HomeMy Public PortalAboutOrd 1187ORDINANCE NO. 1187
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO MIRAGE,
CALIFORNIA, APPROVING THE AMENDED AND RESTATED STATUTORY
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF RANCHO MIRAGE,
AND BBB RANCHO MIRAGE RE, LLC REGARDING THE DEVELOPMENT OF A
FERRARI AUTOMOBILE DEALERSHIP ON CERTAIN REAL PROPERTY LOCATED
IN DISTRICT 5 - HIGHWAY 111 EAST SPECIFIC PLAN
WHEREAS, the City of Rancho Mirage is a charter city and a municipal corporation
of the State of California, and recognized as a political subdivision of the State of
California for certain purposes; and
WHEREAS, FM 111, LLC ("Original Developer") is owner in fee of eight (8)
contiguous separate lots with designated Assessor Parcel Number ("APN") 684-200-018,
APN 684-200-019, APN 684-231-001, APN 684-231-002, APN 684-231-004, APN 684-
231-005, APN 684-231-007 and APN 684-231-008 (collectively, "Original Parcels"),
which Original Parcels have been merged into a single parcel of real property with APN
684-231-009 ("Subject Property" or "Parcel"), as legally described in Exhibit "A" and
depicted in Exhibit "B"; and
WHEREAS, there exists as a matter of public record concerning the Subject
Property a Development Agreement between City and Original Developer, dated July 21,
2018, and recorded in the official records of the County of Riverside as document number
2018-0374997 (the "Original Development Agreement"); and
WHEREAS, Original Developer and BBB Rancho Mirage RE, LLC ("Developer"),
have entered into an Assignment and Assumption Agreement, whereby Original
Developer assigned and Developer assumed all obligations under the Original
Development Agreement and related entitlements, which City Council approved such
assignment on the same date as approving (first reading) this Ordinance; and
WHEREAS, the City and Developer desire that the attached Amended and
Restated Development Agreement ("Restated Development Agreement") amend and
restate in its entirety the Original Development Agreement as to the Subject Property,
such that this Restated Development Agreement will constitute the only agreement
affecting the development of the Subject Property; and
WHEREAS, Developer and Original Developer also have agreed that Developer
shall purchase the Subject Property, and Developer thereby contemplates: (i) its
acquisition of the Subject Property from the Original Developer, (ii) Original Developer's
assignment of all of Original Developer's rights and interests in the Original Development
Agreement to Developer; and (iii) its entering in modifications to the development plan of
the Subject Property and amending and restating the Original Development Agreement
in its entirety as set forth herein; and
WHEREAS, two (2) legal nonconforming structures, identified as Building A and
Building B, are located on the subject property; and
WHEREAS, Developer proposes that over a period of development, Developer will
develop the Subject Property into an enhanced Ferrari dealership for the purposes of
selling, leasing and servicing new and pre -owned Ferrari automobiles which will ultimately
consist of newly constructed (or substantially remodeled) buildings on the Subject
Property ("the Project" ); and
WHEREAS, the City will benefit from the expedited processing of the necessary
permits to complete and operate the Project in that it will produce sales tax revenue for
City's General Fund, redevelop an area containing non -conforming structures; and lend
prestige to City's marketing brand; and
WHEREAS, the Restated Development Agreement will eliminate uncertainty in
planning for and secure orderly development of the Subject Property (as specifically
described in the Restated Development Agreement), assure progressive installation of
necessary public and private infrastructure improvements, and ensure attainment of the
maximum effective utilization of resources within the City at the least economic cost to its
citizens; and
WHEREAS, to strengthen the public planning process, encourage private
participation in comprehensive planning and reduce the economic risk of development,
the Legislature of the State of California adopted 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, based on the foregoing recitals, the City has determined that the
Restated Development 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; and
WHEREAS, Chapter 17.56 of the City's Municipal Code provides that the City
Council must approve a Development Agreement and any amendment thereto by
ordinance; and
WHEREAS, on July 22, 2021, upon a duly noticed public hearing conducted by
the Planning Commission, the Planning Commission recommended that the City Council
introduce and adopt an Ordinance approving Development Agreement Amendment Case
No. DA21-0004; and
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WHEREAS, on September 2, 2021, upon a duly noticed public hearing conducted
by the City Council, the City Council approved introduction of Ordinance No. 1187,
approving Development Agreement Amendment Case No. DA21-0004.
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. APPROVAL OF AMENDED AND RESTATED
STATUATORY DEVELOPMENT AGREEMENT
That the City Council hereby approves the Amended and Restated Statutory
Development Agreement by and among the City of Rancho Mirage and BBB Rancho
Mirage Re, LLC, a copy of which is attached hereto and incorporated herein by this
reference as Exhibit A, subject to the terms and conditions stated therein.
SECTION 3. CEQA COMPLIANCE
That the City Council finds that the Project is categorically exempt pursuant to
CEQA Guidelines Section 15301 (Existing Facilities) in that the Project can involve the
demolition and removal of individual small structures and the minor modifications to other
existing structures consisting of the repair, maintenance, permitting, and minor alteration
of existing private structures, facilities, and mechanical equipment to meet current
standards of public health and safety, involving negligible or no expansion of uses beyond
those permitted at the time of this CEQA determination, in an area that is not
environmentally sensitive; Notwithstanding the foregoing, the City reserves the right, as
Lead Agency, to conduct additional environmental review and/or make alternative CEQA
findings and CEQA Compliance determinations if discretionary entitlement applications
are submitted, including but not limited to a Preliminary Development Plan.
SECTION 4. 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 5. 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 6. 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 7. EFFECTIVE DATE OF ORDINANCE
That this Ordinance shall take effect thirty (30) days after its second reading by the
City Council.
SECTION 8. 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 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 as soon as practicable after this Ordinance takes effect.
