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Home My WebLink About04823 - FAIRFIELD RESORTS DDA SCHLPS 225 UNIT TIMESHARE Recording Requested By DOC # 14 03: 7 PM F 03/13/203:4 PM Fees: $0.00 �,merican Title Company Page 1 of 13 Recorded in Official Records runty Recording Requested by and LaryW.Wa`erside d When Recorded Return to: Assessor, County Clerk& Recorder City of Palm Springs 3200 Tahquitz Canyon Way "This document was electronically submitted Palm Springs, CA 92262 to the County of Riverside for recording— Receipted by: MGREGSTON Exempt from Recording Fees Gov. Code §27383 A6a2a CANCELLATION OF An�a�C' DEVELOPMENT AGREEMENT AND OF OWNER PARTICIPATION AGREEMENT between CITY OF PALM SPRINGS, a municipal corporation, SUCCESSOR AGENCY TO THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic and WYNDHAM VACATION RESORT, INC., a Delaware corporation CANCELLATION OF DEVELOPMENT AGREEMENT AND OF OWNER PARTICIPATION AGREEMENT This CANCELLATION OF DEVELOPMENT AGREEMENT AND OF OWNER PARTICIPATION AGREEMENT (the "Cancellation") is entered into by and between the CITY OF PALM SPRINGS, a municipal corporation (the "City") for itself and as SUCCESSOR AGENCY TO THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic (the "Agency") and WYNDHAM VACATION RESORTS, INC., (f.k.a. Fairfield Resorts, Inc.), a Delaware corporation and successor to SCHLPS, LLC, as California limited liability company, (the "Developer"). The City, the Agency and the Developer are sometimes referred to herein, individually, as "Party" and, collectively, as "Parties". This Cancellation shall become effective on the date that all of the following are true (1) it has been approved by the governing bodies of City and Agency and executed by City and Agency; and (2) it has been duly recorded in Official Records of Riverside County, California. RECITALS A. On or around September 19, 2001, the Agency approved a Disposition and Development Agreement (also known as an "Owner Participation Agreement") (the "DDA"), with SCHLPS, LLC, a California limited liability company, to effectuate the development of a resort hotel and vacation ownership project on South Palm Canyon Drive between Mesquite Avenue and Sunny Dunes Road in Merged Project Area No. 1 as set forth on Exhibit A hereto, (the "Property"); B. On or around February 2003, the DDA was assigned from SCHLPS, LLC to Fairfield Resorts, Inc, following approval of such assignment by the Agency. As part of the assignment of the DDA, the Developer agreed to compensate the City for its infrastructure costs related to the development as well as the loss of Transient Occupancy Tax from the change of use to timeshare, and to impose a Financial Impact Mitigation Fee ("FIM Fee") on owners of intervals in the project. At that time, Developer also changed the project from hotel and vacation ownership units (time shares) to all time share; proposing to construct at least 252 time share units; underground parking; water features and other amenities; and other landscaping and on-site improvements; C. On or around February 4, 2004, the City approved and the Parties entered into a Development Agreement, which was recorded in the Official Records of the County of Riverside as Document No. 2004 — 01 54783, and which codified the FIM Fee and also included an agreement on incentive golf rates at city-owned courses and an arrangement on the disposition to the City by Fairfield of a small portion of the project site (the "Development Agreement'); D. In 2005, Developer withdrew the project from further entitlement consideration and sought to sell the project to other developers, but the project was never sold; 2 E. On or around October 12, 2006, Fairfield Resorts, Inc, was rebranded Wyndham Vacation Resorts, Inc.; F. The Community Redevelopment Agency of the City of Palm Springs was dissolved effective February 1, 2012 by action of the State Legislature (the "Dissolution Act'), resulting in the winding down of the activities of the Community Redevelopment Agency by the Agency; G. The Dissolution Act also required the preparation and submittal to the State Controller's Office of an Asset Transfer Assessment prepared by the Successor Agency, showing the assets that were owned by the Agency and transferred to the Successor Agency upon the dissolution on February 1, 2012. The DDA was not included in the Asset Transfer Report indicating the Agency's belief that its effectiveness ended when the project was withdrawn from the entitlement process in 2005; H. The Parties hereto hereby find, determine, and acknowledge that it is no longer desirable or in the public interest to have the Property developed in accordance with the Development Agreement or the DDA and that none of the Parties derive any benefit or obligation from such Development Agreement or the DDA; I. The Development Agreement and the DDA are still of record even though such documents are no longer in force and therefore the Parties wish to clear title and document their agreement that the Development Agreement and the DDA became ineffective circa 2005, when Developer withdrew the entitlement application and did not pursue the development of the project described in both agreements. Neither Party has any claim against or responsibility to the other; and J. The Parties therefore desire to cancel the Development Agreement and the DDA. NOW, THEREFORE, IT IS HEREBY AGREED by the Parties hereto: 1. The Parties hereby agree that the above recitals are true and correct and such recitals are incorporated herein as if rewritten. I 2. The Parties hereby cancel the Development Agreement and the DDA, as well as any associated agreements, rights or obligations that may arise therefrom. All benefits of the Development Agreement and the DDA and all burdens of the Development Agreement and the DDA shall hereafter be of no force or effect and the Property shall be entirely unencumbered by the Development Agreement and the DDA which shall be cancelled. 3. Except as to the obligations to be performed under this Agreement, the Parties hereby release and forever discharge each other, their subsidiaries, divisions, parents and affiliated corporations, their directors, officers, shareholders, agents, employees, representatives, attorneys, insurers, and successors and assigns, of and from all claims, demands, obligations, liabilities, damages, costs, fees, expenses, 3 actions, causes of action or suits at law or in equity of whatever kind or nature, known or unknown, suspected to exist or not suspected to exist, anticipated or not anticipated, which have arisen, are now arising, or hereafter may arise out of or in connection with the Agreement, the real property that is the subject of the Agreement, or otherwise, including but not limited to fraud and fraud in the inducement as to this Amendment. The Parties represent and warrant that they have not sold, assigned, transferred, conveyed, or otherwise disposed of any right, title or interest in or to the Agreement, nor of any claim, demand, or cause of action relating to any matter covered by this Agreement or the Development Agreement and the DDA. Civil Code Section 1542 Waiver: The Parties understand and expressly agree that the foregoing release extends to claims of every nature and kind, known or unknown, suspected or unsuspected, past or present, against each side, and that any and all rights granted under Section 1542 of the California Civil Code or any analogous state or federal law or regulation are hereby expressly waived. Section 1542 of the California Civil Code reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or favor at the time of executing the release, which if known by him or must have materially affected his or her settlement with the debtor." 4. The Parties shall execute such other documents or instruments necessary to effectuate the cancellation of the Development Agreement and the DDA with regard to the Property. IN WITNESS HEREOF, the Parties have executed this Agreement on the date(s) set forth below. [Signatures on following pages] 4 "CITY" "AGENCY" CITY OF PALM SPRINGS, a municipal SUCCESSORY AGENCY TO THE corporation COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic By. David H. Ready David H. Ready City Manager Executive Director Date: Date: ATTEST: ATTEST: ity Clerk ccessor Agency Clerk APPROVED AS TO LEGAL FORM: APPROVED AS TO LEGAL FORM: - jlm�XZZXA.,; & City Attorney Legal/Counsel APPROVED BY CITY COUNCIL 5 ACKNOWLEDGMENT OF INSTRUMENT (Cal. Civil Code Section 1181) State of California ) County of Riverside ) SS. City of Palm Springs ) On February 18, 2014, before me, JAMES THOMPSON, CITY CLERK, CITY OF PALM SPRINGS, CALIFORNIA, personally appeared DAVID H. READY, who I personally know is the CITY MANAGER of the CITY OF PALM SPRINGS whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his official and authorized capacity on behalf of the City of Palm Springs, a California Charter City. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and the official seal of the City of Palm Springs, California, this 18th day of February, 2014. C.PALMS A. A��Z V N • r 4 C`�Cp �qa % �roRAlfV V. Signature: AMES THOMPSON, CITY CLERK City of Palm Springs, California Title or Type of Document CANCELLATION OF DEVELOPMENT AGREEMENT AND OF OWNER PARTICIPATION AGREEMENT ACKNOWLEDGMENT OF INSTRUMENT (Cal. Civil Code Section 1181) State of California ) County of Riverside ) ss. City of Palm Springs ) On February 18, 2014, before me, JAMES THOMPSON, SUCCESSOR AGENCY CLERK, SUCCESSOR AGENCY TO THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, personally appeared DAVID H. READY, who I personally know is the EXECUTIVE DIRECTOR of the SUCCESSOR AGENCY TO THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his official and authorized capacity on behalf of the City of Palm Springs, a California Charter City. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and the official seal of the City of Palm Springs, California, this 18th day of February, 2014. Q A L M SAS �Z c+ V N Signature: `C~C�R<OpAlEV E��R MES THOMPSON, CITY CLERK lip it City of Palm Springs, California SUCCESSOR AGENCY CLERK Successor Agency to the Community Redevelopment Agency of the City of Palm Springs, California Title or Type of Document CANCELLATION OF DEVELOPMENT AGREEMENT AND OF OWNER PARTICIPATION AGREEMENT WYNDHAM VACATION RESORTS, INC, a Delaware corporation By: Print Name: t Title: f-,V je 4 C rD STATE OF FLORIDA ) ) ss. COUNTY OF ORANGE ) The foregoing instrument was acknowledged before me on this t01-K day of February, 2014, by , the EVP � CFD of Wyndham Vacation Resorts, Inc., a Delaware c rporation, on behalf of the corporation. Notary Public for SI"ak U� k OYI&M AAIVAg. OEM J.QPAKW My Commission Expirp s: 0 l3al 0(7 WTARYPUBM t n STATE OF FLORIDA Ca nW FFOMW EvPkW 10/30=17 and, By: Print Name: L I wh Title: ;S-�l/. STATE OF FLORIDA ) ) ss. COUNTY OF ORANGE ) The foregoing instrument was acknowledged before me on this 1f' day of February, 2014, b the S�, �' '�.,a4„\- of Wyndham Vacation Resorts, Inc., a Delaware corporation, on behalf of the corporation. Notary Public for ORr ` My Commission Exs: 10N'•. 