
processing by the City, Developer shall pay all such overtime
costs, charges or fees incurred by City for such expedited
processing.
7.2 Vesting Tentative Subdivision Maps_ The City shall
extend through the Term hereof (pursuant to Government Code Section
66452 . 6) all Vesting Tentative Subdivision Maps applied for by
Owner during the term of this Agreement and approved by the City in
the future.
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7 . 3 Phased Final Mans_. Developer may file as many phased
final maps for the Project as it deems appropriate and consistent
with this Agreement .
7 .4 Other Governmental Permits. Developer shall apply in
a timely manner for such other permits and approvals as may be
required from other governmental or quasi-governmental agencies
having jurisdiction over the Project as may be required for the
development of, or provision of services to, the Project in
accordance with the phasing requirements set forth herein. The
City shall cooperate with Developer in its efforts to obtain such
permits and approvals.
7 . 5 Public Agency Coordination. The City and Developer
shall cooperate and use reasonable efforts in coordinating the
implementation of the Development Plan with other public agencies,
if any, having jurisdiction over the Property or the Project.
8 . AMENDMENT OF DEVELOPMENT AGREEMENT.
8 . 1 Initiation of Amendment . Either Party may propose an
amendment to this Development Agreement.
8 .2 Procedure. Except as set forth in Section 8 .4 below,
the procedure for proposing and adopting an amendment to this
Development Agreement shall be the same as the procedure required
for entering into this Development Agreement in the first instance.
8 .3 Consent. Except as expressly provided in this
Development Agreement, no amendment to all or any provision of this
Development Agreement shall be effective unless set forth in
writing and signed by duly authorized representatives of each of
the parties hereto and recorded in the Official Records of
Riverside County.
8 .4 Minor Modifications .
(a) Implementation of the Project may require minor
modifications of the details of the Development Plan and
performance of the Parties under this Development Agreement.
The Parties desire to retain a certain degree of flexibility
with respect to those items covered in general terms under
this Development Agreement. Therefore, non-substantive and
procedural modifications of the Development Plan shall not
require modification of this Development Agreement.
(b) A modification will be deemed non-substantive
and/or procedural if it does not result in a material change
in fees, density, intensity of use, permitted uses, the
maximum height and size of buildings, the reservation or
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dedication of land for public purposes, or the improvement and
construction standards and specifications for the Project,
including density transfers between Phases .
(c) The Parties agree, subject to City' s approval,
that the recordation of supplemental legal descriptions to the
"Developer' s Property" from time to time as Developer acquires
Adjacent Property which is to become the Project is a
ministerial procedural act and, therefore, is a minor
modification of this Agreement.
(d) Notwithstanding the foregoing, City will process
any change to this Development Agreement consistent with state
law and will hold public hearings therein if so required by
state law and the parties expressly agree nothing herein is
intended to deprive any party or person of due process of law.
8 .5 Effect of Amendment to Development Agreement. The
Parties agree that except as expressly set forth in any such
amendment, an amendment to this Development Agreement will not
alter, affect, impair, modify, waive, or otherwise impact any other
rights, duties, or obligations of either Party under this
Development Agreement_
9 . RESERVATIONS OF AUTHORITY,
9 .1 Limitations . Reservations and Exceptions .
Notwithstanding anything to the contrary set forth in Section 7
hereinabove, in addition to the Existing Land Use Regulations, only
the following Land Use Regulations adopted by City hereafter shall
apply to and govern the Development of the Developer' s Property
( "Reservation of Authority") ;
(a) Future Regulations. Future Land Use Regulations
which (i) are not in conflict with the Existing Land Use
Regulations, or (ii) if in conflict with the Existing Land Use
Regulations but the application of which to the Development of
the Developer' s Property has been consented to in writing by
Developer.
(b) State and Federal Laws and Regulations. Where
state or federal laws or regulations enacted after the
Effective Date prevent or preclude compliance with one or more
provisions of the Development Agreement, those provisions
shall be modified, through revision or suspension, to the
extent necessary to comply with such state or federal laws or
regulations.
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(c) Public Health and Safety/uniform Codes.
(i) Adoption Automatic Regarding Uniform Codes.
This Development Agreement shall not prevent the City
from adopting Future Land Use Regulations or amending
Existing Regulations which are uniform codes and are
based on recommendations of a multi-state professional
organization and become applicable throughout the City,
such as, but not limited to, the Uniform Building,
Electrical, Plumbing, Mechanical, or Fire Codes.
(ii) Adoption Regarding Public Health and
Safety/Uniform Codes. This Development Agreement shall
not prevent the City from adopting Future Land Use
Regulations respecting public health and safety to be
applicable throughout the City which directly result
from findings by the City that failure to adopt such
Future Land Use Regulations would result in a condition
injurious or detrimental to the public health and
safety and that such Future General Regulations are the
only reasonable means to correct or avoid such
injurious or detrimental condition.
(iii) Adoption Automatic Regarding Regional
Programs. This Development Agreement shall not prevent
the City from adopting Future Land Use Regulations or
amending Existing Regulations which are regional codes
and are based on recommendations of a county or
regional organization and become applicable throughout
the region, such as Coachella Valley Association of
Governments.
(d) Planned Development District Regulations.
Notwithstanding the provisions of Section 5.1, it is
recognized by the parties that the Existing Approvals,
including the PDD, are generalized and that the City's
procedures for providing development involve a more precise
and detailed review including subdivision map approval, final
planned development district approval, and building plan check
review and approval. At these levels of review, site specific
criteria are considered, along with factors such as building
heights, parking and loading requirements, front yard
setbacks, minimum lot frontages, open space requirements and
similar matters as specified in applicable portions of the
Palm Springs Municipal Code. For example, although the PDD
specifies the general location of the hotel and residential
subdivision, the City, through its Planning Commission, at the
time of the approval process for the final planned development
district must approve the exact location with due
consideration for topography, geology, view, compatibility
with surrounding property and other constraints . In addition,
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the City has not fully evaluated the need for or timing of
construction of public infrastructure but such requirements by
City shall be subject to the restrictions specified in Section
5 .3 . Therefore, the City retains the right to impose
appropriate conditions of approval in granting Future
Approvals, consistent with its Existing Land Use Regulations,
to further the purposes of this Development Agreement, so long
as said Future Approvals permit Developer to construct the
Project with the density and intensity of use provided in the
PDD and in accordance with this Development Agreement.
In the event of a conflict between the time requirements in
the PDD provisions of the Palm Springs Municipal Code and this
Agreement, the provisions of this Agreement shall control .
9 .2 Regulation by Other Public Agencies. It is
acknowledged by the parties that other public agencies not within
the control of the City possess authority to regulate aspects of
the Development of the Developer' s Property separately from or
jointly with the City and this Development Agreement does not limit
the authority of such other public agencies.
10 . ANNUAL REVIEW.
