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HomeMy WebLinkAboutRes No 2477PLANNING COMMISSION RESOLUTION NO. 2477 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO CITY COUNCIL APPROVAL OF A DEVELOPMENT AGREEMENT, PRECISE PLAN OF DESIGN, CONDITIONAL USE PERMIT, AND MITIGATED NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT TO ALLOW THE CONSTRUCTION OF A NEW THREE-STORY 106-ROOM BOUTIQUE HOTEL AND A TWO-STORY CONDOMINUM UNIT INCLUDING SIXTEEN 3-BEDROOM LOCKOUT ROOMS (48 KEYS MAXIMUM) TOTALING A MAXIMUM OF 154 UNITS/KEYS. THE PROJECT INCLUDES 203 UNDERGROUND PARKING SPACES, A RESTAURANT AREA, GIFT SHOP, CONFERENCE AND MEETING ROOMS, SPA, AND AMENITIES INCLUDING A ROOF DECK POOL AND BAR, ROOF DECK GARDEN AND ROOF DECK PATIOS ON 11 OF THE 16 CONDOMINIUM UNITS. THE PROJECT IS LOCATED AT 45-400 LARKSPUR LANE, ALSO KNOWN AS APNS 627-262-008 AND 627-262- 011 CASE NOS: DA 07-02, PP 07-11, AND CUP 07-14 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 20th day of May 2008, hold a duly noticed public hearing to consider the request by the LARKSPUR ASSOCIATES, LLC. for approval of the above noted; 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. 06-78, the Director of Community Development has determined that the project will not have a negative impact on the environment and a Mitigated Negative Declaration has been prepared for adoption, 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 the recommendation to the City Council of said request: Precise Plan/Conditional Use Permit: 1. The proposed location of the project is in accordance with the objectives of the Zoning Ordinance and the purpose of the district in which the site is located. The project is located in a C-1 General Commercial zone and R-3 Multiple Family zone. Both zoning districts allow hotel development with a Conditional Use Permit. The purpose of the C-1 zone is to provide the City with a core area of specialty and general commercial shopping facilities which are inherent within a resort community. Hotel developments are PLANNING COMMISSION RESOLUTION NO. 2477 allowed with a Conditional Use Permit to support the commercial uses within a resort community, therefore the proposed project is in accordance with the objectives of the C-1 zone. The purpose of the R-3 zone is to provide suitable area for residents to live in a variety of housing types at high population densities consistent with sound standards of public health and safety. Historically the R-3 properties south of El Paseo, between Highway 74 and Deep Canyon Drive, have been a transitional land use area between the City's commercial core (Highway 111 and El Paseo) and south Palm Desert's single-family neighborhood. These properties consist of hotels, apartments, condominiums, medical and general office uses. The zone allows hotel development with a Conditional Use Permit as a transitional land use between the City's commercial core and single-family neighborhoods; therefore the proposed project is in accordance with the objectives of the R-3 zone. 2. The proposed location of the project and the conditions under which it will be operated and maintained will not be detrimental to the public health, safety or general welfare, or be materially injurious to properties or improvements in the vicinity. The proposed hotel use is consistent with the intent of the City's Zoning Ordinance as described above. The project has been conditioned to address public health and safety and will require permits from the City's Building and Safety Department, Finance Department, Riverside County Fire Marshal, as well as other local agencies. The project will not be detrimental to the public interest, health, safety, welfare and will not be materially injurious to properties or improvements in the vicinity. An environmental assessment leading to a Mitigated Negative Declaration has been prepared that concludes that there will be no adverse environmental effects. 3. The proposed project will comply with each of the applicable provisions of this Title 25 (Zoning). The proposed use is consistent with the intent of the Zoning Ordinance and will comply with the General Commercial (C-1) and Residential Multiple Family (R-3) zones. Additionally, conditions have been added to the project to ensure that all the minimum requirements of the Palm Desert Municipal Code are met. 4. The proposed project complies with the goals, objectives, and policies of the City's adopted General Plan. 2 PLANNING COMMISSION RESOLUTION NO. 2477 The proposed project is consistent with City's General Plan Commercial Core Area goal, objectives and policies by promoting sustainable economic benefits to the City and Redevelopment Agency on El Paseo, as well as keeping El Paseo a unique, pedestrian -oriented high -end retail shopping district. 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 the Planning Commission does hereby recommend approval of DA 07-02, PP 07-11, and CUP 07-14 subject to conditions. PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 20th day of May, 2008, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ATTEST: CAMPBELL, SCHMIDT, TANNER LIMONT NONE NONE '777 LAURI AYLAIAN, Secretary Palm Desert Planning Commission VAN G. TANNER, Chairperson 3 PLANNING COMMISSION RESOLUTION NO. 2477 CONDITIONS OF APPROVAL CASE NOS. DA 07-02, PP 07-11, AND CUP 07-14 DEPARTMENT OF COMMUNITY DEVELOPMENT: 1. The development of the property shall conform substantially with exhibits on file with the Department of Community Development/Planning, as modified by the following conditions. 2. 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. 3. Applicant agrees to maintain the landscaping required to be installed pursuant to these conditions. The final landscape plan shall include a Tong -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. 4. Access to trash/service areas shall be placed so as not to conflict with parking areas. Said placement shall be approved by applicable waste company and Department of Community Development and shall include a recycling program. 5. The project shall comply with the Energy Efficiency Standards, Ordinance No. 1124. 6. All sidewalk plans shall be reviewed and approved by the department of public works. 7. The project is subject to the Art in Public Places program per Palm Desert Municipal Code Chapter 4.10. 