HomeMy WebLinkAbout7/21/2004 - STAFF REPORTS (20) DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Development Agreement" or this
"Agreement") is entered into on 2004, by the CITY OF PALM SPRINGS (the
"City"), a municipal corporation, and PALM HILLS LAND CORP., a California corporation(the
"Developer")pursuant to Article 2.5 of Chapter 4 of Division 1 of Title 7, Sections 65864 through
65969.5 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 terns 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)
General Plan Amendment, Case No. 5-0732, (2)Palm Hills Specific Plan(Planning Area#1), Case
No. 5-0732, (3) Planned Development District No. 258, Case No. 5-0826-PD-258, (4) Tentative
Parcel Map 29101, and (5) Tentative Tract Map 29100 for the development of approximately 900
acres more or less in the southeastern portion of Palm Springs (the "PDD Area") and at the same
time certified Enviromnental Impact Report No. by Resolution No.
Developer has a legal or equitable interest in a portion of the PDD Area as described in Exhibit"A"
(the "Developer's Properly").
C. Legislation Authorizing Development Agreements. To strengthen the public planning
process, encourage private participation in comprehensive planning and reduce the economic risk
of development, the legislature of the State of California adopted the Development Agreement
Statute, Sections 65864, 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 of the development of the Developer's Property, Developer AR
w receive
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assurances that the City shall grant all permits and approvals required for total development of the
Developer's Property in accordance with this Agreement.
E. Public Benefits of Project. The grant of development rights hereunder is
consideration for Developer's good faith efforts to complete the development of a multi-million
dollar destination resort project composed of (1) an 18-hole championship golf course and
clubhouse, (2) a maximum of 129-164 custom residential estates, (3) a maximum of 382 vacation
ownership units, and (4) a maximum of 351 room hotel, as described in the PDD. The project as
approved by the PDD is hereinafter referred to as the"Project." The Project will benefit the City by
creating new jobs in the community, will aid in the revitalization of the tourist trade, and will create
a residential area of the highest quality and unique in the desert. 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 developer 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
$1,582,877 to $1,608,931 per year. The residential component provides approximately $300,000
to $400,000 in property taxes and the hotel/vacation ownership units provide the remaining
$1,300,000 in forecast property tax, sales tax and transient occupancy tax.
F. Public Hearings: Findings. In accordance with the requirements of the California
Environmental Quality Act(Public Resources Code Sections 21000, et M. ("CEQA")), appropriate
studies, analyses, reports or documents were prepared and considered by the Planning Commission
and the City Council. The Planning Commission, after a public hearing on May 26, 2004, by
Resolution No. , recommended, and the City Council, after malting appropriate findings,
certified, by Resolution No. adopted on a Final Environmental Impact
Report for the Project in compliance with CEQA, more specifically identified as the "Palm Hills
Land Corp. Development District Final Environmental Impact Report", dated
State Clearinghouse No. 98061043, Case No.5-0826-PD-258 (the "EIR") . On May 26, 2004, the
Planning Commission of the City (the "Plarming 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 , 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
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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.
1.2 Approved Master Parcel Map. "Approved Master Parcel Map" shall mean a master
parcel map which has been approved by the City in accordance with the California Subdivision Map
Act establishing fourteen(14) parcels for financing purposes only consistent with the PDD.
1.3 Approved Master Tentative Map. "Approved Master Tentative Map" shall mean a
master tentative map which has been approved by the City in accordance with the California
Subdivision Map Act showing a resort and residential project consistent with the PDD.
1.4 Approved Specific Plan. The "Approved Specific Plan" shall mean the Palm Hills
Specific Plan No. 1 as prepared by The Keith Companies, Planning Consultants, and approved by
the City.
1.5 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.
1.6 Authorizing Ordinance. The "Authorizing Ordinance" means Ordinance No.
approving this Development Agreement.
1.7 The City. The "City"means the City of Palm Springs, California.
1.8 City Council. The "City Council" means the governing body of the City of Palm
Springs.
1.9 City Development Agreement Ordinance. The "City Development Agreement
Ordinance" means Section 9408 of the Zoning Ordinance which establishes a procedure for the
consideration and approval of development agreements pursuant to the Development Agreement
Statute.
1.10 Claims or Litigation. The term"Claims or Litigation" shall mean any challenge by
adjacent owners or any other third parties (i)to the legality, validity or adequacy of the General Plan,
Land Use Regulations, this Development Agreement, Development Approvals, or other actions of
City pertaining to the Project, 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.
1.11 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.
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1.12 Development. "Development"means the improvement of the Developer's Property
for purposes of effecting the structures, improvements and facilities comprising the Project
including,without limitation: grading,the construction of infrastructure and public facilities related
to the Project whether located within or outside the Developer's Property; the construction of
structures and buildings; and the installation of landscaping; but not including the maintenance,
repair, reconstruction or redevelopment of any structures, improvements or facilities after the
construction and completion thereof.
1.13 Development Agreement Statute. The "Development Agreement Statute" means
Sections 65864 through 65869.5 of the California Govermnent Code as it exists on the Development
Agreement Date.
1.14 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
developments, conditional use permits, grading,building, and other similar pen-nits,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
tern Development Approvals does not include rules, regulations,policies, and other enactments of
general application within the City.
1.15 Development Plan. The "Development Plan" means the Existing Development
Approvals, Future Development Approvals and Existing Land Use Regulations.
1.16 Effective Date. The "Effective Date" means the date the Agreement becomes
effective as set forth in Section 3.2.
1.17 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.
1.18 Existing Development Approvals. The "Existing Development Approvals"means
only the Development Approvals which are listed on Exhibit "C".
1.19 Existing Land Use Regulations. The "Existing Land Use Regulations" means those
certain Land Use Regulations applicable to the Property in effect on the Effective Date.
1.20 Future 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
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1.21 Land Use Regulations. The "Land Use Regulations" means those ordinances, laws,
statutes,rules, regulations, initiatives,policies, requirements, guidelines, constraints, codes or other
actions of the City which affect, govern, or apply to the Property or the implementation of the
Development Plan. Land Use Regulations include the ordinances and regulations adopted by the City
which govern permitted uses of land, density and intensity of use and the design of buildings,
applicable to the Property, including, but not limited to, the General Plan, specific plans, zoning
ordinances, development moratoria, implementing growth management and phased development
programs, ordinances establishing development exactions, subdivision and park codes, any other
similar or related codes and building and improvements standards, mitigation measures required in
order to lessen or compensate for the adverse impacts of a project on the environment and other
public interests and concerns or similar matters. The term Land Use Regulations does not include,
however, regulations relating to the conduct of business, professions, and occupations generally;
taxes, and assessments; regulations for the control and abatement of nuisances; building codes;
encroachment and other permits and the conveyances of rights and interests which provide for the
use of or entry upon public property; any exercise of the power of eminent domain; or similar
matters.
1.22 Legal or Equitable Interest. The term "legal or equitable interest" shall mean (i) 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.
1.23 Mortgage. "Mortgage" means a mortgage, deed of trust, or sale and leaseback
arrangement or other transaction in which all or any portion of or interest in the Developer's Property
is pledged as security.
1.24 Mortgagee. "Mortgagee" refers to the holder of a beneficial interest under a
Mortgage.
L25 Developer. "Developer"means Palm Hills Land Corp., a California corporation, and
any permitted assignee in accordance with Section 12.
1.26 Developer's Property. The"Developer's Property" means that real property shown
and described on Exhibit"A" in which Developer currently holds a legal or equitable interest.
1.27 Planned Development District or PDD. The "Plamied Development District" or
"PDD"means the zoning designation of the City of Palm Springs designed to provide for compatible
land uses within a planned development as specifically approved by the City for the Project under
Planned Development District No. 258 on ,by Resolution No.
