HomeMy WebLinkAboutRes No 2255PLANNING COMMISSION RESOLUTION NO. 2255
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING
TO CITY COUNCIL APPROVAL OF A CHANGE OF ZONE
FROM OPEN SPACE (O.S.) TO R-1 9,000 FOR 41 LOTS
AROUND THE GOLF COURSE PERIMETER; A CHANGE OF
ZONE FROM OPEN SPACE (O.S.) TO PR-6 PLANNED
RESIDENTIAL SIX UNITS PER GROSS ACRE FOR 9.68
ACRES IN THE AREA OF THE EXISTING DRIVING RANGE;
A TENTATIVE TRACT MAP TO CREATE 95 RESIDENTIAL
LOTS, A DEVELOPMENT AGREEMENT WHICH WILL
PROVIDE FOR AMONG OTHER MATTERS MODIFIED
DEVELOPMENT STANDARDS AND PROVISIONS
REQUIRING THAT GOLF COURSE IMPROVEMENTS BE
CARRIED OUT IN A TIMELY MANNER AND A NEGATIVE
DECLARATION OF ENVIRONMENTAL IMPACT AS IT
RELATES TO THE ABOVE. ALL PROPERTY BEING A
PORTION OF SECTION 13 AND 14 T5S R6E.
CASE NOS. C/Z 04-01, TT 31836. PP 04-01 AND DA 04-01
WHEREAS, the Planning Commission of the City of Palm Desert, Califomia, did on
the 16th day of March, 2004, hold a duly noticed public hearing to consider the request of
PDCC DEVELOPMENT LLC; 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 will not have a negative impact on the environment and that a Negative
Declaration of Environmental Impact should be certified; 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 of the
change of zone application, tentative tract map and precise plan:
ZONE CHANGES
1. The proposed zone changes are consistent with the land use and densities
prescribed in the general plan.
2. The proposed Tots will be compatible in size with existing lots in the
neighborhood.
PLANNING COMMISSION RESOLUTION NO. 2255
TENTATIVE TRACT MAP
1. That the proposed map is consistent with the general plan as amended.
2. That the design or improvement of the proposed subdivision is consistent
with applicable general plan.
3. That the site is physically suitable for the type of development.
4. That the site is physically suitable for the proposed density of development.
5. That the design of the subdivision or the proposed improvements are not
likely to cause substantial environmental damage or substantially and
avoidably injure fish or wildlife or their habitat.
6. That the design of the subdivision or the type of improvements are not likely
to cause serious public health problems.
7. That the design of the subdivision or the type of improvements will not
conflict with easements, acquired by the public at large, for access through
or use of property within the proposed subdivision.
8. That the design of the subdivision or the type of improvements will not
restrict solar access to the property.
WHEREAS, in review of this tentative tract map the Planning Commission has
considered the effect of the contemplated action on the housing needs of the region for
purposes of balancing thee needs against the public service needs of the residents of the
city of Palm Desert and its environs, with available fiscal and environmental resources; and
PRECISE PLAN
1 . The design of the precise plan will not substantially depreciate property
values nor be materially injurious to properties or improvements in the
vicinity.
2. The precise plan will not unreasonably interfere with the use and
enjoyment of property in the vicinity by the occupants thereof for lawful
purposes.
2
PLANNING COMMISSION RESOLUTION NO. 2255
3. The precise plan will not endanger the public peace, health, safety or
general welfare.
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 with the findings
contained in the staff report dated March 16, 2004, constitute the findings of
the Planning Commission in this case.
2. That approval of Change of Zone 04-01 as shown on Exhibit "B" attached,
Tentative Tract 31836 and Precise Plan 04-01 are hereby recommended for
approval to the City Council, subject to the attached conditions.
3. That a Negative Declaration of Environmental Impact, Exhibit "A" attached,
is recommended for certification.
4. That approval of the Development Agreement 04-01, Exhibit "C" attached,
is hereby recommended for approval to City Council.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert
Planning Commission, held on this 16th day of March, 2004, by the following vote, to wit:
AYES: CAMPBELL, LOPEZ, TSCHOPP, JONATHAN
NOES: NONE
ABSENT: FINERTY
ABSTAIN: NONE
SABBY ATHAN, Chairperson
ATTEST:
•
i AAILL
PHILIP DRELL, Secretary
Palm Desert Planning Commission
PLANNING COMMISSION RESOLUTION NO. 2255
CONDITIONS OF APPROVAL
CASE NOS. C/Z 04-01, TT 31836, PP 04-01 AND DA 04-01
Department of Community Development:
1 . The development of the property shall conform substantially with exhibits on file
with the Department of Community Development, as modified by the following
conditions.