8. In the event that Native American cultural resources are discovered during project development/construction, all work in the immediate vicinity of the find shall cease and a qualified archaeologist meeting Secretary of Interior standards shall be hired to assess the find. Work on the overall project may continue during 4 PLANNING COMMISSION RESOLUTION NO. 2477 this assessment period. If significant Native American cultural resources are discovered that require a Treatment Plan, the developer or his archaeologist shall contact the Morongo Band of Mission Indians. If requested by the Tribe, the developer or archaeologist shall, in good faith, consult on the discovery and its disposition (e.g. avoidance, preservation, return, or artifacts to tribe, etc.). 9. The applicant shall salvage the existing Washingtonia sp. Palm trees to be reused as part of the landscaping for the proposed hotel. The applicant shall provide a relocation plan to the City's Landscape Specialist. Said plan shall illustrate how the palm trees will be salvaged, stored and maintained during the construction, and where they will be incorporated into the hotel landscaping plan. 10. Use of the roof decks on the front buildings shall be prohibited after 10:00 pm Sundays through Thursdays and after 12:00 am on Fridays and Saturdays. 11. The applicant shall provide an emergency backup generator onsite. The hotel will be used as a "cooling station" in the event of a power outage in the City of Palm Desert. 12. The applicant shall provide designated hybrid parking spaces that can be used for electric vehicles, golf carts and bicycles. 13. The proposed project shall meet the specifications of a Leadership in Energy and Environmental Design (LEED) Certified Green Building. 14. No outdoor entertainment on the roof deck patios, roof deck pool and bar, roof deck garden, and outdoor restaurant dining patio. 15. The applicant shall enter into a Development Agreement that allows a new boutique hotel totaling 154 units/keys as proposed and described in the site plan. As part of the project, the hotel will include condominium units totaling 16 suites with 3-bedroom lockout rooms for a total of 48 keys. The condominium approval is to allow financial flexibility for the financing purposes of the hotel and the Development Agreement shall provide a mechanism by which the condominium approval shall be revenue neutral to the City with respect to payment of Transient Occupancy Tax (TOT), i.e. the Development Agreement will enable the city to collect TOT from the units in amounts commensurate with the amounts that would be collected if the hotel were not subdivided into condominiums. The Agreement will shall stipulate that one hundred (100) percent of the condominium units must be made available as rental units for hotel guests when not being used by the unit owner for the unit owner's personal use. A condominium unit owner shall be allowed to use the unit for no more than two (2) weeks between November 1st and May 1st and for no more than two (2) weeks between May 2nd and October 31st without paying the TOT. Every condominium unit shall be subject to TOT, except for personal use described above, and each condominium unit shall be made available to hotel guest for transient use. No 5 PLANNING COMMISSION RESOLUTION NO. 2477 condominium unit shall be rented for more than twenty nine (29) consecutive days. No condominium unit shall be used or converted into any form of permanent residence. No condominium unit shall be used as a timeshare, factional or other vacation ownership. 16. All conditions of approval shall be recorded with the Riverside County Clerk's office before any building permits are issued. Evidence of recordation shall be submitted to the Department of Community Development/Planning. DEPARTMENT OF PUBLIC WORKS: 1. All landscape maintenance shall be performed by the property owner who shall maintain the landscaping per the City approved landscape document package for the life of the project, consistent with the Property Maintenance Ordinance (Ord. 801) and the approved landscaped plan. 2. 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. 3. Signalization fees, in accordance with City of Palm Desert Resolution Nos. 79-17 and 79-55, shall be paid prior to issuance of grading permit. 4. The project shall be subject to the Transportation Uniform Mitigation Fees (TUMF). Payment of said fees shall be at the time of building permit issuance. 5. A standard inspection fee shall be paid prior to issuance of grading permits. 6. Drainage fees, in accordance with Section 26.49 of the Palm Desert Municipal Code shall be paid to issuance of grading permit. 7. Storm drain 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. 8. Complete grading and improvement plans and specifications shall be submitted to the Director of Public Works for checking and approval prior to issuance of any permits. 9. 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. 10. Pad elevations are subject to review and modification in accordance with Chapter 26 of the Palm Desert Municipal Code. 6 PLANNING COMMISSION RESOLUTION NO. 2477 11. Landscape installation shall be drought tolerant in nature and in accordance with the City's Water Efficient Landscape Ordinance (24.04). 12. Landscape plans shall be submitted for review concurrently with grading plans. 13. Full public improvements, as required by Section 26 of the Palm Desert Municipal Code, shall be installed in accordance with applicable City standards including: • Installation of a 6-foot sidewalk along Shadow Mountain Drive and Larkspur Lane Rights -of -way necessary for the installation of the above referenced improvements shall be dedicated to the city prior to the issuance of any permits associated with this project. 14. All public and private improvements shall be inspected by the Department of Public Works and no Certification of Completion shall be granted until the improvements have been completed. 15. 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. 16. 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. 17. Entrance aisles to the underground parking area shall be a minimum of 24 feet in width with 2 feet clear on each side for a total of 28 feet, widening to 34 feet and/or a combination that achieves an acceptable turning radius on the ramp landings. 18. Parking stalls depths and aisles widths shall be adjusted to meet the minimum City development standards. Riverside County Fire Department: 1. With respect to the conditions of approval regarding the above referenced project, the Fire Department recommends the following fire protection measures be provided in accordance with City Municipal Codes, NFPA, UFC and UBC, or any recognized fire protection standards. 7 PLANNING COMMISSION RESOLUTION NO. 2477 The Fire Department is required to set a minimum fire flow for the remodel or construction of all buildings per UFC article 87. 2. A fire flow of 1500 gpm for a 1-hour duration at 20 psi residual 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 fire flow of 3000 gpm for commercial buildings. 