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HomeMy WebLinkAboutRes No 2479PLANNING COMMISSION RESOLUTION NO. 2479 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF A PRECISE PLAN / CONDITIONAL USE PERMIT AND DEVELOPMENT AGREEMENT TO CONSTRUCT A 20- UNIT SENIOR CITIZEN APARTMENT PROJECT ON THE NORTH SIDE OF CATALINA WAY LOCATED AT 73-582 CATALINA WAY. CASE NOS. DA/PP/CUP 08-50 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 1st of July, 2008, hold a duly noticed public hearing to consider the request of Bernard Investment Group / Ken Bernard for the above mentioned project; 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," in that the Director of Community Development has determined that the project is a Class 32 categorical exemption; 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 said precise plan / conditional use permit and development agreement: Precise Plan/Conditional Use Permit: 1. The proposed location of the precise plan / conditional use is in accord with the objectives of the Zoning Ordinance and the purpose of the district in which the site is located. The proposed project is zoned R-2, with a Senior Housing Overlay and the district allows flexibility with a variety of types of dwellings at a medium range of population densities, and also to provide optional standards and incentives for the development of a wide variety of specialized housing designed and restricted to residents over the age of 55. The proposed project is a 20-unit affordable, infill senior complex for residents over the age of 55, which is in accord with the objectives of the Zoning Ordinance and is consistent with the uses outlined in section 25.38.030 Conditional uses. 2. The proposed location of the precise plan / conditional use 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. PLANNING COMMISSION RESOLUTION NO. 2479 The project will be a new development in an older area of the community and as such may lead to other properties upgrading. The proposed project as conditioned will comply with current Building and Safety Codes, Fire Department and Reviewed by the City's Engineering Department for compliance with City Ordinance. The use of the 20-unit senior complex is permitted within the R-2, Senior Overlay zone subject to a Conditional Use Permit (for the land use) and is consistent with the intent of the City's Zoning Ordinance as described in the staff report. The site meets setbacks, lot coverage, building height, land use, and parking such that it will not be detrimental to the public interest, health, safety, welfare and will not be materially injurious to properties or improvements in the vicinity as described in more detail in the Staff report. A condition of approval has been placed on the project which will require the project proponent to construct all necessary on and off -site infrastructure to provide utilities to the proposed project prior to the issuance of Building Permits. Water, sanitation and public utilities and services are available in Catalina Way, a public street. 3. The proposed precise plan / conditional use will comply with each of the applicable provisions of this title, except for approved variances or adjustments. The property is located in the Senior Housing Overlay District (S.O.) and the project complies with all provisions of the base zone (R-2) and the provisions of the Senior Overlay. The project is in accord with the objectives of the Zoning Ordinance. Additionally, conditions have been added to the project to ensure that all the minimum requirements of the Palm Desert Municipal Code are met, including building, landscaping, public works, and the fire department conditions. The project requires no variances or adjustments. 4. The proposed precise plan / conditional use complies with the goals, objectives, and policies of the city's adopted General Plan. A primary objective stated in the Land Use Element of the General Plan under Residential Goals, Policies and Programs is Goal 1, which states a balanced range of housing types, densities and affordabilities that accommodate existing and future residents across all socio-economic sectors of the community. Policy 3 of the General Plan Land Use Element is that the City shall encourage in -fill development on lands located adjacent to or near existing residential areas and utilities to maximize the efficient utilization of land and infrastructure. Policy 8 of the General Plan Land Use Element is low income/affordable housing shall not be located within one area of the community, but shall be dispersed where feasible, appropriate, and compatible with surrounding land uses. 2 PLANNING COMMISSION RESOLUTION NO. 2479 This project promotes a land use that is consistent with the goals, policies, and programs of the General Plan. The project is consistent with the General Plan because the project proposes a 20-unit affordable, infill senior complex, which is compatible with the existing uses within the surrounding area, and offers an excellent service to the community. 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 commission in this case. 2. That approval of Development Agreement, Precise Plan / Conditional Use Permit 08-50, is hereby recommended to the City Council, subject to the attached conditions. PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 1st day of July, 2008, by the following vote, to wit: AYES: CAMPBELL, LIMONT, SCHMIDT, TANNER NOES: NONE ABSENT: NONE ABSTAIN: NONE ATTEST: LAURI AYLAIAN, Secretary Palm Desert Planning Commission i VAN G. TANNER, Chairperson 3 PLANNING COMMISSION RESOLUTION NO. 2479 CONDITIONS OF APPROVAL CASE NOS. DA/PP/CUP 08-50 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. 