HomeMy Public PortalAboutOrd 11667
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ORDINANCE NO. 1166
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO MIRAGE,
CALIFORNIA, APPROVING THE STATUTORY DEVELOPMENT AGREEMENT BY
AND BETWEEN THE CITY OF RANCHO MIRAGE AND -EC RANCHO MIRAGE
HOLDINGS, LCC
WHEREAS, City is a charter city and a municipal corporation of the State of
California; and;
WHEREAS, EC Rancho Mirage Holdings ("Developer") owns a fee interest in
approximately 618-acres of unimproved real property located almost entirely within
Section 31, Township 4 South, Range 6 East, and a portion of the southeast quarter of
Section 36, Township 4 South, Range 5 East, San Bernardino Baseline and Meridian
(SBBM), at the eastern boundary of the City of Rancho Mirage, bounded by Gerald Ford
Drive to the north, Monterey Avenue to the east, Frank Sinatra Drive to the south, and
Bob Hope Drive to the west, with the collectively identified by Assessor's Parcel Numbers
(APN) 674-430-016 and 685-220-006 ("Subject Property"); and
WHEREAS, Developer proposes a Specific Plan for the Subject Property which
together with a Development Agreement establishes the plans, land use regulations,
development standards, design guidelines, infrastructure requirements, and
implementation programs to guide the development of a mixed-use, master-planned
community within the Subject Property which will be zoned Lagoon (LAG), Mixed-Use
Core (M-U CORE), and Residential (RES), and encompass a master-planned community
that will include resort hotels with up to 400 hotel keys, a mixed-use town center of
approximately 175,000 square feet of combined restaurant and entertainment
destinations and shops, residential neighborhoods of up to 1,932 residential dwelling units
which will include 230 branded resort units, a private internal street system, and
recreational open space amenities, including a multi-use Grand Oasis Crystal Lagoon®,
an integrated system of pedestrian, bicycle, and golf cart trail linkages, neighborhood
parks, water features, a Beach Club for residents, and complementary features such as
a multi-level parking structure for use by the visiting public. ("Project"); and
WHEREAS, to strengthen the public planning process, encourage private
participation in comprehensive planning and reduce the economic risk of development,
the California State Legislature adopted Sections 65864 et seq. of the California
Government Code, "Development Agreement Statute" which authorizes cities to enter
into property development agreements with any person(s) or entity(ies) having a legal or
equitable interest in real property for the development of such real property in order to
establish certain development rights in the real property; and
WHEREAS, pursuant to Chapter 17 .56, "Development Agreements" of the Rancho
Mirage Municipal Code, a development agreement is intended to provide assurances to
Developer that an approved project may proceed subject to the policies, rules,
regulations, and conditions of approval applicable to the project at the time of approval,
regardless of any changes to City policies, rules, and regulations after project approval in
exchange for assurances that City cannot otherwise unilaterally impose as conditions of
approval of the project outside the context of a negotiated development agreement; and
WHEREAS, the Agreement will eliminate uncertainty in planning for and secure
orderly development of the Subject Property, assure progressive installation of necessary
improvements, and ensure attainment of the maximum effective utilization of resources
within City at the least economic cost to its citizens; and
WHEREAS, based on the foregoing recitals, City has determined that this
Agreement is appropriate under the Development Agreement Statute and Chapter 17.56
of the Rancho Mirage Municipal Code; and
WHEREAS, the Agreement is voluntarily entered into in consideration of the
benefits to and the rights created in favor of each of the parties hereto and in reliance
upon the various representations and warranties contained herein.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO MIRAGE,
CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. RECITALS
That the above Recitals are true and correct and are incorporated as though fully
set forth herein.
SECTION 2. APPROVALOFDEVELOPMENTAGREEMENT
That the City Council hereby approves the Section 31 Specific Plan Development
Agreement By and Between the City of Rancho Mirage and EC Rancho Mirage Holdings,
LLC ("Development Agreement"), a copy of which is attached hereto as Attachment "A"
and incorporated herein by this reference, subject to the terms and conditions stated
therein.
SECTION 3. CITY ATTORNEY REVIEW
That the City Attorney prepared and framed this Ordinance pursuant to Section
1.04.010 of the Municipal Code and finds that the City Council has the authority to adopt
this Ordinance, that the Ordinance is constitutionally valid and that the Ordinance is
consistent with the general power and purposes of the City as set forth in Section 1.04.031
of the Municipal Code.
SECTION 4. SEVERABILITY
That the City Council declares that, should any provision, section, paragraph ,
sentence or word of this Ordinance be rendered or declared invalid by any final court
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action in a court of competent jurisdiction or by reason of any preemptive legislation, the
remaining provisions, sections, paragraphs, sentences or words of this Ordinance as
hereby adopted shall remain in full force and effect.
SECTION 5. AMENDING OF BAIL SCHEDULE
That the City Attorney's Office is hereby directed to determine whether this
Ordinance necessitates amendment of the City's Bail Schedule and to cause such
necessary amendments to be made and filed with the local branches of the Superior
Court of the County of Riverside .
SECTION 6. EFFECTIVE DATE OF ORDINANCE
That this Ordinance shall take effect thirty (30) days after its second reading by the
City Council.
SECTION 7. EFFECTIVE DATE OF DEVELOPMENT AGREEMENT
That in accordance with Section 17.56.050 of the City's Municipal Code, the
Development Agreement shall not be executed by the City until on or after the effective
date of the Ordinance.
SECTION 8. REPEAL OF CONFLICTING PROVISIONS
That all the provisions of the Rancho Mirage Municipal Code as heretofore adopted
by the City of Rancho Mirage that are in conflict with the provisions of this ordinance are
hereby repealed.
SECTION 9. RECORDATION OF DEVELOPMENT AGREEMENT
That in accordance with Section 17.56.050 of the City's Municipal Code, the City
Clerk is hereby directed to record the fully executed Development Agreement with the
Riverside County Recorder no later than ten (10) days after its execution.
SECTION 10. CERTIFICATION
That the City Clerk shall certify to the passage of this Ordinance and shall cause
the same to be published according to law.
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THE FOREGOING ORDINANCE WAS ADOPTED at a regular meeting of the City
Council held on December 19, 2019, by the following vote:
AYES: Hobart, Kite, Townsend, Weill.
NOES: None.
ABSENT: None.
ABSTAIN: None.
RECUSED: Smotrich.
ATTEST:
Kristie Ramos, CMC
City Clerk
APPROVED AS TO FORM:
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ANCHO MIRAGE
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ATTACHMENT "A"
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF RANCHO MIRAGE
AND
EC RANCHO MIRAGE HOLDINGS, LCC
[SEE ATTACHED]
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RECORDING REQUESTED BY:
City of Rancho Mirage
WHEN RECORDED MAIL TO:
City of Rancho Mirage
69-825 Highway 11 I
Rancho Mirage, California 92270
Attention: City Clerk
WITH A COPY TO:
EC Rancho Mirage Holdings Limited
Partnership
I 9 I 0-1 I 77 West Hastings St.
Vancouver, B.C. V6E-2K3
APNs: 674-430-016 & 685-220-006
(SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE)
(Exempt from Recording Fees Pursuant to Government Code Section 27383 -Benefits City)
ST A TUTORY DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF RANCHO MIRAGE
AND
EC RANCHO MIRAGE HOLDINGS LIMITED PARTNERSHIP
This Statutory Development Agreement ("Agreement") is entered into this ___ day of
_____ , 2019, by and between CITY OF RANCHO MIRAGE, a municipal corporation
located in the County of Riverside, State of California ("City"), and EC RANCHO MIRAGE
HOLDINGS LIMITED PARTNERSHIP, a Delaware limited partnership authorized to do
business in California ("Developer"), pursuant to the authority of Sections 65864 et seq. of the
California Government Code and Chapter I 7.56, "Development Agreements" of Title I 7,
"Zoning" of the Rancho Mirage Municipal Code.
REC/TA LS:
WHEREAS, City is a charter city and a municipal corporation of the State of California;
and
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WHEREAS, Developer owns a fee interest in approximately 618-acres ofunimproved real
property located almost entirely within Section 31, Township 4 South, Range 6 East, and a portion
of the southeast quarter of Section 36, Township 4 South, Range 5 East, San Bernardino Baseline
and Meridian (SBBM), at the eastern boundary of the City of Rancho Mirage, bounded by Gerald
Ford Drive to the north, Monterey Avenue to the east, Frank Sinatra Drive to the south, and Bob
Hope Drive to the west, with the collectively identified by Assessor's Parcel Numbers (APN) 674-
430-0 I 6 and 685-220-006 ("Subject Property" or "Project Site") as more particularly described in
Exhibit A; and
WHEREAS, EC Rancho Mirage Holdings Limited Partnership, a Delaware limited
partnership, and the Annenberg Foundation Trust at Sunnylands ("Trust") entered into the First
Amended and Restated Covenant Agreement ("Covenant"), dated the 18th day of December 2017,
and recorded as DOC # 2018-0115512, which establishes certain development restrictions on the
Subject Property to minimize development-related impacts on the adjacent properties owned by
the Trust on the west side of Bob Hope Drive; and
WHEREAS, Developer proposes a Specific Plan ("Specific Plan") for the Subject
Property which together with this Development Agreement establishes the plans, land use
regulations, development standards, design guidelines, infrastructure requirements, and
implementation programs to guide the development of a mixed-use, master-planned community
within the Subject Property which will be zoned Lagoon (LAG), Mixed-Use Core (M-U CORE),
and Residential (RES), and encompass a master-planned community that will include resort hotels
with up to 400 hotel keys, a mixed-use town center of up to 175,000 square feet of combined
restaurant and entertainment destinations and shops ("Town Center"), up to 1,932 residential
dwelling units (which may include branded resort units), a private internal street system, and
recreational open space amenities, including a multi-use Grand Oasis Crystal Lagoon®, an
integrated system of pedestrian, bicycle, and golf cart trail linkages, neighborhood parks, water
features, a Beach Club for residents, and complementary features such as a multi-level parking
structure for use by the visiting public ("Project"); and
WHEREAS, the Fiscal Impact Analysis prepared for the Project by Zimmerman Group,
Land Development Solutions, dated January 2019, on behalf of Developer projects a net annual
positive fiscal impact for the City of$8,390,796 at buildout, and a net annual positive fiscal impact
of $3,140,260 for the City excluding any transient occupancy tax (TOT) revenues; and
WHEREAS, the Project is anticipated to provide the following public benefits: I) the
Crystal Lagoon and related amenities have the potential to expand the tourist season for the hotels
and resorts in the area by providing a unique public beach and water sport recreational amenity,
benefiting existing resorts and hotels, as well as the City with increased TOT revenue; 2) the
recreational trail around the Crystal Lagoon will provide a year-round recreational amenity that is
open to the public and will benefit Rancho Mirage residents generally; 3) the Town Center is
anticipated to provide first-class dining and boutique shopping amenities for the benefit of Rancho
Mirage residents generally; 4) the Project will generate sales tax revenue for the City; 5) the Project
will support Rancho Mirage Energy Authority's (RMEA) efforts to increase the use of renewable
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energy in the City of Rancho Mirage, including solar power generation and possible future battery
storage technological advances that could optimize the contribution of renewable energy to the
grid; 6) the Project will include Developer undergrounding the existing electrical transmission
lines located on the Project Site along a portion of Frank Sinatra Drive and Bob Hope Drive; 7)
the Project will include a dual piping system throughout the Project site to maximize the use of
recycled water for irrigation purposes and substantially reduce the Project's use of groundwater;
and 8) the Project will provide a variety of new housing opportunities, ranging from large estate
homes to higher density homes near the Crystal Lagoon and Town Center; and
WHEREAS, to strengthen the public planning process, encourage private participation in
comprehensive planning and reduce the economic risk of development, the California State
Legislature adopted Sections 65864 et seq. of the California Government Code, "Development
Agreement Statute" which authorizes cities to enter into property development agreements with
any person(s) or entity(ies) having a legal or equitable interest in real property for the development
of such real property in order to establish certain development rights in the real property; and
WHEREAS, pursuant to Chapter 17.56, "Development Agreements" of the Rancho
Mirage Municipal Code, a development agreement is intended to provide assurances to Developer
that an approved project may proceed subject to the policies, rules, regulations, and conditions of
approval applicable to the project at the time of approval, regardless of any changes to City
policies, rules, and regulations after project approval in exchange for assurances that City cannot
otherwise unilaterally impose as conditions of approval of the project outside the context of a
negotiated development agreement; and
WHEREAS, this Agreement will eliminate uncertainty in planning for and secure orderly
development of the Subject Property, assure progressive installation of necessary improvements,
and ensure attainment of the maximum effective utilization of resources within City at the least
economic cost to its citizens; and
WHEREAS, based on the foregoing recitals, City has determined that this Agreement is
appropriate under the Development Agreement Statute and Chapter 17.56 of the Rancho Mirage
Municipal Code; and
WHEREAS, this Agreement is voluntarily entered into in consideration of the benefits to
and the rights created in favor of each of the parties hereto and in reliance upon the various
representations and warranties contained herein; and
WHEREAS, on ______ , 2019, at a duly noticed public hearing, the City Council
on behalf of the City, as Lead Agency under the California Environmental Quality Act ("CEQA")
and the CEQA Guidelines, certified an Environmental Impact Report for the Project.