10 .1 Annual Monitoring Review. City and Developer shall
review the performance of this Agreement, and the Development of
the Project, at least once during each twelve (12) month period
from the Effective Date. The cost of the annual monitoring review
shall be borne by Developer. As part of such annual monitoring
review, within thirty (30) days after each anniversary of this
Agreement, Developer shall deliver to City all information
reasonably requested by City (i) regarding Developer' s performance
under this Agreement demonstrating that Developer has complied in
good faith with terms in this Agreement and (ii) as required by the
Existing Land Use Regulations.
If the City determines that Developer has substantially
complied with the terms and conditions of this Development
Agreement, the review shall be concluded. If the City finds and
determines that Developer has not substantially complied with the
terms and conditions of this Development Agreement for the period
under review, the City may declare a default by Developer in
accordance with Section 11 .1.
10 .2 Certificate of Compliance. If at the conclusion of a
periodic review the City finds that Developer is in substantial
compliance with this Development Agreement, the City shall, upon
request by Developer, issue an Estoppel Certificate to Developer in
the form shown on Exhibit 11D11 .
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10 .3 Failure to Conduct Annual Review. The failure of the
City to conduct the Annual Review shall not be a Developer Default.
ll. DEFAULT. REMEDIES AND TERMINATION.
11. 1 Rights of Non-Defaulting Party after Default . The
parties acknowledge that both Parties shall have hereunder all
legal and equitable remedies as provided by law following the
occurrence of a default (as defined in Section 11.2 below) or to
enforce any covenant or agreement herein. Before this Agreement
may be terminated or action may be taken to obtain judicial relief
the Party seeking relief ( "Nondefaulting Party" ) shall comply with
the notice and cure provisions of this Article 11.
11 .2 Notice and Opnprtunity to Cure. A Nondefaulting Party
in its discretion may elect to declare a default under this
Development Agreement in accordance with the procedures hereinafter
set forth for any failure or breach of the other party ("Defaulting
Party" ) to perform any material duty or obligation of said
Defaulting Party under the terms of this Development Agreement.
However, the Non-Defaulting Party must provide written notice to
the Defaulting Party setting forth the nature of the breach or
failure and the actions, if any, required by Defaulting Party to
cure such breach or failure. The Defaulting Party shall be deemed
in "default" under this Development Agreement, if said breach or
failure can be cured, but the Defaulting Party has failed to take
such actions and cure such default within thirty (30) days after
the date of such notice or ten (10) days for monetary defaults (or
such lesser time as may be specifically provided in this
Agreement) . However, if such non-monetary default cannot be cured
within such thirty (30) day period, and if and, as long as the
Defaulting Party does each of the following:
(a) Notifies the Non-Defaulting Party in writing with
a reasonable explanation as to the reasons the asserted
default is not curable within the thirty (30) day period;
(b) Notifies the Non-Defaulting Party of the
Defaulting Party' s proposed cause of action to cure the
default;
(c) Promptly commences to cure the default within the
thirty (30) day period;
(d) Makes periodic reports to the Non-Defaulting Party
as to the progress of the program of cure; and
(e) Diligently prosecutes such cure to completion;
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,513407
transfer requiring City' s approval shall constitute a further
waiver of the provision of this Section 12 . 1 (a) and
furthermore, City' s consent to a transfer shall not be deemed
to release Developer of liability for performance under this
Agreement unless such release is specific and in writing
executed by City.
The foregoing prohibition shall not apply to any of the
following:
(i) Any mortgage, deed of trust, sale/lease-back,
or other form of conveyance for financing and any
resulting foreclosure therefrom.
(ii) The granting of easements or dedications to
any appropriate governmental agency or utility or
permits to facilitate the development of the
Developer' s Property.
(iii) A sale or transfer resulting from or in
connection with a reorganization as contemplated by the
provisions of the Internal Revenue Code of 1986, as
amended or otherwise, in which the ownership interests
of a corporation are assigned directly or by operation
of law to a person or persons, firm or corporation
which acquires the control of the voting capital stock
of such corporation or all or substantially all of the
assets of such corporation.
(iv) A sale or transfer of less than the Trigger
Percentages between members of the same immediate
family, or transfers to a trust, testamentary or
otherwise, in which the beneficiaries consist solely of
immediate family members of the trustor or transfers to
a corporation or partnership in which the immediate
family members or shareholders of the transferor who
owns at least ten percent (10$) of the present equity
ownership and/or at least fifty percent (501s) of the
voting control of Developer_
(v) A change in the respective percentage
ownership interests exclusively of the general partners
comprising Developer (as of the Effective Date) , but
this shall not authorize the transfer of any interest
to any person or entity who is not a general partner
comprising Developer as of the Effective Date.
(b) Subject to Terms of Agreement. Following any such
assignment or transfer of any of the rights and interests of
Developer under this Development Agreement, in accordance with
Section 12 . 1 (a) above, the exercise, use and enjoyment shall
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then the Defaulting Party shall not be deemed in breach of this
Agreement. Notwithstanding the foregoing, the Defaulting Party
shall be deemed in default under this Agreement if said breach or
failure involves the payment of money but the Defaulting Party has
failed to completely cure said monetary default within ten (10)
days (or such lesser time as may be specifically provided in this
Agreement) after the date of such notice.
11 .3 Waiver of Breach. By recordation of a final map on all
or any portion of the Developer's Property, Developer shall be
deemed to have waived any Claim that any condition of approval of
the map is improper or that the map as approved constitutes a
breach of the provisions of this Development Agreement .
11.4 Monetary Default. In the event Developer fails to
perform any monetary obligation under this Agreement, Developer
shall pay interest thereon at the lesser of: (i) ten percent (10-0c)
per annum, or (ii) the maximum rate permitted by law, from and
after the due date of said monetary obligation until payment is
actually received by City.
11 .5 Rights and Duties Following Termination. Upon the
termination of this Development Agreement, no Party shall have any
further right or obligation hereunder except (i) with respect to
any obligations to have been performed prior to said termination or
with respect to any default in the performance of the provisions of
this Development Agreement which has occurred prior to said
termination, and (ii) with respect to the indemnity obligations set
forth herein.
12 . ASSIGNMENT.
12 . 1 Right to Assn.
(a) General. Neither Party shall assign (as
hereinafter defined) or transfer (as hereinafter defined) its
interests, rights or obligations under this Development
Agreement without the prior written consent of the other,
which consent shall not be unreasonably withheld or delayed.
The term "assignment" as used in this Development
Agreement shall include successors-in-interest to the City
that may be created by operation of law. Notwithstanding the
foregoing, City shall have the right to sell, assign or
transfer its interest in any real property dedicated or
transferred to City pursuant to the terms of this Development
Agreement or to another public agency.