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 shall be subject to the restrictions and limitations set forth herein which are in addition to all municipal ordinances and 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. 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 4 PLANNING COMMISSION RESOLUTION NO. 2479 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. 8. Applicant shall execute and obtain approval of the City Council of the attached development agreement prior to obtaining a building permit for the project. Department of Public Works: 1. All landscape maintenance shall be performed by the property owner and the applicant shall enter into a landscape maintenance agreement with the city for the life of the project, consistent with the Municipal Code provisions 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 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 prior to issuance of grading permits. 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. 5 PLANNING COMMISSION RESOLUTION NO. 2479 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 City standards including: Installation of 6' sidewalk with dedication or easement. 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 occupancy permit 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. Westernmost driveway shall be narrowed to 12' and signed as "Exit Only". 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. 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 2500 gpm for multifamily dwellings. 6 PLANNING COMMISSION RESOLUTION NO. 2479 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 165 feet from any portion of a multifamily 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. Install a complete NFPA 13R 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. (13 R and attic protector) 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 less 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, mount CU exterior of building. 10. All buildings shall have illuminated addresses of a size approved by the city. 11. All fire sprinkler systems, fixed fire suppression systems and alarm plans must be submitted separately to the Fire Marshal for approval prior to construction. 12. Conditions subject to change with adoption of new codes, ordinances, laws or when building permits are not obtained within 12 months. Building and Safety Department: 1. Project must conform to the current State of California Codes adopted at the time of plan check submittal. The following are the codes enforced at this time: 2007 CALIFORNIA 2007 CALIFORNIA 2007 CALIFORNIA 2007 CALIFORNIA 2007 CALIFORNIA 2007 CALIFORNIA 2007 CALIFORNIA BUILDING CODE (Based on 2006 IBC) MECHANICAL CODE (Based on 2006 UMC) PLUMBING CODE (Based on 2006 UPC) ELECTRICAL CODE (Based on 2005 NEC) ENERGY CODE BUILDING STANDARDS ADMINISTRATIVE CODE FIRE CODE 7 PLANNING COMMISSION RESOLUTION NO. 2479 2. An approved automatic fire sprinkler system shall be installed as required per the City of Palm Desert Code Adoption Ordinance 1145. 3. Compliance with Ordinance 1124, Local Energy Efficiency Standards. The requirements are more restrictive than the 2007 California Energy Code. Please obtain a copy of the Ordinance for further information. 4. A disabled access overlay of the precise grading plan is required to be submitted to the Dept of Building and Safety for plan review of the site accessibility requirements as per 2007 CBC Chapters 11A & B (as applicable) and Chapter 10. 5. All exits must provide an accessible path of travel to the public way. (CBC 1024.6 & 1127B.1) 6. Detectable warnings shall be provided where required per CBC 11336.8 and 1127B.5 (7). The designer is also required to meet all ADA requirements. Where an ADA requirement is more restrictive than the State of California, the ADA requirement shall supercede the State requirement. 7. Provide an accessible path of travel to the trash enclosure. The trash enclosure is required to be accessible. Please obtain a detail from the Dept of Building and Safety. 8. All contractors and subcontractors shall have a current City of Palm Desert Business License prior to permit issuance per Palm desert Municipal Code, Title 5. 9. All contractors and/or owner -builders must submit a valid Certificate of Worker's Compensation Insurance coverage prior to the issuance of a building permit per California Labor Code, Section 3700. 10. Address numerals shall comply with Palm Desert Ordinance No. 1006 (Palm Desert Municipal Code 15.04.110 through 15.04.160). Compliance with Ordinance 1006 regarding street address location, dimension, stroke of line, distance from street, height from grade, height from street, etc. shall be shown on all architectural building elevations in detail. Any possible obstructions, shadows, lighting, landscaping, backgrounds or other reasons that may render the building address unreadable shall be addressed during the plan review process. You may request a copy of Ordinance 1006 from the Department of Building and Safety counter staff. 