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HomeMy WebLinkAboutRes No 2240PLANNING COMMISSION RESOLUTION NO. 2240 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF A AGREEMENT RELATING TO THE DEVELOPMENT AND ONGOING OPERATION OF A 320-UNIT APARTMENT/ CONDOMINIUM PROJECT ON THE NORTH SIDE OF GERALD FORD DRIVE BETWEEN MONTEREY AVENUE AND PORTOLA AVENUE, 73-240 GERALD FORD DRIVE. CASE NO. DA 03-02 AS IT RELATES TO CASE NOS., C/Z 03-04, TT 31363 AND PP/CUP 03-06 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 2nd day of December, 2003, hold a duly noticed public hearing which was continued to December 16, 2003 to consider the request by SARES REGIS GROUP for approval of DA 03-02; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 02-60," in that the Director of Community Development has determined that the project was analyzed as part of the General Plan Update for which an Environmental Impact Report was prepared and will be certified. Consequently, no further environmental review is necessary; and WHEREAS, at said public hearing, said Planning Commission heard and considered all testimony and arguments of all interested persons. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm Desert, California, as follows: 1. That the above recitations are true and correct and constitute the findings of the Planning Commission in this case. 2. That approval of Agreement 03-02 (Exhibit A attached) is hereby recommended to City Council. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on thisl6th day of December, 2003, by the following vote, to wit: AYES: JONATHAN, TSCHOPP, CAMPBELL NOES: NONE ABSENT: PINERTY, LOPEZ ABSTAIN: NONE dkt SONIA M. CAMPBELL, Chairperson PHILIP DRELL, S'cretary Palm Desert Planning Commission 684285.02/OC S7335-304/ 21 I2-03-2 ',L 10 03/res/jed Planning Commission Resolution No. 2240 EXHIBIT A HOUSING AGREEMENT THIS AGREEMENT is entered into this , day of , 2003, between , (hereinafter "Property Owner") and the City of Palm Desert, (hereinafter "City"), a municipal corporation organized and existing under the laws of the state of California. RECITALS: This Agreement is predicated upon the following facts: A. Property Owner is owner of certain _cal property located within the City of Palm Desert, California, which property is described in Exhibit A attached hereto and made a part hereof (hereinafter "PROPERTY"). City has granted approval of a general plan amendment (through a general plan update) from low density residential (3-5 dwelling units per acre) to high density residential (10-22 units per acre), a change of zone from PR-5 (planned residential, five units per acre) to PR-13 (planned residential, 13 units per acre), a precise plan/conditional use permit, including a height exception to allow a 27-foot high roof element, and tentative tract map for apartment/ condominium purposes to construct 320 residential apartment/ condominium units; B. City has amended the general plan and granted a change of zone to increase the permitted maximum density from five dwelling units per acre to a maximum of 13 dwelling units per acre in return for providing dwelling units affordable to moderate income occupants; C. As a condition of said approval, City has required that a specified number of units associated with the project be set aside for moderate income occupants subject to restrictions necessary to insure the continued occupancy of said units by moderate income households; D. The City Council of City has found that this Agreement is consistent with the General Plan; and NOW, THEREFORE, the parties agree: 1. Definitions. In this Agreement, unless the context otherwise requires: (a) "City" is the City of Palm Desert. (b) "Project" is the development to be constructed in the City pursuant to Precise Plan / Conditional Use Permit 03-06. 684285.02/OC S7335-304/I2-12-031-240 03/res/jed EXHIBIT A -1- Planning Commission Resolution No. 2240 (c) "Property Owner" means the person having a legal or equitable interest in the real property as described in paragraph (3) and includes the Property Owner's successor in interest. (d) "Real Property" is the real property referred to in paragraph (2). (e) "Useful Life of the Project" is fifty five (55)[required by state law] years. 2. Description of Real Property. The real property which is the subject of this Agreement is described in Exhibit A. 3. Interest of Property Owner. Property Owner represents that he has a full legal and equitable interest in the Real Property and that all other persons holding legal or equitable interests in the Property are to be bound by the Agreement. 