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.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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The foregoing Ordinance was approved and adopted at a meeting of the City
Council held on September lWh, 2021, by the following vote:
AYES: Hobart, Kite, Townsend, Weill.
NOES: None.
ABSENT: Smotrich.
ABSTAIN: None.
CITY OF RANCHO MIRAGE:
e eill, ayor
ATTEST:
Kristie Ramos, City Clerk
APPROVED AS TO FORM:
Steven B. Quintanilla, City Attorney
D&v) It I 'Tr<v;'n o, J)[ rV t y c i +-v A +fof vc>
EXHIBIT "A"
AMENDED AND RESTATED
STATUATORY DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF RANCHO MIRAGE
AND
BBB RANCHO MIRAGE RE, LLC
SEE ATTACHED]
j
ATTACHMENT NO. 8
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
APN: 684-231-009
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE)
Exempt from Recording Fees Pursuant to Government Code Section 27383 - Benefits City)
AMENDED AND RESTATED
STATUTORY DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF RANCHO MIRAGE
AND
BBB RANCHO MIRAGE RE, LLC
This Amended and Restated Statutory Development Agreement (this "Restated
Development Agreement") is entered into this day of , 2021, by and between
CITY OF RANCHO MIRAGE, a municipal corporation located in the County of Riverside, State
of California ("the City"), and BBB Rancho Mirage RE, LLC, a California limited liability
company ("Developer"), collectively referred to as the "Parties" and individually as a "Party,"
pursuant to the authority of Sections 65864 et seq. ofthe California Government Code and Chapter
17.56 of the Rancho Mirage Municipal Code.
RECITALS:
WHEREAS, the City is a charter city and a municipal corporation of the State of
California; and
WHEREAS, FM 111, LLC ("Original Developer") is owner in fee of eight (8) contiguous
separate parcels with designated Assessor Parcel Number ("APN") 684-200-018, APN 684-200-
019, APN 684-23 I -001, APN 684-231-002, APN 684-231-004, APN 684-231-005, APN 684-231-
007 and APN 684-231-008 (collectively, "Original Parcels"), which Original Parcels have been
1IPage
merged into a single parcel of real property with APN 684-231-009 ("Subject Property" or
Parcel"), as legally described in Exhibit "A" and depicted in Exhibit "B"; and
WHEREAS, there exists as a matter of public record concerning the Subject Property a
Development Agreement between City and Original Developer, dated July 21, 2018, and recorded
in the official records of the County of Riverside as document number 2018-0374997 (the
Original Development Agreement"); and
WHEREAS, the City and Developer desire that this Restated Development Agreement
amend and restate in its entirety the Original Development Agreement as to the Subject Property,
such that this Restated Development Agreement will constitute the only agreement affecting the
development of the Subject Property; and
WHEREAS, pursuant to the Original Development Agreement, Original Developer
merged what was then four (4) parcels into a single parcel, which now comprises the "Subject
Property"; and
WHEREAS, Original Developer, as lessor, entered into that certain Standard
Industrial/Commercial Single -Tenant Lease — Net (together with all amendments and
modifications thereto, collectively the "Lease"), dated as of January 8, 2021, with an affiliate of
Developer, BBB Rancho Mirage, LLC, a California limited liability company ("Lessee"), as
lessee; and
WHEREAS, Lessee has exercised its option to purchase the Subject Property under the
Lease in favor of the Developer, and pursuant thereto, Developer contemplates: (i) its acquisition
of the Subject Property from the Original Developer, (ii) Original Developer's assignment of all
of Original Developer's rights and interests in the Original Development Agreement to Developer;
and (iii) its entering in modifications to the development plan of the Subject Property and
amending and restating the Original Development Agreement in its entirety as set forth herein;
and
WHEREAS, the Parties acknowledge there are two (2) legal nonconforming structures,
identified as Building A and Building B, located on the Subject Property, as depicted in Exhibit
C"; and
WHEREAS, Developer proposes that over a period of development, Developer will
develop the Subject Property into an enhanced Ferrari dealership for the purposes of selling,
leasing and servicing new and pre -owned Ferrari automobiles which will ultimately consist of
newly constructed (or substantially remodeled) buildings on the Subject Property ("the Project");
and
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WHEREAS, City will benefit from the expedited processing of the necessary permits to
complete and operate the Project in that it will produce sales tax revenue for City's General Fund;
redevelop an area containing non -conforming structures; and lend prestige to the City's brand; and
WHEREAS, this Restated Development Agreement will eliminate uncertainty in planning
for and secure orderly development of the Subject Property (as specifically described below),
assure progressive installation of necessary public and private infrastructure improvements, and
ensure attainment of the maximum effective utilization of resources within the City at the least
economic cost to its citizens; and
WHEREAS, to strengthen the public planning process, encourage private participation in
comprehensive planning and reduce the economic risk of development, the Legislature of the State
of California adopted 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 Section 17.56.010 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 on a date certain, regardless of any changes to the City policies, rules, and regulations
after project approval in exchange for assurances that the City will receive certain payment of fees,
the installation of certain infrastructure, and other benefits the City cannot otherwise unilaterally
impose as conditions of approval of the project outside the context of a negotiated development
agreement; and
WHEREAS, based on the foregoing recitals, the City has determined that this Restated
Development Agreement is appropriate under the Development Agreement Statute and Chapter
17.56 of the Rancho Mirage Municipal Code; and
WHEREAS, this Restated Development Agreement is voluntarily entered into in
consideration of the benefits to and the rights created in favor of each of the Parties hereto, in
reliance upon the various representations and warranties contained herein and is intended to
amend, restate and supersede in its entirety the Original Development Agreement.
