ORDINANCE NO. 1193
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 SH 9 RANCHO MIRAGE, LLC
WHEREAS, the City of Rancho Mirage is a charter city and recognized as a political subdivision of the State of California for certain purposes; and WHEREAS, City and Carefield SH Management LLC entered into that certain Statutory Development Agreement between the City and Carefield SH Management, dated December 20, 2018, and recorded in the Official Records of the County of Riverside as Instrument Number 2019-0080171 (the "Original Development Agreement"), regarding development of an approximately 4.15-acre parcel of unimproved real property located on the south side of Country Club Drive, approximately 150 feet east of John L. Sinn Road, identified as Assessor Parcel Number 682-010-022 in the City of Rancho Mirage ("Subject Property") as more particularly described and depicted in Exhibit "A," attached hereto and incorporated herein by this reference; and
WHEREAS, Carefield SH Management LLC and SH 9 Rancho Mirage LLC entered into an Assignment and Assumption Agreement in accordance with the Original Development Agreement, which provided Carefield SH Management LLC may assign its rights and obligations without the consent of City, by giving prior written notice to City, so long as such assignee expressly assumes the obligations of Carefield SH Management LLC; and
WHEREAS, SH 9 Rancho Mirage LLC ("Developer") currently owns the Subject Property; and
WHEREAS, Section 17.90.020 (Definitions of specialized terms and phrases) of Title 17 (Zoning) of the Rancho Mirage Municipal Code defines "Assisted living facility ("ALF")" as "a special combination of housing, supportive services, personalized assistance and health care designed to respond to the individual needs of those who need help with activities of daily living," which consists of a "facility with a central or private kitchen, dining, recreational, and other facilities, with separate bedrooms and/or living quarters, where the emphasis of the facility remains residential"; and
WHEREAS, Developer intends to construct an 84-unit senior "assisted living facility" that will include parking facilities, recreation areas, and dining facilities ("Proposed Project"), upon the Subject Property which is zoned O (Office); and
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WHEREAS, the City and Developer desire that this Agreement extend the term and amend and restate in its entirety the Original Development Agreement as to the Subject Property, such that this Agreement will constitute the only development agreement affecting the development of the Subject Property respecting the subject matter herein; and
WHEREAS, Developer and City acknowledge, understand and agree that the Proposed Project (as an ALF) will result in the need for additional services from the Rancho Mirage Fire Department, that are not otherwise affiliated with general office uses, in that occupants of the proposed ALF will be mostly seniors who will require personalized assistance and help with activities of daily living in addition to urgent and emergency medical assistance and transport services to and from nearby hospitals; and
WHEREAS, the City has estimated incremental cost of the additional services that will be needed from the Rancho Mirage Fire Department to accommodate the proposed ALF in current dollars is approximately Forty -Six Thousand Six Hundred Twenty -Four Dollars ($46,624.00) ("Annual In -Lieu Assessment') per annum; and
WHEREAS, Developer agrees to pay the City the Annual In -Lieu Assessment for as long as an ALF remains operational upon the Subject Property, with an automatic annual CPI adjustment adjusted pursuant to 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 applicable index in the event such index is discontinued; and
WHEREAS, Developer and City acknowledge, understand and agree that the Annual In -Lieu Assessment shall be exempt from the requirements of the California Mitigation Fee Act (Government Code § 66000 et seq.) since Government Code section 66000 (b) provides that a "fee" does not include "fees collected under development agreements adopted pursuant to Article 2.5 (commencing with Section 65864) of Chapter 4; 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 real 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, the purpose of this Development Agreement is to provide assurances to the 2-2
Developer that the approved Proposed Project may proceed subject to the policies, rules, regulations, and conditions of approval applicable to the Proposed Project at the time of approval, regardless of any changes to City policies, rules, and regulations after project approval in exchange for assurances that the City will receive certain benefits the City cannot otherwise unilaterally impose as conditions of approval of the Proposed Project outside the context of the negotiated Development Agreement; and
WHEREAS, this Amended and Restated Development Agreement will eliminate uncertainty in planning for and secure orderly development of the Project Site and Proposed Project, assure progressive installation of necessary improvements, and ensure attainment of the maximum effective utilization of resources within the City at the least economic cost to its citizens; and WHEREAS, based on the foregoing recitals, the City has determined that this Amended and Restated Development Agreement is appropriate under the Development Agreement Statute and Chapter 17.56 of the Rancho Mirage Municipal Code; and