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 150' feet from any portion of a commercial building 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. Install a complete NFPA 13 fire sprinkler system. This applies to all buildings with a 3000 square foot total cumulative floor area. The Fire Marshal shall approve the locations of all post indicator valves and fire department connections. All valves and connections shall not be less than 25' from the building and within 50' of an approved hydrant. Exempted are one and two family dwellings. 7. All valves controlling the water supply for automatic sprinkler systems and water - flow switches shall be monitored and alarmed per UBC Chapter 9. 8. Install a fire alarm system as required by the UBC Chapter 3. 9. Install portable fire extinguishers per NFPA 10, but not Tess than one 2A10BC extinguisher per 3000 square feet and not over 75' walking distance. A "K" type fire extinguisher is required in all commercial kitchens. 10. 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 not be 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. 11. 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". 12. A second access is required. This can be accomplished by two main access points from the main roadway or an emergency gate from an adjoining property. 8 PLANNING COMMISSION RESOLUTION NO. 2477 13. All buildings shall have illuminated addresses of a size approved by the city. 14. All fire sprinkler systems, fixed fire suppression systems and alarm plans must be submitted separately to the Fire Marshal for approval prior to construction. 15. Conditions subject to change with adoption of new codes, ordinances, laws or when building permits are not obtained within 12 months. 16. Standpipes required in courtyard, roof and all stairways per CBC. 17. Sprinkler required in underground parking per CBC CFC. 18. Full fire alarm system required per CBC. 19. Fire Department Emergency Access shall remain per plan. 9 PLANNING COMMISSION RESOLUTION NO. 2477 EXHIBIT "A" MITIGATED NEGATIVE DECLARATION Pursuant to Title 14, Division 6, Article 6 (commencing with section 15070) of the California Code of Regulations. CASE NOS: DA 07-02, PP 07-11, AND CUP 07-14 APPLICANT/PROJECT SPONSOR: Larkspur Associates, LLC. 73-626 Highway 111 Palm Desert, CA 92260 PROJECT DESCRIPTION/LOCATION: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 A Development Agreement, Precise Plan of design, Conditional Use Permit, and Mitigated Negative Declaration of Environmental Impact to allow the construction of a new three-story 106-room boutique hotel and two-story condominium unit including sixteen 3- bedroom lockout rooms (48 keys maximum) totaling a maximum of 154 units/keys. The project includes 203 underground parking spaces, a restaurant area, gift shop, conference and meeting rooms, spa, and amenities including a roof deck pool and bar, roof deck garden and roof deck patios on 11 of the 16 condominium units. The project is located at 45-400 Larkspur Lane, also known as APNs 627-262-008 and 627-262-011. 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. Mav 20, 2008 LAURI AYLAIAN DATE DIRECTOR OF COMMUNITY DEVELOPMENT 10 PLANNING COMMISSION RESOLUTION NO. 2477 EXHIBIT "B" DRAFT DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of this day of , 2008, by and between the City of Palm Desert, California, a municipal corporation organized and existing under the laws of the State of California (the "City), and LARKSPUR ASSOCIATES, LLC ("Developer"), with reference to the following facts, understandings and intentions of the parties: RECITALS: A. These Recitals refer to and utilize certain capitalized terms which are defined in this Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. Government Code Sections 65684 through 65869.5 inclusive (the "Development Agreement Legislation") authorize the City to enter into development agreements in connection with the development of real property within its jurisdiction. On August 11, 1983, the City enacted by Ordinance No. 341, as amended on December 7, 1989 by Ordinance No. 589 (collectively, the "Development Agreement Ordinance"), procedures and requirements for the consideration of development agreements thereunder pursuant to the Development Agreement Legislation. C. Developer is the owner of a legal or equitable interest in the Property and is entitled to have filed the application for and to enter into this Agreement. The Project consists of the future development of the Property. The Property is located at an 11 PLANNING COMMISSION RESOLUTION NO. 2477 important location in the City and the coordinated development of the Project pursuant to this Agreement represents an important and mutually beneficial economic development and land usage planning opportunity for the City and Developer. D. The City has determined that the development of the Project as contemplated by this Agreement is consistent with and in furtherance of the development goals, policies, general land uses and development programs of the City as set forth in the City's General Plan and is consistent with the existing zoning affecting the Property. E. City has further determined that entry into this Agreement will further the goals and objectives of the City's land use planning policies by, among other things, encouraging investment, providing precise and supplemental criteria for the uses, design, circulation and development of the Property, including flexibility in land use options which may be altered in order to respond to future changes in the surrounding areas, eliminating uncertainty in planning for, and securing orderly processing and development of the Project. The benefits conferred on the City by Developer herein will (i) insure consistent, comprehensive planning which will result in aesthetically pleasing, environmentally harmonious, and economically viable development within the City; (ii) provide for the creation of a high quality, aesthetically pleasing entry statement for the City; (iii) provide for the construction of storm water system improvements vital to the City; and (iv) further the development objectives of the City in an orderly manner, all of which will significantly promote the health, safety and welfare of the residents of the City. In exchange for these benefits to the City, Developer desires to receive the assurance that it may proceed with the Project in accordance with the Development 12 PLANNING COMMISSION RESOLUTION NO. 2477 Plan attached to this Agreement as Exhibit "A", and at a rate of development of its choosing, subject to the terms and conditions contained in this Agreement. F. By adopting this Agreement, the City Council has elected to exercise certain governmental powers at the present time rather than deferring such actions until an undetermined future date and has done so intending to bind the City and the City Council and intending to limit the City's future exercise of certain governmental powers, to the extent permitted by law. G. This Agreement has undergone extensive review by the City's staff, the Planning Commission and the City Council. H. In order to effectuate the foregoing, the parties desire to enter into this Agreement. NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, and in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: 1. Definitions. 