NOW, THEREFORE, pursuant to the authority provided to the City, as set forth in the
Development Agreement Statute and Chapter 17.56 of the Rancho Mirage Municipal Code and in
consideration of the mutual covenants and promises of the Parties contained herein, the Parties
agree as follows:
AGREEMENT:
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Section 1. Incorporation of Recitals.
The foregoing Recitals are true and correct and are incorporated into this Restated
Development Agreement by this reference as though fully set forth herein.
Section 2. Effective Date.
This Restated Development Agreement shall become effective upon the effective date
Effective Date") of the ordinance enacting this Restated Development Agreement ("Enacting
Ordinance"); provided, however, that if a Citywide referendum election is called and the Enacting
Ordinance is repealed, this Restated Development Agreement shall be null and void as of the date
ofthe final declaration by City Council of the repeal of the Enacting Ordinance.
Section 3. Subiect Property.
The "Subject Property" consists of one (1) legal parcel identified as Assessor Parcel
Number 684-231-009 located in District 5 - Highway I I I East Specific Plan, as legally described
in Exhibit "A" and depicted in Exhibit "B".
Section 4. Project.
The "Project" includes altering and renovating Building A so that it will be utilized as a
Ferrari Service Facility, in conjunction with the recently renovated Building B that is being utilized
as a Ferrari Showroom, within a prescribed time frame as set forth in this Restated Development
Agreement.
Section 5. Purpose
The purpose of this Restated Development Agreement is to ensure that City will use its
best efforts to process and approve in a reasonably timely manner certain development,
construction, demolition, use and other necessary entitlements to permit Developer to develop the
Subject Property located at the southwest corner of Indian Trail and Highway 111 in Rancho
Mirage, California, for the primary purpose of operating of a Ferrari automobile dealership that
will consist of newly constructed or remodeled buildings that Developer has deemed are necessary
to display, lease, sell and service new and pre -owned Ferrari automobiles and ancillary purposes
such as display and sale of associated parts, accessories and merchandise, subject to the terms and
conditions set forth herein and consistent with all applicable, federal, state, and local laws, rules,
and regulations, which City has determined will be beneficial to City in that the dealership will
produce sales tax revenue for City's General Fund, redevelop an area consisting of nonconforming
structures and nonconforming sites, and lend prestige to City's brand.
Section 6. Project Development.
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The Project shall be developed as follows:
a) Initial Work
i) Developer may submit to the City's Planning Division, on or after the
Effective Date, a complete application for a minor modification permit for the purpose of
making the necessary renovations to Building A so that Building A may be used as a
Ferrari Service Facility, which the City shall process in an expedient manner.
ii) Developer has submitted to the City's Planning Division, a complete
application for a minor modification permit and made the necessary alterations and
renovations to Building B so that Building B may be used as a Ferrari Showroom, which
the City processed in an expedient manner.
b) Further Development of Subject Property
i) Developer shall submit to the City's Planning Division, the requisite land
use development entitlement applications to develop the Subject Property, which shall
include: (1) demolishing, remodeling or refurbishing of the on -site buildings identified
respectively as Building A, Building B, Building C and Building D; and (2) upgrading,
enhancing or expanding the existing Ferrari Showroom and Ferrari Service Facility on the
Subject Property, based on the economic viability of the Project, that will also include the
construction ofcertain permanent improvements facing Highway 111.
ii) Any and all newly built structures, described or referenced herein, shall be
designed and constructed consistent with all applicable Ferrari facilities requirements and
design specifications, the terms and provisions of this Restated Development Agreement,
the Rancho Mirage Municipal Code and all other applicable laws, regulations and policies
in place at the time the respective land use development entitlement application is
submitted to the City and deemed complete.
Section 7. Extension of Time.
Notwithstanding anything to the contrary, as may be set forth in this Restated Development
Agreement, the City Manager or designee shall be authorized to grant time extensions related to
any component of the Project development described herein, without the need of formally
amending or modifying this Restated Development Agreement.
Section 9. Ferrari Dealership.
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As provided in Section 14 below, Developer understands, covenants and agrees that
Developer shall continuously devote the Subject Property for its principal purpose of operating a
Ferrari dealership for the display, lease, and sale of new and pre -owned Ferrari automobiles, with
ancillary service facilities, in and around the single -story Ferrari showroom and upgraded service
faci 1 ity.
Section 10. Comparable Luxury Automobile Dealership.
A luxury automobile dealership comparable to Ferrari may be operated on the Subject
Property in addition to or in lieu of a Ferrari Dealership as a manufacturer -approved new
automobile dealership ("Comparable Dealership"), upon Developer obtaining the City's prior
written consent for such operation or assignment of this Restated Development Agreement, with
such consent for operation or assignment not to be unreasonably withheld.
Section 11. Non -Operation.
Except with the prior written consent of the City, which consent may be granted or withheld
in City's reasonable discretion, the failure of Developer to operate the Ferrari Dealership or
Comparable Dealership on the Subject Property as provided in Section 14 below for ninety (90)
or more days during any given calendar year or ninety (90) or more consecutive calendar days
shall, at City's option, constitute an Event of Default (as defined in Section 44 below) hereunder.
Developer, however, shall for purposes of this section be deemed to be operating the Ferrari
Dealership or Comparable Dealership during any period that Developer is prevented from
operating such Dealership due to required or necessary rehabilitation of the Dealership's
showrooms or service facilities on the Subject Property, which the Developer shall in good faith
be working on to complete.
Section 12. Point of Sale.
Developer shall conduct all automobile sales and lease activities for the Ferrari Dealership
or Comparable Dealership either from the Subject Property or from an office or other facility
located within the City. Developer shall exercise commercially reasonable efforts to operate the
Ferrari Dealership or Comparable Dealership in such a manner as to produce the maximum amount
of Sales and Use Tax Revenues (as defined below) to be received by City. The City acknowledges,
however, that certain customer preferences beyond the control of the Developer, such as the
customer's desire to have automobiles garaged in and/or shipped to other cities, counties or states,
may result in transactions that do not produce Sales and Use Tax Revenues for the City.
