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I City Council Staff Report
DATE: SEPTEMBER 7, 2005 PUBLIC HEARING
SUBJECT: PUBLIC HEARING ON CASE 5.0975 (RELATED CASES TTM
31905, VARIANCE 6.473), AN APPLICATION BY PALM SPRINGS
MARQUIS, LLC, FOR A DEVELOPMENT AGREEMENT, WHICH
INCLUDES A FINANCIAL IMPACT MITIGATION FEE, AN
AGREEMENT BY THE APPLICANT TO PAY CERTAIN
INFRASTRUCTURE, LANDSCAPE, LIGHTING AND
MAINTENANCE EXPENSES, AND MEMORIALIZING PROPERTY
EXPECTATIONS OF THE CITY AND DEVELOPER, LOCATED
AT 190 SOUTH CALLE ENCILIA
FROM: David H. Ready, City Manager
BY: Community & Economic Development Department
SUMMARY:
Case No. 5.0975, (related Cases TTM 31905, Variance No. 6.473), is an
application by Palm Springs Marquis LLC for a Development Agreement, which
includes a Financial Impact Mitigation Fee (FIM Fee) obligation, an agreement by
the applicant to pay certain infrastructure improvements, landscaping, lighting
and other public maintenance expenses, and memorializing property
expectations of the City and the Developer, located at 190 South Calle Encilia.
The term of the agreement is 15 years.
The basic terms of the Development Agreement is that the Developer agrees to
impose the City's FIM Fee of $28.50 per interval per year on each of the units
(paid to the City to compensate for certain costs imposed on the City by the
Project); the City agrees to undertake certain improvements and services that will
benefit the Project. The FIM Fee shall be paid to the City so that these units
contribute to the payment for City services as would hotel units and would pay for
project costs including infrastructure costs, payment for maintenance of public
landscaping, lighting and improvements, access to trails on city property and to
pay for other service enhancements and to pay for certain other service
enhancements and other obligations undertaken by Developer.
D:\Marquis Villas DA Staff Report.doc Item No. 1 . B o
What the Developer receives in return for imposing the FIM fee from the project
is assurance that the City shall work with the Community Redevelopment Agency
to direct certain Agency public improvements in Section 14 to continue the on-
street parking design on Arenas Road installed in 2003 to the area in proximity of
the project. The City approves a Development Agreement, rather than the
Developer entering an Owner Participation Agreement with the Agency, because
the FIM fee is paid to the City and not the Agency.
Pursuant to Section 15332 of the California Environmental Quality Act (CEQA)
Guidelines, a Notice of Exemption was previously filed with the Riverside County
Clerk on June 4, 2004, in conjunction with the approval of the project. The
Planning Commission approved the Development Agreement on April 27, 2005.
RECOMMENDATION
CITY COUNCIL RECOMMENDATION:
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1. Adopt Resolution No. "A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING A
DEVELOPMENT AGREEMENT WITH PALM SPRINGS MARQUIS, LLC,
WHICH INCLUDES A FINANCIAL IMPACT MITIGATION FEE, AN
AGREEMENT BY THE APPLICANT TO PAY CERTAIN
INFRASTRUCTURE, LANDSCAPE, LIGHTING AND MAINTENANCE
EXPENSES, AND MEMORIALIZING PROPERTY EXPECTATIONS OF
THE CITY AND DEVELOPER
FISCAL IMPACT:
At build out, the development will pay nearly $120,000 per year in FIM fees. Part
of the Development Agreement requires the City to urge the Community
Redevelopment Agency to undertake certain public improvements in the vicinity
of the project, including extending its street parking improvements along Arenas
Road east of Calle Encilia, at a cost of approximately $300,000.
John S. aymo(n , Director of David H. Ready, pfty Manager
Co _rm"nity & Economic Development
Attachments:
1. Resolution
2. Vicinity Map
3. Development Agreement
D:\Marquis Villas DA Staff Report.doc
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' RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF PALM SPRINGS, CALIFORNIA,APPROVING
A DEVELOPMENT AGREEMENT WITH PALM
SPRINGS MARQUIS, LLC, WHICH INCLUDES A
FINANCIAL IMPACT MITIGATION FEE, AN
AGREEMENT BY THE APPLICANT TO PAY CERTAIN
INFRASTRUCTURE, LANDSCAPE, LIGHTING AND
MAINTENANCE EXPENSES, AND MEMORIALIZING
PROPERTY EXPECTATIONS OF THE CITY AND
DEVELOPER
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WHEREAS,the CITY OF PALM SPRINGS (the"City"), a municipal corporation, and
PALM SPRINGS MARQUIS, LLC, a California limited liability corporation (the
"Developer") may enter a Development Agreement pursuant to Article 2.5 of
Chapter 4 of Division 1 of Title 7, Sections 65864 through 65869.5 of the California
I Government Code and Section 94.08 of the Palm Springs Municipal Code; and
WHEREAS, on April 14, 2004 the City approved the following land use approvals:
(1) Conditional Use Permit No. 5.0975, (2) Tentative Tract Map 31905 for the
development of an 86 unit timeshare project located at 190 South Calle Encilia, and
(3) Variance No. 6.473; and,
WHEREAS, the Planning Commission at the same meeting found the project to be
categorically exempt from CEQA per Section 15332 (In-Fill Development); and
WHEREAS, the grant of development rights hereunder is consideration for
Developer's good faith efforts to complete the development of a resort timeshare
project composed of 86 ownership units, which will benefit the City by creating new
jobs in the community and will aid in the revitalization of the tourist trade; Developer
shall pay all City development fees, including Quimby park fees, which will assure
that all costs of the Project will be mitigated; and moreover, to the extent timeshare
units are being developed in lieu of hotel units and to pay for certain infrastructure
improvements and to pay for landscaping, lighting and other public maintenance
expenses, Developer agrees that a Financial Impact Mitigation Fee("FIM Fee")shall
be paid to the City; and
WHEREAS,the term "FIM Fee"shall mean the fee which shall be paid on timeshare
intervals so that these units contribute to the payment for City services as would
hotel units and will pay for Project costs including infrastructure costs, payment for
maintenance of public landscaping, lighting and improvements, access to trails on
City property, and to pay for other service enhancements and obligations of the
Developer;
WHEREAS, on April 27, 2005, the Planning Commission of the City (the "Planning
Commission"), after giving notice pursuant to Government Code Sections 65090,
65091, 65092, 65094, and 65864, held a public hearing on Developer's application
for this Agreement, and has found on the basis of substantial evidence that the
Agreement is consistent with all applicable plans, rules, regulations and official
policies of the City; and
WHEREAS, on September 7, 2005, the City Council of the City(the "City Council"),
after giving notice pursuant to Government Code Sections 65090, 65091, 65092,
65094, and 65864, held a public hearing on Developer's application for this
Agreement, and has found on the basis of substantial evidence that the Agreement
is consistent with all applicable plans, rules, regulations and official policies of the
City; and
i NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm
Springs as follows:
SECTION 1. The above recitals are true and correct and incorporated
herein.
SECTION 2. Pursuant to the California Environmental Quality Act (CEQA),
the Planning Commission found the project to be categorically
exempt from CEQA per Section 15332 ("infill development")
and that the adoption of the Development Agreement does not
create any additional environmental impact.
SECTION 3. The Developer proposes to construct a project of 86 vacation
ownership units (time shares); underground parking; water
features and other amenities; and other landscaping and on-
site improvements.
SECTION 4. The Developer is required to make certain street improvements
in keeping with City codes. Such offsite improvements, such
as reconstructing curb, gutter and sidewalks along Arenas
Road and Calle Encilia, are imperative to this project, which
improves a blighted parcel in Merged Redevelopment Project
Area #2 (formerly Tahquitz Andreas) and will increase tax
increment to the Agency and development fees, transient
occupancy tax and sales tax collections to the City. In
addition, the Developer agrees to impose and collect a
Financial Impact Mitigation Fee (FIM Fee) on the owners of
intervals in the project to offset a portion of the City's cost and
burden of the project.
SECTION 5. The City agrees, through this Development Agreement to
encourage the Community Redevelopment Agency to
undertake capital improvement projects in proximity to the
Project.
SECTION 6. Based on foregoing reasons, the City Council hereby approves
the Development Agreement, which is incorporated herein by
this reference.
ADOPTED this day of 2005.
AYES:
NOES:
ABSENT:
ATTEST: THE CITY OF PALM SPRINGS,
CALIFORNIA
By
City Clerk Mayor
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iREVIEWED & APPROVED AS TO FORM:
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RECORDING REQUESTED BY )
AND WHEN RECORDED, MAIL TO: )
CITY CLERK )
City of Palm Springs )
Post Office Box 2743 )
Palm Springs, California 92263 )
DEVELOPMENT AGREEMENT
between
THE CITY OF PALM SPRINGS
("City")
and
PALM SPRINGS MARQUIS, LLC
A California limited liability corporation
("Developer")
Designated As
"Development Agreement No. 5" or "DA5"
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01003/0074/36636 02
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Development Agreement" or this
"Agreement") is entered into on , 2005, by the CITY OF PALM
SPRINGS (the "City"), a municipal corporation, and PALM SPRINGS MARQUIS, LLC, a
California limited liability corporation (the "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."
RECITALS:
A. Capitalized Terms. The capitalized terms used in these recitals and
throughout this Agreement shall have the meaning assigned to them in Section 1. Any
capitalized terms not defined in Section 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 the following land use
approvals: (1) Conditional Use Permit No. 5.0975, (2) Tentative Tract Map 31905 for
the development of an 86 unit timeshare project located at 190 Calle Encilla South, and
(3) Variance No. 6.473 and at the same time found the project to be categorically
r exempt from CEQA per Section 15332 (In-Fill Development). Developer has a legal or
equitable interest in a portion of the PDD Area as described in Exhibit "A" (the
r "Developer's Property").
IC. Legislation Authorizinq 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, et 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.
D. Intent 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
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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 resort
timeshare project composed of 86 ownership units. The Project will benefit the City by
creating new jobs in the community and will aid in the revitalization of the tourist trade.
