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HomeMy WebLinkAboutRes No 2177PLANNING COMMISSION RESOLUTION NO. 2177 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL APPROVAL OF AN AMENDMENT TO AN EXISTING DEVELOPMENT AGREEMENT RELATING TO THE PROJECT KNOWN AS "DESERT GATEWAY" LOCATED AT THE SOUTHEAST CORNER OF MONTEREY AVENUE AND DINAH SHORE DRIVE. CASE NO. DA 92-3 AMEND. 1 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on-the-3`� — day of December, 2002, hold a duly noticed public hearing, which was continued to December 17, 2002 and January 7, 2003, to consider the request of RILEY/CARVER, LLC. for the above mentioned; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, said Planning Commission did find the following facts and reasons to exist to justify recommending approval to City Council of said request: 1. The proposed development agreement is consistent with the provisions of Municipal Code Chapter 25.37 Development Aareements. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm Desert, Califomia, as follows: 1. That the above recitations are true and correct and constitute the findings of the Commission in this case. 2. That approval of an Amendment to Development Agreement 92-3 Amend. 1 (Exhibit A) is hereby recommended for approval to the City Council. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 7th day of January, 2003, by the following vote, to wit: AYES: CAMPBELL, LOPEZ, TSCHOPP NOES: FINERTY ABSENT: JONATHAN ABSTAIN: NONE ATTEST: /1)-f4 PHILIP DRELL, i3ecretary Palm Desert Planning Commission i f ; CINDY FINERTY; Chairperson Douglas Phillips - Development Agreement -us :errp;9.oc r oy EXHIBIT A RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PALM DESERT AND MONTEREY 170 LLC, A CALIFORNIA LIMITED LIABILITY COMPANY EFFECTIVE: , 2003 • Douglas` Phillips - Development Agreement-03..erwin.doc :.,... �..,_,..:....... �..,.....,:..,,:.,... Pale TABLE OF CONTENTS RECITALS 1 OPERATIVE PROVISIONS 2 1. Term 2 2. Development and Continued Use 3 3. Additional Permits and Approvals 3 4. Failure to Perform 4 5. Superseding State or Federal Law 4 6. Successors. Assigns and Beneficiaries 5 7. Equitable Servitudes 5 8. Negation of Agency, Joint Venture or Partnership 5 9. Notices and Other Communications 5 10. Estoppel Certificates 6 11. Applicable Law 6 12. Venue 6 13. Attorneys' Fees 6 14. Paraaraph Headings 6 15. Construction 6 16. Indemnification 6 17. Survival 7 18. Calendar Periods 7 19. Severabilitv 7 20. Further Actions 7 21. Covenant of Good Faith 7 22. Counterparts 7 23. -incorporation of -Recitals — — _ 24. Incorporation of Exhibits 7 25. Amendment 7 26. Municipal Code 8 27. Recordation 8 28. Tolling 8 2 UOU ias F'nIIIIpS 7 UeVe pmerni ivreeinCnI-uo,cimiLULA. Exhibit "A" Exhibit "B-1" Exhibit "B-2" TABLE OF EXHIBITS Legal Description of Original Property Legal Description of Monterey Property Monterey Property Site Plan Douglas Frumps - Development1k9reemem-us.erwm.uuc AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEMENT This Amendment and Restatement of Development Agreement ("Amendment and Restatement") is entered into effective , 2003, ("Effective Date"), between the City of Palm Desert, a municipal corporation, ("City") and Monterey 170 LLC, a California lirrnted liability company (`Develdper"). — - RECITALS A. The City is authorized by Title 25, Chapter 25.37 of its Municipal Code ("Municipal Code") to enter into binding development agreements for the development of real property in its municipal limits, with persons who have legal or equitable interests in that real property. B. The City, Developer (or Developer's predecessor -in -interest) and other property owners previously entered into a Development Agreement, dated February 4, 1993 and recorded May 14, 1993 in the Official Records of the County of Riverside as Document No. 181069 (the '1993 Development Agreement) covering certain real property now located in the municipal limits of the City, and more particularly described in Exhibit "A" attached hereto (the 'Original Property"). C. Among other provisions, the 1993 Development Agreement preserves certain aspects of the provisions of the County of Riverside zoning as to the Original Property, as of the effective date of the 1993 Development Agreement, as part of the goveming development criteria for the Original Property ("Existing Development Criteria"). D. Developer owns certain parcels of real property, constituting approximately 70 acres of the Original Property (Parcel 29 of Tentative Vesting Parcel Map 24255), which are described in Exhibit "&1" and depicted on the Site Plan attached as Exhibit "B-2" (the 'Monterey Property"). E. City has granted certain entitlements and approvals with respect to the Monterey Property, including Precise Plan/Conditional Use Permit No. PP01-30, Tract Map No. 30502 (collectively, the 'Project Entitlements) permitting the development and use of the Monterey Property as a retail shopping center consisting of approximately 697,750 square feet of space (the 'Project). The development criteria embodied in the Project Entitlements are collectively referred to herein as the 'New Development -Criteria' F. Developer has applied to City for approval and enactment of this Amendment and Restatement as the primary goveming instrument for the development of the Project and continued use of the Monterey Property, thereby amending and superseding in its entirety the 1993 Development Agreement and the Existing Development Criteria contained in the 1993 Development Agreement, extending the n ldocldewlopment agreement-03 erwn doc 4 ..... :y--......,._.... .......:.