2. Construction of a portion of said project shall commence within one year from
the date of final approval unless an extension of time is granted; otherwise said
approval shall become null, void and of no effect whatsoever.
3. The development of the property described herein and as defined in the
development agreement shall be subject to the restrictions and limitations set
forth herein which are in addition to state and federal statutes now in force, or
which hereafter may be in force.
4. Prior to issuance of a building permit for construction of any use contemplated
by this approval, the applicant shall first obtain permits and/or clearance from
the following agencies:
Coachella Valley Water District
Palm Desert Architectural Commission
City Fire Marshal
Public Works Department
Evidence of said permit or clearance from the above agencies shall be presented
to the Department of Building and Safety at the time of issuance of a building
permit for the use contemplated herewith.
5. Access to trash/service areas shall be placed so as not to conflict with parking
areas. Said placement shall be approved by applicable trash company and
Department of Community Development and shall include a recycling program.
6. Project is subject to Art in Public Places program per Palm Desert Municipal
Code Chapter 4.10. Method of compliance shall be established prior to
completion of the Architectural Review Commission process.
4
PLANNING COMMISSION RESOLUTION NO. 2255
7. Applicant agrees to maintain the landscaping required to be installed pursuant
to these conditions. Applicant will enter into an agreement to maintain said
landscaping for the life of the project, which agreement shall be notarized and
which agreement shall be recorded. It is the specific intent of the parties that
this condition and agreement run with the land and bind successors and
assigns. The final landscape plan shall include a long-term maintenance program
specifying among other matters appropriate watering times, fertilization and
pruning for various times of the year for the specific materials to be planted, as
well as periodic replacement of materials. All to be consistent with the Property
Maintenance Ordinance (Ordinance No. 801) and the approved landscape plan.
The maintenance program shall be reviewed annually.
8. That the project shall operate consistent with the provisions of a development
agreement which must be adopted by the City Council, otherwise this approval
shall be null and void.
9. That the applicant shall file necessary map(s) to eliminate property line
encroachments and setback deficiencies on existing residences pursuant to the
letter dated March 10, 2004 from Randy Case.
10. That all recommended traffic mitigation measures contained in the traffic analysis
prepared by George Dunn Associates shall be conditions of this application.
11. All onsite utilities shall be underground.
12. That all units shall comply with development standards prescribed in the R-1 9,000
and PR-6 zone categories except as modified pursuant to Development Agreement
04-01.
13. The project shall be subject to all applicable fees at time of issuance of permits
including, but not limited to, TUMF and School Mitigation fees.
14. The applicant/property owner agrees to defend (with counsel chosen by the City),
indemnify, and hold harmless the City of Palm Desert, its agents, officers and
employees from any claim, action or proceeding to attack, set aside, void, or annul
the approval of this application and any other challenge pertaining to this project.
This indemnification shall include any award of attorney fees.
5
PLANNING COMMISSION RESOLUTION NO. 2255
The City shall promptly notify the applicant of any claim, action or proceeding and
shall cooperate fully in the defense.
15. That the applicant shall provide a tree removal plan to be approved by the City
Arborist. Said tree removal plan shall provide an assessment of the condition of
trees by a certified arborist and a tree protection plan for remaining trees.
16. That any newly created lots not presently within the Home Owner Association area
shall be annexed into the Home Owner Association area.
Deaartment of Public Works:
1. Drainage fees, in accordance with Section 26.49 of the Palm Desert Municipal Code
and Palm Desert Ordinance Number 653, shall be paid prior to recordation of final
map.
2. Storm drain/retention area design and construction shall be contingent upon a
drainage study prepared by a registered civil engineer that is reviewed and
approved by the Department of Public Works prior to start of construction. Project
is required to retain onsite a 25 year storm. The maintenance of the retention
area(s) shall be by the homeowners association.
3. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17
and 79-55, shall be paid prior to recordation of final map.
4. Full public improvements, as required by Sections 26.40 and 26.44 of the Palm
Desert Municipal Code, shall be installed in accordance with applicable City
standards.
•
•
•
•
•
Standard 6' curbside sidewalk shall be installed in areas being developed
where no sidewalk currently exists, and shall extend across the fairways
including the following locations.
Along the south side of New York Avenue east to California in area #'s 2 &
8.
On both sides of Tennessee Avenue at the project entrance in area #1.