For purposes of this Section, "Sales and Use Tax Revenues" shall mean that portion of
taxes derived and received by the City from the imposition of the Bradley Burns Uniform Local
Sales and Use Tax Law, California Revenue and Taxation Code Section 7200, et seq., as amended,
or any successor statute, law or regulation arising from transactions having the Subject Property
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or other location within the City as a point of sale for the purposes of such law. Sales and Use Tax
Revenue shall include those taxes attributable to the sale or Iease of automobiles originating at the
Subject Property or other location within the City.
Section 13. Temporary Use.
Developer shall have the limited right to temporarily use the Subject Property as a Ferrari
Dealership, per the terms and conditions set forth in this Restated Development Agreement,
provided that Developer is in compliance with the designated milestones and development set forth
herein.
Section 14. Operation and Maintenance.
Developer covenants and agrees, directly or through an affiliate, tenant, or successor, to
devote, use, operate and maintain the (1) Subject Property and (2) the Ferrari Dealership or
Comparable Dealership (for as long as the Ferrari Dealership or Comparable Dealership is
commercially feasible in the Coachella Valley and remains authorized by the manufacturer), in
accordance with this Restated Development Agreement, the Rancho Mirage Municipal Code and
all other applicable laws, regulations and policies. In addition, the Ferrari Dealership or
Comparable Dealership showrooms and service facilities shall be maintained consistent with the
customary practices generally applicable to comparable luxury automobile dealerships located in
Southern California.
Section 15. Performance of Maintenance.
a) Developer shall maintain in accordance with the Maintenance Standards, as
hereinafter defined, the private and public improvements and landscaping to the curbline(s) on or
abutting the Subject Property, which shall include the parkways along Highway 111, Indian Trail
Road and Sahara Road. Said improvements shall include, but not be limited to, buildings,
sidewalks, pedestrian lighting, landscaping, landscape irrigation, architectural elements, and
signage.
b) The following "Maintenance Standards" shall be complied with by Developer and
its maintenance staff, contractors or subcontractors, to the extent applicable to the improvements
located on the Subject Property:
1. Landscape maintenance shall include, but not be limited to:
watering, irrigating, fertilizing, controlling pest, mowing, edging, trimming grasses, pruning and
shaping shrubs and trees and staking young trees. The purpose of landscape maintenance is to
ensure that all the plants and planted areas on the Subject Property remain healthy and attractive,
and do not create any unsafe road conditions, hinder ingress and egress, or impeded motorists and
pedestrian visibility.
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2. Clean-up maintenance shall include, but not be limited to:
maintaining, cleaning, repairing, and clearing all sidewalks, paths, parking lots, driveways and
other paved areas on the Subject Property for aesthetic and safety purposes. All such areas shall
be cleared of all weeds and other intrusive plants, dirt, mud, trash, litter, debris or other matter,
which is unsafe or unsightly.
3. All maintenance work shall be performed pursuant to all applicable
federal and state occupational health and safety laws and regulations.
4. Any and all chemicals, unhealthful substances and pesticides used
for maintenance activities shall be applied in strict accordance with all applicable laws, regulations
and specifications.
Section 16. Failure to Maintain.
Notwithstanding the City's code compliance regulations, procedures and remedies, the
Parties agree that in the event Developer fails to maintain the private and public improvements on
the Subject Property to the curbline(s) in the manner set forth in this Restated Development
Agreement and all applicable maintenance regulations, the City shall have the right to maintain
such private and/or public improvements, or to contract for the abatement of such deficiencies, at
Developer's cost. Prior to the City assuming maintenance obligations of the Developer, the City
shall provide written notice to Developer that: (a) the Subject Property is not being maintained in
compliance with this Restated Development Agreement and/or any applicable maintenance
regulations; and (b) specifies the deficiencies and the actions required to be taken by Developer to
cure the deficiencies. Developer shall have thirty (30) days from receipt of said notice to correct,
remedy or cure the specified deficiencies. Notwithstanding the above, if the problem is determined
by the City to present a threat to public health and safety, the Developer shall have forty-eight (48)
hours to rectify the problem.
If Developer fails to reimburse the City for costs incurred by the City related to the City's
assumption ofmaintenance of the Subject Property within 30 days of receipt of the City's invoice,
the City shall have the right to record a lien or special assessment against the Subject Property
until the City is fully reimbursed the amount identified in the lien or special assessment. Developer
shall be liable for all attorneys' fees, and other legal costs or fees incurred in collecting said
maintenance costs.
Developer acknowledges and agrees that the City may also pursue any and all other
remedies available in law or equity.
Section 17. Sewer Connection.
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No later than sixty (60) calendar days after the City approves the Certificate of Occupancy
for any new construction related to the Project or Subject Property performed after the date hereof,
Developer shall abandon any private sewage disposal systems connected to Buildings A and B and
connect both Buildings A and B (as substantially remodeled or their replacement structures) to the
public sanitary sewer system.
Section 18. Sahara Road Restrictions.
Due to the close proximity of the Project and Subject Property to quiet non -gated
residential neighborhoods, and the impacts the Project is anticipated to have on said residential
neighborhoods with respect to construction staging, construction activities, loading and unloading
automobiles, automobile display, test driving, and employee and customer parking, Developer
understands, covenants and agrees that Sahara Road shall not be used for any business related
activities, including but not limited to construction staging, construction activities, loading and
unloading automobiles, automobile display, test driving, and employee and customer parking.