NOW, THEREFORE, pursuant to the authority contained in the Development Agreement
Statute and Chapter 17.56, "Development Agreements" of Title 17, "Zoning" of the Rancho
Mirage Municipal Code and in consideration of the mutual covenants and promises of the parties
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contained herein, the parties agree as follows:
AGREE ME NT:
Section 1. Incorporation of Recitals and Exhibits
The foregoing Recitals and attached Exhibits are true and correct and are incorporated into
this Agreement by this reference as though fully set forth herein.
Section 2. Effective Date
This Agreement shall become effective on the effective date ("Effective Date") of the
ordinance enacting this Agreement ("Enacting Ordinance").
Section 3. Project
The "Project" includes a Specific Plan for Section 31 which together with this
Development Agreement establishes the plans, land use regulations, development standards,
design guidelines, infrastructure requirements, and implementation programs to guide the
development of a mixed-use, master-planned community on approximately 618-acres of vacant
unimproved land located in the City of Rancho Mirage which will be zoned Lagoon (LAG),
Mixed-Use Core (M-U CORE), and Residential (RES), and encom pass a master-planned
community that will include resort hotels with up to 400 hotel keys, a mixed-use Town Center of
up to 175,000 square feet of combined restaurant and entertainment destinations and shops, up to
1,932 residential dwelling units (which may include branded resort units), a private internal street
system, and recreational open space amenities, including a multi-use Grand Oasis Crystal
Lagoon®, an integrated system of pedestrian, bicycle, and golf cart trail linkages, neighborhood
parks, water features, a Beach Club for residents, and complementary features such as one or more
multi-level parking structure(s) for use by the visiting public and resort guests.
Section 4. Project Site
The "Project Site" consists of approximately 618-acres of vacant unimproved real property
located almost entirely within Section 31 , Township 4 South, Range 6 East, and a portion of the
southeast quarter of Section 36, Township 4 South, Range 5 East, San Bernardino Baseline and
Meridian (SBBM), at the eastern boundary of the City of Rancho Mirage, bounded by Gerald Ford
Drive to the north, Monterey A venue to the east, Frank Sinatra Drive to the south, and Bob Hope
Drive to the west, with the Project Site collectively identified by Assessor's Parcel Numbers (APN)
674-430-016 and 685-220-006, as more particularly described in Exhibit A.
Section 5.
The parties agree that the Term of this Agreement shall be 25 years commencing on the
Effective Date, subject to any extension and early termination provisions described in this
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Agreement.
Section 6. Cooperation by Developer
Developer shall, in a timely manner, provide City with all documents, applications, plans
and other information necessary for City to carry out its obligations under this Agreement and
cause its planners, engineers and other consultants to do the same. Developer also shall be
responsible to apply for such other permits and approvals from other governmental or quasi-
governmental agencies having jurisdiction over the Project or Project Site as may be required for
the development, operation or use of the Project or Project Site, as contemplated by this
Agreement.
Section 7. Relationship of Parties
It is specifically understood and agreed by and between the parties hereto that the Project
is a private development and that neither party is acting as the agent of the other in any respect
hereunder. City and Developer also hereby renounce the existence of any form of joint venture or
partnership between them, and agree that nothing contained herein or in any document executed
in connection herewith shall be construed as making City and Developer joint venturers or
partners.
Section 8. Covenant of Good Faith and Fair Dealing
No party shall do anything which shall have the effect of injuring the right of the other
party to receive the benefits of this Agreement or do anything which would render its performance
under this Agreement impossible. Each party shall perform all acts contemplated by this
Agreement to accomplish the objectives and purposes of this Agreement.
Section 9. Development Impact Fees
The Project shall be subject to the Development Impact Mitigation Fees set forth in Chapter
3.29, "Development Impact Mitigation Fees" of the Municipal Code in effect as of the Effective
Date of this Agreement ("Chapter 3.29"), subject to any applicable credits set forth in Exhibit B,
Impact Fees and Credits.
(a) Transportation Facilities Impact Fee. Prior to issuance of each building permit,
Developer shall pay 100% of this impact fee pursuant to Chapter 3.29, subject to a credit, as set
forth in Exhibit B, for any actual costs Developer incurred for acquiring, designing, constructing,
improving, providing and maintaining any public "arterial" streets, interchanges or intersection
improvements, traffic signals, sidewalks, bicycle and golf cart paths, landscape medians, entry
monumentation, and related improvements provided for in the City of Rancho Mirage General
Plan, the City's adopted Capital Improvement Program or the Section 31 Specific Plan duly
approved by the City, along the perimeter of the Project Site, in the Town Center, and Vista Del
Sol Drive (if applicable), excluding local streets and collector streets. The specific fee amount,
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creditable improvements to be constructed by Developer, and an estimate of the projected fee
credit amount are set forth in Exhibit B, attached hereto and incorporated herein by this reference.
(b) General Government Facilities Development Impact Fee. Prior to issuance of
each building permit, Developer shall pay I 00% of this impact fee pursuant to Chapter 3.29
without any discounts, rebates, credits or reductions, unless otherwise required under Chapter 3.29,
in the amount set forth in Exhibit B attached hereto and incorporated herein by this reference.
(c) Infrastructure Undergrounding Development Impact Fee. Prior to issuance of
each building permit, Developer shall pay 100% of this impact fee pursuant to Chapter 3.29,
subject to a credit, as set forth in Exhibit B, for any actual costs Developer incurred for acquiring,
designing, constructing, improving, providing and maintaining utility undergrounding facilities
and improvements (or related to the removal of overhead utility facilities and structure) fronting
the perimeter of the Project Site and which are provided for in the City of Rancho Mirage General
Plan, the City's adopted Capital Improvement Program or the Section 31 Specific Plan duly
approved by the City, plus the existing transmission lines located on the Project Site on the north
s ide of Frank Sinatra Drive, less any credits received by Developer against the License Tax on
New Construction for the cost incurred fo r the same undergrounding activities. The specific fee
amount, creditable improvements to be constructed by Developer, and an estimate of the projected
fee credit amount are set forth in Exhibit B, attached hereto and incorporated herein by this
reference.
(d) Parks and Recreation Facilities and Improvements Development Impact Fees.
Prior to issuance of each building permit, Developer shall pay l 00% of this impact fee pursuant to
Chapter 3.29, subject to a credit, as set forth in Exhibit B, for any actual costs Developer incurred
for acquiring, designing, constructing, improving, providing and maintaining any public parks or
recreation facilities or improvements provided for in the City of Rancho Mirage General Plan, the
City's adopted Capital Improvement Program or the Section 31 Specific Plan duly approved by
the City or any privately owned parks or recreation facilities or improvements open to the public
situated or located within the Project Site. The specific fee amount, creditable improvements to
be constructed by Developer, and an estimate of the projected fee credit amount are set forth in
Exhibit B, attached hereto and incorporated herein by this reference.
(e) Library Facilities Development Impact Fee. Prior to issuance of each building
permit, Developer shall pay I 00% of this impact fee pursuant to Chapter 3.29 without any
discounts, rebates, credits or reductions unless otherwise required under Chapter 3.29, in the
amount set forth in Exhibit B attached hereto and incorporated herein by this reference.
(f) Coachella Valley Multiple Species Habitat Conservation Plan/Natural
Community Conservation Plan Local Development Impact Fee. Prior to issuance of each
building permit, Developer shall pay 100% of this impact fee pursuant to Chapter 3.29 without
any discounts, rebates, credits or reductions.
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Section 10. License Tax on New Construction
Developer shall pay 100% of this license tax, pursuant to Chapter 3.28, "License Tax on
New Construction" of the Municipal Code, subject to a credit, as set forth in Exhibit B, for any
actual costs Developer incurred for acquiring, designing, constructing, improving, providing and
maintaining utility undergrounding facilities and improvements (or related to the removal of
overhead utility facil ities and structure) fronting the perimeter of the Project Site and which are
provided for in the City of Rancho Mirage General Pl an, the City's ado pted Capital Improvement
Program or the Section 31 Specific Plan duly approved by the City, plus any of the existing
transmission lines located within the Project Site on the north side of Frank Sinatra Drive, less any
credits received by Developer with respect to Infrastructure Undergrounding Development Impact
Fee. The tax amount, creditable improvements to be constructed by Developer, and an estimate of
the projected credit amount are set forth in Exhibit B, attached hereto and incorporated herein by
this reference.
Section 11. Quimby Requirements -Parks and Recreation Facilities
Developer shall be entitled to a I 00% credit against the requirement of land dedication or
payment of in lieu fees otherwise required under Section 16. I 8.060, "Parks an d Recreation
Facilities" provided that Developer acquires, designs, constructs, improves, provides and
maintains at no cost to City or its taxpayers, private open space for park and recreational purposes
within the Project Site, including but not limited to the multi-use Grand Oasis Crystal Lagoon®,
an integrated system of pedestrian, bicycle, and golfcart trail linkages, neighborhood parks, water
features, a Beach Club for residents, and complementary features, in substantial conformance with
the "Conceptual Open Space Plan," attached hereto as Exhibit C, with the perpetual cost of
maintenance being the responsibility of Developer and/or the Project's property owners pursuant
to a recorded agreement, covenant, condition, restriction or other similar instrument that runs with
the land and legall y binds all current and future property owners, and which cannot be defeated,
cancelled or eliminated without the prior written consent of City or its successor.