1.28 PDD Area. The"PDD Area"means all that real property which is subject to the PDD.
1.29 Phase or Phases. The term"Phase"or"Phases" or references to a specific Phase shall
mean those portions of the Project as designated in the Phasing Plan summarized on Exhibit `B."
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1.30 Phasing Plan. The term "Phasing Plan" shall mean the phasing plan for the Project
summarized on Exhibit "B".
1.31 Planning Director. "Plamiing Director" shall mean the Director of Planning and
Zoning or similar officer of City.
1.32 Project. The "Project"means the development of the Developer's Property pursuant
to the Development Plan and this Agreement.
1.33 Reservations of Authority. The term "Reservation of Authority" shall have the
meaning set forth in Section 9 of this Agreement.
1.34 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.
1.35 Financial hnpact Mitigation Fee. The term"FIM Fee" shall mean the fee described
in Exhibit F which shall be paid on timeshare intervals in lieu of the payment of transient occupancy
taxes 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 enhancement and obligations of the Developer.
2. EXHIBITS.
The following are the Exhibits to this Agreement:
Exhibit A: Map and Legal Description of the Developer's Property
Exhibit B: Phase Plan
Exhibit C: Existing Development Approvals
Exhibit D: Estoppel Certificate
Exhibit E: Summary of Pees, 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
3. TERM.
3.1 Term. The tern of this Development Agreement(the "Tenn") shall commence on the
Effective Date and shall continue for a period of fifteen (15) 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.
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4. DEVELOPMENT OF THE DEVELOPER'S PROPERTY.
4.1 Right to Develop. During the Term, Developer shall have a vested right to develop
the Developer's Property (subject to Section 5 below) to the full extent permitted by the
Development Plan and this Development Agreement. Except as provided within this Development
Agreement, the Development Plan shall exclusively control the development of the Property
(including the uses of the Property, the density or intensity of use, the maximum height and size of
proposed buildings,the provisions for reservation or dedication of land for public purposes and the
design, improvement and construction standards and specifications applicable to the Project).
4.2 Existing Development Approvals. Only those items specifically set forth on
Exhibit"C" hereto are deemed Existing Development Approvals for purposes of this Agreement.
Any approvals not included within Exhibit"C" shall not apply to the Project with the exception of
those reservations set forth in Section 9 below.
4.3 Obligation of City Respecting Financing. Nothing to the contrary in this Agreement
withstanding, the Developer shall have the right to request City to commence proceedings to
consider forming assessment, benefit, maintenance or other districts (including without limitation
Mello-Roos Community Facilities Districts)under applicable laws to pay for the costs and expenses
associated with the Public Improvements or any of them and if in 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 arty such request relating to any other financing method, City shall give due
consideration to utilization of the requested other financing method, taking into account the
requirements of applicable laws, and the benefit to be derived with respect to development of the
Project of such public financing methods as they relate to reduce in cost of development of the
Project and the enhancement thereof to achieve the intent of the parties hereunder. If, after such good
faith consideration as aforesaid, City in its sole discretion decides to provide such public assistance,
then City agrees to use its best efforts to take all actions as may be necessary or appropriate in order
to do so, and the Developer shall cooperate in connection therewith. The City makes no
representation to Participant that project bonds may be issued respecting this Project and/or the
amount of same due to a number of potential legal issues, including but not limited to, that if any
portion of the underlying 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 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.
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5. TIME FOR CONSTRUCTION AND COMPLETION OF PROJECT.
5.1 Right of Developer to Control Timing. Developer canmot fully predict the timing,
phasing, or sequencing in which the Project will be developed, if at all. Such decisions depend upon
numerous factors,many of which are not completely within the control of Developer, such as market
orientation and demand, interest rates, absorption, completion, and the state of the general economy.
Therefore, Developer may decide, subject to the 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 nurnber of vacation ownerships
and hotel units below the maximum provided for herein 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 units (in 2004 dollars).
5.2 Timing Constraints to Development Plan. The Phasing Plan sets forth Developer's
present plan for the development of the Project. Although Developer may modify the timing,
phasing and sequencing of the Project and amend the Phasing Plan accordingly, in all events, the
Project will be undertaken consistent with the following timing constraints:
(a) Developer will submit a completed Application for a final planned
development district for Phase I within two (2)years of the Effective Date; provided,
however, that said time limit shall be extended by the amount of time that the
Original Term is extended pursuant to Section 3.1.
(b) Developer will commence construction of Phase I (Golf Course) and
Phase II (Single Family — East) within five (5) years of Effective Date of this
Agreement.
(c) Developer shall commence construction of Phase IIIB (Hotel; Vacation
Ownership) within five (5) years of the Effective Date of this Agreement.
(d)Developer shall commence construction of remaining phases(Phase IIIA,
Phase IV) within the term of this Agreement.
(e) The timing constraints for construction of public improvements shall be
as provided in Section 5.3.
(f) 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 PDD identifies the
public infrastructure but does not specify precisely the phasing of the public infrastructure. The City
desires that required public infrastructure generally be constructed in the early phases of the
development cycle subject to the guidelines specified below. In consideration of the foregoing,
notwithstanding any provision herein to the contrary,the City shall retain the right to condition any
Future Approvals to require Developer to dedicate necessary land 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:
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(a) The dedication, payment or construction must be to alleviate an impact
caused by the Project or be of benefit to the Project; and
(b) The timing of the Exaction should be reasonably related to the phasing of
the development of the Project and said public improvements shall be phased to be
commensurate with the logical progression of the Project development as well as the
reasonable needs of the public and completed based upon the needs of the public
existing from time to time.
City may consent to allow Developer to develop above ground transmission/utility lines for
hardship where there is unreasonable expense and difficulty of trenching; provided, however, that
City may condition such consent upon Developer utilizing appropriate treatments for safety, access
and aesthetics.
When Developer is required by this Development Agreement and/or the Development Plan
to construct any public works facilities which will be dedicated to the City or any other public agency
upon completion and if required by applicable laws to do so, Developer shall perform such work in
the same mariner and subject to the same constriction 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.
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, q(e
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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 PDD, Specific Plan, Mitigation Monitoring Program 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.
7. PROCESSING OF REQUESTS AND APPLICATIONS: OTHER GOVERNMENT
PERMITS.
7.1 Processing. In reviewing Future Development Approvals which are discretionary,the
City may impose only those conditions, exactions, and restrictions which are allowed by the
Development Plan and this Development Agreement. Upon satisfactory completion by Developer
of all required preliminary actions, meetings, submittal of required information and payment of
appropriate processing fees, if any, the City shall promptly commence and diligently proceed to
complete all required steps necessary for the implementation of this Development Agreement and
the development by Developer of the Project in accordance with the Existing Development
Approvals. In this regard, Developer, in a timely manner, will provide City with all documents,
applications,plans and other intonation 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 Maus. 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 Maus. Developer may file as many phased final maps for the Project as
it deems appropriate and consistent with this Agreement.
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7.4 Other Govermnental Permits. Developer shall apply in a timely manner for such other
permits and approvals as may be required from other governmental or quasi-governmental agencies
having jurisdiction over the Project as may be required for the development of, or provision of
services to, the Project in accordance with the phasing requirements set forth herein. The City shall
cooperate with Developer in its efforts to obtain such permits and approvals.
7.5 Public Aaen v Coordination. The City and Developer shall cooperate and use
reasonable efforts in coordinating the implementation of the Development Plan with other public
agencies, if any, having jurisdiction over the Property or the Project.
8. AMENDMENT OF DEVELOPMENT AGREEMENT.
8.1 Initiation of Amendment. Either Party may propose an amendment to this
Development Agreement.
8.2 Procedure. Except as set forth in Section 8.4 below, the procedure for proposing and
adopting an amendment to this Development Agreement shall be the same as the procedure required
for entering into this Development Agreement in the first instance.
