HomeMy WebLinkAbout1/21/2004 - STAFF REPORTS (10) DATE: January21, 2004
TO: City Council
FROM: Director of Community and Economic Development and Director of Planning and
Zoning
CASE 5.0830 PD-260 TTM 29691 - APPROVAL OF A DEVELOPMENT AGREEMENT WITH
FAIRFIELD RESORTS TO FACILITATE THE COLLECTION BY THE CITY OF PALM
SPRINGS OF A FINANCIAL IMPACT MITIGATION FEE FOR THE STAR CANYON RESORT
LOCATED ON THE WEST SIDE OF SOUTH PALM CANYON DRIVE BETWEEN SUNNY
DUNES ROAD AND MESQUITE AVENUE, ZONE W-C-1 AND W-R-3, SECTION 22 AND 23.
RECOMMENDATION:
The Planning Commission recommends that the City Council approve a Development
Agreement ("DA") with Fairfield Resorts to facilitate the collection of a Financial Impact
Mitigation Fee ("FIM Fee") from the Star Canyon Resort project to offset a portion of transient
occupancy tax lost due to the conversion of the project to a time share development.
SUMMARY
The Planning Commission reviewed the project at their December 10, 2003 meeting and voted
5-0 (1 abstain, 1 absent)to approve the development agreement.
BACKGROUND:
This Development Agreement codifies a deal point previously agreed to by SCHLPS, LLC, the
developers of the Star Canyon Resort on South Palm Canyon Drive, and the Community
Redevelopment Agency. The original Disposition and Development Agreement ("DDA") was
approved on September 19, 2001 for a resort, which received final land-use approvals from City
Council in May 2000, and featured a 210-room hotel and 264 time share units (over 13,000
intervals). Based on the analysis of the developer's pro forma, the project had a significant
financing gap that could not be feasibly closed with private sector financing. The Agency
agreed to provide financial assistance to the project in order to assist the development.
On July 17, 2002 the City Council approved an applicant-requested land use change for the
subject site from hotel and timeshare to all timeshare resulting in a total of 255 timeshare units
(over 19,000 intervals) to be developed on the site. This request was due to the developer's
inability to secure financing for a conventional hotel project at the site.
On November 6, 2002 the DDA between the Agency and SCHLPS, LLC was amended to reflect
the changes in the project and several of the deal points.
The decline in hotel occupancy and in average daily room rates over the past two years has
made the financing of the hotel portion of the project increasingly difficult. This difficulty existed
before September 11, 2001, but was exacerbated by the global effects on tourism due to the
terrorist acts. Prior to the DDA amendment, the Developer had proposed a revision to the
phasing of the plan that would have allowed the development of the common area and
timeshare buildings but held off on the hotel building until hotel financing was available. The
Agency was concerned that a delay of more than a year or two in the hotel financing would
t1A
leave a permanent hole in the project and rob it of its most significant architectural element —
the five-story hotel on South Palm Canyon Drive.
In the end, the Developer was able to secure a commitment from a timeshare company,
Fairfield Resorts, for project financing, but only if the entire project was converted to timeshares.
That change necessitated the revision to the Planned Development District approval, as well as
a change to the DDA.
The Agency negotiated the following as part of the DDA Amendment: the Developer agreed to
place an additional fee on the time share intervals, equal to $28.50 per full interval per year,
payable through the HOA payment. The additional fee is called the Financial Impact Mitigation
Fee, or "FIM Fee'. That fee would be paid to the City to reimburse the City for the public
improvements and other investments in the area that benefit the project; there are a number of
possible ways to structure the fee to comply with state law. The total amount of tax benefit to
the City, including the FIM Fee, sales tax, and TOT from rentals (rather than time share owners)
is expected to be nearly$900,000 per year once the project is built out.
Since the DDA was between the Developer (SCHLPS, LLC, since assigned to Fairfield) and the
Agency, the City's legal staff felt the most appropriate way for the FIM Fee to be imposed and
collected would be through a Development Agreement between the Developer and the City.
The Development Agreement is intended to be a focused Development Agreement establishing
the FIM Fee without significantly altering the project's existing entitlements.
The project, as proposed by the Developer, will provide an economic jump-start to the South
Palm Canyon Drive area, which has lagged behind the downtown and North Palm Canyon Drive
areas in revitalization. While the DDA commits all of the property tax increment from the project
to the loan repayment, it will spur additional development in the area that would have not
otherwise occurred, and will also develop a flow of FIM Fee revenue, development fees and
sales taxes to the City with little "cannibalization" of existing Palm Springs tax revenue.
The applicant has submitted revised architectural and site plans. These plans have not been
approved since the exterior of the building has been altered. To date, the exterior changes
have not been of similar architectural character to the original elevations. The applicant is
working on revising the exterior plans.
ENVIRONMENTAL ASSESSMENT
A Mitigated Negative Declaration of environmental impact was previously approved by City
Council on May 17, 2000, in conjunction with the approval of the Star Canyon Resort, and
adequately addresses all known environmental impacts.