WHEREAS, this Development 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 by ordinance; and WHEREAS, the subject Amended and Restated Development Agreement is not subject to the requirements of the California Environmental Quality Act ("CEQA") because it qualifies for the categorical exemption for in -fill development projects defined in Section 15332 of Title 24 of the California Code of Regulations; and
WHEREAS, on , the City of Rancho Mirage Planning
Commission ("Planning Commission") conducted a properly noticed public hearing to consider the subject Amended and Restated Development Agreement, at which testimony and evidence, both written and oral, were presented to and considered by the Planning Commission; and
WHEREAS, on subsequent to receipt of the written
recommendation of the Planning Commission, the City Council conducted a properly noticed public hearing to consider the subject Amended and Restated Development Agreement, at which testimony and evidence, both written and oral, were presented to and considered by the City Council.
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NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO
MIRAGE 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 DEVELOPMENT AGREEMENT
That the City Council hereby approves the Amended and Restated Statutory Development Agreement by and between the City of Rancho Mirage and SH 9 Rancho Mirage LLC ("Amended and Restated Development Agreement"), a copy of which is attached hereto and incorporated herein by this reference as Exhibit "B," subject to the terms and conditions stated therein.
SECTION 3. CEQA COMPLIANCE.
That the approval of the project is not subject to the requirements of the California Environmental Quality Act ("CEQA") because it qualifies for the categorical exemption for in -fill development projects defined in Section 15332 of Title 24 of the California Code of Regulations in that (1) the project is consistent with the applicable general plan designation and all applicable general plan policies, as well as with any applicable zoning designation and regulations; (2) the project is located within city limits, on a project site of no more than five acres, and substantially surrounded by urban uses; (3) the project site has no value as a habitat for endangered, rare, or threatened species; (4) the project does not result in any significant effects relating to traffic, noise, air quality, or water quality; and (5) the site is adequately served by required utilities and public services.
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 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. 4 2-4
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 AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
That in accordance with Section 17.56.050 of the City's Municipal Code, the Amended and Restated Development Agreement shall not be executed by the City until on or after the effective date of the Ordinance.
SECTION 8. 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 Amended and Restated Development Agreement with the Riverside County Recorder no later than ten (10) days after its execution.
SECTION 9. 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 approved and adopted at a meeting of the City Council held on April 21, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
CITY OF RANCHO MIRAGE:
Mayor
ATTEST:
Kristie Ramos, City Clerk
APPROVED AS TO FORM:
Steven B. Quintanilla, City Attorney
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EXHIBIT "A"
DESCRIPTION OF PROPERTY/PROJECT SITE
[SEE ATTACHED]
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Legal Description
APN: 682-010-022
All that portion of the north half of northwest quarter of fractional Section 7, Township 5 south, Range 6 East, San Bernardino base and meridian, in the City of Rancho Mirage, County of Riverside, State of California, as shown by United States Government. 0 2-8
EXHIBIT "B"
AMENDED AND RESTATED
STATUTORY DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF RANCHO MIRAGE,
AND
SH 9 RANCHO MIRAGE LLC
[SEE ATTACHED]
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Rancho Mirage
City Clerk
69-825 Highway 111
Rancho Mirage, California 92270
MAIL COPY TO:
SH 9 Rancho Mirage
201 Lomas Santa Fe Dr., Suite 50
Solana Beach, CA 92075
Attn: Steven Barklis
(SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE)
(Exempt from recording fees pursuant to Government Code Sections 6103 and 27383)
AMENDED AND RESTATED
STATUTORY DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF RANCHO MIRAGE
AND
SH 9 RANCHO MIRAGE, LLC
This Amended and Restated Statutory Development Agreement ("Agreement") is entered into this day of , 2022, by and between the City of Rancho Mirage, a municipal corporation located in the County of Riverside, State of California ("City"), and SH 9 Rancho Mirage, LLC, a Delaware limited liability company authorized to do business in California ("Developer"), as successor -in -interest to Carefield SH Management, LLC, pursuant to the authority of Sections 65864 et seq. of the California Government Code and Chapter 17.56 of the Rancho Mirage Municipal Code.