8.3 Consent. Except as expressly provided in this Development Agreement, no
amendment to all or any provision of this Development Agreement shall be effective unless set forth
in writing and signed by duly authorized representatives of each of the parties hereto and recorded
in the Official Records of Riverside County.
8.4 Minor Modifications.
(a) Implementation of the Project may require minor modifications of the
details of the Development Plan and performance of the Parties under this
Development Agreement. The Parties desire to retain a certain degree of flexibility
with respect to those items covered in general terms under this Development
Agreement. Therefore, non-substantive and procedural modifications of the
Development Plan shall not require modification of this Development Agreement.
(b) A modification will be deemed non-substantive and/or procedural if it
does not result in a material change in fees, maximum density, 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.
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8.5 Effect of Amendment to Development Agreement. The Parties agree that except as
expressly set forth in any such amendment, an amendment to this Development Agreement will not
alter, affect, impair, modify, waive, or otherwise impact any other rights, duties, or obligations of
either Party under this Development Agreement.
9. RESERVATIONS OF AUTHORITY.
9.1 Limitations. Reservations and Exceptions. Notwithstanding anything to the contrary
set forth hereinabove, in addition to the Existing Land Use Regulations, only the following Land Use
Regulations adopted by City hereafter shall apply to and govern the Development of the Developer's
Property ("Reservation of Authority"):
(a) Future Regulations. Future Land Use Regulations which (i) are not in
conflict with the Existing Land Use Regulations, or (ii) if in conflict with the
Existing Land Use Regulations but the application of which to the Development of
the Developer's Property has been consented to in writing by Developer.
(b) State and Federal Laws and Regulations. Where state or federal laws or
regulations enacted after the Effective Date prevent or preclude compliance with one
or more provisions of the Development Agreement, those provisions shall be
modified, through revision or suspension, to the extent necessary to comply with
such state or federal laws or regulations.
(c) Public Health and Safetv/Uniforni Codes.
(i) Adoption Automatic Regarding Uniform Codes. This
Development Agreement shall not prevent the City from adopting
Future Land Use Regulations or amending Existing Regulations
which are unifonn codes and are based on recommendations of a
multi-state professional organization and become applicable
throughout the City, such as,but not limited to,the Uniform Building,
Electrical, Plumbing, Mechanical, or Fire Codes.
(ii) Adoption Regarding Public Health and Safety/Uniform
Codes. This Development Agreement shall not prevent the City from
adopting Future Land Use Regulations respecting public health and
safety to be applicable throughout the City which directly result from
findings by the City that failure to adopt such Future Land Use
Regulations would result in a condition injurious or detrimental to the
public health and safety and that such Future General Regulations are
the only reasonable means to correct or avoid such injurious or
detrimental condition.
(iii) Adoption Automatic Regarding Regional Programs. This
Development Agreement shall not prevent the City from adopting
Future Land Use Regulations or amending Existing Regulations
which are regional codes and are based on recommendations of a
_50051.DOC 12
county or regional organization and become applicable throughout the
region, such as Coachella Valley Association of Governments.
(d) Planned Development District Regulations. Notwithstanding the
provisions of Section 5.1, it is recognized by the parties that the Existing Approvals,
including the PDD, are generalized and that the City's procedures for 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 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 PDD, and the Specific
Plan and in accordance with this Development Agreement.
9.2 Regulation by Other Public Agencies. It is acknowledged by the parties that other
public agencies not within the control of the City possess authority to regulate aspects of the
Development of the Developer's Property separately from or jointly with the City and this
Development Agreement does not limit the 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 home by Developer. As part of such annual monitoring
review, within thirty(30) days after each ann iversany of this Agreement, Developer shall deliver to
City all information reasonably requested by City(i) regarding Developer's performance under this
Agreement demonstrating that Developer has complied in good faith with terms in this Agreement
and (ii) as required by the Existing Land Use Regulations.
If the City determines that Developer has substantially complied with the terms and
conditions of this Development Agreement, the review shall be concluded. If the City finds and
determines that Developer has not substantially complied with the terms and conditions of this
_50051 DOC 13
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 Rights of Non-Defaulting Party after Default. The parties acknowledge that both
Parties shall have hereunder all legal and equitable remedies as provided by law following the
occurrence of a default (as defined in Section 11.2 below) or to enforce any covenant or agreement
herein. Before this Agreement may be terminated or action may be taken to obtain judicial relief the
Party seeking relief("Nondefaulting Parry") 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 Parry under the temis 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 cornmences to cure the default within the thirty(30) day period;
(d) Makes periodic reports to the Non-Defaulting Party as to the progress of
the program of cure; and
(e) Diligently prosecutes such cure to completion, 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
50051 Doc 14
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
armum, or (ii) the maximum rate permitted by law, from and after the due date of said monetary
obligation until payment is actually received by City.
11.5 Rights and Duties Following Termination. Upon the termination of this Development
Agreement, no Party shall have any further right or obligation hereunder except (i) with respect to
any obligations to have been performed prior to said termination or with respect to any default in the
performance of the provisions of this Development Agreement which has occurred prior to said
termination, and (ii) with respect to the indemnity obligations set forth herein.
12. ASSIGNMENT.
12.1 Right to Assign.
(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 tern"assigmnent' 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 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 restrictions set forth
herein. In the event Developer or any general partner comprising Developer or its
_5005!.DOC 15 /OJW
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.
The foregoing prohibition shall not apply to any of the following:
(i) Any mortgage, deed of trust, sale/lease-back, or other form
of conveyance for financing and any resulting foreclosure therefrom.
(ii) The granting of easements or dedications to any
appropriate governmental agency or utility or permits to facilitate the
development of the Developer's Property.
(iii) A sale or transfer resulting from or in connection with a
reorganization as contemplated by the provisions of the Internal
Revenue Code of 1986, as amended or otherwise, in which the
ownership interests of a corporation are assigned directly or by
operation of law to a person or persons, firm or corporation which
acquires the control of the voting capital stock of such corporation or
all or substantially all of the assets of such corporation. N3
SODS!.DOC 16
(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 Terns of Agreement. Following any such assignment or
transfer of any of the rights and interests of Developer under this Development
Agreement, in accordance with Section 12.1(a) above, the exercise, use and
enjoyment shall 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.
(d)No Approval of Terms of Loan byCity. 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 terns or conditions of Developer's
financing arrangements with third party lenders.
12.2 Sale to Residential Builder. Nothing herein shall prevent Developer from selling a
portion of the Property for residential development subject to any approved final subdivision map
to a residential builder for constriction of houses in accordance with the terms of this Agreement
provided that said transferee must enter into appropriate agreements including with City to assure
that all development restrictions hereunder, including with regards to timing, will be met.
12.3 Termination of Agreement With Respect to Individual Parcels Upon Sale to Public.
Notwithstanding any provisions of this Development Agreement to the contrary,this Development
Agreement shall terminate as to any lot which has been finally subdivided and improved with all
required public improvements and which is individually (and not in"bulk") sold to an owner-user
and thereupon and without the execution or recordation of any further document or instrument such
lot shall be released from and no longer be subject to the provisions of this Development Agreement;
provided, however,that CC&R's are placed of record in accordance with Section 12.4.
_5005!.noC 17 /031
12.4 Declaration of Covenants. Conditions and Restrictions. Prior to the transfer of any
portion of the Project to a third party, Developer shall submit a proposed form of Declaration of
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, FIR 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-Party Litigation.
(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.
hi 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 Laid Use Regulations, the Development 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,
Laid 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. /04$000
5005LDOC 18
(c)Participation in Litigation: fridemnity. The Developer agrees to indermufy
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 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 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 /0(0
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
50051.DOC 19
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 Properly, (ii)runs with such lands, and(iii) is binding upon each parry
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 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.