1.1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. 1.2 Agreement. This Development Agreement. 1.3 Building Ordinances. Those building standards, of general and uniform application throughout the City and not imposed solely with respect to the 13 PLANNING COMMISSION RESOLUTION NO. 2477 Property, in effect from time to time that govern building and construction standards within the City, including, without limitation, the City's building, plumbing, electrical, mechanical, grading, sign, and fire codes. 1.4 City Council. The legislative body of the City of Palm Desert. 1.5 Effective Date. The date on which the Enacting Ordinance becomes effective. 1.6 Enacting Ordinance. Ordinance , enacted by the City Council on , 2008, approving this Agreement. 1.7 Existing Land Use Ordinances. The Land Use Ordinances in effect as of the Effective Date. 1.8 Land Use Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of the City, governing the development of the Property, including but not limited to, the permitted uses of land, the density and intensity of use of land, and the timing of development, all as applicable to the development of the Property. Specifically, but without limiting the generality of the foregoing, Land Use Ordinances shall include the City's General Plan, the City's zoning ordinance and the City's subdivision code, but shall exclude the Building ordinances. 1.9 Mortgage. A mortgage, deed of trust, sale and leaseback arrangement in which all or a part of the Property, or an interest in it, is sold and leased back concurrently, or other transactions in which all or a part of the Property, or an interest in it, is pledged as security, contracted in good faith and for fair value. 1.10 Project. The development and associated amenities, and on -site and off -site improvements, as permitted under and described in the Development Plan 14 PLANNING COMMISSION RESOLUTION NO. 2477 (Exhibit "A"), to be constructed on the Property, as the same may hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement. 1.11 Property. The real property and any improvements thereon which is described in Exhibit "B" to this Agreement. 2. Term; Amendment. 2.1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate on the ( ) year anniversary date of the Effective Date, unless sooner terminated or extended as hereinafter provided. 2.2 Amendment. The parties to this Agreement at their sole discretion and by their mutual written consent may from time to time amend the provisions and terms of this Agreement and the Exhibits hereto. Any amendment to this Agreement or the Exhibits hereto as provided herein shall be effected only upon compliance with the procedures for amendment, if any, required by the Development Agreement Legislation and the Development Agreement Ordinance. The City shall, after any such amendment takes effect, cause an appropriate notice of such amendment to be recorded in the official records of the County of Riverside. 3. General Development of the Project 3.1 Proiect. (a) The Project is defined and described in the Development Plan attached to this Agreement as Exhibit "A", which specifies for the purpose of this Agreement all of the aspects of the Project contained in the application and conditions of PP 07-11, CUP 07-14 and this Development Agreement DA 07-02 including all conditions contained in said approval and this Agreement. 15 PLANNING COMMISSION RESOLUTION NO. 2477 (b) Developer shall have the vested right to develop the Project in accordance with, and development of the Project during the Term shall be governed by, the Development Plan and, to the extent not inconsistent with or modified by the Development Plan, the Existing Land Use Ordinances. Developer's right to develop the Property in accordance with this Section 3.1 shall be without regard to future ordinances, resolutions, rules, regulations and policies of the City or referenda of the voters of the City, including, without limitation, those with respect to moratoriums for utility service, other than ordinances, resolutions, rules, regulations and policies of the City which limit or condition the rate, timing or sequencing of development of the Property and which are required solely as a result of the existing shortages of utility service capacity or facilities. 3.2 Building Permits and Other Approvals and Permits. Subject to (a) Developer's compliance with this Agreement, the Development Plan, the Existing Land Use Ordinances and the Building Ordinances, and (b) payment of the usual and customary fees and charges of general application charged for the processing of such applications, permits and certificates and for any utility connection, or similar fees and charges of general application, the City shall process and issue to Developer promptly upon application therefore all necessary use permits, building permits, occupancy certificates, and other required permits for the construction, use and occupancy of the Project, or any portion thereof, as applied for, including connection to all utility systems under the City's jurisdiction and control (to the extent that such connections are physically feasible and that such utility systems are capable of adequately servicing the Project). 16 PLANNING COMMISSION RESOLUTION NO. 2477 3.3 Procedures and Standards. The standards for granting or withholding permits or approvals required hereunder in connection with the development of the Project shall be governed as provided herein by the standards, terms and conditions of this Agreement and the Development Plan, and to the extent not inconsistent therewith, the Existing Land Use Ordinances, but the procedures for processing applications for such permits pre -approvals .