Along the west side of Elkhorn Trail in area #6.
Along the north side of California Avenue between Virginia Avenue and
Tennessee Avenue.
6
PLANNING COMMISSION RESOLUTION NO. 2255
5. As required under Palm Desert Municipal Code Section 26.28, and in
accordance with Sections 26.40 and 26.44, complete improvement plans and
specifications shall be submitted to the Director of Public Works for checking
and approval before construction of any improvements is commenced. Offsite
improvement plans shall be reviewed and approved by the Director of Public
Works and a surety posted to guarantee the installation of required offsite
improvements prior to recordation of the final map. Such offsite improvements
shall include, but not be limited to, curb and gutter, asphalt paving and concrete
sidewalk in an appropriate size and configuration. "As -built" plans shall be submitted
to, and approved by, the Director of Public Works prior to the acceptance of the
improvements by the City.
6. Improvement plans for utility systems shall be approved by the respective provider
or service districts with "as -built" plans submitted to the Department of Public Works
prior to project final. Utility plans shall be submitted to the Public Works Department
for improvements in the public right-of-way prior to issuance of any permits.
7. All public improvements shall be inspected by the Department of Public works and
a standard inspection fee shall be paid prior to issuance of grading permits.
8. Landscaping maintenance of any common areas shall be provided by the
homeowners association. Landscape treatment shall be water efficient in nature and
shall be in accordance with the City of Palm Desert landscape design standards.
Applicant shall be responsible for executing a declaration of Conditions, covenants
and Restrictions, which declaration shall be approved by the City of Palm Desert
and recorded with the County Recorder. The declaration shall specify: a) the
applicant shall oversee the formation of a property owners association; b) the
property owners association shall be formed prior to the recordation of the map; and
c) the aforementioned landscaping shall be the responsibility of the property owners
association. Landscaping plans shall be submitted for review simultaneously with
grading plans.
9. In accordance with Palm Desert Municipal code Section 26.44, complete grading
plans and specifications shall be submitted to the Director of Public Works for
checking and approval prior to issuance of any permits.
10. Traffic safety striping shall be installed to the specifications of the Director of Public
Works. A traffic control plan must be submitted to, and approved by, the Director of
Public Works prior to the placement of any pavement markings.
PLANNING COMMISSION RESOLUTION NO. 2255
11. Full improvements of interior streets based on residential street standards in
accordance with Section 26.40 of the Palm Desert Municipal Code shall be
provided. Applicant shall be responsible for acquiring all necessary easements for
off -site roadway improvements.
12. Complete tract map shall be submitted as required by ordinance to the Director of
Public Works for checking and approval prior to the issuance of any permits.
13. Any and all offsite improvements shall be preceded by the approval of plans and the
issuance of valid encroachment permits by the Department of Public Works.
14. A complete preliminary soils investigation, conducted by a registered soils engineer,
shall be submitted to, and approved by, the Department of Public Works prior to the
issuance of a grading permit.
15. Pad elevations, as shown on the tentative map, are subject to review and
modification in accordance with Chapter 26 of the Palm Desert Municipal Code.
16. Applicant shall comply with provisions of Palm Desert Municipal Code Section
24.12, Fugitive Dust Control as well as Section 24.20, Storm Water Management
and Discharge Control.
17. Prior to the start of construction, the applicant shall submit satisfactory evidence to
the Director of Public Works of intended compliance with the National Pollutant
Discharge Elimination System (NPDES) General Construction Permit for storm
water discharges associated with construction. Developer must contact Riverside
County Flood Control District for informational materials.
18. Lot line on Lot 84 shall be adjusted prior to grading permit issuance to correct the
encroachment of adjoining residence.
Riverside County Fire Department:
1. With respect to the conditions of approval regarding the above referenced plan
check, Fire Department recommends the following fire protection measures be
provided in accordance with City Municipal Codes, appropriate NFPA Standards,
CFC, and CBC and/or recognized fire protection standards.
8
PLANNING COMMISSION RESOLUTION NO. 2255
The Fire Department is required to set a minimum fire flow for the remodel or
construction of all commercial buildings per UFC article 87.
2. A fire flow of 1500 gpm for a 1-hour duration at 20 psi residual operating
pressure must be available before any combustible material is placed on the job
site.
3. Provide, or show there exists, a water system capable of providing a gpm flow
of 1,500 gpm for single family dwellings.
4. The required fire flow shall be available from a wet barrel Super Hydrant(s)
(4"x2-1 /2"x2-1 /2"), located not less than 25' nor more than 200' from any
portion of a single family dwelling measured via vehicular travelway.