As used in this section, the term "transfer" shall
include any hypothecation, mortgage, pledge, or encumbrance of
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• 51a10'7
r
this .Agreement or the Developer' s Property, or the
improvements thereon by Developer. A transfer shall also
include the transfer to any person or group of persons acting
in concert of more than ninety percent (9096) of the present
equity ownership and/or more than fifty percent (50s) of the
voting control of Developer (jointly and severally referred to
herein as the "Trigger Percentages") or any general partner of
Developer in the aggregate, taking all transfers into account
on a cumulative basis, except transfers of such ownership or
control interest between members of the same immediate family,
or transfers to a trust, testamentary or otherwise, in which
the beneficiaries are limited to members of the transferor' s
immediate family. A transfer of interests (on a cumulative
basis) in the equity ownership and/or voting control of
Developer in amounts less than Trigger Percentages shall not
constitute a transfer subject to the restrictions set forth
herein. In the event Developer or any general partner
comprising Developer or its successor is a corporation or
trust, such transfer shall refer to the transfer of the issued
and outstanding capital stock of Developer, or of beneficial
interests of such trust; in the event that Developer or any
general partner comprising Developer is a limited or general
partnership, such transfer shall refer to the transfer of more
than the Trigger Percentages in the limited or general
partnership interest; in the event that Developer or any
general partner is a joint venture, such transfer shall refer
to the transfer of more than the Trigger Percentages of such
joint venture partner, taking all transfers into account on a
cumulative basis.
Developer shall not transfer this Agreement or any of
Developer's rights hereunder, or any interest in the
Developer's Property or in the improvements thereon, directly
or indirectly, voluntarily or by operation of law, except as
provided below, without the prior written approval of City,
and if so purported to be transferred, the same shall be null
and void. In considering whether it will grant approval to
any transfer by Developer, which transfer requires City
approval, City shall consider factors such as (i) whether the
completion of the Project is delayed or jeopardized; (ii) the
financial strength and capability of the proposed transferee
to perform City's obligations hereunder; and (iii) the
proposed transferee' s experience and expertise in the
planning, financing, development, ownership, and operation of
similar projects.
In addition, no attempted assignment of any of
Developer' s obligations hereunder shall be effective unless
and until the successor party executes and delivers to City an
assumption agreement in a form approved by the City assuming
such obligations. No consent or approval by City of any
F521053\014086.009\2041266,6 11115M -1 9-
513407
continue to be subject to the terms of this Development
Agreement to the same extent as if the assignee or transferee
were Developer.
(c) Release of Developer. Upon the written consent of
the City to the complete assignment of this Agreement and the
express written assumption of the assigned obligations of
Developer under this Development Agreement by the assignee,
Developer shall be relieved of its legal*p1596KduPyrform the
assigned obligations under this Development Agreement, except
to the extent Developer is in default under the terms of this
Development Agreement prior to said transfer.
(d) No Approval of Terms_ of Loan by City.
Notwithstanding anything to the contrary set forth herein with
regards to the approval by City of hypothecation, encumbrances or
mortgages, City shall only have the right to approve the identity
of Developer's lender, which approval will not be unreasonably
withheld, taking into consideration such lender' s financial
strength, reputation, and other relevant factors. City shall not
have any right to approve any of the terms or conditions of
Developer' s financing arrangements with third party lenders.
12 .2 Sale to Residential Builder_ Nothing herein shall
prevent Developer from selling a portion of the Property for
residential development subject to any approved final subdivision
map to a residential builder for Construction of houses in
accordance with the terms of this Agreement provided that said
transferee must enter into appropriate agreements including with
City to assure that all development restrictions hereunder,
including with regards to timing, will be met.
12 .3 Termination of Agreement With Respect to Individual
Parcels Upon Sale to Public. Notwithstanding any provisions of
this Development Agreement to the contrary, this Development
Agreement shall terminate as to any lot which has been finally
subdivided, graded for the building pad, and improved with all
required public improvements but not containing a residential
structure and individually (and not in "bulk") sold to an owner-
user and thereupon and without the execution or recordation of any
further document or instrument such lot shall be released from and
no longer be subject to the provisions of this Development
Agreement; provided, however, that (i) a document in a form
reasonably satisfactory to the City is placed of- record requiring
the owner-user to commence and complete construction of residential
unit within a time certain, and (ii) CC&R' s are placed of record in
accordance with Section 12 .4 .
12 .4 Declaration of Covenants . Conditions and Restrictions _
Prior to the transfer of any portion of the Project to a third
party, Developer shall submit a proposed form of Declaration of
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513,107
Covenants, Conditions and Restrictions to be recorded against the
applicable Subdivision to City for its review and approval
( "CC&R' s") . It is anticipated that Said CC&R' s will contain, among
other things, protective covenants to protect and preserve the
integrity and value in the subdivision, including but not limited
to use restrictions, maintenance covenants, EIR mitigation
measures, restrictions under this Development Agreement and the PDD
which will continue to apply to the subdivision, covenants for
Construction and completion of the improvements within a time
certain, and a provision giving the City the right to enforce said
CC&R' s .
13 . INDEMNITY.
3.3 .1 Third-Party Litigation.
(a) Ton-liability of City. As set forth above, City
has determined that this Agreement is consistent with the
General Plan and that the General Plan meets all of the legal
requirements of state law. The parties acknowledge that:
(i) In the future there may be challenges to
legality, validity and adequacy of the General Plan;
(ii) If successful, such challenges could delay
or prevent the performance of this Agreement and the
development of the Property; and
(iii) The Existing Lawsuit challenges the
validity, legality and adequacy of the EIR and the PDD.
In addition to the other provisions of this Development
Agreement, including, without limitation, the provisions of
this Section 13, City shall have no liability under this
Development Agreement for any failure of City to perform under
this Development Agreement or the inability of Developer to
develop the Developer's Property as contemplated by the
Development Plan or this Development Agreement as the result
of a judicial determination that on the Effective Date, or at
any time thereafter, the General Plan, the Land Use
Regulations, this Development Agreement, or portions thereof,
are invalid or inadequate or not in compliance with law.
(b) Revision of Land Use Restrictions. If for any
reason the General Plan, Land Use Regulations, this
Development Agreement or any part thereof is hereafter
judicially determined as provided above to be not in
compliance with the State or Federal Constitutions, laws or
regulations and it such noncompliance can be cured by an
appropriate amendment thereof otherwise conforming to the
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513,10'7
provisions of this Agreement, then this Development Agreement
shall remain in full force and effect to the extent permitted
by law. The Development Plan and this Agreement shall be
amended, as necessary, in order to Comply with such judicial
decision.