Section 12. Processing Fees
Notwithstanding anything else herein, Developer shall pay all applicable filing and
processing fees pursuant to Section 17.36.050, "Fees" of Title 17, "Zoning" of the Rancho Mirage
Municipal Code in the amounts set forth in the schedule of fees in effect at the time such fees are
due and payable during the land use entitlement review process.
Section 13. Supplemental Plan Check and Inspection Services
The City agrees to use reasonable good faith efforts to conduct all inspections and process
all permits, plans and other approvals necessary to implement the Project in an expeditious manner.
In order to expedite plan checks and inspections to help facilitate the orderly and timely completion
of the Project, Developer has the option to also pay and reimburse the City for the services of a
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qualified independent contractor retained by the City to provide supplemental plan checking and
inspection services for the Project, as deemed necessary by the City's Chief Building Official or
designee or requested by Developer and approved by the Chief Building Official or designee. Such
an independent contractor shall report directly to the City's Chief Building Official or designee
and shall not be subject to any oversight, supervision or direction of Developer or its
representatives. The full cost of retaining such an independent contractor and the services he or
she provides related to the Project shall be subject to payment and reimbursement by Developer,
subject to Developer's prior written approval of the estimated cost of such services. No building
permit fee credits will be provided in connection with the use of such supplemental services.
Section 14. Additional Cost Reimbursement
In addition to the payment of the requisite processing fees, Developer shall reimburse City
for the actual costs and expenses incurred . by City for all services provided by City and its
consultants, including legal counsel, for review, preparation and processing of this Agreement,
which are not factored in City's processing fees. Furthermore, to the extent that City, at the request
of and on behalf of Developer, attempts to enter into binding agreements with other entities in
order to assure the availability of certain permits and approvals or services necessary for
development of the Project or Project Site, as described in this Agreement, Developer shall
reimburse City for all costs and expenses incurred in connection with seeking and entering into
any such agreements, subject to Developer's consent to such costs and expenses, which consent
shall not be unreasonably withheld. Any fees, assessments or other amounts payable by City
pursuant to any such agreements described herein shall be borne by Developer except where
Developer has notified City in writing, prior to City entering into any such agreement, that it does
not desire for City to execute said agreement.
Section 15. Community Facilities District No. 1
Developer acknowledges the existence of Community Facilities District No. I ("CFO No.
l ") which was created pursuant to the Mello-Roos Community Facilities Act, as set forth in
Government Code Sections 53311 et seq. ("Mello-Roos CFD Act") for the purpose of funding
certain public safety services. If the Project and Project Site are currently subject to the
assessments of CFD No. 1, Developer voluntarily consents that it will not vote or otherwise support
the dissolution of said CFD No. I. In the event CFD No. I formally dissolves prior to the issuance
of a certificate of occupancy for the Project, Developer shall consent to paying an in-lieu
assessment in a manner and form, deemed acceptable by City, as though CFO No. I had never
dissolved with respect to the Project and Project Site. If, however, the Project or Project Site is
not currently subject to the assessments of CFO No. I, Developer voluntarily consents to take
whatever affirmative action it needs to take on its part to ensure that the Project and Project Site
are subject to the assessments of the CFD No. I, which includes without limitation, voting to
approve the annexation of the Project and Project Site to said CFD No. I.
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Section 16. Formation of Additional Community Facilities District
Development of the Project requires the investment of significant capital to fund the
Project's necessary infrastructure and public facilities required under this Agreement and the
Project Entitlements, and the fees and other financial obligations of Developer to Coachella Valley
Water District ("CVWD") to ensure the adequate provision of sewer and water service to the
Project (collectively, the "Public Facilities"). To facilitate the timely construction of the Public
Facilities, City agrees to cooperate fully and in good faith with Developer to form and implement
an additional Community Facilities District pursuant to the Mello-Roos CFO Act, or any such
other tax exempt and/or land-based financing mechanisms (the "Finance District") through which
special taxes may be levied and bonds may be sold to fund the Public Facilities identified by
Developer; provided, however, that nothing herein shall obligate City to make any expenditure for
the Public Facilities from the City's general fund or any funds not derived from the sale of bonds
or the collection of special taxes as described in this section. In addition, City supports the concept
of entering into a Joint Community Facilities Agreement with CVWD so the newly created CFO
may also finance CVWD fees and infrastructure, provided that nothing in the Joint Community
Facilities Agreement obligates City to make any expenditure to cover the costs for CVWD fees
and infrastructure from the City's general fund or any funds not derived from the sale of bonds or
the collection of special taxes as described in this section. Developer agrees to pay all costs for the
formation and implementation of this additional Finance District. A complete statement of the
facilities that shall be eligible for funding pursuant to the Finance District, as well as other agreed
upon parameters for the Finance District, are set forth in Exhibit D, Parameters for
Community Facilities Districts attached hereto and incorporated herein by this reference.
Section 17. Public Benefits of Utility U ndergrounding and Sustainability Measures
Related to Installation of Recycled Water Facilities
Developer agrees to underground the existing electrical transmission lines located on the
Project Site along the northern side of Frank Sinatra Drive and on the western side of Bob Hope
Drive, between Frank Sinatra Drive and Gerald Ford Drive, subject to coordination with, and
approval by, Southern California Edison (SCE) and the affected property owners (collectively, the
"Utility Undergrounding"). The Parties acknowledge that the Utility Undergrounding provides a
substantial public benefit for the general public by enhancing the existing views and aesthetics for
all residents living in the immediate vicinity, tourists visiting the area and motorists traveling on
Bob Hope Drive and Frank Sinatra Drive, in addition to the positive images of the City's general
aesthetics that are broadcast internationally during high profile visits by world leaders at
Sunnylands Center and Gardens and the international media coverage of the City's world-renown
annual LPGA ANA International Golf Tournament.
Developer also agrees to construct a dual piping system for the Project throughout the
Project Site to allow for the use of recycled water for irrigation purposes on both common area
lots and private lots located within the Project Site to substantially reduce the Project's use of
groundwater (the "Recycled Water Facilities"). The Recycled Water Facilities shall be
constructed and owned by the Developer during construction of the Project, and then shall be
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conveyed to the master property owners' assoc1at1on for long-term ownership and
maintenance. The Recycled Water Facilities include one or more storage ponds, conveyance lines
throughout the Project Site, and certain drainage facilities designed to capture and reuse water
within the duel piping system. The Recycled Water Facilities provide a substantial public benefit
to the general public and the environment by drastically reducing the Project's consumption of
groundwater and its demands on CVWD's potable water system.
In recognition of the substantial public benefits of the Utility Undergrounding and the
Recycled Water Facilities, and their positive effects on aesthetics, the environment and the local
economy, and in light of the significant construction costs for these improvements, the City agrees
to contribute a total not exceeding Eight Million Dollars ($8,000,000) toward the total cost of the
Utility Undergrounding and Recycled Water Facilities. The Eight Million Dollars ($8,000,000)
will be divided up as follows: Five Million Dollars ($5,000,000) for the Utility Undergrounding
and Three Million Dollars ($3,000,000) for the Recycled Water Facilities. However, if the Utility
Undergrounding only includes the undergrounding of the existing electrical transmission lines
located on the Project Site along the northern side of Frank Sinatra Drive and excludes the
undergrounding of the existing electrical transmission lines located on the western side of Bob
Hope Drive, between Frank Sinatra Drive and Gerald Ford Drive, the Five Million Dollars
($5,000,000) for the Utility Undergrounding will be reduced by Four Million Dollars ($4,000,000)
leaving only a One Million Dollar ($1,000,000) contribution for Utility Undergrounding to be
paid upon the completion, energization and removal of the utility poles. On the other hand, if the
Utility Undergrounding includes the undergrounding of the existing electrical transmission lines
located on the Project Site along the northern side of Frank Sinatra Drive, and the existing
electrical transmission lines located on the western side of Bob Hope Drive, between Frank Sinatra
Drive and Gerald Ford Drive, the Five Million Dollar ($5,000,000) contribution will be paid out
in two installments: ( 1) Three Million Dollars ($3,000,000) at the start of construction of the Utility
Undergrounding (approval of plans, issuance of permits, and commencement of construction
activities), and (2) Two Million Dollars ($2,000,000) upon the completion, energization and
removal of the electrical transmission lines utility poles.
The Three Million Dollars ($3,000,000) for the Recycled Water Facilities will be paid in
two installments: (I) One Million Five Hundred Thousand Dollars ($1 ,500,000) upon the issuance
of a grading permit, and (2) One Million Five Hundred Thousand Dollars ($1 ,500,000) upon
completion (final City inspection) of the Crystal Lagoon.
The Parties acknowledge and understand that the total construction costs and other related
costs for the Utility Undergrounding and Recycled Water Facilities are projected to be well in
excess of the City contribution specified herein.
Section 18. Public Parking Structures
One or more public parking structures are planned for the Town Center planning area to
support the public beach and commercial operations in the Town Center, and such parking
structure(s) are included in the list of eligible facilities to be financed under a Community Facilities
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Center, the City shall acquire ownership of the structure pursuant to the terms of an appropriate
funding and acquisition agreement (the "Parking Structure Agreement"), which shall also provide
that Developer, the Town Center property owners association, or the developer/operator of the
Town Center shall operate and maintain each parking structure at its expense, pursuant to the terms
and conditions of the Parking Structure Agreement, which shall be consistent with all applicable
financing provisions of all governing public financing laws. In recognition of the significant long
term financial benefits that the Town Center will provide to the City, and the general benefits that
will be provided to the general public, residents and visitors and in light of the substantial up-front
development costs to be incurred by the Developer, the City agrees to consider a loan for some of
the constructi on costs associated with the construction of the public parking structure(s), with the
costs being fully reimbursed to the City ("loan repayment") from the Community Facilities
District. The timing and amount of such advances by the City, as well as the security for such
advances, shall be specified in the Parking Structu re Agreement that must be approved and
executed by the Parties prior to commencement of construction as a condition precedent to the
City's commitment to providing the construction loan for the construction of the public parking
structures.
Section 19. Resort Hotel Brands
The Project's resort hotels within the Project Site shall consist of only resort hotel uses
with staffing levels, service and finishes equal or superior to the Marriott Shadow Ridge resort
located across Monterey Avenue from the Project Site and the Westin Mission Hills resort located
on Dinah Shore A venue.