15.3 Covenant Against Discrimination. Developer covenants that, by and for itself, its
heirs, executors, assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of persons on account of race, color,
creed, religion, sex, marital status, national origin, or ancestry in the performance of this
Development Agreement. Developer shall take affirmative action to insure that employees are treated
during employment without regard to their race, color, creed religion, sex, marital status, national
origin or ancestry.
16. MORTGAGEE PROTECTION.
16.1 Definitions. As used in this Section,the term"mortgage" shall include any mortgage,
whether a leasehold mortgage or otherwise, deed of trust, or other security interest, or sale and lease-
back, or any other form of conveyance for financing. The term"holder" shall include the holder of
any such mortgage, deed of trust, or other security interest, or the lessor,under a lease-back, or the
grantee under any other conveyance for financing.
16.2 No Encurmbrances Except Mortgages to Finance the Project. Notwithstanding the
restrictions on transfer in Section 12, mortgages required for any reasonable method of financing of
the construction of the improvements are permitted but only for the following: (a) for the purpose
_5005..noC 20 07
of securing loans of fmlds 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, encuunbrance, 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 wiess 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 Obligated to Construct or Complete Improvements. The holder of any
mortgage shall in no way be obligated by the provisions of this Agreement to construct or complete
the improvements or to guarantee such construction or completion. Nothing in this Agreement shall
be deemed or construed to permit or authorize any such holder to devote the Project or any portion
thereof to any uses, or to construct any improvements thereon, other than those uses or improvements
provided for or authorized by this Agreement.
16.5 Notice of Default to Mortgagee Deed of Trust or Other Security Interest Holders.
Whenever City shall deliver any notice or demand to Developer with respect to any breach or default
by Developer hereunder, City shall at the same time deliver a copy of such notice or demand to each
holder of record of any mortgage who has previously made a written request to City therefor, or to
the representative of such lender as may be identified in such a written request by the lender. No
notice of default shall be effective as to the holder unless such notice is given.
16.6 Right to Cure. Each holder(insofar as the rights of City are concerned) shall have the
right, at its option, within ninety (90) days after the receipt of the notice, and one hundred twenty
(120) days after Developer's cure rights have expired, whichever is later, to:
(a) Obtain possession, if necessary, and to commence and diligently pursue
said cure until the same is completed, and
(b) Add the cost of said cure to the security interest debt and the lien or
obligation on its security interest;
provided that in the case of a default which cannot with diligence be remedied or cured within such
cure periods referenced above in this Section 16.6, such holder shall have additional time as
reasonably necessary to remedy or cure such default.
_50051 DOC 21 /08
In the event there is more than one such holder, the right to cure or remedy a breach or
default of Developer under this Section shall be exercised by the holder first in priority or as the
holders may otherwise agree among themselves, but there shall be only one exercise of such right
to cure and remedy a breach or default of Developer under this Section.
No holder shall undertake or continue the construction or completion of the improvements
(beyond the extent necessary to preserve or protect the improvements or construction already made)
without first having expressly assumed Developer's obligations to City by written agreement
satisfactory to City with respect to the Project or any portion thereof in which the holder has an
interest. The holder must agree to complete, in the manner required by this Agreement, the
improvements to which the lien or title of such holder relates, and submit evidence satisfactory to
the City that it has the qualifications and financial responsibility necessary to perform such
obligations.
16.7 City's Rights upon Failure of Holder to Complete Improvements. In any case where
one hundred eighty (180) days after default by Developer in completion of construction of im-
provements under this Agreement,the holder of any mortgage creating a lien or encumbrance upon
the Project or portion thereof has not exercised the option to construct afforded in this Section or if
it has exercised such option and has not proceeded diligently with construction, City may, after
ninety(90) days' notice to such holder and if such holder has not exercised such option to construct
within said ninety(90) day period,purchase the mortgage,upon payment to the holder of an amount
equal to the sum of the following:
(a) The unpaid mortgage, debt plus any accrued and rmpaid 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
_soos!.DOC 22 1 fi' 9
improvements in their stead as shall be satisfactory to City. The proceeds of such a sale shall be
applied first to the holder of those items specified in subparagraphs (a)through(e)hereinabove, and
any balance remaining thereafter shall be applied as follows:
(i)First, to reimburse City, on its own behalf and on behalf of
the City, for all costs and expenses actually and reasonably incurred
by City, including but not limited to payroll expenses, management
expenses, legal expenses, and others;
(ii) Second, to reimburse City, on its own behalf and on
behalf of the City, for all payments made by City to discharge any
other encumbrances or liens on the applicable portion of the Project
or to discharge or prevent from attaching or being made any
subsequent encumbrances or liens due to obligations, defaults, or acts
of Developer, its successors or transferees; 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 o 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 Conveyance of Title.
After the conveyance of title and prior to completion of construction and development, and after the
_50051 ooC 23 u
Developer has had a reasonable time to challenge, cure, or satisfy any liens or encumbrances on the
Project the City shall have the right to satisfy any such liens or encumbrances; provided, however,
that nothing in this Agreement shall require the Developer to pay or make provision for the payment
of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity
or amount thereof, and so long as such delay in payment shall not subject the Project or any portion
thereof to forfeiture or sale.
17. GENERAL.
17.1 Estoppel Certificates. Either Party (or a lender under Section 16) may at any time
deliver written Notice to the other Party requesting an estoppel certificate(the"Estoppel Certificate")
stating:
(a)The Agreement is in full force and effect and is a binding obligation of the
Parties; and
(b) The Agreement has not been amended or modified either orally or in
writing or, if so amended, identifying the amendments.
(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".
17.2 Force Maieure. 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 rim 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 cone-nencement of the cause. Any act or failure to act on the part of a Party shall
not excuse performance by that Party.
17.3 Construction of Development Agreement. The language of this Development
Agreement shall be construed as a whole and given its fair meaning. The captions of the sections and
subsections are for convenience only and shall not influence construction. This Development
Agreement shall be governed by the laws of the State of California. This Development Agreement
_50051 Doc 24 1 //
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).
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 attorn ey's fees. Attorney's fees shall
include attorney's fees on any appeal, and in addition a Parry entitled to attoriey'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 continence of such action and shall be enforceable whether or not such
action is prosecuted.
17.6 Joint and Several Obligations. All obligations and liabilities of Developer hereunder
shall be joint and several among the obligees.
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.
_50051.DOC 25 '�
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 parry, (iii) by so
executing this Development Agreement, such parry is formally bound to the provisions of this
Development Agreement, (iv)the entering into of this Development Agreement does not violate any
provision of any other Agreement to which said party is bound and (v) there is no litigation or legal
proceeding 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 Hills Land Corp.
175 W. Jackson Blvd., Suite 400
Chicago, Illinois 60604
Attention: Edmund J. O'Connor
With a copy to:
Schlecht, Shevlin & Shoenberger, ALC
801 East Tahquitz Canyon Way, Ste. 100
Palm Springs, California 92262
Attention: James M. Schlecht
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:
ALESHIRE & WYNDER, LLP
18881 Von Karman Avenue, Suite 400
Irvine, California 92612
Attn: David J. Aleshire, City Attorney 113
5005LDoc 26
or such other address as the City may designate in writing to Developer.
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 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 Recording. The City Clerk shall cause a copy of this Development Agreement to be
executed by the City and recorded in the Official Records of Riverside County no later than ten(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.
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 Agreement. This Development Agreement constitutes the entire agreement
between the Parties with respect to the subject matter of this Development Agreement, and this
Development Agreement supersedes all previous negotiations, discussions, and agreements between
the Parties.No parol evidence of any prior or other agreement shall be permitted to contradict or vary
the terns of this Development Agreement.
5005!DOC 27
IN WITNESS WHEREOF, the City and Developer have executed this Development
Agreement on the date first above written.