NOTIFICATION
All property owners within four hundred (400) feet of the subject property as well as interested
persons have been notified. As of the writing of this report, staff has not received any comment.
irector of Comr 6ni y
d Economic DeWopment
Director ofP lanning and Zoning
City Manager
ATTACHMENTS
1. Vicinity Map
2. Environmental Assessment(incorporated by reference)
3. Development Agreement
4. Ordinance
1/ ,43
AFFIDAVIT
OF
MAILING NOTICES
I, the undersigned City Clerk of the City of Palm Springs, California,
do hereby certify that a copy of the Notice of Public Hearing before
the City Council of the City of Palm Springs, in conjunction with
Fairfield Resorts, Inc., Star Canyon Resorts, for a Development
Agreement, for Case 5.0830, a 255 unit timeshare project at S. Palm
Canyon between Mesquite and Tahquitz Creek Channel, was mailed
to each and every person set forth on the attached list on the 6th day
of January, 2004. A copy of said Notice is attached hereto. Said II
mailing was completed by placing a copy of said Notice in a sealed
envelope, with postage prepaid, and depositing same in the U.S.
Mail at Palm Springs, California.
I declare under penalty of perjury that the foregoing is true and
correct.
Dated at Palm Springs, California, this 6th day of January, 2004.
PATRICIA A. SANDERS
City Clerk
P, o
NOTICE OF CITY COUNCIL MEETING
NOTICE OF PUBLIC HEARING
CITY OF PALM SPRINGS
Case No. 5.0830 - PD 260 TTM 29691
Star Canyon Development Agreement
South Palm Canyon Drive between Mesquite Avenue and Tahquitz Creek Channel
NOTICE IS HEREBY GIVEN that the City Council of the City of Palm Springs, California will hold
a public hearing at its meeting of January 21, 2004. The City Council meeting begins at 7:00 p.m.
in the Council Chambers at City Hall, 3200 E. Tahquitz Canyon Way, Palm Springs.
The purpose of the hearing is to consider a Development Agreement between Fairfield Resorts,
Inc. and the City of Palm Springs for Case 5.0830, a 255-unit timeshare project, in order to
memorialize the Financial Impact Mitigation Fee(FIM Fee)obligation and the property expectations
of the City and the Developer.
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 FIM Fee
shall be paid to the City to compensate for the following: certain public infrastructure costs
benefitting the Project including for construction of the Belardo Bridge and street and drainage
improvements; public landscaping,lighting and maintenance costs arising from area development;
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; to pay for the provision and maintenance
of public access to Indian canyons and desert lands through or adjacent to the Site; and to pay for
certain other service enhancements and other obligations undertaken by Developer.
A Mitigated Negative Declaration of environmental impactwas previously approved by City Council
on May 17, 2000, in conjunction with the approval of the Star Canyon Resort. Members of the
public may view this document in the Department of Planning and Zoning, City Hall, 3200 E.
Tahquitz Canyon Way, Palm Springs, and submit written comments to the City Clerk at or prior to
the City Council hearing.
If any group challenges the action in court, issues raised may be limited to only those issues raised
at the public hearing described in this notice or in written correspondence, at or prior to the City
Council hearing.
An opportunity will be given at said hearing for all interested persons to be heard. Questions
regarding this case may be directed to Douglas R. Evans, Director of Planning and Zoning, (760)
323-8245
PATRICIA A. SANDERS
City Clerk
t1l
VICINITY MAP N
W F
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PROJECT ,LOCATION t�
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As
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LOCATION PLAN
CITY OF PALM SPRINGS
CASE NO.: 5.0830 DESCRIPTION:
Request for a development agreement for a time share resort
APPLICANT: Fairfield Resorts, Inc. located aton South Palm Canyon Drive between Mesquite Avenue
and Tahquitz Creek Channel,Zone C-1 and R-3,Sections 22 and
23.
105
Recording Requested by And
When Recorded Return to:
City of Palm Springs
3200 Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: City Clerk
[Exempt From Recording Fee Per Gov. Code §6103]
DEVELOPMENT AGREEMENT
This Dev opment Agreement (hereinafter "Agreement") is entered into this day of
20UT by and between the CITY OF PALM SPRINGS (hereinafter "City"), and
FAIRFIELD 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 Cormm miry Redevelopment Agency of the City of Palm
Springs are parties to that certain Disposition slid 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 carryon 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
1003/036/23605 0 // A P
FIM Fee obligation and the property expectations of City and Developer as more particularly
described herein.
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. 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 terms 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, Inc., a Delaware corporation, and
its permitted successors and assigns to all or any part of the Site.
1.1.5 "Development" means the improvement of the Site for the purposes of
completing the structures, improvements and facilities comprising the Project including,
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
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,
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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,
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 "
1.1.11 'Land Use Regulations" means all ordinances, laws, resolutions, codes,
rules, regulations, policies, requirements, guidelines or other actions of City, including
but not limited to the City's General Plan, applicable Specific Plan, and Municipal Code
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
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 pen-nits 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.
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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.
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.
1.1.17 "Scope of Development" means the Scope of Development attached to
the DDA as Exhibit "G" and incorporated herein by reference.
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
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, unless earlier tenninated as
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 teens 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.
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I
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
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 teen "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
any entity constituting Developer, its successor or the constituent partners of Developer
or any successor of Developer is a joint venture, such transfer shall refer to the transfer of
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.