4. Assignment. The rights of the Property Owner under this Agreement may not be transferred or assigned by the Property Owner prior to the completion of the construction of the Project unless the written consent of the City is first obtained, which consent shall not be unreasonably withheld. Upon the completion of the Project as evidenced by the issuance of a certificate of occupancy therefore, the written consent of the City shall no longer be required to transfer the rights of the Property Owner under this Agreement to any successor in interest in the Real Property. Upon the assignment of this Agreement by the Property Owner to a successor in interest in the Real Property, the City agrees that it will look solely to such successor in interest to thereafter perform all of the covenants, terms and conditions of this Agreement and the assigning Property Owner shall be released from liability accruing under this Agreement from and after the effective date of such assignment. Notwithstanding the foregoing, the Property Owner and its assignees shall have the right to collaterally assign this Agreement without the City's consent to Property Owner's lender in connection with the financing of this Project. 5. Binding effect of Agreement. The burdens and the benefits of the Agreement shall constitute covenants that shall run with the Real Property and shall be binding upon and inure to the benefit of the successors in interest to the Real Property. 6. Relationship of parties. It is understood that the contractual relationship between the City and Property Owner is such that the Property Owner is an independent contractor and not the agent of the City. 7. Agreement by Property Owner and City. (a) City has amended the general plan and granted a change of zone increasing the permitted maximum density on the property from five units per acre to 13 units per acre. Based on these amendments, the City has approved the Precise Plan / Conditional Use Permit 03-06 for a 320-unit apartment / condominium project, including a height exception to allow a 27-foot high roof element on the Property. In exchange for increasing the permitted density from five units per acre to 13 units per acre, the Property Owner agrees to set aside 20% of total project units as units affordable to moderate income households. The project is receiving a density bonus of cight (8) units/acre or 195 684285.02/0C S7335- 304/12- 12-0342--16-83/res/jed EXHIBIT A -2- Planning Commission Resolution No. 2240 of the 320 total project units. The project's affordable housing requirement shall therefore be established at 64 units. (b) The Property Owner shall choose one of the following methods to meet the affordable housing requirement: (i) Payment of $15,000 per affordable unit totaling $960,000 to the City to be used for the purpose of providing very low, low and moderate income housing in the city. Payment shall be made in increments to the City prior to obtaining a building permit(s) for the project at the rate of $3,000.00 per each of the 320 units. (ii) Set aside sixty-four (64) affordable units in the PROJECT which shall be occupied by income qualified persons who meet the current "moderate income" limits as determined by the Palm Desert Housing Authority pursuant to state law (i.e., 120% of median income for Riverside County), as may be adjusted from time to time. The sixty-four (64) affordable units shall be further designated as follows: TOTAL AFFORDABLE UNITS One (1) Bedroom Knits 19 Two (2) Bedroom I'nits 39 Three (3) Bedroom Units 6 64 Maximum rental rates for the affordable units shall be set by the Palm Desert Housing Authority pursuant to state law at the time the units first become available for rent as determined as illustrated by the schedule of the maximum income limits currently used to qualify tenants for an Affordable Unit as set forth in Exhibit B "Current Maximum Qualifying Income and Maximum Monthly Housing Allowance". Annual rent increases shall not exceed the increases permitted by state law. (iii) Set aside sixty-four (64) affordable units in the Project which shall be sold to income qualified persons who meet the current "moderate income" limits as determined by the Palm Desert Housing Authority pursuant to state law (i.e., 120% of median income for Riverside County. The sixty-four (64) affordable units shall be designated as follows: TOTAL AFFORDABLE UNITS One (1) Bedroom Units 19 Two (2) Bedroom Units 39 Three (3) Bedroom Units 6 64 684285.02/0C S7335-304/12-12-03+2-44-03/res/jed EXHIBIT A -3- Planning Commission Resolution No. 2240 Sales prices in the "affordable units" shall be an amount such that the units will qualify as affordable to moderate income persons pursuant to state law. (c) The project as proposed allows the Property Owner to operate it as a rental (apartment) complex or to sell it as condominium units. The Developer has indicated to the City that the project may be operated as an apartment complex for a number of years and then converted to condominiums. Should the Property Owner not avail himself of item (i) above to meet the affordable housing requirement, then the project shall comply with the provisions of item (ii) for the period of time it is operated as a rental complex. At the time of its conversion from rental to condominium, item (iii) above shall become applicable. Subsequent sales of any "affordable units" shall be subject to resale controls substantially in the form of the deed restrictions attached hereto as Exhibit " ", which will assure that said units may only be sold or rented to income qualified persons provided for in this section. (d) Property Owner or its assigned management agent shall