's� 'V \ #EE 65325 :Q? 6 NOTARY SEAL Under the provisions of Government Code 27361.7, 1 certify under the penalty of perjury that the Notary Seal on the document to which this statement is attached reads as follows: Name of Notary: J rCl r 1 a ry—) Commission #: Date Commission Expires: ' I ` b 1 County where Bond is filed: Stot f2 6` T 1 b r t cAcA. San Bernardino PLACE OF EXECUTION: DATE: 511 L SIGNATURE: , DPS AGENT C= m h-_ NOTARY SEAL Under the provisions of Government Code 27361.7, 1 certify under the penalty of perjury that the Notary Seal on the document to which this statement is attached reads as follows: Name of Notary: CC AI f l —r Commission#: E E O U 573-25 Date Commission Expires: County where Bond is filed: Si1i 6 t I ur t d c& San Bernardino PLACE OF EXECUTION: DATE:�Jhu SIGNATURE:__A Z DPS AGENT EXHIBIT "A" TO CANCELLATION OF DEVELOPMENT AGREEMENT and the OWNER PARTICIPATION AGREEMENT DESCRIPTION OF PROPERTY EXHIBIT "A" TO CANCELLATION OF DEVELOPMENT AGREEMENT and the OWNER PARTICIPATION AGREEMENT LEGAL DESCRIPTION OF PROPERTY FILE NO. 07802285 PARCEL 1: THAT PORTION OF LOT 13 IN SECTION 23, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY MAP OF PALM VALLEY COLONY LANDS ON FILE IN BOOK 14 PAGE 652 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT THE WEST QUARTER CORNER OF SECTION 23; THENCE NORTH 00 DEGREES 20' 36" EAST ALONG THE WEST LINE OF SAID SECTION 23, A DISTANCE OF 142.58 FEET TO A POINT ON THE WESTERLY LINE OF THE EXISTING 80.00 FOOT STATE HIGHWAY RIGHT OF WAY, KNOWN AS PALM CANYON DRIVE, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 00 DEGREES 20' 36" EAST ALONG THE WEST LINE OF SAID SECTION 23, 518.57 FEET TO THE SOUTHEAST CORNER OF LOT 48 IN SECTION 22, TOWNSHIP 4 SOUTH, RANGE 4 EAST; THENCE EAST 246.34 FEET TO A POINT OF NON-TANGENT CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 915.37 FEET ON THE WESTERLY RIGHT OF WAY OF PALM CANYON DRIVE, A RADIAL TO WHICH BEARS NORTH 75 DEGREES 40' 53" WEST; THENCE SOUTHWESTERLY ALONG THE WESTERLY RIGHT OF WAY OF SAID PALM CANYON DRIVE THROUGH A CENTRAL ANGEL OF 17 DEGREES 25' 23', 278.35 FEET TO A POINT OF TANGENT; THENCE SOUTH 31 DEGREES 44' 30" WEST, 131.04 FEET TO A POINT OF TANGENT CURVE CONCAVE TO THE SOUTHEAST AND HAVING A RADIUS OF 756.78 FEET; THENCE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 12 DEGREES 45' 25", 168.50 FEET, TO THE POINT OF BEGINNING. PARCEL 2: SOUTH HALF OF NORTHEAST QUARTER OF SOUTHEAST QUARTER OF NORTHEAST QUARTER OF SECTION 22, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN; EXCEPTING THEREFROM THAT PORTION DEEDED TO RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BY GRANT DEED RECORDED AUGUST 27, 1992 AS INSTRUMENT NO. 322111 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL 6060-314 AS SHOWN ON RECORD OF SURVEY ON FILE IN BOOK 77 PAGES 1 THROUGH 5, INCLUSIVE, OF RECORDS OF SURVEY, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. PARCEL 3: THE NORTH HALF OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 22, TOWNSHIP 4 SOUTH, RANGE 4 EAST, AS SHOWN BY THE SUPPLEMENTAL PLAT OF SAID SECTION, ACCEPTED JUNE 17, 1958. PARCEL 4: AN EASEMENT FOR INGRESS AND EGRESS MORE PARTICULARLY DESCRIBED IN DOCUMENT ENTITLED "RECIPROCAL EASEMENT" RECORDED APRIL 7, 2003 AS INSTRUMENT NO. 2003-242562 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. I LAW OFFICES OF WOODRUFF, SPRADLIN & SMART A PROFESSIONAL CORPORATION 555 ANTON BOULEVARD,SUITE 1200 COSTA MESA,CA 92626-7670 (714)558-7000 ■FAX(714)835-7787 DIRECT DIAL:(714)415-1039 DIRECT FAX:(714)415-1139 E-MAIL:PGAMAQa WSS-LAW.COM December 21, 2007 VIA OVERNIGHT MAIL Mr. Tom Wilson Assistant City Manager City of Palm Springs 3200 E. Tahquitz Canyon Way P.O. Box 2743 Palm Springs, CA 92263-2743 Re: Executed Indemnification Agreement Dear Mr. Wilson: Enclosed for David Ready's signature are three (3) executed"As to Form" originals of an Indemnification Agreement by and between Wyndham Vacation Resorts Inc., The Trails at Palm Springs, LLC, The City of Palm Springs, and The Community Redevelopment Agency for the City of Palm Springs. If I can be of further assistance, please do not hesitate to contact me. Very truly yours, WOODRUFF, SPRADLIN & SMART A Professional Corporation PERCI GAIDA Legal Assistant to Edward L. Bertrand, Esq. pg Enclosures TERRY C.ANDRUS■CINDY R.BECKER■EDWARD L.BERTRAND■M.LOIS BOBAK■CAROLINE A BYRNE■PATRICK M.DESMOND■JAMES M.DONICH CHRISTINA M.DOYLE■JAMES H.EGGART■CRAIG G.FARRINGTON■JOSEPH W.FORBATH In RICIA R.I-LAGER■BRADLEY R.HOGIN■DOUGLAS C.HOLLAND DAVID E.KENDIG■EDWARD Z.KOTKIN■ROBERTAA.KRAUS■MAGDALENA LONA-WIANT n MARK M.MONACHINO m LAURAA.MORGAN w THOMAS F.NIXON BARBARA RAILEANU■JASON S.RETTERER■KYLE E.ROWEN■OMAR SANDOVAL■JOHN R.SHAW■MATTHEW R.SILVER■GREGORY E.SIMONIAN KENNARD R.SMART,JR. ■DANIEL K.SPRADLIN ■ALYSON C.SUH ■THOMAS L.WOODRUFF ccs�oo i INDEMNIFICATION AGREEMENT This INDEMNIFICATION AGREEMENT is made this_day of December, 2007, by and between WYNDHAM VACATION RESORTS INC. (f/k/a FAIRFIELD RESORTS, INC.), a Delaware corporation( "Indemnitor"), THE TRAILS AT PALM SPRINGS, LLC, a California limited liability company ("Buyer"), THE CITY OF PALM SPRINGS, a municipal corporation (the "City") and THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic (the "Agency"), with reference to the following facts: RECITALS A. On or about May 17, 2000, SCHLPS LLC, a California limited liability company ("SCHLPS"), obtained approval from the City for Tentative Tract Map 29691 and Planned Development District 260 (the "Approvals") for a project known as Star Canyon Resort(the "Project")to be located on certain real property consisting of approximately 11.41 acres of vacant land located in the City of Palm Springs, California the Property (the "Property"). The Approvals were extended and/or modified several times between 2002 and 2006. The final extension for the Approvals expired on or about January 30, 2007. B. In connection with that certain Disposition and Development Agreement concerning the Property and the Project dated on or about September 19, 2001, between the Agency and SCHLPS amended on or about November 26, 2002 (collectively, the DDA ), the Agency delivered to SCHLPS a Promissory Note dated April 7, 2003, in the face amount of$4,600,000 ("Note"). C. Pursuant to that certain Assignment and Assumption Agreement dated February 26, 2003 between SCHLPS and Indemnitor, SCHLPS assigned to Indemnitor its rights and obligations under the DDA, including SCHLPS' rights and obligations relating to the Approvals and the Project, with the consent of the Agency. On April 7, 2003, SCHLPS transferred the Property to Indemnitor by warranty deed. D. On April 7, 2003, SCHLPS assigned the Note to First American Trust Company, a California corporation("Escrow Holder") for the benefit of SCHLPS and Indemnitor. E. After transfer of the Property from SCHLPS to Indenmitor, Indemnitor and the City entered into that certain Development Agreement dated February 4, 2004 (the "DA"). F. Indemnitor's application for approval of final development plans for the Project was PP P initially denied by the City's Planning Commission on November 24, 2004. After Indemnitor revised its final plans, the Planning Commission again denied Indemnitor's application for approval of its final development plans on May 11, 2005. Indemnitor appealed the decision of the Planning Commission to the City Council. On July 13, 2005, the City Council upheld the determination of the Planning Commission. G. Because Indemnitor was unable to obtain approval of its final development plans for the Project from the City, Indemnitor has marketed the Property for sale. H. The Property is subject to certain covenants and conditions and restrictions on transfer, including those set forth in: (i)the Grant Deed from the Agency to SCHLPS, recorded April 7, 2003, as Instrument No. 2003-242561 (the "Grant Deed""); (ii)that certain Declaration of Covenants, Conditions and Restrictions by and between the Agency and SCHLPS dated April 7, 2003 (the "Declaration"); (iii)the DDA; and (iv)the DA. The Grant Deed, the Declaration,the DDA and the DA are collectively referred to as "Use Restrictions." L Buyer desires to purchase the Property from Indemnitor pursuant to a purchase and sale agreement entered into between Indemmtor and Buyer dated September 27, 2006, as amended (the"PSA"). Termination or modification of the Use Restrictions is a condition precedent to the sale of the Property to Buyer under the PSA. Additionally, due to the Use Restrictions,the Property cannot be transferred by Indemnitor to Buyer without consent of the City and the Agency. Finally, Buyer is unwilling to proceed to closing on the Property, and the City and the Agency are unwilling to terminate or modify the Use Restrictions and consent to transfer of the Property, unless Indemnitor agrees to indemnify the Buyer,the City and the Agency from liability to SCHLPS under the Note, as provided herein. FOR VALUABLE CONSIDERATION, receipt and sufficiency of which are hereby acknowledged, Indemnitor agrees to indemnify, defend, and hold harmless Buyer, the City, and the Agency, and their respective directors, officers, members, employees, agents, affiliates, successors and assigns (collectively, the "Indemnified Parties"), from and against any liability, loss, damage, claims, costs, charges, or expenses, including attorneys fees, that the Indemnified Parties may sustain, suffer, incur or become subject to or liable for(collectively, the "Adverse Consequences") on account of any claim, demand, action, or proceeding (each referred to herein as a"Claim") which arises from or results from any claim, demand, action or proceeding made, brought or taken by or through SCHLPS or any of its present or former members, managers, partners, affiliates, successors or assigns (each referred to herein as a "Claimant") relating to the Note or the termination thereof by the Agency pursuant to the DDA (the "Indemnity Obligations"). The Indemnity Obligations are subject to the following provisions: 1. Without limiting the foregoing,the Indemnity Obligations shall include: (i) expenses incurred in defending or prosecuting, or resulting from any interim or final judgment or order, in any proceeding to void, attack, annul or set aside the termination of the Note, or (ii) the filing or existence of a lis pendens affecting, delaying or interfering with the Property or Buyer's (or its successor's or assign's) anticipated use and/or development of the Property, on account of any Claims or actions by the Claimant. 2. Separate suits may be brought under this Agreement as causes of action accrue, and suit may be brought by any or all of the Indemnified Parties; and suit or suits on one or more causes of action, or by one or more of the Indemnified Parties, shall not prejudice or bar subsequent suits by any other. 