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. In considering
whether it will grant approval to any Transfer by Developer, which Transfer requires City
approval, City shall consider factors such as (i) whether the completion of the Project is
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. hi 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
1003/036/23605 v4 5 It 14 /V
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
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 FIM 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 Tenn 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 terns of this Agreement
and the terns of the DDA (including the Scope of Development attached thereto) regarding the
development of the Site, the terns of the DDA shall control.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided
under the terns of this Agreement, the rules, regulations and official policies governing
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
specifications applicable to Development of the Site, shall be as set forth in the Existing Land
Use Regulations which were in frill force and effect as of the Effective Date of this Agreement,
subject to the terns of this Agreement, as amended by the Development Approvals.
3.3 Timing of Development; Scope of Development. Developer shall cormnence
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
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
applications shall be processed in the normal mamier for processing such matters in accordance
with the Existing Land Use Regulations. The Parties acknowledge that wider 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.
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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.
(c) Changes adopted by the International Conference of Building
Officials, or other similar body, as part of the then most current versions of the
Unifonn Building Code, Uniform Fire Code, Uniform Plumbing Code, Uniform
Mechanical Code, or National Electrical Code, and also adopted by City as
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.
(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 //A/
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
completion, Developer shall perform such work in the same manner and subject to the same
construction standards as would be applicable to the City or such other public agency should it
have undertaken such construction work. 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 Ma.
3.9 Fees, Taxes and Assessments. During the teen of this Agreement, Developer
shall be obligated to pay all fees, taxes or assessments that apply to the Project and/or the Site,
and any increases in same, except as may be expressly provided herein.
3.10 Financial Impact Mitigation Fee. During the Tenn of this Agreement, the
Project shall be subject to the payment of the Financial hnpact Mitigation Fee as described in
Exhibit `B" attached hereto and in the Declaration attached to the DDA as Exhibit "F." The
terms goveming 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 party a justification of its position on such
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matters. If on the basis of the parties' review of any terns of the Agreement, either party
concludes that the other party has not complied in good faith with the terns 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. I£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. hi 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
remedies provided in Section 5. Neither party hereto shall be deemed in breach if the reason for
non-compliance is due to a "force majeure" as defined in, and subject to the provisions of,
Section 8.10.
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, Plan ling 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.
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 //44/
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
tennination, (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.
6. THIRD PARTY LITIGATION.
Developer shall defend, indemnify and hold harmless the City, Agency and all of their
agents, 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 Indenmitee 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 hidemnitee. Notwithstanding the foregoing,
Indemnitee 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 hnpact
Mitigation Fee, or to indemnify Agency or City for any loss or reduction of the Financial hnpact
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
marmer, 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 A 10 //fi
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) If 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
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
during the period that is the longer of(i) the remaining cure period allowed such
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 terns 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 perfomlance; except that (i) to the
extent that any covenant to be performed by Developer is a condition precedent to
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
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 I 1 11 n A40
content satisfactory to City, during the entire tern 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
insurance written on a per occurrence basis in an amount not less than either (i) bodily
injury liability limits of TWO HUNDRED FIFTY THOUSAND DOLLARS
($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)
days prior written notice by registered mail to City. hi 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 ' /14/?
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
or any accident, injury, loss, or damage whatsoever caused to any person or to the property of
any person which shall occur on the Site and which shall be directly or indirectly caused by the
acts done thereon or any errors or omissions of the Developer or its agents, servants, employees,
or 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 tern, 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 A 13 �F /
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 party's right to insist and
demand strict compliance by the other party with the terms of this Agreement thereafter.
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
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)
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 Court of the County of
Riverside, State of California, or such other appropriate court in said county. Service of process
1003/036/23605 v4 14 Ili# / F
on City shall be made in accordance with California law. Service of process on Developer shall
be made in any marmer 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 tern 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 tern 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
independent contracting entity with respect to the terms, covenants and conditions contained in
this Agreement. No partnership,joint venture or other association of any kind is formed by this
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
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 fiill 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 terns 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 //j+Z0
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 in
general terns 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.
9.20 Notices. All notices under this Agreement shall be effective when delivered by
(i) personal delivery, or (ii) reputable same-day or overnight courier or messenger service, (iii)
overnight United States Postal Service Express Mail, postage prepaid, or (iv) by United States
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:
#AZI
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
9.21 Nonliability of City Officials. No officer, official, member, employee, agent, or
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 harniless from and against any and all liability,
loss, cost, or expense (including court costs and reasonable attorney's fees) in any manner
comiceted with a claim asserted by any individual or entity for any cormission 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]
//# Zz
1003/036/23605 v4 17
01/09/2004 FRI 15:28 FAX 2002/002
JHIY-UU-LUU4 M1 W by M V11'Y OF FALN SFFINirS FAX NO, (603229360 P. 02/02
IN WnNrSS WRFMOF, 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:
By
City Clerk
APPROVED ASXO FORM:
By
E)*Ad-J bra, CityAttomey
�-
Developer. FAIRFIELD RESORTS,INC.