CITY OF PALM SPRINGS
BY:
MAYOR
ATTEST:
CITY CLERK
Approved as to form
City Attorney
"DEVELOPER"
PALM HILLS LAND CORP., a California
corporation
BY:
VI-AMES
M. SCHLECHT,
ts Attorney in Fact
EXHIBIT "A"
MAP AND LEGAL DESCRIPTION OF DEVELOPER'S PROPERTY
5005LDoc EXHIBIT A
Ordinance 1658
Page 6
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL "A"
SECTION 31, TOWNSHIP 4 SOUTH,RANGE 5 EAST, SAN BERNARDINO BASE AND
MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF.
PARCEL `B"
THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE NORTHWEST
QUARTER OF SECTION 32, TOWNSHIP 4 SOUTH, RANGE 5 EAST, SAN
BERNARDINO BASE AND MERIDIAN, ACCORDING TO UNITED STATES
GOVERNMENT SURVEY;
EXCEPTING THEREFROM THAT PORTION WITHIN TRACT MAP NO. 17043
RECORDED JUKE 18, 1984 IN BOOK 141 OF MAPS,PAGES 52 THROUGH 57,
INCLUSIVE, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
PARCEL"C"
THE EAST HALF OF THE NORTHWEST QUARTER OF SECTION 32, TOWNSHIP 4
SOUTH, RANGE 5 EAST, SAN BERNARDINO BASE AND MERIDIAN,ACCORDING
TO UNITED STATES GOVERNMENT SURVEY;
EXCEPTING THEREFROM THE NORTHEAST QUARTER OF THE NORTHEAST
QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 32;
ALSO EXCEPTING THEREFROM THAT PORTION WITHIN TRACT MAP NO. 17043
RECORDED JUNE 18, 1984 IN BOOK 141 OF MAPS, PAGES 52 THROUGH 57,
INCLUSIVE, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
PARCEL "D"
THE WEST HALF OF THE WEST HALF OF SECTION 32, TOWNSHIP 4 SOUTH,
RANGE 5 EAST, SAN BERNARDINO BASE AND MERIDIAN;
EXCEPTING THEREFROM THAT PORTION WITHIN TRACT MAP NO. 17043
RECORDED JUNE 18, 1984 IN BOOK 141 OF MAPS, PAGES 52 THROUGH 57,
INCLUSIVE, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
PARCEL "E"
LOTS 1 THROUGH 95, INCLUSIVE, AND LOTS "A" THROUGH"M", INCLUSIVE, OF
TRACT MAP NO. 17043, AS SHOWN BY MAP ON FILE IN BOOK 141 OF MAPS,
PAGES 52 THROUGH 57, INCLUSIVE, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA.
0:\40795\4079500\dmwings\survey\Legals\Exhibit A.doo
Pagel of2
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EXHIBIT " A" SHEET 2 OF 2
NE COR SEC 31 N 114 COR SEC 32
i NW COR SEC 31
PARCEL "B"
a PARCEL "E"
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CW 1116 COR SEC 32
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EXHIBIT "B"
PHASE PLAN/SCHEDULE OF PERFORMANCE
PHASE TIME
Phase I Golf Course, Clubhouse, Main Entry and Utilities 5 years from Effective Date
Phase II Single Family detached Lots (Eastern area) 5 years from Effective Date
Phase III Single Family detached Lots (Middle area),
Hotel and condominium vacation ownership
units:
A. 5 years from Effective Date
B. Within Term of Agreement
Phase IV Single Family detached Lots (Western and Within Term of Agreement
Southern areas)
The foregoing Phases are generally shown in the Phasing Map attached as Exhibit B 1.
_5005!.DOC EXHIBIT B It?
W, 1 L L S
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SPEQFIC PWJ
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Phase I
Phase H
® Phase III
® Phase IV
...------.�,..�. ® , � �.. �,, ®..� .,�o- ®. Phasing Exhibit - -
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OPENSPACE Figure B-1
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EXHIBIT "C"
EXISTING DEVELOPMENT APPROVALS
1. General Plan
2. Palm Hills Specific Plan No. 1
3. Planned Development District No. 258
4. Tentative Parcel Map No. 29101
5. Tentative Tract Map No. 29100
6. Palm Springs Municipal Code, Zoning Code, Building Code and other City Codes.
7. Conditions of Approval
8. Mitigation Monitoring Program
9. Environmental Impact Report
50051.DOC EXHIBIT C
EXHIBIT "D"
ESTOPPEL CERTIFICATE
Date Requested:
Date of Certificate:
On 200, the City of Palm Springs approved the Development
Agreement between Palm Hills Land Corp., 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
5005LDoc EXHIBIT D
EXHIBIT "E"
SUMMARY OF FEES, TAXES AND ASSESSMENTS
EXISTING AS OF THE EFFECTIVE DATE
A document compiling the fees,taxes and assessments applicable to the development of the
real property which exist as of the Effective Date is on file in the City's Office of Planning and
Zoning ("Fee Summary"). Other fees for services not applicable to real estate development may be
included within said compilation but shall not be deemed subject to the limitations set forth in this
Agreement. Developer acknowledges that the Fee Summary is based on a best efforts attempt by the
City to compile all such applicable fees, taxes and assessments that are in effect as of the Effective
Date. If any such items have been omitted from the Fee Summary, City shall notify Developer and
present reasonable evidence that such excluded tax, fee or assessment was, in fact, in effect as of the
Effective Date and subsequently such matter shall be included within the Fee Summary and
Developer shall be responsible for same as provided in the Agreement.
50051 0C EXHIBIT E
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:
(i) to pay for certain public infrastructure costs benefiting the Project
including for construction of street and drainage improvements;
(ii) to pay for public landscaping, lighting and maintenance costs arising
from area development;
(iii) to compensate the City for the loss of transient occupancy tax revenue
to City from the conversion of the Project from a hotel to a timeshare development; and
(iv) to pay for certain other service enhancements and other obligations
undertaken by Developer.
ARTICLE 11
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 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 Associatio " or
_5005�.Doc EXHIBIT F ���
"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 Mitigation 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 501100 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 hrterest, 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, hi 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 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 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
50051.DOC EXHIBIT F
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. If
Developer, for any reason, fails to pay all or part of the FIM Fee applicable to the
timeshare use in the Project, Agency shall be entitled to deduct any such shortfalls
from the payments due Developer under the Note (as those terms are defined in the
DDA).
(d) If any provision of this Agreement is determined to be invalid
so as to reduce or eliminate the City's entitlement to collect the FIM Fee for all
Timeshare Interests pursuant to this Section, the Agency's obligation to repay the
Note shall be modified in accordance with the provisions set forth in the DDA and
the Note.
(e) 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 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
5005MOC EXHIBIT F
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 Mitigation 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 fluids 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. The Project will need drainage and flood enhancements.
(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.
(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 lost transient occupancy tax revenue. *17
50051 Doc EXHIBIT F
A E c
(d) Other service erIliancements 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 Occupancy 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. Notwithstanding the foregoing, the parties
intend that in no event shall both the full FIM Fee and a transient occupancy tax or timeshare
occupancy tax be assessed with respect to occupancy of a Timeshare Unit for a particular period of
time during the 5 1/2 year period immediately following the Effective Date of the DDA (the
"Exemption Period"). During the Exemption Period, in the event that any transient occupancy tax
or timeshare occupancy tax is assessed, then the FIM Fee shall continue to be due, however it will
be reduced to an amount equal to $28.50 minus the amount of the transient occupancy tax or
timeshare occupancy tax assessed per unit (but not less than zero). After the Exemption Period, the
FIM Fee shall not be reduced or offset by any transient occupancy tax or timeshare occupancy tax
that may be imposed by the City. Provided that the FIM Fee has been paid for the Timeshare Urut
for the applicable period, in no event shall any transient occupancy tax or timeshare occupancy tax
be payable with respect to occupancy of a Timeshare Unit by an owner of a timeshare interest in any
other timeshare project through any internal or external exchange company, whether such other
timeshare project is owned or operated by Developer or an affiliate of Developer, or otherwise.