RECITALS:
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 Section 65864 et seq. of the California Government Code ("Development Agreement Statute"); and
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WHEREAS, the Development Agreement Statute and the Rancho Mirage Municipal Code ("RMMC") authorize the City to enter into a property development agreement with any person or entity 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, Developer owns an approximately 4.15-acre parcel of unimproved real property located on the south side of Country Club Drive, approximately 150 feet east of John L. Sinn Road, identified as Assessor Parcel Number 682-010-022 in the City of Rancho Mirage ("Subject Property") as more particularly described and depicted in Exhibit 'A" attached hereto and incorporated herein by this reference; and WHEREAS, there exists a matter of public record concerning the Subject Property a Development Agreement between the City and Carefield SH Management LLC, dated December 20, 2018, and recorded in the official records of the County of Riverside as document number 2019-0080171 (the "Original Development Agreement"); and
WHEREAS, Section 17.90.020 (Definitions of specialized terms and phrases) of Title 17 (Zoning) of the Rancho Mirage Municipal Code defines "Assisted living facility ("ALF")" as "a special combination of housing, supportive services, personalized assistance and health care designed to respond to the individual needs of those who need help with activities of daily living," which consists of a "facility with a central or private kitchen, dining, recreational, and other facilities, with separate bedrooms and/or living quarters, where the emphasis of the facility remains residential"; and WHEREAS, the City and Developer desire that this Agreement extend the term and amend and restate in its entirety the Original Development Agreement as to the Subject Property, such that this Agreement will constitute the only development agreement affecting the development of the Subject Property respecting the subject matter herein; and
WHEREAS, Developer and City acknowledge, understand and agree that the Proposed Project (as an ALF) will result in the need for additional services from the Rancho Mirage Fire Department, that are not otherwise affiliated with general office uses, in that occupants of the proposed ALF will be mostly seniors who will require personalized assistance and help with activities of daily living in addition to urgent and emergency medical assistance and transport services to and from nearby hospitals, and WHEREAS, the City has estimated incremental cost of the additional services that will be needed from the Rancho Mirage Fire Department to accommodate the proposed ALF in current dollars is approximately Forty -Six Thousand Six Hundred Twenty Four Dollars ($46,624.00) ("Annual In -Lieu Assessment") per annum; and WHEREAS, Developer agrees to pay the City the Annual In -Lieu Assessment for as long as a ALF remains operational upon the Subject Property, and 2-11
WHEREAS, Developer and City acknowledge, understand and agree that the Annual In -Lieu Assessment shall be exempt from the requirements of the California Mitigation Fee Act (Government Code § 66000 et seq.) since Government Code section 66000 (b) provides that a "fee" does not include "fees collected under development agreements adopted pursuant to Article 2.5 (commencing with Section 65864) of Chapter 4"; and
WHEREAS, this Agreement will eliminate uncertainty in planning for and securing orderly development of the Subject Property (as specifically described in this Agreement below), assure progressive installation of necessary improvements, ensure attainment of the maximum effective utilization of resources within the City at the least economic cost to its citizens, and otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted; and
WHEREAS, the City Council believes that such orderly development of the Subject Property will provide many public benefits to the City through the imposition of development standards and requirements under the provisions and conditions of this Agreement, including, without limitation, the creation of job opportunities and additional tax revenue for the City's general fund; and
WHEREAS, in exchange for the benefits to the City, the Developer desires to receive the assurance that it may proceed with the Project in accordance with the existing land use ordinances, subject to terms and conditions contained in this Agreement, and to secure the benefits afforded the Developer by Government Code section 65864 et seq; and
WHEREAS, it is the intent of the parties that all acts referred to in this Agreement shall be accomplished in such a way as to fully comply with the California Environmental Quality Act (California Public Resources Code §21000 et seq.) ("CEQA") and the State CEQA Guidelines (California Code of Regulations, Title 14, §15000 et seq.), as each may be amended from time to time; and
WHEREAS, based on the foregoing Recitals, the 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 City will not expend any funds toward development of the Proposed Project; and
WHEREAS, Developer and City acknowledge, understand and agree that this Agreement is voluntarily entered into in consideration of the mutual benefits and rights conferred upon the parties and their reliance upon the various representations and warranties contained herein.