Section 20. Bob Hope Drive Perimeter Wall
Consistent with Mitigation Measure No. 5.4-1 of the Final EIR, Developer shall complete
the construction and installation of the Project's perimeter wall along Bob Hope Drive, from
Gerald Ford Drive to approximately seven hundred feet (700') north of the planned future wall
location along Frank Sinatra Drive, at its sole cost and expense, before commencement of any
vertical construction activities on the Project Site. Upon approval of the Project's Master Tentative
Tract Map, in order to expedite the construction and installation of the perimeter wall along Bob
Hope Drive, Developer may submit improvement plans and commence grading for the perimeter
wall and commence construction thereof prior to Final Map recordation, provided that sufficient
payment and performance bonds are furnished to ensure that the perimeter wall along Bob Hope
Drive is constructed and all laborers and suppliers of materials and equipment are paid, to the
City's satisfaction. The bonds, which shall be provided at Developer's cost and in amounts as
reasonably determined by the City Engineer, shall be furnished by surety companies satisfactory
to the City, on the forms provided by the City.
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Section 21. Other Perimeter Walls
Developer may complete the construction and installation of the Project's other perimeter
walls along Gerald Ford Drive, Monterey A venue and Frank Sinatra Drive, at its sole cost and
expense, before commencement of any grading or construction related to the installation of the
Crystal Lagoon or the commencement of any vertical construction activities on the Project Site.
Upon approval of the Project's Master Tentative Tract Map, in order to expedite the construction
and installation of the other perimeter walls along Gerald Ford Drive, Monterey Avenue and Frank
Sinatra Drive, Developer may submit improvement plans and commence grading for said
perimeter walls and commence construction thereof prior to Final Map recordation, provided that
sufficient payment and performance bonds are furnished to ensure that the other perimeter walls
along Gerald Ford Drive, Monterey A venue and Frank Sinatra Drive are constructed and all
laborers and suppliers of materials and equipment are paid, to the City's satisfaction. The bonds,
which shall be provided at Developer's cost and in amounts as reasonably determined by the City
Engineer, shall be furnished by surety companies satisfactory to the City, on the forms provided by
the City.
Section 22. Signalization at Sunnylands and Project's Bob Hope Drive Access
Points
Developer shall complete construction and installation of the signalized improvements on
Bob Hope Drive at the Sunny lands entrance and the Project's secondary access point on Bob Hope
Drive, identified as Intersection 35 in the Final EIR, at is sole cost and expense, subject to any fee
credits specified in this Agreement. Upon approval of the Project's Master Tentative Tract Map, in
order to expedite the construction and installation of the signalized improvements, Developer may
submit improvement plans and commence grading for the signalized improvements and commence
construction thereof prior to Final Map recordation, provided that sufficient payment and
performance bonds are furnished to ensure that the signalized improvements are constructed and
all laborers and suppliers of materials and equipment are paid, to the City's satisfaction. The
bonds, which shall be provided at Developer's cost and in amounts as reasonably determined by
the City Engineer, shall be furnished by surety companies satisfactory to the City, on the forms
provided by the City.
Section 23. Bob Hope Drive Street and Landscaping Improvements
Upon approval of the Project's Master Tentative Tract Map, in order to expedite the
construction and installation of the Bob Hope Drive Street and Landscaping Improvements,
Developer may submit improvement plans and commence grading for the Bob Hope Drive Street
and Landscaping Improvements and commence construction thereof prior to Final Map
recordation, provided that sufficient payment and performance bonds are furnished to ensure that
the Bob Hope Drive Street and Landscaping Improvements are installed and all laborers and
suppliers of materials and equipment are paid, to the City's satisfaction. The bonds, which shall
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be provided at Developer's cost and in amounts as reasonably determined by the City Engineer,
shall be furnished by surety companies satisfactory to the City, on the forms provided by the City.
Section 24. Other Perimeter Landscaping Improvements
Developer may complete the installation of the Project's other perimeter landscaping
improvements along Gerald Ford Drive, Monterey A venue and Frank Sinatra Drive, at its sole cost
and expense, subject to any fee credits specified in this Agreement, before commencement of any
grading or construction related to the installation of the Crystal Lagoon or the commencement of
any vertical construction activities on the Project Site. Upon approval of the Project's Tentative
Tract Map, in order to expedite the installation of the other perimeter landscaping improvements
along Gerald Ford Drive, Monterey Avenue and Frank Sinatra Drive, Developer may submit
improvement plans and commence grading for said perimeter landscaping improvements and
commence installation thereof prior to Final Map recordation, provided that sufficient payment
and performance bonds are furnished to ensure that the perimeter landscaping improvements along
Gerald Ford Drive, Monterey Avenue and Frank Sinatra Drive are installed and all laborers and
suppliers of materials and equipment are paid, to the City's satisfaction. The bonds, which shall
be provided at Developer's cost and in amounts as reasonably determined by the City Engineer,
shall be furnished by surety companies satisfactory to the City, on the forms provided by the City.
Section 25. Crystal Lagoon Construction
The Crystal Lagoon, referred to as "Grand Oasis Lagoon" or "Grand Oasis Crystal
Lagoon" in the EIR and Section 31 Specific Plan, shall be constructed as part of the first phase of
development. Upon approval of the Project's Master Tentative Tract Map, in order to expedite the
construction and installation of the Crystal Lagoon, Developer may submit improvement plans,
detailed mass grading plans which include applicable mitigation measures as defined in the Final
EIR, and commence grading for the Crystal Lagoon and commence construction thereof prior to
Final Map recordation, provided that sufficient payment and performance bonds are furnished to
ensure that the Crystal Lagoon is constructed and all laborers and suppliers of materials and
equipment are paid, to the City's satisfaction. The bonds, which shall be provided at Developer's
cost and in amounts as reasonably determined by the City Engineer, shall be furnished by surety
companies satisfactory to the City, on the forms provided by the City.
Section 26. Extension of Tentative Maps
In accordance with Government Code Section 66452(a)(l ), all tentative subdivision maps
and tentative parcel maps, whether vesting or not, which may be approved by the City in
connection with the development of the Subject Property, shall be extended for the greater period
of (a) the term of this Agreement or (b) such maximum total time as is permitted in accordance
with the State Subdivision Map Act (Government Code Sections 66410 et seq.) or Applicable Law.
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Section 27. Entry Features
Upon approval of the Project's Master Tentative Tract Map, in order to expedite the
construction and installation of the Project's Entry Features, Developer may submit improvement
plans and commence grading for the Project's Entry Features and commence construction thereof
prior to Final Map recordation, provided that sufficient payment and performance bonds are
furnished to ensure that the Project's Entry Features are constructed and installed and all laborers
and suppliers of materials and equipment are paid, to the City's satisfaction. The bonds, which
shall be provided at Developer's cost and in amounts as reasonably determined by the City
Engineer, shall be furnished by surety companies satisfactory to the City, on the forms provided by
the City.
Section 28. Construction Ingress and Egress Locations
Consistent with Mitigation Measure No. 5.4-1 of the Final EIR, ingress and egress points
to and from the Project Site for construction purposes unrelated to any construction, development
or installation of the perimeter wall, signalization, median islands, landscaping and other
improvements along Bob Hope Drive shall not be permitted on Bob Hope Drive between Frank
Sinatra Drive and Gerald Ford Drive.
Section 29. Construction Traffic
Consistent with Mitigation Measure No. 5.4-1 of the Final EIR and the terms and
conditions of the Covenant, construction traffic shall not be permitted on Bob Hope Drive between
Highway 111 and Interstate I 0, unless directly related to any construction, development or
installation of the perimeter wall, signalization, median islands, landscaping and other
improvements along Bob Hope Drive. Construction traffic shall also be prohibited on Gerald Ford
Drive and Frank Sinatra Drive between Date Palm Drive and Bob Hope Drive. Construction traffic
between the Project Site and Intestate IO shall be primarily routed along Monterey Avenue, and
the portions of Gerald Ford Drive and Frank Sinatra Drive adjacent to the Project Site.
Section 30. Sunnylands Center & Gardens Schedule of Events
Consistent with Mitigation Measure No. 5.4-1 of the Final EIR, during construction of any
phase of the Project, Developer shall coordinate with Sunnylands Center & Gardens
("Sunnylands") and utilize construction best management practices to ensure that construction
noise, traffic and other construction-related activities do not unduly interfere, disrupt or obstruct
any security details, traffic routes or noise levels related to the normal operations of Sunnylands
or any scheduled special events held at Sunnylands during any construction phase. In addition,
consistent with the terms and conditions of the Covenant, Developer has acknowledged that there
may be occasions when Bob Hope Drive will be closed along the Bob Hope Drive frontage of the
Project for brief periods of time to accommodate events at Sunny lands, which will require access
to the Project Site to be redirected from the Bob Hope Drive access point to an alternative access
point that allows ingress and egress to and from all portions of the Project Site.
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Section 31. Commencement of Grading Upon Approval of Tentative Tract Map
Upon approval of the Project's Master Tentative Tract Map, the City shall accept and
review plans and other information deemed necessary by the City Engineer to issue a grading
permit for the Project, subject to the City's approval of the respective grading plans. Unless
otherwise specifically provided for in this Agreement, upon approval of the Tentative Tract Map,
Developer may submit improvement plans for plan check purposes only for the Project Site. In
addition, unless otherwise specifically provided for in this Agreement, no building permit shall be
issued nor any final inspection be conducted for any structure, building or improvement prior to
final map recordation and City approval of a Final Planned Residential Development Plan Permit
encompassing the respective structure, building or improvement.
Section 32. Environmental Impact Report -CEOA Mitigation Measures
Developer shall comply with all Mitigation Measures in the manner as set forth in the Final
Environmental Impact Report, which are hereby incorporated in this Agreement as though set forth
at length.
Section 33. Implementing Approvals.
All tentative tract maps, preliminary development plans, final development permits, and
other implementing entitlements shall automatically be incorporated into this Development
Agreement, whether approved concurrently with, or subsequent to, the Effective Date. So long as
the conditions of approval for such implementing approvals are consistent with the terms and
conditions of this Agreement, such conditions of approval shall be enforceable by the City as terms
of this Agreement.
Section 34. Overall Water Use
Consistent with Mitigation Measure No. 5.16.1 -5 of the Final EIR, the Project's overall
water use shall not exceed 80% of the 2017 Coachella Valley Water District's Maximum Applied
Water Allowance.
Section 35. Development Restrictions along Bob Hope Drive
To minimize project impacts to Sunnylands, density within the first 500 feet of the project
along that portion of the Project Site that is bounded by the perimeter wall along Bob Hope Drive
shall be limited to one residential dwelling unit per acre. Furthermore, any single-story hotel shall
be a minimum of 1,500 feet from the centerline of Bob Hope Drive, and any multi-story hotel shall
be a minimum of 1,760 feet from the centerline of Bob Hope Drive.
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Section 36. Future Line-of-Sight Studies
At the time of submission of improvement plans that include one or more structures that
exceed three stories in height, Developer shall provide to the City and Annen berg Trust Foundation
at Sunnylands line-of-sight studies that depict the sight lines from the top floor of such structures
toward Sunnylands.