8 PLANNING COMMISSION RESOLUTION NO. 2479 EXHIBIT A RECORDING REQUESTED BY, AND EXEMPT FROM FILING FEE WHEN RECORDED, MAIL TO: PURSUANT TO GOVT. CODE §6103 City Clerk's Office City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 (Space above for Recorder's use Only) DEVELOPMENT AGREEMENT Between THE CITY OF PALM DESERT, CALIFORNIA and BERNARD INVESTMENT GROUP, INC. a California Corporation Dated: , 2008 9 PLANNING COMMISSION RESOLUTION NO. 2479 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 Bernard Investment Group, Inc., a California Corporation ("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 there under pursuant to the Development Agreement Legislation. C. Developer owns or is purchasing certain property in the City of Palm Desert California (the "Property"), which Property is more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference. 10 PLANNING COMMISSION RESOLUTION NO. 2479 D. Developer intends to use the Property to develop a Project consisting of low and moderate -income units for residential development and associated amenities and public improvements. E. 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 and is consistent with the existing Senior Housing Overlay District. F. The Developer has applied for precise plan approval pursuant to Chapter 25.52 of the Zoning Ordinance, senior Housing Overlay District which allow for significant density increases in return for building specialized housing designed and restricted to residents over age 62 years; G. Pursuant to City Codes and as a condition of said approval, City has required that a specified number of units associated with the project be set aside for lower and moderate income occupants subject to restrictions necessary to insure the continued occupancy of said units by lower income and moderate senior citizen households; H. Developer has been conditionally granted permission by the City to construct conventional senior housing rental units on the Project by Precise Plan / Conditional Use Permit No. 08-50. Pursuant to a separate agreement, Developer is required to set aside affordable units for low and moderate income occupants for the required period of time also set forth in the separate Affordable Housing Agreement. Said Housing Agreement is an integral part and condition of this Agreement. 11 PLANNING COMMISSION RESOLUTION NO. 2479 I. 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. 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 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. 12 PLANNING COMMISSION RESOLUTION NO. 2479 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 low and moderate income residential development and associated amenities, and on -site and off -site improvements, as permitted under and described in Precise Plan/Conditional Use Permit No. 08-50 to be constructed on the Property, as the same may hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement and pursuant to the conditions of approval imposed on any further land use entitlement applications that may be reasonably required in order to implement the development of the Project. 1.11 Property. The real property and any improvements thereon which is described in Exhibit "A" to this Agreement. 13 PLANNING COMMISSION RESOLUTION NO. 2479 2. Term; Amendment. 2.1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate on the ten (10) year anniversary date of the Effective Date, unless sooner terminated or extended as hereinafter provided. The term of this Agreement shall not modify the Terms of any other Agreement dealing with low and moderate income households. 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 Project. (a) The Project is described in the Precise Plan/Conditional Use Permit No. 08-50 as the same may be modified by a separate Affordable Housing Agreement with the City which is an integral part hereof. (b) During the Term hereof, Developer shall have the vested right to develop the Project in accordance with, and development of the Project shall be governed by, the approvals given by Precise Plan/Conditional Use Permit No. 08-50 as modified by any other agreement for affordable housing and the Existing Land Use 14 PLANNING COMMISSION RESOLUTION NO. 2479 Ordinances. Developer's right to develop the Property in accordance with this Section 3.1 shall remain subject to: (i) all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and contained within the Existing Land Use Ordinances; (ii) all amendments or modifications to Existing Land Use Ordinances after the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and committees enacted or adopted after the Effective Date of this Agreement (collectively, "New Laws"), except such New Laws which would prevent or materially impair Developer's ability to develop the Project in accordance with the Development Plan unless such New Laws are (A) adopted by the City on a City-wide basis and applied to the Site in a non-discriminatory manner, (B) required by a non -City entity to be adopted by or applied by the City (or if optional the failure to adopt or apply such non -City law or regulation would cause City to sustain a Toss of funds or Toss of access to funding or other resources), or (C) New Laws the City reserves the right to apply under this Agreement; (iii) all subsequent development approvals implementing the Project and the conditions or approval associated therewith, including but not limited to Project Tract Maps and building permits, (iv) the payment of all fees or exactions in the categories and in the amounts as required at the time such fees are due and payable which may be at the time of issuance of building permits, or otherwise as specified by applicable law, aw 15 PLANNING COMMISSION RESOLUTION NO. 2479 existing at the time such fees are due and payable, it being