NOW, THEREFORE, pursuant to the authority contained in the Development 2-12
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:
Section 1. Incorporation of Recitals. The foregoing recitals are incorporated into this Agreement by this reference as though fully set forth herein.
Section 2. Effective Date. Upon the effective date ("Effective Date") of the ordinance enacting this Agreement ("Enacting Ordinance"), this Agreement shall be effective as of December 20, 2021; provided, however, that if a referendum election is duly and lawfully held on the Enacting Ordinance and the Enacting Ordinance is repealed, this Agreement shall be deemed null and void as of the date of the final certification of the election results by the City Council confirming the voters repeal of the Enacting Ordinance.
Section 3. Proposed Project. The "Proposed Project" shall include the development of the Subject Property as an ALF in accordance with RMMC Chapter
17.30, this Agreement, the duly approved Preliminary Development Plan Permit and all other related discretionary and ministerial permits and entitlements ("Project Entitlements").
Section 4. Purpose. The purpose of this Agreement is to memorialize certain development and operational standards for a senior ALF and to establish the frameworkfor payment of an annual in -lieu assessment to help offset costs of certain urgent and emergency services related to the medical and transport needs of the occupants of the proposed ALF that the parties acknowledge, understand and agree are not typically associated with other types of uses in the Office zoning district (Office). Although all new developments within the City annex into a Community Facilities District (Community Facilities District No. 1), which was created pursuant to the Mello -Roos Community Facilities Act, as set forth in Government Code Section 53311 et seq., for the purpose of funding certain public safety services (such as, but not limited to, urgent and emergency medical and transport services) for the benefit of the respective development, it has been determined that the assessments which will be collected through the Community Facilities District from the Subject Property will not fully cover the costs associated with the Proposed Project, because ALFs are known to generate more frequent and a higher volume of medical and transport service calls than other uses typically permitted in the Office (0) zone.
Section 5. Term. The parties acknowledge, understand and agree that the Proposed Project shall be completed within two (2) calendar years commencing on the Effective Date of this Agreement, subject to any duly approved extensions and/or early termination of this Agreement. For purposes of this Section, "completion" or "completed" shall mean (i) obtaining building permits, grading permits, or other ministerial permits for foundation work, site work, and/or construction of any of the structures, building or other 2-13
improvements in the Proposed Project and (ii) commencement of construction and/or commencement of installation of structures, buildings and other improvements consistent with the Preliminary/Final Development Plan and this Agreement. The parties further acknowledge, understand and agree that if Developer fails to complete the Proposed Project, as described herein, prior to expiration of this term, all entitlements issued for the Proposed Project shall be deemed automatically terminated and without further force and effect, without the need of further action or documentation from the parties hereto. However, if the Proposed Project is not completed as contemplated by this section, within the term set forth herein, Developer shall be required to return the Subject Property to is original condition, unless otherwise provided by City, and any and all financial obligations owed to City by Developer up though the time of termination under this section shall be deemed immediately due and payable, subject to collection by lien, special assessment and/or any other legal or equitable remedy available to the City.
Section 6. Termination. The parties acknowledge, understand and agree that notwithstanding the provisions set forth in Section 5, termination of this Agreement under any other circumstances shall not terminate any obligation Developer owes to City, such as but not limited to payment of the Annual In -lieu Assessment, described below in this Agreement, which shall remain in force and effect so long as an ALF is being operated on the Subject Property, and which shall also remain in full force and effect to any and all of the Developer's assignees and/or successors in interest.