(c) Participation in Litigation: Indemnit, The
Developer agrees to indemnify the City and Agency and its
respective elected boards, commissions, officers, agents and
employees and will hold and save them and each of them
harmless from any and all actions, suites, claims,
liabilities, losses, damages, penalties, obligations and
expenses (including but not limited to attorneys' fees and
costs) against the City and/or Agent for any such Claims or
Litigation (as defined in Section 1.9) and shall be
responsible for any judgment arising therefrom. City shall
provide Developer with notice of the pendency of such action
and request that Developer defend such action. If Developer
fails to do so, City may defend the action and Developer shall
pay the cost thereof.
j.3 .2 Hold Harmless; Developer' s Construction and Other
Activities. Developer hereby agrees to, and shall defend, save and
hold City and its elected and appointed boards, commissions,
officers, agents, and employees harmless from any and all claims,
costs (including attorneys' fees) and liability for any damages,
personal injury or death, which may arise, directly or indirectly,
from Developer' s or Developer' s agents, contractors,
subcontractors, agents, or employees' operations under this
Development Agreement, whether such operations be by Developer or
by any of Developer' s agents, contractors or subcontractors or by
any one or more persons directly or indirectly employed by or
acting as agent for Developer or any of Developer' s agents,
contractors or subcontractors. Nothing herein is intended to make
Developer liable for the acts of City' s officers, employees,
agents, contractors of subcontractors.
13 . 3 Acknowledgment of Existing Lawsuit. Developer is aware
that the Existing Lawsuit seeks to invalidate the EIR and the PDD
and if successful will have a material impact upon the Project, the
Existing Development Approvals, the Development Plan and this
Agreement. Developer has retained its own counsel to advise it
respecting the risks involved with the Existing Lawsuit. City
makes no representations or warranties to Developer with respect to
the Existing Lawsuit or to the effect on this Agreement or the
Development Plan.
13 .4 Survival of Indemnity Obligations. All indemnity
provisions set forth in this Development Agreement shall survive
termination, of this .Agreement for any reason other than City' s
Default.
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14 . EFFECT OF AGREEMENT ON TITLE.
14 . 1 Covenant Run with the Land. Subject to the provisions
of Sections 12 and 17:
(a) All of the provisions, agreements, rights, powers,
standards, terms, covenants and obligations contained in this
Development (agreement shall be binding upon the parties and
their respective heirs, successors (by merger, consolidation,
or otherwise) and assigns, devisees, administrators,
representatives, lessees, and all other persons acquiring any
rights or interests in the Developer's Property, or any
portion thereof, whether by operation of laws or in any manner
whatsoever and shall inure to the benefit of the parties and
their respective heirs, successors (by merger, consolidation
or otherwise) and assigns;
(b) All of the provisions of this Development
Agreement shall be enforceable as equitable servitudes and
constitute covenants running with the land pursuant to
applicable law; and
(c) Each covenant to do or refrain from doing some act
on the Developer' s Property hereunder (i) is for the benefit
of and is a burden upon every portion of the Developer' s
Property, (ii) runs with such lands, and (iii) is binding upon
each party and each successive owner during its ownership of
such properties or any portion thereof, and each person having
any interest therein derived in any manner through any owner
of such lands, or any portion thereof, and each other person
succeeding to an interest in such lands.
15 . CITY DFFICERS AND EMPLOYEES ; NON-DISCRIMINATION.
15.1 Non-liability of City officers and Employees. No
official, agent, contractor, or employee of the City shall be
personally liable to the Developer, or any successor in interest,
in the event of any default or breach by the City or for any amount
which may become due to the Developer or to its successor, or for
breach of any obligation of the terms of this Development
Agreement.
15 .2 Conflict of Interest. No officer or employee of the
City shall have any financial interest, direct or indirect, in this
Development Agreement nor shall any such officer or employee
participate in any decision relating to the Agreement which affects
the financial interest of any corporation, partnership or
association in which he is, directly or indirectly, interested, in
violation of any state statute or regulation.
r62105310140H4.005M041266.6 11/15193 -2 4-
• 513,107
15 . 3 Covenant Against Discrimination. Developer covenants
that, by and for itself, its heirs, executors, assigns, and all
persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of
persons on account of race, color, creed, religion, sex, marital
status, national origin, or ancestry in the performance of this
Development Agreement. Developer shall take affirmative action to
insure that employees are treated during employment without regard
to their race, color, creed religion, sex, marital status, national
origin or ancestry.
16. MORTGAGEE PROTECTION.
16 . 1 Definitions. As used in this section, the term
"mortgage" shall include any mortgage, whether a leasehold mortgage
or otherwise, deed of trust, or other security interest, or sale
and lease-back, or any other form of conveyance for financing_ The
term "holder" shall include the holder of any such mortgage, deed
of trust, or other security interest, or the lessor under a lease-
back, or the grantee under any other conveyance for financing.
16.2 No Encumbrances Except Mortgages to Finance the
Project. Notwithstanding the restrictions on transfer in Section
12, mortgages required for any reasonable method of financing of
the construction of the improvements are permitted but only for the
fallowing: (a) for the purpose of securing loans of funds used or
to be used for financing the acquisition of a separate lot (s) or
parcel (s) , for the construction of improvements thereon, in payment
of interest and other financing costs, and for any other
expenditures necessary and appropriate to develop the Project under
this Agreement, or for restructuring or refinancing any for same;
or (b) those certain obligations secured by that Deed of Trust
dated October 28, 1991 executed by Developer, Ferrero Properties,
a California general partnership, Mark A. Bragg and Margaret
Goertzen, collectively as trustor to Shoshone Service Corporation,
as trustee for the benefit of Ferrero Enterprises, Inc. , a
California Corporation as beneficiary recorded on October 28, 1991
as Instrument No. 372581 in the Official Records of Riverside
County, California and for any existing and/or future additional
amendments or extensions thereof ( "Existing Trust Deed") . The
Developer (or any entity permitted to acquire title under this
Agreement) shall notify the City in advance of any future mortgage
or any extensions or modifications thereof. Any lender which has
so notified the City shall not be bound by any amendment,
implementation, or modification to this Agreement without such
lender giving its prior written consent thereto. City acknowledges
the existence of the Existing Trust Deed and that said lender is
entitled to the protections set forth in this Article 16_ in any
event, the Developer shall promptly notify the City of any
mortgage, encumbrance, or lien that has been created or attached
M%0531014094-0039\2041266.6 11/15/93 -2 5-
513,10'7
thereto prior to completion of construction, whether by voluntary
act of the Developer or otherwise.
16 .3 Developer' s Breach Not Defeat Mortaacre Lien.
Developer' s breach of any of the covenants or restrictions
contained in this Agreement shall not defeat or render void the
lien of any mortgage made in good faith and for value but unless
otherwise provided herein, the terms, conditions, covenants,
restrictions, easements, and reservations of this Agreement shall
be binding and effective against the holder of any such mortgage
whose interest is acquired by foreclosure, trustee's sale or other-
wise_
16 .4 Holder Not obligated to Construct or Complete
Imnrpvements . The holder of any mortgage shall in no way be
obligated by the provisions of this Agreement to construct or
complete the improvements or to guarantee such construction or
completion. Nothing in this Agreement shall be deemed or construed
to permit or authorize any such holder to devote the Project or any
portion thereof to any uses, or to construct any improvements
thereon, other than those uses or improvements provided for or
authorized by this Agreement.