2.5 Department of Real Estate Approval. The provisions contained herein
regarding the imposition and collection of the FIM Fee are consistent with the corresponding
provisions in the Declaration attached to the DDA as Exhibit "F." Agency and City have
acknowledged that Developer is required to obtain approval of the Declaration by the Department
of Real Estate ("DRE"), and have 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 DRE 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.
2.6 Disclosure to Successor Owners. Developer, its successive owners and
assigns(including Timeshare Owners), shall,prior to the conveyance of a Timeshare Interest, infonn
potential purchasers of a Timeshare Interest of the Timeshare Owner's obligation to pay the F1M 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.
5005LDoc EXHIBIT F
WORDEIN WQLUAMS APC 92004
Rep esenhng Puhhc Agencies, P,IvaLe Entitles, and Inch 0duals = E—S
r 7
July 16, 2004
AREAS OF PRACTICE
PUBLIC AGUECY
City Council I AND USE AND
I TVIRONMEN FAIL
City of Palm Springs
3200 E. Tahquitz Canyon Way RFAI FSTATE
Palm Springs, California 92262 PLRSONAI INJURY
EST,n L PLANNING
Re: Comments Regarding Bighorn Institute During The July 7, 2004 Council ANu AIP,LNSIRAIION
Hearing On The Palm Hills Development Proposal M IL LIT CATION
Dear Members Of The City Council:
AnoRNFvs
As you know, I represent the Sierra Club and Center For Biological Diversity with TRA0 R ISLI pF)Nu
respect to their opposition to the Palm Hills Development. However, I am writing a Tv.T,NI.RRPCHTFL
this letter on behalf of Bighorn Institute, which was the subject of unfair and TERR, 16ILPAIRILI,
vindictive statements by at least two Council members during their late night
I u:R1 NI (,IbRs
deliberations on the Palm Hills Project. The attempt to discredit Bighorn Institute
was particularly offensive for a number of reasons. nIALMDE,P, rnCI ENSON
MICHAI 16 TURMAN,LL El
First, Bighorn Institute did not"sandbag"the Council with last minute information A`°"a'PL
that could have been provided years earlier. The comments made by a Bighorn a 1)"'"n woaoLN
th La11aIUJ
Institute representative were focused on a habitat model, prepared by biologists
hired by the developer, that was first revealed to the public during the Planning V% sL011 T WILI JAMS
OIL I
Commission hearing on May 26, 2004. Prior to that time, there was no
opportunity to provide input on the validity of the habitat model. The habitat
model was not in existence when the Project EIR was first distributed for public OFFICE
review and comment. Nor was it made available to the public prior to the ,61 STEVENS AVENUE
Planning Commission hearing. As a result, the City Council hearing on June 16, SUFIF IE,,
2004 was the first opportunity for the public to provide you with input on the souNA RLACH
CA&URNIA
habitat model.
Second, the information provided by Bighorn Institute was not the only evidence IlM 75E-ar,01 II FLI1II0M
presented that raised concerns about the developer-sponsored habitat model. D'aI T"-sI'M I,,r,i'eill
The U.S. Fish &Wildlife Service submitted a detailed letter outlining its concerns Im.,�
with the habitat model, and two U.S. Fish & Wildlife Service representatives
testified before the Council on June 16. A detailed critique of the habitat model
d{�/D� l —
City Council
July 16, 2004
Page 2
was provided by Peninsular bighorn sheep expert, Stacey Ostermann, a fourth year doctoral
student in conservation ecology at the University of California, Davis, and an employee of the
University of California Wildlife Health Center. Ms. Ostermann's detailed critique of the habitat
model was submitted to the Council and read into the record on June 16, 2004. Finally,
Zoological Society of San Diego researcher and a principal author of the Peninsular Bighorn
Sheep Recovery Plan, Esther Rubin, Ph.D., submitted detailed comments outlining the
problems with the habitat model and testified before the City Council on June 14. Thus,
notwithstanding a few Council members' attempt to single out Bighorn Institute, there was
overwhelming evidence of the habitat model problems presented by a number of qualified
bighorn sheep experts. There is no justification for the Council's apparent desire to simply
focus its ire on Bighorn Institute alone. The Council's focus should, instead, have been on the
inadequacy of the developer-sponsored habitat model.
Finally, the Council's comments were an improper attempt to stifle First Amendment rights and
public and private participation in the public hearing process. The June 16, 2004 Council
meeting was a "public hearing," which by definition means that all members of the public had
a right to comment on the item being considered. The Council is obligated by state law to
allow public testimony at its hearings, and it has an obligation to encourage public participation
and to consider the comments of those individuals who take the time to provide input on
important projects such as the Palm Hills Development.
I have represented the Sierra Club before the City Council for years and have come to expect
a spirited dialogue. I understand that the Council members get frustrated at times due to the
voluminous amount of information they are asked to consider and the contentious nature of
some project proposals. However, it is important that the Council not allow this frustration to
manifest itself in the form of unfounded and unfair attacks on nonprofit institutions which take
the time to provide input.
Very truly yours,
WORDEN WILLIAMS, APC
D x, i�
D. Wayne Brechtel
dwb@wordenwilliams.com
DWB:Ig
CityCounci1001 wpd
C?`PAL4
Y V WORDEhl WI UA��III S APC
JUI. 1
Rep resen bng Public Agencies, PrivoLe BlLihes, and IndnnduaLs 9 20�t'� �I
REL �
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AREAS OF PRACI ICE
July 16, 2004 PI IF IC AG INo
I AND USE AND
FNVI[IILN AL
Patricia A. Sanders, City Clerk RFAL FEIATF
City of Palm Springs PCBSON yL INIURY
3200 E. Tahquitz Canyon Way EtTATF PI ANNING
Palm Springs, California 92262 AN9 AFW INISTR,AI ION
CIVIL I ITIGATION
Dear Ms. Sanders:
i ATTORNEYS
Enclosed please find the original plus five copies of our firm's letter dated July 16, 1I1 R RI CI IMOND
2004 to the City Council. It would be greatly appreciated if you would distribute D WAYNE GRECI N EL
a copy to each Council member. TIRRr I RILPATRIa
rERR1 M UiiRn
Thank you for your assistance in this matter. MALINDA R DIK KI NsoN
MII I IACL U rURVAN.LL AS
OI(ounu1
Very truly yours,
D DWIGFII WORDED
ul(bnn,i=I
WORDEN WILLIAMS, APC
A1' COI I WILLIAMS
of( I
Vwi
Lorraine Greytak, Legal cretary OFFICE
ig@wordenwitliams.com A02 STEVENS AVENUE
SUne Io,
Ig SOLANA REA(I I
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Enclosures
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ORDINANCE NO. 1657
AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AMENDING THE ZONING MAP BY APPROVING
A CHANGE OF ZONE FROM U-R TO PD-258, FOR THE
PROPERTY LOCATED SOUTH OF EAST PALM CANYON
DRIVE, WEST OF PALM HILLS DRIVE/BROADMOOR DRIVE IN
THE SANTA ROSA MOUNTAINS, ZONE U-R, SECTION 31 AND
32, T4S, RSE, SBBM.