2 3. If an Indemnified Party shall receive notice of any matter which may give rise to a claim for indemnification against Indemnitor under this Agreement, then the Indemnified Party shall promptly notify Indemnitor thereof in writing;provided, however,that no delay on the part of the Indemnified Party in notifying Indemnitor shall relieve the Indemnitor from any obligation hereunder unless (and then solely to the extent)the Indemnitor thereby is prejudiced. Indemnitor will have the right to defend the Indemnified Party against the Claim with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (i)the Indemnitor notifies the Indemnified Party in writing within 15 days after the Indemnified Party has given notice of the Claim that the Indemnitor will indemnify the Indemnified Party from and against the entirety of any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Claim, (ii)the Indemnitor provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnitor will have the financial resources to defend against the Claim and fulfill its indemnification obligations hereunder, (iii) the Claim involves only money damages and does not seek an injunction or other equitable relief, or a lien against the Property, (iv) settlement of, or an adverse judgment with respect to, the Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedental custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnitor conducts the defense of the Claim actively and diligently. So long as the Indemnitor is conducting the defense of the Third Party Claim in accordance with the foregoing paragraph, (i)the Indemnified Party may retain separate co- counsel at its sole cost and expense and participate in the defense of the Claim, (ii)the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Claim without the prior written consent of the Indemnitor, which consent will not be unreasonably withheld, and (iii)the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Claim without the prior written consent of the Indemnified Party. In the event any of the conditions in the first paragraph of this Section No. 3 above is or becomes unsatisfied, however, (i)the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to,the Claim in any manner it may deem appropriate (and the Indemnified Party need not obtain consent from Indemnitor in connection therewith), (ii) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Claim(including attorneys' fees and expenses), and (iii)the Indemnifying Parties will remain responsible for any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Claim to the fullest extent provided in this Agreement. 4. This Agreement shall be binding on and inure to the benefit of the parties and their legal representatives, affiliates, successors and assigns, and shall survive the termination of the Note and the closing of the purchase of the Property by Buyer. 3 i 5. The foregoing indemnification provisions are in addition to, and not in derogation of, any statutory, equitable, or common law remedy any Party may have for breach of representation, warranty, or covenant. 6. In addition to any other Indemnification Obligation, if any action, proceeding, or arbitration arising out of or relating to this Agreement is commenced by either party,the prevailing party shall be entitled to receive from the other party, in addition to any other relief that may be granted, the reasonable attorneys' fees, costs, and expenses incurred in the action, proceeding, or arbitration by the prevailing party. 7. This Agreement and the legal relations between the parties shall be governed by and construed in accordance with the laws of the State of California. 8. This Agreement may be executed in counterparts, each of which shall constituted one and the same Agreement. IN WITNESS WHEREOF, the parties have signed this agreement as of the date above. INDEMNITOR: WYNDHAM VACATION RESORTS, INC., a Delaware corporation By: Name: Title: CITY: CITY OF PALM SPRINGS, a municipal corporation ATTEST: By: I� By: �✓ l .tt� Its: Chief Deputy City Clerk Its: APPROVED AS TO FORM: APPROVED By CITY COUNCIL Edward C. Bertrand tot{�p�7p�1X o� A11�a3 Assistant City Attorney 4 AGENCY: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ATTEST: By: B �✓ .Q (Its. KatW Hart, CMC Its:C� t Chief Deputy City Clerk Aft FOR: James Thompson C.°��/ , r API)IW1Wm �e)cf . p LLudB �14LY � �.l.R✓ S'dWv�VJ �i4 u� tl E4i]LL�WY�i Edward L'Bernand k. D 4f P Assistant Agency Counsel BUYER: THE TRAILS AT PALM SPRINGS, LLC, a California limited liability company By: Name: Title: 5 RESOLUTION NO. 1323 A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, ORDERING THE TERMINATION OF THE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN SCHLPS, LLC, AND THE COMMUNITY REDEVELOPMENT AGENCY DATED SEPTEMBER 19, 2001, AS AMENDED BY THE FIRST AMENDMENT DATED NOVEMBER 5,2002,AND ASSIGNED TO FAIRFIELD RESORTS, INC. (NOW KNOWN AS WYNDHAM VACATION RESORTS, INC.)PURSUANT TO AN ASSIGNMENT AND ASSUMPTION AGREEMENT AND CONSENT OF AGENCY DATED FEBRUARY 26, 2003, SUBJECT TO THE CONDITION THAT THE TERMINATION SHALL BECOME EFFECTIVE UPON THE CLOSE OF THE SALE OF THE PROPERTY FROM WYNDHAM VACATION RESORTS, INC. TO THE TRAILS AT PALM SPRINGS, LLC, The Community Development Agency of the City of Palm Springs, hereby resolves: Section 1. Order the termination of the Disposition and Development Agreement between SCHLPS, LLC, and the Community Redevelopment Agency dated September 19, 2001, as amended by the First Amendment dated on November 5, 2002, and assigned to Fairfield Resorts, Inc. (now known as Wyndham Vacation Resorts, Inc.) pursuant to an Assignment and Assumption Agreement and Consent of Agency dated February 26,2003,subjectto the condition that the termination shall become effective upon the close of the sale of the property from Wyndham Vacation Resorts to The Trails at Palm Springs, LLC, and Citv approval of a development agreement or other entitlements forthe development of the site for the benefit of the Trails at Palm Springs or its successor or designee. Section 2. Authorize the Executive Director to execute appropriate releases and other documentation, includin the Declaration of Covenants Conditions, and Restrictions dated April 7, 2003, between SCHLPS, LLC,# e Agency, and the Gity, Paragraphs 1 -3, 5,and 8 of the Grant Deed dated April 7,2003 from the Agency to the SCHLPS, LLC, and such other covenants and restrictions as Agency Counsel may approve or recommend as reasonably necessary to evidence the termination of the Disposition and Development Agreement as conditioned above. ADOPTED THIS 7th day of Marc 7. David H. Ready, Executi erector ATTEST: ?mes=TThtom�pson, Assistant Secretary Y" E •,•• 3 r._ J k ! AZ r T '.d 3• a � FaiIIield ResOftW(sbHLPS),- Recap "09 19 2001 o CRA approved the,DDA with Schlps A0428C,; Res 1147; Council concurred' Res 2017.1 1126 2002 „ CPA approved Amend 9'to A0428C ' Res,120,0 ,' ,_ Council concurred"' Res 20491 02 26 2003 h f CRA approved Assignment.and Assumptiori b�etvyee� Schlps& Fai field Resorts Re 1211 l 01 21 2004 z Council introduced Ord 1643 approving DDA w/ Fai1.rfield to°facilitate impact mitigation fees' $ 5 i 02;042004' Council adopted otd approving DDA with Fairfield Resorts A4823 Ord 1643 °to facilitate impact mitigation fees. J �i14 r 1 1cin!►oow of F �S �\ Y � � :ra • } . < �� M S • T aS L File A4823 ` Fairfield Resorts �,r. c-Files°A0428c="SCHLPS'`. . . �n. . e3 •�P a �t CaA r.' � �. a. ,. 5 a:. ! r �`:° i a7 ,, v-`ra` ' E r €4 s t T 1 !v• Re17 71 C Fairfield Resorts (SCHLPS) - ReCap 09 19 2001 CRA approved the DDA with Schlps A0428C Res 1147 Council concurred Res 20171 11 262002 CRA approved Amend 1 to A0428C Res 1200 Council concurred Res 20491 02 26 2003 CRA approved Assignment and Assumption between Schlps & Fairfield Resorts Re 1211 01 21 2004 Council introduced Ord 1643 approving Development Agreement (DA) w/ Fairfield to facilitate impact mitigation fees 02 04 2004 Council adopted ord approving DA with Fairfield Resorts A4823 Ord 1643 to facilitate impact mitigation fees File A4823— Fairfield Resorts x-File A0428c— SCHLPS MINUTES OF CITY OF PALM SPRINGS COMMUNITY REDEVELOPMENT AGENCY FEBRUARY 26, 2003 A Regular Meeting of the Community Redevelopment Agency of the City of Palm Springs, California, was called to order by Chairman Kleindienst, in the Council Chamber, 3200 Tahquitz Canyon Way, on Wednesday, February 26,2003,at 5:30 p.m., at which time,the City Attorney announced items to be discussed In Closed Session, and at 7:00 p.m., the meeting was convened in open session. ROLL CALL: Present: Agency Members Mills, Oden, Reller-Spurgin, and Chairman Kleindienst Absent: Agency Member Hodges. REPORT OF POSTING OF AGENDA: City Clerk reported that the agenda was posted in accordance with Agency procedures on February 21, 2002, REPORT OF CITY ATTORNEY ON MATTERS DISCUSSED IN CLOSED SESSION (All Entities)-See items on Page 5 of agenda this date. PUBLIC HEARINGS: None PUBLIC COMMENTS: None LEGISLATIVE ITEMS: A. SCHLPS LLC Recommendation: That the Agency approve an assignment and assumption agreement between SCHLPS, LLC and Fairfield Resorts, LLC. A428C. Director of Community& Economic Development reviewed the staff report. i Resolution 1211 as recommended was presented; after which it was moved by Reller-Spurgin, seconded by Mills and carried by the following vote, that R1211 be adopted. AYES: Members Mills, Oden and Reller-Spurgin NO: Chairman Kleindienst ABSENT: Member Hodges. ADJOURNMENT: There being no further business, Chairman declared the meeting adjourned. BARBARA J. WHITE Acting Assistant Secretary PATRICIA A. SANDERS Assistant Secretary w DOC a Z004—OXS4783 03/05/2004 08:00R Fee:NC Page 1 of 29 Recorded in Official Records County of Riverside Recording Requested by And Asses Cary L. Orso City of Palm Springs When Recorded Return to: I 1111111111111111111111111111111111111111111111111111 i ,J� �J 3200 Tahquitz Canyon Way Fairfield Resorts Palm Springs, CA 92262 M S U PAGE 512 DDA Attn: City Clerk AGREEMENT #4823 01643, 2-4-04 A R L COPY LGNG REFUND NCHG EXAM [Exempt From Recording Fee Per Gov.Code§6103] DEVELOPMENT AGREEMENT mn This Development Agreement (hereinafter "Agreement") is entered into this O� day of 2004, by and between the CITY OF PALM SPRINGS (hereinafter "City") and FA1RF LD RESORTS, INC., a Delaware corporation("hereinafter "Developer"). RECITALS A. California Government Code Sections 65864 et seq. ("Development Agreement Law") authorize cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and identifying the economic costs of such development. B. Developer is the owner of legal and/or equitable interests in that certain real property legally described in Exhibit "A" attached hereto (collectively, the "Site"), and thus qualifies to enter into this Agreement in accordance with Development