•rc....... �• �---• . f>.-.... �,,.•sr.......a::�.,....::r::...........................,...................................ter , r 1 aao!s Douglas Phill s - DeveloRment A ment-03.erwin.doc Pale_ term of the 1993 Development Agreement as amended and restated, provided this Amendment and Restatement is only applicable as to the Monterey Property. G. The City's Planning Commission (the "Planning Commission") and City Council (the "City Council") have conducted public hearings with respect to this Amendment and Restatement ana have found that the provisions of -his Amendment and Restatement are consistent with the City's General Plan (the "General Plan') including, without limitation, the provisions of the General Plan which address permitted uses, design and development guidelines, streetscapes, public improvements, transportation, circulation, subdivision and development of the Monterey Property. The Planning Commission and the City Council have also found that the provisions of this Amendment and Restatement implement the goals, objectives, policies and standards of the Land Use Element of the General Plan. H. On , 2003, the City Council adopted Ordinance No. ("Enacting Ordinance") which enacted this Amendment and Restatement and the Enacting Ordinance became effective on the , 2003. I. By adopting the Enacting Ordinance, the City Council has elected to exercise certain govemmental powers at the present time rather than deferring those actions until an undetermined future date and has done so intending to bind City and future City Councils and intending to limit City's future exercise of certain govemmental powers. This Amendment and Restatement has undergone extensive review by City, the Planning Commission and the City Council and has been found to be fair, just and reasonable and in the best interests of the citizens of City and the public health, safety and welfare. J. By adopting the Enacting Ordinance, the City Council approves this Amendment and Restatement and intends this Amendment and Restatement to be the primary goveming instrument for the development of the Project and continued use of the Property, in lieu of any other permit or approval, except for those permits and approvals which are specifically identified in this Amendment and Restatement. IN CONSIDERATION of the mutual covenants and conditions in this Amendment and Restatement, the parties agree as follows: OPERATIVE PROVISIONS 1. Term This Amendment and Restatement will commence on the Effective Date and continue for a period of five (5) years, su fect lsaragraph 28-bet0w (thy - "Term"). The Parties acknowledge that the Project will be a phased development, with a substantial portion of the development identified as "Phase II" to be deferred for an indeterminate time into the future. Notwithstanding anything to the contrary contained herein, the entire Project, as depicted in the Site Plan shall be subject to, and entitled to the benefits of this Amendment and Restatement, including Phase II of the Project. 5 nAdoeldemelopment agree-03.enviP.doe m o p ve... pr'''. M..,.,..e,w D.,.... las Philli Develo ent Agreement-03.erwin.doc �. e�---•-• m.�r.ry w+wv [ .�....�..n.»�w.n��w..ywnvnv+w.✓d..++.s �. �-�na , low Without limiting the effect of the foregoing, the Parties agree that Developer shall have the right to develop the Monterey Property in such order and at such times as Developer deems appropriate within the exercise of Developer's subjective business judgment. After completion of the development of the Project, the effect of this -Amendment and Restatement_will .be to govem the continued use of the Monterey Property, to the extent of ensuring, for land use purposes, (A) that the Project continues as a group of legal, conforming structures, (8) the Developer's ability to upgrade, expand and remodel the Project, in accordance with this Amendment and Restatement, and (C) the Developer's ability to repair or rebuild the Project as one or more legal conforming structures, in accordance with this Amendment and Restatement, if the Project is damaged or destroyed. Notwithstanding any other provision in this Amendment and Restatement, no total or partial termination of this Amendment and Restatement will act to cancel, limit • or alter, in any way, any of the development entitlements which the Developer has previously obtained including without limitation, the Project Entitlements. 