The Project will pay all City development fees, including Quimby park fees, which will
assure that all costs of the Project will be mitigated. Moreover, to the extent timeshare
units are being developed in lieu of hotel units and to pay for certain infrastructure
improvements and to pay for landscaping, lighting and other public maintenance
expenses, Developer agrees that a Financial Impact Mitigation Fee ("FIM Fee") shall be
paid to the City, as described herein and in the Declaration attached to the DDA as
Exhibit F. Finally, the public benefit of the Project includes the receipt of certain tax
revenues. When all phases are developed, the Project will have a net economic benefit
to the City of approximately $ per year.
F. Public Hearinqs: Findinqs. On April 27_, 2005_, 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 September 7 , 2005_, 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 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:
1. 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 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.
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1.2 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.
1.3 Authorizinq Ordinance. The "Authorizing Ordinance" means
Ordinance No. approving this Development Agreement.
1.4 The Citv. The "City" means the City of Palm Springs, California.
1.5 City Council. The "City Council" means the governing body of the
City of Palm Springs.
1.6 City Development Aqreement 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.
1.7 Claims or Litiqation. 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, 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.
1.8 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.
1.9 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
I 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.
1.10 Development Aqreement Statute. The "Development
Agreement Statute" means Sections 65864 through 65869.5 of the California
Government Code as it exists on the Development Agreement Date.
1.11 Development Approvals. "Development Approvals" means all
site-specific (meaning specifically applicable to the Developer's Property only and not
generally applicable to some or 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
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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.
1.12 Development Plan. The "Development Plan" means the Existing
Development Approvals, Future Development Approvals and Existing Land Use
Regulations.
1.13 Effective Date. The "Effective Date" means the date the
Agreement becomes effective as set forth in Section 3.2.
1.14 Encroachment Permit. The "Encroachment Permit" means the
permit concerning use of the City's right of way as provided by the form attached hereto
as Exhibit "G" and incorporated herein by this reference.
1.15 Exaction. "Exaction" means dedications of land, payment of
development fees and/or construction of public infrastructure by Developer as part of
the Development. The development will be subject to all development and/or in-lieu
fees currently in the process of being studied by the City so long as they are adopted
prior to issuance of building permits for specific portions of the development proposed
herein. The amount of the fees shall be as required at the time of issuance of building
permits.
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1.16 Existinq Development Approvals. The "Existing Development
Approvals" means only the Development Approvals which are listed on Exhibit "C".
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1.17 Existinq Land Use Requlations. The "Existing Land Use
Regulations" means those certain Land Use Regulations applicable to the Property in
effect on the Effective Date.
1.18 Future Development Approvals. "Future Development Approvals"
means those Development Approvals applicable to the Property approved by the City
after the Effective Date such as tentative tract maps, subdivision improvement
agreements and other more detailed planning engineering approval requirements.
1.19 Land Use Requlations. 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, 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
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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.
1.20 Leqal or Equitable Interest. The term "legal or equitable interest"
shall mean (i) an option as evidenced by a recorded memorandum of option, and
appropriate title insurance issued in favor of Developer, or (ii) fee title evidenced by
appropriate title insurance issued in favor of Developer.
1.21 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.
1.22 Mortgagee. "Mortgagee" refers to the holder of a beneficial
interest under a Mortgage.
1.23 Developer. "Developer" means PALM SPRINGS MARQUIS,
LLC, a California corporation, and any permitted assignee in accordance with Section
12.
1.24 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.
1.25 Planninq Director. "Planning Director' shall mean the Director of
Planning and Zoning or similar officer of City.
1.26 Proiect. The "Project" means the development of the Developer's
Property pursuant to the Development Plan and this Agreement.
1.27 Reservations of Authority. The term "Reservation of Authority"
shall have the meaning set forth in Section 9 of this Agreement.
1.28 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.
1.29 Financial Impact Mitiqation Fee. The term "FIM Fee" shall mean
the fee described in Exhibit F which shall be paid on timeshare intervals so that these
units contribute to the payment for City services as would hotel units. In addition the
FIM Fee will pay for Project costs including infrastructure costs, payment for
maintenance of public landscaping, lighting and improvements, access to trails on City
property, and to pay for other service enhancements and obligations of the Developer.
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2. EXHIBITS.
The following are the Exhibits to this Agreement:
Exhibit A: Map and Legal Description of the Developer's Property
Exhibit B: Construction Schedule
Exhibit C: Existing Development Approvals
Exhibit D: Estoppel Certificate
Exhibit E: Summary of Fees, Taxes and Assessments Existing as of the
Effective Date or in progress and adopted prior to issuance of a building permit
Exhibit F: Financial Impact Mitigation Fee
Exhibit F: Encroachment Permit
3. TERM.
3.1 Term. The term of this Development Agreement (the "Term")
shall commence on the Effective Date and shall continue for a period of fifteen (15)
I years ("Original Term") unless otherwise expressly provided by this Agreement.
3.2 Effective Date. This Agreement shall become effective upon the
date thirty (30) days after the adoption of the Authorizing Ordinance.
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 Existinq 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 with the exception of those reservations set forth in Section 9 below.
4.3 Obligation of Citv Respectinq Financinq. 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
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Improvements or any of them and if in 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 reduction 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 real 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 Obliqations of Developer Respectinq Financinq. Except as
specifically provided herein, it is expressly understood that developer is fully responsible
for the cost of the Project and obtaining any necessary construction or long term
financing therefore.
4.5 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 and/or in Exhibit E. 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 Right of Developer to Control Timinq. 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 meeting the specific requirements of Exhibit B, the timing,
phasing, and sequencing of the Project. In addition, although Developer will develop
the minimum number of units as specified in Exhibit B, Developer may reduce the
number of vacation ownerships and hotel units below the maximum provided for herein
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if Developer can demonstrate to City's satisfaction, based on independent economic
analysis, that the $1.3M revenue projection to the City will be met from the reduced
number of hotel/vacation units (in 2005 dollars).
5.2 Timing Constraints to Development Plan. The Construction
Schedule on Exhibit B sets forth Developer's present plan for the development of the
Project.
(a) Developer shall commence construction of Project by April
30, 2005 and complete construction by November 30, 2007.
(b) The timing constraints for construction of public
improvements shall be as provided in Section 5.3.
(c) Any construction which is commenced shall be completed
in accordance with the terms of the permit which is issued.
5.3 Public Improvements. The parties understand and agree that
Tentative Tract Map and CUP 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 for
public improvements, pay the development fees specified in Section 6, 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.
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.
6. FEES, TAXES AND ASSESSMENTS.
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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. The amount of the fees, taxes and assessments shall be that
amount in effect at the time said fee, tax or assessment is due. For example,
development fees are typically paid at the time building permits are issued. Therefore,
the amount of the fees shall be based on the fee schedule at that time. 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 new 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 primarily against owners, lessees,
businesses, residents or occupants of the Project.
(e) 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 CUP, Tentative Tract Map or any
other condition or mitigation measure, required as part of the approval for
Existing or Future Development Approvals.
(g) Developer shall be obligated to pay all recently enacted
planning department processing and development fees based upon the
fee study prepare by City, as well as City's new Quimby fees for park
purposes, as enacted pursuant to Park Fee Ordinance No. 1632.
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7. PROCESSING OF REQUESTS AND APPLICATIONS: OTHER
GOVERNMENT PERMITS.
7.1 Processinq. 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 Tentative Subdivision Maps. The City shall extend through the
Term hereof (pursuant to Government Code Section 66452.6) all Tentative Subdivision
Maps applied for by Owner during the term of this Agreement and approved by the City
in the future.
7.3 Phased Final Maps. Developer may file as many phased final
maps for the Project as it deems appropriate and consistent with this Agreement.
7.4 Encroachment Permit. Developer and City recognize that the
proposed project will require an Encroachment Permit in the form of Exhibit G in order
to complete the project according to the approved plans.
7.5 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.
7.6 Public Agencv Coordination. The City and Developer shall
cooperate and use reasonable efforts in coordinating the implementation of the
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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, maximum
residential density, minimum number of vacation units, maximum intensity
of use, permitted uses, the maximum height and size of buildings, the
reservation or dedication of land for public purposes, or the improvement
and construction standards and specifications for the Project, including
density transfers between Phases.
(c) 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 Aqreement. 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.
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9. RESERVATIONS OF AUTHORITY
9.1 Limitations. Reservations and Exceptions. Notwithstanding
anything to the contrary set forth 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 Requlations. 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 Requlations. 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.
(c) Public Health and Safety/Uniform Codes.
(i) Adoption Automatic Reqardinq 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 Reqardinq 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 Reqardinq Reqional Proqrams.
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.
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(d) Planned Development District Requlations.
Notwithstanding the provisions of Section 5.1, it is recognized by the
parties that the Existing Approvals are generalized and that the City's
procedures for approving development involve a more precise and
detailed review including 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, compatibility with surrounding property and other constraints. In
t addition, 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 CUP and in accordance with
this Development Agreement.
9.2 Requlation 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 reasonable
authority of such other public agencies.
10. ANNUAL REVIEW.
10.1 Annual Monitoring Review. Following commencement of
construction, City and Developer shall review the performance of this Agreement, and
the Development of the Project, on or about each anniversary of the Effective Date
provided that if development does not proceed in accordance with the Phasing Plan
(Exhibit B), an earlier monitoring review may be conducted. 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
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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 "D".
10.3 Failure to Conduct Annual Review. The failure of the City to
conduct the Annual Review shall not be a Developer Default.
11. DEFAULT, REMEDIES AND TERMINATION.
11.1 Riqhts of Non-Defaultinq Partv 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 Section
11.
11.2 Notice and Opportunity to Cure. A Non-Defaulting 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;
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(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, 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%) 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 Riqhts and Duties Followinq 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 Assiqn.
(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 the
transfer to any person or group of persons acting in concert of more
than seventy percent (70%) of the present equity ownership and/or
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more than fifty percent (50%) 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
irestrictions set forth herein. In the event Developer or any general
i 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) the financial strength and capability of the proposed transferee to
perform City's obligations hereunder; and (ii) 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 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.
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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.
i (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 (50%) of the voting control of
Developer.
(v) A transfer of common areas to a property owner's
association.
(b) Subject to Terms of Aqreement. 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 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 duty from 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.
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(d) No Approval of Terms of Loan bV 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
i financing arrangements with third party lenders.
12.2 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 Covenants, Conditions and Restrictions to be recorded
against the applicable subdivision to City for its review and approval ("CC&RS"). It is
anticipated that said CC&RS 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, FIM Fee, 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&RS.