5. Water plans must be approved by the Fire Marshal and include verification that
the water system will produce the required fire flow.
6. All buildings shall be accessible by an all-weather roadway extending to within
150' of all portions of the exterior walls of the first story. The roadway shall
be not less than 24' of unobstructed width and 13'6" of vertical clearance.
Where parallel parking is required on both sides of the street, the roadway must
be 36' wide and 32' wide with parking on one side. Dead-end roads in excess
of 150' shall be provided with a minimum 45' radius turn -around 55' in
industrial developments.
7. Whenever access into private property is controlled through use of gates,
barriers or other means, provisions shall be made to install a "Knox Box" key
over -ride system to allow for emergency vehicle access. Minimum gate width
shall be 16" with a minimum vertical clearance of 13'6".
8. A second access is required. This can be accomplished by two main access
points from a main roadway or an emergency gate from an adjoining
development.
9. All buildings shall have illuminated addresses of a size approved by the City.
10. Conditions subject to change with adoption of new codes, ordinances, laws, or
when building permits are not obtained within 12 months.
PLANNING COMMISSION RESOLUTION NO. 2255
EXHIBIT A
Pursuant to Title 14, Division 6, Article 6 (commencing with section 15070) of the
California Code of Regulations.
NEGATIVE DECLARATION
CASE NOS: C/Z 04-01, TT 31836, PP 04-01 and DA 04-01
APPLICANT/PROJECT SPONSOR:
PROJECT DESCRIPTION/LOCATION:
PDCC Development LLC
601 S. Figueroa Street, Suite 3500
Los Angeles, CA 90017
A change of zone from Open Space (O.S.) to R-1 9,000 for 41 lots around the golf course
perimeter; a change of zone from Open Space (O.S.) to PR-6 planned residential six units
per gross acre for 9.68 acres in the area of the existing driving range, a precise plan, a
tentative tract map to create 95 residential lots, a development agreement which will
provide for among other matters modified development standards and provisions requiring
that golf course improvements be carried out in a timely manner and a Negative
Declaration of Environmental Impact as it relates to the above. All property being a portion
of Section 13 and 14 T5S R6E. Property is located within the Palm Desert Country Club
area bounded by Fred Waring Drive on the south, Washington Street on the east, Hovley
Lane on the north and city of Indian Wells on the west.
The Director of the Department of Community Development, City of Palm Desert,
California, has found that the described project will not have a significant effect on the
environment. A copy of the Initial Study has been attached to document the reasons
in support of this finding. Mitigation measures, if any, included in the project to avoid
potentially significant effects, may also be found attached.
71------LA n ► Qai2 16. 2004
PHILIP DRE1 L DA1;E--J
DIRECTOR OF COMMUNITY DEVELOPMENT
10
ell
%ay
P.R.-5
-PA
P.R.-5
Vri751
amkviv
rw•
-p 00111111WEL-Wiliglitkr
11•
1101114044411217W\
ii-...01111118111p46111MI
400111WITTIniiiii*
41,
si•
..atalt•is
imos
as.:wol
:VT
City of Palm Desert
-DR
Case No. C/Z 04-01
CHANGE OF ZONE
EXHIBIT B
6111110
le IM
a:
__r—
mcxxmptiTvars
P.C.
•iiiiuIiiiu
pi,
.4VO
1411.0.1.=,11..a11 fig
iii111111,11111g1f10:0
4,
ON
Proposed
Zoning Changes
O.S.
To
R-1 9,000
O.S.
To
P.R. -6
PLANNING COMMISSION
RESOLUTION NO. a 55
Date: „leo .1
P.0
•
DISCUSSION DRAFT
MARCH 12, 2004
WHEN RECORDED RETURN TO:
The City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: City Manager
Fee Exempt - Govt. Code
4273831 (Space above for Recorder's Use)
PALM DESERT COUNTRY CLUB
DEVELOPMENT AGREEMENT
between
THE CITY OF PALM DESERT
a California charter city
and
PDCC DEVELOPMENT, LLC
a California limited liability company
and
DAHOON INVESTMENT COMPANY, INC.,
a California corporation
[Dated as of March _, 2004 for reference purposes only]
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12.DOC
PALM DESERT COUNTRY CLUB DEVELOPMENT AGREEMENT
This Palm Desert Country Club Development Agreement ("Agreement") is entered into
and effective on the date it is recorded with the Riverside County Recorder ("Effective Date") by
and between (i) the CITY OF PALM DESERT, a California charter city ("City"), and (ii) PDCC
DEVELOPMENT, LLC, a California limited liability company and Dahoon Investment Company,
Inc., a California corporation ("Dahoon") (collectively "Owner").