Agreement Law. C. Developer and the Community Redevelopment Agency of the City of Palm Springs are parties to that certain Disposition and Development Agreement dated on or about September 19, 2001, as amended by the First Amendment on or about November 22, 2002 (together, the "DDA"). Among other things, the DDA provides for Developer's acquisition of the Site and the development of the Project thereon consisting of approximately 255 time share units, without a hotel component as originally proposed. To alleviate the loss in revenue to the City from the elimination of the hotel component of the Project, and in exchange for certain golf privileges and to pay for installation of infrastructure improvements including the Belardo Bridge, and to pay for landscaping, lighting and other public maintenance expenses, and to pay for and maintain public access to Indian canyons and desert lands, 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." Developer and City agree that a development agreement should be approved and adopted for this Site in order to memorialize the FIM Fee obligation and the property expectations of City and Developer as more particularly described herein. OL BID �tIC39b11� Gi a�Ps �I�II�OIt 1003/036/23605 v4 t D. The City Council has found that this Agreement is in the best public interest of the City and its residents, adopting this Agreement constitutes a present exercise of the City's police power, and this Agreement is consistent with the City's General Plan. E. City finds and determines that all actions required of City precedent to approval of this Agreement by Ordinance No. 1643 of the City Council have been duly and regularly taken. COVENANTS NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. DEFINITIONS AND EXHIBITS. 1.1 Definitions. This Agreement uses a number of terms having specific meanings, as defined below. These specially defined terns are distinguished by having the initial letter capitalized, when used in the Agreement. The defined terms include the following: 1.1.1 "Agreement" means this Development Agreement and all attachments and exhibits hereto. 1.1.2 "City" means the City of Palm Springs, a charter city. 1.1.3 "City Council'means the City Council of the City. 1.1.4 "Developer" means Fairfield Resorts, hie., a Delaware corporation, and m its permitted successors and assigns to all or any part of the Site. m <0" ©o a 1.1.5 "Development" means the improvement of the Site for the purposes of W" completing the structures, improvements and facilities comprising the Project including, M but not limited to: grading; the construction of infrastructure related to the Project whether located within or outside the Site; the construction of buildings and structures; and the installation of landscaping and other facilities and improvements necessary or appropriate for the Project, and the maintenance, repair, or reconstruction of any building, structure, improvement, landscaping or facility after the construction and completion thereof on the Site. 1.1.6 "Development Approvals" means all site-specific (meaning specifically applicable to the Site only and not generally applicable to some or all other properties MMM within the City) plans, maps, permits, licenses, approvals, and entitlements to use of every kind and nature. Development Approvals include, but are not limited to, specific plans, site plans, tentative and final subdivision maps, design guidelines, variances, zoning designations, conditional use permits, planned development districts, the DDA, grading, building, and other similar permits, the site-specific provisions of general plans, environmental assessments, including environmental impact reports and negative declarations, and any amendments or modifications to those plans, maps, permits, 1003/036/23605 0 2 assessments and entitlements. The term Development Approvals does not include (i) rules, regulations, policies, and other enactments of general application within the City, or(ii) any matter where City has reserved authority under Article 3. 1.1.7 "Development Plan" means the proposed plan for Development of the Site pursuant to and including the Development Approvals and the DDA. 1.1.8 "Effective Date" means the date inserted into the preamble of this Agreement after this Agreement has been approved by ordinance of the City Council and signed by the Developer and City. 1.1.9 "Existing Land Use Regulations" means the Land Use Regulations which have been adopted and are effective on or before the Effective Date of this Agreement. 1.1.10 "Financial Impact Mitigation Fee" or "FIM Fee" means the fee to be paid to the City to alleviate the loss in revenue to the City from the elimination of the hotel component of the Project, and in exchange for certain golf privileges and to pay for installation of infrastructure improvements including the Belardo Bridge, and to pay for landscaping, lighting and other public maintenance expenses, and to pay for and maintain public access to Indian canyons and desert lands, as described in Exhibit `B" attached hereto and in the Declaration attached to the DDA as Exhibit "F." The terms governing the imposition, collection, use, and enforcement of the FIM Fee are set forth in Exhibit "B „ 2 m M 0 1.1.11 "Land Use Regulations" means all ordinances, laws, resolutions, codes, 'V w rules, regulations, policies, requirements, guidelines or other actions of City, including NM but not limited to the City's General Plan, applicable Specific Plan, and Municipal Code m m and Zoning Code and including all development impact fees, which affect, govern or apply to the development and use of the Site, including, without limitation, the permitted C use of land, the density or intensity of use, subdivision requirements, 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 Development of the Site, subject to the terms of this Agreement. The term Land Use Regulations does not include, however, regulations relating to the conduct of business, professions, and occupancies generally; taxes and assessments; regulations for the control and abatement of nuisances; uniform codes; utility easements; the granting of 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; health and safety regulations; environmental regulations; or similar matters or any other matter reserved to the City pursuant to Article 3. 1.1.12 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security device, a lender or each of their respective successors and assigns. 1003/036/23605 v4 3 1.1.13 "Project" means the Development of the Site consistent with the Development Plan, the DDA, and this Agreement. The Project is more particularly described in the DDA and the Scope of Development attached to the DDA as Exhibit "G 1.1.14 "Site" means the real property described in and shown in Exhibit "A." 1.1.15 "Reservation of Authority" means the rights and authority excepted from the assurances and rights provided to Developer under this Agreement and reserved to City under Section 3.6 of this Agreement. 1.1.16 "Schedule of Performance" means the Schedule of Performance attached to the DDA as Exhibit `B" and incorporated herein by reference, providing a general schedule for the development of the Site. 0 1.1.17 "Scope of Development" means the Scope of Development attached to mm the DDA as Exhibit"G" and incorporated herein by reference. 0 m 0 47 m' 1.1.18 "Subsequent Development Approvals" means all Development Approvals issued subsequent to the Effective Date in connection with Development of _ the Site. 1.1.19 "Subsequent Land Use Regulations" means any Land Use Regulations C effective after the Effective Date of this Agreement (whether adopted prior to or after the Effective Date of this Agreement) which govern development and use of the Site. 1.1.20 "Term" shall mean the period of time from the Effective Date until the termination of this Agreement as provided in Section 2.4, wiless earlier terminated as Mem provided in this Agreement. 1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: Exhibit "A" (Legal Description), and Exhibit `B" (Financial Impact Mitigation Fee). 2. GENERAL PROVISIONS. 2.1 Binding Effect of Agreement. From and following the Effective Date, actions by the City and Developer with respect to the Development of the Site, including actions by the City on applications for Subsequent Development Approvals affecting the Site, shall be subject to the terms and provisions of this Agreement. 2.2 Ownership of Site. City and Developer acknowledge and agree that Developer has a legal or equitable interest in the Site and thus Developer is qualified to enter into and be a party to this Agreement under the Development Agreement Law. 2.3 Sale or Transfer of the Project. The Developer covenants that during the term of this Agreement and prior to the recordation of the Notice of Release of Construction 1003/036/23605 v4 4 Covenants as provided in the DDA, Developer shall not assign this Agreement or transfer the Site or any of its interests therein except as provided in this Section. 2.3.1 Transfer Defined. As used in this Section, the term "Transfer" shall include any assignment, hypothecation, mortgage, pledge, conveyance, or encumbrance of this Agreement, the Site, or the improvements thereon. A Transfer shall also include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) (in the aggregate) of the present ownership and/or control of any person or entity constituting Developer or its general partners, 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, or among the entities constituting Developer or its general partners or their respective shareholders. In the event any entity constituting Developer, its successor or the constituent partners of Developer or any successor of Developer, is a corporation or trust, such transfer shall refer to the transfer of the issued and outstanding capital stock of such corporation, or of beneficial interests of such trust; in the event that any entity constituting Developer, its successor or the constituent partners of Developer or any successor of Developer is a limited or general partnership, such transfer shall refer to the transfer of more than twenty-five percent (25%) of such limited or general partnership interest; in the event that nm any entity constituting Developer, its successor or the constituent partners of Developer �w or any successor of Developer is a joint venture, such transfer shall refer to the transfer of N� more than twenty-five percent (25%) of the ownership and/or control of any such joint venture partner, taking all transfers into account on a cumulative basis. m m 2.3.2 City Approval of Transfer Required. Developer shall not Transfer this Agreement or any of Developer's rights hereunder, or any interest in the Site or in the improvements thereon, directly or indirectly, voluntarily or by operation of law, without the prior written approval of City, which approval will not be unreasonably withheld, and any such purported Transfer without such approval shall be null and void. hi considering whether it will grant approval to any Transfer by Developer, which Transfer requires City approval, City shall consider factors such as (i) whether the completion of the Project is �— jeopardized; (ii) the financial credit, strength and capability of the proposed transferee to perform Developer's obligations hereunder; (iii) the proposed transferee's experience and expertise in the planning, financing, rehabilitation, development, ownership, and operation of similar projects; and (iv) whether the Transfer is for the purpose of financing the purchase or development of the Site. A Transfer for financing purposes shall not be approved by the City if the loan documents do not state that the loan proceeds must be used for the Project. The transfer to SCHLPS, LLC, or an affiliate controlled by or under common control with SCHLPS, LLC, of the lot or parcel on which the restaurant will be constructed is hereby approved. The City Manager shall have the authority to approve Transfers pursuant to this section. 