For safety purposes, Developer covenants and agrees that any and all loading and
unloading of vehicles, construction staging and related activities, deliveries, employee and public
parking shall occur only on the Subject Property and at no time shall any public road(s), including
without limitation Sahara Road, be used for such purposes, and that vehicle test driving shall not
occur on the following roads: Mirage Road, Sahara Road or Magnesia Falls Drive. Developer
shall be solely responsible for compliance with the same, whether any such activity is performed
by a third party, such as but not limited to any employee, agent, affiliate, service provider, delivery
driver or independent contractor. In the event Developer, or any approved assignees or
successor(s)-in-interest, violate this provision, Developer shall pay to City an amount not to exceed
One Thousand Dollars and Zero Cents ($1,000.00) for each violation of this provision. Such
amount shall annually increase by the same percentage as the increase in the Consumer Price Index
published by the United States Department of Labor for the Riverside -San Bernardino -Ontario
Area, designated as "All Urban Consumers (Current Series), All Items, December 2017=100, or
other index which replaces said index for Riverside County. The Parties hereto acknowledge and
agree that if Developer breaches its obligation as specified in herein, such breach would result in
damages to the City in an amount not readily ascertainable by the Parties, and being that it is
impracticable and difficult to fix the amount of such damages, the Parties hereby agree that such
damage would be approximately equal to amounts incurred by City and that Developer shall pay
this amount as liquidated damages for each and every such breach, and that such amount is
reasonable and not a penalty. The covenants and obligations herein shall survive in perpetuity.
Section 19. Term.
The Parties agree that the term of this Restated Development Agreement shall expire when
the Subject Property is no longer being used as a Ferrari Dealership or a Comparable Dealership
if permitted by the City under Section 10 of this Agreement), subject to any extension and early
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termination provisions described in this Restated Development Agreement. Notwithstanding the
expiration or termination of this Restated Development Agreement, Section 18, including, but not
limited to, the financial obligations associated with any violation of such restrictions; the
maintenance provisions set forth in Sections 14-I6 of this Restated Development Agreement; and
any other obligations which expressly continue in perpetuity, shall continue into perpetuity
Perpetual Term"); and any provisions which by their nature continue beyond expiration or
termination of this Restated Development Agreement shall remain in effect, until such time as the
City Manager or designee determines in his or her reasonable discretion that it is in the best interest
of the City to modify any such restrictions. Any such determination made by the City Manager or
designee shall be permissible without the need to formally amend or modify the terms of this
Restated Development Agreement.
Section 20. Termination.
a) With the exception of the Perpetual Term and except as otherwise provided below,
this Restated Development Agreement shall be terminated and of no further effect upon the
occurrence of any of the following events:
i) Expiration of the Restated Development Agreement in accordance with
Section 19 of this Restated Development Agreement;
ii) Completion of the Project in accordance with the PDP, and all other related
permits and entitlements granted by the City, whether ministerial or discretionary
collectively, "Project Entitlements") and City's issuance of all required occupancy permits
and acceptance of all dedications and improvements required under the Project
Entitlements and this Restated Development Agreement;
iii) Entry of final judgment or issuance of a final order directing City to set
aside, withdraw or abrogate City's approval of this Restated Development Agreement or
any material part of the Project Entitlements, which final judgement of order shall also
terminate the Perpetual Term;
iv) The effective date of a party's election to terminate the Restated
Development Agreement in response to an uncured default by the other party, pursuant to
the terms of this Restated Development Agreement; or
v) City not approving the PDP within one (1) year after the PDP has been
submitted to the City and deemed complete for processing.
b) In the event of a termination of this Restated Development Agreement with respect
to any portion of the Project, any then -existing rights and obligations of the Parties with respect to
such portion of the Subject Property or Project shall automatically terminate and be of no further
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force, effect or operation. No termination of this Restated Development Agreement with respect
to any portion of the Subject Property or Project shall affect in any way the Parties' rights and
obligations hereunder with respect to any other portion of the Subject Property or Project. In no
event shall the expiration or termination of this Restated Development Agreement result in any
expiration or termination, without further action of City, of any entitlement approval then in
existence.
c) In the event the Project is not completed, termination of this Restated Development
Agreement shall automatically terminate the Project Entitlements granted by City without further
City action as to the uncompleted portions of the Project.
Section 21. Cooperation by Developer.
Developer shall, in a timely manner, provide the City with all documents, applications,
plans and other information necessary for City to carry out its obligations under this Restated
Development Agreement and cause its planners, engineers and other consultants to do the same.
Developer also shall apply in a timely manner for such other permits and approvals from other
governmental or quasi -governmental agencies having jurisdiction over the Subject Property and/or
Project as may be required for the development of or provision of services to the Subject Property
and/or Project, as contemplated by this Restated Development Agreement.
Section 22. Processing Fees.
Notwithstanding anything to the contrary as may be set forth herein, Developer shall pay
all applicable filing and processing fees pursuant to Section 17.36.050 "Fees" 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 23. Additional Cost Reimbursement.
In addition to the payment of the requisite processing fees, Developer shall reimburse the
City for the actual costs and expenses incurred by the City for all services provided by the City
and its consultants, including legal counsel, for review, preparation and processing of this Restated
Development Agreement, which are not factored in the City's approved development processing
fees. Furthermore, to the extent that the City, 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 Subject Property and/or the Project as described in
this Restated Development Agreement, Developer shall reimburse the 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 the City pursuant to any such
agreements described herein shall be borne by Developer except where Developer has notified
111Page
City in writing, prior to City entering into any such agreement, that it does not desire for City to
execute said agreement.