Section 7. Extensions. Developer shall be permitted a one (1) year time extension to allow itself additional time to obtain the Proposed Project's building and other ministerial permits and/or to allow for completion of the Project, as defined in Section 5 of this Agreement. Any such extension must be requested in writing by Developer no later than sixty (60) calendar days prior to expiration of the Term, subject to approval by the City's Development Services Director.
Section 8. Cooperation by Developer. Developer shall, in a timely manner, cooperate fully and in good faith, with providing the City with all documents, applications, plans and other information necessary for the City to carry out its obligations hereunder, and cause Developer's planners, engineers, and all other consultants to submit in a timely manner all required materials and documents therefor.
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 as may be required for the development of the Proposed Project, as contemplated by this Agreement.
Section 9. Cooperation by City. City shall, in a timely manner, cooperate fully and in good faith, with processing all documents, applications, plans and other information necessary for completion of the Proposed Project, provided that Developer's planners, engineers, and all other consultants to submit in a timely manner all required materials and documents to the City and Developer applies in a timely manner for such other permits and approvals from other governmental or quasi -governmental agencies 2-14
having jurisdiction over the Subject Property as may be required for the development of the Proposed Project, as contemplated by this Agreement.
Section 10. Applicable Rules, Regulations and Policies. Except as otherwise provided in this Agreement, Developer shall have the right develop the Proposed Project 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, Project entitlements, Title 17 ("Zoning") of the Rancho Mirage Municipal Code, and all other applicable state, federal and local laws, rules, and regulations (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 Proposed 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 Proposed Property, 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 Proposed Project as set forth in the Project Entitlements and this Agreement.
(a) 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 Proposed Project 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 City residents.
(b) Notwithstanding anything to the contrary contained in this Agreement, City may apply to the Proposed Project, at any time during the term of this Agreement, the then -current California Building Code, California Fire Code, and other uniform construction codes (collectively, "Uniform Codes"), provided that any such uniform code shall apply to the Proposed Project only to the extent that such code has been adopted by City, and is in effect on a City-wide basis. In the event any Uniform Codes materially impacts the Developer's rights as set forth herein, the parties shall work in good faith to resolve any such issue to the mutual satisfaction of both Parties. For purposes of this subsection, the City's Development Services Director shall have the authority to make minor modifications to resolve any such conflict. For purposes of this section, "material impact" shall not include monetary impacts resulting in additional costs to Developer, but conflicts which would result in the outright prohibition of one of Developer's listed rights herein.
(c) As provided in California Government Code Section 65869.5, this Agreement shall not preclude the application to the Proposed Project 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 2-15
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.
Section 11. Funding for Processing Agreement and Entitlements Described Therein. The actual costs for all services provided by the City and its consultants, including legal counsel, for review, preparation and processing of this Agreement and the entitlements described herein shall be paid by Developer. All such costs shall not be obligations of the City or any of its departments, and the City shall not be liable for any such costs from its general fund or any other fund. In addition, to the extent that 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 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. Any fees, assessments or other amounts payable by City pursuant to any such agreements described herein shall be borne by Developer.
Section 12. Processing Fees. Developer shall pay all land use approvals, building permits or other similar permits, licenses or entitlements which are in force and effect on a City-wide basis at the time application is made for such permits, licenses or entitlements at the time such fees are due and payable during the development process.
Section 13. Annual In -lieu Assessment. In addition to Developer's payment obligations pursuant to Section 15 (Exactions) of this Agreement, Developer shall pay the City the Annual In -Lieu Assessment of $46,624.00 for as long as the Proposed Project remains operational upon the Subject Property, unless this requirement is otherwise amended in accordance with the amendment provisions set forth herein. The Annual In -Lieu Assessment shall be paid to the City in quarterly installments as follows..