16.5 Notice of Default to Mortgagee, Deed of Trust or Other
Security Interest Holders . Whenever City shall deliver any notice
or demand to Developer with respect to any breach or default by
Developer hereunder, City shall at the same time deliver a copy of
such notice or demand to each holder of record of any mortgage who
has previously made a written request to City therefor, or to the
representative of such lender as may be identified in such a writ-
ten request by the lender. No notice of default shall be effective
as to the holder unless such notice is given.
16 . 6 Right to Cure. Each holder (insofar as the rights of
City are concerned) shall have the right, at its option, within
ninety (90) days after the receipt of the notice, and one hundred
twenty (120) days after Developer's cure rights have expired,
whichever is later, to:
(a) Obtain possession, if necessary, and to commence
and diligently pursue said cure until the same is completed,
and
(b) Add the cost of said cure to the security interest
debt and the lien or obligation on its security interest;
provided that in the case of a default which cannot with diligence
be remedied or cured within such cure periods referenced above in
this Section 16 . 6, such holder shall have additional time as
reasonably necessary to remedy or cure such default.
F52\053\014084.0059=41266.6 11/15/93 -2 6-
In the event there is more than one such holder, the
right to cure or remedy a breach or default of Developer under this
Section shall be exercised by the holder first in priority or as
the holders may otherwise agree among themselves, but there shall
be only one exercise of such right to cure and remedy a breach or
default of Developer under this Section.
No holder shall undertake or continue the construction
or completion of the improvements (beyond the extent necessary to
preserve or protect the improvements or construction already made)
without first having expressly assumed Developer' s obligations to
City by written agreement satisfactory to City with respect to the
Project or any portion thereof in which the holder has an interest.
The holder must agree to complete, in the manner required by this
Agreement, the improvements to which the lien or title of such
holder relates, and submit evidence satisfactory to the City that
it has the qualifications and financial responsibility necessary to
perform such obligations.
16 .7 City' s Rights upon Failure of Holder to Complete
Imnrovements . In any, case where one hundred eighty (180) days
after default by Developer in completion ❑f construction of im-
provements under this Agreement, the holder of any mortgage
creating a lien or encumbrance upon the Project or portion thereof
has not exercised the option to construct afforded in this Section
or if it has exercised such option and has not proceeded diligently
with construction, City may, after ninety (90) days' notice to such
holder and if such holder has not exercised such option to
construct within said ninety (90) day period, purchase the
mortgage, upon payment to the holder of an amount equal to the sum
of the following:
(a) The unpaid mortgage, debt plus any accrued and
unpaid interest (less all appropriate credits, including those
resulting from collection and application of rentals and other
income received during foreclosure proceedings, if any) ;
(b) All expenses, incurred by the holder with respect
to foreclosure, if any;
(c) The net expenses (exclusive of general overhead) ,
incurred by the holder as a direct result of the ownership or
management of the applicable portion of the Project, such as
insurance premiums or real estate taxes, if any;
(d) The costs of any improvements made by such holder,
if any; and
(e) An amount equivalent to the interest that would
have accrued on the aggregate of such amounts had all such
F32\05 310 140 3 4 0 0 5M041266.6 11115193 -Z 7-
513,107
amounts become part of the mortgage debt and such debt had
continued in existence to the date of payment by the City.
In the event that the holder does not exercise its
option to construct afforded in this Section, and City elects not
to purchase the mortgage of holder, upon written request by the
holder to City, City agrees to use reasonable efforts to assist the
holder selling the holder' s interest to a qualified and responsible
party or parties (as determined by City) , who shall assume the
obligations of making or completing the improvements required to be
constructed by Developer, or such other improvements in their stead
as shall be satisfactory to City. The proceeds of such a sale
shall be applied first to the holder of those items specified in
subparagraphs (a) through (e) hereinabove, and any balance
remaining thereafter shall be applied as follows:
(i) First, to reimburse City, on its own behalf
and on behalf of the City, for all Costs and expenses actually
and reasonably incurred by City, including but not limited to
payroll expenses, management expenses, legal expenses, and
others.
(ii) Second, to reimburse City, on its own behalf
and on behalf of the City, for all payments made by City to
discharge any other encumbrances or liens on the applicable
portion of the Project or to discharge or prevent from
attaching or being made any subsequent encumbrances or liens
due to obligations, defaults, or acts of Developer, its
successors or transferees .
(iii) Third, to reimburse City, on its own behalf
and on behalf of the City, for all costs and expenses actually
and reasonably incurred by City, in connection with its
efforts assisting the holder in selling the holder' s interest
in accordance with this Section.
(iv) Fourth, any balance remaining thereafter
shall be paid to Developer.
16 . 8 Right of City to Cure Mortgage. Deed of Trust or Other
Security Interest Default. In the event of a default or breach by
Developer (or entity permitted to acquire title under this Section)
prior to completion for the Project or the applicable portion
thereof, and the holder of any such mortgage has not exercised its
option to complete the development, City may cure the default prior
to completion of any foreclosure. In such event, City shall be
entitled to reimbursement from Developer or other entity of all
costs and expenses incurred by City in curing the default, to the
extent permitted by law, as if such holder initiated such claim for
reimbursement, including legal costs and attorneys' fees, which
right of reimbursement shall be secured by a lien upon the
t521053101408.4.005912041266.6 11115/93 -2 8-
513.107
applicable portion of the Project to the extent of such costs and
disbursements. Any such lien shall be subject to:
(i) Any mortgage for financing as described in
Section 16.2 of this Agreement; and
(ii) Any rights or interests provided in this
Agreement for the protection of the holders of such mortgages
for financing;
provided that nothing herein shall be deemed to impose upon City
any affirmative obligations (by the payment of money, construction
or otherwise) with respect to the Project in the event of its
enforcement of its lien.
16 .9 Right of the City to Satisfy Other Liens on the
Property After Conveyance of Title. After the conveyance of title
and prior to completion of construction and development, and after
the Developer has had a reasonable time to challenge, cure, or
satisfy any liens or encumbrances on the Project the City shall
have the right to satisfy any such liens or encumbrances; provided,
however, that nothing in this Agreement shall require the Developer
to pay or make provision for the payment of any tax, assessment,
lien or charge so long as the Developer in good faith shall contest
the validity or amount thereof, and so long as such delay in
payment shall not subject the Project or any portion thereof to
forfeiture or sale.
17. GENERAL.
17.1 Estoppel Certificates. Either Party (or a lender under
Section 16) may at any time deliver written Notice to the other
Party requesting an estoppel certificate (the "Estoppel
Certificate") stating:
(a) The Agreement is in full force and effect and is
a binding obligation of the Parties; and
(b) The Agreement has not been amended or modified
either orally or in writing or, if so amended, identifying the
amendments.
A Party receiving a request for an Estoppel Certificate
shall provide a signed certificate to the requesting Party within
thirty (30) days after receipt of the request. The Planning
Director may sign Estoppel Certificates on behalf of the City. An
Estoppel Certificate may he relied on by assignees and Mortgagees .