By:
Its:
By:
Its;
[end of signatures]
1003/07a23605 A >ow 3
01/08/2004 FRI 16:06 [TX/RX NO 9219] a 002
EXHIBIT "A"
LEGAL DESCRIPTION OF THE SITE
That certain real property located in the City of Palm Springs, County of Riverside, State of
California, described as follows:
[To Be Inserted]
)/Azy
1003/036/23605 v4
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 "FIM Fee") to complete the
Project and to pay certain costs including:
(i) to pay for certain public infrastructure costs benefiting the Project
including for construction of 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 II
FINANCIAL IMPACT MITIGATION FEE/TRANSIENT OCCUPANCY TAX
2.1 Timeshare Association: Definitions. The Project, as described in the
DDA, provides for the constriction 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
for seven (7) consecutive days shall be referred to as a "Timeshare Interval." The tens
"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 Exchanee 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
1003/036/23605 0 -2- //fiat
/^
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 all 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 amoral
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 teens 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 0 -3- YA47
repay the Note shall be modified in accordance with the provisions set forth in the
DDA and the Note.
(e) Developer, on behalf of itself and its successors, waives
any rights it may have now or in the future to challenge the legal validity of or
contest the FIM Fee, including, without limitation, any claim that the FIM Fee
constitutes an abuse of the police power, violates substantive due process, denies
equal protection of the laws, effects a taking of property without payment of just
compensation, or imposes an unlawful tax.
IN FURTHERANCE OF THE INTENTIONS OF THE PARTIES TO THIS
AGREEMENT, WITH RESPECT TO THE FIM FEE ONLY, DEVELOPER,
WITH AND UNDER ADVICE OF COUNSEL, HEREBY EXPRESSLY
WAIVES ANY 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 fall force and effect,
according to the express terms of the instant waiver, to unknown and unsuspected
claims, demands, and causes of action pertaining to the FIM Fee only, if any,
arising out of or relating to the waiver of rights contained herein.
2.3 Purposes of Financial Impact Mitigation Fee; Basis of Expenditure. The
FIM Fee is paid to the City to compensate City for certain costs unposed 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.
1 003/03 6/23 605 v4 -4- HAAB
(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. Developer hereby acknowledges that all units
located on the Site, which have not been sold as Timeshare Units or which have been sold as
Timeshare Units but are rented to the public, shall be subject to the payment of transient
occupancy tax as set forth in the Palm Springs Municipal Code. Notwithstanding the foregoing,
the parties intend that in no event shall both the full FIM Fee and a transient occupancy tax or
timeshare occupancy tax be assessed with respect to occupancy of a Timeshare Unit for a
particular period of time during the 5 1/2 year period immediately following the Effective Date
1003/036/23605 v4 -5- ///V
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 fornal 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 hiterest,
inform potential purchasers of a Timeshare hiterest 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.
11136
1003/036/23605 v4 -6-
AFFIDAVIT OF MAILING
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
I,the undersigned,say: I am and was at all times herein mentioned,a citizen of the United States and
employed in the County of Riverside, over the age of eighteen years, and not a party to the within
action or proceeding; that my business address is 3200 E. Tahquitz Canyon Drive, Palm Springs,
California; that on the 12th day of November, I served the within NOTICE OF PUBLIC HEARING for
PLANNING COMMISSION CASE NO. 5.0830 to consider a Development Agreement between
Fairfield resorts, Inc., and the City of Palm Springs for a 255-unit timeshare project in order to
memorialize the Financial Impact Mitigation Fee(FIM fee)obligation and the property expectations of
the City and the Developer.
This Notice was served on persons contained in Exhibit "A" attached hereto in said action or
proceeding by depositing a true copy thereof, enclosed in a sealed envelope with postage thereon
fully prepaid, in a mailbox, sub-post office, substation or mail chute, or other like facility, regularly
maintained by the Government of the United States in the City of Palm Springs,California, addressed
to the list of persons or firms indicated on the report received September 3, 2003, and certified by the
City's Planning Technician, and attached hereto as Exhibit"A'.
I hereby declare under penalty of perjury that the foregoing is true and correct.
` Lofetta D. Moffett
Dated at Palm Springs, California, this 14'day of November, 2003.
NOTICE OF PLANNING COMMISSION MEETING
NOTICE OF PUBLIC HEARING
CITY OF PALM SPRINGS
Case No. 5.0830- PD 260 TTM 29691
Star Canyon Development Agreement
South Palm Canyon Drive between Mesquite Avenue and Tahquitz Creek Channel
NOTICE IS HEREBY GIVEN that the Planning Commission of the City of Palm Springs, California will hold
a public hearing at its meeting of December 10, 2003. The Planning Commission meeting begins at 1:30
p.m. (public hearings start at 2:00 p.m.) In the Council Chambers at City Hall, 3200 E. Tahquitz Canyon
Way, Palm Springs.
The purpose of the hearing is to consider a Development Agreement between Fairfield Resorts, Inc. and the
City of Palm Springs for Case 5.0830, a 255-unit timeshare project, in order to memorialize the Financial
Impact Mitigation Fee (FIM Fee) obligation and the property expectations of the City and the Developer.
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 FIM Fee shall be paid to the City
to compensate for the following: certain public infrastructure costs benefitting the Project including for
construction of the Beiardo Bridge and street and drainage improvements; public landscaping, lighting and
maintenance costs arising from area development; 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;
to pay for the provision and maintenance of public access to Indian canyons and desert lands through or
adjacent to the Site; and to pay for certain other service enhancements and other obligations undertaken by
Developer.
A Mitigated Negative Declaration of environmental impact was previously approved by City Council on May
17,2000, in conjunction with the approval of the Star Canyon Resort. Members of the public may view this
document in the Department of Planning and Zoning, City Hall, 3200 E. Tahquitz Canyon Way, Palm
Springs, and submit written comments at, or prior to, the Planning Commission hearing.