Developer shall pay the City the cash equivalent of one -quarter (1/4) the amount of the Annual In -Lieu Assessment no later than March 28, June 28, September 28, and December 28 of each year, marked with a notation that any such quarterly payment is made pursuant to DA180003 and DA21-0005 and represents'/4 of the Annual In -Lieu Assessment. The Annual In -Lieu Assessment shall automatically be adjusted pursuant to 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 applicable index in the event such index is discontinued.". Developer and the City understand, acknowledge and agree that the Annual In -Lieu Assessment shall be exempt from the requirements of the California Mitigation Fee Act (Government Code § 66000 et seq.) since Government Code section 66000 (b) provides that a "fee" does not include "fees collected under development agreements adopted pursuant to Article 2.5 (commencing with Section 65864) of Chapter 4.
Section 14. Development Impact Fees. Developer shall pay all development 2-16
impact fees that are designed to pay for new or expanded public facilities needed to serve, or to mitigate the adverse effects of, a given development project (including any species protection or habitat preservation or conservation mitigation fees) that are in effect at the time such fees are due and payable during the development process. Such fees shall be paid prior to issuance of any building permits in connection with the PDP.
Section 15. Exactions. Developer shall pay or provide, as the case may be, all 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 Proposed Project or Subject Property, whether such requirements constitute subdivision improvements, mitigation measures in connection with environmental review, or impositions made under any applicable ordinance or other applicable regulation.
Section 16. Maximum Building Height, Project Size and Other Project Attributes. No more than an 84-unit assisted living facility (ALF) shall be permitted and Developer shall comply with the following requirements:
Assisted Living Units:
• 500 square foot room size (minimum unit size);
• 90% of the units shall be outfitted with functional patios or balconies; and • Overnight stays by prospective residents and guests, including without limitation friends or relatives, shall only be permitted in designated respite rooms.
• Only one (1) room shall be used for respite purposes.
Memory Care Units:
• 350 square foot room size (minimum unit size for single occupancy); • 410 square foot room size (minimum unit size for companion rooms); • Double occupancy only for companion rooms (as set forth in the PDP application); and
• Overnight stays by prospective residents and guests, including without limitation friends or relatives, shall only be permitted in designated respite rooms.
• Only one (1) room shall be used for respite purposes.
Facility:
Snack stations shall be installed on the first and second floors near the fitness center and activity room respectively.
Private recreation facilities shall be provided and maintained as set forth in the PDP;
Private dining facilities shall be provided and maintained as set forth in the PDP;
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• Parking shall be provided and maintained as set forth in the PDP. (The Development Services Director, or designee, shall have the discretion to require installation of nine future parking stalls as set forth in the PDP should it be determined they are needed due to increased parking demands or increased or unanticipated parking impacts); • Landscaping shall be installed and maintained as set forth in the PDP; and • Site coverage shall be limited as set forth in the PDP.
For the life of the Proposed Project, the interior and exterior features of the assisted living facility shall be maintained in a first-class condition, and shall be maintained in compliance with all Federal, State, and local licensing requirements.
Developer shall provide housing, dining and recreational services primarily for the elderly occupants on a 24 hour/7 day basis pursuant to month -to -month rental agreements. The parties hereto acknowledge that the Proposed Project shall be a Residential Care Facility for the Elderly (RCFE) which, according to California Health and Safety Code Section 1569 et seq., means a housing arrangement chosen voluntarily by persons 60 years of age or over, or their authorized representative, where varying levels and intensities of care and supervision, protective supervision, or personal care are provided, based upon their varying needs, as determined in order to be admitted and to remain in the facility.
For purposes of this section, "first-class condition" means being amongst the first, highest, or best operating ALFs (in the State) known for its foremost excellence or highest quality and first-rate services using the best equipment and practices available in the ALF industry.
Section 17. Reservation or Dedication of Real Property. Developer shall grant the necessary easements or dedicate by deed certain real property to the City for specified public purposes as may be required by the PDP, any extension thereof, or any other entitlement that may be granted to Developer by the City in connection with the Proposed Project.