The Estoppel Certificate shall be substantially in the same form as
Exhibit °D" .
P521053\014084-0059\2041366.6 11/11/95 -2 9-
513,107
17.2 Force Mal eure. The time within which Developer or the
City shall be required to perform any act under this Development
Agreement shall be extended by a period of time equal to the number
of days during which performance of such act is delayed due to war,
insurrection, strikes, lock-outs, riots, floods, earthquakes,
fires, casualties, natural disasters, Acts of God, acts of the
public enemy, epidemics, quarantine restrictions, freight
embargoes, governmental restrictions on priority, initiative or
referendum, moratoria, processing with governmental agencies other
than City or Agency, unusually severe weather, or any other similar
causes beyond the control or without the fault of the Party
claiming an extension of time to perform. An extension of time for
any such cause shall be for the period of the enforced delay and
shall commence to run from the time of the commencement of the
cause, if written notice by the party claiming such extension is
sent to the other party within thirty (30) days of knowledge of the
commencement of the cause_ Any act or failure to act on the part
of a Party shall not excuse performance by that Party.
17. 3 Construction of Development Agreement. The language of
this Development Agreement shall be construed as a whole and given
its fair meaning. The captions of the sections and subsections are
for convenience only and shall not influence construction. This
Development Agreement shall be governed by the laws of the State of
California. This Development Agreement shall not, be deemed to
constitute the surrender or abrogation of the City' s governmental
powers over the Developer's Property.
17.4 Severabilitv_ If any provision of this Development
Agreement is adjudged invalid, void or unenforceable, that
provision shall not affect, impair, or invalidate any other
provision, unless such judgment affects a material part of this
Development Agreement in which case the parties shall comply with
the procedures set forth in Section 13 .1 (b) _
17 . 5 Attorney' s Fees. If either Party to this Agreement is
required to initiate or defend, the prevailing party in such action
or proceeding, in addition to any other relief which may be
granted, whether legal or equitable, shall be entitled to
reasonable attorney' s fees . Attorney's fees shall include
attorney' s fees on any appeal, and in addition a Party entitled to
attorney' s fees shall be entitled to all other reasonable costs for
investigating such action, taking depositions and discovery and all
other necessary costs the court allows which are incurred in such
litigation. All such fees shall be deemed to have accrued on
commence of such action and shall be enforceable whether or not
such action is prosecuted.
17. 6 Reimbursement of Costs . Developer shall reimburse City
for the legal cost of preparing the Agreement, as well as such
F52\0.5310140&4-0059\2041266.6 11/15/93 -3 0-
I
• 513,107
i
legal costs incurred by the City with respect to the Existing
Lawsuit .
17. 7 Joint and Several Obligations . All obligations and
liabilities of Developer hereunder shall be joint and several among
the obligees .
17. 8 Time of Essence. Time is of the essence in:
(a) The performance of the provisions of this
Development Agreement as to which time is an element; and
(b) The resolution of any dispute which may arise
concerning the obligations of Developer and City as set forth
in this Development Agreement.
17.9 Naiver. Failure by a party to insist upon the strict
performance of any of the provisions of this Development Agreement
by the other party, or the failure by a party to exercise its
rights upon the default of the other party, shall not constitute a
waiver of such party' s right to insist and demand strict compliance
by the other party with the terms of this Development Agreement
thereafter.
17. 10 No Third Party Beneficiaries_ The only parties to this
Development Agreement are Developer and City. There are no third
party beneficiaries and this Development Agreement is not intended,
and shall not be construed to benefit or be enforceable by any
other person whatsoever.
17.11 Mutual Covenants. The covenants contained herein are
mutual covenants and also constitute conditions to the concurrent
or subsequent performance by the Party benefitted thereby of the
covenants to be performed hereunder by such benefitted Party.
17.12 Counterparts. This Development Agreement may be
executed by the parties in counterparts which counterparts shall be
construed together and have the same effect as if all of the
parties had executed the same instrument.
17. 13 Authority to Execute. The persons executing this
Development Agreement on behalf of the parties hereto warrant that
(i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Development Agreement on
behalf of said party, (iii) by so executing this Development
Agreement, such party is formally bound to the provisions of this
Development Agreement, (iv) the entering into of this Development
Agreement does not violate any provision of any other Agreement to
which said party is bound and (v) there is no litigation or legal
proceeding (excluding the Existing Lawsuit) which would prevent the
parties from entering into this Agreement.
H82\053\0140Ev-00I9�.041266.6 11/15193 -3 1-
313,10'7
17 . 14 Notice.
(a) To Developer. Any notice required or permitted to
be given by the City to the Developer under this Development
Agreement shall be in writing and delivered personally to
Developer or mailed with postage fully prepaid, registered or
certified mail, return receipt requested, addressed as
follows:
Shadowrock Ventures
4890 Lincolnshire Avenue
Buena Park, CA 90621
Attention: Mark Brag
Anthony Ferrero
With a copy to:
Shadowrock Ventures
44 Sea Island Drive
Newport Beach, CA 92660
With a copy to:
Shadowrock Ventures
14051 Acacia Drive
Tustin, CA 92680
or such other address as Developer may designate in
writing to the City.
(b) To the City_ Any notice required or permitted to
be given by the Developer to the City under this Development
Agreement shall be in writing and delivered personally to the
City Clerk or mailed with postage fully prepaid, registered or
certified mail, return receipt requested, addressed as
follows :
City of Palm Springs
3200 Tahquitz Canyon Way
Palm Springs, California 92262
Attention: Planning Director
With a copy to:
City of Palm Springs
3200 Tahquitz Canyon Way
Palm Springs, California 92262
Attention: City Attorney
or such other address as the City may designate in writing to
Developer.
HSZl0531014084005912041266.6 11115193 -32-
S 513,407
Notices provided pursuant to this section shall be deemed
received at the date of delivery as shown on the affidavit of
personal service or the Postal Service receipt .
17. 15 Further Actions and Instruments . Each of the Parties
shall cooperate with and provide reasonable assistance to the other
to the extent necessary to implement this Development Agreement.
Upon the request of either Party at any time, the other Party shall
promptly execute, with acknowledgement or affidavit if reasonably
required, and file or record such required instruments and writings
and take any actions as may be reasonably necessary to implement
this Development Agreement or to evidence or consummate the
transactions contemplated by this Development Agreement.
17 . 16 Recitals. The recitals in this Development Agreement
constitute part of this Development Agreement and each Party shall
be entitled to rely on the truth and accuracy of each recital as an
inducement to enter into this Development Agreement.
17. 17 Recording. The City Clerk shall cause a copy of this
Development Agreement to be executed by the City and recorded in
the Official Records of Riverside County no later than ten (1O)
days after the Effective Date. The recordation of this Development
Agreement is deemed a ministerial act and the .failure of the City
to record the Development Agreement as required by this Section and
the Development Agreement Statute does not make the Development
Agreement void or ineffective.