Section 37. Vested Rights and Applicable Rules, Regulations and Policies
(a) Except as otherwise provided in this Agreement, Developer shall have the vested
right to develop the Project and Project Site pursuant to the rules, regulations, and policies
governing the use, density, intensity, design, improvement, construction, and building and
occupancy standards, in effect on the Effective Date of this Agreement, as set forth in this
Agreement (collectively, "Applicable Law"). In light of the foregoing, City shall apply the
Applicable Law when considering any actions or decisions pertaining to both discretionary and
ministerial permits related to the Project and Project Site. It is the intent of City and Developer that
the vesting of development rights of Developer shall include the permitted land uses, density and
intensity of use of the Project Site, timing or phasing of development, zoning, provisions for
reservation or dedication of land for public purposes, and the location and size of public
improvements and other terms and conditions of development of the Project or Project Site as set
forth in the Project Entitlements and this Agreement.
(b) In accordance with Government Code Section 65866, nothing herein shall be
construed to limit City's authority to apply new rules, regulations and policies to the Project or
Project Site which do not conflict with the Applicable Law, nor to limit City's police power to
implement, based upon appropriate and adequate findings, specific emergency measures necessary
to protect against real and actual threats to the health and safety of the general public.
(c) Notwithstanding anything to the contrary contained in this Agreement, City may
apply to the Project or Project Site, at any time during the term of this Agreement, the codes in
effect on the Effective Date, as set forth in Chapter 15.02, "Adopted California and Uniform
Codes," unless othe1wise required by applicable state or federal laws or regulations.
(d) As provided in California Government Code Section 65869.5, this Agreement shall
not preclude the application to the Project or Project Site of changes in laws, regulations, plans or
policies, to the extent that such changes are specifically mandated and required by changes in state
or federal laws or regulations ("Changes in the Law"). In the event Changes in the Law prevent or
preclude compliance with one or more of the provisions of this Agreement, such provisions of this
Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary
to comply with the Changes in the Law, and City and Developer shall take such action as may be
required pursuant to this Agreement.
(e) Unless ordered by a court of law, or to the extent provided by state law, the City
shall not impose on the Project (whether by action of the City Council or other local legislative
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body, or by initiative, referendum or other means) any ordinance, resolution, rule, regulation,
standard, directive, condition or other measure (each, individually, a "City Law") that is in conflict
with Applicable Law or this Agreement, or that reduces the development rights or assurances
provided by this Agreement. If the City attempts to apply to the Project a City Law that Developer
believes to conflict with Applicable Law or this Agreement, Developer shall provide to the City a
written notice describing the legal and factual basis for Developer's position. Upon receipt of said
notice, the parties shall convene an Emergency Working Group Meeting pursuant to the terms of
Section 39 of this Agreement.
(t) The City shall not adopt or enact any City Law, or take any other action which
would violate the express or implied provisions, conditions, or intent of any of the Project
entitlements. Developer reserves the right to challenge in court any City Law that would, in
Developer's opinion, conflict with Applicable Law (including this Agreement) or reduce the
development rights provided by this Agreement. Should any initiative, referendum, or other
measure be enacted, and any failure to apply such measure by City to the Project be legally
challenged, Developer agrees to fully defend and indemnify the City against such challenge,
including providing all necessary legal services (with counsel reasonably selected by Developer
in consultation with the City Attorney), bearing all costs therefor, and otherwise holding the City
harmless from all costs and expenses of such legal challenge and litigation.
(g) In the event a City Law is enacted, whether by action of the City Council, or by
initiative, referendum (other than a referendum which specifically overturns the City's approval of
this Agreement or the Project Entitlements), or otherwise, which relates to the rate, timing, phasing
or sequencing of new development or construction in the City or, more particularly, development
and construction of all or any part of the Project, and that is in conflict with the Applicable Law
or this Agreement, such City Law shall not apply to the Project or any portions thereof.
(h) Except as set forth in Agreement, regardless of any future enactment, by initiative,
or otherwise, Developer shall have the discretion to not develop the Property, or to develop the
Property in one phase or in multiple phases at such times as Developer deems appropriate within
the exercise of its subjective business judgment in light of market conditions. In acknowledgement
of the holding in Pardee Construction Company v. City of Camarillo, 3 7 Cal. 3d 465 ( 1984) the
parties specifically agree that Developer shall be entitled to apply for and receive permits, maps,
occupancy certificates, and other entitlements to develop and use the Subject Property at any time,
provided that such application is made in accordance with this Agreement and the Applicable Law.
Section 38. Emergency Working Group
Notwithstanding any other provision in this Agreement, neither Developer nor City shall
commence any legal action, or willfully engage in any other act or omission inconsistent with the
terms of thi s Agreement, including but not limited to withholding or delaying prompt issuance of
any ministerial approval by the City (collectively, a "Self-Help Remedy"), without first initiating,
and participating in good faith in, an "Emergency Working Group Meeting" pursuant to the terms
of this Section. Upon receipt of any Notice of Default, or upon the existence of any dispute or
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disagreement between the parties arising out of or relating to this Agreement and/or the Project,
any party may initiate an Emergency Working Group Meeting to address and seek in good faith to
resolve the dispute or disagreement by giving written notice to the other party setting forth the
nature of the issue in dispute and the desire to hold an immediate Emergency Working Group
Meeting. The meeting shall be held within IO days of the written notice, unless extended by
mutual written agreement of the parties. Failure to hold the required meeting prior to commencing
any legal action or engaging in any Self-Help Remedy will result in the award of all reasonable
attorney's fees and costs to the party found by any Court to be responsible for the failure to timely
hold the meeting. To expedite the process of commencing and completing an Emergency Working
Group Meeting, if and when the need for such a meeting should arise, the parties shall form the
Emergency Working Group within 60 days of the Effective Date of this Agreement, which shall
consist of the following members: (1) the City Manager; (2) the City Planning Manager; (3) the
City Public Works Director; (4) the City Attorney; (6) the President or Executive Vice President
of DMB Development; (7) Developer's Project Manager or other employee or representative
appointed by Developer with first-hand knowledge of the issue in dispute; and (8) Developer's
legal counsel. Both Developer and City shall maintain a current list of names and contact
information for the Emergency Working Group.
Section 39. Nexus/Reasonable Relationship Challenges
Developer consents to, and waives any rights it may have now or in the future to challenge
the legal validity of, the conditions or requirements set forth in this Agreement including, without
limitation, any claim that they constitute an abuse of the police power, violate substantive due
process, deny equal protection of the laws, effect a taking of property without payment of just
compensation, or impose an unlawful tax. Developer reserves the right, however, to challenge in
court any future fee, exaction, or other City Law that would, in Developer's opinion, conflict with
Applicable Law (including this Agreement) or reduce the development rights provided by this
Agreement.
Section 40. Covenants Running with the Land and Constructive Notice
All of the terms, provisions, and obligations contained in this Agreement shall be binding
upon Developer and its heirs, successors, and assigns, and all other persons or entities acquiring
all or any portion of the Project or Project Site, or any interest therein, whether by operation of law
or in any manner whatsoever, and the rights thereof shall inure to the benefit of City and its
successors and assigns. As such, all of the provisions of this Agreement shall be enforceable as
equitable servitudes and constitute covenants running with the land pursuant to applicable law,
including but not limited to, Section 1468 of the California Civil Code. Notwithstanding the above,
every person who now or hereafter owns or acquires any right, title or interest in or to any portion
of the Project or Project Site shall be deemed to have consented and agreed to every provision
contained in this Agreement, whether or not any reference to this Agreement is contained in the
instrument by which such person acquired an interest in the Project or Project Site.
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Notwithstanding the foregoing, the terms, provisions and obligations set forth in this Agreement
shall not be binding upon any owner of an individual home or commercial structure within the
Project for which a certificate of occupancy has been issued.
Notwithstanding anything set forth in this Agreement to the contrary:
(a) During the term hereof, the Project and Project Site shall be subject to this
Agreement, and any development of any portion of the Project and Project Site shall be subject to
and in accordance with the terms of this Agreement.
(b) Developer is not obligated by the terms of this Agreement to affirmatively
act to develop all or any portion of the Property, pay any sums of money (with the exception of
any assessment district or other public finance district formed to include the Project or Project
Site), dedicate any land, indemnify any party, or to otherwise meet or perform any obligation with
respect to the Project or Project Site, except and only as a condition to the development of any
portion of the Project or Project Site.
Section 41. Civil Code Section 1542 Waiver
Developer hereby waives any and all rights Developer or its successors and assigns may
have under Article XIIIC or Article XIIID of the California Constitution and any and all rights
Developer of its successors and assigns may have under any other applicable law to contest the
fees, exactions and assessments and/or their amounts payable to City under this Agreement as
follows:
In furtherance of the intentions of the parties to this Agreement, Developer with and under
advice of counsel, hereby expressly waives any and all right and benefit conferred upon
Developer by the provisions of Civil Code Section 1542, which provides as follows:
"A general release does not extend to claims that a creditor or releasing party does
not know or suspect to exist in his or her favor at the time of executing the release
and that, if known by him or her, would have materially affected his or her
settlement with the debtor or released party."
Developer further expressly waives any and all rights and benefits conferred upon
Developer by any provision of any other state, federal or local statute, code, ordinance or law
similar to Section 1542 of the Civil Code. Developer expressly consents that the waiver of rights
contained in the first paragraph shall be given full force and effect, according to the express terms
and provisions of the instant waiver, to unknown and unsuspected claims, demands and causes of
action, if any, arising out ofor relating to the waiver of rights contained in this Agreement.
Initials:
Developer
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Section 42. Periodic Review
City shall conduct a review of this Agreement as set forth as follows:
(a) Annual Review. City will review the extent of good faith compliance by
Developer with the terms of this Agreement annually commencing on the first anniversary of the
Effective Date of this Agreement.
(b) Notice. City shall notify Developer in writing of the date of review at least
thirty (30) days prior thereto.
(c) Good-faith Compliance. During each annual review, Developer is required to
demonstrate good faith compliance with the terms of this Agreement.
(d) Production of Documents and Other Evidence. Developer agrees to furnish
such reasonable evidence and adequate documentation of good faith compliance as City, in the
exercise of its reasonable discretion, may require.
(e) Failure to Conduct Review. City's failure to conduct an annual review of this
Agreement shall not constitute a breach of this Agreement.
(f) Certificate of Compliance. If, at the conclusion of a periodic or special review,
Developer is found to be in compliance with this Agreement, City shall issue a Certificate of
Compliance ("Certificate") to Developer stating that after the most recent periodic or special
review, and based upon the information known or made known to City that: (i) this Agreement
remains in effect and (ii) Developer is not in default. City shall not be bound by a Certificate if a
default existed at the time of the periodic or special review, but was concealed from or otherwise
not known to City, regardless of whether or not the Certificate is relied upon by assignees or
other transferees or Developer.
Section 43. No Third Party Beneficiaries
The only parties to this Agreement are Developer and City. There are no third-party
beneficiaries and this Agreement is not intended, and shall not be construed, to benefit, or be
enforceable by any other person whatsoever.