be responsible for determining the eligibility of prospective tenants in the "affordable" units. (e) Property Owner shall advise the City in writing prior to obtaining building permit regarding the method to be used to satisfy affordable housing requirement of the project. (f) Property Owner shall not discriminate on the basis of race, color or creed, sex, or national origin. (g) Change in Project. Property Owner hereby agrees that prior to the initial completion of the Project as evidenced by the issuance of a certificate of occupancy, no change, modification, revision or alteration may be made in the approved precise plan without review and approval by those agencies of the City approving the plan in the first instance. A change, modification, revision or alteration in the approved precise plan/conditional use permit prior to the initial completion of the Project is not effective until the parties amend this AGREEMENT to incorporate it. (h) Hold Harmless. Property Owner agrees to and shall hold the City, its officers, agents, employees and representatives harmless from liability for damage or claims for damage for personal injury including death and claims for property damage which may arise from the direct or indirect operations of the Property Owner or those of his contractor, subcontractor, agent, employee or other person acting on his behalf which relates to the PROJECT. Property Owner agrees to and shall defend the City and its officers, agents, employees and representatives from third party actions for damages caused or alleged to have been caused by reason of Property Owner's activities in connection with the PROJECT. 684285.02/OC S7335-304/12-12-0342 10 03/res/jed EXHIBIT A -4- Planning Commission Resolution No. 2240 This hold harmless agreement applies to all third party damages and claims for damages suffered [or alleged to have been suffered]by reason of the operation referred to in this paragraph, regardless of whether or not the City prepared, supplied, or approved plans or specifications or both for the PROJECT. Property Owner further agrees to indemnify, hold harmless, pay all costs and provide a defense for City in any action challenging the validity of the AGREEMENT. (i) Periodic Review of Compliance with Agreement. (i) Planning Commission shall review this AGREEMENT whenever substantial evidence exists to indicate a possible breach of the terms of this AGREEMENT. (j) Amendment or Cancellation of Agreement. This AGREEMENT may be amended or canceled in whole or in part by mutual consent of the parties. (k) Enforcement. Unless amended or canceled as provided in paragraph (j), this AGREEMENT is enforceable by any party to it notwithstanding a change in the applicable general or specific plan, zoning, subdivision, or building regulations adopted by City which alter or amend the rules, regulations or policies governing permitted uses of the land, density, design, improvement and construction standards and specifications. (1) Events of Default. Property Owner is in default under this AGREEMENT upon the happening of one or more of the following events or conditions: (i) If a warranty, representation or statement set forth in this Agreement by Property Owner to City is false or proves to have been false in any material respect when it was made; (ii) A finding and determination by, that upon the basis of substantial evidence Property Owner has not complied in good faith with any of the terms or conditions of this AGREEMENT. (iii) Property Owner's failure to maintain the Real Property in substantially the same condition as it exists on the date that City issues the Certificate of Occupancy with respect to the PROJECT ordinary wear and tear and casualty excepted. (iv) Property Owner's failure to appear in and defend any action or proceeding purporting to affect the rights or powers of City under the terms of this AGREEMENT, and to pay all costs and expenses, including attorneys' fees in a reasonable sum, in any such action or proceeding in which City may appear. (m) Procedure upon Default. If, as a result of periodic review, or other review of this AGREEMENT, the Planning Commission or City finds and determines, on the basis of substantial evidence, that Property Owner has not complied with the terms or conditions of this AGREEMENT, the Commission shall notify the Property Owner or 684285.02/OC S7335-304/I2-12-0342-19-93/res/jed EXHIBIT A -5- Planning Commission Resolution No. 2240 successor in interest in writing as to the specific nature of noncompliance, and describe the remedies required to achieve compliance. Property Owner has thirty (30) days upon receipt of notification to take remedial actions, provided, that, if such remedial action cannot reasonably be completed within such thirty (30) day period, Property Owner shall have such additional time as is reasonably necessary to complete such remedial actions so long as Property Owner is diligently pursuing the same. If Property Owner fails to take remedial action within the cure periods described above, the Planning Commission of City shall recommend to the City Council of City that this AGREEMENT be