2.3.3 Release; Assumption. In the absence of specific written agreement by City, no Transfer by Developer of all or any portion of its interest in the Site shall be deemed to relieve Developer or any successor party from the obligation to complete the Project or any other obligations under this Agreement. In addition, no attempted Transfer 1003/036/23605 v4 5 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 Attorney and City Manager assuming such obligations. 2.4 Term of Agreement. Unless earlier terminated as provided in this Agreement, this Agreement shall continue in full force and effect until the date that is twenty(20) years from and after the Effective Date; provided, however, that all of the terms and conditions relating to the imposition, collection, use, and enforcement of the F1M Fee, as set forth in Exhibit `B," shall survive the termination of this Agreement.. 3. DEVELOPMENT OF THE PROPERTY. 3.1 Rights to Develop. Subject to and during the Term of this Agreement, Developer shall have a vested right to develop the Site in accordance with, and to the extent of, the Development Plan (including any Subsequent Development Approvals), the Existing Land Use Regulations, and this Agreement. If there is any conflict between the terms of this Agreement and the terms of the DDA (including the Scope of Development attached thereto) regarding the development of the Site, the terms of the DDA shall control. m 3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided mN under the terms of this Agreement, the rules, regulations and official policies governing N� permitted uses of the Site, the density and intensity of use of the Site, the maximum height and size of proposed buildings, and the design, improvement and construction standards and m specifications applicable to Development of the Site, shall be as set forth in the Existing Land Use Regulations which were in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement, as amended by the Development Approvals. mnm 3.3 Timing of Development; Scope of Development. Developer shall commence and complete construction of the Project in accordance with the Schedule of Performance. The parties acknowledge that the Project will be developed in phases as set forth in the DDA and the Scope of Development, except as otherwise agreed by City and Developer. 3.4 Development Plan; Subsequent Development Approvals. The Development C Plan for the Project will require the processing of Subsequent Development Approvals, which shall be consistent with the DDA and Scope of Development. The City shall accept for processing, review and action all applications for Subsequent Development Approvals, and such C applications shall be processed in the normal manner for processing such matters in accordance with the Existing Land Use Regulations. The Parties acknowledge that under no circumstances shall City be obligated in any manner to approve any Subsequent Development Approval, or to approve any Subsequent Development Approval with or without any particular condition. However, unless otherwise requested by Developer it shall not amend or rescind any Subsequent Development Approvals respecting the Site after such approvals have been granted by the City. Processing of Subsequent Development Approvals or changes in the Development Approvals or Development Plan made pursuant to Developer's application shall not require an amendment to this Agreement. 1003/036/23605 v4 6 3.5 Development Impact Fees. Except as may otherwise be specifically provided by this Agreement, all requisite development impact fees shall be those existing on the date the applicable Subsequent Development Approvals are submitted. Development impact fees shall be paid at such time as payment for such fees is due and payable in accordance with the Existing Land Use Regulations, for the portion of the Site to which such fees apply. 3.6 Reservation of Authority. 3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the Development of the Site: (a) Processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Subsequent Development Approvals or for monitoring compliance with any Subsequent Development Approvals granted or issued. (b) Procedural regulations consistent with this Agreement relating to hearing bodies, petitions, applications, notices, findings, records, hearing, reports, recommendations, appeals and any other matter of procedure. 2 m �m m� (c) Changes adopted by the International Conference of Building m a Officials, or other similar body, as part of the then most current versions of the tiN� Uniform Building Code, Uniform Fire Code, Uniform Plumbing Code, Uniform M Mechanical Code, or National Electrical Code, and also adopted by City as e Subsequent Land Use Regulations, if applicable throughout the City. (d) Regulations that may be in conflict with the Development Plan or this Agreement, but which City determines are materially necessary to protect the public health, safety, and welfare. (e) Regulations that are not in conflict with the Development Plan or this Agreement. Mon (f) Regulations that are in conflict with the Development Plan or this Agreement, provided Developer has given written consent to the application of such regulations to Development of Site. (g) Federal, State, County, and multi jurisdictional laws and regulations which City is required to enforce as against the Site or the Development of the Site. 3.6.2 Future Discretion of City. This Agreement shall not prevent City from denying or conditionally approving any application for a Subsequent Development Approval on the basis of the Existing Land Use Regulations. 3.6.3 Modification or Suspension by Federal, State, County, or Multi- Jurisdictional Law. In the event that Federal, State, County, or multi jurisdictional laws 1003/036/23605 v4 7 or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such Federal, State, county, or multi jurisdictional laws or regulations, and this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provision impractical to enforce. 3.7 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not subject to control by City may possess authority to regulate aspects of the Development of the Site, and this Agreement does not limit the authority of such other public agencies. 3.8 Public Improvements. Developer shall construct certain off-site improvements and make certain dedications (`Exactions") as described in the DDA Scope of Development. When Developer is required by this 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 rvm completion, Developer shall perform such work in the same manner and subject to the same m" construction standards as would be applicable to the City or such other public agency should it Imo have undertaken such construction work. Notwithstanding the foregoing, within thirty(30) days following the Effective Date, Developer shall dedicate the required forty (40) feet of right-of- way for Belardo Road as specified in the conditions of approval to the Tentative Tract Map. 3.9 Fees, Taxes and Assessments. During the term of this Agreement, Developer shall be obligated to pay all fees, taxes or assessments that apply to the Project and/or the Site, C and any increases in same, except as may be expressly provided herein. 3.10 Financial Impact Mitigation Fee. During the Term of this Agreement, the Project shall be subject to the payment of the Financial Impact Mitigation Fee as described in Exhibit "B" attached hereto and in the Declaration attached to the DDA as Exhibit "F." The terms governing the imposition, collection, use, and enforcement of the FIM Fee are set forth in Exhibit`B." 4. REVIEW FOR COMPLIANCE. 4.1 Annual Review. The City Council shall review this Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the good faith compliance by Developer with the terms of the Agreement ("Annual Review"). No failure on part of City to conduct or complete an Annual Review as provided herein shall have any impact on the validity of this Agreement. 4.2 Special Review. The City Council may, in its sole and absolute discretion, order a special review of compliance with this Agreement at any time at City's sole cost ("Special Review"), Developer shall cooperate with the City in the conduct of such Special Reviews. 