Section 44. Assignment of Rights
(a) Right to Assign. Developer shall have the right to sell, transfer, or assign this
Agreement in whole or in part to any person or entity acquiring an interest or estate in the Subject
Property, or any portion thereof (each, a "Transferee"), at any time during the Term of this
Agreement, without the prior written consent of the City. Any sale, transfer or assignment shall
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include the assignment and assumption of the rights and duties set forth herein, and shall be made
in compliance with the following conditions precedent:
(i) No sale, transfer, or assignment of any right or interest under this
Agreement shall be made unless made together with the sale, transfer, or
assignment of all or a portion of the Subject Property. Any partial transfer
hereunder shall be in full compliance with the City's subdivision
requirements.
(ii) Concurrent with any such sale, transfer or assignment Developer shall
notify City, in writing, of such sale, transfer, or assignment and shall
provide City with an executed agreement between Developer and the
Transferee, and providing therein that the Transferee expressly and
unconditionally assumes all the duties and obligations of Developer under
this Agreement as to all portions of the Subject Property transferred (the
Assignment and Assumptions Agreement). The Assignment and
Assumption Agreement shall also provide (i) that the Transferee has the
vested rights to improve the portion of the Subject Property acquired,
pursuant to the terms and conditions of this Agreement, (ii) the address for
Transferee for any notices to be given hereunder, and (iii) any other matter
deemed by Developer to be necessary or appropriate in connection with the
transfer or assignment.
(b) Release of Transferring Developer. Upon approval by the City of the executed
Assignment and Assumption Agreement, Developer shall be released from all obligations under
this Agreement, solely as to the property transferred, which approval shall be provided by City
upon the full satisfaction by such transferring Developer of all the following conditions:
(i) The transferring Developer no longer has a legal interest in the portion of
the Subject Property that is the subject of the Assignment and Assumption
Agreement, except as a beneficiary under a deed of trust;
(ii) The transferring Developer is not then in default under this Agreement;
and
(iii) The transferring Developer has provided the City with the notice and
executed agreement required under subsection (b) of this Section.
Developer shall be free from any and all liabilities and obligations accruing on or after the
date of any assignment or transfer with respect to those obligations assumed by a Transferee under
a fully executed Assignment and Assumption Agreement approved by the City. No breach or
default hereunder by any Transferee shall be attributed to Developer, nor may any of Developer's
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rights hereunder be cancelled, terminated or diminished in any way by any breach or default of a
Transferee.
(c) Subsequent Assignment. Any subsequent sale, transfer, or assignment after an
initial sale, transfer, or assignment shall be made only in accordance with and subject to the terms
and conditions of this Section.
Section 45. Mortgagee Protection
(a) In General. The provisions of this Agreement shall not prevent or limit Developer's
right to encumber the Subject Property or any portion thereof, or any improvement thereon by any
mortgage, deed of trust or other security device securing financing with respect to such portion.
City acknowledges that lenders providing such financing and other "Mortgagees" (defined below)
may require certain modifications or amendments to this Agreement and agrees upon request, from
time to time, to meet with Developer and representatives of such lenders to negotiate in good faith
any such request for modification or amendment. Any modification or amendment requested by
a Mortgagee will be processed in accordance with the terms of this Agreement. Any person
holding a mortgage, deed of trust or other security instrument on all or any portion of the Property
made in good faith and for value ( each, a "Mortgagee"), shall be entitled to the rights and privileges
set forth in this Section.
(b) Impairment of Mortgage or Deed of Trust. This Agreement shall be superior and
senior to any lien placed upon the Subject Property, or any portion thereof, including the lien of
any mortgage. Notwithstanding the foregoing and except as otherwise specifically stated in the
terms of any security instrument held by a Mortgagee, no default under this Agreement shall
defeat, render invalid, diminish, or impair the lien of any mortgage or deed of trust on the Project
Site made, or their interest in the Subject Property acquired by, any Mortgagee in good faith and
for value.
(c) Notice of Default to Mortgagee. If a Mortgagee has submitted a request in writing
to City in the manner specified herein for giving notices, City shall exercise its best efforts to
provide such Mortgagee written notification from City of any failure or default by Developer in
the performance of Developer's obligations under this Agreement, which notification shall be
provided to such Mortgagee at such time as such notification is delivered to Developer.
(d) Right of Mortgagee to Cure. Any Mortgagee shall have the right, but not the
obligation, to cure any failure or default by Developer during the cure period allowed Developer
under this Agreement, plus an additional 60 days if, in order to cure such failure or default, it is
necessary for the Mortgagee to obtain possession of the Subject Property such as by seeking the
appointment of a receiver or other legal process. Any Mortgagee that undertakes to cure or attempt
to cure any such failure or default shall provide written notice to City that it is undertaking efforts
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of such a nature; provided that no initiation of any such efforts by a Mortgagee shall obligate such
Mortgagee to complete or succeed in any such curative efforts.
(e) Liability for Past Defaults or Obligations. Subject to the foregoing, any Mortgagee,
including the successful bidder at a foreclosure sale, who comes into possession of the Project or
the Subject Property or any part thereof pursuant to foreclosure, eviction or otherwise, shall take
such property subject to the rights and obligations of this Agreement, and in no event shall any
such property be released from any obligations associated with its use and development under the
provisions of this Agreement. Nothing in this Section shall prevent City from exercising any
remedy it may have for a default under this Agreement; provided, however, that in no event shall
such Mortgagee personally be liable for any defaults or monetary obligations of Developer arising
prior to acquisition or possession of such property by such Mortgagee.
Section 46. Short Term and Long Term Rentals
Both short term and long term rentals shall be permitted for all residential units within the
Project, including the branded resort units, subject to the requirement that the recorded Covenants,
Conditions and Restrictions applicable to such units permit short term and long term rentals. The
restrictions and limitations set forth in Section 17.30.095 of the Municipal Code shall not apply to
privately owned residential units within the Project.
Section 47. Singular and Plural; Gender; and Person
Except where the context requires otherwise, the singular of any word shall include the
plural and vice versa; pronouns inferring the masculine gender shall include the feminine gender
and neuter, and vice versa; and a reference to "person" shall include, in addition to a natural person,
any governmental entity and any partnership, corporation, joint venture or any other form of
business entity.
Section 48. Time Is of the Essence
Time is of the essence of this Agreement and of each and every term and condition hereof.
Section 49. Waiver
All waivers must be in writing to be effective or binding upon the waiving party, and no
waiver shall be implied from any omission by a party to take any action with respect to an Event
of Default as defined in this Agreement. Failure by a party to insist upon the strict performance
of any of the provisions of this Agreement by the other party shall not constitute waiver of such
party's right to demand strict compliance and specific performance by the other party in the future.
In addition, no express written waiver of any Event of Default shall affect any other Event of
Default, or cover any period of time other than as specified in such express waiver.
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Section 50. Minor Revisions
Minor revisions to the entitlements related to the Project or Project Site shall not require
an amendment to this Agreement, provided that City finds and determines that the proposed change
or modification is consistent with the development standards and guidelines set forth in this
Agreement and Applicable Laws.
Section 51. Amendments
This Agreement may be amended from time to time by mutual consent of the original
parties or their successors in interest, with City's costs payable by amendment applicants, in
accordance with the provisions of Government Code Sections 65867 and 65868 and City's adopted
procedures and requirements for the consideration of amendments to development agreements.
Minor revisions, as described above, shall not require an amendment to this Agreement.
Section 52. Ambiguities or Uncertainties
The parties hereto have mutually negotiated the terms and conditions of this Agreement
and each party received independent legal advice from its attorneys with respect to the advisability
of executing this Agreement and the meaning of the provisions contained herein. As such, this
Agreement is a product of the joint drafting efforts of both parties and neither party shall be deemed
to have solely or independently prepared or framed this Agreement. Therefore, any ambiguities
or uncertainties are not to be construed against or in favor of either party.
Section 53. Hold Harmless
Developer hereby agrees to, and shall defend, indemnify and hold harmless City, city
council, commissions, boards, subcommittees and City's elected and appointed officials,
commissioners, board members, officers, agents, consultants and employees ("City Parties") from,
any and all claims, costs and liability for any damages, personal injury or death, which may arise,
directly or indirectly, from Developer's or Developer's officers', agents', consultants', employees',
contractors' or subcontractors' negligent, willful or reckless conduct performed under this
Agreement.
Section 54. Indemnification
Developer shall defend, indemnify and hold harmless City Parties, as defined in this
Agreement, from and against any and all liabilities, demands, claims, actions or proceedings and
costs and expenses incidental thereto (including costs of defense, settlement and reasonable
attorneys' fees), which any or all of them may suffer, incur, be responsible for or pay out as a result
of or in connection with any challenge to the legality, validity or adequacy of any of the following
items: (i) any prior agreements by and between City and Developer; (ii) this Agreement and the
concurrent and subsequent permits, licenses and entitlements approved by C ity; (iii) any
environmental determination made by City in connection with the Project, Project Site or this
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Agreement; and (iv) any proceedings or other actions undertaken by City in connection with the
adoption or approval of any of the above. In the event of any administrative, legal, equitable action
or other proceeding instituted by any third party (including without limitation a governmental
entity or official) challenging the legality, validity or adequacy of any of the above items or any
portion thereof, the Parties shall mutually cooperate with each other in defense of said action or
proceeding. Notwithstanding the above, City, at its sole option, may tender the complete defense
of any third party challenge as described herein. In the event City elects to contract with special
counsel to provide for such a defense, City shall meet and confer with Developer regarding the
selection of counsel, and Developer shall pay all costs related to retention of such counsel by City.
Section 55. Termination
This Agreement shall be terminated and of no further effect upon the occurrence of any of
the following events:
(a) The expiration of the Term of this Agreement; or
(b) Entry of final judgment or issuance of a final order directing City to set aside,
withdraw, or abrogate City's approval of this Agreement or any material part of the Project
Entitlements; or
(c) The effective date of a party's election to terminate the Agreement in response to
an uncured default by the other party, pursuant to the terms of this Agreement.
In the event of a termination of this Agreement with respect to any portion of the Project
or Project Site, any then-existing rights and obligations of the parties with respect to such portion
of the Project or Project Site shall automatically terminate and be of no further force, effect or
operation. No termination of this Agreement with respect to any portion of the Project or Project
Site shall affect in any way the parties' rights and obligations hereunder with respect to any other
portion of the Project or Project Site. In no event shall the expiration or termination of this
Agreement result in any expiration or termination, without further action of City, of any
entitlement approval then in existence.
If City lawfully terminates this Agreement because of Developer's default, then City shall
retain any and all benefits, including without limitation any money, improvements, structures,
easements or dedications received by City pursuant to any term or condition of this Agreement.
Section 56. Delays in Performance
In addition to any other provisions of this Agreement with respect to delay, Developer and
City shall be excused for performance of their obligations hereunder during any period of delay
caused by acts of God or civil commotion; major acts of terrorism occurring in the United States
of America; mass shootings; riots, strikes, picketing, or other labor disputes; shortage of materials
or supplies; damage to or prevention of work in process by reason of fire, floods, earthquake, or
25 1 Pa ge
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other casualties; litigation, acts or neglect of the other party; restrictions imposed or mandated by
governmental or quasi-governmental entities; and/or enactment of conflicting provisions of the
Constitution, laws of the United States of America, the State of California, or any codes, statutes,
regulations or executive mandates promulgated thereunder. If written notice of such delay is given
to either party within thirty (30) days of the commencement of such delay, an extension of time
for such cause shall be granted in writing for the period of the delay, or longer as may be mutually
agreed upon.