13. INDEMNITY.
13.1 Third-Partv Litiqation.
(a) Non-liability of City. As set forth above, City has
determined that this Agreement is consistent with the General Plan and
that the General Plan and Development Approvals 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, the Development
Approvals and/or this Agreement; and
(ii) If successful, such challenges could delay or
prevent the performance of this Agreement and the development
of the Property.
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, the Development
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Approvals, 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, Development Approvals, 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 if such noncompliance can
be cured by an appropriate amendment thereof otherwise conforming to
the provisions of this Agreement, then this Development Agreement shall
remain in full force and effect to the extent permitted by law. The
Development Plan, Development Approvals and this Agreement shall be
amended, as necessary, in order to comply with such judicial decision.
(c) Participation in Litiqation: Indemnity. The Developer
agrees to indemnify the City and its 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 1.10) 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. Developer may utilize the City Attorney's office or use legal
counsel of its choosing, but shall reimburse the City for any necessary
legal cost incurred by City. If Developer fails to do so, City may defend
the action and Developer shall pay the cost thereof, but if City chooses not
to defend the action, it shall have no liability to Developer. Developer's
obligation to pay the defense cost shall extend until judgment. In the
event of an appeal, or a settlement offer, the parties will confer in good
faith as to how to proceed. Notwithstanding Developer's indemnity for
claims and litigation, City retains the right to settle any litigation brought
against it in its sole and absolute discretion and Developer shall remain
liable except as follows: (i) the settlement would reduce the scope of the
Project by 10% or more, and (ii) Developer opposes the settlement. In
such case the City may still settle the litigation but shall then be
responsible for its own litigation expense but shall bear no other liability to
Developer.
13.2 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
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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 Survival of Indemnity Obligations. All indemnity provisions set
forth in this Development Agreement shall survive termination of this Agreement for any
1 reason other than City's Default.
14. EFFECT OF AGREEMENT ON TITLE.
14.1 Covenant Run with the Land. Subject to the provisions of
Sections 12 and 16:
(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 OFFICERS 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
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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.
16.3 Covenant Aqainst 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 Protect.
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 following: (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. 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 Section 16. In any event, the
Developer shall promptly notify the City of any mortgage, encumbrance, or lien that has
been created or attached thereto prior to completion of construction, whether by
voluntary act of the Developer or otherwise.
16.3 Developer's Breach Not Defeat Mortgage 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 otherwise.
16.4 Holder Not Obliqated to Construct or Complete Improvements.
The holder of any mortgage shall in no way be obligated by the provisions of this
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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 written request by the lender. No notice of default
shall be effective as to the holder unless such notice is given.
16.6 Riqht 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:
I
(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.
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 Riqhts upon Failure of Holder to Complete Improvements.
In any case where one hundred eighty (180) days after default by Developer in
completion of construction of improvements under this Agreement, the holder of any
mortgage creating a lien or encumbrance upon the Project or portion thereof has not
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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 amounts become
part of the mortgage debt and such debt had continued in existence to the
date of payment by the City.
If the City has not purchased the mortgage within ninety (90) days of the
expiration of the ninety (90) days referred to above, then the right of the City to
(purchase shall expire.
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
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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; and
(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 applicable portion of the Project to the extent of such costs and
disbursements. Any such lien shall be subject to:
(a) Any mortgage for financing as described in Section 16.2 of
this Agreement; and
(b) 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
ronvevance 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.
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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.
(c) There are no existing defaults under the Agreement to the
actual knowledge of the party signing the Estoppel Certificate.
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 be relied on by assignees and Mortgagees. The Estoppel Certificate
shall be substantially in the same form as Exhibit "D".
I
17.2 Force Majeure. 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, third party litigation as described in Section
13.1 of this Agreement, 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 Aqreement. 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 Severability. 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).
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I
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.
I
17.6 Joint and Several Obliqations. All obligations and liabilities of
Developer hereunder shall be joint and several among the obligees.
I
17.7 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.
17.8 Waiver. 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.
17.9 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.
17.10 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.
17.11 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.
17.12 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
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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
which would prevent the parties from entering into this Agreement.
17.13 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:
PALM SPRINGS MARQUIS, LLC
With a copy to:
Jeffrey Fromberg, Esq.
2825 E. Tahquitz Way#D1
Palm Springs, CA 92262
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:
Woodruff, Spradlin & Smart
701 South Parker, Suite 8000
Orange, CA 92868
Attention: Doug Holland, Esq.
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.
17.14 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 acknowledgment or affidavit if
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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.
17.15 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.
17.16 Recordinq. 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 (10) 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.
I
17.17 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.
17.18 Entire Aqreement. 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 of
any prior or other agreement shall be permitted to contradict or vary the terms of this
Development Agreement.
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IN WITNESS WHEREOF, the City and Developer have executed this
Development Agreement on the date first above written.
CITY OF PALM SPRINGS
I
BY:
MAYOR
ATTEST:
CITY CLERK
Approved as to form
City Attorney
"DEVELOPER"
PALM SPRINGS MARQUIS, LLC, a
California corporation
BY: _
Its:
BY: _
Its:
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EXHIBIT "A"
MAP AND LEGAL DESCRIPTION OF DEVELOPER'S PROPERTY
01003/0074/36636.02
EXHIBIT "B"
CONSTRUCTION SCHEDULE
Commencement of construction to be within thirty (30) days of approval of this
Agreement. Completion of construction to be within eighteen (18) months of approval of
this Agreement.
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01003/0074/36636 02
EXHIBIT "C"
EXISTING DEVELOPMENT APPROVALS
1. General Plan
2. Variance No. 6.473
3. Conditional Use Permit No. 5.0975
4. Tentative Tract Map No. 31905
5. Palm Springs Municipal Code, Zoning Code, Building Code and other City
Codes.
6. Conditions of Approval
01003/0074/36636.02
EXHIBIT "D"
ESTOPPEL CERTIFICATE
Date Requested:
Date of Certificate:
On 200, the City of Palm Springs approved the
Development Agreement between PALM SPRINGS MARQUIS, LLC, a California
corporation 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]
1. 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:
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
01003/0074/36636.02
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
I 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
I 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
I 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 Date and subsequently such matter
shall be included within the Fee Summary and Developer shall be responsible for same
as provided in the Agreement.
01003/0074/36636.02
EXHIBIT "F"
FINANCIAL IMPACT MITIGATION FEE
ARTICLE I
GENERAL
Developer agrees that if the vacation units are developed as a Timeshare
Ownership with an Association, then the Timeshare Association will impose upon all
timeshare units and pay to the City a financial impact mitigation fee of $28.50 per
Timeshare Interval (as defined below) per year ("Financial Impact Mitigation Fee" or
"FIM Fee") to complete the Project and to pay certain costs including:
a) to pay for certain public infrastructure costs benefiting the
Project including for construction of street and drainage
improvements;
b) to pay for public landscaping, lighting and maintenance costs
arising from area development;
c) to compensate the City for the loss of tax revenue to City which
would otherwise be generated from the conversion of the
Project from a hotel to a timeshare development; and
d) to pay for certain other service enhancements and other
obligations undertaken by Developer.
ARTICLE II
FINANCIAL IMPACT MITIGATION FEE /TRANSIENT OCCUPANCY TAX
2.1 Timeshare Association; Definitions. The Project, as described in
the DA, provides for the construction and sale of timeshare vacation units ("Timeshare
Units") on the Site. Any portion of a Timeshare Unit that is separately keyed and
contains a kitchenette shall be considered a part of such Timeshare Unit and shall in no
event be considered a separate Timeshare Unit. Developer (the "Timeshare Operator')
intends to own and operate the Project and sell timeshare interval interests involving the
right of occupancy of a Timeshare Unit (a "Timeshare Interest") to Timeshare Owners.
Timeshare Interests will be represented by points that will entitle a Timeshare Owner to
occupy a Timeshare Unit. The number of points entitling a Timeshare Owner to occupy
a Timeshare Unit for seven (7) consecutive days shall be referred to as a "Timeshare
Interval." The term "Timeshare Owner" or "Owner' shall include the original purchaser,
or any successor owner, of a Timeshare Interest whether the successor owner acquires
the Timeshare Interest through a purchase, assignment or conveyance from the original
01003/0074/36636 02
owner, but shall not include a person who has the right to use the Timeshare Unit
through an internal or external exchange company (so long as the FIM Fee has been
paid by the Timeshare Owner for the applicable period), and in no event shall either
term refer to or include Developer or Timeshare Operator. The Timeshare Operator
intends to create a homeowners association (the 'Timeshare Association" or
"Association") which shall be responsible for, among other things, the maintenance of
the Project and common areas and collection of the Financial Impact Mitigation Fee
described in Section 2.2. Timeshare Owners shall be members of the Timeshare
Association by reason of the purchase of a Timeshare Interest.
2.2 Financial Impact Mitiqation Fee. Developer hereby covenants that
all Timeshare Units located on the Site for which a Timeshare Interest has been
conveyed to a Timeshare Owner, shall be subject to the payment of a Financial Impact
Mitigation ("FIM") Fee of Twenty-Eight and 50/100 Dollars ($28.50) per Timeshare
Interval per year. Developer acknowledges that the value of the benefits that will accrue
to the Project and each Timeshare Owner from the improvements and services funded
by the FIM Fee, as further described in Section 2.3, exceeds the amount of the FIM Fee
and, therefore, Developer agrees that the FIM Fee shall not be reduced or offset in the
event Developer or a Timeshare Owner determines not to use a particular service
funded by the FIM Fee. The FIM Fee shall be separate from and in addition to any
transient occupancy tax collected for interim use of the Timeshare Units by the public
that is subject to the transient occupancy tax as set forth in the Palm Springs Municipal
Code.
(a) Method of Collection of FIM Fee. Collection of the
FIM Fee shall be the responsibility of the Timeshare Association. The FIM
Fee on all Timeshare Interests in the Project shall be levied, collected and
transferred to the City in accordance with the following.
(i) After Sale or Exchange of Timeshare Interest.
From and after the date of sale of a Timeshare Interest in a
Timeshare Unit (the "Sale Date"), the Timeshare Owner shall pay,
and the Timeshare Association shall collect, a FIM Fee in the
amount of $28.50 per Timeshare Interval. The FIM Fee shall be in
addition to any transient occupancy tax otherwise payable pursuant
to the Palm Springs Municipal Code for any period the Timeshare
Unit is rented to the public as a hotel room, including any period of
rental during the time the Timeshare Owner would otherwise have
a right to occupancy pursuant to the Timeshare Interest.