4.3 Procedure. Each party shall have a reasonable opportunity to assert matters which it believes have not been undertaken in accordance with the Agreement, to explain the basis for such assertion, and to receive from the other parry a justification of its position on such 1003/036/23605 v4 8 matters. If on the basis of the parties' review of any terms of the Agreement, either party concludes that the other party has not complied in good faith with the terms of the Agreement, then such party may issue a written "Notice of Non-Compliance" specifying the grounds therefor and all facts demonstrating such non-compliance. The party receiving a Notice of Non- Compliance shall have thirty (30) days to cure or remedy such non-compliance identified in the Notice of Non-Compliance, or if such cure or remedy is not reasonably capable of being cured or remedied within such thirty (30) days period to commence to cure or remedy the non-compliance and to diligently and in good faith prosecute such cure or remedy to completion. If the party receiving the Notice of Non-Compliance does not believe it is out of compliance and contests the Notice, it shall do so by responding in writing to said Notice within thirty (30) days after receipt of the Notice. If the response to the Notice of Non-Compliance has not been received in the offices of the party alleging the non-compliance within the prescribed time period, the Notice of Non-Compliance shall be conclusively presumed to be valid. If a Notice of Non-Compliance is contested, the parties shall, for a period of not less than fifteen (15) days following receipt of the response, seek to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice. In the event that a cure or remedy is not timely effected or, if the Notice is contested and the parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the fifteen (15) day period, the party alleging the non-compliance may thereupon pursue the m remedies provided in Section 5. Neither party hereto shall be deemed in breach if the reason for ;w non-compliance is due to a "force majeure" as defined in, and subject to the provisions of, m° Section 8.10. y NW 0 N N m 4.4 Certificate of Agreement Compliance. If, at the conclusion of an Annual Review or a Special Review, Developer is found to be in compliance with this Agreement, City shall, upon request by Developer, issue a Certificate of Agreement Compliance ("Certificate") to Developer stating that after the most recent Annual Review or Special Review and based upon the information known or made known to the City Manager, Planning Commission, and City Council that (1) this Agreement remains in effect and (2) Developer is in compliance. The Certificate, whether issued after an Annual Review or Special Review, shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer may record the Certificate with the County Recorder. �. Additionally, Developer may at any time request from the City a Certificate stating, in addition to the foregoing, which obligations under this Agreement have been fully satisfied with respect to the Site, or any lot or parcel within the Site. C 5. DEFAULT AND REMEDIES. 5.1 Specific Performance Available. Developer acknowledges and agrees that other than the termination of this Agreement pursuant to Section 5.2, specific performance is the only remedy available to Developer for the enforcement of this Agreement and knowingly, intelligently, and willingly waives any and all other remedies otherwise available in law or equity. Accordingly, and not by way of limitation, and except as otherwise provided in this Agreement, Developer shall not be entitled to any money damages from City by reason of any default under this Agreement. Further, Developer shall not bring an action against City nor obtain any judgment for damages for a regulatory taking, inverse condemnation, unreasonable exactions, reduction in value of property, delay in undertaking any action, or asserting any other liability for any matter or for any cause which existed or which the Developer knew of or should 1003/036/23605 v4 9 have known of prior to the time of entering this Agreement, Developer's sole remedies being as specifically provided above. Developer acknowledges that such remedies are adequate to protect Developer's interest hereunder and the wavier made herein is made in consideration of the obligations assumed by the City hereunder. The Developer's waiver of the right to recover monetary damages shall not apply to any damages or injuries to a third party caused by the City's negligence. 5.2 Termination of Agreement. Either party may terminate this Agreement for any material failure of the other party to perform any material duty or obligation hereunder (hereinafter referred to as "default" or "breach"); provided, however, this Agreement may be terminated pursuant to this Section only after following the procedure set forth in Section 4.3. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to (i) any obligations to have been performed prior to said termination, (ii) any default in the performance of the provisions of this Agreement which has occurred prior to said termination, or (iii) the continuing obligation of each Timeshare Owner to pay the FIM Fee as described in Exhibit `B," which shall survive the termination of this Agreement. Termination of this Agreement shall not affect the rights and obligations of Developer under the DDA and the Development Approvals. 0 �0 N 6. THIRD PARTY LITIGATION. 00 m 0 Developer shall defend, indemnify and hold harmless the City, Agency and all of their magents, officers and employees (the "Indemnitee") from any claim, action or proceeding against the City, Agency or any of their agents, officers and employees to void, attack, annul, or set aside this Agreement, or to obtain monetary damages therefore. Indemnitee will promptly notify the Developer of any such claim, action or proceeding, and will cooperate fully in the defense of that action. If the Indemnitee fails to promptly notify Developer of any such claim, action or proceeding or fails to cooperate fully in the defense, the Developer shall not, thereafter, be responsible to defend, indemnify, or hold harmless Indemnitee. Notwithstanding the foregoing, Indenu itee retains the right to settle or abandon the matter without Developer's consent, but should it do so, Indemnitee shall waive the indemnification herein, except, Indemnitee's decision to settle or abandon the matter following an adverse judgment or failure to appeal, shall not cause a waiver of the indemnification rights herein. Notwithstanding the foregoing, Developer shall have no obligation to defend Agency or City in the validation action or in any action challenging the validity of the Financial Impact Mitigation Fee, or to indemnify Agency or City for any loss or reduction of the Financial Impact Mitigation Fee other than as provided in the Note. 7. MORTGAGEE PROTECTION. The parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering the Site or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Site, except as provided in the DDA. City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and City agrees upon request, from time to time, to meet with Developer and representatives of such 1003/036/23605 v4 10 lenders to negotiate in good faith any such request for interpretation or modification. Subject to compliance with applicable laws, City will not unreasonably withhold its consent to any such requested interpretation or modification provided City determines such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Site shall be entitled to the following rights and privileges: (a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Site made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Site, or any part thereof, which Mortgagee has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by Developer in the performance of Developer's obligations under this Agreement. (c) 1f City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Developer under the terns of this Agreement, City shall make a good faith effort to provide a copy of that notice to mw the Mortgagee within ten (10) days of sending the notice of default to Developer. ° The Mortgagee shall have the right, but not the obligation, to cure the default N" during the period that is the longer of(i) the remaining cure period allowed such 'm party under this Agreement, or(ii) sixty(60) days. (d) Any Mortgagee who comes into possession of the Site, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Site, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer's obligations or other affirmative covenants of Developer hereunder, or to guarantee such performance; except that (i) to the extent that any covenant to be performed by Developer is a condition precedent to MMM the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's performance hereunder, and (ii) in the event any Mortgagee seeks to develop or use any portion of the Site acquired by such mnm Mortgagee by foreclosure, deed of trust, or deed in lieu of foreclosure, such Mortgagee shall strictly comply with all of the terms, conditions and requirements of this Agreement and the Development Plan applicable to the Site or such part thereof so acquired by the Mortgagee. 8. INSURANCE AND INDEMNIFICATION. 8.1 Insurance. Prior to the commencement of any construction by Developer, Developer and/or any persons entering on the Site to conduct inspections or to install improvements on the Site shall procure and maintain, at its sole cost and expense, in a form and 1003/036/23605 v4 11 content satisfactory to City, during the entire term of such entry or construction, the following policies of insurance: 8.1.1 Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than either (i) a combined single limit of ONE MILLION DOLLARS ($1,000,000.00) or (ii) bodily injury limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per person, ONE MILLION DOLLARS ($1,000,000.00) per occurrence, ONE MILLION DOLLARS ($1,000,000.00) products and completed operations and property damage limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000,00) per occurrence and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) in the aggregate. 8.1.2 Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Developer and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Developer in the course of carrying out the work or services contemplated in this Agreement. 8.1.3 Automotive Insurance. A policy of comprehensive automobile liability M1 m insurance written on a per occurrence basis in an amount not less than either (i) bodily a o injury liability limits of TWO HUNDRED FIFTY , THOUSAND DOLLARS a ($250,000.00) per person and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00)per occurrence and property damage liability limits of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) per occurrence and ONE HUNDRED THOUSAND DOLLARS ($100,000.00) in the aggregate or (ii) combined single limit liability of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00). Said policy shall include coverage for owned, non-owned, leased and hired cars. 8.1.4 Builder's Risk Insurance. A policy of"builder's risk" insurance covering the full replacement value of all of the improvements to be constructed by Developer pursuant to this Agreement. All of the above policies of insurance, except the Builder's Risk Insurance, shall be primary insurance and shall name City, and its officers, employees, and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against City, and its officers, employees and agents and its insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) -C days prior written notice by registered mail to City. In the event any of said policies of insurance are canceled, the Developer shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the City Manager. No work or services under this Agreement shall commence until the Developer has provided City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by City. The policies of insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition 1003/036/23605 v4 12 of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City("Risk Manager") due to unique circumstances. Developer shall provide in all contracts with contractors, subcontractors, architects, and engineers that said contractor, subcontractor, architect, or engineer shall maintain the same policies of insurance required to be maintained by Developer pursuant to this Section, unless waived by the Risk Manager of City. The Developer agrees that the provisions of this Section shall not be construed as limiting in any way the extent to which the Developer may be held responsible for the payment of damages to any persons or property resulting from the Developer's activities or the activities of any person or persons for which the Developer is otherwise responsible. 