(including the usual and customary fees of general application charged for such processing) shall be governed by such ordinances and regulations as may then be applicable and which are consistent with the Development Plan. 3.4 Effect of Agreement. This Agreement shall constitute a part of the Enacting Ordinance, as if incorporated by reference therein in full. The parties acknowledge that this Agreement is intended to grant Developer the right to develop the Project pursuant to specified and known criteria and rules as set forth in the Development Plan and the Existing Land Use Ordinances, and to grant the City and the residents of the City certain benefits which they otherwise would not receive. This Agreement shall be binding upon the City and its successors in accordance with and subject to its terms and conditions notwithstanding any subsequent action of the city, whether taken by ordinance or resolution of the City Council, by referenda, initiative, or otherwise. The parties acknowledge and agree that by entering into this Agreement and relying thereupon, the Developer has obtained, subject to the terms and conditions of this Agreement, a vested right to proceed with its development of the Project in accordance with the proposed uses of the Property, the density and intensity of development of the Property and the requirements and guidelines for the 17 PLANNING COMMISSION RESOLUTION NO. 2477 construction or provision of on -site and off -site improvements as set forth in the Development Plan and the Existing Land Use Ordinances, and the City has entered into this Agreement in order to secure the public benefits conferred upon it hereunder which are essential to alleviate current and potential problems in the City and to protect the public health, safety and welfare of the City and its residents, and this Agreement is an essential element in the achievement of those goals. 3.5 Operating Memoranda. Developer and City acknowledge that the provisions of this Agreement require a close degree of cooperation between Developer and City, and that refinements and further development of the Project may demonstrate that changes or additional provisions are appropriate with respect to the details of performance of the parties under this Agreement in order to effectuate the purpose of this Agreement and the intent of the parties with respect thereto. If and when, from time to time, the parties find that such changes or additional provisions are necessary or appropriate, and subject to the provisions of the next succeeding sentence, they shall effectuate such changes or provide for such additional provisions through operating memoranda to be approved in good faith by the parties, which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further changed or supplemented from time to time as necessary, with further good faith approval of Developer and City. Upon receipt by the City of an opinion of the City Attorney to the effect that the subject matter of such operating memoranda does not require the amendment of this Agreement in the manner provided in Section 65868 of the California Government Code, then no such Operating memoranda shall require prior notice or hearing, or constitute an amendment to this Agreement; and in the case of the City, such 18 PLANNING COMMISSION RESOLUTION NO. 2477 operating memoranda may be approved and executed by its Community Development Director or City Manager without further action of the City Council. Failure of the parties to enter into any such operating memoranda shall not affect or abrogate any of the rights, duties or obligations of the parties hereunder or the provisions of this Agreement. 4. Specific Criteria Applicable to Development of the Project. 4.1 Applicable Ordinances. Except as set forth in the Development Plan and subject to the provisions of Section 4.2 below, the Existing Land Use ordinances shall govern the development of the Property hereunder and the granting or withholding of all permits or approvals required to develop the Property; provided, however, that (a) Developer shall be subject to all changes in processing, inspection and plan -check fees and charges imposed by City in connection with the processing of applications for development and construction upon the Property so long as such fees and charges are of general application and are not imposed solely with respect to the Property, (b) Developer shall abide by the Building ordinances in effect at the time of such applications, and (c) Developer and/or Operator of the project shall comply with all ordinances relating to operation including but not limited to Transient Occupancy Tax. 4.2 Amendment to Applicable Ordinances. In the event that the Palm Desert zoning ordinance is amended by the City in a manner which provides more favorable site development standards for the Property or any part thereof than those in effect as of the Effective Date, Developer shall have the right to notify the City in writing of its desire to be subject to all or any such new standards for the remaining term of this Agreement. If City agrees, by resolution of the City Council or by action of a City official whom the City Council may designate, such new standards shall become applicable to 19 PLANNING COMMISSION RESOLUTION NO. 2477 the Property or portions thereof. Should City thereafter amend such new standards, upon the effective date of such amendment, the original new standards shall continue to apply to the Property as provided above, but Developer may notify City in writing of its desire to be subject to all or any such amended new standards and City may agree in the manner above provided to apply such amended new standards to the Property. 4.3 Easements; Abandonments. City shall cooperate with Developer in connection with any arrangements for abandoning existing utility or other easements and the relocation thereof or creation of any new easements within the Property necessary or appropriate in connection with the development of the Project; and if any such easement is owned by City, City shall, at the request of Developer and in the manner and to the extent permitted by law, take such action and execute such documents as may be necessary to abandon existing easements and relocate them, as necessary or appropriate in connection with the development of the Project, all at the cost and expense of the Developer. In addition, to the extent that temporary or permanent easements on property adjacent or in close proximity to the Property will be required in order for Developer to develop all or portions of the Project, the City shall cooperate with Developer in efforts to obtain or secure any such required easements. 