The FIM Fee shall be due and payable from a
Timeshare Owner for each year in which Timeshare Interest
occupancy rights occur. The FIM Fee payable by each Timeshare
Owner shall be collected from the Timeshare Owner by the
Timeshare Association annually, in advance. In the year of the
Sale Date the FIM Fee shall be paid on the Sale Date as part of the
closing of the sale transaction. Thereafter, the FIM Fee shall be
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paid as part of the regular annual assessments on the date
established for the payment of the regular assessments (the
"Collection Due Date"). If the Timeshare Owner does not have
t occupancy rights in the calendar year of the Sale Date, then no FIM
Fee shall be payable by such Timeshare Owner for that calendar
year. The total amount of the FIM Fees for all Timeshare Interests
in the Project shall be due and payable, and shall be remitted in full
by the Timeshare Association to the City, not later than thirty (30)
days following the Collection Due Date, regardless of whether the
FIM Fee has actually been collected from the Timeshare Owners.
In no event shall the Developer or Timeshare Operator be liable for
any FIM Fees not collected from the Timeshare Owners. If a
Timeshare Owner purchases an "every other year' or "alternate
year" Timeshare Interest, and is charged an equal annual
assessment by the Association, the annual FIM Fee shall be
reduced by fifty percent (50%).
(ii) Entities Responsible for Collection of FIM Fee.
Developer, as Timeshare Operator, shall be responsible for
collecting the FIM Fee that is due with respect to any Timeshare
Interest in the year of the Sale Date and remitting such Fees to
City, Thereafter, the Timeshare Association shall collect such fees
as part of the regular annual assessment.
(b) Adjustments to FIM Fee. Beginning on the fifth
anniversary of the date of the first sale of a Timeshare Interest in the
Project and each five (5) years thereafter, the FIM Fee set forth in this
Section 2.2 shall be increased by ten percent (10%) of the FIM Fee
applied in the five (5) year period immediately before such increase.
Notwithstanding any additional services provided by City or obligations
undertaken by City, City agrees that the FIM Fee established herein shall
not be increased except pursuant to the automatic adjustment provisions
of this Section 2.2(b).
(c) Reports; FIM Fee Shortfall. Along with the total FIM
Fees collected for each year, the Timeshare Association shall deliver to
City a statement showing the Timeshare Intervals, name(s) of person(s)
owning such Timeshare Interval and the amount of the FIM Fee collected
for such Timeshare Interval. All Timeshare Intervals shall be subject to
the FIM Fee and Timeshare Association shall pay to City the FIM Fee
applicable to such Timeshare Interval, irrespective of whether Timeshare
Association collects such fee from the timeshare user.
(d) Developer, on behalf of itself and its
successors, waives any rights it may have now or in the future to
challenge the legal validity of or contest the FIM Fee, including, without
limitation, any claim that the FIM Fee constitutes an abuse of the police
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power, violates substantive due process, denies equal protection of the
laws, effects a taking of property without payment of just compensation, or
imposes an unlawful tax.
IN FURTHERANCE OF THE INTENTIONS OF THE PARTIES TO THIS
AGREEMENT, WITH RESPECT TO THE FIM FEE ONLY, DEVELOPER,
WITH AND UNDER ADVICE OF COUNSEL, HEREBY EXPRESSLY
WAIVES ANY AND ALL RIGHT AND BENEFIT CONFERRED UPON
SAID PARTIES BY THE PROVISIONS OF CIVIL CODE SECTION 1542,
WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN TO
HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR."
With respect to the FIM Fee only, and any challenges or
potential challenges thereto, Developer expressly waives any and all
rights and benefits conferred upon the Developer by any provision of any
other state, federal or local statute, code, ordinance, or law similar to
section 1542 of the California Civil Code. With respect to the FIM Fee
only, Developer expressly consents that the waiver of rights contained in
this paragraph shall be given full force and effect, according to the express
terms of the instant waiver, to unknown and unsuspected claims,
demands, and causes of action pertaining to the FIM Fee only, if any,
arising out of or relating to the waiver of rights contained herein.
2.3 Purposes of Financial Impact Mitiqation Fee; Basis of Expenditure.
'The FIM Fee is paid to the City to compensate City for certain costs imposed on the City
by the Project, and for improvements and services of the City that will benefit the
Project. The Director of Finance shall account for all FIM Fees received and the
purposes for which such funds are spent. The FIM Fees shall be paid to the City to
compensate City for the following:
(a) The City is developing certain infrastructure within the
vicinity of the Project which will benefit the Project and which are not
otherwise provided by the Project. These improvements include street,
drainage and associated improvements.
(b) The public rights of way in conjunction with the
Project and emanating from the Project include landscaping and lighting
improvements, and will require enhanced maintenance activity by the City
to beautify the Project and enhance its attractiveness. No assessment
district has been established in the area, and without this funding
mechanism the Project needs to contribute to the higher level of
maintenance commensurate with the quality of the Project.
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(c) Declarant agrees that occupancy of the Timeshare
Units in this Project in this City by a transient owner population creates a
greater demand on public safety and other services provided by the City
than does the occupancy of condominiums, homes, apartments, and other
residential dwellings in the City by full-time owners or renters thereof. The
greater impacts are similar to the impacts caused by the transient
occupation of hotels in the City, for which the City collects a transient
occupancy tax. Declarant acknowledges and agrees that, in addition to
the benefits and services listed herein, the FIM Fee is imposed for the
purpose of mitigating the burden on City services created by development
of the Project as a timeshare Project, in lieu of other lost tax revenues
from a different type of development project.
(d) Other service enhancements provided to the Project,
or other obligations for maintenance and operation of the Project as
provided in this Agreement, the DDA or other understanding of the parties.
2.4 Transient Occupancv Tax. Developer hereby acknowledges that all
units located on the Site, which have not been sold as Timeshare Units or which have
been sold as Timeshare Units but are rented to the public, shall be subject to the
payment of transient occupancy tax as set forth in the Palm Springs Municipal Code.2.4
Department of Real Estate Approval. City acknowledges that Developer is
required to obtain approval of the Declaration by the Department of Real Estate
("DRE"), and has agreed with Developer to amend the Declaration as reasonably
necessary to obtain such DRE approval. City and Developer further agree to make
minor modifications to this Exhibit as reasonably necessary to obtain such DIRE
approval. Such modifications may be approved in writing by the City Manager in
accordance with Section 9.18 of the Agreement without requiring a formal amendment
to this Agreement.
2.5 Disclosure to Successor Owners. Developer, its successive
owners and assigns (including Timeshare Owners), shall, prior to the conveyance of a
Timeshare Interest, inform potential purchasers of a Timeshare Interest of the
Timeshare Owner's obligation to pay the FIM Fee to the City annually pursuant to
Section 2.2. Each potential purchaser shall also be given notice of the amount of the
FIM Fee.
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01003/0074/36636.02
EXHIBIT "G"
FREE RECORDING REQUESTED BY: )
WHEN RECORDED MAIL TO: )
CITY OF PALM SPRINGS )
P.O. Box 2743 )
Palm Springs, California )
Attn: City Clerk, )
Engineering Division )
Filing Fee Exempt Per Government Code 6103)
ENCROACHMENT PERMIT
THIS ENCROACHMENT PERMIT (the "Permit') is issued this day _of
, 2005, to PALM SPRINGS MARQUIS, LLC, a California limited
liability company ("Permittee").
RECITALS:
A. Permittee is the lessee pursuant to a leasehold estate as created by that
certain lease, upon and subject to all of the terms, coveants and provisions therein
provided, dated March 16, 1998, and recorded February 20, 2004 as instrument number
04-117483 of Official Records for a term of 65 years (the "Lease'), by and between
Raymond Leonard Patencio and Beverly Patencio Diaz, Priscilla Patencio Gonzales,
Ruth Patencio, and Deborah Gonzales Purnell, as lessors, and Palm Springs Marquis,
LLC, a California limited liability company, as lessee, of that certain real property
located in the City of Palm Springs, County of Riverside, State of California described
as Lot 25 in Section 14, Township 4 South, Range 4 East, San Bernardino Base and
Meridian, according to the Official plat thereof('Permittee Property").
B. City is the owner of easement interests in that certain real property located
in the City of Palm Springs, County of Riverside, State of California adjacent to the
Permittee Property, and more particularly depicted on Exhibit "A" ("City Property").
C. Permittee desires to construct time share or hotel improvements (the
"Improvements") in accordance with plans approved on , 200, and subject
Ito acquiring a building permit from City (the 'Building Permit') for the Improvements,
which will encroach on the City Property in the location depicted on Exhibit "B" attached
hereto and incorporated herein by referenced (the "Encroachment').
D. Pursuant to the authority granted in Chapter 14.16 of the Palm Springs
Municipal Code, the Director is granting to Permittee an encroachment permit ('Permit')
for Encroachment of the Improvements, subject to the provisions of Chapter 14.16 and
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the terms and conditions of this Permit as set forth below;
1. Permit. The City hereby grants a Permit to Permittee to
include the Encroachment in accordance with Chapter 14.16 of the Palm Springs
Municipal Code, and upon all of the terms and conditions of this Permit stated hereon.
Prior to commencement of construction of the Improvements, Permittee shall submit all
building plans, drawings and specifications necessary for the construction of the
Improvements, and obtain all approvals and building and right-of-way construction
permits required for the construction of the Improvements.
2. Commencement of Construction. Permittee shall commence
the construction of the Encroachment within a reasonable amount of time, in no event to
exceeding three hundred sixty (360) days following the issuance date of this Permit.
Before beginning any physical work on the Encroachment, Permittee shall notify the
City in writing, at least twenty-four (24) hours prior to commencement of such work.
Permittee shall also notify the City upon completion of the Encroachment.
3. Construction of Encroachment.Any structure placed pursuant to
this Permit shall be constructed in a careful and workmanlike manner and in accordance
with plans and specifications to be submitted to and approved by the City of Palm
Springs Department of Building and Safety before Permittee commences performance
of any work on Permittee Property.