If any group challenges the action in court, issues raised may be limited to only those issues raised at the
public hearing described in this notice or in written correspondence, at or prior to the City Council hearing.
An opportunity will be given at said hearing for all interested persons to be heard. Questions regarding this
case may be directed to Douglas R. Evans, Director of Planning and Zoning, (760) 323-8245.
PLANNING COMMISSION
DOUGLAS R. EVANS
Director of Planning and Zoning
VICINITY MAP N
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PROJECT .LOCATION
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LOCATION PLAN
CITY OF PALM SPRINGS
CASE NO.: 5.0830 DESCRIPTION:
Request for a development agreement for a time share resort
APPLICANT: Fairfield Resorts, Inc. located aton South PalmCanyon Drive between MesquiteAvenue
and Tahquitz Creek Channel,Zone C-1 and R-3,Sections 22 and
23.
Publi0earing Notices Notification Inwation
for Planning Commission Hearing on December 10, 2003
Case No. 5.0830 PD 260 & TTM 29691
Applicant Name: Mr. William Kesterson, Dir. of Planning
Fairfield Resorts, Inc.
8427 South Park Circle, Suite 300
Orlando, FL 32819
Project Location & South Palm Canyon Drive and Mesquite Avenue_
Description: Request for a development agreement for a time share resort
on South Palm Canyon Drive between Mesquite Avenue and
Tahquitz Creek Channel, Zone C1, Sections 22 & 23.
Assigned Planner: Douglas R. Evans & Jing Yeo
Labels Prepared by: Yoav Shernock, Planning Technician
Certification to
City Clerk Date: November 19, 2003
Property Owners / Groups / Date Notices Number of Notices
Organizations Mailed Mailed
Applicant/Sponsors November 12, 2003 1
Property Owners:
Land Owner (master lessor) November 12, 2003 14
Master Lessor (sub-lessor)
Sub-lessee (unit owner)
Indian Land Owners N/A
Neighborhood Coalition November 12, 2003 9
Homeowners Association N/A
ONIPP N/A
Agua Caliente Band of November 12, 2003 1
Cahuilla Indians Rep
City Rep for Verification November 12, 2003 1
TOTAL NUMBER MAILED: 26
v� M sa
City of Palm Springs
�`` ••^'� Department of Planning &Zoning
�LIFORN
MEMORANDUM
Date: November 14, 2003
From: Yoav Shernock
Planning Technician
Subject: Mailing Labels for Notice of Public Hearing, December 10, 2003
Planning Commission Case No. 5.0830 PD 260 TTM 29691
Fairfield Resorts, Inc. Development Agreement
This is to certify that the attached labels were created on September 3, 2003 using the most current
information available. To the best of my knowledge, the labels are complete and accurate.
Yoav Shernock, Planning Technician
November 14, 2003
:Idm
W,09E5 aa9el .J_ f) � il�r,3 S18091 ssaaPPV OAMAV
508 161 002 508171005 508171007
Riverside County Flood Cont John Polo &Kat e Poles Riverside ounjayFlood Cont
1995 Market St 777 S Pal nyon Dr 1995, Ma St
Riverside,CA 92501 Palm Sp'mgs, A 92264 Rive de, C 92501
508 171 008 508 171 009 508 172 007
John Poles&Katlic Poles Riverside. oun Flood Cont Russell Wade&Jane Wade
777 S Pahn Canyon Dr 1995 Mark t Eldorado Country Club
Palm Springs, CA 92264 Riverside, CA 2501 Indian Wells,CA 92210
508 172 008 508 291 003 508 291 004
Riverside CoiVVrood Cont Robert Wilson James Crippam
1995 Market I I I I E Alejo Rd 145 E Mesquite Ave
Riverside, A 92 I Pahn Springs,CA 92262 Palm Springs, CA 92264
508 291 028 508 291 029 508 291 034
Jerold Harris&Larry Tabberer Erminia Verlengia Steven Reid
8830 Rangely Ave 1080 S Palm Canyon Dr 1000 S Palm Canyon Dr
Los Angeles,CA 90048 Patin Springs, CA 92264 Palm Sprigs,CA 92264
513 250 014 513 300 005 513 300 006
Chevrolet Macmagruder Parkview Mobile Estates Inc Fey Family Investments Limited Partner
999 S Palm Canyon Dr 211 W Mesquite Ave 2000 S Madrona Dr
Palm Springs,CA 92264 Palm Springs, CA 92264 Palm Springs, CA 92264
513 300 00% 513 300 030 513 300 031
Fey Family In s nts Limited Partner George Marantz&Dianne Marantz George Marantz&Dianne Marantz
2000 S Mad
�r 6 Palomino Rd 211 W Mesquite Ave
Palm Spr' s,CA 2264 Palm Springs,CA 92264 Pahn Springs, CA 92264
Smooth Feed Sheets TM Use template for51600
508 172 005 5" 112 0
Ptshp Olympic-barrington Ptshp Olyropr arrington
9229 W Sunset Blvd#625 9229 W set vd#625
West Hollywood,CA 90069 We ollywood, 90069
Neighborhood Coalition List
as of October 1,2003 MR PETER DIXON MR BILL DAVIS AND
Case 5.0830 431 SOUTH MONTE VISTA DRIVE MS TRISHA DAVIS
Star Canyon Development Agreement PALM SPRINGS CA 92262 227 SOUTH CAHUILLA