5. Art In Public Places. The City and Developer desire to cooperate with each other to secure the introduction and integration of public art into the Project for the purpose of enhancing the image of the City and the Project. Developer shall, at the request of the City, provide such easements upon the Property as may be reasonably required for the installation and maintenance of such public art. The location of such easements shall be mutually approved by the City and Developer. In addition to providing 20 PLANNING COMMISSION RESOLUTION NO. 2477 such easements as may be reasonably required for the installation and maintenance of such public art, Developer shall pay to the City in lieu art fees at the time of and in connection with the development of the Property, or portions thereof, in accordance with the fee levels and other payment and procedural requirements of Chapter 4.10 of the Municipal Code of the City lawfully imposed at the time of development of the Property, or portions thereof. 6. Periodic Review of Compliance. In accordance with Govt. Code Section 65865.1, the Department of Community Development/Planning Staff shall review this Agreement at least each calendar year during the term of this Agreement. At such periodic reviews, Developer must demonstrate its good faith compliance with the terms of this Agreement. Developer agrees to furnish such evidence of good faith compliance as the City, and after reasonable exercise of its discretion and after reasonable notice to Developer, may require. 7. Permitted Delays; Supersedure by Subsequent Laws. 7.1 Permitted Delays. In addition to any other provisions of this Agreement with respect to delay, Developer and City shall be excused from performance of their obligations hereunder during any period of delay caused by acts of mother nature, civil commotion, riots, strikes, picketing, or other labor disputes, shortage of materials or supplies, or damage to or prevention of work in process by reason of fire, floods, earthquake, or other casualties, litigation, acts or neglect of the other party, any referendum elections held on the Enacting Ordinance, or the Land Use Ordinances, or any other ordinance effecting the Project or the approvals, permits or other entitlements related thereto, or restrictions imposed or mandated by governmental or quasi- 21 PLANNING COMMISSION RESOLUTION NO. 2477 governmental entities, enactment of conflicting provisions of the Constitution or laws of the United States of America or the State of California or any codes, statutes, regulations or executive mandates promulgated thereunder (collectively, "Laws") , orders of courts of competent jurisdiction, or any other cause similar or dissimilar to the foregoing beyond the reasonable control of City or Developer, as applicable. Each party shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. The time of performance of such obligations shall be extended by the period of any delay hereunder. 7.2 Supersedure of Subsequent Laws or Judicial Action. The provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to comply with any new Law or decision issued by a court of competent jurisdiction (a "Decision"), enacted or made after the Effective Date which prevents or precludes compliance with one or more provisions of this Agreement. Promptly after enactment of any such new Law, or issuance of such Decision, the parties shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. In addition, Developer and City shall have the right to challenge the new Law or the Decision preventing compliance with the terms of this Agreement. In the event that such challenge is successful, this Agreement shall remain unmodified and in full force and effect, except that the Term shall be extended, in accordance with Section 7.1 above, for a period of time equal to the length of time the challenge was pursued. 8. Events of Default; Remedies; Termination. 22 PLANNING COMMISSION RESOLUTION NO. 2477 8.1 Events of Default. Subject to any extensions of time by mutual consent in writing, and subject to the provisions of Section 7.1 above regarding permitted delays, the failure of either party to perform any material term or provision of this Agreement shall constitute an event of default hereunder ("Event of Default") if such defaulting party does not cure such failure within ninety (90) days following receipt of written notice of default from the other party; provided, however, that if the nature of the default is such that it cannot be cured within such ninety (90) day period, the commencement of the cure within such ninety (90) day period and the diligent prosecution to completion of the cure shall be deemed to be a cure within such period. Any notice of, default given hereunder shall specify in detail the nature of the alleged Event of Default and the manner, if any, in which such Event of Default may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the party charged therewith shall not be considered to be in default for purposes of termination of this Agreement, institution of legal proceedings with respect thereto, or issuance of any permit, map, certificate of occupancy, approval or entitlement with respect to the Project. 8.2 Remedies. Upon the occurrence of an Event of Default, the nondefaulting party shall have such rights and remedies against the defaulting party as it may have at law or in equity, including, but not limited to, the right to damages and the right to terminate this Agreement or seek mandamus, specific performance, injunctive or declaratory relief. Notwithstanding the foregoing and except as otherwise provided in Section 8.4 hereof, if either Developer or City elects to terminate this Agreement as a result of the occurrence of an Event of Default, such proceeding of termination shall 23 PLANNING COMMISSION RESOLUTION NO. 2477 constitute such party's exclusive and sole remedy, and with respect to such election City and Developer hereby waive, release and relinquish any other right or remedy otherwise available under this Agreement or at law or equity. 8.3 Waiver: Remedies Cumulative. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party shall not constitute waiver of such party's right to demand strict compliance by such other party in the future. All waivers must be in writing to be effective or binding upon the waiving party, and no waiver shall be implied from any omission by a party to take any action with respect to such Event of Default. No express written waiver of any Event of Default shall affect any other Event of Default, or cover any other period of time specified in such express waiver. 