4. Maintenance. Permittee shall have the right and obligation to
maintain, paint, repair, restore and replace, at its own costs and expense, the
Encroachment so as to keep the Encroachment and the Encroachment area in a neat,
clean first class condition and in good order and repair, including free of trash and
debris at all time. Permittee shall have access across the City Property at all times
while the Permit is in effect. In the event that Permitee does not maintain the
Encroachment as required herein, the City will have the option, following thirty (30) days
notice to cure the failure to maintain the Encroachment, to either (i) terminate the Permit
as more particularly provided in Section 11 or, (ii) after giving Permittee reasonable
notice, to make such repairs or perform such maintenance as is required. If City
performs the required repairs and/or maintenance, City will submit a bill to Permittee
who will promptly reimburse City for such work performed.
5. Alterations. Permittee may not make any alterations or changes to
the Encroachment without the written approval of Director of Planning and Zoning.
6. Erection and Maintenance of Safety Provisions. Permittee
shall, in connection with the construction and maintenance of the Encroachment,
provide, erect, and maintain such lights, barriers, warning signs or other safeguards as
are reasonably necessary to protect anyone utilizing the City Property for whatever
reason. In the event that the City determines that suitable safeguards are not being
provided, the City may, after reasonable notice to Permittee, provide, erect and maintain
such safeguards. If the City provides the safeguards pursuant to this Section 5, City
shall submit a bill to Permittee, and Permittee shall immediately reimburse City for such
work performed.
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7. Indemnity. Permittee hereby agrees to indemnify and defend the
City, its officers, agents and employees against and to hold and save each of them
harmless from, any and all actions, suits, claims, damages to persons or property,
losses, costs, penalties, obligations, errors, omissions or liabilities (collectively "claims
or liabilities") that may be asserted or claimed by any person, firm or entity arising out of
or in connection with the location, construction, maintenance, relocations or removal of
the Encroachment, but excluding such claims or liabilities arising from the sole
negligence or willful misconduct of the City, its officers, agents or employees, who are
directly responsible to City, and in connection therewith:
(a) Permittee will defend any action or actions filed in
connection with any of said claims or liabilities and will pay all costs and expenses,
including legal costs and attorneys' fees incurred in connection therewith;
(b) Permittee will promptly pay any judgment rendered against
jthe City, its officers, agents or employees for any such claims or liabilities and Permittee
agrees to save and hold the City, its officers, agents and employees harmless
therefrom;
(c) In the event the City, its officers, agents or employees is
made a party to any action or proceeding filed or prosecuted against Permittee for such
damages or other claims arising out of the location, construction, maintenance,
relocation or removal of the Encroachment, Permittee agrees to pay the City, its
officers, agents or employees, any and all costs and expenses incurred by the City, its
officers, agents or employees in such action or proceeding, including, but not limited to,
legal costs and attorneys fees.
8. Enforcement of City Rights Through a Lien. If any lessee of the
Property defaults on the performance of any of its obligations hereunder, the City, its
employees, contractors and agents may, at their sole option, and after making
reasonable demand of the owner of the Property that it cure said default, cure the
default. In making a cure, the City shall give the owners of the Property or their
representative, reasonable notice of the time and manner of said action and said action
shall only be at such times and in such manners as reasonably necessary to carry out
this Permit. In such event, the owner of the Property shall reimburse the City for all
costs and expenses related to the curing of said default plus interest at a rate of ten
percent (10%) per annum commencing on the date that is THIRTY (30) DAYS AFTER
'THE DATE NOTICE THEREOF IS GIVEN AND ENDING ON THE DATE SAID SUM IS
FULLY REPAID. Any and all delinquent amounts, together with said interest, costs and
easonable attorneys fees shall be a personal obligation of the owner of the Property as
well as a lien and charge, with power of sale, upon the Property. The City may bring an
action at law against the owner of the Property to pay any such sums. The lien
(provided for in this Section may be recorded by the City as a Notice of Lien against the
Property in the Office of the Riverside County Recorder, signed and acknowledged,
which Notice of Lien shall contain a statement of the unpaid amount of costs and
expenses. Such lien may be enforced and foreclosed in a suit or action brought in any
court of competent jurisdiction or in accordance with the provisions of Section 2924 of
the California Civil Code applicable to the exercise of powers of sale for mortgages and
deeds of trust, or in any other manner permitted by California law. Upon the timely
curing of any default for which such lien was recorded, the City shall record an
appropriate release of such lien, upon payment by the owner of the Property of a
reasonable fee to cover the costs of preparing and recording such release, together with
the payment of such other costs, including, without limitation, reasonable attorneys fees,
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01003/0074/36636.02
court costs, interest or other fees which have been incurred.
9. Covenants Running With the Land. The covenants and restrictions by
Permittee set forth in this Permit: (a) are made for the direct benefit of the City Property;
(b) will constitute covenants running with the land and equitable servitudes; (c) will bind
Permitee and every person having any fee, leasehold or other interest in any portion of
the Permitee Property at any time or form time to time; and (d) will inure to the benefit of
the City and every person having any fee, leasehold or their interest in the City Property
at any time or from time to time.
1 10. Insurance.
10.1 Insurance Requirement. During the entire term of this Permit,
Permittee agrees to procure and maintain public liability and property damage
insurance, at its sole expense, in an amount not less than ONE MILLION DOLLARS
($1,000,000) combined single limit, insuring against all liability of Permittee and its
authorized representatives arising out of and in connection with the Encroachment of
Permittee's use of the Encroachment. Such public liability and property damage
insurance shall also provide for and protect the City against incurring any legal cost in
defending claims for alleged loss.
10.2 Primary Policy; Additional Insured. All such insurance as
required by this Section 6 shall be primary insurance and shall name the City as
additional insured.
10.3 Insurance Increase. Not more frequently than one (1) time
every three (3) years, if, in the opinion of the City Manager or the City's insurance
broker, the amount of public liability and property damage insurance coverage at that
time is not adequate, the City Manager may require modifications to this coverage.
10.4 Insurance Company. All insurance required under this Section
8 shall be issued by an insurance company authorized to do business in the State of
California, with a financial rating of at lease A-3A status as rated in the most recent
edition of Best's Insurance Reports or such comparable report should Best's Insurance
Reports no longer be available.
10.5 Modificiation or Cancellation of Policy. All insurance
required pursuant to this Section 8 shall contain an endorsement requiring thirty (30)
days written notice from the insurance company to City before cancellation or change in
the coverage, scope, or amount of any policy. Each policy, or a certificate of the policy,
together with evidence of the payment of premiums, shall be deposited by Permittee
with the City at the commencement of the term, and on a renewal policy not less than
twenty (20) days before expiration of the term of the policy.
11, Termination. This Permit is terminable at such time when the City
reasonably determines that continuance of the Encroachment is inconsistent with the
Permittee's use of the City Property or any part thereof, including but not limited to,
construction, reconstruction or maintenance of the City Property provided that City may
not exercise its termination rights herewith for a period of thirty (30) years from the of
issuance of the permit unless such removal is done to a threat to public health and
safety. Such period gives Permittee a reasonable time to recover its investment for
,construction of a time share of hotel. Upon making such determination, City shall give
notice to Permittee that the Permit is thereby terminated (the "Termination Notice').
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01003/0074/36636.02
Upon termination of the Encroachment, Permittee shall remove the Encroachment and
restore the City Property to its former condition, at Permittee's sole costs and expense,
within one-hundred eighty (180) days following the Termination Notice. In the event
Permittee fails to remove the Encroachment and restore the City Property within said
time period, the City shall have the right to do so without notice to the Permittee by the
City. Permittee shall immediately reimburse the City for all out of pocket expenses
which were expended in order to remove the encroachment and restore the City
Property. Said amounts shall accrue interest from the date expended by the City at the
maximum legal rate of interest.
12. Limitation on Permittee's Remedies for Termination. It is expressly
agreed that Permittee accepts this Permit with full knowledge of the City's termination
rights hereunder. Permittee, without reservation, waives any and all rights it may have
to recover for the loss, cost, or damage for City's termination and removal of said
Encroachment, including any claim for taking property, adverse condemnation, business
disruption, interference with contract or any other legal or equitable remedy.
Permittee's sole remedies shall be mandamus or injunction.
13. Successors and Assigns. All rights and obligations created by this
Permit shall be appurtenant to and shall run with the Permittee Property and the City
Property and each part thereof and interest thereon, and shall be binding upon the
owners of the Permittee Property and its respective successors and assigns acquiring
any right, title and interest in the Permittee Property. Permittee shall have the duty to
give City written notice of any change in ownership within ten (10) days of the
occurrence thereof.
14. Amendment or Modification. This permit may not be modified or
amended except by written agreement executed by the then-owner of the Permittee
Property and the City Property and recorded in the Office of the County Recorder,
County of Riverside, California.
15. Governing Law. This Permit shall be governed by and construed in
accordance with the laws of the State of California.
16. Severability.The invalidity or unenforceability of any provision of this
Permit with respect to a particular party or set of circumstances shall not in any way
affect the validity and enforceability of any other provisions hereof or the same provision
when applied to another party or to a difference set of circumstances.
17. Recordation. This Permit shall be recorded in the Office of the
County Recorder, Riverside County, California, and it shall serve as notice to all parties
succeeding to the interest of Permittee or the City that their use of the Permittee
Property and the City Property shall be benefitted and/or restricted in the manner herein
described.
Issued By: Date:
City of Palm Springs
I have read the above and agree to comply with the provisions of this permit and
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01003/0074/36636 02
to pay for any additional replacement necessary as the result of this work.
Permittee: Date:
Signature
iType or Print Name
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Permittee: Date:
Signature
Type or Print Name
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PALM SPRINGS MARQUIS, LLC
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Telephone ( )
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01003/0074/36636.02
EXHIBIT "A"
DESCRIPTION OF CITY PROPERTY
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01003/0074/36636 02
EXHIBIT "B"
Depiction of location of Encroachment (Strip of Land)
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TABLE OF CONTENTS
Page
1. DEFINITIONS .................................................................................................... 2
1.1 Applications. .......................................................................................... 2
1.2 Assignment. ........................................................................................... 3
1.3 Authorizing Ordinance............................................................................. 3
1.4 The City................................................................................................... 3
1.5 City Council. ........................................................................................... 3
1.6 City Development Agreement Ordinance. ............................................. 3
1.7 Claims or Litigation. ............................................................................... 3
1.8 Default. .................................................................................................. 3
1.9 Development. ........................................................................................ 3
1.10 Development Agreement Statute. ....................................................... 3
1.11 Development Approvals. ....................................................................... 3
1.12 Development Plan. ................................................................................ 4
1.13 Effective Date. ....................................................................................... 4
1.15 Exaction. ............................................................................................... 4
1.16 Existing Development Approvals. ........................................................ 4
1.17 Existing Land Use Regulations. ............................................................. 4
1.18 Future Development Approvals. ............................................................ 4
1.19 Land Use Regulations. .......................................................................... 4
1.20 Legal or Equitable Interest. .................................................................... 5
1.21 Mortgage. .............................................................................................. 5
1.22 Mortgagee. ............................................................................................ 5
1.23 Developer. ............................................................................................. 5
1.24 Developer's Property. ............................................................................ 5
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TABLE OF CONTENTS (cont.)