17. IS Relationship of Parties. It is specifically understood
and agreed by and between the Parties that the Project is a private
development, that neither Party is acting as the agent of the other
in any respect hereunder, and that such Party is an independent
contracting entity with respect to the terms, covenants, and
conditions contained in this Development Agreement. The only
relationship between the City and Developer is that of a government
entity regulating the development of private property and the owner
of such private property.
17. 19 Entire Agreement, This Development Agreement
constitutes the entire agreement between the Parties with respect
to the subject matter of this Development Agreement, and this
Development Agreement supersedes all previous negotiations,
discussions, and agreements between the Parties- No parol evidence
F52\053\014084.00.59\2041266,6 11/15/93
513.107
of any prior or other agreement shall be permitted to contradict or
vary the terms of this Development Agreement.
IN WITNESS WHEREOF, the City and Developer have executed this
Development Agreement on the date first above written.
ATTEST: CITY OF PALM SPRINGS
By: ���G�✓
City Clerk Mayor
SHADOWROCK VENTURES,
a California eneral Partnership
By:
Mark Bragg
General Part er
FERRERO PROPERTIES, LTD. ,
a California Limited Partnership,
General Partner
By: FERRERO ENTERPRISES, INC. ,
a California Corporation
General Partner
APPIZCVED ENV TMQ CITY UMIQI By Anthony F zo
BY W.Nam. I Ilo.� r�/-/7��3 President
552\053\014094-0059\2041266,6 11/15/93 -3 4-
%;ALI1ruAN1A ALL J. vSE ACKNOWLEDGMENT No,5193
State of OPTIONAL SECTION
` CAPACITY CLAIMED BY SIGNER
County of i� Though statute does not require the Notary to
it in the data below, doing so may prove
Y Invaluable to persons relying on the document.
On before me,
/�/� �_ �jCjvQ/�� j'/may i,�yj �1 ,(/ ❑ INDIVIDUAL
DATE NAME,TPILE CIF OFFICER 1 E G "JANE OE,NOTARY PYSUC
❑CORPORATE OFFICER(S)
perso y appeare d -
NAME(S)OF SIGNER( TITLE(s)
personally known t0 me- PARTNER(S) ❑ LIMITED
to be the persore.DNhose nametffIsIgM GENERAL
subscribed to the within instrument and a0- ❑ATTORNEY-IN-FACT
knowledged to me that he/sh�ef�j[�.�cecuted ❑TRUSTEE(S)
the same in his/her/ efr uthorized ❑GUARDIAN/CONSERVATOR
yl °' r f• oPPICIAL uoTAg ;-,, ca acit a and that y his/her heir !!!
ELAINE L NIA SC , .r, p OTHER:
S(�
NotaryPudllc . signatureMon the instrument the person
G;I,felr
RIVERSIDE C(.)l.w.r or the entity upon behalf of which the
MycommEaalre: -e ,,,. q5 persofgPacted, executed the instrument.
"T SIGNER IS REPRESENTING:
WITNESS my hand and official seal. NAME OFPERSON(S)ORENTITY(IES)
0
SIGNkfU59 OfNOTARY
OPTIONAL SECTION
THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT
THE DOCUMENT DESCRIBED AT RIGHT'
NUMBER OF PAGES DATE OF DOCUMENT
Though the data requested here Is not required by law,
it could prevent fraudulent reattachment of this form. SIGNER(S)OTHER THAN NAMED ABOVE
(01992 NATIONAL NOTARY ASSOCIATION•6936 Rernmet Ave.,P,O.Box 7184•Canoga Park,CA 91309-7184
STATE OF CALIFORNIA )
) ss.
COUNTY OF Riverside )
On November 22 , 1993 before me, LO-1etta Clemente, Notary Public
personally appeared _ Mark Braaa
personally known to me (or proved to me On the basis of satisfac-
tory 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.
Witness my hand and official seal .
a Public
(SEAL)
LORETTA H- CLI-=
_
Sj COMM.#994027
� or Notaryry PubIIC-California q
RIG COUNTY O
My Co ;Ioq Ex'p l'"s
MAYY 2, 1997�x 4pQ
P521053\0140M-0059\2041266.6 11/15/93 - 5-
0 0
S 1�3'1017
STATE OF CALIFORNIA )
ss .
COUNTY OF
On before me,
personally appeared
personally known to me (or proved to me on the basis of satisfac-
tory 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.
Witness my hand and official seal .
bdF6�a�9w:d�idlYLt?r�,�y�'7:d7�Y /
'0�'F1Ih L�"FRL
ul.tA C. BAYLTSS `
NOTgFlr PupL1C-C�LIF[1pVIA
5'm[ ORANGE COUi1TY O y Public
Mil'OMM. EXP, APR. 15 19gj
ME
F52%05K0140W0059N2041266.6 11115/93 -3 6-
S13407
EXHIBIT "A"
MAP AND LEGAL DESCRIPTION OF DEVELOPER'S PROPERTY
[To be provided by Developer]
EXHIBIT "A"
TO DEVELOPMENT AGREEMENT
F52W31G14084-0069\2G41266.6 11/15193
513,107
ASL Consulting Engineers
EXHIBIT"A"
MAP AND LEGAL DESCRIPTION OF DEVELOPERS'S PROPERTY
(Page 1 of 2)
PARCEL 1:
Section 5, Township 4 South, Range 4 East, San Bernardino Meridian, in the County of Riverside, State
of California, according to the official plat of said land filed in the District Land Office;
EXCEPTING THEREFROM
(1) that portion conveyed to Riverside County Flood Control and Water Conservation District, by
Deed recorded July 12, 1971, as Instrument No. 75722; and,
(2) that portion dedicated to the City of Palm Springs' Parks, Open Space &Trails Foundation
lying northerly and northwesterly of the following described line and as shown on the
attached Figure 1:
Beginning at the southwest corner of said Section 5_
Thence North 0.2'38" West 1450.00 feet along the west line of said Section 5 to the True
Point of Beginning;
Thence South 30.00' East 500.00 feet;
Thence South 60.00' East 1099.00 feet;
Thence North 90.00' East 149.00 feet;
Thence North 00.00' East 551.00 feet;
Thence North 15.00' East 1000-00 feet;
Thence North 40.00' East 800.00 feet;
Thence North 90.00' East 400.00 feet;
Thence South 45.00' East 800.00 feet;
Thence North 40.00' East 2100.00 feet;
Thence North 90.00' East 830.00 feet; more or less, to the east line of said Section 5,
containing 365 acres, more or less.
arm.
yti FL Cl:, ->
4�y 1pp�' •'.
t
9�dr
)13,10'7
ASL Consulting Engineers
EXHIBIT "A"
MAP AND LEGAL DESCRIPTION OF DEVELOPER'S PROPERTY
(Page 2 of 2)
PARCEL 2:
The North Half of Section 8, Township 4 South, Range 4 East, San Bernardino Base and Meridian;
EXCEPTING THEREFROM
(1) that portion lying within Parcels 6070-11A, 6070-11C, and 6070-11D, as shown on record of
survey recorded October 8, 1969, in Book 54, Pages 52-55, inclusive, of records of survey,
Records of Riverside County, California; and,
(2) that portion dedicated to the City of Palm Springs' Parks, Open Space & Trails Foundation-
lying southerly of the following described line and as shown on the attached Figure 1:
Beginning at the northeast corner of said Section 8:
Thence South 89.25'00' West 1300.00 feet along the north line of said section;
Thence South 55.00' West 2000,00 feet,-
Thence South 45.00' West 750,00 feet;
Thence South 55.00' West 1050.00 feet;
Thence North 90.00' West 250-00 feet;
Thence North 45.00' West 1050-00 feet; more or less, to the west line of said Section 8,
containing 200 acres, more or less-
c9QRDFEa"SIC;G�..