Section 57. Events of Default
A default under this Agreement shall be deemed to have occurred upon the happening of
one or more of the following events or conditions: (i) a warranty, representation, or statement made
or furnished by Developer expressly in this Agreement to City or by City to Developer is false or
proves to have been false in any material respect when it was made, or (ii) a finding by City made
following a periodic review of the Agreement under the procedure provided in this Agreement,
based on substantial evidence, that Developer has not complied in good faith with one or more of
the terms or conditions of this Agreement, or (iii) Developer's fai lure to perform any of its material
obligations under this Agreement ("Event of Default"). Upon the occurrence ofan Event of Default
by Developer or City, the non-defaulting party shall provide the other party thirty (30) calendar
days written notice specifying the nature of the alleged default and the manner in which said default
may be satisfactorily cured ("Notice of Default"). Subject to any extensions of time by mutual
consent of the parties in writing, and subject to the provisions of Section 50 of this Agreement, the
failure or unreasonable delay by either party to perform any material term or provision of this
Agreement for a period of thirty (30) days after the dispatch of a written notice of default from the
other party shall constitute a default under this Agreement. If the nature of the alleged default is
such that it cannot reasonably be cured within such thirty (30) calendar day period, the
commencement of the cure within such time period and the diligent prosecution to completion of
the cure shall be deemed a cure within such period. Any Notice of Default given hereunder shall
specify in detail the nature of the alleged Event of Default and the manner in which such Event of
Default may be satisfactorily cured in accordance with the terms and conditions of this Agreement.
During the time periods herein specified for cure of an Event of Default, the party charged
therewith shall not be considered to be in default for purposes of termination of this Agreement,
institution of legal proceedings with respect thereto, or whether any further building permits shall
be issued with respect to the Project Site.
Section 58. General Default Remedies
Subject to the "No Damages Relief' section of this Agreement, after notice and expiration
of the thirty (30) calendar day period without cure, the non-defaulting party shall have such rights
and remedies against the defaulting party as it may have at law or in equity, including, but not
li mited to, the right to terminate this Agreement pursuant to California Government Code Section
65868 or seek mandamus, specific performance, injunctive or declaratory relief. Any rights or
remedies available to non-defaulting party under this Agreement and any other rights or remedies
that such party may have at law or in equity upon a default by the other party under this Agreement
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shall be distinct and separate, providing the non-defaulting party with cumulative rights and
remedies. None of such rights or remedies, whether or not exercised by the non-defaulting party,
shall be deemed to exclude any other rights or remedies available to the non-defaulting party. The
non-defaulting party may, in its discretion, exercise any and all of its rights and remedies, at once
or in succession, at such time or times as the non-defaulting party considers appropriate.
Section 59. No Ministerial Permits upon Developer Default
No ministerial permits, such as but not limited to building permits and grading permits,
shall be issued nor shall any applications for such ministerial permits be accepted for any structure
or improvement for the Project or on the Project Site after it has been determined by a court of
competent jurisdiction that Developer is in default under this Agreement, until such default is cured
by Developer or is waived by City.
Section 60. Applicable Law
This Agreement shall be construed and enforced in accordance with the laws of the State
of California.
Section 61. Venue
In the event that suit is brought by either party to this Agreement, the parties agree that
venue shall be exclusively vested in the State courts of the County of Riverside, California or
where appropriate, in the United States District Court, Southern District of California, Riverside,
California.
Section 62. No Damages Relief
Notwithstanding anything else in this Agreement to the contrary, the parties acknowledge
that neither would have entered into this Agreement had either been exposed to damage claims for
any breach hereof. As such, the parties agree that in no event shall either party be entitled to
recover monetary damages of any kind whatsoever ( other than the recovery of costs and attorney's
fees pursuant to the terms of this Agreement or applicable law) against the other for breach of this
Agreement.
Section 63. Legal Action; Attorneys' Fees
Either party may, in addition to any other rights or remedies, institute legal action to cure,
correct or remedy a default, enforce any covenant or agreement herein, enjoin any threatened or
attempted violation hereof, or enforce by specific performance the obligations and rights of the
parties hereto. The prevailing party in any such action shall be entitled to its reasonable attorneys'
fees and costs to be paid by the losing party.
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Section 64. Notices
Any notice or communication required hereunder between City and Developer shall be in
writing, and may be given either personally or by registered mail, return-receipt requested. Notice,
whether given by registered mail or personal delivery, shall be deemed to have been given and
received on the actual receipt by any of the addresses designated below as the party to whom
notices are to be sent. Any party hereto may at any time, upon written notice to the other party
hereto, designate any other address in substitution of the address to which such notice or
communication shall be given. Such notices or communications shall be given to the parties at
their addresses set forth below:
To City:
City of Rancho Mirage
69-825 Highway 111
Rancho Mirage, CA 92270
Attention: Development Services Director
To Developer:
EC Rancho Mirage Limited Partnership
191 0-1177 West Hastings St.
Vancouver, B.C. V6E-2K3
And to:
DMB Development, LLC
7600 E. Doubletree Ranch Road, Suite 250
Scottsdale, Arizona 85258
With a copy to:
James D. Vaughn, Esq.
Stowell, Zeilenga, Ruth, Vaughn & Treiger LLP
4590 E. Thousand Oaks Blvd., Suite I 00
Westlake Village, CA 91362
Section 65. Consistency of Entitlements with Agreement
The parties hereto acknowledge that it is their intention that all terms, conditions and
obligations of any and all entitlements related to the Project Site and/or Project, or arising from
this Agreement shall be consistent with, or at minimum, shall not conflict with, the terms,
provisions and obligations of this Agreement. To the extent there is any conflict or inconsistency
between the terms of this Agreement and any other provision in the Project entitlements, the terms
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Section 66. Partial Invalidity Due to Governmental Action
In the event state or federal laws or regulations enacted after the effective date of this
Agreement, or formal action of any governmental entity other than City, prevent compliance with
one or more provisions of this Agreement, or require changes in plans, maps or permits approved
by City, the parties agree that the provisions of this Agreement shall be modified, extended or
suspended only to the minimum extent necessary to comply with such laws or regulations.
Section 67. Further Actions and Instruments
The parties agree to provide reasonable assistance to the other and cooperate to carry out
the intent and fulfill the provisions of this Agreement. Each of the parties shall promptly execute
and deliver all documents and perform all acts as necessary to carry out the matters contemplated
by this Agreement.
Section 68. Entire Agreement
This Agreement and the exhibits attached hereto contain all the representations and the
entire agreement between the parties with respect to the subject matter hereof. Except as otherwise
specified in this Agreement and the exhibits attached hereto, any prior correspondence,
memoranda, warranties, representations and agreements unless otherwise provided in this
Agreement, are superseded in total by this Agreement and the exhibits attached hereto.
Section 69. Severability
If any term, provision, covenant or condition of this Agreement is repealed by referendum
or is held by a court of competent jurisdiction or an authorized government enforcement agency
to be invalid, void or unenforceable, the remaining provisions, if any, of this Agreement shall
continue in full force and effect, unless enforcement of this Agreement as so invalidated would be
unreasonable or grossly inequitable under all the circumstances or would frustrate the purposes of
this Agreement.
Section 70. Authority to Execute Agreement
The person or persons executing this Agreement on behalf of Developer and City warrant
and represent that they have the authority to execute this Agreement and the authority to bind
Developer and City, as applicable, to the performance of their respective obligations hereunder.
Section 71. Counterparts
This Agreement may be executed in duplicate counterpart originals, each of which is
deemed to be an original, and all of which when taken together shall constitute one and the same
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instrument.
Section 72. Recordation
In order to comply with Section 65868.5 of the Development Agreement Statute, the parties
do hereby direct the City Clerk to cause a copy of this Agreement to be recorded with the Riverside
County Recorder's Office within ten (I 0) days after the Enacting Ordinance takes effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the dates written above.
CITY OF RANCHO MIRAGE
APPROVED:
By: _________ _
Iris Smotrich, Mayor
ATTEST:
By:----------
Kristie Ramos, City Clerk
APPROVED AS TO FORM:
By:----------
Steven B. Quintanilla, City Attorney
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DEVELOPER (EC RANCHO MIRAGE
HOLDINGS LIMITED PARTNERSHIP)
APPROVED:
*By: __________ _
Name/Title
*By: __________ _
Name/Title
*Signatures must be notarized.
APPROVED AS TO FORM:
By: _______ _
Legal Counsel
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EXHIBIT "A"
LEGAL DESCRIPTION OF SUBJECT PROPERTY
(PROJECT SITE)
[SEE A TT ACHED]
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EXHIBIT A
PARCEL A:
DOC #2018-0115511 Page 6 of 7
THAT PORTION OF SECTION 31 , IN TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN
BERNARDINO MERIDIAN, IN THE CITY OF RANCHO MIRAGE, COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT
THEREOF, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE EAST LINE OF RIO DEL SOL ROAD
(80.00 FEET WIDE) AS DESCRIBED IN DEED TO COUNTY OF RIVERSIDE, RECORDED
MAY 24, 1949 AS INSTRUMENT 3476 OFFICIAL RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA, WITH THE NORTH LINE OF SAID SECTION 31, BEING A POINT ON
SAID NORTH LINE NORTH 89° 42' 26" EAST, 40 FEET THEREON FROM THE
NORTHWEST CORNER OF SAID SECTION;
THENCE SOUTH 00° 09' 54" WEST, 2,660.80 FEET ON SAID EAST LINE;
THENCE SOUTH 00° 10' 45" WEST, 1,001.09 FEET ON SAID EAST LINE TO THE
BEGINNING OF A TANGENT CURVE THEREIN CONCAVE WESTERLY OF 2,040.00
FEET RADIUS;
THENCE SOUTHERLY 404.64 FEET ON SAID CURVE, THROUGH A CENTRAL ANGLE
OF 11 ° 21 ' 53", TO THE WEST LINE OF SAID SECTION 31;
THENCE SOUTH 00° 10' 45" WEST, 1,257.93 FEET TO THE SOUTHWEST CORNER OF
SAID SECTION;
THENCE ON THE SOUTH LINE OF SAID SECTION, NORTH 89° 50' 47" EAST, 1,972.62
FEET, NORTH 89° 51' 01" EAST, 2651.43 FEET AND NORTH 89° 52' 18" EAST, 783.13
FEET TO THE SOUTHEAST CORNER OF SAID SECTION;
THENCE NORTH 00° 12' 39" EAST, 5,335.36 FEET TO THE NORTHEAST CORNER OF
SAID SECTION;
THENCE ON THE NORTH LINE OF SAID SECTION SOUTH 89° 39' 19" WEST, 1,321.44
FEET;
THENCE SOUTH 89° 44' 59" WEST, 1,322.01 FEET; AND SOUTH 89° 42' 26" WEST,
2,734.41 FEET TO THE POINT OF BEGINNING;
EXCEPTING THAT PORTION DESCRIBED BY DEED TO THE COUNTY OF RIVERSIDE,
RECORDED OCTOBER 15, 1986 AS INSTRUMENT NO. 256010 OFFICIAL RECORDS.