Page
1.25 Planning Director. .................................................................................. 5
1.26 Project. .................................................................................................. 5
1.27 Reservations of Authority. ..................................................................... 5
1.28 Term. ..................................................................................................... 5
1.29 Financial Impact Mitigation Fee. ............................................................ 5
2. EXHIBITS. ......................................................................................................... 6
3. TERM................................................................................................................. 6
3.1 Term. ..................................................................................................... 6
3.2 Effective Date. ....................................................................................... 6
4. DEVELOPMENT OF THE DEVELOPER'S PROPERTY................................... 6
4.1 Right to Develop. ................................................................................... 6
4.2 Existing Development Approvals. .......................................................... 6
4.3 Obligation of City Respecting Financing. .............................................. 6
4.4 Obligations of Developer Respecting Financing. .................................... 7
4.5 Later Enacted Measures. ...................................................................... 7
5. TIME FOR CONSTRUCTION AND COMPLETION OF PROJECT. .................. 7
5.1 Right of Developer to Control Timing. ................................................... 7
5.2 Timing Constraints to Development Plan. ............................................. 8
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5.3 Public Improvements. ............................................................................ 8
6. FEES, TAXES AND ASSESSMENTS. .............................................................. 8
7. PROCESSING OF REQUESTS AND APPLICATIONS: OTHER
GOVERNMENT PERMITS. ............................................................................. 10
7.1 Processing. .......................................................................................... 10
7.2 Tentative Subdivision Maps. ............................................................... 10
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01003/0074/36636.02
TABLE OF CONTENTS (cont.)
Page
7.3 Phased Final Maps. ............................................................................ 10
7.5 Other Governmental Permits. .............................................................. 10
7.6 Public Agency Coordination. ............................................................... 10
8. AMENDMENT OF DEVELOPMENT AGREEMENT. ....................................... 11
8.1 Initiation of Amendment. ...................................................................... 11
8.2 Procedure. ............................................................................................ 11
8.3 Consent. .............................................................................................. 11
8.4 Minor Modifications. .............................................................................. 11
8.5 Effect of Amendment to Development Agreement. .............................. 11
9. RESERVATIONS OF AUTHORITY................................................................. 12
9.1 Limitations. Reservations and Exceptions. ........................................... 12
9.2 Regulation by Other Public Agencies. .................................................. 13
10. ANNUAL REVIEW. .......................................................................................... 13
10.1 Annual Monitoring Review. ................................................................... 13
10.2 Certificate of Compliance. ................................................................... 14
i 10.3 Failure to Conduct Annual Review. ..................................................... 14
11. DEFAULT, REMEDIES AND TERMINATION.................................................. 14
11.1 Rights of Non-Defaulting Party after Default. ....................................... 14
11.2 Notice and Opportunity to Cure. .......................................................... 14
11.3 Waiver of Breach. ................................................................................. 15
11.4 Monetary Default. ................................................................................. 15
11.5 Rights and Duties Following Termination. ............................................ 15
12. ASSIGNMENT. ................................................................................................ 15
12.1 Right to Assign. ..................................................................................... 15
01003/0074/36636 02
TABLE OF CONTENTS (cont.)
Page
12.2 Declaration of Covenants. Conditions and Restrictions ...................... 18
13. INDEMNITY. .................................................................................................... 18
13.1 Third-Party Litigation. ............................................................................ 18
13.2 Hold Harmless: Developer's Construction and Other Activities. .......... 19
13.3 Survival of Indemnity Obligations. ........................................................ 20
14. EFFECT OF AGREEMENT ON TITLE. ........................................................... 20
14.1 Covenant Run with the Land. ............................................................... 20
15. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION ..................... 20
15.1 Non-liability of City Officers and Employees. ........................................ 20
15.2 Conflict of Interest. ............................................................................... 20
15.3 Covenant Against Discrimination. ....................................................... 21
16. MORTGAGEE PROTECTION ......................................................................... 21
i 16.1 Definitions. .......................................................................................... 21
16.2 No Encumbrances Except Mortgages to Finance the Project. ............ 21
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16.3 Developer's Breach Not Defeat Mortgage Lien. ................................... 21
16.4 Holder Not Obligated to Construct or Complete Improvements. ......... 21
16.5 Notice of Default to Mortgagee Deed of Trust or Other Security
InterestHolders. ................................................................................... 22
16.6 Right to Cure. ....................................................................................... 22
16.7 City's Rights upon Failure of Holder to Complete Improvements.
.............................................................................................................. 22
16.8 Right of City to Cure Mortgage, Deed of Trust or Other Security
InterestDefault. .................................................................................... 24
16.9 Right of the City to Satisfy Other Liens on the Property After
Conveyance of Title. ............................................................................ 24
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TABLE OF CONTENTS (cont.)
Page
17. GENERAL........................................................................................................ 24
17.1 Estoppel Certificates. ........................................................................... 25
17.2 Force Majeure. ..................................................................................... 25
17.3 Construction of Development Agreement. ........................................... 25
17.4 Severability,. ......................................................................................... 25
17.5 Attorney's Fees. .................................................................................. 26
17.6 Joint and Several Obligations. ............................................................. 26
17.7 Time of Essence. ................................................................................ 26
17.8 Waiver. ................................................................................................ 26
17.9 No Third Party Beneficiaries. ................................................................ 26
17.10 Mutual Covenants. ............................................................................... 26
17.11 Counterparts. ...................................................................................... 26
17.12 Authority to Execute. ............................................................................ 26
17.13 Notice.................................................................................................... 27
17.14 Further Actions and Instruments. ........................................................ 27
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17.15 Recitals. .............................................................................................. 28
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17.16 Recording. ........................................................................................... 28
17,17 Relationship of Parties. ........................................................................ 28
17,18 Entire Agreement. .............................................................................. 28
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01003/0074/36636.02
ppA�MSA
A.
-�' City of Palm Springs,
Office of the City Clerk
* �OorooRprso•q,« * 3200 E. Tahquirz Canyon Way • Palm Springs, California 92262
C 1e1FORo" Tel: (760) 323-8204 ° Pax: (760)322-8332 ° Web. wwwa.palm-springs ca.us
AFFIDAVIT
OF
MAILING NOTICES
I, the undersigned City Clerk of the City of Palm Springs, California, do hereby
certify that a copy of the Notice of Public Hearing and Notice of Exemption, to
consider the Development Agreement between Palm Springs Marquis, LLC, and
the City of Palm Springs for Case 5.0975, TTM 31905, and Variance 6.473, a
86-unit timeshare project, on September 7, 2005. A copy of said notice was
mailed to each and every person set forth on the attached list on the 24th day of
l August, 2005, in a sealed envelope, with postage prepaid, and depositing same in
the U.S. Mail at Palm Springs, California. (112 notices mailed)
I declare under penalty of perjury that the foregoing is true and correct.
Dated at Palm Springs, California, this 25th day of August, 2005.
ZMES THOMPSON
C//Clty Clerk
/kdh,
H:\IJSERS\C-CLK\Hearing Notices\Affidavit-PS Marquis.doc
Post Office Box 2743 9 Palm Springs, California 92263-2743
*9 PA M SA
City of Palm Springs
V � N
Office of the City Clerk
* b�oR>ORISED,q3 * 3200 E.Tahquwtz Canyon Way • Palm Springs, California 92262
C �P Tel:(760)323-8204 • Fax: (760) 322-8332 • Web: wwwxi.palm-springs.ca.us
q�/PORN
August 24, 2005
Ms. Claudia Salgado
Bureau of Indian Affairs
901 E. Tahquitz Canyon Way
Palm Springs, CA 92262
IDear Ms. Salgado:
I
RE: City Council Meeting — September 7, 2005
Palm Springs Marquis
The City Council of the City of Palm Springs will be conducting a public hearing relating to the
above referenced subject on September 7, 2005. Attached are 10 copies of the public hearing
notice to be forwarded to the appropriate Indian landowner(s) within the 400 ft. radius of the
project location.
'The parcels of Indian owned land within the 400 ft. radius of the project are listed below:
508-081-003 508-084-007 508-081-008
508-082-003 508-082-074 508-082-007
508-084-002 508-085-002 508-081-008
608-086-002 508-087-016thru 508-087-07
Please feel free to contact me if there are any questions or concerns, 323-8206.
Sincerely,
1�'a<9�
(Cathie Hart, CIVIC
Chief Deputy City Clerk
/kd h
Attachment: Public Hearing Notice (10 copies)
C.\Documents and Settings\KathyH\My Documents\Public Hearing Notices to BIA-PS Marquis.doc
Post Office Box 2743 • Palm Springs, California 92263-2743
NOTICE OF PUBLIC HEARING AND NOTICE OF EXEMPTION
CITY COUNCIL
CITY OF PALM SPRINGS
Case No. 5.0975, TTM 31905, Variance No. 6.473
Palm Springs Marquis, LLC Development Agreement
190 Calle Encilia South, Zone R4-VP I.L., Land Use H43/30, Section 14, T4S, R4E, SBBM,
APN #508-082-005.
NOTICE IS HEREBY GIVEN that the City Council of the City of Palm Springs, California will hold a
public hearing at its meeting of September 7, 2005. The meeting begins at 6:00 p.m. in the
Council Chamber at City Hall, 3200 East Tahquitz Canyon Way, Palm Springs.
j The purpose of the hearing is to consider the Development Agreement between Palm Springs
Marquis, LLC, and the City of Palm Springs for Case 5.0975, TTM 31905, and Variance 6.473, a
86-unit timeshare project. The intent of the development agreement is to memorialize the Financial
i Impact Mitigation Fee (FIM Fee) obligation, and an agreement by the applicant to pay certain
infrastructure improvements and to pay for landscaping, lighting and other public maintenance
expenses, and the property expectations of the City and the Developer.