Section 24. Applicable Rules, Rey-ulations and Politics.
a) Except as otherwise expressly provided in this Restated Development Agreement,
Developer shall develop the Project and Subject Property pursuant to the rules, regulations, and
policies governing the use, density, intensity, design, improvement, construction, and building and
occupancy standards, in effect at the time the respective land use entitlement application is
submitted to the Planning Division and deemed complete. (collectively, "Applicable Law"). In
light of the foregoing, the City shall apply the Applicable Law when considering any actions or
decisions pertaining to both discretionary and ministerial permits related to the Project and Subject
Property.
b) In accordance with Government Code Section 65866, nothing herein shall be
construed to limit the City's authority to apply new rules, regulations and policies to the Project
and Subject Property which do not conflict with the Applicable Law, nor to limit the 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 City's residents.
c) Notwithstanding anything to the contrary contained in this Restated Development
Agreement, the City may apply to the Project and Subject Property, at any time during the term of
this Restated Development Agreement, the most current provisions of the California Building
Standards Code, California Building Code, California Fire Code, and other uniform construction
codes, provided that any such uniform code shall apply to the Project and Subject Property only to
the extent that such code has been adopted by the City, and is in effect on a City-wide basis at the
time the respective land use entitlement application is submitted to the Planning Division and
deemed complete.
d) As provided in California Government Code Section 65869.5, this Restated
Development Agreement shall not preclude the application to the Project or Subject Property 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 Restated Development Agreement, such provisions of this Restated Development
Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary
to comply with the Changes in the Law, and the City and Developer shall take such action as may
be required pursuant to this Restated Development Agreement.
Section 25. Minor Revisions.
121Pa-e
Minor revisions to the entitlements related to the Project or Subject Property shall not
require an amendment to this Restated Development Agreement, provided that the City Manager
or designee finds and determines that the proposed change or modification is consistent with the
development standards and guidelines set forth in this Restated Development Agreement and
Applicable Laws.
Section 26. Existing Exactions.
Nothing set forth in this Restated Development Agreement shall constitute a waiver of
Developer's obligation to pay or be subject to any other existing fees, exactions, in -lieu fees or
payments, dedication or reservation requirements, obligations for on -site or off -site improvements,
construction requirements for public improvements, facilities, or services required of the Project
or Subject Property under the Applicable Law, whether such requirements constitute subdivision
improvements, mitigation, or impositions made under any applicable ordinance or other applicable
regulation.
Section 27. Community Facilities District No. 1.
Developer acknowledges the existence of Community Facilities District No. I ("CFD No.
1") 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 or Subject Property 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. II. If the Project or Subject Property are not currently subject to
the assessments of CFD No. 1, Developer voluntarily consents to take whatever affirmative action
it needs to take on its part to ensure that the Project and Subject Property are subject to the
assessments ofthe CFD No. 1, which includes without limitation, voting to approve the annexation
of the Project and Subject Property to said CFD No. 1.
Section 28. Nexus/Reasonable Relationship Challenzes.
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 Restated Development
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 Restated Development
Agreement) or reduce the development rights provided by this Restated Development Agreement.
Section 29. Covenants Running with the Land and Constructive Notice.
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a) All of the terms, provisions, and obligations contained in this Restated
Development 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 Subject Property, or
any interest therein, whether by operation of law or in any manner whatsoever, and the rights
thereof shall inure to the benefit of the City and its successors and assigns. As such, all of the
provisions of this Restated Development 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 Subject
Property shall be deemed to have consented and agreed to every provision contained in this
Restated Development Agreement, whether or not any reference to this Restated Development
Agreement is contained in the instrument by which such person acquired an interest in the Project
or Subject Property.
b) Notwithstanding anything set forth in this Restated Development Agreement to the
contrary:
i) During the term hereof, the Project and Subject Property shall be subject to this
Restated Development Agreement, and any development of any portion of the Project or
the Subject Property shall be subject to and in accordance with the terms of this Restated
Development Agreement.
ii) Developer is not obligated by the terms of this Restated Development
Agreement to affirmatively act to develop all or any portion of the Project or Subject
Property, pay any sums of money (with the exception of any assessment district or other
public finance district formed to include the Project or Subject Property), dedicate any land,
indemnify any party, or to otherwise meet or perform any obligation with respect to the
Project or Subject Property, except and only as a condition to the development of any
portion of the Project or Subject Property.
Section 30. Civil Code Section 1542 Waiver.
Developer hereby waives any and all rights Developer or its successors and assigns may
have under Article X111C 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 the City under this Restated
Development Agreement as follows:
In furtherance of the intentions of the Parties to this Restated Development Agreement,
Developer with and under advice ofcounsel, hereby expressly waives any and all right and
benefit conferred upon Developer by the provisions of Civil Code Section 1542, which
provides as follows:
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A general release does not extend to claims which a creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor."
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 of or relating to the
waiver of rights contained in this Restated Development Agreement.
Initials:
Developer
Section 31. Periodic Review.
The City shall conduct a rcview of this Restated Development Agreement as set forth as
follows:
a) Annual Review. The City will review the extent of good faith compliance by
Developer with the terms of this Restated Development Agreement annually commencing on the
first anniversary of the Effective Date of this Restated Development Agreement.
b) Notice. The 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 Restated Development Agreement.
d) Production of Documents and Other Evidence. Developer agrees to furnish
such reasonable evidence and adequate documentation of good faith compliance as the City, in the
exercise of its reasonable discretion, may require.
e) Cost of Annual Review. The costs incurred by the City in connection with the
annual review shall be borne by Developer,
f) Failure to Conduct Review. The City's failure to conduct an annual review of
this Restated Development Agreement shall not constitute a breach of this Restated Development
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Agreement.
g) Certificate of Compliance. If, at the conclusion of a periodic or special review,
Developer is found to be in compliance with this Restated Development Agreement, the 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 the
City that: (i) this Restated Development Agreement remains in effect and (ii) Developer is not in
default. The 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 the City, regardless of
whether or not the Certificate is relied upon by assignees or other transferees or Developer.
Section 32. Relationship of Parties.