- - - - - - - - - - - - - - - - - - -
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA DOES ORDAIN AS
FOLLOWS:
SECTION 1. Pursuant to Section 94.07.00 of the Palm Springs Zoning Ordinance, the official
zoning map of the City of Palm Springs, referred to herein, is hereby amended as follows:
Change of Zone from U-R to PD-258
The parcel of property legally shown on Exhibit A is approved for a change of zone from U-R to
Pd-258, specifically on the property located south of East Palm Canyon Drive, west of Palm
Hills Drive in the Santa Rosa Mountains, Sections 31 and 32, T4S, RSE, SBBM on file in the
Planning and Zoning Department, Case 5.0826-PD-258 TTM 29100 and TTM 29101,
SECTION 2. EFFECTIVE DATE. This Ordinance shall be in full force and effect thirty (30)
days after passage.
SECTION 3. PUBLICATION. The City Clerk is hereby ordered to and directed to certify to the
passage of this Ordinance, and to cause the same or summary thereof or a display
advertisement, duly prepared according to law, to be published in accordance with law.
ADOPTED THIS 21"day of July, 2004.
AYES: Members McCulloch, Mills, Pougnet and Mayor Oden
NOES: Member Foat
ABSENT: None
ABSTENTIONS: None
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
City Clerk Mayor
Reviewed and Approved as to form:
Ordinance 1657
Page 2
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ORDINANCE NO. I
AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AMENDING THE ZONING MAP BY APPROVING
A CHANGE OF ZONE FROM U-R TO PD-258, FOR THE
PROPERTY LOCATED SOUTH OF EAST PALM CANYON
DRIVE, WEST OF PALM HILLS DRIVE/BROADMOOR DRIVE IN
THE SANTA ROSA MOUNTAINS, ZONE U-R, SECTION 31 AND
32, T4S, RSE, SBBM.
- - - - - - - - - - - - - - - - - - -
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA DOES ORDAIN AS
FOLLOWS:
SECTION 1. Pursuant to Section 94,07.00 of the Palm Springs Zoning Ordinance, the official
zoning map of the City of Palm Springs, referred to herein, is hereby amended as follows:
Change of Zone from U-R to PD-258
The parcel of property legally shown on Exhibit A is approved for a change of zone from U-R to
Pd-258, specifically on the property located south of East Palm Canyon Drive, west of Palm
Hills Drive in the Santa Rosa Mountains, Sections 31 and 32, T4S, RSE, SBBM on file in the
Planning and Zoning Department, Case 5.0826-PD-258 TTM 29100 and TTM 29101.
SECTION 2. EFFECTIVE DATE. This Ordinance shall be in full force and effect thirty (30)
days after passage.
SECTION 3. PUBLICATION. The City Clerk is hereby ordered to and directed to certify to the
passage of this Ordinance, and to cause the same or summary thereof or a display
advertisement, duly prepared according to law, to be published in accordance with law.
ADOPTED THIS day of , 2004.
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By:
City Clerk Mayor
Reviewed and Approved as to form: r
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ORDINANCE NO. 1658
OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT
WITH PALM HILLS LAND CORPORATION FOR THE PALM HILL
SPECIFIC PLAN LOCATED SOUTH OF EAST PALM CANYON
DRIVE AND WEST OF PALM HILLS DRIVE/BROADMOOR
DRIVE IN THE SANTA ROSA MOUNTAINS, ZONE U-R,
SECTIONS 31 AND 32, T4S, RSE, SBBM.
WHEREAS, in July 1970, the City of Palm Springs annexed 34 square miles in the San Jacinto
and Santa Rosa Mountains known as Palm Hills; and
WHEREAS in 1974, the Palm Hills Study was commissioned with the directive that the main
emphasis be the preservation of the environment while encouraging the development of resort
and residential, and accessory, uses; and
WHEREAS, the Palm Hills Area Plan was divided into four subareas (PH-1, PH-2A, PH-213, and
PH-3) as part of the City's 1993 General Plan Update; and
WHEREAS, PH-1 was targeted for resort hotel and attached and detached residential land uses
with a maximum density of 1,200 units; and
WHEREAS, the Palm Hills Area Plan requires that any land development in Palm Hills can only
be accomplished through a Specific Plan; and
WHEREAS, Palm Hills Land Corporation has submitted an application for the Palm Hill Specific
Plan; and
WHEREAS, Palm Hills Land Corporation ("applicant'), has submitted a request for a
Development Agreement for a mixed-use project involving single family residential, a hotel,
vacation ownership units, 18-hole golf course, and passive and active open space
("Development Agreement"); and
WHEREAS, Palm Hills Land Corporation ("applicant'), owns a legal or equitable interest in the
property which is the subject of the Development Agreement and, therefore, is a qualified
applicant for the Development Agreement; and
WHEREAS, the Palm Springs Zoning Ordinance Section 94.08.00 provides procedures and
requirements for the consideration of development agreements; and
WHEREAS, the Development Agreement is enforceable by either the City of Palm Springs or
Palm Hills Land Corporation as provided in Government Code Section 65865.4; and
WHEREAS, the Development Agreement conforms with the General Plan and the proposed
Palm Hills Specific Plan, Planned Development District 258, Tentative Parcel Map 29101, and
Tentative Tract Map 29100 conform with all policies, goals, and objectives of the City of Palm
Springs General Plan and the development standards contained within the City of Palm Springs
Zoning Ordinance; and
Ordinance 1658
Page 2
WHEREAS, the City of Palm Spring may terminate or modify the Development Agreement if it
finds, and determines on the basis of substantial evidence, that the applicant or its successor in
interest has not complied in good faith with the Development Agreement's terms and conditions,
in accordance with Palm Springs Zoning Ordinance Section 94.08.00 and Government Code
Section 65865.1; and
WHEREAS, notice of a public hearing of the Planning Commission of the City of Palm Springs to
consider the Development Agreement was given in accordance with applicable law; and
WHEREAS, on April 28, 2004, a public hearing to consider the Development Agreement was
held by the Planning Commission in accordance with applicable law; and
WHEREAS, on May 26, 2004, a continued public hearing to consider the Development
Agreement was held by the Planning Commission in accordance with applicable law; and
WHEREAS, the Planning Commission has considered information presented by the Department
of Planning and Zoning, Public Works Department, Fire Department, Police Department, the
applicant, and other interested parties in its review of the Development Agreement; and
WHEREAS, notice of a public hearing of the City Council of the City of Palm Springs to consider
the Development Agreement was given in accordance with applicable law; and
WHEREAS, on June 16, 2004, a public hearing to consider the Development Agreement was
held by the City Council in accordance with applicable law; and
WHEREAS, the City Council has considered information presented by the Department of
Planning and Zoning, Public Works Department, Fire Department, Police Department, the
applicant, and other interested parties in its review of the Development Agreement; and
WHEREAS, pursuant to Government Code Sections 65867.5(c) and 66473.7, the City Council
has considered the effect of the proposed subdivision, Tentative Tract Map 29100 and 29101, on
the availability of water supply and determined that sufficient water supply is available to support
the Palm Hills Development, based upon the findings in the Final Environmental Impact Report;
and
WHEREAS, the "Project" will have public benefits including but not limited to up to $2,475,773 in
revenue, expand economic development opportunities, expand tourism, provide a golf course,
preserve approximately 797.70 acres of open space on-site, dedicate off-site land within critical
habitat of Peninsular Bighorn Sheep, create up to 450 new jobs, maintain public access to
existing equestrian and hiking trails, and implement the City's General Plan objectives to create a
world class destination resort; and
WHEREAS, the City Council has carefully reviewed and considered all of the evidence presented
in connection with the hearing on the project, including but not limited to the recommendation of
the Planning Commission, the staff report, all written and oral testimony presented.