terminated, or that the remedies set forth in this paragraph be exercised by the City. If the City Council of City concurs with the recommendation of the City's Planning Commission, the City Council may terminate this AGREEMENT, or may employ one or more of the remedies set forth in this paragraph. Proceedings before the Planning Commission and City Council shall be by noticed public hearing pursuant to Chapter 25.86 of the Municipal Code of the City of Palm Desert. In the event of a default, City may pursue all legal or equitable remedies City may have under California law or as set forth in this AGREEMENT and City shall be entitled to specific performance and enforcement of each and every term, condition and covenant set forth herein. (n) Damages upon Cancellation, Termination of Agreement. In no event shall Property Owner be entitled to any damages against the City upon termination of this AGREEMENT or exercise by City of its rights under this AGREEMENT. (o) Attorney's Fees and Costs. If legal action by either party is brought because of breach of this AGREEMENT or to enforce a provision of this AGREEMENT, the prevailing party is entitled to reasonable attorneys' fees and court costs. (p) Notices. All notices required or provided for under this AGREEMENT shall be in writing and delivered in person or sent by certified mail, postage prepared. Notice required to be given to City shall be addressed as follows: City of Palm Desert, 73-510 Fred Waring Drive, Palm Desert, California 92260. Notices required to be given to Property Owner shall be addressed as follows: Sares Regis Group, c/o Greg Albert, 18825 Bardeen Avenue, Irvine, California 92612. A party may change the address by giving notice in writing to the other party and therefore notices shall be addressed and transmitted to the new address. (q) Rules of Construction and Miscellaneous Items. (i) The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive. (ii) If a part of this AGREEMENT is held to be invalid, the remainder of this AGREEMENT is not affected. (iii) If there is more than one signer of this AGREEMENT their obligations are joint and several. 684285.02/OC S7335-304/12-12-03}2-}0-03/res/jed EXHIBIT A -6- Planning Commission Resolution No. 2240 (iv) The time limits set forth in this AGREEMENT may be extended by mutual consent of the parties in accordance with the procedures for adoption of an agreement. (r) Duration of Agreement. This AGREEMENT shall remain in effect during the Useful Life of the Project. (s) Applicable Law. This AGREEMENT shall be construed according to the laws of the State of California. (t) Severability. If any portion of this AGREEMENT is for any reason held to be unenforceable, such determination shall not affect the validity of the remaining portions. (u) Authority. Each of the parties hereto covenants and agrees that it has the legal capacity to enter into this AGREEMENT contained herein, that each AGREEMENT is binding upon that party and that this AGREEMENT is executed by a duly authorized official acting in his official capacity. IN WITNESS WHEREOF this AGREEMENT has been executed by the parties on the day and year first above written. Approved as to form: CITY OF PALM DESERT, A Muriicipal Corporation City Attorney By: Attest: SARES REGIS GROUP By: By: 684285 02/OC S7335-304/12 12 034-2 10 03/res/jed EXHIBIT A -7- Planning Commission Resolution No. 2240 STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) On this day of in and for said State, personally appeared or proved to me on the basis of satisfactory evidence to be instrument on behalf of executed the same. , 2004, before me, a Notary Public , known to me the person who executed the within and acknowledged to me that 684285.02/OC S7335-304/12-12-0312--10 03/res/jed EXHIBIT A -8- Planning Commission Resolution No. 2240 EXHIBIT B CURRENT MAXIMUM QUALIFYING INCOME AND MAXIMUM MONTHLY HOUSING ALLOWANCE Moderate -income households earning 120% of the area median income (according to HUD income figures for the County of Riverside effective March, 2003) Household Annual Income Maximum Monthly Size @ 120% of AMI Housing Allowance 1 $ 42,840.00 $ 1,071.00 2 $ 48,960.00 1 $ 1,224.00 3 $ 55,080.00 1 $ 1,377.00 4 I $ 61,200.00 $ 1,530.00 5 $ 66,120.00 1 $ 1,653.00 6 I $ 70,980.00 1 $ 1,774.50 1. This agreement is based on the divisor of 30% in determining the Maximum Monthly Housing Allowance (AMI*30%/12=Maximum Monthly Housing Allowance). 2. This Agreement is based on the Utility Allowance worksheet as issued by the County of Riverside for the East County locality and includes allowances for electric lighting & refrigeration, and air conditioning; gas cooking, domestic hot water, and space heating; domestic water usage; sewer usage; trash collection. 3. This Agreement is based on a 1 bedroom apartment being rented to tenant(s) with a household size of 1 and 2. 4. This Agreement is based on a 2 bedroom apartment being rented to tenants with a household size of 3, and 4. 5. This Agreement is based on a 3 bedroom apartment being rented to tenants with a household size of 5, and 6. 684285.02JOC S7335-304/12-12-0342 10 (Wrestled EXHIBIT A -9- 1