The.FIM Fee is paid to the City to compensate for certain costs imposed on the City by the Project,
and for improvements and services of the City that will benefit the Project. The FIM Fee shall be
paid to the City so that these units contribute to the payment for City services as would hotel units
and would pay for project costs including infrastructure costs, payment for maintenance of public
landscaping, lighting and improvements, access to trails on city property, and to pay for other
service enhancements and other obligations undertaken by Developer.
Pursuant to Section 15332 of the California Environmental Quality Act (CEQA) Guidelines, a
Notice of Exemption was previously filed with the Riverside County Clerk on June 4, 2004, in
conjunction with the approval of the project. Members of the public may view this document in the
Department of Planning Services, City Hall, 3200 East Tahquitz Canyon Way.
Response to this notice may be made verbally at the public hearing and/or in writing before the
hearing. Written comments may be made to the Planning Commission by letter (mail or hand
delivery) to:
Mr. James Thompson, City Clerk
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, CA 92262
If any individual or group challenges the action in court, issues raised may be limited to only those
issues raised at the public hearings described in this notice or in written correspondence at or prior
to the Council meeting.
Notice of Public Hearing is being sent to all property owners within four hundred (400) feet of the
subject property. An opportunity will be given at said hearing for all interested persons to be heard.
Questions regarding this case may be directed to Lance Schulte, Principal Planner, Department of
Planning Services, 760-323-8245.
Si necesita ayuda con esta carta, porfavor (lame a la Ciudad de Palm Springs y puede hablar con
Nadine Fieger telefono 760-323-8245.
J es Thompson
ity Clerk
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CITY OF PALM SPRINGS
CASE- NO.: 5.0975-CUP, TTM 31905, & DESCRIPTION: Consideration of Development
6.473 Agreement between City of Palm Springs and P.S.
Marquis for 5.0975, TTM 31905, Variance 6.473 to
memorialize the Financial Impact Mitigation Fee
APPLICANT: Happy Valley, LLC (aka) obligations for applicant to pay certain infrastructure
improvements, landscaping, lighting and public main-
Palm Springs Marquis, LLC tenance expenses for the 86-unit Marquis Timeshares
project located at the northwest corner of Arenas Road
and Calle Encilia, Zone R-4, Section 14. (IL)
If d CIF rPALH SPi�dE?3,i35
2U i tl� L J No. 3335
NOTICE PUBLIC HEARING
AND NOTICE OF EXEMPTION
7� TTnT l rl yCy,�T jhL��7I'.'L�"'»' CITY COUNCIL
PROOFO P V LLR�k`T, �1A:'.; U CITY OF PALM SPRINGS
(201 TTM 5.C.C.C.P` Case Vari nce No 6.4731905,
J ) Palm Springs Marquis,
LLC Development Agreement
190 Calls Encilia South
Zone R4-VP I.L. Land Use t143/30,
Section 14,f4S, R4E, SBBM,
APN #508-082-005.
NOTICE IS HEREBY GIVEN that the City Council
of the City of Palm Springs, California will hold a
publlc hearing at its meeting of September 7,
2005 The meeting begins at 6'00 p.m In the
STATE OF CALIFORNIA Council Chamber at City Hall,3200 East Tahgwtz
County of Riverside Canyon Way, Palm Springs.
The purpose of the hearing Is to consider the De-
velopment Agreement between Palm Springs
Marquis, LLC, and the City of Palm Springgs for
Case 5.0975, TTM 31905, and Variance 6.473, a
86-unit timeshare p
reject.
The intent of the devel-
opment agreement'is to memorialize the Financial
Impact Mitigation Fee (FIM Fee) obligation, and
an agreement by the applicant to pay certain in-
frastructure improvements and to pay for land-
I am a citizen of the United States and a resident of scaping, lighting and other public maintenance
expenses, and the property expectations of the
the County aforesaid; I am over the age of eighteen City and the Developer.
years,and not a party to or interested in the
above-entitled matter.I am the principal clerk 6f a
printer of the,DESERT SUN PUBLISHING
COMPANY a newspaper of general circulation,
printed and published in the city of Palm Springs,
County of Riverside,and which newspaper has been
adjudged a newspaper of general circulation by t110
Superior Court of the County of Riverside,State of
California under the(late of March 24,1988.Case
Number 191236;that the notice,of which the
annexed is a printed copy(set in type not smaller
than non pariel,has been published in each regular ",Iry or PAL„,sP",N"s and entire issue of said newspaper and not in any °•__ "'""°`
supplement thereof on the following dates,to wit: i• .�•M A•• -The FIM Fee is paid to the City to compensate for
August 27"',2005 certain casts imposed on the City by the Project,
and for improvements and services of the City
-------------------------------------------------------------- that will benefit the Pro ect.The FIM Fee shall be
To
to the City so ilia these units contribute to
the payment for City services as would hotel units
and would pay for project costs Including infra-
-- --------------------------------------------------------- structure costs, payment for maintenance of pub-
All in the ear 2005 lic landscaping, lighting and improvements, ac-
cess to trails on city property,and to pay for oth-
I certify(or declare)under penalty of perjury that the er service enhancements and other obligations
foregoing is true and correct. undertaken by Developer.
_ Pursuant to Section 15332 of the California Envi-
/'r' ronmental Quality Act(CEQA)Guidelines,a Notice
•• ❑ of Exemption was previous filed with the Rlver-
Dat¢d at Pfl l'iil Sprin sx Cali ornia this-----27 �,----day side County Clerk on June 4.2004.In conjunction
with the approval of the project. Members of the
public may view this document In the Department
- =--.------------------2005 of Planning Services, City Hall, 3200 East Tah-
4._i_.—._.-i .... quitz Canyon Way.
of---------Au us n\- /
g - Response to this notice may be made verbally at
f the ublic hearing and/or in writing before the
-- -----------------gsc_____________________ -------------- hearer g. Written comments may be made to the
\� Planning Commission by letter(mall or hand de-
Signature - live to:
Mr. James Thompson, City Clerk
City of Palm Springs
—� 3200 East To
Canyyon Way
Palm Springs, CA 92262
If any individual or group challenges the action in
court, issues raised may be limited to only those
issues raised at the public hearings described in
this notice or in written correspondence at or pri-
or to the Council meeting.
Natice of Public Hearing is dre sent to all f the
erty owners within four hundred (will feet of the
1 subject property An on erest d persons
be given e
said hearing for all interested persons be he
heard. Questions o lilt, this case may be e-
rected to Lance Schulte, Principal Planner, De-
partment of Planning Services, 80-323-8245.
Si necesba ayuda con card carts, porfavor Ilame a
Is Ciudad de Palm Springs y puede hablar con
Nadine Fleger telefono 760-323-8245.
James Thompson
City,plerk
l 7 3 / .70 - S ° 17J-
508 081 002 508 081 008 508 082 074
Piaza Welmas Inc Vibc Services Co Usa Cap Diversified Trust Deed Fu
115 S Indian Canyon Dr 1498 W Main St 4484 S Pecos Rd
Palm Springs, CA 92262 El Centro, CA 92243 Las Vegas, NV 89121
508 085 005 508 087 001 508 087 022
Robray Hotel Partnership Roman Catholic Bishop Of Sb Gerard Reinert
1150 Ballena Blvd#220 1201 E Highland Ave PO Box 975
Alameda, CA 94501 San Bernardino, CA 92404 Highland, CA 92346
508 087 044 508 087 091 508 088 001
A P&S J Scheidau Timothy Oliver Ty Cullen R r
255 S Avenida Caballeros#207 721 E Arenas Rd 875 E Arenas Rd
Palm Springs, CA 92262 Palm Springs, CA 92262 Palm Springs, CA 92262
508 088 002 508 088 003 508 088 004 a
In
& oris Dium Cosimo ar orie Aiello David&Teresa Blaney
877 enas Rd 123 echanic St 1357 W 35th St
P Springs., CA 92262 N Buffalo,MI 49117 San Pedro, CA 90731 y
508 088 005 508 088 006 508 088 007 G
Joseph&Katheryn Brennan Thomas&Linda Wagenhoffer Mary Patterson
873 E Arenas Rd 3405 SE 172nd Ave 2970 Bayside Walk
Palm Springs, CA 92262 Vancouver, WA 98683 San Diego, CA 92109
508 088 008 / 508 088 009 508088011
Robert& orothy Norris Jerry Antes Robert&Tanya Rocks
867E enas Rd 865 E Arenas Rd 12489 Graintvood Way
P�1 Springs, CA 92262 Palm Springs, CA 92262 San Diego, CA 92131