It is specifically understood and agreed by and among 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. The City and Developer also hereby renounce the existence of any form ofjoint venture
or partnership among them, and agree that nothing contained herein or in any document executed
in connection herewith shall be construed as making the City and Developer joint venturers or
partners.
Section 33. No Third Party Beneficiaries.
The only Parties to this Restated Development Agreement are Developer and the City.
There are no third party beneficiaries and this Restated Development Agreement is not intended,
and shall not be construed, to benefit, or be enforceable by any other person whatsoever.
Section 34. Assignment of Rights.
Developer shall have the right to assign its rights and obligations under this Restated
Development Agreement, by giving prior written notice to the City, to any entity in which
Developer, or its principal shareholders, retain a majority ownership interest so long as such
assignee expressly assumes the obligations of Developer hereunder. Otherwise, Developer may
not assign all or any portion of its rights hereunder nor delegate all or any portion of its duties and
obligations hereunder without the prior written consent of the City, which consent shall not be
unreasonably withheld.
Section 35. Severability.
If any term, provision, covenant or condition of this Restated Development 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
Restated Development Agreement shall continue in full force and effect, unless enforcement of
1b1Pa-c
this Restated Development Agreement as so invalidated would be unreasonable or grossly
inequitable under all the circumstances or would frustrate the purposes of this Restated
Development Agreement.
Section 36. Singular and Plural; Gender; and Person.
Except where the context requires otherwise, the singular of any word shall include the
plural and vice versa; and 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 37. Time Is of the Essence.
Time is of the essence of this Restated Development Agreement and of each and every
term and condition hereof.
Section 38. 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 Restated Development Agreement. Failure by a party to insist upon
the strict performance of any of the provisions of this Restated Development 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.
Section 39. Amendments.
This Restated Development Agreement may be amended from time to time by mutual
consent of the original Parties or their successors in interest, with the 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 to the Project Entitlements and this Restated
Development Agreement, as described above, shall not require an amendment to this Restated
Development Agreement.
Section 40. Ambiguities or Uncertainties.
The Parties hereto have mutually negotiated the terms and conditions of this Restated
Development Agreement and each party received independent legal advice from its attorneys with
I71Page
respect to the advisability of executing this Restated Development Agreement and the meaning of
the provisions contained herein. As such, this Restated Development 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 Restated Development Agreement. Therefore, any
ambiguities or uncertainties are not to be construed against or in favor of either party.
Section 41. Hold Harmless.
Developer hereby agrees to, and shall defend, indemnify and hold harmless the City, and
the 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 Restated Development Agreement.
Section 42. Indemnification.
Developer shall defend, indemnify and hold harmless the City, city council, commissions,
boards, subcommittees and the City's elected and appointed officials, commissioners, board
members, officers, agents, consultants and employees ("City Parties") 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
among the City and Developer; (ii) this Restated Development Agreement and the concurrent and
subsequent permits, licenses and entitlements approved by City; (iii) any environmental
determination made by the City in connection with the Subject Property, the Project or this
Restated Development Agreement; and (iv) any proceedings or other actions undertaken by the
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, the City, at its sole
option, may tender the complete defense of any third party challenge as described herein. In the
event the City elects to contract with special counsel to provide for such a defense, the 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 the City.
Section 43. Delays in Performance.
In addition to any other provisions of this Restated Development Agreement with respect
to delay, Developer and the City shall be excused for performance of their obligations hereunder
f81Page
during any period of delay caused by acts of God or civil commotion, major acts of terrorism
occurring in the United States of America, 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 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 State or United States Constitution, laws ofthe United States of America and 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 44. Events of Default.
A default under this Restated Development 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 Restated
Development Agreement to the City or by the City to Developer is false or proves to have been
false in any material respect when it was made, or (ii) a finding by the City made following a
periodic review of the Restated Development Agreement under the procedure provided for in this
Restated Development Agreement, based on substantial evidence, that Developer has not complied
in good faith with one or more of the terms or conditions of this Restated Development Agreement,
or (iii) Developer's failure to perform any of its material obligations under this Restated
Development Agreement ("Event of Default"). Upon the occurrence of an Event of Default by
Developer or the City, the non -defaulting party shall provide the other party thirty (30) calendar
days written notice specifying the nature ofthe 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 this Restated Development
Agreement, the failure or unreasonable delay by either party to perform any material term or
provision of this Restated Development 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
Restated Development 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 Restated Development
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
Restated Development Agreement, institution oflegal proceedings with respect thereto, or whether
any further building permits shall be issued with respect to the Project or Subject Property.
Section 45. General Default Remedies.
191Page
Subject to the No Damages Relief section of this Restated Development 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 limited to, the right to terminate this Restated Development 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
Restated Development 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 Restated Development Agreement
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 46. No Building Permit upon Developer Default.
No building permit shall be issued or building permit application accepted for any structure
or improvement on the Subject Property after Developer is determined by a court of competent
jurisdiction to be in default of any of the material terms and conditions of this Restated
Development Agreement, until such default thereafter is cured by Developer or is waived by the
City in its reasonable discretion. If the City lawfully terminates this Restated Development
Agreement because of Developer's default, then the 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 Restated Development Agreement.
Section 47 Applicable Law.
This Restated Development Agreement shall be construed and enforced in accordance with
the Iaws of the State of California.
Section 48. Venue.
In the event that suit is brought by either party to this Restated Development 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, Central District of
California, Riverside, California.
Section 49. No Damap-es Relief.
Notwithstanding anything else in this Restated Development Agreement to the contrary,
the Parties acknowledge that neither would have entered into this Restated Development
201Page
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
Restated Development Agreement or applicable law) against the other for breach of this Restated
Development Agreement.
Section 50. 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 Restated Development 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.
Section 51. Notices.