P.C. Meeting 12.10.03 PALM SPRINGS CA 92262
MR FRANK TYSEN MR BOB WEITHORN MR TIM HOHMEIER
C/O CASA CODY COUNTRY INN 261 SOUTH BELARDO ROAD 1387 CALLE DE MARIA
175 SOUTH CAHUILLA ROAD PALM SPRINGS CA 92262 PALM SPRINGS CA 92264
PALM SPRINGS CA 92264
MS CHRISTINE HAMMOND MR PHIL TEDESCO MR MARSHALL ROATH
1155 SOUTH CAMINO REAL 1303 WEST PRIMAVERA DRIVE MS SHERYL HAMLIN
PALM SPRINGS CA 92264 PALM SPRINGS CA 92264 565 WEST SANTA ROSA DRIVE
PALM SPRINGS CA 92262
MS ROXANNE FLOSS MR WILLIAM I KESTERSON
930 CHIA SPONSORS FFD DEVELOPMENT
PALM SPRINGS, CA 92262 8427 SO PARK CIRCLE#300
ORLANDO FL 32819
MS MARGARET PARK
AGUA CALIENTE INDIANS REP AGUA CALIENTE BAND OF
CAHUILLA INDIANS
650 E TAHQUITZ CANYON WAY
PALM SPRINGS CA 92262
SENIOR SECRETARY
DEPT OF PLANNING&ZONING
�J�J�J� CITY OF PALM SPRINGS
CITY OF P.S. REP
PO BOX 2743
PALM SPRINGS CA 92263-2743
v.�
PROOF OF PUBLICATION Thus is space for County Clerks Filing Stainp
(2015.5.C.C.P)
No.6806
NOTICE OF CITY COUNCIL MEETING
NOTICE OE PtIC,_I6J 1 7EATN'G
CEry Or PAULI SPRIfdGI�
Case No. 5.0830 - PE,260 'P o u! 2E399
Star Canyon Development AgreemenE
STATE f CALIFORNIAerside __ __ _ South Palm Canyon Drive between Mesquite Ave-
County Of Riverside nue and Telerate Creek Channel.
Of tileCity of Palm Sponge,California will hl Council
Tpublic hearing at its meeting of January 21pp 2004.
the Council Chambers meeting
City lns Ha11,t 3200 E. Tarn
quits Canyon Way, Palm Springs.
_The purpose of_the hearing is_to_ronsider_a De-
I am a citizen of the United States and a resident of velopment Agreement between Fairfield Resorts,
Inc. and the City of Palm Springs for Case
the County aforesaid;I am over the age of eighteen 5.0830, a 255-unit timeshare project, In order to
memorialize the Financial Impact Mitigation Fee
years,and not a party to or interested in the (FIM Feel almoner and the po Miti eion Fees
above-entitled matter.I am the principal cleric of a dons of the City and the Developer.
u MFlP
printer of the,DESCRY SUN PUBLISHING vicalffy
COMPANY a newspaper of general circulation,
printed and published in the city of Palm Springs, PIDI)Osed
County of Riverside,and which newspaper has been Ga 1.es -
adjudged a newspaper of general circulation by the
Superior Court of the County of Riverside,State of
California under the date of March 24,1988.Case
Number 191236;that the notice,of which the e
annexed is a printed copy(set in type not smaller 2
a
than non pariel,has been published in each regular , v„
and entire issue of said newspaper and not in any „
supplement thereof on the following dates,to wit:
"j Al
The FIM Fee is paid to the City to compensate
City for certain costs imposed on the City by the
Project,-and for_improvoments-and services Of the
January 9n` Citl-shal bet will benefit the Project. The FIM Fee
Paid to the
to
ar the
---_-------------------------
following:certain Publctinfrastructuren coats bene-
fitting the Project including for construction of the
Balance Bridge and street and drainage improve-
ments; public landscaping, lighting and mill
'---'-""`-"""'—"""—""-'---""'—-----------— nance costs ansing from area development; to
All in the year 2004 compensate the city for the lass of transient oc-
capons tax revenue to city from the conversion
I certify(or declare)under penalty of perjury that the of the inject from a hotel to a timeshare devel-
foregoing Is true and correct. opment,to pay for the provision and maintenance
of public access to Indian canyons and desert
131" lands through or adjacent to the Site; and to pay
for certain other service enhancements and other
Dated at Palm Springs,California this--------day obligations undertaken by Developer
A Mitigated Negative Declaration Of environmental
A.
of----------January-------- impact was previously approved b City Council
,2004 on May 17,2000,in conjunction with the approval
of the Star Canyon Resort.Members of the public
may view this document in the Department of
Planning and Zoning, City Hall, 3200E Twitq ten
�� Canyon Way, Palm Springs, and submit written
____________—_________________________________________________ comments to the city Clerk at or prior to the City
Signature Council hearing.
If any group challenges the action in court, issues
raised may be limited to only those Issues raised
at the public hearing described in this notice or in
written correspondence, at or phial to the City
Council hearing.