508 088 012 508 088 013 508 088 014
Dan Venable&Richard Velez Amra Martin Victoria Murray&Margaret Brake
151 Dumond Dr 9636 Phoenician Ave 25941 El Segundo St
Laguna Beach, CA 92651 Las Vegas, NV 89147 Laguna Hills, CA 92653
508 088 015 508 088 016 508 088 017
Frank&Joanne Spates Stephen Foristel Richard Matgen&George Craig
859 E Arenas Rd 851 E Arenas Rd 430 Silver Ave
Palm Springs, CA 92262 Palm Springs, CA 92262 San Francisco, CA 94112
508 088 018 508 089 019 508 088 020
Harold&Sferrati Michael Kescher Albert&Esther Lott Lybarger
49 Diamond Head Psge 2920 76th Ave SE#309 25670 Nugget
Corte Madera, CA 94925 Mercer Island, WA 98040 Lake Forest, CA 92630
508 088 021 508 088 022 508 088 023,,//
Maryann Oconnor Gerald&Vicki Hayek Mary RoyvYand
841 E Arenas Rd 1544 Redhill North Dr 837 E Arenas Rd
Palm Springs, CA 9922262 Upland, CA 91786 PO n Springs, CA 92262
�b
508088024 508 088 025 508 098 026
William Balkey Ann Chen&Yee Chen Martha Vitalie
1260 N Flores St#4 2485 Telegraph Rd 833 E Arenas Rd
West Hollywood,CA 90069 Bannockburn, IL 60015 Palm Springs, CA 92262
508 088 027 508 088 028 508 088 029
James&Vera Kubath Cynthia Furlong Kathleen wer
341 S Perkins Blvd 827 E Arenas Rd 825 euas Rd
Burlington, WI 53105 Palm Springs, CA 92262 P n Springs,CA 92262
508 088 030 508 088 031 508 088 032
Kenneth Davis Ted&Berniece Parent Sr. Rose&Fern Appel
823 E Arenas Rd 25943 NE Butteville Rd 9221 Alcott St#1
Palm Springs, CA 92262 Aurora,OR 97002 Los Angeles, CA 90035
508 088 033 508 088 03 508 088 035
Robert Wilson ;813
ean0 addock Marlene De Lille
811 E Arenas Rd Arenas Rd PO Box 559
Palm Springs, CA 92262 Im Springs, CA 92262 Palm Springs, CA 92263
508 088 036 508 088 037 508 088 038
Hemi Montoya Thill F J Frasco Agency Inc
817 E Arenas Rd 809 E Arenas Rd 215 W Alameda Ave#203
Palm Springs, CA 92262 Palm Springs, CA 92262 Burbank, CA 91502
509 088 039 509 088 040 yakeuB
Allan&Charlene Weinstein Carl Nels & Constance Nelsen American Corp
804 Manzanita Way 5918 aybrook Cir llevueDr
Vancouver, WA 98661 erside, CA 92506 WA 98005
508 088 042 508 088 043 508 088 044
Craig Dunn Kenneth Jervis Brian Strald &Marc Laliberte
1893 Robinson Ave 10209 La Reiva Ave 649 E Arenas Rd#3
San Diego, CA 92103 Downey, CA 90241 Palm Springs, CA 92262
508 088 045 508 088 046 508 088 047
Lee&Maria Winkler Oliver Cleary Ronald Haft
15250 Ventura Blvd 4710 105 W F St#411 1255 22nd St NW
Sherman Oaks, CA 91403 San Diego, CA 92101 Washington, DC 20037
508 088 048 508 088 049 508 088 050
J D Mancini Joseph Costantino Scott Singer&Bobby Sadler
657 E Arenas Rd 659 E Arenas Rd 663 E Arenas Rd#9
Palm Springs, CA 92262 Palm Springs, CA 92262 Palm Springs, CA 92262
508 088 051 508 088 052 508 088 053
Vera Sum&Parandelu Kia David Clark Patin Springs Modern Homes I
934 19th St 46 667 E Arenas Rd 74140 El Pasco#4
Santa Monica, CA 90403 Palm Springs, CA 92262 Palm Desert, CA 92260
5,
508 088 054 508 088 055 508 088 056
Patricia Clayton Clayton Barbour 11&Stephen Sabol Robert Greenbaum
11 Monterey Cir 673 E Arenas Rd 681 E Arenas Rd
Corona Del Mar, CA 92625 Palm Springs, CA 92262 Palm Springs, CA 92262
508 088 057 508 088 058 508 088 059
Christian Slotter Peter Gonzales Tracy Crump
677 E Arenas Rd 691 Irolo St#1611 683 E Arenas Rd
Palm Springs, CA 92262 Los Angeles, CA 90005 Palm Springs, CA 92262
508 088 060 508 088 061 508 088 062
Wayne Thompson&Christina Durand Marienne Mcclure Palm Springs Modern Homes I
685 E Arenas Rd#19 860 Smmuit Rd 74140 El Pasco#4
Palm Springs., CA 92262 Santa Barbara, CA 93108 Palm Desert, CA 92260
508 088 063 508 088 064 508 088 065
Alan Freidenrich Leland Rudofsky&Melvyn&Sa Wein Donald Wells
3220 112th PI SE 100 S Glencoe St 695 E Arenas Rd
Everett, WA 98208 Denver, CO 80246 Palm Springs, CA 92262
508 088 066 508 570 001 508 570 002
Palm Springs Modem Homes I Taloquitz Carryon Investors Llc Tahquitz Canyon Hovestors Llc
74140 El Pasco#4 1919 Grand Ave#2A 1919 Grand Ave#2A
Pahn Desert, CA 92260 San Diego, CA 92109 San Diego, CA 92109
508 570 009 508 570 012 508 571 037
South Park Dee Ltd South Park Dev Ltd Banter Inc
Canyon Love Tahquitz Canyon hove Tahquitz 1055 E Tropicana Ave#700
1919 Grand Ave 42A 1919 Grand Ave#2A Las Vegas, NV 89119
San Diego, CA 92109 San Diego, CA 92109
508 571 039 508 571041 508 571 081
Banter Inc South Park Dev Ltd South Park Dev Ltd
1055 E Tropicana Ave#700 Canyon Inve Tahquitz Canyon Inve Tahquitz
Las Vegas, NV 89119 1919 Grand Ave 42A 1919 Grand Ave#2A
San Diego, CA 92109 San Diego, CA 92109
508 571 082 508 571083 508 571 084
South Park Dev Ltd South Park Dev Ltd South Park Dev Ltd
Canyon Iove Tahquitz Canyon Inve Tahquitz Canyon Inve Tahquitz
1919 Grand Ave#2A 1919 Grand Ave#2A 1919 Grand Ave#2A
San Diego, CA 92109 San Diego, CA 92109 San Diego, CA 92109
508 571 085 508 571 086 508571087
South Park Dev Ltd South Park Dev Ltd South Park Dev Ltd
Canyon Inve Tahquitz Canyon Inve Tahquitz Canyon Inve Tahquitz
1919 Grand Ave 42A 1919 Grand Ave#2A 1919 Grand Ave#2A
San Diego, CA 92109 San Diego, CA 92109 San Diego, CA 92109
508 571 088 508 571 089 508 572 029
South Park Dev Ltd South Park Dev Ltd Banter Inc
Canyon Iove Tahquitz Canyon Inve Tahquitz 1055 E Tropicana Ave#700
1919 Grand Ave#2A 1919 Grand Ave 42A Las Vegas, NV 89119
0�
508 572 031 508 572 041
Banter Inc South Park Dev Ltd
1055 E Tropicana Ave#700 Canyon Inve Tahquitz
Las Vegas,NV 89119 1919 Grand Ave#2A
San Diego, CA 92109
NEIGHBORHOOD COALITION REPS
August 2005 MS APRIL HILDNER MR TIM HOHMEIER
5.0975/TTM 319051 VAR.6473 (TAHQUITZ RIVERS ESTATES) (DEEPWELL ESTATES)
C.C. HEARING 9-7-05 241 EAST MESQUITE AVENUE 1387 CALLE DE MARIA
PALM SPRINGS CA 92264 PALM SPRINGS CA 92264
MS ROXANN PLOSS MR STEVEN PERRIN MS SHERYL HAMLIN
(BEL DESIERTO NEIGHBORHOOD) (DEEPWELL RANCH) (HISTORIC TENNIS CLUB AREA)
930 CHIA ROAD 1334 INVIERNO RIDRIVE 565 WEST SANTA ROSA DRIVE
PALM SPRINGS CA 92262 PALM SPRINGS CA 92264 PALM SPRINGS CA 92262
MR JOHN HANSEN MR BILL SCOTT MS DIANE AHLSTROM
(WARM SANDS NEIGHBORHOOD) (LAS PALMAS NEIGHBORHOOD) (MOVIE COLONY NEIGHBORHOOD)
PO BOX 252 540 VIA LOLA 475 VALMONTE SUR
PALM SPRINGS CA 92263 PALM SPRINGS CA 92262 PALM SPRINGS CA 92262
MR KENT CHAMBERLIN MR BOB MAHLOWITZ MS PAULA AUBURN
(TENNIS CLUB AREA) , (SUNMOR NEIGHBORHOOD GROUP) (SUNRISENISTA CHINO AREA)
373 MONTE VISTA 246 NORTH SYBIL ROAD 1369 CAMPEON CIRCLE
PALM SPRINGS CA 92262 PALM SPRINGS CA 92262 PALM SPRINGS CA 92262
MR BOB DICKINSON MS MALIKAALBERT
(VISTA LAS PALMAS HOMEOWNERS) (CHINO CANYON ORGANIZATION)
755 WEST CRESCENT DRIVE 2241 NORTH LEONARD ROAD
PALM SPRINGS CA 92262 PALM SPRINGS CA 92262
MODCOM AND MR PETE MORUZZI
HISTORIC SITE REP - PALM SPRINGS MODERN COMMITTEE
PO BOX 4738
PALM SPRINGS CA 92263-4738
Verification of Mailin CASE No.5.0975
9 PLANNING SERVICES DEPT
CITY OF PALM SPRINGS
PO BOX 2743
PALM SPRINGS CA 923263
CASE 5.0975
CASE 5.0975 MR JAMES CIOFFI
HAPPY VALLEY LLC JAMES CIOFFI ARCHITECT
SPONSORS&OWNERS-J-J-J 4484 SOUTH PELSS ROAD 2121 EAST TAHQUITZ CANYON WAY#3
LAS VEGAS NV 89121 PALM SPRINGS CA 92262
CASE 5.0975
CASE 5.0975 TKD ASSOCIATES
SANBORN A/E SUITE K2
1227 SOUTH GENE AUTRY TRAIL 41-750 RANCHO LAS PALMAS DRIVE
PALM SPRINGS CA 92264 RANCHO MIRAGE CA 92270
City of Palm Springs
Department of Planning Services
V N
• • 3200 East Tahquitz Canyon Way
• Palm Springs, CA 92262
LrFpR Telephone: 760-323-8245 -- Fax: 760-322-8360
Email:JoanneB@ci.paim-springs.ca.us
E ,rzv J V fi 0 R /l`L tl 511 D P IL`i I:
Date: April 14, 2005
To: Claudia Salgado AND
Arvada Wilson
Bureau of Indian Affairs
From: Joanne Bruggemans, Secretary
Planning Services Department
Subject: Planning Commission Hearing, April 27, 2005
Case No: 5.0975, TTM 31905, Variance No. 6.473
Palm Springs Marquis LLC Development Agreement
Here are 8 notices for the above hearing that need to be sent to the appropriate Indian
landowners within the 400' radius of the project location.
There are 69 parcels of Indian owned land in this project. The APN numbers are:
508-081-003 508-081-008
508-082-003 508-082-007 508-082-074
508-084-002 508-084-007
508-085-002
508-086-002
508-087-016thru 508-087-075
Please let me know if you need additional notices and/or postage pre-paid envelopes for
notifying these owners for this important hearing/meeting.
Thanks for all your help and cooperation.
Enclosures: 9 Notices
8 Postage Pre-paid Envelopes