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 Government Code authorizing any city,
county or city and county to enter into a development agreement with an applicant for a
development project, establishing certain development rights in the property which is the subject
of the development project application. ("Development Agreement Law"); and
WHEREAS, City has adopted an ordinance and regulations establishing procedures and
requirements for the approval of development agreements, pursuant to California Government
Code Section 65865 ("Development Agreement Procedures"); and
WHEREAS, Owner has requested City to enter into a development agreement for the
development of certain real property ("Property") owned in fee by Owner and legally described
in the attached Exhibit "A"; and
WHEREAS, Owner proposes to develop the Property as a residential subdivision
accompanied with improvements to the existing golf courses ("Project"); and
WHEREAS, by electing to enter into this Agreement, City shall bind future City Councils
of City by the obligations specified herein, and limit the future exercise of certain governmental
and proprietary powers of City; and
WHEREAS, the terms and conditions of this Agreement have undergone extensive
review by City and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the City and the public health, safety and
welfare will be served by entering into this Agreement; and
WHEREAS, City has found that the provisions of this Agreement and its purposes are
consistent with the objectives, policies, and general land uses and programs specified in City's
General Plan; and
WHEREAS, all actions taken and approvals given by City have been duly taken or
approved in accordance with all applicable legal requirements for notice, public hearings,
findings, votes and other procedural matters in accordance with the Development Agreement
Law and Development Agreement Procedures; and
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC2
WHEREAS, all actions taken by the City have been duly taken in accordance with all
applicable legal requirements, including the California Environmental Quality Act (Public
Resources Code Section 21000, et seq.) ("CEQA"); and
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, City and Owner (each herein sometimes called a "Party" and
jointly the "Parties") do hereby agree as follows:
ARTICLE 1
GENERAL PROVISIONS
1.2 Binding Effect of Agreement. The Property is hereby made subject to
this Agreement.
1.3 Ownership of Property. Dahoon represents, covenants and warrants
that it is the owner of fee simple title to the Property.
1.4 Term. The term ("Term") of this Agreement shall commence on the
Effective Date and shall continue for a period of seven (7) years thereafter unless this Term is
modified or extended pursuant to the terms of this Agreement. The Zoning Modifications
(Exhibit "B") shall survive the termination of this Agreement for residential lots on which
certificates of occupancy have been issued prior to such termination.
1.5 Assignment, Sale and Transfer of Interest in the Property and this
Agreement. Owner shall have the right to assign, sell or transfer the Property in whole or in
part at any time during the term of this Agreement; provided, however, that any such
assignment, sale or transfer shall include the assignment and assumption of the rights, duties
and obligations arising under or from this Agreement. No sale, transfer or assignment of any
right or interest under this Agreement shall be made unless made together with the sale,
transfer or assignment of all or a part of the Property.
1.6 Amendment or Cancellation of Agreement. Except as otherwise
provided herein, this Agreement may be amended or canceled in whole or in part only by written
consent of all parties in the manner provided for in California Govemment Code Section 65868;
provided, however, City's Director of Community Development may, in his/her sole discretion,
make and approve minor technical, non -substantive modifications to this Agreement as
requested by Owner.
1.7 Termination. This Agreement shall be deemed automatically terminated
and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the Term of this Agreement as set forth in Section 1.4.
(b) Entry of a final judgment setting aside, voiding or annulling the adoption
of the ordinance adopting this Agreement.
(c) The adoption of a referendum measure pursuant to California
Government Code Section 65867.5, overriding or repealing the ordinance adopting this
Agreement.
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC3
Termination of this Agreement shall not constitute termination of any Development
Approvals (hereinafter defined) granted for the Project prior to such termination. Upon the
termination of this Agreement, no party shall have any further right or obligation hereunder,
except with respect to: (i) any obligation to have been performed prior to such termination, (ii)
taw any default in the performance of the provisions of this Agreement which occurred prior to such
termination, or (iii) any obligations which are specifically set forth herein as surviving the
termination of this Agreement.
1.8 Notices.
(a) As used in this Agreement, "notice" includes, but is not limited to, the
communication of notice, request, demand, approval, statement, report, acceptance, consent,
waiver, appointment or other communication required or permitted hereunder.