An opportunity will be given at sold hearing for all
interested presorts to be heard Questions regard-
ing this case may be directed to Douglas R. Ev-
ans, Director of Planning and Zoning, (760)
323-8245.
PATRICIA A SANDERS
p n City Clerk
ORDINANCE NO.
OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT
WITH FAIRFIELD RESORTS INC. TO FACILITATE THE
COLLECTION BY THE CITY OF PALM SPRINGS OF A
FINANCIAL IMPACT MITIGATION FEE FOR THE STAR CANYON
RESORT ON THE WEST SIDE OF SOUTH PALM CANYON
DRIVE BETWEEN SUNNY DUNES ROAD AND MESQUITE
AVENUE, ZONE PD-260, SECTIONS 22 AND 23.
WHEREAS, on April 26, 2000, the Planning Commission voted to recommend that the City
Council approve Case No 5.0830-PD-260 for a Planned Development District (PD-260) and
Tentative Tract Map (TTM 29691); and
WHEREAS, on May 17, 2000, the City Council voted to approve Case No 5.0830-PD-260 for a
Planned Development District (PD-260) and Tentative Tract Map (TTM 29691); and
WHEREAS, on April 24, 2002, a public meeting on the request for a time extension from May 17,
2002 to May 17, 2003 for PD-260 and TTM 29691 was held by the Planning Commission in
accordance with applicable law; and
WHEREAS, on April 24, 2002, the Planning Commission voted to recommend approval to the
City Council of the one year time extension subject to the original conditions of approval; and
WHEREAS, on April 24, 2002, the City Council voted to approve a one year time extension from
May 17, 2002 to May 17, 2003 subject to the original conditions of approval; and
WHEREAS, on July 10, 2002 a public hearing on the amendment to Case No. 5.0830-PD-260
and TTM 29691, to change the land use from hotel and timeshare to all timeshare with 198 hotel
rooms becoming 79 time share units and other miscellaneous amendments including the
elimination of the ballroom and large kitchen, relocation of the recreation facilities, meeting rooms
and spa to former ballroom location, the addition of nine timeshare units in the former spa
location, and the conversion of 198 hotel rooms into 70 timeshare units for property located at
South Palm Canyon Drive between Sunny Dunes Road to the north, Mesquite Avenue to the
south, Random Road to the east, and South Belardo Road to the west, W-C-1 and W-R-3 Zones,
Sections 22 and 23, was held by the Planning Commission in accordance with applicable law;
and
WHEREAS, the Planning Commission carefully reviewed and considered all of the evidence
presented in connection with the project including, but not limited to, the staff report and all
written and oral testimony presented and, on July 10, 2002, voted to recommend that the City
Council approve said amendment; and
WHEREAS, on July 17, 2002 a public hearing on the amendment to Case No. 5.0830-PD-260
and TTM 29691, to change the land use from hotel and timeshare to all timeshare with 198 hotel
rooms becoming 79 time share units and other miscellaneous amendments including the
elimination of the ballroom and large kitchen, relocation of the recreation facilities, meeting rooms
and spa to former ballroom location, the addition of nine timeshare units in the former spa
location, and the conversion of 198 hotel rooms into 70 timeshare units for property located at
South Palm Canyon Drive between Sunny Dunes Road to the north, Mesquite Avenue to the
/• d0oxv
south, Random Road to the east, and South Belardo Road to the west, W-C-1 and W-R-3 Zones,
Sections 22 and 23, was held by the City Council in accordance with applicable law; and
WHEREAS, the City Council carefully reviewed and considered all of the evidence presented in
connection with the project including, but not limited to, the staff report and all written and oral
testimony presented and, on July 17, 2002, voted to approve said amendment; and
WHEREAS, the Community Redevelopment Agency and City Council approved an amendment
to the Disposition and Development Agreement (DDA) between the Agency and SCHLPS, LLC
to reflect changes in the project and several of the deal points; and
WHEREAS, Fairfield Resorts Inc. (the "applicant"), owns a legal or equitable interest in the
property which is the subject of the Development Agreement and, therefore, is a qualified
applicant for the Development Agreement; and
WHEREAS, the Palm Springs Zoning Ordinance Section 94.08.00 provides procedures and
requirements for the consideration of development agreements; and
WHEREAS, the Development Agreement is enforceable by either the City of Palm Springs or
Fairfield Resorts Inc. as provided in Government Code Section 65865.4; and
WHEREAS, all applicable rules, regulations, and policies shall be enforceable that were in effect
on the date this Development Agreement is executed by and between the City of Palm Springs
and Fairfield Resorts, Inc.; and
WHEREAS, the Development Agreement conforms with the General Plan and the proposed Star
Canyon Resort conforms with all policies, goals, and objectives of the City of Palm Springs
General Plan and the development standards within the City of Palm Springs Zoning Ordinance;
and
WHEREAS, the City of Palm Spring may terminate or modify the Development Agreement if it
finds, and determines on the basis of substantial evidence, that the applicant or its successor in
interest has not complied in good faith with the Development Agreement's terms and conditions,
in accordance with Palm Springs Zoning Ordinance Section 94,08.00 and Government Code
Section 65865.1; and
WHEREAS, notice of a public hearing of the Planning Commission of the City of Palm Springs to
consider the Development Agreement was given in accordance with applicable law; and
WHEREAS, on December 10, 2003 a public hearing to consider the Development Agreement
was held by the Planning Commission in accordance with applicable law; and
WHEREAS, notice of a public hearing of the City Council of the City of Palm Springs to consider
the Development Agreement was given in accordance with applicable law; and
WHEREAS, on January 21, 2004 a public hearing to consider the Development Agreement was
held by the City Council in accordance with applicable law; and
WHEREAS, a Mitigated Negative Declaration of environmental impact was previously approved
by City Council on May 17, 2000, in conjunction with the approval of the Star Canyon Resort; and
I Ko Z.