2. Development and Continued Use. (a) The Project and continued use of the Monterey Property will be govemed by this Amendment and Restatement. Although this Amendment and Restatement may refer to certain provisions of the Municipal Code for details which are not provided in this Amendment and Restatement, this Amendment and Restatement will govem the Project and the continued use of the Monterey Property, it being acknowledged and agreed that certain aspects of the Project do not conform to the provisions of the Municipal Code. The cxsn#rolling land use designation for the Att Proaertyis p bU hed to rode: department stores, banks, variety stores, nal offices, supermarkets or grocery sales, restaurants, including drive-in or h, and general retail uses, amusement and recreation establishments, b t. not limited to theaters and amusement arcades, 'outdoor sales of arts, cra iftg, goods, wares and other merchandise, as incorporated into the Project Is. • If any provision in this Amendment and Restatement is in conflict with the development standards in the Municipal Code, then the conflicting provision in the Amendment and Restatement will supersede and control. (b) Subject to the provisions in subparagraph 2(a), Developer will have the vested right to develop the Project and use the Monterey Property in accordance with the provisions of this Amendment and Restatement. (c) Development of the Monterey Property including, withou 1ir itaffon— the density, intensity and type of use, the maximum height and size of buildings, building setback requirements, parking requirements, landscaping requirements, loading zone requirements and provisions for reservation or dedication of land for public purposes, will be govemed by the Project Entitlements and the New Development Criteria embodied in the Project Entitlements. City acknowledges and ocklockinelopment agreement-03.erwn.doc 6 Douglas Phillips-Develo�ment Agreement-03:erwin.doc Page 7; �Yf.1../I';f"".f/':;;1'!'L';t..'.J: �lb1iGY:-•,w+v._rwn.....w...............w..v. r agrees that the Project Entitlements specifically permit the development, use, and division of land as proposed by the Project. (d) Notwithstanding anything to the contrary contained herein, the _ retraining portions of the Original Property not included in the Monterey Property shall remain subject to the terms of the Development Agreement. (e) The obligations of Developer as contained in the 1993 Development Agreement are hereby superseded and replaced by the conditions contained in the Project Entitlements. Without limiting the effect of the foregoing, the City's obligations contained in Section 4.2 of the 1993 Development Agreement, including without limitation, the construction of traffic signals and tuming lanes, shall remain in full force and effect. 3. Additional Permits and Approvals. The only additional City permits and approvals which will be required for the Project and continued use of the Monterey Property, will be as follows: () Each improvement at the Monterey Property will be subject to deal n review and architectural apppyal try the City's Architectural Review iff bdttfoli riifed to fainctscaPing and buildings. (b) Each improvement at the Monterey Property will be subject to the issuance by City of construction permits, including but not limited to grading and building permits. (c) The o001apanoy of improvements at the Monterey Property WO be sutet* to the issuance by Cray of certificates of occupancy, or other equivalent mitts). 4. Failure to Perform. (a) Default by Developer. If City does not find good faith compliance with the provisions of this Amendment and Restatement by Developer, then City will have all of the remedies which are provided in the Municipal Code and will comply with all of the procedures which are provided in Section 65885.1 of the Govemment Code and the Municipal Code. _ (b) Default by City. If City fails to perform any of its obligations as provided in this Amendment and RestatemenTnd fails-fo cure -its nonperfunndnce- within thirty (30) days after notice of nonperformance is given by Developer, then City will be in default and Developer will have all of the remedies which are available to them, individually or collectively, at law or in equity; provided, however, that if City's failure to perform cannot reasonably be cured within such thirty (30) day period, then City will not be in default of this Amendment and Restatement if it commences to cure 7 n:ldocldsielopment agreement-03.en 4n.doe I Douglas Phillips - Development Agreement-03.erwin.doc Paye taro its nonperformance within such thirty (30) day period and thereafter diligently and in good faith prosecutes such cure to completion. Without limiting the effect of the foregoing, the parties acknowledge and agree that the subject matter of this Amendment and Restatement is unique and that money damages may be inadequate to compensate Developer and-thereWe, at -the ele�c ion of Developer, this Amendment and Restatement may be specifically enforced. (c) Periodic Review. The City's Planning Commission shall review Developer's good faith compliance with the terms of the Amendment and Restatement every six (6) months. If as a result of this review, the Planning Commission finds and determines, on the basis of substantial evidence, that the Developer has not complied in good faith with terms or conditions of the agreement, it shall recommend to the City Council that the Amendment and Restatement be modified or terminated. If the City Council concurs with the Planning Commission recommendation, the Amendment and Restatement shall be modified or temmnated. Proceedings before the City Council shall be a noticed public hearing per Chapter 