(b) All notices shall be in writing and shall be considered given either: (i)
when delivered in person to the recipient named below; or (ii) on the date of delivery shown on
the return receipt, after deposit in the United States mail in a sealed envelope as either
registered or certified mail with return receipt requested, and postage and postal charges
prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in
the records of the telegraph company after transmission by telegraph to the recipient named
below; or (iv) on the date of delivery by facsimile transmission to the recipient named below. All
notices shall be addressed as follows:
If to City:
With a copy to:
If to Owner:
With a copy to:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: City Manager and City Attomey
Telephone: (760) 346-0611
Facsimile: (760) 340-0574
Best Best & Krieger LLP
74-760 Highway 111, Suite 200
Indian Wells, California 92210
Attention: City Attorney for City of Palm Desert
Telephone: (760) 568-2611
Facsimile: (760) 340-6698
PDCC Development, LLC
601 South Figueroa, Suite 3550
Los Angeles, California 90017
Attn: Larry J. Kosmont
Telephone: (213) 599-4385
Facsimile: (213) 623-8288
Sullivan, Hill, Lewin, Rez & Engel
550 West C Street, Suite 1500
San Diego, CA 92101
Attn: Madeline Clark Cahill
Telephone: (619) 233-4100
Facsimile: (619) 231-4372
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC4
(c) Either Party may, by notice given at any time, require subsequent notices
to be given to another person or entity, whether a party or an officer or representative of a party,
or to a different address, or both. Notices given before actual receipt of notice of change shall
not be invalidated by the change.
ARTICLE 2
DEVELOPMENT OF THE PROPERTY
2.1 Development Approvals. For the purpose of this Agreement, the term
"Development Approvals" means the following entitlements issued or approved by City for
development and/or use of the Project:
(a) ZOA 04-01
(b) TT 31836;
(c) PP 04-01
(d) Zoning Modifications (Exhibit "B");
2.2 In order to conform the residential portion development of the Project to the
development standards that were implemented in developing the existing residential
developments of Palm Desert Country Club, certain modifications to the Palm Desert zoning
standards with respect to lot size and set backs need to be implemented. These modifications
("Zoning Modifications") are listed on Exhibit "B", and are approved only for the Project.
2.3 As part of the Project, and in consideration for the Development Approvals,
including the Zoning Modifications, Owner has committed to certain "Golf Course
Improvements", in the estimated amount of up to $4 million and certain "Club House
Improvements", in an estimated amount of $1 million. The Golf Course Improvements and Club
House Improvements are listed on Exhibit "C". Owners performance of the Golf Course
Improvements and Club House Improvements shall be the subject of a separate improvement
agreement, owner's execution and performance of which is a condition of the continued validity
of this agreement. No certificate of occupancy shall be issued for any residences in the Project
until all of the Golf Course Improvements are completed and approved by the City of Palm
Desert. Building permits will not be issued for the 11 residential lots on the south side of New
York Avenue (Tentative Tract map lots 55-65, inclusive) until the Club House Improvements
have been completed and approved by the City.
2.4 Rights to Develop. Subject to the terms of this Agreement, Owner shall have a
vested right to develop the Property in accordance with, and to the extent of, the Development
Approvals. The Project shall also be subject to subsequent development approvals required for
the completion of the Project.
2.5 Changes and Amendments. The parties acknowledge that refinement and
further development of the Project will require subsequent development approvals and may
demonstrate that changes are appropriate and mutually desirable in the Development
Approvals, except that minor modifications to the Development Agreement, as determined by
the Planning Director to not be a substantial change in the proposed project or conditions of
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. D005
approval, can be approved by the Planning Director. In the event Owner finds that a non -minor
modification in the Development Approvals is necessary or appropriate, Owner shall apply for a
subsequent development approval to effectuate such change and City shall process and act on
such application except as otherwise provided by this Agreement.
2.6 Modification or Suspension by State or Federal Law. In the event that state or
federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or
preclude compliance with one or more of the provisions of this Agreement, such provisions of
this Agreement shall be modified or suspended as may be necessary to comply with such state
or federal laws or regulations, provided, however, that this Agreement shall remain in full force
and effect to the extent it is not inconsistent with such laws or regulations and to the extent such
laws or regulations do not render such remaining provisions impractical to enforce.
2.7 Intent and Purpose. The parties acknowledge and agree that City is restricted in
its authority to limit its police power by contract and that the foregoing limitations, reservations
and exceptions are intended to reserve to City all of its police power which cannot be so limited.
This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to City
all such power and authority which cannot be restricted by contract.