ALSO EXCEPT THAT PORTION DESCRIBED BY DEED TO THE CITY OF RANCHO
MIRAGE, RECORDED FEBRUARY 11, 1987 AS INSTRUMENT NO. 40088 OFFICIAL
RECORDS.
ALSO EXCEPT EXHIBIT "A" AS SHOWN ON CERTIFICATE OF COMPLIANCE, AS
EVIDENCED BY DOCUMENT RECORDED MAY 10, 2016 AS INSTRUMENT NO. 2016-
0188516, OF OFFICIAL RECORDS.
PARCELB:
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DOC #2018-0115511 Page 7 of 7
THAT PORTION OF SECTION 36, TOWNSHIP 4 SOUTH, RANGE 5 EAST, SAN
BERNARDINO MERIDIAN, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
ACCORDING TO THE OFFICIAL PLAT THEREOF DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE EAST LINE OF RIO DEL SOL ROAD
(80.00 FEET WIDE) AS DESCRIBED IN DEED TO COUNTY OF RIVERSIDE, RECORDED
AUGUST 2, 1949, AS INSTRUMENT NO. 274 OF OFFICIAL RECORDS, WITH THE WEST
LINE OF SECTION 31 , IN TOWNSHIP 4 SOUTH, RANGE 6 EAST; SAID INTERSECTION
BEING A POINT ON A CUR VE IN SAID EAST LINE CONCA VE WESTERLY OF 2,040.00
FEET RADIUS TO WHICH A RADIAL BEARS SOUTH 78° 27' 22" EAST;
THENCE SOUTH 00° 10' 45" WEST, 1,257.93 FEET ON SAID WEST LINE OF SECTION
31, TO THE SOUTHWEST CORNER OF SAID SECTION 31, BEING THE SOUTHEAST
CORNER OF SAID SECTION 36;
THENCE SOUTH 89° 52' 25" WEST, 536.35 FEET ALONG THE SOUTH LINE OF SAID
SECTION 36 TO THE INTERSECTION OF THE EAST LINE OF SAID DEL RIO DEL SOL
ROAD, SAID INTERSECTION BEING A POINT ON A CURVE OF SAID EAST LINE,
CONCAVE EASTERLY OF 1,960.00 FEET RADIUS, TO WHICH A RADIAL BEARS
NORTH 73° 55' 05" WEST;
THENCE ALONG SAID EAST LINE, NORTHERLY 482.81 FEET ALONG SAID CURVE,
THROUGH A CENTRAL ANGLE OF 14° 06' 50"; THENCE NORTH 30° 11' 45" EAST,
229.63 FEET TO THE BEGINNING OF A TANGENT CURVE CONCA VE WESTERLY OF
2,040.00 FOOT RADIUS AND NORTHERLY 664.10 FEET ON SAID CURVE THROUGH A
CENTRAL ANGLE OF 18° 39' 07'' TO THE POINT OF BEGINNING;
EXCEPTING THEREFROM THAT PORTION DESCRIBED IN THE DEED TO THE CITY
OF RANCHO MIRAGE, RECORDED FEBRUARY 11, 1987 AS INSTRUMENT NO. 40088,
OFFICIAL RECORDS.
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EXHIBIT "B"
IMPACT FEES AND CREDITS
[SEE A TT ACHED]
Rancho Mira r l
Impact Fee Analysis Exhibit B
11/27/2019 Impact Fees and Credits
Impact Fees I ,~~Feel 1
Estimated Impact
(Gross} Fees (Net}
Single Multi-CoIDI11erciaV Multi-CoIDI11erciaV
Family family 1,000SqFt Single Family family l,OOOSqFt Totals
Total Units 1,380 552 175,000
Transportation Facilities $4,119 $2,538 $2,814 $5,684,220 $1,400,976 $492,450 $7,577,646 ($6,728,825) • $848,821
Parks and Recreation Sl,726 $1,378 so $2,381,880 $760,656 $0 $3,142,536 ($3,142,536) ** $0
Infra Undergrounding $272 $272 $272 $375,360 $ I 50,1 44 $47,600 $573,104 ($573,104) $0
Total Potential Fees & Credits $6,117 $4,188 $3,086 $8,441,460 $2,311,776 $540,050 $11,293,286 ($10,444,465) S848,821
Tax on New Construction 0.40/ Sq Ft $1,560,080 $280,800 S70,000 $1,910,880 TBD TBD
Fire Protection Facilities $449 S358 $31 I $619,620 $197,616 $54,425 $871,661 $0 S871,661
General Government Facilities S992 $792 S310 $1,368,960 S437,184 $54,250 $1,860,394 so $1,860,394
Library Facilities $1,145 S914 so $1,580,100 S504,528 $0 $2,084,628 so S2,084,628
Subtotal Noncreditable Fees $4,816,683 $0 $4,816,683
Grand Total Impact Fees/ Tax $18,020,849 ($10,444,465) $5,665,504
Notes:
* Based on creditable facilities identified in City's DIF Study.
** 100% fee credit anticipated based on $45M cost oflagoon and public trail with landscaping.
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EXHIBIT "C"
CONCEPTUAL OPEN SPACE PLAN
[SEE A TT ACHED]
-
", ..... :l
,,
Beach
Club
c>
~
Lagoon
SECTION 31: SPECIFIC PLAN
LEGEND
Key Type
1 Private Entry and
1 Neighborhood Parks
r q
0
0
Paseo
Community Gateway
Landscaped Edge
Grand Oasis
Promenade
Beaches
Project Boundary
Residential Entry
Public Entry
Note: The configuration and alignment of open space area is conceptual and may be refined and adjusted with more detailed implementing development proposals.
SOURCE: HART HOWERTON
ivi
EXHIB IT DATE: JANUARY 37, 2079
CONCEPTUAL OPEN SPACE PLAN
FIGURE 2.5
CHAPTER 2· DEVELOPMENT PLAN I 401
7 EXHIBIT "D"
FINANCE DISTRICT ELIGIBLE FACILITIES AND FINANCING PARAMETERS
[SEE A TT ACHED]
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EXHIBIT D
PARAMETERS FOR
COMMUNITY FACILITIES DISTRICTS
The City has approved "Local Goals and Policies Concerning Use of Mello-Roos Community Facilities
Act of 1982" ("Policies"). The Policies in place as of the date of the Development Agreement are attached
to this Exhibit [ ] as Attachment I. Subject to sound municipal financing practices, the Community
Facilities District(s) ("CFO") established by the City for the Project, the associated Rate and Method of
Apportionment of Special Taxes ("RMA") and CFO or "Improvement Area" bonds ("Bonds") shall be
based upon the Policies and conform to the parameters set forth below unless otherwise agreed to by the
City and Developer. The City and Developer agree that the parameters set forth below are not inconsistent
with the Policies. All capitalized terms used in this Exhibit D and not otherwise defined shall have
meanings given such terms in the Development Agreement.
A. Eligible Facilities
I. The CFO may finance any capital facilities fees and public improvements as allowed by
the Act including, but not limited to, the following:
a. City development impact fees;
b. Parking structure or parking lot facilities;
c. Utility undergrounding;
d. Perimeter landscaping and sidewalks, lagoon path/boardwalk and related
landscaping provided that there is an easement for public use;
e. Facilities and improvements to be owned by the City including, but not limited to,
streets, storm drains, parks, parkways, landscaping, traffic signals and the
acquisition of land or easements associated with such improvements;
f. Facilities and capital facilities fees of other public agencies including but not
limited to, Coachella Valley Water District ("CVWD") and Palm Springs Unified
School District ("PSUSD").
2. The Developer shall decide which eligible faci lities will be funded by the CFO and the
priority of financing the eligible facilities.
3. If requested by Developer, the City shall use best efforts to approve one or more Joint
Community Facilities Agreements ("JCFA") to allow the CFO to finance CVWD facilities,
PSUSD facilities and/or other non-City facilities.
4. Any eligible facilities for which the Developer receives fee credits shall still be eligible to
be financed by the CFO.
B. CFD and Special Tax Structure
I. One or more CFDs, with the option of Improvement Areas and/or "Tax Zones" within
each CFO, shall be established encompassing all or a portion of the Project.
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2. Assigned Special Tax rates for residential property shall be established at Developer's
discretion provided that the total property tax burden does not exceed 2% of the anticipated
home sales price calculated at the time of establishment of the CFO or Improvement Area.
3. Special tax rates for non-residential land uses, including multifamily rental units, shall be
as requested by Developer and may be exempt from the special tax if requested by
Developer.
4. The special tax rates on all classifications of taxable property may escalate by up to 2%
annually at the Developer's discretion. If the Developer decides to utilize an escalation,
then the debt service on the Bonds in that CFO or Improvement Area shall also escalate by
the same percentage as the special tax rates.
5. Special taxes shall be levied on "Developed Prope1ty" prior to Bonds being issued and such
funds shall be used to finance eligible facilities on a "pay as you go" basis.
6. Property owned by a public agency or property owner's association shall be exempt from
the special tax unless such tax-exempt status will jeopardize the security of any outstanding
bonds.
7. Each RMA shall allow for multiple classifications of property based on development status,
land use type, density, product type, unit size, etc. as requested by Developer.
8. If requested to do so by Developer, the City shall use its best efforts to carry out
proceedings to amend one or more RMAs to accommodate changes requested by
Developer provided that those changes conform to these CFO parameters.
CFD Bonds
1. One or more series of Bonds shall be issued for each CFO or Improvement Area at such
time as requested by Developer.
2. Bonds for each CFO or Improvement Area shall have a term of not less than 30 years and
not more than 35 years unless agreed otherwise by the City and Developer.
3. The amount of capitalized interest on each Bond issue shall be no less than the amount
needed to pay interest on the Bonds until the special taxes can be placed on the county tax
roll and no more than the amount permitted by law. Subject to the foregoing, the amount
of capitalized interest shall be as requested by the Developer.
4. If needed to accomplish the funding of the eligible facilities and or comply with tax law or
other requirements, the City will issue taxable Bonds, subordinate Bonds and/or escrow
Bonds at the request of the Developer.
7
l
J
ORDINANCE CERTIFICATION
STATE OF CALIFORNIA)
COUNTY OF RIVERSIDE )
CITY OF RANCHO MIRAGE)
I, Kristie Ramos, City Clerk of the City of Rancho Mirage, California, do
hereby certify under penalty of perjury, that the foregoing Ordinance No. 1166 was
introduced by first reading at a regular meeting of the City Council held on
December 5, 2019, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
Hobart, Kite, Townsend, Weill.
None.
None.
None.
Smotrich.
Ordinance No. 1166 was adopted at a regular meeting of the City
Council held on December 19, 2019, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
Hobart, Kite, Townsend, Weill.
None.
None.
None.
Smotrich.
I further certify that I have caused Ordinance No. 1166 to be posted
and/or published, as required by law (GC Sect. 36933).
~~·h~
Kristie Ramos
City Clerk