Section 18. Community Facilities District No. 1. Developer acknowledges the existence of "Community Facilities District No. 1" (sometimes, "District"), which was created pursuant to the Mello -Roos Community Facilities Act, as set forth in Government Code Section 53311 et seq. for the purpose of funding certain public safety services. If the Proposed Project and Subject Property are currently subject to the assessments of Community Services District No. 1, Developer voluntarily consents that it will not vote or otherwise support the dissolution of said District. In the event said District formally dissolves, Developer shall consent to paying an in -lieu assessment in a manner and form, deemed acceptable by the City, as though the District had never dissolved. If, however, the Proposed Project or Subject Property is not currently subject to the assessments of Community Facilities District No. 1, Developer voluntarily consents to take whatever affirmative action it needs to take on its part to ensure that the Proposed Project and Subject Property are subject to the assessments of the Community Facilities District No. 1, which includes without limitation, voting to annex to 2-18
said District. Developer and the City understand, acknowledge and agree that payment of an in -lieu assessment shall be exempt from the requirements of the California Mitigation Fee Act (Government Code § 66000 et seq.) since Government Code section 66000 (b) provides that a "fee" does not include "fees collected under development agreements adopted pursuant to Article 2.5 (commencing with Section 65864) of Chapter 4.
Section 19. 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 Subject Property or Proposed Project, 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 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 Civil Code of the State of California. Notwithstanding the above, every person who now or hereafter owns or acquires any right, title or interest in or to any portion of the Subject Property or Proposed Project 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 Subject Property or Proposed Project.
Section 20. City's Obligations. The City shall approve the permits, licenses and other entitlements as describe in this Agreement pursuant to the provisions contained herein and all applicable rules, regulations, standards, policies and standards in effect at the time of the Effective Date of this Agreement, unless health and safety concerns warrant otherwise.
Section 21. Periodic Review. The City shall conduct a review of this 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 Agreement annually commencing on the first anniversary of the Effective Date of this 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 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.
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(e) Cost of Annual Review. The costs incurred by 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 Agreement shall not constitute a breach of this Agreement.
Section 22. Relationship of Parties. It is specifically understood and agreed by and between the parties that the development of the Subject Property 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 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 the City and Developer joint venturers or partners.
Section 23. No Third -Party Beneficiaries. The only parties to this Agreement are Developer and the 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 24. Assignment. Developer shall have the right to assign its rights and obligations under this 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 25. Estoppel Certificate. For and in consideration of entering into this Agreement, the parties hereto acknowledge the receipt of good and valuable consideration. This paragraph shall constitute an Estoppel Certificate and shall be an independent agreement between the parties which is intended to and shall survive any subsequent determination that this Agreement is invalid for any reason, by a final court decision, having jurisdiction thereof. Developer represents to the City that it has no actual knowledge of any claims, as herein below defined, against City specifically pertaining to the matters set forth in this Agreement. For purposes of this Section, "claims" are defined as all known claims, fees, demands, costs, damages, obligations, expenditures, remedies, liens, rights or arbitration, rights of action and/or causes of action, whether compensatory or punitive, legal or equitable. This estoppel certificate legally bars Developer from filing claims of which it had actual knowledge at the time of the approval by the City of this Agreement.
Section 26. Hold Harmless. Developer hereby agrees to, and shall defend, save and hold City and its elected and appointed boards, commissions, officers, agents, and employees harmless from, any and all claims, costs and liability for any damages, personal injury or death, which may arise, directly or indirectly, from Developer or 2-20
Developer's contractors', subcontractors', agents or employees' operations under this Agreement, whether such negligent or other operations be by Developer or by any of Developer's contractors, subcontractors, agents or employees.
Section 27. Indemnification. Developer shall defend, indemnify and hold harmless City and its agents, officers and employees against and from 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: (i) this Agreement and the concurrent and subsequent permits, licenses and entitlements approved for the Proposed Project or Subject Property; (ii) the environmental impact report, mitigated negative declaration or negative declaration, as the case may be, prepared in connection with the development of the Subject Property; and (iii) the proceedings undertaken in connection with the adoption or approval of any of the above. In the event of any legal or equitable action or other proceeding instituted by any third party (including a governmental entity or official) challenging the validity of any provision of this Agreement or any portion thereof as set forth herein, the parties shall mutually cooperate with each other in defense of said action or proceeding.