Any notice or communication required hereunder among the 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 I I I
Rancho Mirage, CA 92270
Attention: City Manager
To Developer:
BBB Rancho Mirage RE, LLC
3120 Airway Ave
Costa Mesa, CA 92263
With a copy to:
Scali Rasmussen, PC
800 Wilshire Boulevard
Suite 400
21111a-c
Los Angeles, CA 90017
Attention: Halbert Rasmussen
Section 52. Termination of Original Development Agreement; Entire Agreement.
City and Developer agree that this Restated Development Agreement amends, restates,
substitutes for and supersedes the Original Development Agreement in its entirety as to the Subject
Property, such that this Restated Development Agreement will constitute the only development
agreement affecting the Subject Property. This Restated Development 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 Restated Development
Agreement and the exhibits attached hereto, any prior correspondence, memoranda, warranties,
representations and agreements unless otherwise provided in this Restated Development
Agreement are superseded in total by this Restated Development Agreement and the exhibits
attached hereto.
Section 53. Recordation.
In order to comply with Section 65868.5 of the Development Agreement Statute, the
Parties do hereby consent that the City Clerk shall cause a copy of this Restated Development
Agreement to be recorded with the Riverside County Recorder's Office as soon as practicable after
the Enacting Ordinance takes effect.
Section 54. Counterparts.
This Restated Development 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 instrument.
Section 55. Consistency of Entitlements with Restated Development Agrcement.
The Parties hereto acknowledge that it is their intention that all terms, conditions and
obligations of any and all entitlements related to the Project and Subject Property, or arising from
this Restated Development Agreement shall be consistent with, or at minimum, shall not conflict
with, the terms, provisions and obligations of this Restated Development Agreement.
Section 56. Authority to Execute Restated Development Agreement.
The person or persons executing this Restated Development Agreement on behalf of
Developer and the City warrant and represent that they have the authority to execute this Restated
Development Agreement and the authority to bind Developer and the City, as applicable, to the
performance of their respective obligations hereunder.
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Section 57. Covenant of Good Faith and Fair Dealing.
No party shall do anything which shall have the effect of injuring the right ofanother party
to receive the benefits of this Restated Development Agreement or do anything which would
render its performance under this Restated Development Agreement impossible. Each party shall
perform all acts contemplated by this Restated Development Agreement to accomplish the
objectives and purposes of this Restated Development Agreement.
Section 58. Partial Invalidity Due to Governmental Action.
In the event state or federal laws or regulations enacted after the Effective Date of this
Restated Development Agreement, or formal action ofany governmental entity other than the City,
prevent compliance with one or more provisions of this Restated Development Agreement, or
require changes in plans, maps or permits approved by the City, the Parties agree that the
provisions of this Restated Development Agreement shall be modified, extended or suspended
only to the minimum extent necessary to comply with such laws or regulations.
Section 59. 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 Restated Development 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 Restated Development Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Restated Development
Agreement to be executed as of the dates written above.
CITY OF RANCHO MIRAGE DEVELOPER
APPROVED: APPROVED:
By: BBB Rancho Mirage RE, LLC
Ted Weill, Mayor
By:
ATTEST:
Name/Title
By:
Kristie Ramos, City Clerk By:
APPROVED AS TO FORM: NamelTitle
Signatures must be notarized.
By:
Steven B. Quintanilla City Attorney APPROVED AS TO FORM:
231
By:
regal Counsel
24
EXHIBIT "A"
SUBJECT PROPERTY LEGAL DESCRIPTION
IN THE CITY OF RANCHO MIRAGE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
PARCEL A OF PARCEL MERGER NO. 18-01 AS DESCRIBED IN INSTRUMENT RECORDED
APRIL 19, 2018 AS INSTRUMENT NO. 2018-0150924 TOGETHER WITH PARCEL A OF
PARCEL MERGER NO. 18-02 AS DESCRIBED IN INSTRUMENT RECORDED APRIL 19, 2018
AS INSTRUMENT NO. 2018-0150925, ALL OF RIVERSIDE COUNTY RECORDS, LOCATED IN
THE SOUTH HALF OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 5 EAST, SAN
BERNARDINO BASE AND MERIDIAN.
THE ABOVE DESCRIBED LAND TO BE HELD TOGETHER AS ONE LEGAL PARCEL.
EXHIBIT `B"
SUBJECT PROPERTY PICTORIAL
PARCEL MERGER NO. 18--05
A PORTION OF THE S 1/2 OF SEC. 12, T.5S., R.SE., S.B.M.
PARCEL. A E
END
180,858 SQ. FT. ` c LOT LINE
LOT LINE ________
LOT LINE TO BE MERGED
4.152 AC, CIA- BOUNDARY OF PARCEL A OF PM0
W
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srgr
m' w eJ rr SAN JACINTO
DRIVE
3.7
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0' iDD' 200'
SCALE 1 '-100'
fRANK SINAIRA DRIVE
CITY OF
RANCHO MIRAGE
o SITE
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C
2
MSA CONSULTING, INC,
PLANNING + Cwm ENGINEERINGIDI.AmD SUItvivn G
J.N. 2442 SHEET I OF 2
EXHIBIT "C"
BUILDING DESIGINATION EXHIBIT
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. 1187 was introduced
by first reading at a regular meeting of the City Council held on September 2, 2021, by
the following vote:
AYES: Hobart, Kite, Smotrich, Townsend, Weill.
NOES: None.
ABSENT: None.
ABSTAIN: None.
Ordinance No. 1187 was adopted at a regular meeting of the City Council held
on September 16, 2021, by the following vote:
AYES: Hobart, Kite, Townsend, Weill.
NOES: None.
ABSENT: Smotrich.
ABSTAIN: None.
further certify that I have caused Ordinance No. 1187 to be posted and/or
published, as required by law (GC Sect. 36933).
Kristie Ramos
City Clerk