The provisions of this Agreement and benefits to be received by City and Owner
hereunder are in the best interests of City and the health, safety, morals and welfare of its
taxpayers and residents and are in accordance with the public purposes set forth in federal,
state and local laws and regulations, including California Government Code Section 565865.
The parties hereby acknowledge that implementation of this Agreement and the resulting
development of the Property will result in substantial public benefits that justify City's decision to
execute this Agreement. These benefits include, but are not limited to, furtherance of the goals
and objectives of the City's General Plan and the City's Redevelopment Plan applicable to the
Property, and the strengthening of the City's land use and social structure by stimulating
economic activity and job creation within the City.
ARTICLE 3
REMEDIES
3.1 Remedies. Each of the parties hereto may pursue any remedy at law or equity
available for the breach of any provision of this Agreement, including, without limitation,
proceedings in order to sue for damages or claim any damages for any breach of this
Agreement or for any cause of action which arises out of this Agreement.
3.2 Specific Performance. The parties acknowledge that although money damages
are available to the parties for a breach of this Agreement, such money damages and other
remedies at law generally are inadequate and specific performance and other non -monetary
relief, including temporary and permanent injunctive relief, are particularly appropriate remedies
for the enforcement of this Agreement and should be available for the following reason: Owner
has invested significant time and resources and performed extensive planning and processing
of the Project in agreeing to the terms of this Agreement and will be investing even more
significant time and resources in reliance upon the terms of this Agreement, and it is difficult and
impracticable to determine the sum of money which would adequately compensate Owner for
such efforts; the parties acknowledge and agree that any injunctive relief may be ordered on an
expedited, priority basis.
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC6
ARTICLE 4
MISCELLANEOUS PROVISIONS
4.1 Recordation of Agreement. This Agreement and any amendment or
cancellation thereof shall be recorded with the Riverside County Recorder within the period
required by Government Code Section 65868.5.
4.2 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the parties with respect to the subject matter hereof, and there
are no oral or written representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein. No testimony or evidence
of any such representations, understandings or covenants shall be admissible in any
proceeding of any kind or nature to interpret or determine the terms or conditions of this
Agreement.
4.3 Severability. If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not rendered impractical to perform
taking into consideration the purposes of this Agreement.
4.4 Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of
California, without regard to conflicts of laws principles (if applicable). This Agreement shall be
construed as a whole according to its fair language and common meaning to achieve the
objectives and purposes of the parties hereto, and the rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed in interpreting
this Agreement, all parties having been represented by counsel in the negotiation and
preparation hereof.
4.5 Time of Essence. Time is of the essence in the performance of the provisions
of this Agreement as to which time is an element.
4.6 Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Agreement by the other party, or the failure by a party to exercise its rights
upon the default of the other party, shall not constitute a waiver of such party's right to insist and
demand strict compliance by the other party with the terms of this Agreement thereafter.
4.7 No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit of the parties and their successors and assigns. No other person
shall have any right of action based upon any provision of this Agreement.
4.8 Force Majeure. Neither party shall be deemed to be in default where failure or
delay in performance of any of its obligations under this Agreement is caused by floods,
earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor
difficulties beyond the party's control, (including the party's employment force), government
regulations, court actions (such as restraining orders or injunctions), the other party's breach of
this Agreement, or other causes beyond the party's control.
Without limiting the generality of the foregoing, upon the initiation of any legal
proceeding by a third party to challenge the modifications to the Existing Development
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC7
Approvals as described in this Agreement or to challenge any action taken by City in connection
therewith, the Term of this Agreement shall automatically be extended to the longer of the
period set forth in Section 1.3 or until final resolution of all such proceedings, including any
appeals filed in connection therewith.
4.9 Mutual Covenants. The covenants contained herein are mutual covenants and
also constitute conditions to the concurrent or subsequent performance by the party benefited
thereby of the covenants to be performed hereunder by such benefited party.
4.10 Successors in Interest. The burdens of this Agreement shall be binding upon,
and the benefits of this Agreement shall inure to, all successors in interest to the parties to this
Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and
constitute covenants running with the land. Each covenant to do or refrain from doing some act
hereunder with regard to development of the Property: (a) is for the benefit of and is a burden
upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c)
is binding upon each party and each successor in interest during Ownership of the Property or
any portion thereof.
4.11 Counterparts. This Agreement may be executed by the parties in counterparts,
which counterparts shall be construed together and have the same effect as if all of the parties
had executed the same instrument.