understood that this Agreement shall not prevent the City from establishing any new City fees, including new development impact fees, or increasing any existing City fees, and to apply such new or increased fees to the Project or applicable portion thereof; (v) the reservation or dedication of land for public purposes or payment of fees in lieu thereof as required at the time such reservations or dedications or payments in lieu are required under applicable law to be made or paid; (vi) Building, electrical, mechanical, fire and similar building codes based upon uniform codes adopted in, or incorporated by reference into, the Palm Desert Municipal Code, as existing on the Effective Date of this Agreement or as may be enacted or amended thereafter, applied to the Project in a nondiscriminatory manner. (c) Notwithstanding any condition setting forth the earlier expiration of any of the Tentative Maps, each of the Tentative Maps shall remain effective for the Term of this Agreement unless modified with the concurrence of Developer, its successors or assigns. 3.2 Project Timing; Construction Entitlement. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which parts of the Project will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. Therefore, the parties hereto acknowledge and expressly agree that Developer is hereby granted by the City the vested and guaranteed right to develop the Project in such manner and at 16 PLANNING COMMISSION RESOLUTION NO. 2479 such rate and at such times as Developer deems appropriate within the exercise of its sole subjective business judgment. Therefore, City expressly agrees that Developer shall be entitled to apply for precise plans, subdivision maps, building permits, occupancy certificates and other land use and development entitlements for its use at any time provided that such application is made in accordance with the Development Plan and this Agreement. Notwithstanding any provisions to the contrary in this Agreement or the Existing Land Use Ordinances, Developer shall have the right, but not the obligation, to construct not less than the maximum number of square feet of gross floor area or dwelling units of any permitted use under the Agreement given. 3.3 Building Permits and Other Approvals and Permits. Subject to (a) Developer's (or its assignee's) compliance with this Agreement, 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 or its assignee 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). 17 PLANNING COMMISSION RESOLUTION NO. 2479 3.4 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 or 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 Agreements 3.5 Effects 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 construction 18 PLANNING COMMISSION RESOLUTION NO. 2479 or provision of on -site and off -site improvements as set forth in the Plan and the Existing Land Use Ordinances, and the timing provisions of Section 3.2, 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 public health, safety and welfare of the City and its residents, and this Agreement is an essential element in the achievement of those goals. 3.6 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 19 PLANNING COMMISSION RESOLUTION NO. 2479 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. Periodic Review of Compliance. In accordance with Govt. Code Section 65865.1, the City Council 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 Cit, and after reasonable exercise of its discretion and after reasonable notice to Developer, may require. 5. Permitted Delays; Supersedure by Subsequent Laws. 5.1 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 -governmental entities, enactment of conflicting provisions of the Constitution or laws of the United States of America or the State of California or any 20 PLANNING COMMISSION RESOLUTION NO. 2479 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. 5.2 Supercedure 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 5.1 above, for a period of time equal to the length of time the challenge was pursued. 21 PLANNING COMMISSION RESOLUTION NO. 2479 6. Events of Default; Remedies; Termination. 6.1 Events of Default. Subject to any extensions of time by mutual consent in writing, and subject to the provisions of Section 5 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. 6.2 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 22 PLANNING COMMISSION RESOLUTION NO. 2479 Section 6.1 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 constitute such party's exclusive and sole remedy, and with respect to such election and City and Developer hereby waive, release and relinquish any other right or remedy otherwise available under this Agreement or at law or equity. 6.3 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. 6.4 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 6.2 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 23 PLANNING COMMISSION RESOLUTION NO. 2479 the exercise of the right of termination provided to the developer under section 6.2 hereof, then developer shall be entitled to all of the benefits arising out of, or approvals, permits, certificates or other 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 6.2, 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. 6.5 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 5.1. 7. Encumbrances on Property. 