8.2 Indemnification. During the period of any construction of the improvements pursuant to this Agreement and until such time as is issued a Notice of Release of Construction Covenants for the Project pursuant to the DDA, Developer agrees to and shall indemnify and hold the City harmless from and against all liability, loss, damage, cost, or expense (including reasonable attorneys' fees and court costs) arising from or as a result of the death of any person NN or any accident, injury, loss, or damage whatsoever caused to any person or to the property of o any person which shall occur on the Site and which shall be directly or indirectly caused by the N acts done thereon or any errors or omissions of the Developer or its agents, servants, employees, mor contractors. Developer shall not be responsible for (and such indemnity shall not apply to) any acts, errors, or omissions of the City or its respective agents, servants, employees, or contractors. City shall not be responsible for any acts, errors, or omissions of any person or entity except City and its agents, servants, employees, or contractors, subject to any and all statutory and other immunities. The provisions of this Section shall survive the termination of this Agreement. 9. MISCELLANEOUS PROVISIONS. 9.1 Recordation of Agreement. This Agreement shall be recorded with the County Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code. Amendments approved by the parties, and any cancellation, shall be similarly recorded. 9.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties with respect to the subject matter set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence -- of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the,terms or conditions of this Agreement. 9.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, then this Agreement shall terminate in its entirety, unless the parties otherwise agree in writing, which agreement shall not be unreasonably withheld. 1003/036/23605 v4 13 9.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party or in favor of City shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof 9.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 9.6 Singular and Plural. As used herein, the singular of any word includes the plural. 9.7 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 9.8 Waiver. Failure of a party to insist upon the strict performance of any of the provisions of this 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 parry's right to insist and N demand strict compliance by the other party with the terms of this Agreement thereafter. �mw mN 9.9 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit for the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 9.10 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of God, fires, wars, terrorism, riots or similar hostilities, strikes and other labor C difficulties beyond the party's control (including the party's employment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the party's reasonable control. If any such events shall occur, the term of this Agreement and the time for performance shall be extended for the duration of each such event, provided that the term of this Agreement shall not be extended under any circumstances for more than one (1) i year. 9.11 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party. 9.12 Counterparts. This 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. 9.13 Litigation. Any action at law or in equity arising under this Agreement or brought by any party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Corot of the County of Riverside, State of California, or such other appropriate court in said county. Service of process 1003/036/23605 v4 14 on City shall be made in accordance with California law. Service of process on Developer shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. In the event of any action between City and Developer seeking enforcement of any of the terms and conditions to this Agreement, the prevailing party in such action shall be awarded, in addition to such relief to which such party entitled under this Agreement, its reasonable litigation costs and expenses, including without.limitation its expert witness fees and reasonable attorney's fees. 9.14 Covenant Not To Sue. The parties to this Agreement, and each of them, agree that this Agreement and each term hereof is legal, valid, binding, and enforceable. The parties to this Agreement, and each of them, hereby covenant and agree that each of them will not commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any other party to this Agreement, in law or in equity, or based on an allegation, or assert in any such action, that this Agreement or any term hereof is void, invalid, or unenforceable. 9.15 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the Development of the Project is a private Development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an m independent contracting entity with respect to the terms, covenants and conditions contained in �N this Agreement. No partnership,joint venture or other association of any kind is formed by this a a Agreement. The only relationship between City and Developer is that of a government entity regulating the Development of private property, on the one hand, and the holder of a legal or m equitable interest in such property, on the other hand. City agrees that by its approval of, and entering into, this Agreement that it is not taking any action which would transform this private Development into a"public work"project, and that nothing herein shall be interpreted to convey upon Developer any benefit which would transform Developer's private project into a public work project, it being understood that this Agreement is entered into by City and Developer upon the exchange of consideration described in this Agreement, including the Recitals to this Agreement which are incorporated into this Agreement and made a part hereof, and that City is receiving by and through this Agreement the full measure of benefit in exchange for the burdens placed on Developer by this Agreement, including but not limited to Developer's obligation to _ provide the public improvements set forth in the Scope of Development. 9.16 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this 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 under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 9.17 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by City of its power of eminent domain. 9.18 Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of both parties specifically approving the amendment and in accordance with 1003/036/23605 v4 15 the Government Code provisions for the amendment of Development Agreements_ Notwithstanding the foregoing, implementation of the Project may require minor modifications of the details of the Development Plan and performance of the parties under this Agreement_ The parties desire to retain a certain degree of flexibility with respect to those items covered irk general terms under this Agreement. Therefore, modifications of the Development Plan, which are found by the City Attorney to be non-substantive and procedural shall not require an amendment to this Agreement. A modification will be deemed non-substantive and/or- procedural if it does not result in material change in fees, cost, density, 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. 9.19 Corporate Authority. The person(s) executing this Agreement on behalf of each- of the parties hereto represent and warrant that (i) such party, if not an individual, is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such party is bound. m rvN 9.20 Notices. All notices under this Agreement shall be effective when delivered by m o (i) personal delivery, or (ii) reputable same-day or overnight courier or messenger service, (iii) m � overnight United States Postal Service Express Mail, postage prepaid, or (iv) by United States m Postal Service mail, registered or certified, postage prepaid; and addressed to the respective parties as set forth below or as to such other address as the parties may from time to time designate in writing: 1003/036/23605 v4 16 To City: City of Palm Springs 3200 Tahquitz Canyon Way Palm Springs, California 92262 Attn: City Manager With a Copy to: Aleshire &Wynder, LLP Tower 17 18881 Von Karman Avenue, Suite 400 Irvine, California 92612 Attn: David J. Aleshire, Esq. To Developer: Fairfield Resorts, Inc. 8427 South Park Circle, Suite 500 Orlando, Florida 32819 Attn: Senior Vice President With a Copy to: Fairfield Resorts, Inc. 8427 South Park Circle, Suite 500 Orlando,Florida 32819 Attn: John C. Alvarez, Esq., Senior Counsel _o m� 9.21 Nonliability of City Officials. No officer, official, member, employee, agent, or N° representatives of City shall be liable for any amounts due hereunder, and no judgment or execution thereon entered in any action hereon shall be personally enforced against any such officer, official,member, employee, agent, or representative. 9.22 No Brokers. City and Developer represent and warrant to the other that neither has employed any broker and/or finder to represent its interest in this transaction. Each party agrees,to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorney's fees) in any manner connected with a claim asserted by any individual or entity for any commission or finder's fee in connection with this Agreement arising out of agreements by the indemnifying party to pay any commission or finder's fee. [end—signature page follows] C 1003/036/23605 v4 17 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth above. City: CITY OF PALM SPRINGS By Ronald Oden Mayor, City of Palm Springs ATTEST: Patricia A. Sanders City Clerk APPROVED BY THE CITY COUNCIL (OrA 2.