8.4 Effect of Termination. Termination of this Agreement by one party due to the other party' s default, or as a result of the exercise of the right of termination provided to the Developer under Section 8.2 hereof, shall not affect any right or duty emanating, from any approvals, permits, certificates or other entitlements with respect to the Property or the Project which were issued, approved or provided by the City prior to the date of termination of this Agreement. If City terminates this Agreement because of Developer's default, then City shall retain any and all benefits, including money, land or improvements conveyed to or received by the City prior to the date of termination of this Agreement, subject to any reimbursement obligations of the City. If Developer terminates this Agreement because of City's default, or as a result of the exercise of the right of termination provided to the Developer under Section 8.2 hereof, then Developer shall be entitled to all of the benefits arising out of, or approvals, permits, certificates or other 24 PLANNING COMMISSION RESOLUTION NO. 2477 entitlements, on account of, any Exactions paid, given or dedicated to, or received by, City prior to the date of termination of this Agreement. Except as otherwise provided in this Section 8.4, all of the rights, duties and obligations of the parties hereunder shall otherwise cease as of the date of the termination of this Agreement. If this Agreement is terminated pursuant to any provision hereof, then the City shall, after such action takes effect, cause an appropriate notice of such action to be recorded in the official records of the County of Riverside. The cost of such recordation shall be borne by the party causing such action. 8.5 Third Party Actions. Any court action or proceeding brought by any third party to challenge this Agreement or any permit or approval required from City or any other governmental entity for development or construction of all or any portion of the Project, whether or not Developer is a party defendant to or real party defendant in interest in such action or proceeding, shall constitute a permitted delay under Section 7.1. 9. Encumbrances on Property. 9.1 Discretion to Encumber. The parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering the Property or any portion thereof or any improvements thereon with any mortgage, deed of trust or other security device ("Mortgage") securing financing with respect to the Property. The City acknowledges that the lenders providing such financing may require certain modifications to this Agreement, and the City agrees upon request, from time -to -time, to meet with Developer and/or representatives of such lenders to negotiate in good faith any such request for 25 PLANNING COMMISSION RESOLUTION NO. 2477 modification. City further agrees that it will not unreasonably withhold its consent to any such requested modification. 9.2 Mortgage Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Site or any portion thereof by a Mortgagee (whether pursuant to a Mortgage, foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise) shall be subject to all of the terms and conditions of this Agreement. 9.3 Mortgagee Not Obligated. Notwithstanding the provisions of Section 9.2, no Mortgagee will have any obligation or duty under this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that to the extent that any covenant to be performed by Developer is a condition to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's performance hereunder. 9.4 Estoppel Certificates. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified, or if so amended or modified, identifying such amendments or modifications, and (iii) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within 26 PLANNING COMMISSION RESOLUTION NO. 2477 thirty (30) days following the receipt thereof city acknowledges that a certificate hereunder may be relied upon by transferees, assignees and lessees of the Developer and the holders of any Mortgage. 10. Transfers and Assignments; Effect of Agreement on Title. 10.1 Rights and Interests Appurtenant. The rights and interests conveyed as provided herein to Developer benefit and are appurtenant to the Property. Developer has the right to sell, assign and transfer any and all of its rights and interests hereunder and to delegate and assign any and all of its duties and obligations hereunder. Such rights and interests hereunder may not be sold, transferred or assigned and such duties and obligations may not be delegated or assigned except in compliance with the following conditions: (i) Said rights and interests may be sold, transferred or assigned only together with and as an incident of the sale, lease, transfer or assignment of the portions of the Property to which they relate, including any transfer or assignment pursuant to any foreclosure of a Mortgage or a deed in lieu of such foreclosure. Following any such sale, transfer or assignment of any of the rights and interests of Developer under this Agreement, the exercise, use and enjoyment thereof shall continue to be subject to the terms of this Agreement to the same extent as if the purchaser, transferee or assignee, were Developer hereunder. 10.2 Covenants Run with Land. (i) AD of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors (by merger, consolidation, or otherwise) and 27 PLANNING COMMISSION RESOLUTION NO. 2477 assigns, devisees, lessees, and all other persons acquiring any rights or interests in the Property, or any portion thereof, whether by operation of laws or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns; (ii) All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law; (iii) Each covenant to do or refrain from doing some act on the Property hereunder (A) is for the benefit of and is a burden upon every portion of the Property, (B) runs with such lands, and (C) is binding upon each party and each successive owner during its ownership of the Property or any portions thereof, and shall benefit each party and its lands hereunder, and each such other person or entity succeeding to an interest in such lands 11. Notices. Any notice to either party shall be in writing and given by delivering the same to such party in person or by sending the same by registered or certified mail, return receipt requested, with postage prepaid, to the following addresses: If to City: City Clerk of the City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 If to Developer: Larkspur Associates LLC 73626 Highway 111 Palm Desert, CA 92260 28 PLANNING COMMISSION RESOLUTION NO. 2477 Either party may change its mailing address at any time by giving written notice of such change to the other party in the manner provided herein. All notices under this Agreement shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. 12. Indemnification. 12.1 Developer's Obligation. Developer will defend, indemnify and hold the City and its elected officials, officers and employee free and harmless from any Toss, 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 obligation which arises from the development of the Property including, without limitation, obligations for the payment of money for material and labor; (ii) any failure on the part of Developer to take any action which he is required to take as provided in this Agreement; (iii) any action taken by Developer which he prohibited from taking as provided in this Agreement and (iv) any claim which results from any willful or negligent act or omission of Developer.. 