WHEREAS, the City Council has carefully reviewed and considered all of the evidence presented
in connection with the hearing on the project, including but not limited to the staff report, all
written and oral testimony presented.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Palm Springs does
hereby find as follows:
Section 1: Pursuant to CEQA, a Mitigated Negative Declaration of environmental impact was
previously approved by City Council on May 17, 2000, in conjunction with the
approval of the Star Canyon Resort. No further environmental review is
necessary for the Development Agreement, which relates only to financial terms
and creates no possibility that it will have a significant effect on the environment.
Section 2: The City Council hereby finds that the Star Canyon Resort complies with the
provisions of Zoning Ordinance Section 94.08.00 as follows:
a. The Development Agreement is consistent with the objectives, policies, general land
uses, and programs specified in the general plan and any applicable specific plan.
The Development Agreement is consistent with the City of Palm Springs General Plan in
that the Development Agreement directly reflects the land uses approved through the
amendment to Planned Development District 260 (PD-260), approved on July 17, 2002
by the City Council, and these land uses are consistent with the General Plan land use
designations of Resort Commercial (RC) and High Density Residential (H 43/21). There
is no applicable specific plan affecting the proposed development.
b. The Development Agreement is compatible with the uses authorized in, and the
regulations prescribed for, the land use district in which the real property is located.
The "timeshare" land use is consistent with other land uses in the vicinity and were
approved in the amendment to PD-260, approved by City Council on July 17, 2002. The
Development Agreement addresses the approved PD-260, which consists of 255
timeshare units and related site improvements. The Development Agreement
memorializes a financial impact mitigation fee meant to off-set the loss of transient
occupancy tax due to conversion of the project to a timeshare development.
C. The Development Agreement is in conformity with public convenience, general welfare
and good land use practice.
d. The Development Agreement is not detrimental to the public health, safety, and welfare.
e. The Development Agreement will not adversely affect the orderly development of
property or the preservation of property values.
BE IT FURTHER RESOLVED, that the City Council of the City of Palm Springs does hereby
ordain as follows:
Section 1: That the Palm Springs Zoning Code is hereby amended by adding Section
94.08.08 to read as follows:
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94.08.08 Star Canyon Development Agreement
A. Star Canyon Development Agreement
1. Purpose. The purpose of this section is to establish a development agreement to
guide the orderly development and improvement of that portion of the City which is located on the
west side of South Palm Canyon Drive between the Tahquitz Creek Channel and Mesquite
Avenue in Sections 22 and 23 of Township 4, Range 4, Palm Springs as legally described on
Exhibit"A" of the development agreement, attached to the ordinance codified in this section and
incorporated herein by reference. Portions of said property are designated as part of the RC and
H43121 land use designations in the general plan, as applicable. Hereafter, the property shall
also be designated "Development Agreement No. 4" or "DA4" which shall be an overlay
designation incorporating the restrictions of the "Star Canyon Development Agreement". The
preparation and adoption of a development agreement is authorized by California Government
Code Sections 65864 through 65869.5. The Star Canyon Development Agreement facilitates the
collection of a Financial Impact Mitigation Fee, as described in Exhibit "B" of the development
agreement, from the project in order to offset a portion of transient occupancy tax lost due to the
conversion of the project to a time share development. The Star Canyon Development
Agreement provides for ultimate development of a 255-unit timeshare project consistent with the
general plan objectives, policies, and programs of the city which project is to be located on that
certain property described in the development agreement.
2. Adoption of Star Canyon Development Agreement. There is adopted the Star Canyon
Development Agreement, the text of which is set forth in the document entitled "Development
Agreement - the City of Palm Springs and Fairfield Resorts Inc." included with the ordinance
which codified this section, which agreement is incorporated in this section by reference. The
provisions of this section shall apply to all property described on Exhibit "A" attached to the
development agreement and incorporated herein by reference.
3. Property Development and Other Standards. All property which is subject to the Star
Canyon Development Agreement shall be maintained in accordance with all policies,
requirements, regulations, and provisions set forth in the Star Canyon Development Agreement.
The developer's performance of its obligations under the Star Canyon Development Agreement
shall be subject to annual review as provided therein.
Section 2: That the Official Zoning Map of the City of Palm Springs is hereby amended by
reclassifying from PD-260 to being subject to the Star Canyon Development
Agreement all of that real property described in Exhibit"A".
Section 3: EFFECTIVE DATE. This ordinance shall be in full force and effect thirty(30) days
after passage.
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Section 4: PUBLICATION. The City Clerk is hereby ordered and directed to certify to the
passage of this Ordinance, and to cause the same or a summary thereof or a
display advertisement, duly prepared according to law, to be published in
accordance with law.
ADOPTED THIS_day of , 2003.
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
City Clerk City Manager
Reviewed and Approved as to Form:
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