(� .ot�- APPROVED AS TO FORM: By City xuwley Developer: AIRFIELD RESORTS, INC. By: Its: i E 2ES/ 7- By: Its: [end of signatures] 1003/036/23605 v4 I IIIIII II I I III I I IIII III I IIIII III IIIII I II 03/05/2004 08 0 0R 2004-0154783 For;� STATE OF � ) ss COUNTY OF Orq n�iG On Fe-bruu,rti 13 2004, before me, �,Avyirntf' &LHfs personally appeared R rex D. le61 le personally known tome (or proved tome on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Summer Curtis Commission#DD273231 Expires-Dec 07,2007 ti?1' Bonaed T¢n Notary Public Atlantic Bonding Co.,Inc. [SEAL] 1003/036/23605 v4 I IIIIII HIM IIIII 1111111111111111111111111111111111111 0., 05�/290u40&2900R CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of f(�I IVPXStc§Q.On M131,li \` 9L(nl{ before me, e a1 r\2 k, Doh P f �[Aaf� PUb�IC Data Name.11 Tile of Officer(e g,'Jane Doe,Nolan,Public) personally appeared t?4ri c.CA A. end e.rs Ni of Sl,rarb) 'I personally known to me 8 preyed to me on the ha f—sa+'sr. t ;, .ne CABBIE ROVNEy to be the persons) whose names) is/are Commkebn k 1348457 subscribed to the within instrument and 4jMYC0M-B4*esMar26,2006 Notory Pibllo-California acknowledged to me that-pe/sheftkey executed RlwnkleCounty — the same in this/herAl� r authorized capacity(ies), and that by **her/tf3eir signatures) on the instrument the person(a), or the entity upon behalf of which the personH acted, executed the instrument. WITNESS my hand and official seal. la CoM�e��oyr�4 Pb OPTIONAL Though the information below is not required bylaw,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s)Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top of mw„b here ❑ Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑General ❑ Attorney-in-Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ©1999 National Notary Association•9350 Do Solo Ave„P.O.Box 2402•Cliobv+otlh,CA 913132402•wow nalmnalnolary.org Poor No 5907 Founder Call Toll Free 1,600 8766827 III I II I II III I II I I I I II III I IN 03 000 2004 0 29 20 of :1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT l State of California ss. County of On beforeme, Carrie, Rwneu , Notary Data �j �,.t, Name and Title of Officer( g,"Jano Doe,Notary ublid'( personally appeared 1'1 n0. CA en , Name(s)ol5igner(s) personally known to me OVEleFeO to be the person(* whose names) is/ace CARRIE ROVNEYIf subscribed to the within instrument and ConMltYrbn# 1348457 If acknowledged to me that he/sheHFiey executed NollPublic-California ;- xlrCofnm f Mr« the same in hisfWen4iier authorized RIwI lifis onlyMar26�2006 yoea), and that by hisr,;;,at'�signature(s) on the instrument the person(s), or the entity upon behalf of which the person(a) acted, executed the instrument. WITNESS --my hand and official seal. lJ�vua��OV OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top of thumb here ❑ Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑General ❑ Attorney-in-Fact ❑ Trustee ❑ Guardian or Conservator ' ❑ Other: Signer Is Representing: 01999 National Notary Association-935o De Soto Ave,PO Box 2402.Chatsworth,OA9U13-2402•wwwnatmnalnotaryor9 Poor No 5907 Remtler call Toll-Free 1-800876-6827 11111111 111111 fl III III 11111 III 63 2 04 2 99R 21 of 29 EXH]BIT "A" LEGAL DESCRIPTION OF THE SITE That certain real property located in the City of Pahn Springs, County of Riverside, State of California, described as follows: PARCEL I: THAT PORTION OF LOT 13 IN SECTION 23, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY MAP OF PALM VALLEY COLONY LANDS ON FILE IN BOOK 14 PAGE 652 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA,DESCRIBED AS FOLLOWS: COMMENCING AT THE WEST QUARTER CORNER OF SECTION 23; THENCE NORTH 00 DEGREES 20' 36" EAST ALONG THE WEST LINE OF SAID SECTION 23, A DISTANCE OF 142.58 FEET TO A POINT ON THE WESTERLY LINE OF THE EXISTING 80.00 FOOT STATE HIGHWAY RIGHT OF WAY, KNOWN AS PALM CANYON DRIVE, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 00 DEGREES 20' 36" EAST ALONG THE WEST LINE OF SAID SECTION 23, 518.57 FEET TO THE SOUTHEAST CORNER OF LOT 48 IN SECTION 22, TOWNSHIP 4 SOUTH, RANGE 4 EAST; THENCE EAST 246.34 FEET TO A POINT OF NON-TANGENT CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 915.37 FEET ON THE WESTERLY RIGHT OF WAY OF PALM CANYON DRIVE,A RADIAL TO WHICH BEARS NORTH 75 DEGREES 40' 53" WEST; HENCE SOUTHWESTERLY ALONG THE WESTERLY RIGHT OF WAY OF SAID PALM CANYON DRIVE THROUGH A CENTRAL ANGEL OF 17 DEGREES 25' 23", 278.35 FEET TO A POINT OF TANGENT; THENCE SOUTH 31 DEGREES 44' 30" WEST, 131.04 FEET TO A POINT OF TANGENT CURVE CONCAVE TO THE SOUTHEAST AND HAVING A RADIUS OF 756.78 FEET; THENCE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 12 DEGREES 45' 25", 168.50 FEET,TO THE POINT OF BEGINNING. PARCEL 2: SOUTH HALF OF NORTHEAST QUARTER OF SOUTHEAST QUARTER OF NORTHEAST QUARTER OF SECTION 22, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN; EXCEPTING THEREFROM THAT PORTION DEEDED TO RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BY GRANT DEED RECORDED AUGUST 27, 1992 AS INSTRUMENT NO. 322111 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA,DESCRIBED AS FOLLOWS: 1003/036/23605 v4 2804-0154783 1111111111111111111111111111111111111111111111111111111 IIIIII II III IIIII IIIII IIIIII III IIIIII III IIIIIII II IIII 03A5,'220a£: 0fi 1 PARCEL 6060-314 AS SHOWN ON RECORD OF SURVEY ON FILE IN BOOK 77 PAGES 1 THROUGH 5, INCLUSIVE, OF RECORDS OF SURVEY, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. PARCEL 3; THE NORTH HALF OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 22, TOWNSHIP 4 SOUTH, RANGE 4 EAST,AS SHOWN BY THE SUPPLEMENTAL PLAT OF SAID SECTION,ACCEPTED JUNE 17 ,1958 . Q m nr mm �mN Amy, err y o m m NN 0� m o N m m m 1003/036/23605 v4 2 EXHIBIT `B" FINANCIAL IMPACT MITIGATION FEE ARTICLE I GENERAL Developer agrees that 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 VIM 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 Belardo Bridge and street and drainage improvements; (ii) to pay for public landscaping, lighting and maintenance costs arising from area development; (iii) to pay for golf playing privileges at reduced rates at the City's public golf courses; (iv) 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; (v) to pay for the provision and maintenance of public access to Indian canyons and desert lands through or adjacent to the Site (e.g., walking and bike trails); and (vi) to pay for certain other service enhancements and other obligations undertaken by Developer. ARTICLE H FINANCIAL IMPACT MITIGATION FEE/TRANSIENT OCCUPANCY TAX 2.1 Timeshare Association: Definitions. The Project, as described in the DDA, provides for the construction and sale of approximately 255 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. It is understood that at any one time there can be 382 keys accessing (and 382 families occupying) the 255 units. 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 1003/036/23605 v4 I{ 1 IIIIII IIIIII IIIII IIIII IIIII III(IIIIII III(IIIIII II III 03 @24-9154783 00 2 or 029 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 Association" or "Association") which shall be responsible for, among other things, the maintenance of the Project and common areas and collection of the Financial Impact Mitigation Fee described in Section 2.2. Timeshare Owners shall be members of the Timeshare Association by reason of the purchase of a Timeshare Interest. 2.2 Financial Impact 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 Interest. From and after the date of sale of a Timeshare Interest in a Timeshare Unit (the "Sale Date"), the Timeshare Owner shall pay, and the Timeshare Association shall collect, a FIM Fee in the amount of $28.50 per Timeshare Interval. The FIM Fee shall be in addition to any transient occupancy tax otherwise payable pursuant to the Palm Springs Municipal Code for any period the Timeshare Unit is rented to the public as a hotel room, including any period of rental during the time the Timeshare Owner would otherwise have a right to occupancy pursuant to the Timeshare Interest. The FIM Fee shall be due and payable from a Timeshare Owner for each year in which Timeshare Interest occupancy rights occur. The FIM Fee payable by each Timeshare Owner shall be collected from the Timeshare Owner by the Timeshare Association annually, in advance. In the year of the Sale Date the FIM Fee shall be paid on the Sale Date as 1 003/0 3 6/2 3 6 05 v4 -2- 111111111111111111111111111111111111111111111111111 @3 @ z Soso 2SeeR 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 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 1003/036/23605 v4 -3- 1111111111111 III 111111111111111111111111111111111103?05�z a4P Pq GOA 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 fixture 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 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 unlaiown 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 funds are spent. The FIM Fees shall be paid to the City to compensate City for the following: (a) The City is developing certain infrastructure within the vicinity of the Project which will benefit the Project and which are not otherwise provided by the Project. These improvements include street, drainage and associated improvements as well as construction of an extension to Belardo Road and a $3 million bridge spanning the Tahquitz Creek drainage. The Project is on the alluvial fan emanating from Tahquitz Canyon and will need drainage and flood enhancements. 1003/036/23605 v4 -4- 1111 1 II II 1111111111111 111111 III 11111 II II @3 000 27 2013 of' 29 @R 4 (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) The City owns and operates two municipal golf courses, known as the Resort and Legends courses. City residents are given special discounted rates for play, subject to limitations on when such rates are in effect. As consideration for the agreement herein, all Timeshare Owners shall be eligible to receive the Resident rates at the Resort and Legends courses (determined at time of use), provided, however, that any Timeshare Owner who is in default of its FIM Fee payment shall not be so eligible until such FIM Fee is paid. Timeshare Owners and their guests (up to a total of four players) shall be eligible for Resident Rates only during their use of their Timeshare Interval. The City reserves the right to require proof of eligibility for Resident rates. (d) The Project contains walkways which provide access through the Project to adjacent public open space desert lands and to the Indian canyons. The City shall maintain trail connections and trail areas for the benefit of owners and invitees to the Project, subject to rules and regulations concerning trail use and closure when established by the City or resource conservation agencies of appropriate jurisdiction. (e) 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. (f) Other service enhancements provided to the Project, or other obligations for maintenance and operation of the Project as provided in this Agreement, the DDA or other understanding of the parties. 2.4 Transient 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 fall 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 1003/036/23605 v4 -5- III HIMIII II II II 11111 II m3 eo0 2 28 o00154783 o f 29 a 23 Y 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 Unit 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, inform potential purchasers of a Timeshare Interest of the Timeshare Owner's obligation to pay the FIM Fee to the City annually pursuant to Section 2.2. Each potential purchaser shall also be given notice of the amount of the FIM Fee. 1003/036/23605 v4 -6- 2004-0154783 ea IIIIIIIIIIIIIIIIIIIIIIIIII�IIIII�I�IIIIIII�IIII��IIIIII resr29 or asefl