12.2 City's Obligation. The City will defend, indemnify and hold Developer and its, trustees„ beneficiaries, shareholders, directors, officers and employees 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 worker's compensation claims) which results from (i) any failure on the part of the City to take any action which it is required to take as provided in this Agreement, (ii) any action taken by 29 PLANNING COMMISSION RESOLUTION NO. 2477 the City which it is prohibited from taking as provided in this Agreement and (iii) any claim which results from any willful or negligent act or omission of the City. 12.3 Environmental Assurances. Developer shall indemnify and hold the city, its officers, agents and employees free and harmless from any liability deriving from the City's execution or performance of this Agreement, based or asserted, upon any act or omission of Developer, its officers, agents, employees, contractors, subcontractors and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to hazardous or toxic materials, industrial hygiene, or environmental conditions created by Developer or its officers, agents or employees, contractors, subcontractors and independent contractors after the Effective Date on, under which the Property, including, but not limited to soil and groundwater conditions, and Developer shall defend, at its expense, including attorneys fees, the City its officers, agents and employees in any action based or asserted upon any such alleged act or omission. The City may in its discretion participate in the defense of any such action. The provisions of this Section 13.3 shall survive the termination or expiration of this Agreement. 13.0 Miscellaneous 13.1 Relationship of Parties. It is understood that 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 contractor. It is further understood that none of the terms or provisions of this Agreement are intended to or shall be deemed to create a partnership, joint venture or joint enterprise between the parties hereto. 13.2 Consents. Unless otherwise herein provided, whenever approval, consent, acceptance or satisfaction (collectively, a "consent") is required of a party 30 PLANNING COMMISSION RESOLUTION NO. 2477 pursuant to this Agreement, it shall not be unreasonably withheld or delayed. Unless provision is otherwise specified in this Agreement or otherwise required by law for a specific time period, consent shall be deemed given within thirty (30) days after receipt of the written request for consent, and if a party shall neither approve nor disapprove within such thirty (30) day period, or other time period as may be specified in this Agreement or otherwise required by law for consent, that party shall then be deemed to have given its consent. If a party shall disapprove, the reasons therefor shall be stated in reasonable detail in writing. This Section does not apply to development approvals by the City. 13.3 Not a Public Dedication. Except as otherwise expressly provided herein, nothing herein contained shall be deemed to be a gift or dedication of the Property, or of the Project or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. 13.4 Severability. If any term, provision covenant or condition of this Agreement shall be determined invalid, void or unenforceable by judgment or court order, the remainder of this Agreement shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the relevant circumstances or would frustrate the purposes of this Agreement. 13.5 Exhibits. The Exhibits listed in the Table of Contents, to which reference is made herein, are deemed incorporated into this Agreement in their entirety by reference thereto. 31 PLANNING COMMISSION RESOLUTION NO. 2477 13.6 Entire Agreement. This written Agreement and the Exhibits hereto contain all the representations and the entire agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement and the Exhibits hereto, any prior correspondence, memoranda, agreements, warranties or representations are superseded in total by this Agreement and Exhibits hereto. 13.7 Governing Law: Construction of Agreement. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the state of California. The provisions of this Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties hereunder. The captions preceding the text of each Section, subsection and the Table of Contents hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. 13.8 Signature Pages. For convenience, the signatures of the parties of this Agreement may be executed and acknowledged on separate pages which, when attached to this Agreement, shall constitute this as one complete Agreement. 13.9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 13.10 Prevailing Party's Attorney's Fees and Costs. If any party to this Agreement shall fail to perform any of its obligations hereunder, or if a dispute arises with 32 PLANNING COMMISSION RESOLUTION NO. 2477 respect to the meaning or interpretation of any provision hereof or the performance of the obligations of any party hereto, the defaulting party or the party not prevailing in such dispute, as the case may be, shall promptly pay any and all costs and expenses (including without limitation, all court costs and reasonable attorneys' fees and expenses) incurred by the other party with respect to such to such dispute or in enforcing or establishing its rights hereunder. Notwithstanding the foregoing, City shall not be required to pay any costs or expenses (including without limitation, reasonable attorneys' fees and expenses) which Developer may incur in respect of any hearing held pursuant to Section 7 hereof. 33 PLANNING COMMISSION RESOLUTION NO. 2477 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written. DEVELOPER: By: LARKSPUR ASSOCIATES, LLC CITY: CITY OF PALM DESERT, CALIFORNIA, a municipal corporation organized and existing under the laws of the State of California By: . Mayor Attest: Rachelle Klassen, City Clerk 34 PLANNING COMMISSION RESOLUTION NO. 2477 STATE OF CALIFORNIA COUNTY OF RIVERSIDE On , 2008 before me, (here insert name and title of notary), personally appeared , personally known to me 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 STATE OF CALIFORNIA COUNTY OF RIVERSIDE (Seal) On , 2008 before me, (here insert name and title of notary), personally appeared , personally known to me 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 35