7.1 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 24 PLANNING COMMISSION RESOLUTION NO. 2479 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 modification. City further agrees that it will not unreasonably withhold its consent to any such requested modification. Any Mortgage on the Property shall include appropriate provisions for the partial release of said Mortgage to assure that Developer can convey to the City, free and clear of encumbrances, any portions of the Property which Developer is conditioned to convey or has otherwise agreed to convey to the City or its designee. 7.2 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. 7.3 Mortgagee Not Obligated. Notwithstanding the provisions of Section 7.2, 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. 25 PLANNING COMMISSION RESOLUTION NO. 2479 7.4 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 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. 8. Transfers and Assignments; Effect of Agreement on Title. 8.1 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, 26 PLANNING COMMISSION RESOLUTION NO. 2479 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. 8.2 Covenants Run with Land. (i) All 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 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. 27 PLANNING COMMISSION RESOLUTION NO. 2479 9. 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 Palm Desert 73-510 Fred Waring drive Palm Desert, California 92260 If to Developer: Bernard Investment Group Attention: 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. 10. Indemnification: Developer's Obligation. 10.1 Developer's Wrong -Doing. Developer will defend, indemnify and hold the City and its elected officials, officers and employees ("indemnified parties") free and harmless from any loss, cost or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker's compensation claims) which results from (i) any 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 28 PLANNING COMMISSION RESOLUTION NO. 2479 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. 10.2 Environmental Assurances. Developer shall indemnify and hold the indemnified parties 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 and developer shall defend, at its expense, including attorneys fees, the indemnified parties in any action based or asserted upon any such alleged act or omission. 10.3 Challenges to Agreement. Developer agrees and shall indemnify, hold harmless and defend the indemnified parties from any challenge to the validity of this Agreement, or to the City's implementations of its rights under this agreement. 10.4 Defense by Counsel Chosen by City. In the event the indemnified parties are made a party to any action, lawsuit other adversarial proceeding in any way involving claims arising from this Agreement or Project, developer shall provide a defense to the indemnified parties, with counsel reasonably acceptable to City. Developer shall be obligated to promptly pay all costs of defense, including all reasonable attorneys' fees, and any final judgment or portion thereof rendered against the indemnified parties. 29 PLANNING COMMISSION RESOLUTION NO. 2479 10.5 Non -liability of City Officers and Employees. No official, officer, employee, agent, or representative of the City, acting in his/her official capacity, shall be personally liable to developer, or any successor or assign, for any loss, cost, damages, claim, liability or judgment arising out of or in connection to this agreement, or for any act or omission on the part of the City. 10.6 Survival. The provisions of these sections 10.1, 10.2, 10.3 and 10.4 shall survive the termination or expiration of this agreement. 11. Miscellaneous. 11.1 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. 11.2 Consents. Unless otherwise herein provided, whenever approval, consent, acceptance or satisfaction (collectively, a "consent") is required of a party 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 laver for consent, that party shall then be deemed to have given its consent. If a party shall disapprove, the reasons therefor shall be 30 PLANNING COMMISSION RESOLUTION NO. 2479 stated in reasonable detail in writing. This section does not apply to development approvals by the City. 11.3 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. 11.4 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. 11.5 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. 11.6 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. 31 PLANNING COMMISSION RESOLUTION NO. 2479 11.7 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. 11.8 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. 11.9 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 11.10 Prevailing Party's Attornev'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 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 32 PLANNING COMMISSION RESOLUTION NO. 2479 expenses) incurred by the other party with respect to such to such dispute or in enforcing or establishing its rights hereunder. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above -written. DEVELOPER: BERNARD INVESTMENT GROUP A California Corporation By: By: CITY: CITY OF PALM DESERT, CALIFORNIA, a municipal corporation organized and existing under the laws of the State of California By: Jean Benson, Mayor Attest: Rachelle D. Klassen, City Clerk 33 PLANNING COMMISSION RESOLUTION NO. 2479 STATE OF CALIFORNIA ) COUNTY OF ) ss On , 2008, before me, , a notary public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public 34 PLANNING COMMISSION RESOLUTION NO. 2479 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY [to be attached prior to recording]