2i * ;
cNIL rye
1217M OF CAIt"A
513,10'7
LEGAL DESCRIPTION
All that portion of the north half of Section 8,Tonnsnip 4 South, Flange 4 East. San Bernardino Meridian.
in the County of Riverside. State of Califamia. lying southerly of the fallowing desr_r:ped line and as
shown an the attached Exhibit C:
Beginning at the ncrtheasr comer of said Section 8:
Thence South 89.25'00' West 1300.00 feet along the north line of said section:
Thence South 55.00' West 2000.00 feet:
Thence South 45.00' West 750.00 feet:
Thence South 55.00' West 1050.00 feet
Thence North 90.00' West MIX0 feet:
Thence Nona 45.00' West 1050.00 feet: more or less to the west line of said Section S. containing 200
acres. more or less.
r�
n 513407
LEGAL DESCRIPTION
All that Portion of Section 5. Township a South. Pange 4 East, San Semaraino Meridian. in the County
of Riverside. State of California.tying nonneny an0 northwesterly of the following described tine and as
shown on the attached Exhibit C:
Beginning at the southwest comer of said Section 5:
Thence North 0.2'38" 'Nest 145100 feet along the west line of said Section 5 to the True Point of
Beginning;
Thence South 30.00' East. 500.00 feet:
Thence South 60,00' East 1099.00 feet:
Thence North 90.00' East 149.00 feet:
Thence North 00.00' East 551.00 feec
Thence North 15.00' East 7000.00 feet:
Thence North 40.00' East 800.00 feet:
Thence North 80.00' East 400.00 feet:
Thence South 45.00' East 800.00 feet:
Thence North 40.00' East 2100.00 feet:
Thence North 90.00' East 830.00 feet,. more or less to the east line of said Seci1on 5, containing 365
acres. more or less.
4y rty7FE557r��."ti
d "
I�
N.T.S. SEC. 5 N 90' 00' E
830.00,
3 4.
0
N 90' 00'E
400.00' ao 0
o
N 40' 00' E
a 800.00•
z
0 o N 45' 00' W
T.P.O.B. S 30- 00' o a 800.00'
500.00' 00
0
a T�9y Oa, N 00' 00' E
gyp. �e 551.00'
N 90" WE N.E. COR
N 89' 13' E 149.00, N ST 25• E SEC_ 8
S.W. CCR. 1300.00,
SEC. 5
0
P.C.B.
ti
N45' 00' E
750.00'
N 45' 00' W
1050M N 1/2 SEC. 8
N 55' 00' E
1050-00'
N 90' 00' E
_ 250.00'
�,•-r^.y,_ Fes,.:- :
FIGURE 1
513,107
EXH187T "B"
PHASING PLAN
Phase I Golf Course, Clubhouse, Driving Range, Main Entry
Phase II Estate lots or other single family residential
development
Phase III Single family detached lots (Southeast area)
Phase IV* Resort and Spa/Fitness/Tennis Facility
Phase V Single family detached lots (Northwest area)
*Phase IV is the portion of the Project subject to revisions
pursuant to Section 5 under the Project Alternative 1 and Project
Alternative 2 which were approved as part of the PDD.
EXHIBIT "H"
TO DEVELOPMENT AGREEMENT
FS2105310140E4005912041266.6 11/15193
. 513407
• EXHIBIT "C"
EXISTING DEVELOPMENT APPROVALS
1 . General Plan
2 . Planned Development District No. 224
3 . Palm Springs Municipal Code, ,Zoning Code and other City
Codes .
4 . Conditions of Approval
5 . Mitigation Monitoring Program
6 . EIR
EXHIBIT "C"
TO DEVELOPMENT AGREEMENT
F5210531014094=005912041266.6 1111S193
d
913-107
EXHIBIT "D"
ESTOPPEL CERTIFICATE
Date Requested:
Date of Certificate:
On 1993 , the City of Palm Springs
approved the "Development Agreement between the Shadowrock
Ventures, a California General Partnership and the City of Palm
Springs" (the "Development Agreement") .
This Estoppel Certificate certifies that, as of the "Date of
Certificate" set forth above:
[CHECK WHERE APPLICABLE]
[ ] I. The Development Agreement remains binding and effective:
[ ] 2 . The Development has not been amended;
[ ] 3 . The Development Agreement has been amended in the
following aspects:
[ ] 4 . To the best of our knowledge, neither Developer nor any
of its successors is in default under the Development
Agreement;
[ ] 5 . The following defaults exist under the Development
Agreement:
EXHIBIT "D"
TO DEVELOPMENT AGREEMENT
H5210531014094-0059Y2041266.6 11/15/93
5 3.10'7
This Estoppel Certificate may be relied upon by an transferee
or mortgagee of any interest in the property which is the subject
of the Development Agreement.
CITY OF PALM SPRINGS
By:
Planning Director
-2-
F521053\0140U-005942041266,6 11/L5193
513,107
EXHIBIT "E"
SUMMARY OF FEES , TAXES AND ASSESSMENTS
EXISTING AS OF THE EFFECTIVE DATE
A document compiling the fees, taxes and assessments
applicable to the development of the real property which exist as
of the Effective Date is on file in the City' s Office of Planning
and Zoning ( "Fee Summary" ) . Other fees for services not applicable
to real estate development may be included within said compilation
but shall not be deemed subject to the limitations set forth in
this Agreement . Developer acknowledges that the Fee Summary is
based on a best efforts attempt by the City to compile all such
applicable fees, taxes and assessments that are in effect as of the
Effective Date. If any such items have been omitted from the Fee
Summary, City shall notify Developer and present reasonable
evidence that such excluded tax„ fee or assessment was, in fact, in
effect as of the Effective ]late and subsequently such matter shall
be included within the Fee Summary and Developer shall be
responsible for same as provided in the Agreement.
EX141BIT "E"
PS2105310140M0059U041266.6 11/15/93 TO DEVELOPMENT AGREEMENT