25.86 of the Municipal Code. 5. Supersedinq State or Federal Law. If any state or federal law or regulation which is enacted or adopted after the Effective Date or any other action of any govemmental entity which is not under City's control, prevents or precludes compliance with any provision of this Amendment and Restatement, then that provision of this Amendment and Restatement will be modified or suspended only to the extent and for the time necessary to achieve compliance with that law, regulation or other govemmental action and the remaining provisions of this Amendment and Restatement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other govemmental action. On the repeal of any such law, regulation or other govemmental action or on the occurrence of any other circumstance which removes the effect of the same on this Amendment and Restatement, the provisions of this Amendment and Restatement will be automatically restored to their full original effect and any amendment to this Amendment and Restatement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 6. Successors, Assigns and Beneficiaries. All of the provisions of this Amendment and Restatement will inure to the benefit of and be binding on the respective successors and assigns of the parties. 7. Equitable Servitudes. All of the provisions of this Amendment and Restatement will be enforceable as equitable servitudes and will constitute covenants running with the land to the extent allowed by applicable law. 8. Negation of Agency. Joint Venture or Partnership. The parties acknowledge that in entering into this Amendment and Restatement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby n \docldmelopment agreement-03.erwin doc 8 :Douglas Phillips - Development.Agreement-03-erwin.doc Pale renounce the existence of any form of joint venture or partnership among or between them and agree that nothing in this Amendment and Restatement will be construed as making them joint venturers or partners. 9. Notices and Other Communications. All notices other communications which are required or permitted to be given to the parties will be in writing and will be given either by personal service or by mailing the same by certified or registered mail, postage prepaid, retum receipt requested, or ovemight mail delivery service, addressed as follows: CITY City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Attn: DEVELOPER Monterey 170 LLC Attn: If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it will be deemed given as of the date of receipt or rejection. Addresses to which notices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 9. 10. Estoppel Certificates. At the request of either party, the other party will, within ten (10) days, certify in writing that, to the best of its knowledge, (a) this Amendment and Restatement is in full force and effect and is a binding obligation of the certifying party, (b) this Amendment and Restatement has not been amended or modified, except as is expressly provided in that estoppel certificate and (c) no default in the performance of the requesting party's obligations as provided in this Amendment -and Restatement -exists, except -as -is Expressly provided -in -that -estoppel certific-ate; - - 11. Applicable Law. This Amendment and Restatement will be construed and enforced as provided in Califomia law. 12. Venue. Any legal action with respect to this Amendment and Restatement will be brought, at the election of Developer in either Riverside County 9 n.Y ocldevelopment agreement-03 erwin.doc mid Douglas Phttlt - Development Agreement ,03.erwin.doc Page 10 Superior Court or in the United States District Court for the Central District of Califomia. 13. Attomevs' Fees. If legal action is taken to enforce or interpret any provision of this Amendment and Restatement, then the prevailing party in that action _.- will -be entitled to recover from the -losing -party all attorneys' fees, court costs and necessary disbursements in connection with that action. 14. Paragraph Headings. The paragraph headings of this Amendment and Restatement are for convenience only and are not a part of and are not intended to govem, limit or aid in the interpretation of any provision of this Amendment and Restatement. 15. Construction. In all cases, the language in this Amendment and Restatement will be construed simply. according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Amendment and Restatement. 16. Indemnification. (a) Developer will defend, indemnify and hold City and its elected officials, officers and employees free and harmless from any loss, cost or liability (including without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any failure on the part of Developer to take any action which they are required to take as provided in this Amendment and Restatement, (ii) any action taken by Developer which is prohibited under this Amendment and Restatement, and (iii) any claim that results from any willful or negligent act or omission of Developer. (b) City .will defend, indemnify and hold Developer and its shareholders, directors, officers, employees, agents, consultants, successors and assigns, free and harmless from any and all loss, cost or Liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and workers compensation claim(s) which results from (i) any failure on the part of City to take any action which it is required to take as provided in this Amendment and Restatement, (ii) any action taken by City which it is prohibited from taking as provided in this Amendment and Restatement, and (iii) any claim that results from any willful or negligent act or omission of City. 17. Survival. Each and every covens- fin is Ame idmenTand Restatement - will survive the execution and delivery of this Amendment and Restatement for the benefit of the parties. 