Notwithstanding the above, the City, at is 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.
Section 28. Severability. If any term, provision, covenant or condition of this Agreement is repealed by referendum or is held by a court of competent jurisdiction 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 29. 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 30. Time Is of the Essence. Time is of the essence of this Agreement and of each and every term and condition hereof.
Section 31. 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, riots, 2-21
strikes, picketing, or other labor disputes, shortage of materials or supplies, or 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, or restrictions imposed or mandated by governmental or quasi -governmental entities, enactment of conflicting provisions of the Constitution or laws of the United States of America or 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 (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 32. Events of Default. Subject to any extensions of time by mutual consent in writing, and subject to the provisions of Section 31 "Delays in Performance," 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 30-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 Subject Property.
Section 33. General Default Remedies. After notice and expiration of the 30- 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 Agreement pursuant to 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 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 34. 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. 2-22
Section 35. Developer Default. No building permit shall be issued or building permit application accepted for any structure on the Subject Property after Developer is determined by the City to be in default of the terms and conditions of this Agreement until such default thereafter is cured by Developer or is waived by the City. If the City terminates this Agreement because of Developer's default, then the City shall retain any and all benefits, including money or land received by the City hereunder.
Section 36. 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. 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 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 other period of time specified in such express waiver.
Section 37. Amendments. This 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 Section 65867 and 65868 and the City's adopted procedures and requirements for the consideration and reconsideration of development agreements.
Section 38. Ambiguities or Uncertainties. The parties hereto have mutually negotiated the terms and conditions of this Development 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 39. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
Section 40. 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, requirements, policies or programs 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.
Section 41. Civil Code Section 1542 Waiver. Developer hereby waives any and all rights they or their successors and assigns may have under Article XIIIC or Article MID of the California Constitution and any and all rights they or their successors and assigns may have under any other applicable law to contest the fees, exactions and 2-23
assessments and/or their amounts payable to the 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 which 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.11
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 Agreement.
Initials:
Section 42. 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 43. No Damages Relief Against City. The parties acknowledge that the City would not have entered into this Agreement had it been exposed to damage claims from Developer for any breach thereof. As such, the parties agree that in no event shall Developer be entitled to recover damages against City for breach of this Agreement.
Section 44. Notices. Any notice or communication required hereunder between City or 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 2-24
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
Attn: City Manager
To Developer: SH 9 Rancho Mirage
201 Lomas Santa Fe Dr., Suite 500
Solana Beach, CA 92075
Attn: Steven Barklis
Section 45. 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, agreements (other than those attached hereto), including without limitation the Original Development Agreement, warranties or representations are superseded in total by this Agreement and the exhibits attached hereto.
Section 46. 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 (10) days after the Enacting Ordinance takes effect. Any amendments to this Agreement shall be recorded in accordance with all applicable laws and as directly by the City Attorney.
Section 47. 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 instrument.
Section 48. Minor Revisions. Minor revisions to the entitlements related to the Proposed Project or Subject Property shall not require an amendment to this 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 Agreement and Applicable Laws. [THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the dates written above.
City of Rancho Mirage
By:
Ted Weill, Mayor
ATTEST:
By:
Kristie Ramos, CMC, City Clerk
APPROVED AS TO FORM:
By:
Steven B. Quintanilla,
City Attorney
SH 9 Rancho Mirage, LLC
By Its Manager
*Signatures must be notarized.
APPROVED AS TO FORM:
By:
Legal Counsel
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EXHIBIT "A"
Subject Property
Legal Description & Depiction
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Legal Description
APN: 682-010-022
All that portion of the north half of northwest quarter of fractional Section 7, Township 5 south, Range 6 East, San Bernardino base and meridian, in the City of Rancho Mirage, County of Riverside, State of California, as shown by United States Government. 2-28