NOW, THEREFORE, BE IT ORDAINED that the City Council of the City of Palm Springs does
hereby find as follows:
Section 1: Pursuant to CEQA, the City Council finds that the Final Environmental Impact
Report ("FEIR") has been certified for the Palm Hills Specific Plan (SCH
Ordinance 1658
Page 3
#98061043), Case No. 5.0826, and is in compliance with CEQA, the State CEQA
Guidelines, and the City's CEQA Guidelines. The FEIR for Case No. 5.0826
adequately analyzes the general environmental setting of the proposed Project,
including this development agreement, its significant environmental impacts, and
the alternatives and Mitigation Measures related to each significant
environmental effect for the proposed Project. The City Council has
independently reviewed and considered the Specific Plan and determined that it
is in conformance with the information contained in the FEIR. The City Council
further finds that with the incorporation of proposed Mitigation Measures and the
adoption of the Statement of Overriding Considerations and Statement of Facts
and Findings, potentially significant environmental impacts resulting from this
Project will be either be reduced to a level of insignificance or the Project benefits
justify overriding the unavoidable significant adverse impact associated with
Project.
Section 2: The City Council hereby finds that the Palm Hills Development Agreement
complies with the provisions of Zoning Ordinance Section 94.08.00 as follows:
a. The Development Agreement is consistent with the objectives, policies, general land
uses, and programs specified in the general plan and any applicable specific plan.
The Development Agreement is consistent with the City of Palm Springs General Plan in
that the Development Agreement directly reflects the land uses approved through Palm
Hills Specific Plan and Planned Development District-258, Tentative Parcel Map 29101
and Tentative Tract Map 29100 by the City Council, and these land uses are either
permitted or conditionally permitted in the General Plan Land Use Element and Zoning
Ordinance Urban Reserve Zone ("U-R").
b. The Development Agreement is compatible with the uses authorized in, and the
regulations prescribed for, the land use district in which the real property is located.
The land uses proposed on the 906 acre Palm Hills project site are consistent with other
land uses in the vicinity and with the U-R zoning designation. The approved Planned
Development District-258 , Tentative Parcel Map 29101, and Tentative Tract Map 29100
are in conformance with the regulations defined for the land use zones, by the City of
Palm Springs Zoning Ordinance.
The Development Agreement addresses the approved PDD which is a 906 acre multi-
use, multi-million dollar destination resort project composed of an 18 hole championship
golf course, clubhouse and driving range, 129 single-family homes, 351-room resort
hotel, and 382 vacation ownership units, as described in Planned Development District
No. 258 ("PDD"). The PDD allows for the modification of Development Area III and
whereby up to 35 single-family homes may be substituted in lieu of timeshare units.
C. The Development Agreement is in conformity with public convenience, general welfare
and good land use practice.
The Development Agreement is in conformance with established City goals, objectives,
and regulations outlined in the City General Plan and the City Zoning Ordinance.
d. The Development Agreement is not detrimental to the public health, safety, and welfare.
Ordinance 1658
Page 4
The Development Agreement is not detrimental to the health, safety, and welfare of the
community in that all established zoning and development standards continue to be
applicable.
e. The Development Agreement will not adversely affect the orderly development of
property or the preservation of property values.
The Development Agreement reflects the approved conditions of approval of the Project
which serve to insure the preservation of property values in the vicinity.
BE IT FURTHER RESOLVED, that the City Council of the City of Palm Springs does hereby
ordain as follows:
Section 1: Approval of Palm Hills Development Agreement. The City Council hereby
approves the Palm Hills Development Agreement, the text of which is set forth in
the document entitled "Palm Hills Development Agreement', and authorizes
execution thereof. The provisions of this section shall apply to all property
described on Exhibit "A".
Section 2: That the Palm Springs Zoning Code is hereby amended by adding Section
94.08.09 to read as follows:
"Section 94.08.09 Palm Hills Development Agreement
A. Palm Hills Development Agreement
1. Purpose. The purpose of this section is to approve a development agreement ("Palm
Hills Development Agreement") to guide the orderly development and improvement of that
portion of the City which is located south of East Palm Canyon Drive, west of Palm Hills
Drive/Broadmoor Drive in the Santa Rosa Mountains in Sections 31 and 32, T4S, R5E, SBBM,
Palm Springs as legally described on Exhibit "A" of the Development Agreement, attached to the
ordinance codified in this section and incorporated herein by reference. The Palm Hills
Development Agreement replaces within said property the usual development standards
otherwise applicable to the property. The Palm Hills Development Agreement provides for
ultimate development of a destination resort project consisting of an 18-hole championship golf
course, clubhouse, and driving range, 129 single family and luxury estate homes, 351 room
hotel, and 382 vacation ownership units and is consistent with the general plan objectives,
policies, and programs of the city. The Palm Hills Development Agreement includes a
development alternative of Development Area III whereby up to 35 single family homes may be
substituted in-lieu of timeshare units.
2. Property Development and Other Standards. All property subject to the Palm Hills
Development Agreement shall be maintained in accordance with all policies, requirements,
regulations, and provisions set forth in the Palm Hills Development Agreement. The developer's
performance of its obligations under the Palm Hills Development Agreement shall be subject to
annual review as provided therein."
Section 3: That the Official Zoning Map of the City of Palm Springs is hereby amended by
reclassifying from Urban Reserve Zone to being subject to the Palm Hills
Development Agreement all of that real property described in Exhibit "A".
Ordinance 1658
Page 5
Section 4: EFFECTIVE DATE. This ordinance shall be in full force and effect thirty (30) days
after passage.
Section 5: PUBLICATION, The City Clerk is hereby ordered and directed to certify to the
passage of this Ordinance, and to cause the same or a summary thereof or a
display advertisement, duly prepared according to law, to be published in
accordance with law.
ADOPTED THIS 21" day of July, 2004.
AYES: Members McCulloch, Mills, Pougnet and Mayor Oden
NOES: Member Foat
ABSENT: None
ABSTENTIONS: None
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
City Clerk Mayor
Reviewed and Approved as to Form:
Ordinance 1658
Page 6
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL "A"
SECTION 31, TOWNSHIP 4 SOUTH, RANGE 5 EAST, SAN BERNARDINO BASE AND
MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF.
PARCEL`B"
THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE NORTHWEST
QUARTER OF SECTION 32, TOWNSHIP 4 SOUTH, RANGE 5 EAST, SAN
BERNARDINO BASE AND MERIDIAN, ACCORDING TO UNITED STATES
GOVERNMENT SURVEY;
EXCEPTING THEREFROM THAT PORTION WITHIN TRACT MAP NO. 17043
RECORDED JUNE 18, 1984 IN BOOK 141 OF MAPS,PAGES 52 THROUGH 57,
INCLUSIVE, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
PARCEL"C"
THE EAST HALF OF THE NORTHWEST QUARTER OF SECTION 32, TOWNSHIP 4
SOUTH, RANGE 5 EAST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING
TO UNITED STATES GOVERNMENT SURVEY;
EXCEPTING THEREFROM THE NORTHEAST QUARTER OF THE NORTHEAST
QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 32;
ALSO EXCEPTING THEREFROM THAT PORTION WITHIN TRACT MAP NO. 17043
RECORDED JUNE 18, 1984 IN BOOK 141 OF MAPS, PAGES 52 THROUGH 57,
INCLUSIVE,RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
PARCEL "D"
THE WEST HALF OF THE WEST HALF OF SECTION 32, TOWNSHIP 4 SOUTH,
RANGE 5 EAST, SAN BERNARDINO BASE AND MERIDIAN;
EXCEPTING THEREFROM THAT PORTION WITHIN TRACT MAP NO. 17043
RECORDED JUNE 18, 1984 IN BOOK 141 OF MAPS, PAGES 52 THROUGH 57,
INCLUSIVE, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
PARCEL "E"
LOTS 1 THROUGH 95, INCLUSIVE, AND LOTS "A" THROUGH"M", INCLUSIVE, OF
TRACT MAP NO. 17043, AS SHOWN BY MAP ON FILE IN BOOK 141 OF MAPS,
PAGES 52 THROUGH 57, INCLUSIVE, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA.
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