4.12 Project as a Private Undertaking. It is specifically understood and agreed by
and between the parties hereto that the development of the Project is a private development,
that neither party is acting as the agent of the other in any respect hereunder, and that each
party is an independent contracting entity with respect to the terms, covenants and conditions
contained in this Agreement. No partnership, joint venture or other association of any kind is
formed by this Agreement. The only relationship between City and Owner is that of a
government entity regulating the development of private property and the owner of such
property.
4.13 Further Actions and Instruments. Each of the parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the conditions of this
Agreement. Upon the request of either party at any time, the other party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms
of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to
evidence or consummate the transactions contemplated by this Agreement. The provisions of
this section shall not require the taking of any actions which are prohibited by law or, except as
expressly set forth in this Agreement, impair the lawful discretion of City as to those matters to
which the law imparts discretion to City.
4.14 Attorneys' Fees. If legal action is brought by either party against the other for
breach of this Agreement, or to compel performance under this Agreement, the prevailing party
shall be entitled to an award of reasonable attorneys' fees and litigation costs in addition to all
other relief to which it may be entitled.
4.15 Subsequent Amendment to Authorizing Statute. This Agreement has been
entered into in reliance upon the provisions of the Development Agreement Law in effect as of
the Effective Date. Accordingly, to the extent the subsequent amendment to the Development
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC8
Agreement Law would affect the provisions of this Agreement, such amendment shall not be
applicable to the Agreement unless necessary for this Agreement to be enforceable.
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC9
SIGNATURE PAGE TO
PALM DESERT COUNTRY CLUB DEVELOPMENT AGREEMENT
ATTEST:
By:
Rachelle D. Klassen, City Clerk
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER LLP
By:
Dave J. Erwin, City Attomey
CITY:
CITY OF PALM DESERT
a California charter city
By:
Its:
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC10
SIGNATURE PAGE TO
PALM DESERT COUNTRY CLUB
OWNER:
PDCC DEVELOPMENT, LLC
a California limited liability company
By:
Its:
By:
Its:
DAHOON INVESTMENT COMPANY, INC.,
a Califomia corporation
By:
Its:
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC1 1
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
On , 2004, before me, the undersigned notary public, personally appeared
, fl 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 the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC12
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
)
)
)
On , 2004, before me, the undersigned notary public, 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 the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC1 3
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
)
)
On , 2004, before me, the undersigned notary public, 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 the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC14
EXHIBIT "A" TO
PALM DESERT COUNTRY CLUB DEVELOPMENT AGREEMENT
Legal Description of Property
[Attached behind this page]
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC15
EXHIBIT "B" TO
PALM DESERT COUNTRY CLUB DEVELOPMENT AGREEMENT
[Attached behind this page]
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC16
EXHIBIT "C" TO
PALM DESERT COUNTRY CLUB DEVELOPMENT AGREEMENT
Description of Project and Existing Development Approvals - Golf Course
Improvements
[Attached behind this page]
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC17
Side Setback
Front Setback
Setback to Front in Garage
Rear Setback
Minimum Lot Width
Maximum Building Height
Zoning Ordinance
R-1 9,000
Minimum 5 ft.
with
totaling 14 ft.
20
20
15
70
18
Minimum Lot Area 9,000 sq.ft.
TR-6
as approved by
City
ditto
ditto
ditto
ditto
ditto
ditto
Zoning Modification
Minimum
Proposed
5 ft.
10
20
5
50
18
R-1 9,000 TR-6
9,000 4,691
C:1Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC1 8
Golf Course and Club House Improvements
The following improvements will be made to both the existing 9 Hole Executive and 18 Hole Golf
Courses as well as existing Club House facilities.
GOLF COURSE IMPROVEMENTS
1. Replace existing manual irrigation system with modern computerized irrigation
system.
2. Remove existing driving range and replace it with the new location for holes 1 and 2 and
54 residential units.
3. Delete and add fairway bunkers.
4. Recharge existing bunkers.
5. Modify existing and create new cart paths.
6. Reshape sand bunkers.
7. Rebuild lake.
8. Relocate trees.
9. Relocate tee boxes and greens.
10. Relocate Maintenance Facility
Said Golf Course improvements to cost up to $4 million .
CLUB HOUSE IMPROVEMENTS
1. Relocate cart storage barn.
2. Remodel interior and exterior of Club House.
3. Relocate parking lot.
Said Club House Improvements to cost up to $1 million.
Total Golf Course and Club House Improvements to cost up to $5 million.
C:\Documents and Settings\robert.hargreaves\My Documents\PDCC Development Agreement 3-12. DOC1 9