18. Calendar Periods. All references in this Amendment and Restatement to 'years", "quarters", "months" and "days" will be deemed to be to references to calendar years, quarters, months and days. 10 nidoctdexbpment agreement-03.erwin doc Douglas Phillips -Development Agreement-03.erwin.doc Page1 19. Severability. Every provision of this Amendment and Restatement is and will be construed to be a separate and independent covenant. If any provision of this Amendment and Restatement or the application of the same is, to any extent, found to be_invalid or une.nforceable_ for any reason whatsoever, then the remainder of this Amendment and Restatement or the application of that provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Amendment and 'Restatement will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to this Amendment and Restatement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 20. Further Actions. Whenever and as often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or proper in order to achieve the intent of this Amendment and Restatement. 21. Covenant of Good Faith. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Amendment and Restatement can be attained. 22. Counterparts. This Amendment and Restatement may be executed in counterparts, each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 23. Incorporation of Recitals. The "Recitals" in this Amendment and Restatement are material and are incorporated by reference as though fully set forth hereat. 24. Incorporation of Exhibits. The Exhibits to this Amendment and Restatement are incorporated by reference as though fully set forth hereat. 25. Amendment. (a) No amendment or waiver of any term of this Amendment and Restatement will be binding on the City unless and until it has been approved by the City Council and has become effective, or on Developer unless and until it has been executed by Developer. (b) Notwithstanding anything to the contrary contained herein, no modification of any past, present or future development entitlement with respect to the Monterey Property, including without limitation, the Project Entitlements, shall require an amendment of this Amendment and Restatement. 26. Municipal Code. Except where otherwise expressly provided, all n'ldoclde a opment agreement-03 erwin doc 11 I Douglas Phillips- Development,A9reement-03.erwin.doc ' references in this Amendment and Restatement to the Municipal Code or any section of the Municipal Code, will be deemed to be references to the Municipal Code as it exists at the time of inquiry. __ 27. Recordation. No _later than 1.0 days after the Effective Date of this Amendment and Restatement, Developer will, at its cost, record this Amendment and Restatement in the Official Records of the Riverside County Recorder. 28. Tolling. In the event that any litigation, proceeding, regulatory or administrative challenge is instituted by any third party challenging the Amendment and Restatement and/or the Project, including without limitation, the validity of the Amendment and Restatement, the actions of the Planning Commission and/or City Council in approving the Amendment and Restatement, Developer's compliance with the Amendment and Restatement and/or conditions contained in the Project (collectively an "Action"), the Term shall be tolled commencing with the time in which the Action is first filed until the final, non -appealable resolution of the Action. n tdoc de.elopment agreement-03 erwin.doc [SIGNATURES FOLLOW] 12 Douglas Phillips - . DeTrIbpMp*4ieMs.ent-03.er;vin.doc a e 12 ATTEST: By: City Clerk APPROVED AS TO FORM AND LEGAL CONTENT: By: City Attomey liability company By: nAdockitneiopment agreement-03.ensin.doc CITY City of Palm Desert, a municipal corporation By: Its: DEVELOPER Monterey 170 LLC, a Califomia limited Its: 13 Douglas Phillips- Development Agreement-03.erwin.doc STATE OF COUNTY OF ) ) ) On _, 200_ before me, the undersigned, a Notary Public in and for said County and State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. STATE OF COUNTY OF ) ) ) Notary Public On _, 200_ before me, the undersigned, a Notary Public in and for said County and State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ita), o, id that by his/her/their signature(s) on -the-instrument the-persons)7 or entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public DouuIas Phillips - Development Agreement-03.er�vin.doc , ..... ,, ,. LEGAL DESCRIPTION OF ORIGINAL PROPERTY EXHIBIT "A" ... „ . . Douglas Phillips- Development Agreement-03.erwin.doc LEGAL DESCRIPTION OF MONTEREY PROPERTY EXHIBIT "B-1" Douglas Philips- Development Agreement-03;erwin.doc MONTEREY PROPERTY SITE PLAN EXHIBIT "B-2"